joiners if you were presenting both in this i know your honor and i'm glad you brought that up i am representing connor woods and mr miller's counsel is here are we sharing time today i wasn't aware of how the court wanted to do that w we had fifteen minutes i don't know how long it's going to take with the each case raises different issues so yes it will take each one up separately very good thank you your honor but i have to keep you know somewhat with this time ok let's see how the government's case in chief and trial and because substantial independent evidence separate from the confession did not support mr woods's guilt the confession is not harmless judge perceived it yes and it was presented in the motion for suppression and that is that's my error that the st miranda warning was proper enough in preparing this appeal as i set brief i listened to the the tape i think it was about the th time that i listened to it that i caught that sergeant cutting did not tell mr woods that he had the right to counsel before any questioning began he told him that he had a right prior to the questioning yes your other way yes i did in the in the motion for suppression i did point out that reno detective rhodes did not tell mr woods that he had the right to he said you have the right to an attorney he did not specify prior and during an interrogation and that was the basis for the motion to suppress what happened at the hearing is that it the district court erroneous lee thought that sergeant cutting recitation of them around a warning was complete and proper the government was arguing that i had said that in my motion the district court in his findings says i listened to the tape two times he  wasn't relying on the motion to suppress he said i listened to the tape two times and i hear that sergeant cutting the st round a warning was properly rendered in your motion to suppress the the challenge was that he just was not given adequate advisement that correct yes your honor that was the basis of the motion to suppress that he was not told that he was given an incomplete miranda warning which the government even before the case told me was the case had happened so we went into the case knowing that there was a miranda issue the it went into then whether it was voluntary or not and i i in an abundance of caution in around a by law enforcement that the court doesn't need to go to the voluntary analysis because that because which makes sense because if the waiver isn't proper in the st place it's difficult to say that somebody knowingly it which which is was my argument that that it wasn't knowing involuntary because mr woods did not have all of the information given to him and the government relied fairly heavily heavily on the  police work it's fluid and it's quick and but this is different from the perceiving case where you know they weren't on the fly these these are around a recitations that these officer give as as detective rhodes he's been in the triple digits the amount of times in his career that he's given them  so he he gets gets to mr he's relying on sergeant cuttings recitation without asking sergeant having you know would you say to him how to go when he had no information he just heard that he had been around eyes the day before so he relied cuttings recitation was proper i still argue i would argue against that even if certain cuttings was proper though there is no information that sergeant cutting was investigating a robbery he was looking for mr woods what difference does it make what crime was being investigated your honor there it's what i said in my papers is that i could not find case law that says a global miranda is good for anything for any crime for instance if mr woods is being investigated for a certain thing he could could or could not waive his rights to speak to police about that thing about that matter the next day when it's something completely different that's being investigated it doesn't seem fair to be able to bootstrap that waiver which i'm not submitting your honor that that st recitation was proper but it's not fair to rely on that waiver  day when you're being investigated for something totally different because the sense that if the focus is on whether or not the defendant understood his mo brando warns yes  i'm fine and it difficult to see how it mattered what crime was being investigated if the focus simply is on whether the may render rights were given whether the man miranda rights were understood because mr woods apparently indicated he understood the rights start reciting some of them and he was not a stranger to that to the system so i'm having some difficulty with why that should make a difference i'm your honor i agree and i don't think that i'm stronger when it comes to case law but i was also unable to find any any case that said hey you're around one day and it's proper the police can act ask you something totally different the next day typically when i'm around is good on one day and then it's good on the next day it is because the police are investigating the same situation and not there that is logical and that you you can't waive globally your rights if you don't know what's being investigated and that is a more minor part of this case your honor so in that the truth the real issue is that a confession was allowed to go to a jury that was improperly around eyes and the there was other evidence does so let's just i'm just for a moment because i don't i don't want to but i got to keep your time somewhat let's just assume for a moment that there was and in failing to grant the motion to suppress when there was other evidence so that was presented there was evidence your honor it was circumstantial evidence and i realize you know government lawyers have told him we love circumstantial evidence because we don't have a witness in there to screw it up for us so i understand that th it's powerful circumstantial evidence but in this case the the seven hundred and eleven clerk did not see who committed the robbery there was as i set forth in my reply brief a mass when it came to the survey in the times on the surveillance tapes about when the robbery actually occurred there was a van that was used in the robbery that was found on the freeway days later by the detective a serendipitous event for  him there was a turned out it sure looked like the van that they took your honor when you look at this survey when i look at their surveillance tape it's you cannot tell what color the van is in it and the later later later yes  in the daylight but he but he saw the van only for the st time on the surveillance tape that night and then later says you know this this is what looks like the van there's there's no the jury yes said ok we think that's them but but circumstantial evidence is the only thing besides the confession in this case and now why it's so critical that it was improper to have two chances to properly around