morning please the court my name is stephen r j er and i represent jonathan holt i do is serve two minutes for rebuttal jonathan holt is interrogated by federal and state law enforcement officials in circumstances in which a reasonable person would believe that he was not at liberty to either terminate the interrogation or leave the district court's analysis of whether this interrogation is custodial is incomplete the conclusions that it was non custodial is erroneous the reason i say that is this is a case of his to be looked at in the context in which the interviews or interrogation took place the district court did not look at much beyond before problems in the head of joseph case particularly important is the timing of whatever warnings were given were given the context of the case is important subpoenaed was subpoenaed to the group by the grand jury to appear at the federal courthouse on august the twenty fourth two thousand and fourteen he was subpoenaed to give physical evidence only interrogation was preplanned before he got there the specific goal with not only to get this physical evidence but also to get statements from mr holt the government wanted to get statements from him to try to hear him lead the investigators to other individuals who were members of this short north posse hold appears on august the eighteenth remember he's a paraplegic he's in a wheelchair he separated from his girlfriend caregiver and within two or three minutes of his arrival the questioning begins t questioning begins before they even offer to take the samples for which he was was he told he was free to leave before he was asked any questions do we know the answer to that it took this conflict in the testimony but what did the district judge find after hearing the conflict in the testimony the district court found that he was told that he was free to leave but the the issue with the case is that decision was made without a complete consideration i believe to the context of the case and when these warnings were given how many and for they first of all he was told  was there to get physical evidence the questioning starts pretty much when he got there ok but if you was told so say you got there and say the first thing out of the usa were the agents  mouth you're here to give physical evidence but we have some questions you don't have to answer the questions you're free to leave as soon as you give us the physical evidence if that had happened there wouldn't be any in custody situation right i don't think is dispositive in this case i think in some cases that may be dispositive i don't think it is in this case because later on he could of course be put into custody but apart from that if he's if he's then says fine in the first question is did you murder the victim and he says yes in my hypo which is not what happened but then there would be no problem because he'd been told he's not in custody and he just blurts out yes i murdered the victim in that hypo wouldn't we have to rule against that hype is that what happened here but perhaps you would in that case i can i can see that that sometimes dispositive of the case i don't think it is here let's look at let's look at the facts of the case for a second picks i think that's what's really important what the district court failed to do he is told that and again it's there's conflicting about when the statement is made but he is told you know these generic type of movie and a warning to never get a waiver from you please tell these generic warning to which include you're free to leave we're going to ask you some questions be able to give this evidence but the threat of a warrant is also stated now we don't know when that exactly takes place there usa tells him you're here to get this stuff if you don't give it we're going to get a warrant for you the court's going to force you to get to give this information ok they never give him the opportunity to do that they start with the questions and somewhere along the line they somebody comes in and takes a photograph it's not at the very beginning i think if the questions already started the samples aren't taken too much later the thread of a warrant you're talking about a warrant to do what the force to give the information i assume is not really clear but i believe that the threat of the war objectively reasonably can to interpret it or could be interpreted as it were to stay and complete the government's request and if they're there to produce the physical evidence right right but he's not in control the government he has a home field advantage he can say give me the stuff i really was subpoenaed by the jury to appear and he appears to give the physical evidence not the answer questions so doesn't the warrant i mean normally you don't have a warrant to ask questions  you have a warrant to crack certain property or to arrest a person or here to provide physical evidence the d n a evidence but if we look at it from an objective standpoint you're free to leave we want  questions i'm just i'd like to do what the war acquires get my d n a get my picture taken and yes he said that he didn't but there's but there's also testimony in this case and that's why i think the timing is very critical in this case because what happens is there's testimony that's kind of incredulous actually from government officials who were there to state officials to i believe to mind and i'm going to end with that because of the reporting that he says but what happened but what happens is there is testimony though that they all at different times watch him rocking back in his wheelchair he poses a shirt over his police detective gillette who was the one who did record this thing describes it as a tough interview he's not they're not getting the