and at the time he was brought before that grand jury it was a target of that investigation it was brought up by a summons which the supreme judicial court has acknowledged compelled him to appear to testify and he was in and represented by counsel i don't mean to be rude but you have very little time and give us credit for knowing what the facts of the case are yes judge those the facts of the case i was only repeating because they're essential to understanding why the supreme court did not address this issue but i'll get directly addressed myself to that in those terms the st major matter that i need to address is whether or not this s j c of the state proceedings adjudicated the issue that's now before this court on the merits and it did not do so so there are two as the court a warning of possible self incrimination that did not happen however they did not address the constitutional issue and the reason they do not do so i submit is because if they rules prevents them from doing starvation determine the case they should only breach that's their issue if they need to know do they not need to but they could not because all the facts were not in place in fact this was also true in washington versus  united states this was true in the month our case and this was true in several cases in this court where there was an interest in the possibility of ruling on this issue but all the parts were not in place what do you do we are minutes remaining the very next clause in what the s j c said in would one has even if the defendant were a target the commonwealth was under no obligation to want to have that status under federal law exactly that's true that no issue with that he was not and there's a difference your honor between wanting somebody of his status as a target which is clear from washington that was not a right that he had and one in him that he had or that he had a right not to answer but even though he was compelled by summons that says you are hereby ordered in the name of look at testify and then the real smart trial based on additional evidence which the st judge did not have before and so the most recent factual find for purposes of a hideous appeal is the finding of the motion for new trial judge which to stand it they st said well you're not a target so we don't need to deal with the constitutional issue yet and subsequent to that the lower court corrected itself and said it was a  gatekeeper but we went before the gatekeeper it allowed us to bring to go before the it should seek again now technically it was simply an appeal from the denial of a motion for a new trial but we did go before the f c c again it's in which  whether or not he as a target he would be required that in order to admit the grand jury testimony of the target the government would have had to have warned them of his not of his status but it is right  claim self and it is right to refuse to answer on the basis of self incrimination they don't address he would have discovered that such warnings were not legally required at the time i see that and that's in fact strange since since the score and two united states supreme courts have said  have said that's an open question whether or not that that could be the case and to just sort of casually say it wasn't required doesn't address the issue what they're saying is this there was no the ministry of rule at that time was too is referring back to the fact that in wood's one they should have a rule for the future and that that was not available therefore for woods himself that's all true as administrative matter they also do not address the constitutional question it doesn't mean it is that doesn't exist or it doesn't exist it's not whether it's this the power th amendment exists you're not allowed to make somebody be a witness against himself in a criminal case and that he was a target does just that because here the government intentionally is calling a person to make incriminating statements they know they are going to even talk to before they know he's going to go before the grand jury and either deny what he said incriminating if he was a target oh to come up with additional treatments that was what happened so your type is i understand your entire argument hinges on us reading when they say warnings were not legally required at that time thought the issue was whether a deeper applies or not and therefore what lands we would look at the state court ruling through and that having determined that he was not a target nevertheless decided that had he been a target it would have violated the constitution no but there was one court recognize that the constitution did not require the warnings that whites had requested exactly are you saying that they nevertheless in woods one also decided that had he vendor target there still would have been no constitutional violation exactly yes you did where did they say that will i may have missed something here but when you described woods won i think what you read to us was targets or potential targets targets and target he still has no constitutional right to the warnings he's requesting your brother's argument is that they got about which warnings he was talking about that there is a difference between a warning that you are a target and a warning that as a target to have an right not to incriminate yourself that's i think what is the argument boils down to and what is your response to that out so the court and woods to express in woods one of my question is is there any language in woods won that says what that statement s read the court and now this is of all the supreme court laws including washington and men who want to know and the st circuit laws they reviewed you need she says she read and recognized the court testified before the grand jury they did not go into the issue of whether or not his target status allowed him to benefit from the new not constitutional rule and let me ask some follow even a federal court thought that woods won didn't quite say what they say and woods who they say had woods won true that just strikes me it's kind of odd to me a deep frame or so i was questioning whether the question of the proper reading of would someone actually decision is under ad and there is no supreme court precedent that requires the targets are you under their self incrimination rights prior to testifying so you're saying under constitutional right so that's your problem act argument ok thank you thank you thank you attorney asking at this time you can meet and what you're saying there we see is that the equipment that the trial judge was not certain whether or not the target status would make a difference one way or the other and then the c says they did not research the law regarding defense position the target ones were required that target once were acquired i'm pointing this out again they're referring to target one she gives me pretty much points there but then he it's one thing for a court to tell a grand jury how it needs to proceed grand juries are respected because i separate arm of the government controlled by the district attorney prosecutor to a large degree consumer ask i'm not and warnings i'm not constitutionally required you're asking me a couple of questions which i would like to respond to right what i'd like you to to add like you to focus on that statement know almost but not quite sure of what i'm saying is this i'm not asking this court to tell a massachusetts grand jury how it should up and to any circumstances but i'm asking this court to do is to preserve the defendant's right rule right you know you're on the exclusionary were rule would come in under the circumstance i take a th amendment issue we're the penalty the harm comes in in the unreasonable search and seizure here the harm comes in when it's being introduced  defend those words have been used by this court to describe a target and then slowly next step indicting him and putting him on trial and then reading one hundred pages of his testimony to the record that is that that question mine are they really your best in the th amendment issue do you think that woods to stands for the proposition in any sense that the th amendment does not give a person protection under these circumstances with their target and not one if you will if you think that's what they're saying not one of their right not want to their right against self incrimination then i lose the case but i think that's not what it says that they're