miranda i think the issue is very straightforward in the laws is well settled there's no issue that this young man was being interrogated one problem around that there's no issue that he did not get his miranda warnings a second prong the sole  minimum this is sort of reading between the lines of what judge brinkema say in your opinion was this case over charged not we're not talking about proportionality but i'm talking about a prosecution that need to charge everything if they might conceivably move we kind of surprised to see the production in distribution counts well i'm sorry to say that based on my long experience in this jurisdiction it didn't really surprise me at all and i'm sure the courts aware there's been great they didn't need to charge it they didn't need to charge it at all and we've you these sorts of cases where it's clear you have young younger rather than younger individuals and they go from production and distribution on to this and the thing that's i don't want to be dramatic but  i would use the word shocking is that the conduct in my view was at the margins of what the criminality is under the you know it's not admirable i mean so by no means think it's been bad conduct a question i had concession on the production and distribution my partner was lead counsel he's sitting here today and that question probably the best addressed in this case who handled the prosecution start finish as well but the government was gets these kinds of things and then it rises on the set of pewter and then oh he has charges zeshan seat distribution hundreds of years is facing it well this is right typically that's not i i do you do think it's against you i think it's and you're it's day six and one over the most recently the cases are there out there what advice in that position are judge there's a been a stream of case from the four circular better stream a case of yes and i have more them and the language and change it has and changed and it's gotten more pro government that's correct there's least three of a series of them and if you go back to the beginning our president is exactly the same as everybody else's well that's right but any more if they want to be heroes what contro use the most recent one or the earliest one well you know i don't well i'll tell you the where there is an irreconcilable conflict between opinions issued by the three judge panel of this court the first case to decide the issue is the one that must follow unless an intel it is overruled about this court sitting in bank or bother supreme court now that's in bank now if that's the law then what is the law of the foreshore going on proportionality review in this situation well look the law would then be as expressed by just as kennedy in the arm on opinion there's a three step analysis and that's what we gauged in  this situation court courts have have rejected proportionality review in far more sympathetic situations then and here i mean i have some sympathy for a question about  year old boys i guess and morning then to take pictures of themselves and this is inducing those sorts of pictures by training picture of  and also you know with with social media these days the ability to humiliate a young child is enormously magnified so it is true and the courts have said over and over again that it's exceedingly rare that a court's going to find a sentence unconstitutional as being cruel and unusual because of proportionality i don't question that at all but there are unique facts about this case and we tried to point him out judge brinkema made it very clear that this although it chronologically one thousand year old boy he was socially and mature she said that a number of times in different cont i think that has to to play into the calculus in some way the i said before that the conduct was on the margins of the criminality it was a crime and it was bad and as you say it's conceivable that a live on forever we've seen that i can tell you that the united states attorney's office could prosecute child pornography cases day in and day out without putting a dent in it it is so rampant but the people who are getting prosecuted and getting those major sentences which they should are not these nineteen year old kids and we presented some statistics from the sentencing commission the average age of someone sentenced for production of child pornography is forty two years old this is on the far extreme and you've got a young guy who is going to go off to prison for fifteen years in the as i said perhaps a little too dramatically in my brief he's ending up with a sentence that congress never for him to suppose that he would get because he's going to be locked away in a largely secret society where god knows what's going to happen to him and when he gets out  going to be quite a different person and not in ways that we hope that rehabilitation will work that the court in rope weren't graham and miller the eighth and then the cases dealing with juveniles make the point that make number of points but one is that eight a sentence like that for a young person is vastly worse than a similar sentence for a forty two year old man we we all i can say there will be an effect on the case i don't know what will happen perhaps the united states will take to heart what you've said here and maybe change the view about what they ought to do i would hope so that issue here was he in custody and of course the test is would a reasonable person conclude that his freedom of action was curtailed to a degree associated with formal arrest we reviewed every clear yes or how to get around that and it was clear here's what happened and judge brinkema said if it wasn't for that tape recording you'd win your case which i take to mean that when she heard all the facts you know up to you know the interaction between the two agents in that basement room with this nineteen year old kid that they showed her that he was in custody now where and i can reel  isolation it's got to be judged by the objective facts and everything that occurred before which are in my view astounding and lengthy and all on our side of the ledger i can go through and i want to briefly but about what should c said concerning that conversation in the chatty nature of it in that he seemed so relaxed and the police were polite now that matters in their view i we've been reluctant if i'm cross that you know home and karma well it's true reluctan t but you haven't and yet i think the court has said that that is not talismanic nor is it talismanic that someone's told you're not under arrest and you're free to go those are factors that have to be included but look what happened to him before he even got to that room and then i do want to address your question about judge brigham as comet's here's what happened this house was invaded by