military investigators arranged to have christopher heckle a nineteen year old brought to a security office on the military base where he worked so that they could question him about an alleged sexual assault of another teenager ms doe that he knew through friends when he got to the security office in the military base the officer took his phone and implicitly threatened that he would use hand handcuffs on him and embarrass him in his workplace as mr hecla testified he was not allowed to drive his own car and instead was transported by military investigators to a different base ten miles away he was threatened with handcuffs you mean are you referring to the comment that we won't and if you it was an implicit threat your honor what they did was they made sure he understood that the handcuffs were not visible they were available and that if they had if they used them they would embarrass him and in his words you don't want to embarrass you that was a threat the threat was it in this case he was then transported in the in the back of an unmarked police car to an unfamiliar and secure military base and he was questioned for hours by the investigators do you think the police car being when he got to the police station he was not only question for over six hours his phone was searched and then well the question is whether that consent was valid because at that point they had no probable cause or even reasonable suspicion to detain him for that honestly if there was consent he verbally gave them permission to search his phone they also took fingerprints d n a and photographs and his car was ultimately search and over six hours later he was brought back to the occurred i think looking at the totality of circumstances which is the test in this case for determining whether a reasonable person would have felt free to leave the totality here indicates that there was custody and that's why the district court erred in failing to dismiss is failing to suppress the statements taken in this case under the totality test this court has identified a non existing exhaustive excuse me list of five factors that are often relevant to determining whether custody is present and they largely support and strongly support in most instances that mr hecker was in custody for example the language used to summon someone is a factor this court has identified here the evidence is that mister the agents had arranged in advance to have mr haeckel of brought to a security office by the security manager at the base store that he worked in as i mentioned they made sure they under he understood that there was there were handcuffs available for use as mr haeckel a testified he asked to drive his own car to the location of the interrogation and they refused to allow him to use his own car moreover they didn't really even tell him what they wanted not really they didn't tell him what they wanted to talk to him about but what they did say to him at the point where they met with him in the security office was they asked him if he had a problem talking to him and that language i think is important because it suggests there is a problem if he doesn't talk to them it in some ways saying he has a problem talking to them would either be a suggestion that that he did something or that there could be a problem to him and that's why i think that taken in conjunction with the other factors of the in the first the other facts in the first encounter are important the taking of the phone also i think is important in that case because  the taking of the phone really took away his ability to communicate with anyone else in the world at that moment and given that miranda is focused on the isolation that occurs in an interrogation i think that fact is important for this court to consider the next factor that the court has identified i think probably doesn't strongly suggest that there was a custody hearing that's whether there was a confrontation of evidence of guilt we don't know exactly what happened during the first three hours of interrogation because there were no notes or recording you know in or interrupt you just maybe you can cut to this i mean i think you know that i'm probably sympathetic to your client's argument based on what i said the smith case and i agree with you that the  handcuffing remark is probably the most compelling factor in your favor but at the end of the day what we're trying to figure out is whether the circumstances of the interrogation were such that the person would have been likely to perhaps falsely confess i mean that's what we're trying to protect against by ensuring that the person is given these warnings and i guess i just don't see the coercive atmosphere that was created by this interview across as i understand it like a desk and somebody like the government's term spacious office he's isolated he's alone he can't leave and he would be perhaps induced to go to falsely confess to something that he did well i think it's more than for example the room where the interrogation took place this court and i recognized that although not always the fact that interrogation takes place in a police station is often indication that there's custody present and here the question is custody it isn't whether the statement was involuntary because if there's custody found miranda has to have been given and i recognize that there is pressure going on here for a lot of reasons here this is a an under from bill your military base ten miles from he worked and he's in a secure police building they bring him by the office where the father of ms doe the identified victim of this crime works so there are there are things going on here i also think there's pressure applied when the police tell you you can't drive your own car that takes away your sense that you can in fact leave you can't you don't control whether you leave i mean it's three o'clock in the afternoon on a rainy afternoon in germany  ten miles away from where he works but tell me if this is right i seem to recall the multiple stages of this interrogation interview and how you characterize it he was told that if you don't want to answer any of these questions you're free to go right certainly was assured you're not under arrest i recognize that that's you know they say that because they say they want to avoid perhaps giving the