of illegal substances the first argument that i'd like to address is the simplest i suppose of the issues and that is suppression and suppression of his statements and suppression of the physical evidence that was seized and our argument as we set forth in our brief turns on the fact that the consent here could not of was not and could not have been voluntary either to the oral consent or what followed later was a written consent this court road in two thousand and fourteen in the ta r decision and that was a case in which the defendant or the appellant there took a number of pills and was hoping to commit suicide before he was arrested in this court held that under those circumstances his ability to voluntarily and not entirely consent was abrogated by the fact that he wasn't in his right it wasn't his right mind sensually can i ask you what what are we make of the district court's finding that mr bryan perjured himself when he testified that he was never even taken to or interrogated at the police precinct i think in terms of because because  that doesn't seem to be a product of being overwhelmed by having his will over born that that was an affirmative statement that was completely contradicted by the officers testimony what is your position about that i think your honor raises an important point because i think that the issue here is what my client remembered what he had the capacity to remember and our argument from the beginning of his from the time of his arrest until ultimately when he's hospitalized is that whatever happened there he remembers some of it but he doesn't remember a lot of it and i think that when he testified that he that that didn't happen and in fact the agent said that it did happen i don't think that candidly i don't think it was perjury i think he had no recollection of it i did say i don't recall what happened he said affirmatively he was never taken to the suffolk i think that's his reality i think his reality was very much distorted and the things that he determinations at the hearing because that would seem to take this case outside of tailor to entail or agents testified that the suspect was asleep during the interrogation drowsy and it's in that circumstance that th the the agents into my client's apartment it was clear that he had he had a drug problem you have an addictive drug problem he said that he had an addictive drug problem he was i mean by all the standards there were i think in excess of ten agents into the apartment their movements were quick he said i i have a drug problem and he was an experienced fellow i mean he had been a dea informant correct yes that's correct but he also was experienced enough to know that the  combination of the drug that he was taking g h big was something that he needed to take every hour and then if he missed a dose he knew what the circuit what the consequences were and the consequences were seizures hallucinations and ultimately death and it seems to me that if you are in a position as any individual in a position where you know that if you don't get the medicine you need with the treatment that you need within a certain period of time that you're going to die then i think everything else becomes peripheral how do you pay attention to whatever else is going on around you if in fact you're sitting there thinking i'm going to die he asked for a dosage not surprisingly the agents want to get it we're not going to give him an illegal substance and they didn't but that cause additional stress on him and then ultimately they gave him a vallium which was in no way capable of controlling the symptoms that he feared and as well the agents asked to take a valium and said this will help he said can i have a value if you're not going to give me one pill can i have the other pill and you know he's not a medical person and we know that whether it helped a little bit or a lot by the time he was in the car he was shaking by the time he got to the courthouse and was handcuffed to the wall and made statements he was beginning to experience tremors and so we know and then and it's not surprising then however the his is malady progressed at the end of the day when he is finished in court he goes right to the hospital and it's hard to to put in and it's difficult to ignore the fact that when he's in the hospital he's there for five days with you know  nonstop intrusions he's on twenty four seventh's surveillance he has a monitor and say surveillance so i criminal where he's being monitored every one of his bodily functions is vital functions is being monitored twenty four seven  receiving a number of different drugs to try to prevent him from dying but there's testimony still that when he was made the statements that he subsequently tried to suppress he was lucid that he was clear and he was helpful and talkative and that there is nothing like the circumstances that prevailed in taylor to suggest that his will was overboard by his drugged state i don't know what the what the specifics  of the withdrawal would be like you know in the early stages but it just seems to me that if you're sitting there answering questions maybe hoping that if you can get this over with the get you to hospital neal get you medical treatment that that over over bears you will it seems to me that if you are if what's in your mind is if this doesn't move along i'm going to die you try to move it along as quickly as you can you know i think today that i know the u s marshals at least have a very different approach because as soon as the marshals think that there's a medical problem defendants are taken directly to a hospital and they're not taken even for a minute until they're cleared by the hospital and seems to me that that was the appropriate approach here this guy this defendant i think would have said anything to be able to get to the medical treatment that he so