case the united states versus levy law enforcement trial and relying on my briefs for all the other issues mr levy made statements to law enforcement on september twenty sixth twenty sixteen at about six in the morning the main interrogation lasted about thirty five minutes and then there were additional statements that he kerr correct right yes you're right now is a my understanding that he was interviewed in a parking lot of a place that he was  during the course of his conversation you could have gone to his order right i mean sorry could i mean why it why is your position is that he was in custody your honor there are several factors that are in his case and the factors are there it was a very early morning interrogation there was a coercive show of authority at his apartment when they whisked him out of his apartment they removed  his apartment they retained his driver's license and his cellphone they he had a mandatory police escort everywhere he went from the moment they took him out of his apartment for the whole rest of the time that he was with them  also he was they exploited the fact that he had no comprehension of the legal principles he didn't understand the word prosecute he didn't understand the word warrants even a trial he didn't understand what it meant to rest your case he had very limited understanding of these legal proceedings that he was being subjected to and also there was an exploitation of the fact that he did not speak english well and actually his lawyer made that very clear in the opening statement at trial where he explained to the jury in his opening that mr levy did not understand everything the agent was asking during the interrogation and that the statements that mr levy made reflected a misunderstanding of the well it is true that the the court asked if he needed an interpreter but if you look at the statement of how mr levy responded he didn't say i understand everything just perfect he said there's words that i don't understand in general i understand what's going on he didn't say he understood legal terms he didn't understand what it meant to rest his case and that was borne out through the trial he was having those kinds of difficulties basic legal concepts he did not get yet he and his lawyer both turned down the opportunity i have a mentor we're going to strew and we didn't raise that particular issue as an issue in the brief but it bears on whether he understood what he was answering and what whether his his statements were admissions or misunderstandings and so the relevance of that really is that it was clear to the district court during trial right at the beginning that not only was there an issue possibly with an interpreter but there was an issue possibly with the interrogation it was possible misunderstanding of what was even going on and what was being asked which would lead which would be a huge red flag but you've got to establish that they were obliged to give  warnings because the interrogation was costs that would deal in nature that he was under arrest right that's correct and i was and the difficulty you have here the added problem you have is that beyond factors that existed i had submitted a supplemental authority with a number of cases because there are different scenarios that arise repeatedly and different factors of the courts do continually look at and  six that i was referring to was the earliness of the interrogation the coercive show authority at the apartments retaining a driver's license which obviously would impede somebody is ability to leave it would not make them feel like they were pretty to leave because if they did try to drive away without their license obviously they would be subject to arrest having a mandatory police escort from the moment they got there and they removed him for the whole rest of the time they were together and also the whole issue of not being able to communicate well and not understanding basic legal concepts so those were the six they were starting to go through the early morning hours about five thirty or six in the morning is when they showed up the agent testified at trial that he brought a team of these agents and he said that that more was better especially when they first arrive because sometimes things can go wrong at the door so he was trying to bring an entire team i do have to call the court's attention that in my reply brief i had thought that there was a specific number of agents but i was wrong it was that the agents had said that the more was better was specifically with reference to being at the initial part of going to the door i have another question yes  for distribution he was denied charge of distribution that's correct it was based on the peer to peer network for the sentencing but as far as the factor will you agree with it well we didn't raise it in our briefs as i know that but i mean you don't challenge that and i believe the case law allows that enhancement explained during his sentencing that the show of authority at his door in the morning at five thirty put the question this way was it plain or obvious that this was a custody battle or arrest yes given the fact that there was no motion to suppress there was no hearing there was no interrogation and what we're left with is basically the the transcript yes and the reason why it was plain is because there are these factors that show that he was not free to leave and that no reasonable person with felt they were free to leave or that they were free to stop the interrogation and as i was starting to say mr levy explained that he was so terrified when he looked at his door he thought he was under attack he called nine one one and he did not open th door until the nine one one operator told him that the police were outside his door and that he should go ahead and open the door so that's the kind of a knish ill reaction that you have the initial impression that the agents made and that's a huge factor for the show of authority second thing again was he not only had did they