eyes mr woods and they failed on both but sometimes circumstantial evidence is the most powerful evidence yes your honor i do i can see that circumstantial evidence if it's if and what they did is they will together a case that the jury did convict on that would have been a lot of coincidences otherwise yes your honor but the but for instance when it came to the van there were two witnesses at trial that were there during the night the van was taken did not identify either defendant that the clerk could not identify either defendant there was there were numerous items in the van that were not tested for d n a but there were items in the van there were connected to the defendants as well yes yes your honor there was but the van was also found on the side of the road days later unlocks having no complaints you have all the challenge you have to the evidence coming in the admissibility assuming you lose all those points that the band comes in testimony that the gun comes in the finding of the gun later on in your client's apartment  there where he was we were he was staying in the d n a the video in the timeline assuming all that goes against you because it's something that the jury could find against your client was that be sufficient for a jury to find beyond a reasonable drove from reno in a nasty storm he says this on the tape had drove all this way to see you this has to for hours as soon as he heard that mr woods was in reno he raced in south and arrested in south center rosa he the robbery that he was convicted of and i see i have almost three minutes left me i yes like you know yes we'll hear from the government on this one and then we'll come back and pick up the other case ok since this is just focused on th suppression of mr wood's let's deal with that were conceding that the st miranda warning was improper because it lacked the two words before and during questioning the officer should have read the card and s during questioning of zeros also should have read the card but i think that i think my position is clear on that but we are claiming we are asserting that he that he waived the issue by not challenging the st miranda claim was they didn't get adequate warnings and in the motion to suppress it she points out to the fact that in the nd miranda warning he wasn't told that he could have counsel prior to the time questioning began and the only way you correct that is you say well the st miranda warnings were proper that you have to look at everything you know is what is the case law says you look at the totality of the circumstances in determining whether he was properly admon to the reason that we looked at them together was quite frankly because everyone involved big the government the defense attorney and the court missed the missed the issue that's now arisen on appeal and the defense attorney expressly said in the pleadings officer cutting properly mirandized the defendant on on december th and so the premise for all of the litigation in the district court was framed by the defense and one of the ways in which it was framed by the defense was the defense saying that the december th warning was proper and that's that's why it was presented in this fashion and our contention on appeal as i've said that having said that the december th morning it's proper to deprive  here the i think the distinction that i'm trying to draw is that her theory of the defendants theory in the district court was that what happened on december th was incorrect and that the theory that she is raising now want to keep her the defendant is raising now on miranda after the defendant has said that he understands this right that's i mean i realize it's a difficult argument but that is that is the distinction that i'm drawing it is kind of different are going because you say that the trial court didn't have the opportunity to evaluate the facts because had the wrong theory right look i'm saying that they thought that's what you said your private trial judge the opportunity to look at all the certainties because he was misled like everybody was that the st warning was adequate that certainly but what i'm saying is i may be deprived just too strong of a word but it was incumbent upon the defendant to point out this is my argument by saying by failing to by officer cutting failing to it it kind of cuts against you seems to me in the long run it's all a little technically go it's a let's let let's just i want to hear your argument assume for a moment that there was air and this is pressure motion should have been granted why wasn't it why was it harmless you know out of the other than the confession i will readily concede that the evidence in this case was circumstantial but it was the totality of the remainder of the evidence is extremely powerful but let's start with the gun i got and disappears from from a residence that was occupied by by villar and was the day before that gun is used to commit a robbery that gun is recovered in an apartment where woods was staying that it was identified in portland near portland it was identified in reno it was identified again in the apartment where no where was the same woods in miller take a van there identified being in the van the van appears on video to the van shows up in the in the media and i think of the freeway in reno a similar of a and this i mean we had pictures of what was recovered we had pictures we had video that the jury looked at the jury was able to determine whether or not they thought it was the same van we have was in miller in the in the van we have the person one of the other people that was in the van had her purse left in the van and we have we have that we have that the d n a evidence puts them in the van we have bottles and items that have both well millers and woods's d n a on them we have a black sweatshirt that sitting in the van that appears to be the same sweater that is used on video and again i will readily concede that this is circumstantial evidence but that the combination of this evidence is extremely powerful and you that the gun could be a coincidence and maybe somehow sophie took the gun from portland and took it to connor's apartment and somehow got it on the gun i can't the limon it is that there's a metaphysical certainty that that's not what happened but eventually when you see when you see how it stacks up there would have to be so incredibly many coincidences for the very simple explanation not to be the correct explanation that evidence in this case while circumstantial is very powerful even in the early in the case where they say that the confession is the most you know piece of evidence for a defense you're certainly correct and i'm not i'm not contending that the confession wasn't a very very powerful piece of evidence like i said it's great evidence and we certainly would would put it in if it were if it were valid if we had to do the case again but just to be clear we wouldn't