twenty to thirty agents why the house was invaded by twenty to thirty edges is a question i've got in my mind and they you know go into seize the computer kind of case in a middle class neighborhood so right off the bat you know i ask what's going on there they had a battering ram at the ready although they didn't use it they pounded at the door people inside heard the commotion of the door was answered the police that they were using command voice then agent stream through the house with drawn collecting people all right not saying would would you step outside no they were taken the testimony is the mother was taken by the arm led downstairs shamy is confronted in his bedroom naked in bed at gunpoint told to get up raised his hands taken by the arm and told to wait in the front yard with his parents and he's told stay there they're out there for now don we're not we don't have the force  lying about the execution of the war no sir the question is not a fourth and one it's a question of whether those circumstances would give rise to the studio situation exactly so and that's a fair point yes and you're saying there were members in custody one everybody was in custody at that point and that's as an end it's really just beginning because at that point once the house was cleared and i don't fault the police for doing this i mean they're allowed to but the question is what is the  what would a reasonable person conclude from this and the other factors they were then directed back into the house not told if you would like to come in and sit down and you know have tea with us and discuss this no they're taken into the living room they're happens downstairs once he is a lead downstairs by the police who don't say do you know we'd like to talk to you is there a place where we can sit where you be comfortable that's not in the record what's in the record  he was taken downstairs by an officer in front of an officer behind him and put into the room of there just want to see i'm sorry sir he's mother want to see how he did and what happened there she was not allowed to see him  so it and by the way he's in his boxer shorts for a good portion of this they venture to give him close eye and they let his mother see him so i've probably have to ask if you even a lawyer and maybe she is i don't know we don't think he has a right to a lawyer but you don't have a right to a mother apparently not in any event when he needs to use the bathroom he is taken to the bathroom and agent stands with him inside the bathroom this is all happening before he gets to that room and that's why he got all this context is important in evaluating what goes on in that room down there they give  the distribution of the on graphic pictures over facebook or what have you the the because only of statements really matter in light of the physical peripheral well that's an excellent question and our answer i think disposes of it the and at the state of the record now the police got into those computers because the defendant gave them the passwords  its best to put all the facts in its actual recitation to support the base for the plea all the facts of the upcoming manufacturing trial in recited them for the judge alex all my partners that and sa hey wait a second we're having a trial on these next week you know this sounds like their opening statement for next week we're here to plead to these two charges only just because i understand i understand and then  the defendant as well that he was free to appeal the suppression issue now there was no written plea agreement about waiving rights to appeal or anything like that but that is the advice that he got from judge work and it was not a conditional play but it was an it was not a conditional maybe doesn't have a right to appeal i all i know is like judge we i'm not sure what you got out of this out of this place and it wasn't a conditional play and you didn't get that you can get the production distribution charges dismissed i just wonder i pull tell you frankly this is as was a strategic decision of the defense lawyers i guess but i do understand what you got what we got is we we got the hope that the government would come to its senses you great respect for judge brinkema i think she just got it completely wrong she applied the wrong test that all those sorts of things about you know what must have been going through the defendant's mind and how chatty and cooperate if he was are addressed to the issue of voluntary  totally separate in this case we're talking about custody of the test is so absolutely object is not subject not what he thought but the the facts that would impress a reasonable person  denying the defendants motion to suppress statements for several reasons now contrary to the defendant's arguments the district court made numerous factual findings that do go directly to the custody issue and not just to the we discussed a lot of things like your say something absolutely bob's absolutely so it is important to note that this defendant is an online sexual predator and a sexual predator in person we have recorded statements from this defendant that he sexually abused five children yet it he was in direct contact with ages eight through fifteen that didn't satisfy him and he then took his activities on line to groom a little boy that he found on the internet after trolling the internet and he would engage these young boys into conversation pretending to be this young attractive female he spent weeks months and even years with minor be enticed seeing him and persuading them to engage in sexually explicit conduct so that he could obtain child pornography after obtaining this child pornography he turned around and he distributed the images of minor and minor g to others on the internet use it so he was charged for conduct from when he was eighteen and nineteen years old his youngest victim was thirteen years old and the trial record shows that the youngest victim told him i'm kind of embarrassed i haven't even hit seventeen years old and continued to talk to mine or be for a number of years and it took years for minors of this juvenile conduct some of the relevant conduct that came in at trial was juvenile conduct as to minor be and minor to give enough time to even know the court had up to thirty years leeway you wanted to fifteen year mandatory minimum and you can only get that are going to court and i respect they disagree with that statement your honor the department of the guilty pleas you had how much in terms of mandatory minimum and how much in terms of the statutory maximum term so for receipt of child pornography it's a mandatory minimum of five years incarceration a maximum of twenty department justice policy states that if you indict a case you are to go forward on the most radically provable serious of the most readily