desperately needed and he's not making up the fact that he desperately needed because today to stay in a hospital for five days be monitored twenty four seven you've got to be really sick i pods as they get the rest of my points but i do think this is worth the discussion thing to remember is that a lot of what she actually said is just speculation and is not the actual record that was before the district court in the suppression hearing and it is not what anybody testify justified to not even mr bryant's not credible testimony there is no dispute that he said that he had a g h b addiction to the agents there's no dispute that he initially when they first came in said that he was concerned about the withdrawal but what the testimony was was that there was a fear of a future symptoms there was a fear that in the future there might be some consequences as a result and the agents took that seriously and they did ask him multiple times throughout the course of the day whether or not he was ok he did not complain at the very end of the interview at the police precinct he asked for a doctor and they stopped the interview immediately and that was the conclusion of it but significantly throughout this entire period of time when he was being mirandized in the apartment when he gave oral consent to search when he was being transported to the precinct and giving a very detailed confession about how his drug trafficking network worked when he was in the precinct going through the consent to search he exhibited absolutely no symptoms of withdrawal he was talkative he was eager to cooperate he was trying to stay out of jail he was trying to work with the police the way that he had in the past to avoid being incarcerated he had control complete control over his facilities he towards the end he was using is the location what are we what are we to make still of the fact that he spent five days in the hospital after the hospital records show he was suffering from tremors confucian vi ual visual distortion and distress that was only a few hours after he made these critiques statements from what your adversary says he had every reason to be in fear of death if he was not able to get again there's no dispute that he had an addiction to g h be anywise treated i do think when you look at the medical records they don't actually corroborate his account of the consequences of withdrawal i mean he claimed that he immediately fell to the ground at the conclusion of the suffolk county proceedings and he had a seizure and had to be taken and there's nothing in the medical records that support that it says that there was no history of a seizure and he was he was brought to the hospital a little bit before five p that's about six hours after he was initially arrested and so i think that the real question is during those three hours it was about eleven am to two pm that he was with the federal agents that all of the consent to search the miranda the statements are really at issue here were going on the question is at that point was he able to knowingly and voluntarily waive was he able to knowingly and voluntarily speak and was able to voluntarily give consent and everything in the record in terms of where he was what he was saying supports that he was able to do that and he did testify and he didn't say my will was over borne he didn't say i was so afraid about what was going to happen that i gave them any answer that he wanted he claimed that even our varian wasn't even there he claimed that he was never even mirandized he claimed that he was never even taken to the police precinct that he was taken directly to suffolk county and that he never got to speak to his attorney and that agent marino had to help him into the court room where he then had a seizure at the conclusion and then he claimed that the time that he signed the consent to search was when he was in the hospital the agents came there a walk him from a medically induced coma and forced him to sign a consent to search that then apparently they backdated so he did not testify there is no evidence in the record that his will was over born and i think the nature of the conversations that he had with them the way that they were having a very easy conversation the way that they were so accommodating with him even letting him smoke a cigarette at the precinct before he went in this is not an instance where his will was over born he expressed some concern they listened they took it seriously but he wasn't exhibiting any symptoms he wasn't having any trouble he knew exactly what he was doing and if there is any question as to whether or not he was lucid is the hours went by we have the suffolk county transcript that was after everything had happened with the federal agents and you look at the way he spoke to the court the way he advocated for himself he clearly and articulately explained exactly what the g h d was what what in the future his withdrawal symptoms could have he was able to stand in court hears clear from the record that he was concerned about getting to the hospital i agree that i think he really he did want to get mental i mean he did want to get medical attention but i also think it's very clear from that that he was able to completely understand what was going on articulate his position he was not in a state of duress he didn't it wasn't even brought up at the very beginning he was even able to think the honor of the judge at the end when we're looking totality of the circumstances that each juncture of this case and whether or not he was able to understand what was going on even in the context of having this g h be addiction i think it's clear that the district court's decision was proper and i just want make sure i understand the record correctly so the statements made and the concerns given were within the first three hours of arrest yes the testimony from