please the court my name is michael my only on behalf of the appellant percent take you rose the first issue before the court is this did the government prove that mr q rose understood his miranda rights and the answer that question is no the government presented a with the inside of agents car with the door open importantly after age a cure after a general riley asked mr rose if you understood his rights mr puro didn't answer that question his answer was non responsive i said i did not but that's answering say he didn't do anything and he's innocent or whatever or does that mean i don't know anything which would does that how you interpret him then i think he was understanding that he was under arrest and was being accused of something and was just responding that he didn't know anything wrong i think the context surrounding the question do you understand your rights and that response just tell mr puro it was immediately outside his house his children re present the agent testified on four separate occasions without prompting th pierrot's was looking around and nervous and for good reason his children were present he was his house was being searched by several other agents and u s marshals and he was distracted and i think that that single or recitation followed by a non responsive answer show that he wasn't listening and didn't understand his rights it certainly showed the government had proven as you must he never testified to that effect mr pirro did not testify during the hearing now there were at that age i was the only witness and we only had we have to infer the fact there's no question that that he was his rights right there is no the hearing concerning the question of whether or not the rights were actually read and we don't ask on appeal that you overturn the district court's finding the crediting the agent statement that he did in fact read the rights we don't challenge the fact that the rights were did r i just because it memorized and so many times correct he had his card and he testified that he was going from the carton often using his memory his card had a gap in it it's not a challenge on this appeal that he didn't read the rights correctly or they weren't read that was the principal focus in the district court right i don't know what the the point of the hearing was to determine whether or not miranda was properly administered mr q rose made a statement in a prior hearing that he was never given his miranda rights and i think that's perfectly consistent with the agent testimony and with the possibility that mr curios wasn't listening if mr perot's wasn't listening to the rights rightfully distracted by the circumstances and didn't hear what agent riley was saying to him of course he would come into court and say i was never given my miranda rights so i don't thi court needs to discredit the findings of the district court crediting an agent o'reilly statement i don't think that that was inconsistent with what mr curios said before that hearing importantly without the answers usually and in almost every case in fact in every single case cited by the government or us and in our briefs the best evidence of understanding is answer yes to the question do you understand these rights every single case cited by either party in the briefs here we didn't have that now this court has considered before whether there are circumstances by which we can infer the court can convey and further understanding without an express yes to that question and that's where united states brown which the government relied on at the district court level and which the government again cites favorably at this level is important because those factors that are cited by this court in brown are conspicuously absent here in brown first of all the defendant actually did at least make it and big us answer yes to the question do you understand these rights that's not present here second in brown the government offered evidence that the defendant had prior experience with the judicial system and specifically with being a minister's miranda rights the government didn't offer that evidence here in this in brown this court also said another way that we can in understanding from the circumstances is if the defendant in fact invokes his rights he says for example i don't want to answer this question but i will answer that question that's a partial invocation of the right to silence but we don't have that here mr q rose was test was answering  questions freely in fact regional riley said several times that he was talking freely throughout their entire interview and there's no indication in the record that mr curios ever invoked his right to counsel or his right to silence any point and then the final fact of the court identified in brown and brown this court said that one way that we can infer understanding by conduct if they did not arrest each attempts to leverage his ability to exercise his rights in exchange for consideration the simple example would be all right i'll tell you what you want to know but what are you going to give me we don't see any evidence that you're even though the agents were pressing mr q rose repeatedly to cooperate with that if you give us something will take that into consideration mr puro said he simply couldn't help him because he didn't know the answers to those questions so all of those understood his right to remain silent perhaps i overstated our case but i don't think it's sufficient for the government to meet its burden taking them in turn first the fact that the agent read the rights is a separate choir under tompkins that additional showing of understanding is a separate requirement taking the fact that mr q rows made inculpatory exculpatory statements winkel tory statements would have to be present in any case where the government was offering evidence against them so that's all that's required for the government to prov understand his rights might not even have any rights i don't think that being arrested and saying make exculpatory statements can be enough to prove understanding because any person is bound to make at least what they consider to be exculpatory statements in fact i think mr scr to indicate that he did not appreciate his rights or the gravity of the situation he was joking with the officers that the narcotics issue were for personal use he seemed to have a demeanor according to agent riley's testimony that simply doesn't match someone who appreciated the gravity of the statements that he was making and the fact that they were going to be used against him later in a court of law which is exactly the knowing and intelligent aspect of this that he needed to have in order for the government to make its case the understood his if i'm not listening to what i think he's on the back of the police car and the agents remove his rights when he's not listening his children are running around he's immediately outside his home at the door open his house has just been searched they brought a team of agents and u s marshals there i don't think it's unreasonable that he did not have a full appreciation of the rights that he was waving at that time after that so on may resonate with all the ages in the house and saw or they didn't realize he was a trouble i think he knew exactly that he was in trouble about that the standard is whether or not mr  understood that he was being accused of something or that he was under arrest i think we can see that point i think the point is whether or not he appreciated that that he was able not to say anything i don't think that it is intuitive to a perp to any person that when a police officer asked him a question they have a not to answer i don't think it's intuitive or common sense to a person that when they are arrested by police officer they can have a lawyer come before they even answer any questions that's what the court requires because it is above and beyond it because it is asking that not only interrogate people but that they get of full understanding and appreciation of the writing