warnings but your client was young but not so one sophisticated i think that he wouldn't have understood that i can go if i don't want to answer these questions anymore the reason i think the supreme court of miranda identified for the need for the warnings is the inherently coercive situation of just being in a police interrogation and so i think that's really why the custody is the key here it is inherently coercive to be in a police station and to be questioned by police here they didn't but it would but that is not true because the supreme court has told us that's not true right you can't just have that and therefore you're in custody therefore you're told to miranda if maybe that would be better right because i factors that come together perhaps individually and i think what the government did in response was take each one siriano and kind of make it a each one and say this isn't course of by itself but if you look at the whole picture here this is an unsophisticated this is a lay person that we're dealing with this is not at think is the probation report confirmed mr hecla had no prior law enforcement contacts so all these nineteen years old he's never been in this situation before and i know that this is not this is a reasonable person test it's not an individualized person test but i think the pressure that's being applied each step of the way they take away his choice and have his security manager escort him to the security office they take away his choice to drive his own car they take away his choice to communicate they take his phone they put him in the backseat of a police car and while it's not marked sitting in the back of a police car with a i think it was a police officer in the back seat with him and one driving that is a confined space and  isn't the situation we've got the glaring lights or we've got some extreme interrogation methods going on but we have a situation here where collectively this information adds up to a custody situation and when custody is present miranda is required here custody was present based on the totality of circumstances and i think it's made clear by the statement of the agents when they release these the defendant in this case they say they're going to release him on his own reconnaissance that while the intent of the agent isn't relevant or isn't determinative it certainly is a factor into the totality that informs what the environment they were trying to for these defend these young men and they took photographs fingerprints and d n a evidence before they released them on their own recognizance which really are the hallmarks of things that occur after someone has been arrested can you remind me how incriminating were your client statements during this ms doe came from mr heckler during this interview so in this case the government has not argued harmlessness and therefore has waived harmlessness and so we would ask the court to reverse on that basis i would also note that these factors also go to whether there's a fourth amendment seizure in this case and we may have to scrap would you concede that if we were to rule against you on the custody for fifth amendment right and the purposes that your argument on the search of the phone falls falls away i don't think so because the standard is different the facts of the same but the standard is different and the standard is whether there was a show of force by police and these same factors are shows of force by the police and therefore the fourth amendment is implicated the government concedes there is no probable cause and there's no reasonable suspicion in this case to seize this young man specifically i don't think turning to the fourth amendment i didn't find any place where you had raised the district court i was not the trial lawyer but i will not in the trial court papers it was never brought to the attention of judge while the fourth amendment was not cited specifically cited was not mentioned was not considered was not argued was not mentioned to the district judge why isn't it waived well the district court ruled that there was a consensual search so the district understood that there was a fourth amendment issue that was being considered i will grant the court that the language in the motion is not the picture of clarity it's not a question of it was never raised it was never mentioned and so the district court was not ruling on the fourth amendment the district court was ruling on what it had before based upon the papers that your client presented so i don't see how we get to the fourth amendment i think the district court expressly ruled on that he didn't he record expressly ruled that there was consent to search the phone which is a fourth amendment consideration so the district court understood the fourth amendment was where in the record can you show us where the district judge mentioned the fourth amendment the district court judge i don't think mention the fourth amendment but he will say it was raised even though it was never mentioned it was never a request for and then all of us and we're going to reverse a district court for an issue that was never officially raters i think the only way the district court could have ruled that there was no consent that only comes into play if there was have good morning your honour's my name is john stickles and i'm here representing mr joseph martin and i would like to talk very briefly about the jury instruction error in this case because you never raised this issue in your client ever raised this issue so it's not the one we've been talking about oh we did your honor but if nothing miss i think the prior tourney adequately argued both of those when i say you i'm talking about the lawyer it was not race for the district judge no sir the jury instruction error was not raised therefore we're here on plain error ok your honor very briefly we believe the jury instruction was erroneous and constituted plain era because the jury instruction allowed the way it was charged with count one two and three allowed the jury to find mr martin guilty based upon an iranian styria of the law and that one they were charging conspiracy count two mr martin was charged with being member of the crew of the conspiracy in committing sexual abuse in count three he was charged with being a member of conspiracy and create