retain his license they retained his phone so he did not have the ability to even uses phone to try to call people to try to cancel he was a aviation instructor he had a meeting with t s a he couldn't even access his phone to do that so his movements were strictly limited by the officers were there as i said before he had that would be normal whenever they were executing the warrant wouldn't well it would show that he doesn't have power over what's going on and they be some limitation if they walk into your house with a warrant to search your house for x y or z they're going to keep you want a particular location perhaps as they go about their business right of course their own safety even without any particular as far as a dish of danger as far as a reasonable person would understand what's going on and they're not allowed to use a phone they're not allowed to have their driver's license so any time you go into effect a search warrant a house and the owner occupier of the house is present so long as he remains in the house he's under arrest i'm sorry say that you're under arrest simply because they went into the house to execute the warrant and you were there know i think the factors that i'm looking at where he's terrified calls nine one one because he thinks he's under attack because that's the show of authority that they had at the door in addition to them taking his stuff in addition to him not understanding what's going on it's clear to the agent that he doesn't understand because he asked what is a warrant what he said what i mean that he clearly can't speak standard english what mean that what's a warrant ok and what what what is it what does it mean for you to be prosecuting he doesn't understand the basic concepts they're talking about under all those different factors including the not understand basic legal concepts and having language difficulties no reasonable person would think that they had that they were free to leave or that they were free to stop the interrogation and it was incumbent upon law enforcement at that time to be giving him his miranda warnings the air was plain on these factors i had cited several cases florida versus royer which talks about retaining somebody as property united states versus thompson which talks about somebody law enforcement retaining a driver's license united states versus tovar rico which talks about the show of authority  and then there were some other cases that i said that were outside of the circuit united states versus short united states his or bruce's brown tenez which both talked about the idea that people who are ignorant of the law are easily exploitable and  when they have language difficulties that they're also easily exploitable and that all comes together in coalesces it grave scow levy quote like we walked about we were just doing a search you're not under arrest or anything we just want to talk to you he did say they did they tell him that they told him that but their actions said otherwise because they took him out of his apartment they directed him into a minivan and they interrogated him for thirty five minutes intensely and when he got out they weren't saying you're free to go they're saying you want to stay here in the van with one agent or you want to come with me up to the apartment and when he got up to the apartment they said oh you're free to move but we're going to be following everywhere you go that's not a freedom of movement that is a constant but it wouldn't be enough to establish that he was briefly detained to execute the warrant you'd have to show that it was a custodial interrogation well that's one of the factors i think you have to show that he was under arrest the circumstances whether a reasonable person in the suspects position would not feel free to leave and the factors that i have outlined have to reasonably believe he was under arrest right exactly under arrest but it has to be tantamount very close to arrest and when he's all the factors that i have named let's just stop someone the case we just heard before this one was a terry stop maybe a traffic stop but if they stop someone to inquire further and they have some reason suspicion to detain him briefly they're not obliged at that point even though he's not free to leave to give a miranda warning so i would say that the fact that he's not allowed to leave is another very big right but the mere fact that you are being detained which means you can't leave doesn't put you under arrest well i don't think he was merely being detained i outlined that i'm simply saying you've got to show something more that it's the functional equivalent of an arrest that's correct your honor and we believe that we have under these factors and a law that i cited and i believe my time is up thank you very good morning your honour's may please the court i am brandy on behalf of the united states and seated at counsel table is the trial attorney mackenzie doing where i would like to start the conversation this morning is  to pick up on something that you mentioned judge marcus as far as what information was known to the trial judge at the time that he was allowing the admission of the recorded statement and it's transcript and this is the information that was presented agent graves testified on direct that at approximately six o'clock in the morning a team came to mr levy's residence to execute a search warrant he said that they knocked on the door and made contact with mr levy he said that mr levy waited outside while number of the officers went to clear the many offices where there were x you're the ward the record is not clear on how many officers were there at all there's it he all he said was that there was a team of officers that's all we know so some officers went in to clear the residence and mr levy waited outside during that time agent grave says that he asked mr levy we he told him we would like to speak to you and that mr levy's response was sure were that if levy had said thanks very much i've got nothing to say to