provable and serious offense and our production of child pornography was our most justice policy but isn't there some discretion with risp on the part of the new usa to not to charge everything in these cases vary in their  it is doesn't exist to the exclusion of saying you know hey if we can we we might we can prove the production in distribution that we've already got have years and we might argue for more and this is a nineteen year old kid and when you have to scratch and they're not push it arguably yes but i have supervisors and people higher up from me that shape what line prosecutors not you understand but you could you know individual is blameless what this individual did was terrible but his life can be ruined a very substantially impaired with a five year sentence and whatever else he got it's very difficult to come back and get a job and make a go of life and if he's in for thirty years of or difficult i do to have a proportionality framework or to understand what the limiting principles are other than the judges don't like the sentence so that's not the way to go but i'm still uneasy i don't like it see so in the event you lose on your custody point i'm not saying you will what's going to happen so if we were lose on the custody points i argue that there is harmless error and was because you lose on and that it was a harmless error then the case would have to go back down yeah and the production and distribution charges would remain outstanding and we would have to go back to trial on those cases and then we'd have to go back to sentencing good luck to trial on what the production and distribution counts and then i mean  final call is that the united states attorney sitting in alexandria yes the  and it is important to note that one this isn't a kid this is a man who is able to have those he's able to join our military he's able to get married he displayed tremendous psychological manipulation and sophistication by targeting these kids online and as i said before minors that in minor g are now floating around on the internet with their faces exposed engaging in sex explicit conduct because they thought that they were talking to a young attractive girl who was romantically interested in them and judge brinkema despite the statements that she made about the mandatory minimum at trial she said the evidence of enticement is overwhelming both as a juvenile and as an adults and he admits to this on the tape recording all five kids he admits to it and then in the doctors reports dr mattson report that was also with respect to the custody issue the undisputed evidence shows that and the evidence that you have to be in the light most favorable to the government to the extent that any of this was not on the tape shows that the defendant was told m that he was free to go and he is not under arrest but on the tape you hear the agents repeatedly telling the defendants you can answer some questions or you don't have to answer questions it's completely up to y you know going into the house they did not have specific information on dimes and bombs however hargrove allows for law enforcement to go in and do their protective s prescribe for police what they can and can't do in the situation where they might well anticipate danger or not that's very is before so that the question is not whether the manner of execution violated the board member but the question is feel themselves in in custody and when you have the family i'm pulled out on the law and you have twenty to thirty agents and and you have of of the family members taken into different rooms and you have the nineteen year old brought down to the basement or a conversation in the boy's mother or is not able  years old is whether you could have taken the role of routine step of reading miranda warnings you might have gotten the same statements that you got anywhere but what's why would that be such an exceptional bird upon law enforcement in situations like this where you've got a swat team of leave so if he's not in custody then then law enforcement didn't believe we need to read and miranda rights up front and with respect to this protective sweep you're absolutely correct they're not challenging fourth amendment issues but hargrove talks about the custody issue in light of a protective sweep with agents armed storming a house and hargrove states that just because that happens during the protective sweep time period does that then turn the interview automatically into a custom audio situation they recognize one of the things is driving this situation  that's very different from somebody already from well you know the defense makes a number of arguments about him being nineteen years all it's important to note he graduated he finished his first year of college he was working part time at the time of his arrest the district court specifically found on the record this is an intelligent man and when you look at his actions the psychological manipulation to get these boys to do what he wanted to do it's clear he is an intelligent person who knows what he's doing to get what he wants and furthermore you know judge brinkema noted on the record of he's nineteen and he's mature but i think we need to be careful about how we interpret he's a mature i mean there are forty year old men who play video games on these high tech play stations and online and i could say what she's that's in mature but that doesn't then make them have less and culpability for the criminal conduct so the government's production and distribution evidence all lie in the e mails from the t dot campbell twenty eleven g mail accounts and we introduced over five hundred exhibits at trial most of which were those emails and minors a b in g authenticated there and at the e mail conversations and then at trial peter greenspun it's mr greenspan stipulated that the emails between miners and miner g are from his client the defendant and so with that stipulation there is no question that the defendant was the user of that e mail account in gauging in the enticement in the persuasion contact and receiving the images of child pornography and distributing them  around that's probably correct your honor but with that now now the defense argues in their reply brief that doesn't matter we are planning on appealing this case all along but the defense has a duty to preserve the record and they did not preserve the record on that point allowing the united states to argue harmless error moreover the defense during the police hearing admitted that yes i used the t dot campbell account to receive these images of child pornography for minors a b and g again for their time this defendant as the user behind that account which made up all of our production and distribution evidence so it's the good morning to please the court and we do appreciate