committing aggravated sexual conduct by counsel they were not convicted of conspiracy so where was the error they were the error comes in because they were not can speak convicted of conspiracy the count two and count three failed to inform the jury that they had to be convicted of conspiracy before they could be convicted based upon the acts of a codefendant they were they could be convicted based on merely being charged in a conspiracy and not convicted the jury instructions should have but that was only one was that the only theory of conviction there were three alternatives that is the other problem there were three alternative theories of conviction but based upon the way the jury verdict i mean the jury instruction read we can't tell which theory the jury convicted the well isn't it fairly obvious that it's not the conspiracy theory if they were acquitted of conspiracy your honor it may or may not be fairly obvious but we don't know that's not a fair inference it may be a fair inference but we don't know what they can what grounds they were convicted on and we can't tell from the instruction what ground they were  other problem with the jury instruction is that throughout the instruction it repeatedly referred to as defendants and there was no individual as finding of guilt there was one small statement that each  had to find that each defendant was guilty but that did not mitigate against the multiple times that the finance were referred to collectively slipped by one a little too fast the judge gave the ninth circuit jury instruction prefer jury instruction in situations like this if you have to consider each person separately so whatever happened on the pitch in charge you still had to find that your client was separate and involved it seemed to me that that was the reason why judge campbell gave that instruction so you didn't object to the instruction your client did not object to the instruction in so why and why isn't that sufficient so that the jury is properly instructed that regardless of what happened on the pinkard some claim they still have to find that the individual on its own would be guilty of usually we think that's what that reason the reason for that jury instruction why in this case doesn't that prove jury instruction solve the problem because of the many many times during the jury instruction that they referred to they were referred to as defendants  statement that you have to find each defendant acted this is not enough to mitigate against the multiple times they were referred to as defendants who isn't that's what i'm saying doesn't that even though they say defendants supposed to do this and that the judge the judge then that you have to find each facts could convict in each one of the people separately and that's the purpose of that instruction as i understand it why wasn't that sufficient here it's not sufficient because of the multiple times during the instruction they were referred to as defend that and that one little statement does not mitigate against that multiple times they were referred to as defendants so whatever the jury judge does try and correct any or that may take place would not be sufficient as far as you're concerned without referring to each person individually throughout the jury instruction i do not believe that would be sufficient your honor did you all want to say that any time for rebuttal yes ma'am i was thinking ok let me ask you one of the question your client never brought up this idea of was not involved with what we're discussing with your co counsel i don't understand the question as far as a person being  it's in the brief but i'm talking about at the trial court level it's a foul motion to suppress at the trial court level on the basis of involuntary statements and the miranda i didn't government please accord james pierce united states district court correctly denied the defendant suppression motion and the jury instructions in verdict form were not plainly erroneous let's hear your response on the handcuffing thing because as i recall the district court for whatever reason didn't make a finding one way or the other as to whether that statement was made is that right that's correct and i guess i'm struggling with how can we affirm without knowing whether that statement was made because you're going to assume defend on the ground that well even assuming the statement was made but the implicit threat it seems to me that is carried with that is that you are coming with us one way or the other we can either do this the hard way or the easy way is up to you and if that's in fact the threat that was conveyed i don't see how we can say he wasn't in custody at that point because no reasonable person would feel free to decline the encounter if they thought they were going to be dragged out in handcuffs if that if they didn't go under their own pollution so a number of responses you are correct that we argue and do argue that even assuming it was made it was not coercive but i also want to back up for a minute and just talk about the way to review this as a factual matter you're also correct the district court didn't make factual findings on this point  in footnote three of kim this court has described it in that scenario where district court denies a suppression motion and doesn't make factual findings this court is to uphold it if a reasonable view of the evidence s it is a pure credibility determination there is no no finding out it might my point is is large is a different one and perhaps links back to even if made we think we prevail which is that under a reasonable view of the evidence here  without even making a credibility determination there are facts to do and we are trying to say that we were given these two people who are the only two people basically who are their sake directly conflicting things and we're supposed to say under reasonable view of the evidence one is telling the truth and the other is not no this court is not i'm not asking this court to make a credibility determination here on appeal that's a district court judge right so it's a fine let's just assume my point is again there was enough evidence even assuming that that comment now one response to that is the bottom line that the officers said you're not under arrest you don't have to talk to us i think that's