you and i'm going off to mcdonald's to get myself breakfast was he freed to do that absolutely they would have let him leave they were there to execute a warrant on the i understand why were they were there i'm asking whether he was free to leave yes there is nothing in the record that indicates that he was not free to leave i go have breakfast well i think you could have done a do i think that that he could have left you know absolutely i do believe that he that the officers were not prohibiting him from leaving in any way there is not any evidence on the record of that with the office tell him he was not yes they do say that it's agent graves and it's on the recording  toward the end of the time when they are doing the interview in the mini van it's at the end of that conclusion when he when agent graves says well i'm going to go back in the house to check to see how the progression of the search warrant is doing are welcome to stay here you can come with me whatever you want he says well i'd like to use the bathroom so he goes back into the apartment and remains there for the rest of the time i did he feel obliged to ask permission to go to the bathroom while the records not clear as might we reasonably infer from that that he was that he was certainly didn't he didn't think he was free to roam around his house as he pleased  so he never would have said can i go to the bathroom please it had just gone to the bathroom well the agents did tell him once they were back in the apartment that they would need to follow him around for officer safety and that's not unreasonable that they say that to him before or after he asks for permission to go to the bathroom he doesn't ask for permission to go to the bathroom what happens is the officer says i'm going to go back into the residence to check to see how the search warrant is progressing and you are free to come or stay here and he says i'd really like to go to the bathroom or something where he doesn't ask to go to the bathroom oh he makes a statement that he needs to go to the bathroom and that would be a request right he puts it in i don't like to go please as opposed to i'm off to the bathroom yes your honor yes and there are other and i'm simply asking whether one might reasonably infer from that that at least as he saw that he wasn't free to do what he wished in that house i think there's a had limited his movement while he was in the house and there were executing the warrant absolutely your honor but i do think that there is a distinction between having some observation of what actions you're taking and being under a custodial arrest for the purposes of whether or not the office and he was told that they were going to keep an eye on him while he was in the apartment yes he was for officer safety right i understand the reason but the fact is he still felt limited in what he could or could not do he was detained in some fashion he well yes he was he was aware that the officers were going to be monitoring his actions definitely however your honor to step back seems to me the argument ought to be but it wasn't plain that he was under arrest and that wasn't obvious that he was under arrest and that's the standard we have to use here because there was no objection that's exactly what i wanted to move us back to your honor is the information that the trial court had in its knowledge at the time and that very limited information again was only that the a team of agents made contact with mr levy that they asked him what they said we would like to speak to you and he replied sure and then they went into the minivan asked him if it was ok to record the interview he agreed and then the trial attorney moved for the admission of the statement there was no objection at all based on those details that's all that the trial court knew there would have been no reason whatsoever for the court to su be concerned that there was a fourth amendment violation and suppress the statement and then even when the evidence once it had come in and was being played for the the jury it was a very calm discussion mr levy is dressed in a t shirt and cargo shorts unlike i believe that there may have been references in appellant's brief that he was in his pajamas and barefoot that's not the case and you can see that on the video he spoke up for what he needed immediately he was comfortable to do that he as soon as he got in the vehicle he said the air conditioning is really high can we turn that down and agents say of course however you make yourself comfortable turn it you know and they show him how to make the adjustments himself there are no weapons no handcuffs there's no use of force at all and there's therefore nothing there that the trial court would have had any reason to on its own think that there was a problem and call for the suppression of the statement the other information some of the other information that appellant has referenced did not come in not even at any point during the trial but it wasn't until the defendant's allocution at sentencing and the only information that he added was that he said there were heavy knocks on the door he says at five thirty in the morning and that he was concerned because he wasn't expecting any visitors so he took the time to call the police and verify that this was legitimate law enforcement and these were legitimate law enforcement officers at  as we don't know from the record it does not seem from the record i should say that there was time for him to have done anything else to change before worked from the time the officers got there in the parking lot of the drum of the video of the statement shows him wearing a t shirt in the minivan and then by the time he as he's getting out of the vehicle you can see that he is wearing shorts that you later in the video see when he's sitting in the apartment are cargo shorts they're not pajamas he was fully dressed as as he was wearing a t shirt and cargo short address one point that appellant made about a driver's license there is not