can't see him right now i guess no ok he is your all right good i would like to reserve three minutes for a bottle that where mr burgess has registered an appeal of both his conviction and sentence in this case we've raised four issues on appeal a miranda violation a violation of the jury service and selection act a challenge to his nine twenty four c conviction and a challenge to the substantive reasonableness of his sentence i'll start off briefly with the miranda issue in this case the district court found that one of mr burgess's confessions of a suppressive will as protected by the priest penitent privilege but yet declined to suppress to subsequent conversations with law enforcement finding that mr burgess was not in custody at the time it's our position that mr burgess was in fact in custody and he was interrogated within the meaning of miranda and as a result the two subsequent confessions to be suppressed let me ask you this of course he's in custody because  it you can't just say because he's imprisoned that he's that doesn't just dance so they can stow to a pirate you know you just said anyone that wants to confess when they're in prison is there for always in custody no in fact your honor the supreme court has been quite explicit in house vs fields that it declined to adopt a per se rule of that nature rather in house versus fields the supreme court indicated that we have to look at a variety of criteria and evaluate those criteria under an umbrella or a framework that really focuses on the custodial portion of the of an individual's incarceration for example typically we don't have that bright line rule because someone who's being interrogated in custody is in their home institution they know that their sentence cannot be affected by their conversations with law enforcement but in this case it's actually quite different certainly mr burgess asked for that first meeting with the pastor but in fact it was the pastor who  subsequently notified law enforcement to come into that second and to that third meeting and when you look at the house decision the supreme court really said the fundamental or the key factor that we have to consider in deciding whether someone who's incarcerated is in custody for miranda purposes is whether that person is told that they're free to leave and in this case mr burgess is the record reflects was never once told that he was free to end the conversation and in fact it wasn't his home institution so he didn't suffer from that feeling of being in a familiar environment rather mr burgess had just been brought to a separate institution as a result of a recent thing and in fact it's that recent thing that likewise rendered him in custody for miranda purposes because burgess was under the impression that if he cooperated with law enforcement that maybe his sentence would be even further reduced in fact the district judge who performed that re sentencing explicitly said i look kindly upon people who difficulty i had with your argument on the rand issue is that you know bottom i thought the district court said basically he just volunteered the information that was it he had tremendous guilt about what had happened and he wanted to cleanse his individual is in custody and subject to interrogation the protections of miranda still apply so the court we can accept that that conclusion by the court and say yes he wanted to cleanse his soul however the supreme court has told us that when we have a person in custody and they're being interrogated we must provide them with the miranda with the miranda warnings counsel when you're saying in custody and interrogated as judge callahan mentioned he's in custody first of all and i think there's a distinction can be drawn and let's you can talk about why it shouldn't be there and a person who is arrested for a specific crime taken to an institution and then interrogated by law enforcement that didn't occur at least initially he asked to speak to a person who really is a my regular recollections he wasn't one ordained minister but he wanted to speak to the person who gave him spiritual counseling and they did it in the law library that seems to be a far cry from being a custodial interrogation that miranda or even the house case versus feels even talks about how does that interrogation by law enforcement who are person who is in custody he was living where he was supposed to be and the law library is definitely not an interrogation room so how do you how do we get well the supreme court has defined interrogations specifically in rhode island the inis as any questions or things analogous to questions that are reasonably likely to elicit an incriminating response so i understand the court's position that this is very different than someone who's arrested on the street and brought into a police station but i think the miranda decision is quite clear that we're looking at only two criteria whether the person was in custody for purposes of miranda and whether the person was interrogated and interrogated means those questions were asked so even though he volunteered to go in and initially again the second and the third meetings with law enforcement were initiated by law enforcement and a reasonable person would understand that i think whether it was custodial was whether under the objective analysis a reasonable person would have felt that they were free to leave and that there was no danger of coercion there i believe those were the last interview i guess it was in colorado it's our about a week later was new and he was different location and he miranda warnings correct he did and there was a different officer right it was a different officer doing the interview but yet the same officer right to a fair representation of his jury was violated here the court found that under the vs missouri that mr burgess had established that there was a distinctive group that was under represented on his grand jury panel but the court declined to find that there was systemic exclusion and it's our position that the evidence in the record demonstrates that it's the jury selection system in this district that really results in the under representation of the latino's in the jury pool here specifically we would highlight the supplemental drop percy cerutty that our district plan uses the supplemental draw once we have a master wheel of fifty thousand then randomly twenty thousand names are selected and to send out jury qualification questionnaires once a qualification quick questionnaire is sent out if that person doesn't respond the court clerk tries again if the person doesn't respond they try to get in the same zip code if that person doesn't respond they do another person in that same zip code and if that person doesn't respond they move on to a different zip code when dimness is defined by the fact that each individual in the population is equally likely to be chosen each time and by using a supplemental drop procedure that doesn't in fact draw from the whole twenty thousand and i'm sorry from the greater wheel but rather focus is on drawing from an individual zip code we're skewing further question here should have been sent to the same zip code in which the non responding resides because more latinos reside in some zip codes than others but it does not appear that derecho offered any evidence to support his statistical analysis or show that limiting additional mailings to the non responding jurors code would increase the participation of latinos more than going back to the twenty thousand person samples so  i just question whether you know it it seems that brett owes testimony seem similar to the type of evidence that the ninth circuit found insufficient in the randolph  case i don't disagree i think that judge i don't disagree that the expert breteau didn't offer concrete evidence his evidence was after doing the statistical analysis the anomaly was so great that it could not have possibly been a result of it differs from what i understood brando's testimony to be which was that if the simple after the supplemental draw the second draw that they should continue to go back to the same zip code because they're more likely to get a latino from the zip code from where the person didn't respond by going to the fooled then going to the pool district and drawing