in fact very good cop bad cop nature of the questioning it was the juxtaposition of the loving assurances the friendly we know you haven't done anything wrong the we know you haven't done anything criminal  nd segment that was more aggressive than the other two and toward the end two statements in a row were made by the so called bad cough in quotes that were not necessarily said you haven't done anything criminal however there were numerous statements and that interestingly was juxtaposed just a few minutes before in literally a couple of pages before with some of the most direct and accusatory questioning in the case not just questioning but actual accusations there's quite a lot about that into gets to they said for example they hinted at the possibility of a future when they were reading the transcripts i mean it was was clear that the person who was leading this making the statements on the transcripts of messages and what not to mr koski were essentially claiming that he was part of their the deal part of their conspiracy whatever you want to call it and so if you're a police officer you're saying women why are they claiming that you're in on this with them i mean that would seem to be a normal question your honor it's crucial at the outset for me to clarify that we take no issue with any of the legitimate law enforcement purpose for investigating the illegal dispensing before showed up right unquestionably honor he was seeking the help of the police and unquestionably he was seeking the help of the police in solving an extortion the police knew that what they did not just i'm sorry the other day there were two questions when it was in custody it involuntary state that judge samantha found there was no custodial interrogation and reviewing the tape what i saw was a room the door was open and close close most of the time when the police were there but they would leave him there alone with his cell phone he looked rather relaxed almost like one of us might be waiting to go see the dentist or a doctor playing with a cell phone at any point he could have used a cell phone to call your he could have used a cell phone to call and he could have left interrogation the fact that he didn't your honor is precisely our point because on both of those points your honor of course st the custody inquiry is objective it is not what did this individual do how did this individual appear did he seem relaxed to be picked up a cell phone that goes to voluntariness and then your honor the reasonable person standard of course asks what under the seven jacobs factors which way do these things cut as to and here's how we know that there are several indications and to go the judge was struck post point about his not having left let's consider what someone who feels free to leave would have done when left alone in a freezing cold room having to use the bathroom for two hours when the police a probably left without explanation someone who feels free to leave or feel some even see over his circumstances gets up to go looking for them and says what's going on someone who feels free to leave when he tells them the the officer returned to the room after the nd break and said how you do and i mean the st thing he says is if you had any opportunity to get any word thoughts about your dealings with those individuals during this last little bit here you know clearly calculated understatement that emphasizes the coercive impact of the cooling my heels portions of the two hour break and one hour break but when they come back and say to him how you do it and what he says is of dinner it was in the pit the dinner plans of his family it was in the following context the officer said to him you can come back to the pharmacy with us later tonight right to believe david goldhill of his duty so that he can come answer mcallister he says well actually i have five hundred and thirty dinner plans with my family the officers kind of blow by that and say well you know we're going to need to get some documents from you anyway and then when he revisit it at five hundred and thirty when they finally come back after that nd one hour break they simply say to him this is more important now isn't it so the fact that they kept him there notwithstanding those expressions of both the need to leave and what the government repeatedly characterizes as evasions your honor sixteen the video your honor is no he is absolutely projecting that he just doesn't want to be answering questions about his own culpability now the government says  means he can get a lot of company he did a lot of knocking when you would think that at the end of the the nd session an hour and forty five minute session you think he would you know slow down at the end he picked up speed before before they took a break i mean and can volunteer in thanks absolutely your honor but we're making our own subjective assessments of what we think is going on in his head what is not how it always know is he was volunteering a lot of information without i mean he was taking a question and he was circumstances like this your honor this same standard that this court has required and that the police almost routinely as the case law of flex apply when they confront this as soon as someone starts talking about his own culpability your honor the officers mirandize and all were say you were free to be that is all we do not by any means question their ability to investigate this conduct there was a very simple fix here and it was granted and here's the reason that miranda mattered and here's the reason that miranda matters even in the voluntary n'est context because the voluntariness inquiry requires that the witness know and nonetheless agree to make statements that will be used against him when someone comes in and the the government knows that he has come in believing himself to be a victim of an extortion and is there to talk about an extortion and by the way your honour's the extortion was solved he had already given the names of the individuals he had already given their motive told the police that he had cut them off in february explain to the police why given the police the facts that had prompted him to cut them off he told the police about the research he done on social media to identify the person who had made the threat all of this had been done your honour's before he even mocked him to the police station on  june th and it was reiterated in the st non custodial portion of the interview the follow up questions why did they think you're in partnership why in your heart do you think they were doing with all those pills doesn't it seem to you like they thought you were in some sort of business together those questions your honor were on a different topic they were questions on a different crime but the question the problem isn't the questions the problem is was he subject to a custodial interrogation that is what a reasonable person perceive that she or he was free to leave yes your honor and there are two factors that those questions of many on that very was you know for somebody that she had been informant for i guess close to ten years whatever it was or recall and the officer really turned on her  control of your your conduct you are there are undoubted factual distinctions and your honour's pointed to two of them with jacobs but here's a key quote point of correspondence and it is in fact the th of the jacobs factors which this court applies to all sorts of custodial interrogation questions whether the witness understood that the questioning would address his criminal conduct now when the witness does not realize walking into the interview that he's the suspect that he's being questioned about his own conduct he isn't there only as a victim there is a very simple mechanism for ensuring that he is informed of his rights which dispels the inherent coersion that this cour table but miranda itself was predicated on the idea that modern psychological interrogation entails some of that good blood united way toward he would go to the station voluntarily that he not he went to the station voluntarily