decisive but back to your specific question this is to this drug deals with what is the language or behavior that is used to summon the defendant  in this case to defend the at that point the suspect to an interview the handcuffs point i think is something that would certainly shade this towards the coercive and would tend to show custody there are other factors and facts here that push against it on that first factor he was in a in a business suit he was doing it in a way where he used the kind of language telling him you're not under arrest you don't have to talk to me as we've already talked about there was an unmarked police car i don't think it was discussed before he didn't begin with any kind of substantive questioning on the way over to the police station so i think that the handcuffs point makes that first factor closer and i agree that the way to read it is probably not as complimentary even reading it in the way that you've suggested judge just want for it but that's makes the first factor closer if you look at the rest of the factors i think that those strongly supported carve out time because i think that's a closer call but the fact noncustodial finding the idea of being confronted with evidence of guilt there was the investigators here in relevantly court they didn't know what had transpired at that point and this is very different from the kind of case where investigators know a crime has been committed and they're looking for who did it here they're just trying to figure out what happened on the night of october nineteenth and twentieth so i think that factor the district court correctly found favors and on custody the third one is the surroundings in which everything takes place perhaps spaciousness far as the government is concerned but the bottom line point is the office in which it happened was one where this is not a cramped room no handcuffs are being used they're sitting across from each other in a desk mr haeckel it says at the end of the  investigator was pleasant to me and says it was a pleasure they were breaks take and i think all of those things also favor not custody the first one is time this is a long interview it's i don't think it's six hours maybe six hours from beginning to end but four hours of questioning and that's why and there's no way to run away from that fact but harkening back to what the miranda decision talks about with time i think the concern is when law enforcement uses time as a strategy to transform resistance into compliance you put someone in a room and take the miranda decision itself in that case escobedo i think it was comes in saying i didn't do it like you did it i don't want to talk to you and time is there a way to get this guy to to break him down and the fact you just could not be more different here when when you're at the base exchange mr haeckel knows he doesn't have to talk but willingly agrees to come with the officer when you're back at the off at the police headquarters the c id headquarters he again is informed you don't have to talk to me you're not under arrest and yet he continues to talk and in fact in some ways and i don't want to press this point too hard but in some ways the extent of time shows the thoroughness with which the interview took place and attorney doesn't make a point today but there was some discussion about it not being recorded we actually have mr nichols own words which he had the opportunity to type and to review that's again i think it's probably fair  district court said to say it's a neutral factor but the point is that at bottom time was not used here in a way to break down non cooperative witness mr haeckel was was willing to talk about this his statement at times is boastful about his encounter with the victim so i just don't think time pushes strongly towards custodial finding and then finally the last of the fifth factors that this court looks at are whether there was pressure applied in the interview itself and again there's nothing in the record to suggest that either the exchange was was a pleasant one as far as even mr haeckel represents so i guess you would like to isolate the handcuffing statement just to the first of the five factors and you've done a nice job of  cataloguing the other ones but i guess it strikes me as you would certainly agree with this wouldn't you let's say that the some mr hecla from his workstation whoever he was to meet the agent that he actually was put in handcuffs and take the assurances that they were not under us would you agree with that i think it's a lot lot harder case i mean i think you could say that the use of handcuffs i think always trance and courts have been clear that show that was a lot more like and i can basically override all of the other even if you go through all the other four if that one is create such a coercive atmosphere from the get go the agent can give all of the assurances about you're not under arrest you're free to not answer my question to a reasonable person especially someone who's nineteen years old has not  any prior law enforcement contacts you would agree that that could be so powerful in terms of its coercive effect that it would just essentially trump the the other factor i can imagine that hypothetical scenario i'm not sure i would be readily agreeing to the fact that there's anything in this court's decisions has something where something like this would be so powerful that it would overpower or trump any of the other factors of the inquiry your are likely expects this response but that's certainly not  what happened here there's nothing in the record to suggest that he was handcuffed and i grant you but the threat to use handcuffs that's why i guess i'm saying i just don't understand how we can affirm if we don't know the answer to the question whether that statement made because if there were a threat to use handcuffs if the person decided not to comply with the quote unquote request to accompany the officer i don't see how that's any different from having put the person handcuffs and drag them out well i do i do  councilmen me asking this question are you aware of a case where handcuffs were used but nevertheless there was a finding of a lack of custody i'm not aware of a case that does that and that's why i think that judge walker is is probably right that if you