next time around but in the but even in the  it's absolutely certain what was said make no mistake about it and he was clearly advisable his rights so yes there was a misapprehension about the cutting around and usually but the court on its own did have no and i do i would would just like to reiterate that the circumstantial evidence in this in this case didn't adequately point to connor woods as being the perpetrator of this of this crime and so it's not his substantial rights are definitely impacted  with the related case united states versus miller case and part of the sufficient view of the circumstantial in with respect to my client is it's even more circumstantial with respect to him than it is with respect to mr woods they had with respect to mr woods they at least have they have a sweatshirt in the van is similar to this of the one that's worn by the robber but what they have with my client is they have a person who was with mr woods in portland and was with this to woods by there if by looking at the evidence in the light most favorable to the jury's verdict they have a person who was with mr woods in portland who and then his then the d n a in the van in portland and then there was d n a from mr miller in the van now that doesn't necessarily mean that mr miller was with mr woods in the van in reno it means he would with mr woods in the van or at some point prior to the van being processed but we don't know exactly when i understand that they were in the van just a day or so before the the robbery occurred in reno but that's still that's they were with the band together in portland and not in reno and certainly the d n a evidence that links mr miller was could have at any point in time we don't know when the d n a was left we just know that there is d n a evidence i think it was some evidence a telephone about a telephone conversation where miller says that he was in reno some we'd been in reno right and i know that this is where i have i met a disservice as not have been trial counsel because when i look at the record with respect to that what we have is  it's indicated in the record that a record was played and that was certainly referenced by the government in the brief but be exact word league zach that conversation was not transcribed and so i'm not sure exactly what was said i'm not i'm not saying that's not what said i'm just saying i don't that that was that particular that was referenced in a footnote in the government's brief but whatever he said in that conversation was not transcribed was not and that i couldn't find this part of the record in this case so we're so may well have been in reno with the van i i think you make an inference that he might have been in the van i'm not sure you're in a position to say that inference it was in the band gets us to the point where there was sufficient evidence to sustain his conviction or being by the government's theory the getaway driver in the robbery and so does it make a difference what the conversation was about if if the conversation with telephone was i mean reno or i'm going to ring you know would that be sufficient i think context is always important that's why it's because we don't have the context of the conversation if you look at that part of the record you'll just say that there was a discussion over off authentic chain of custody and things of that nature based on pin numbers and there's a lot of discussion of things with not a lot of discussion about what was yes what it was it was it was was a played it was played on like i said but the but if you look at the record the record is not clear as to what was referenced by the government in a footnote in their brief with respect to the severance argument that we have in our brief i would say the one thing the government says well all the evidence would have been admitted in a separate trial and that's true with i you know i agree that it's a with everybody does the purely a circumstantial case it's circumstantial with respect to mr wood and it's even much more circumstantial with respect to mr miller and that and that's the basis ok perseveres of the evidence it's not transcribed but it was played for the jury i think i think and i hope i pointed out in my brief or it was where it was played for the jury and that's that's what the substance of the conversation was the court i listen to the call the court is obviously able to  at sea the the evidence says that the the two of them were were seen together in portland the two of them were certainly in the van together because their their d n a both of their d n a was found in the van they there the video the mimi's cafe video shows that there was certainly a getaway driver but i'll concede that it doesn't show that it doesn't show miller space or anything like that driving the vehicle this would have been an easier case if we had him on video sitting behind the wheel obviously but that the van parks it means and then it and that the robber gets out for a minute and gets back in and then the van moves and the robber gets out in this on for quite some time and comes back at a dead run and as the robber is at a dead run the van pulls away and the and the robber jumps and sights of this notion that whoever was driving the van didn't know that a robbery was taking place in the middle of the night and picking picking somebody up in a dead run that's wearing a hoodie is the evidence but that it was miller right there i didn't even write the evidence that it was miller driving that is circumstance i readily concede that it is circumstantial evidence but as they were together in portland they were together in the van afterwards miller and and w talking to the same person on the jail calls about the robbery miller is saying i was in melbourne on the jail call said i you know i was in reno for a while i was in portland then i went back to reno so i have to assume is something that puts him in the van at the time of the robbery of the get away driver his d n a puts him in the van and i'll readily concede there's no there's no direct evidence that it was him we didn't have a picture of him behind the wheel we didn't have anybody saying he told me to a certainty that he was the driver it was circumstantial evidence you but that's enough for aiding and abetting what he was going to get it was it was foreseeable to him that would use a gun he was he was right there as woods was getting out of the car to perpetrate the robbery again there's no direct evidence we didn't we couldn't call him and ask him if he knew about the gun the very quick i think we here is we have evidence that miller and wood work together and we have evidence that miller and wood were in a van and we have evidence that miller and wood's d n a is in the that basis the really wasn't sufficient evidence to thank the court thank you counsel we appreciate your arguments in this case so we've been we've been pleased today to have