answers that they anticipated they would get here in this that is the interview progresses law enforcement agen conferring inside and outside of the court room to say he never displays any discomfort he never says i'm going to leave he's been warned if you don't do we want you to do we're going to get a warning the press in him and asking these questions they're conferring outside the court room he's been taken through to have water security up four floors internal offices here's no control of the situation whatsoever he separated from his caregiver by the way also questioned in the lobby waiting for him to finish so it's clearly a pre planned interrogation the court comments about the situation are kind of mystifying to me because what the court says is that the suppression hearing that the rehearing trial what the court says are put it to you like this government has this been essentially the same as it was when i considered this i'm assuming referring back to the the court tells them further the government is hanging on the skinning us of threads don't let this happen again there he was referring to the fact of the judge's referring to the fact that although the state policy was to record the interview this interview was not happens again but how does that correlate to the question of whether he was in custody i think the lack of a record is pretty important if there would have been a record here we would know when these warnings were given we would none of the warnings were mean for not i don't understand why the warnings weren't weren't given a waiver and then the questioning standard that we're looking at this i think it's in biggest question law in fact so i think you have to look at it regard to the court's findings of fact and i think the credibility determination the test which risk it about judge is that i'm asking about the findings of fact that the district court made with regard to whether or not your client was in custody the court finds that he was not in at the time he makes a finding i believe would that be enough for us to find this again i don't clearly erroneous i don't i don't think i don't i think it is through your own ears i don't think it's dispositive because the court only addresses the other comparable cases where the location here at the courthouse really doesn't make any difference the cases the government relies on in the court rely on or more interviews that took place at either homes or places of employment that's not what happened  here i think there are some restrictions on the freedom of movement really that really the test here would a reasonable person recognize that they could terminate this and leave despite what they're told under the circumstances case i don't think a reasonable person would i think i'm out of time thank you thank you it please the court ken robinson on behalf of the united states in light of the argument this morning i will focus on suppression the warnings that were given the court is correct before the questioning began mr holt was remarked was told of his right to remain silent and told that he was free to leave the district court found that in its opinion and there was in fact no conflict about that in the testimony in the suppression hearing and the testimony at trial so he wasn't he wasn't given complete written the warnings he was given a personal correct the only one that was missing was i believe the right not to do anything that is said could be used against him but all of the others were given or that in attorney would be provided believe that an attorney would be frighted was  indicated who said that that warning was given and when was that i believe it was one of the officers in the suppression hearing as he appeared without an attorney that's correct the both right to remain silent and the free to leave warnings were given before asking any questions after he gave the first statement about his pop involvement in the robbery he was told to leave and get an attorney because the united states was still interested in using him as a witness why didn't  it's unclear that was that was the point at which he pulled the shirt over his head and then proceeded to give the statement in this case it's obviously a very large case and a number of witnesses were called in using a subpoena similar to this and many of them did not give statements mr holt did the you were correct that he could have refused  there is no conflict in the testimony about the nature of the statements that he gave there were no contrary witnesses about what mr holt said in the in the interview and there is no conflict about the core warnings that he was given strong and repetitive warnings before he began questioning and you are correct that the subpoena did not require him to answer any questions the subpoena also provided the opportunity for him to meet with the officers and meet with one of the officers and outside of the courthouse and provide the information so it was a particularly strong and clear indication that he did not have to answer questions when you saw the subpoenas that he could meet outside the court as did the what did the subpoena say where he was supposed to provide the d n a and the photographic evidence the subpoena ask him to come to the court house but it indicated that he could provide alternate arrangements arranged with the officer to provide them at another time and place he did not do that so i think the core of this is the warnings that were given but at the beginning and after he gave the first statement it would be difficult for him to argue  that those were not conclusive here but wouldn't a reasonable person feel free to leave under the circumstances of being in the courthouse in a room that's isolated  with four or five law enforcement