any evidence in the record clearly establishing at any point that the defendant did not have his driver's license with him that the police had retained that i thought your colleague said that they took his driver's license from him i believe she did say that are you saying there is no evidence to support that i am saying that there is no clear evidence in the record of that the closest i can find is that there is a reference when they are back in the apartment that agent grave says here are some of the things that were with your phone and the reason they took his phone of course is because they were there to execute a search warrant for electronic so it was necessary for them to take his cell phone it appears that there may have been some things with the cell phone that he requested to have back and that agent graves  gave those back to him whether that included a driver's license or not is not clear at all from the  record and as far as just one of their point about custody again not that we should even get there because of the limited information that was known to the trial judge and that we are evaluating this under a pla error standard but mr levy did throughout the questioning that morning continued to make references to what he was going to be doing later that day and whether he could get his phone back as soon as possible because it was his  business there is no indication that he believes that he was in custody and going to be taken to jail that day so unless the court has any further questions we would rest on our brief in all other respects tell me was there some record evidence that might have arguably suggests that they took his license yes there was and you just sort of point me to it there was the testimony of the crime scene technician who talked about how she was photographing his defense where they talk a little bit and it's a little less direct but it talks about they're talking about returning stuff to him but the crime scene investigator makes it pretty clear because she's talking about how he had a cell phone wallet and she had to take a picture of his driver's license as part of her initial entry into his house which is where his driver's license was at the time when he was already removed from the from the room the other thing is the clothes that he had on were his pajamas he didn't have superhero pajamas he had cargo and t shirt but that was his pajamas when he gets arrested and they put the handcuffs on he's saying can i put on some pants can i get changed because for him that's what he that's what his  night clothes were there is no indication and then they give him leave to get dressed no they did not that's the i'm talking about when he was actually arrested when they actually put the handcuffs on so but that's what he was whisked out of his apartment in those were his night clothes again he didn't didn't have superhero gemma's if i hear your argument right and tell me if i missed it or if there's something else you make reference to the following things which suggest that this was custodial and therefore miranda had to be given one there was some language impediment to there are a fair number we don't know how many of executing officers in the house and outside the house three they took his driver's license from him for it was early in the morning and he had his pajamas on from which were he just didn't have an understanding john simply the language problem correct he had very little understanding of the legal concepts and proceedings that he was being subjected to he didn't have there's nothing in the record that shows he would have any clue that he had rights that he could invoke he certainly did not ever think that he was going to be going to mcdonald's to get a cup of coffee when they showed up at their door and he didn't have there's nothing in the record that indicates that he would think that he could say i don't feel like talking to you there he had such a little understanding of the legal concepts that it's clear that he wouldn't he didn't know what prosecute record evidence do we have about how long he was here and  here about ten years and lived in israel for about forty years what was his legal status did we miss all that from the citizen so he was that's in the record is do i believe so i mean coming out later from the probation department but at the trial of bruce clear that he was i don't know i don't know if the reference to citizenship during the trial so he was a citizen and he was here ten years and he never asked for an interpreter during the course of the trial and rejected it w yes but if you look at the statement that he has when he's talking to the agent you can see there are clear misunderstandings going back and forth he doesn't talk in standard english you can see even in the trial like i said he did not understand what it meant to rest  case you know and his lawyer said it in opening he has the ability to speak english and like a camp casual conversation he's an aviation instructor so he has studied english vocabulary that has to do with aviation but when it comes to legal proceedings and these kinds of destroying distinctions that the agents are trying to make with him he didn't have any ability and he didn't have any ability to know that he had rights to invoke and you know his lawyer s in opening statement as far as what the trial judge knew at the time when the statements came and that's one factor that was a huge red flag his lawyer was saying he didn't understand what the questions were during the interrogation and you know just like the judge knew enough to say do you need an interpreter he also because the lawyer specifically referenced the defendant not understanding the interrogation that should have been a red flag right from the opening statement that the court should have at least addressed it with the attorney possibly sidebar something that means something because it was that clear so and i also notice that my time is up thank you very much thank you both we'll move to the next