defendant she used the word technically but she also said technically we cannot leave until we get this sorted out we're in an airport secondly we cannot leave this place which as i mentioned is was a very secure as real and it seems to me that that had already happened before he entered the interrogation room because the whole reason he was willing to go with them was to help them find paula so i don't really know what harm came from the interrogation beyond the harm that had already occurred well the poll was presented to him as a real person the moment that they contacted so so yes that that's true he didn't say that but as he later explained during the course of that interview was that he didn't think that she was real all along or at least during this whole period that preceded all this when he was  problem i mean i think your argument is that the statement that happened during interrogation led him to not want to testify because he would have been impeached with it and that  make this is what kept him off the stand and related to that how much of a showing you need to make that if he had taken the stand he would have said something that would have been helpful to an iran that's really an unresolved question and i think both talking about preservation of error doesn't and shouldn't have to be all that significant because the defendant shouldn't have to if he's not going to take the stand he shouldn't have to reveal to the government at the level what he would have testified to there should be some indication i would agree that of an intent to want to take the stand were it not for this ruling and i think we do have that in this record where the judge specifically asked the defense counsel if the defense wanted to have a ruling on the voluntariness issue and and the defense attorney responded yes please because we want to have a client as legal air they're now there might be some factual findings that are involved in that so it may be more of a mix question  of fact and law but you know because you know there's so many legal issues that come into you know how would a reasonable person respond in this environment this situation i believe  a legal question it's reviewed to know how but the factual underpinnings are reviewed for clear are and in this case involuntary knows it's an incredibly fact driven in corrie and the district courts factual finding at what the defendant's reactions were and that is where i think the factual issues are really critical and what's lucky for us is that we have the entire interview record and we have the audio we have the video and the district court court over that evidence said at one point during the suppression hearing and i watched the video eight times over and you well we have all watched the video as well actually in the beginning but it gets quite clear in the end and the factual findings that the district court made about the defendant's reaction is what really separates this case from all of the other coersion cases that the defendant cites in support of his argument with the district court found with regard to the agent's conduct now yes this was in custody and yes it was iran ties and the government doesn't dispute that the district court sanctioned the government with the appropriate sanction for miranda violation which is suppression in the case in chief but the court went on and then looked at whether or not this the confession was coerced in so it looked beyond just the miranda warnings to the agents other conduct unfounded the agents made no threats applied no pressure no extraordinary that this entire interview had a tone of being calm and conversational both on the part of the agents but also on the part of the defendant and here is one of the critical pieces the district court found that there was no indication that this defendant mr hopkins was actually intimidated by this interview that he showed a willingness and desire to talk throughout and that is really one of the critical pieces as i said that separates that this case from this court's other cases where coercion has been found what what was the tone of voice he sought in just exactly the same way we're going to see him and that's exactly what we can see is that all those factual findings are true that this was a common conversation on the defendant showed no indication of being terminated well for clear air but you're right it comes down to the question of what do we do with those facts and how do we make a legal conclusion from that and for that that is a denote overview the question of making the leap from the facts to the answer of whether or not this was voluntary or cole wors provided all of these cases and what we see in those cases in cooper and what we see are an interrogation where the defendants were brought to the point of tears where they were interrogated repeatedly aggressively pressured to the point where they lost composure we don't see that in this video we see it in mendiola which the defense also cited she went in there the court found that the defendant was actually traumatized by the interview  the miranda warnings were jumbled to the point where the agents affirmatively took advantage of an under age and intellectually disabled defendant to the point that they pushed him into trauma we don't see that here we saw it in duty that one is probably the most striking where that defendant was held in custody and interrogated over a course of about twelve hours and what the court found there is that the defendant was virtually non responsive i'm not alert answered one question out of maybe thirty over the course of eight minutes i think at some point again this is what we look at when we have to make the leap from the factual findings to the legal authority that i have found in the circuit or anywhere else to say that this went because of structural error it would be reviewed there now i understand we have our hands tied here because we don't have the facts of what the defendant has sat on the stand but what we do have is the overwhelming weight of the trial abbott and the tone they were put in in front of the jury we have a value that we can see the potential impeachment value that we can see out of this interview which precedent in other areas for example in the six hundred and nine area where we evaluate keeping out of statement evidence and in light of the defendant not testifying i understand that that's not a constitutional area but we still there that's right and i have i haven't seen a court resolve it you know so certainly not one resolved and that this is not the way the question is resented here so obviously i mean there's going to be some difference but let me ask you a hypothetical let's say that mr hopkins had indicated that he wished to testify and there for some reason the district judge has given his head to say no you can't testify i much more subtle way but i'm having trouble with the notion that preventing someone from testifying when we don't know what he was going to say is a structural error because hormones are really hard to get out in this circumstance and when we look at that realm of structural error i agree that some of the trial errors that are deemed trial errors and reviewed for hardness has raised some of the same concerns for me it's not always clear what something is whether something is going to be structural  agree with your we your honor and i don't mean that i'm going over time and i'm sorry about that but that situation that you posit where a judge really pressures a defendant to give up a constitutional right is very different in my mind and what we have is looking  direct or indirect promises however slight or or by the exertion of any improper influence we have in this case is that the two minute mark roughly into that interview the agent was telling the defendant  affectively i'm paraphrasing you can't leave until we sort this out so then and then everything else that happened thereafter sir for some period anyway it certainly was all he was cooperative i is interesting going back and actually listening to the audio he does not say i'm well aware of my rights as the government quotes and it's least i cannot hear that on my audio so he seems to be nodding in a sen saying to him you have you know these you don't have to talk to us but it's not as definitive worry saying he's well aware of this rights so again that that statement that moment in time really special sets the stage for the