the agents was that they arrested him at approximately eleven am and that they they turned the interview and stopped talking to him at the police precinct around two pm and at that point he was turned over to suffolk county where he is process and then taken to the river had courthouse so it's about a three hour window of time and even he said when he testified that it night he would go three hours without taking any g h big that he would wake up at about three hours and that's when he would take it again and so it's yet another instance of the way that he so they're now speculating about what he was going through and what he was experiencing that's not in the record the district court had the testimony of the agents in front of her she had the the record the documents she was able to observe the defendant when he testified and the proposed claims that he made about law enforcement and about the way the circumstances had gone down and in making those credibility assessments looking at the totality of the circumstances she found that all that the waiver was knowing that that the miranda rights waiver was knowing and voluntary and that the consent to search both the initial oral one which was also confirmed on his jail call and then also his his written consent was voluntary and i also think one of the things she took in consideration which is also i think appropriate to look at now that we're seeing what his argument is here on appeal is that every stage he raised a new argument as to why it should be suppressed i mean before he even testified he claimed that when they first came in he had no idea what was going on and he was going through withdrawal after he heard some of the jail calls and saw some of the other evidence when he testified he claimed that he knew exactly what was going on in his apartment that he knew exactly what was going on in the car when he was being transported but that he was never advised of his miranda rights and he basically didn't make any of the statements that they said and that the consent to search which although with you look at it has the exact same signature that he signed on other things was not his signature although he if he was awoken from a medically induced coma and all of these changing stories i think went to the overarching determination as to the credibility of the defendant and then when you take out the defendant's testimony which really simply was not credible and you look at what the agents testified to the evidence that was before the district court it really was clear by the t circumstances that the miranda waiver was knowing involuntary that he was still voluntarily making statements as he continued to make those statements in the car and in the police precinct and that both the consents were also voluntary police station in remember this and that never happened in a variety of those different incredible concepts because we know what happened him and we have no reason to believe that he wasn't in the precinct or how the progression went is i would ask the court to consider the fact that it's because he the beginning to have withdrawal symptoms or is so in fear of having the withdrawal symptoms that he really doesn't know what was going on and that seems to me to be clear by the fact that his position changes as frequently as it changes the bottom line is the one thing that's consistent is the fact that he really fears for his life and he makes that point repeatedly now if he thinks that he was awaken from a coma and signed it when you know in the middle of this coma perhaps that's what he thinks the reality here my argument is that the reality here is very separate from the objective reality in the here is very different from his individual reality because he is at least at some point beginning to have serious drug withdrawal complications but even in the in the and the outset is in fear of having them the first thing he says to them is please let me have some of the big because otherwise i'm going to goin withdrawal and i could die and i thought i'm sitting there thinking while they're asking me questions you know that the only way to get medical attention is to give me what they want they can have whatever they want because i don't want to die i have another question for the court and that is respect to just briefly address the issue of scheduling which i hadn't gotten to do in my in my initial thank you i did want to just speak very briefly about the scheduling issue that we've briefed and i think it thoroughly in the brief but it's ou position members of the court that the delegation of the scheduling issue of the scheduling of this particular drug as a schedule one narcotic is unconstitutional delegation of power by the congress to it to one of its agencies it's interesting and i think critical in the sense to note that methyl on was not scheduled ultimately as a schedule one narcotic until april two thousand and fourteen that was when it was permanently scheduled that was well after the conclusion of all of the events in this case now there were temporary delegations a temporary approvals along the way but those are published in the federal register and provide little or no notice to the public at large and it wasn't until after the conclusion of my client's conduct that in fact it became a part of the schedule one that was actually listed a schedule one as a schedule one narcotic and in fact it's interesting to note that even today even today this drug does not appear in the sentencing guidelines another argument that i make and i see him out of time but another argument that we would ask  to look at is the ratio of the option to the five hundred to one ratio it just seems to us that's completely random there were no hearings there was no medical evidence as to how they arrived at that or why they arrived that it seems completely arbitrary thank