again  and your argument now is suggesting that they need to go to the fool the draw has to be district wide and not from the zip code and that is correct because i think that this district court addressed the concern with  g and that's correct but then as judge callahan pointed out he didn't offer and he wasn't able to provide any evidence that that would be the case rather just generally when you look at the expert report that he issued you talked about the importance of randomness in which you have to give each individual in the population an equal chance of being selected so i think that the argument that counsel made in front of the district court is slightly different than the argument here on appeal given the information in the record ok what about the or our own court as a piece yeah you're on our i don't think that a stay would be appropriate live to miami i do know that your court has big a pending which is pending for quite some time now and that raises the identical issue right the centered around just the mens rea so in that sense we have put forth an argument that the gay hasn't put forth i don't think a stay pending to my it would be appropriate simply because given the recklessness mens rea of second degree murder the court need not reach the constitutionality of the residual clause of nine twenty four see ok with you from the government being whether or not mr burgess is in custody at the time you made the statement stops or kennedy it's the government's position that based upon one third circuit precedent that mr burgess was not in custody this court has determined there are five factors to look at to determine whether or not  is it in individuals in custody the language used by the officers the physical characteristics of the room where the questioning took place the degree of pressure applied in regards to detaining the individual the duration of detention and the extent to which a person was confronted with evidence during that time mr burgess had what i would call a religious awakening he on his own volition decided he wanted to come forward to law enforcement he wanted to in his own words atone for his sins and confess his crime he sought out the chaplain he talked to chaplain still the chaplain was clear clear with him do you want to confess to me or do you want to confess to the proper authorities mr burgess advised that he wanted to talk to the proper authorities it was after meeting with the chaplain a second time that officer kennedy was brought in so this is the first time the mr burgess's met with a law enforcement officer at that time officer kennedy certainly did not confront the defendant with evidence of guilt because he had no information whatsoever about this murder that occurred in yakima washington and again mr burgess was in another location and officer kennedy only knew that mr burgess wanted to confess to a murder in the degree of pressure applied the record is clear there was no pressure applied again the officer was only present because he was there mr burch says behest in regards to the physical characteristics of the room where the interview took place this was the library it was also described as a big room in a room where church services were held therefore we believe that this factor also cuts about half from the government the last factor is the language used by the officers the summons the individual and here again this was mr burgess who reached out to law enforcement the asked durned to come to his to interview him because he wanted to confess to a murder therefore it's the government's position that mr burgess was not in custody in regards to the section is the second issue the defendant raised an issue regarding the jury service  selection act the judge in this case determined that latinos are distinctive group in the community and that the representation was not fair and reasonable in relation to the numbers of the person in the community so they were left with the third factor which the defendant was required to make a pr and that is to show that the interruption taishan was due to systematic exclusion of the group in the jury selection process with those factors came from the during test in the during test in that case they found systematic exclusion because women who were distinctive group were systematically excluded from jury service in the instant case in our district plan our district goes out of its way to attempt to bring everyone into this process as it stated that here the master will contains fifty five thousand names the court then uses a nationally recognized system to reduce the fifty five thousand to twenty thousand names the clerk then sends out a questionnaire to a person if the person doesn't respond to events in the second let me ask you guess i mean no evidence whatsoever of causation as to why is this occurring to show that a prime official case showing that there are systematic exclusion so that this exclusion is caused by the system in this case when professor brett it was asked about that he simply did no research whatsoever to determine causation he simply looked at numbers and said hey there's under representation and i thought i understood if the window is testimony right it's sort of at the end right the last part of his testimony when he was there and when when he was asked if somebody asked him a general question i can't remember who it was he zeroed in on the on the supplemental draw and said i thought he did i thought i thought i thought he said the problem was that you needed to draw from the same zip code code i mean they try the clerk's office tries to reach out that zip code in four separate times i don't know what else a court could do in regards to jury service and selection planned to hold on a thing as you tell me that the supplemental draws are all from the same the same zip code what i'm saying is that if the first two the first draw is from a zip code the second draw is two that chip code for third draw is two digit code and the fourth draws t office who testified today is that what you just said is that documented in the record i'm sorry your honor would have been just the harman and i believe she was a witness in this case in regards to how the jury service and selection act how the names are drawn ok but answer the court's question yes the other thing that it wanted to point out which i thought was interesting was looking at the numbers that were deuced here the defendants are going systematic exclusion it seems bizarre that the master will over represent side chinos latinos make up approximately seventy percent of the district it on the mast will there over twenty six percent so i thought that was an interesting fact to point out regards the systematic exclusion miscreants did not have an opportunity to do just the one twenty four c issue to the coral me to address that issue thank your honor thank you i just have two brief points in response the first is with respect to the court's question about the supplemental drop procedure there are when an initial questionnaire goes out if there's a non response the jury administrator reaches out again to that same person on the second time they don't hear someone they reach out to a different person in that same zip code and if they don't hear from that person they will again reach out a second time to that person before moving on to a different zip code so they do try four attempts with two different people in the same zip code and that's that are i'm sorry to be are six forty six with respect to the government's just mention of the master wheel over representing the latino's i think that the master wheel here is the comparison of a master real to the hispanic or latino community here in  the division b is based upon american community survey estimates of population from two thousand and twelve i think that the number of latinos and hispanics on the master wheel is much higher it's twenty six percent because as is in the record the hispanic and latino community is increasing and division b and so that could explain that anomaly and try the more we know that the that the latino and hispanic community are not being disqualified at a higher rate than the non hispanic and latino community so that's all i really have to say thank you very much you know others submitted