use that and got out your eye pathetically that is it is a curious one because you use them and then you take them off and i don't know the answer to once if there's custody can it be undone by statements i don't think law enforcement non custody and not trying to extract a confession but in fact an interview that mr haeckel was was willing and cooperative to participate in remind me of the sequence because i might have a little bit off mr haeckel is where is he he's working in a store he's working at the base exchange which is like a a large department store as i understand it or a large kind of mall on the on the air base of the works in the towers over there and where is that in relation to where he eventually makes first contact  agent so that there was a security office on the on the space exchange as i understand the record mr a a security manager employed by the base exchange comes to him says something to him there's someone waiting to talk to you that's not we don't have any testimony from the security manager haeckel it doesn't address that heckler comes to the to the base exchange security office and there the officer is waiting for him there's some dispute as to how many whether it's two or three  and at that point according to the officer he says who is wearing like i'm a business suit and he has a pen cuffs and a gun but they're concealed and he says i'm so and so from the c idea i'd like to speak with you you are not under arrest you don't have to talk to me th at least from mr hakken was testimony the threat was if you don't agree to basically just follow along with us we can put you in handcuffs and basically force you to come with us i think that is that is their view of of the record i would say just again to clarify factual point the officer mystically didn't actually testify that i wasn't told i could take my car he was asked when he was testing would would you have preferred to take your car out to the station yes i would have but he didn't say the officer said to me you can't take your car the officer said i don't remember whether i gave him a choice one way or the other so i've just got a factual points that i think in this one shades it closer towards the non custody finding i just wanna make sure i got understand what you're saying i thought he said i asked can i drive my own car out there and he was told no he cannot i believe that's not that's not an accurate characterization of what's the what's the accurate characterization that he was asked would you would you sitting here today have preferred back then to have taken your card yes i would have and the officer said i don't recall dressing this issue one way or the other minor point but just to so we're clear on the record i don't want too much time to lapse without speaking to the other issues of course i'm happy to address for their custody questions but as to the fourth amendment or to two quick points one is judge wallace indicated we and we put out a point out in our brief we believe it's it's waived or at best under plain error review and then to speak watford's question we also believe if the court is were to side with us on the custody finding that would essentially eliminate the fourth amendment question as well turning to the jury instructions briefly it's our view that the pitching instruction was correct and were in plain error review here in this court would ultimately have to hold that the use of this court's model instructions was a an obvious error we don't think it was error at all but i don't think it was it was obvious even if it were  and then i think it along the lines judge spoke to there was ample evidence they didn't affect a substantial right so it would have been a harmless error the evidence that had had that came in it was was more than sufficient to satisfy overwhelmingly that they had committed to offenses of for which they were convicted not the conspiracy offense what about the grouping of the defendants together collectively well this court is as long held that juries are presumed to follow their instructions and as i think judge was pointed out that their district court gave the instruction to the jury that you you jerry members are to assess each defendant's guilt separately without regard to any other verdict that you render and now using charging the defendants collectively i mean perhaps it would be better to say each defendant but that instruction that channels the consideration to each separate defend it is also in our view not  negate the fact that in more times than the district court thing to view each defendant separately many more times viewed them together so why wouldn't that negate the one instruction if the if the core group in the gathers so many times well i think that it's what the grouping together did versus the instructions for separate consideration the different the grouping together we're just listing the elements they weren't saying the you know they were implying that by do acting together you should just lump them together as one they were just very fairly informational and what they were doing you would have had any change in meaning if you said to find defendants to define each guilty you must find x y and i think that's a big difference well i guess i would disagree with you about charged a few juries have given jury instructions and there's a difference between saying to find defendant x guilty defined defendant y guilty and same to define the defendant's guilty it's kind of in to me in give the them a collective image in the jury's mind it seems to me that in a case where the defendants were charged with separate crimes and or they were sort of some concern about you know you had a group of defendants and one was obviously less culpable and one was was was obviously more culpable on the facts than there but be a closer question but here in plain error review it seems quite a large ask for the defendants to say that notwithstanding clear precedent that a did a jury follows its instructions and the jury here was told to consider them separately that a shorthand of using defendants instead of each defendant was sufficient to act it might be closer easier question for you if the evidence was identical mccance them but the evidence was not identical against the defendant in this case well it's true there