waived before any statements are admitted against people so i don't think mr pugh rose didn't understand he's being accused of something but i certainly don't think he understood that he had rights that he could invoke i think the tenor of his interview indicates that and i don't think it's unreasonable to think that he was not processing or listening to or appreciating this agent's recitation of the rights considering the circumstances going on around one courtly it's the government's burden to prove it and taking the final factor that your honor just identified into consideration i mean i think the fact that mr q rose i'm sorry one of the factor i think was that it's general intelligence again i think that goes to whether or not he was  listening even einstein if not listening to information being given to him would not understand i don't think generally the fact that my client is an intelligent person i've spoken to him personally i don't think that's this positive that you just ran in the bench trial made did not affect his verdict why should we not take him at his word on that well the government relied on that and then relied on case law that said that that is dispositive the harmless error analysis i think this case is unique for one important reason the cases cited by the government oath involved two different types of the first the defendant's confession and second i've witnesses who in one case witnessed the bank robbery and another case government agents who were surveilling the actual defendant participating in the drug tra if you drop the confession out but i would this evidence is in effect that it's just a straw just as strong as it was about the confessed here mr p rose was denied a significant avenue of defense because of the admission of his confession the evidence against absent the admission that he wasn't back on the calls he could have helped the government to its burden of proving that it was his voice who saw as it was in or twice sounds like gamesmanship if there is no doubt that it was his evidence because if he had tried to present evidence to the contrary even a confession without miranda would have been admissible to repeat trying to it was he wouldn't have been testifying but he could he could have cross examined for example the government's primary witness the criminal informant identified  that would serve the cause of justice how well i think that we are dealing with a more majestic conception of the amendment of the protections of an accused when they are arrested the government actually has to be held to its work you challenge the fact that he says what my voice but doesn't the government have a right to show it was of course the government could could attempt to show that it was that it was it was i think that's a tenor of judge hamilton's question i understand but the fact is that what's going to come and i think that the the evidence could potentially come in that way i don't want to get into all the different theories of the good because it comes and because we want this system to be fair what additional evidence the government could have put on you know if this were being disputed i understand your honor i'm not saying it's not a valid point i guess what i'm saying is that we don't know what evidence could have been developed because of how intertwined the evidence is here that the that the district court statement that he would commit made the same result with our list can't quite hold muster if after the house and searched us security in the back of the rental car during the time the defendant did not seem confused in any way did not ask any questions appeared to understand everything the agents were saying and then immediately volunteered i did nothing and continued talking to the agents as they described their investigation to them and as the district court found it wasn't strictly an interrogation it was a combination of answers to questions and volunteered statements  response to what the agents were saying and the statements mr keillor is made that he's a compulsive liar that he never touched the money or the drugs why is evidence that he was trying to talk his way out of the situation and he did understand his rights do we have an explicit finding about understanding from the district judge yes that the district court said that he found that the defendant  read his rights and meekly volunteered statements showing that he is going to have an explicit finding of understanding the belief that the and his findings noted that volunteered statements noted he was crediting if you know riley's testimony all of the testimony including the statements about mr de rose seeming to understand everything they were saying with regard to the cases that the defendant has cited on appeal that there isn't any strict requirements that the defendant state or the yes i understand their rights and in fact the cases i do recognize that including about a bright but we've got this problem here where we've got no express acknowledgement by the defendant of his understanding and no explicit finding by the district court we've got to imply both of those to affirm this conviction at least the marijuana conviction and i look at the supreme court's decision in take against louisiana and memory serves correctly where there was a summary reversal of the of the by the u s supreme court because of the absence of a finding of understanding where the district court first of all discussed the understanding for and in both pressing the defense counsel on this point doesn't the fact that he volunteered statements indicated he understood his rights in defense counsel concede right that's possibly true and went on to conclude with the with what was the original basis for the english there was a proper basis for a finding that the that the defendant waived his miranda rights what was found in the search of the house there was like a protective suite to make for officer safety so the agent testified that they they cleared the house essentially to make sure there were no other people or not a search for drugs correct and it to that point the miranda warnings were read after the search was complete so that they just went through that process and sticky rose was sitting in back of the rental car while the search was happening the agents secured the scene and there's no testimony about his children running around on the lawn or elsewhere paging testified to of nano midget as the defendant told him he would be told vance he would be and then statements that he had twelve hundred pounds of marijuana you're by to telling bands this and you could bring it to them  by the findings that a conspiracy existed between the defendant and the two couriers and those statements are also admissible for other purposes such as instructions of directions and statements of intact what was the evidence other than the defendant's own admission showing that it was him on the tapes the statement that the testimony of benjamin vance who previously knew the defendant and the testimony of the agents who reviewed the recordings extensively before arresting mr key rose and then spoke with mr q was extensively after the arrest court did not instead they made a finding that his rights were implied there was an implied waiver of his rights and when the district court made this finding said it's an implied waiver when you talk after you've been told you don't have to  his confession may have come in on crossing examination but of course bringing in a confession on cross examination is much different than bringing it in your case in chief what we argue is admitting the confession and the district court denied mr q rose a line of defense mr croes was unable to challenge the credibility or the strength of the phone calls which was of course the primary evidence brought against him against him and even though the government could have referred to this confession to challenge any argument we brought that the calls weren't accurate again we weren't even able to make that