officers asking him lots and lots of questions about what was going on in this very serious situation no as this court has said before speaking at the court hearing at the courthouse even having been driven by a police officer does not mean that it person is in custody or not free to leave the particularly in light of the warnings that were given so four police officers four officers of the court is not a large number of the cases of this court and the fact that it is at the courthouse is not dispositive or even a strong indicator of custody so even though he was twenty two something like that roxanne was not just a paraplegic but it was from the chest down he couldn't really maneuver himself very well right and i've not seen any cases in which  right and he could you're correct that he could not open the door by himself but he could wheel himself but the core question here is whether he could stop the interview and the warnings make it clear  so so so what if there's concern about what exactly the warnings were and when they were given and the fact that there was not the ability to tape record the interview because of the purported lack of batteries all leading to questions and then the district judge having the two hearings both of the motion to suppress stage and then during the trial the district judge expressing a lot of dismay as to what was really happening why shouldn't all of that point to concern on our part that there was in custody situation where miranda warning should have been given it's a very easy to get somebody to sign off on miranda warnings have a have a written statement all address the conflict and then the tape recording and us can talk dress miranda warnings first because at the short one i think it's important to say that it's not necessary for miranda warnings to be given here because he wasn't in custody it's the practice of our office to give them as complete to make it clear that he was free to leave the usa here didn't have the card with him he gave all the ones he remembered and admitted it one but the admission i think rather than winning toward custody the fact that most of them and most importantly the fact that he was did not have to answer questions weighs against custody as to the conflict the district court found the prosecutor credible both in this after the suppression hearing in the initial order  at trial he indicated again that he found that the prosecutor credible and that was the basis for his opinion so that conflict doing statements were dressed due to about what the mr holder actually said during the interview and there was no conflict about warnings that were given the fact that warnings were given at the trial who testified indicated that he didn't remember when warnings were given he indicated that the right to remain silent and free to leave were given before questioning started but when they are several other questions about which warnings had been given when he indicated that he didn't remember which was i think different than his testimony the suppression hearing so there was no conflict about the content of mr holt statement or the fact that warnings were given or even the timing of the coup or warnings here that this court has indicated were important so i think we're saying that there is no conflict but also that the district court found  credible and that's difficult to reverse as to the tape recording the lack of tape recording here could be significant in a case in which there was conflicting testimony about what the statement actually was here there is not mr holder statement has been presented without objection the district court found mr found the description of the statement or the circumstance of the statement credible so the lack of paper quoting here does not weigh in any particular does not reagan's credibility and credibility was found in any case so here i don't think that the lack of tape recording is significant unless there are additional questions think doesn't make any difference what the content of the statement was as far as this issue goes because the process wasn't correct and if we if we base decisions of miranda  the if you look at the testimony and i understand the credibility determination but the court will look at this and the court says its initial do now was based on the testimony of the usa developers that's a fifteen twenty one page fifteen seven fifteen days after this interview takes place it's not meant to be an actual representation of what happened he doesn't mention any of this as it relates to when the statements were taken that testifies at the first suppression hearing ten ninety eight e eighty eight fourteen that d n a and photographs are not honestly taken they were taken during an interview but i don't know when he was told he could leave his testimony is different at the second hearing truck transcript fifteen twenty one page fifteen six eighty three he states hold was advised of his rights he was free to go at any time that he that later says he later whole was given the warnings but not until at or near the end of the or they argue that in a brief it can't be harmless because this is a partial confession and it's this confession that ties mr holt at least in part back to the rico conspiracy in a closed case like to just record in this this is a very close case he thinks that reynolds the organizer is a freelancer and that some of these actions are and i think maybe all of them were not taken as a part of the conspiracy is more likely than not that the jury looked at the statement that was made there was a minute a trial to break the t making him back to the rico he's serving life plus twenty five from barbour unaided racketeering to the air that occurred is not harmless thank you for being