the opportunity for the extra time an argument here and i suspect from the inquiry of the court to mr shapiro particularly that i may be on the hot seat so i'm certainly happy to enter any questions the court has as to how this proceeded mr hashemi when he came to us was charged with a fifteen year mandatory minimum of five year mandatory minimum and we as you might expect tried to negotiate with the government to get rid of the fifteen year mandatory minimum and make of it charging that there really wasn't much more they've sort of through the child pornography book at him and for each one of those distribution is what is a separate distribution there radically as to what the government has to exist so this that that that's right and then that would have been a sentencing issue because those could be run concurrently i'm as far as that mandatory sentence on that is concerned the but here's the situation if i could address that some of the miranda points and then talk about the plea process and i know that i'm on a short leash time wise and you  worked at best buy and it the police did not tell him that his mother wanted to talk to him the police were directing this all round as you've heard but here's some of the some of the highlights of what went on down there in the basement he was told that while the agent was going up stairs that he would have to leave someone there to watch him because he couldn't leave him alone that's the officer's testimony he was told her credit she heard all of it was that was from the officer yes the trick he was told i don't care if you don't want to answer but i need to know the truth the it so back can mean i don't care if you don't want to answer you're going to government suggests that maybe didn't have to say in the basement the agent says the officer says i will go up see what's going on then come back down and talk to you and let you know what's going on are you cool with going up and sitting with your parents right now she says i don't want you or he says i don't want you writing this statement in front of your parents unless you want to i can't leave you here with nobody here i can grab another agent from the government points to claimed evidence that has she me could do he pleased that's subject to interpretation but it has nothing to do with signing a consent form or anything about the e mails he is told he can do what he wants but that's with regard to the written the consent to have access to the computers that's not with regard to whether or not he was in custody at all and judge brinkema credit sort of the tone of all that but the analysis stops when they start questioning him it's at the point that they start questioning him not the two hours of questioning which we assert drives the custody miranda  issue as far as the facts of the case are concerned there's been some liberty taken we would suggest by the government as far as that's concerned there is a suggestion which miss came brought up over and over again to judge brinkema about the statement including suggestions that there had been some hands on physical contact or government doesn't tell you that the c p s investigation shop tech to services all came back unfounded as far as the that is concerned there's no prosecution state or federal as far as any of that is concerned there's so so the government tries to paint faisal as far as that's concerned the custody sorry not the custody as far as the references to him being a man not the kid the court made evaluations in that regard but the government made statements sorry the court made of a finding as to what this says it and if i get anything across in this brief time this is not a solicitation type of a case where somebody is on the computer trying to find kids to meet up with at the mcdonald's to take into a car and to do terrible things to these kids they were fourteen fifteen thirteen fifteen and fifteen i believe at the websites that were too for this kind of conduct it's not that he's going out to a to a high school yearbook and finding names and finding them on facebook or something of that nature this is the sending back and forth of pictures with no solicitation to try to beat up at mcdonald's later or to get together there was very little sexual talk some of the boys in question were more sexual in their chat then  shimmy was so that all goes to then the sentencing in the proportionality evaluation of the case because this is not someone who's out there somebody who wanted to get pictures and is not somebody out there who's trying to solicit for physical sexual abuse i'm not graduating mr hashemi obviously for this conduct so we tried to work this case out as a five year minimum mandatory and of judge brinkema felt that she should give him seven or eight years and she could do what she felt under those circumstances the government said and they can't get around that the court used the same words that that they were effectively not trusting her to do to do the right thing  thirty years at that point so when you get down to the strategy if you well we did not prevail on the suppression motion and i believe that in light of that or i think the record clear efficiency i believe to the poor but the record is clear from all the statements that were made and encourage the court to read all these comments by the back and forth with the court that the best posture of this case is we were going to lose  the receipt and possession type charges but that the sexting charge the production charge was certainly arguable but given the statements that were admitted that it was arguable much more favorably to a judge than to a jury if the statements aren't admitted then the sexting case likely goes to trial in front of a jury so there is no way that it's harmless are because there was consideration as to what was the best way tactically strategically to try the case given the circumstances as they existed at at that point and so it's anything but harmless or the government  kane told the judge about the o j policies tell me about the o j policies are on and on and on again if the court wants i will within by monday provide a pleading which identifies cases where the united states this where the u s attorney's office in the eastern district of virginia time and time again pleads down cases despite the policy in case and that policy is on question given the recent comments by attorney  it is not rigid and i've had lines from the general himself which criticize the planetary minimum yes or and i've had you know you go to supervisors or the long prosecutors go to supervisors and that's a term of negotiation if teenage years they the government knew that the forensics computer forensics show that we want to thank you service my colleagues have some additional question all right thank you we thank you