was an identical but it was very similar i mean both defendants were involved in the sexual assault on the victim both defendants gave statements that described their own specific roles and at those roles differed i don't need to go into details i sing the court as is familiar with with the record here but both of them were very closely involved with the sexual assault of the victim the evidence globally against both of them well and in fairness i mean there was also a conspiracy charge that did charge them with acting to get acting together and they were also aiding and abetting charges so the jury was through the charges and based on the indictment considering their joint activity here so that's i got i think another factor that would point out saying in fact it was appropriate for the jury on the on the one hand to consider how their cooperative action could charged both your attendance and both used aiding and abetting sought my point is it was a joint action throughout and it was charged that way as the district how did the defendant raise the issue with the district judge in using the it on his own are was it in response to that was not in response to an objection he just gave that instruction i believe that's correct i believe that was part of i don't know whether it was part of the government's proposed initial instructions or part of what the court provided but it was not inserted at the behest of any party that was part as i understand part of the ability to place dry cleaner that's correct was that part of the initial instruction on the instructions that go then given immediately before  dina you're saying the initials in the beginning of trial were right i don't believe the judge addressed the issue at the beginning of trial so this is part of the final closing jury instructions that the court gave i say i'm almost out of time i'm happy to answer further questions including on the stored communications act otherwise i'd rest on what we've put in our brief one irrelevant question but i'm curious because i never did bother to figure out so why was this case tried in arizona what was the connection so we were under the age of the military be tried right and d c is sort of the default under the media for where to try these cases but then because of the defendant one of the defendants association with where there was oh no that's why it was subsequently prosecuted they're not ok thank you thank you very much  this interrogation the time at the police station is if there's a half hour each way from the location there at the police station for over five hours time is an important factor i think in contrast to what the government argue courage in people to make statements and therefore it adds to the course of nature of it the barn's case while the handcuffs i think are important they're not dispositive and i think the barn's case this court found custody even in the absence of the use of handcuffs or arrest and so while it is important i think all of the other factors taken together address the issue in this  mr heckle was asked stated that i asked if i was able to follow him in my own vehicle that i owned and i drove and i was told i was not allowed to so he expressly made that statement  on the jury instructions i would just note that sixteen times this jury was told to consider the defendant's collectively as the defendant what's your response to opposing counsel's observation that because there were conspiracy charges  aiding and abetting all of the counts in error would be harmless i think that highlights the problem with the other jury instruction issue that we raised which is that they were acquitted on the conspiracy charge but the jury was instructed that they could be found guilty of the substantive offenses on a conspiratorial liability theory and therefore that raises the problem there if if the answer is well they're being collect considered collectively the jury needed to be made aware that if they acquitted on the conspiracy charge as they did they could not rely on conspiratorial liability to find them guilty on the substantive offenses and the jury was never told that so i think that highlights the problem and the connection between those two issues answered the aiding and abetting connection i think doesn't answer i think because there i think because there was these collections of theories of liability the court needed to do a better job at least to have a specific jury instructions so that it articulated to the jurors the the order they needed to find things well yes i suppose the judge might have had had defense counsel objected but here there was no objection but the judge gave the instruction that he probably would have given had the objection been made the one that's approved in the ninth circuit of treating each one separately how does become playing there i think because the law is playing on this issue th and i think the district court i'm campbell i have nothing but respect for judge campbell and i'm sure that if he had the chance he might have considered it differently and that's why play narrow clyde's in this case the law is clear on what what's necessary and i think the the connection between these jury instructions highlights that there was plain error with regard to the jury instructions because of the outcry in spite of the giving the instruction that we have approved to cure that and  here i think the overwhelming ness of the joint liability discussion referring to the defendants and not saying consider each defendant on this each defendant on this i think that overwhelming message message to the jury was that they were a uniform consideration i must the court has additional questions we would ask this court to reverse mr harkless convictions all right thank you counsel thank you to all counsel for your arguments in this case you counsel was going to give me the information phone i'm considering where or not as it's waived the issue is waived because you didn't raise it in if this is your belief it was not raised in the statement of the issues presented for review body of the opening brief waives the issue and so i was just raising the issue and let you have a chance to respond it looks like to me that you may have waived the issue i understand the court's argument however i believe it was adequately br