in the same way ms jacobs did mr swint did in any one of these cases of course he was told he after having made a report i need the help of the police but it cannot be the place of seeking the police's help that they then can ask you about all of your other criminal conduct that was not part of what you went in expectation to be asked and when the witness does not know that he will be questioned about his own criminal conduct that is something inquiry of what was in that but a reasonable person would think at the time of the interrogation and it's also nothing that could shed any light on the subject of question of whether his will was over born during the questioning and the fact that he continues to seek the help of the police simply reflects the fact that he continues to think of himself as a victim and not as a suspect so at that point your honour's it's actually corroborative of  that he is being he lacks the information that is essential both to making a knowing and voluntary waiver of his rights and he having been put in that position it's also a factor that weighs in favor of the that said no one is safe unless you meet our list of demands not your kids your family i saw you pick your sons up one night at the house i know what you've been doing for years i don't want to hurt anyone innocent but i will even without a formal arrest because that requires we're still a it's comparable to those of an arrest now the test is an objective one so what would an objective lee reasonable person believe when he's in that situation he's his uncle an f b i agent has arranged for him to have this interview and he then the police are absolutely treating this extortion threat as a serious crime now they ask him a lot of questions about his relationship with the extort because they need to know before they go out and they make arrests or apply for warrants it looks like in these things they think you're part of the deal you're part of you're part of their group and you've now stopped dealing with them what gives it when you look at the police the jacobs the factors we set out  tactics if you will i mean to try to get him to to fess up to certain things that they suspected he might be doing because remember they had been investigating him three years prior to that he communicated to look good that the discourse would have been solved that's absolutely not the case the police absolutely have to get additional information and and and assure themselves that he wasn't in here he the time at the time on the tape there he's told in no uncertain terms that they've been investigating him since two thousand and the thing looks like a profit they pull a lot of pictures out the star confronted with pictures and it is and then we can have an interrogation of somebody the you know terrified he said at one point when i got this letter it's not the breath of he's in there he needs the police to go out and take after one point they said if you if you want to protect her you better come clean i mean it sounds like well but but they might they might attack this guy going if he gets whacked outside the police station you can imagine there would be a whole lot of bad publicity in the papers that's right and they probably would but what while they have him there and while they're talking to him and at that point they've never said to him you can't leave they haven't even said to him we want him to stay so why not miranda because he's not in custody he's not in custody an objectively reasonable person would not believe that they were in custody because let's look at what they're asking about their asking about dispensing practices that they start this goes back to the key question the judge fisher asked if you were to suggest a  refinement of what we said in jacob's what would that be as to when there is and is not a custodial interrogation well because that's the key question me that's it for us you know this is as talk to you get a special kind of case or you do and for this reason because an extortion victim almost of necessity has something that he's trying to hide and the and the police need to know what that is they need to know th like a religious person based on this letter but it's possible that it's a fake or it's possible that luke house he's trying to get somebody in trouble one of the things one of the things it's important here because of the content of the texts and letters that were part of the extortion the police had to now enter a reasonable person would be in a circumstance where they're under a lot of pressure they're being threatened their families being threatened you know they're concerned about safety so isn't that a factor that is part of the miranda houses both free to leave and voluntariness it is but but but here i think taking a step back and a reasonable an object at least of a person in little koski position is in there talking to the police about a violent extortion that may be targeting his children and they're asking him about some dispensing practices that took place years ago and which everybody seems to agree has now stopped wouldn't object if a reasonable person think that they are not going to be free to leave at that point when you when you marry those two things up he's got to he's got a rhythm just only reasonable person who goes he's position thinks look they're asking me some uncomfortable questions here about something that they knew about ten years ago and they didn't do anything about sound what but an object to a reasonable person thinks i'm going in here i'm reporting a violent extortion that's threatening my children at the end of the day i'm going to be out to get up and walk out of here even though i may have given them some information that down the road may cause problems for me because the question is am i in custody right now can i not get up and walk out of this police station if i want order or the flip for reason rupie person maybe if i get up and walk out of here right now they may not protect me and not only me but my family may be harmed and so him he's come in there as a victim they're treating him as a victim they're tired up on up to up to a point i mean having watched it a lot of their questioning it wasn't it was very clear they didn't pound the table they were very matter of fact and they're going to just doesn't happen just look at this krantz group look what they're saying now this doesn't make sense unless you're part of this and by the way i just i need to tell you full disclosure three years ago we were looking at you and we didn't go after you we went out to other people and we got other people we didn't go after you and now things are being dots are being connected and these are the people look at these pictures but these are people these are the people there are threatening you and you need to come clean with us that's right that's right because because you're asking us to go out there and take action on your behalf and a reason an objective a reasonable person and let me just pull back for a  mathewson said well the reason you can tell is in custody is because he didn't link what she said she's gone back to the subject of considerations that that she like fully powered to me and her reply brief don't apply here what would a reasonably objective person want what would you believe about one issue are they going to let me walk out of here at the end of this i think that when i asked him are they going to say now you're going to have to stay here we're not going to let you leave protect your kids who are potential extortion victims until we get to the bottom of something that we've known about for several years and we just you know that that just is not how  objective a reasonable person would respond to this scenario you're right that he's probably thinking i'm not doing myself any favors here talking about my dispensing practices but that doesn't mean that he would believe that they're not going to let me leave find that the the admission of the challenge portion of the of the statements were harmless and in the challenge portion it and i'm sorry i didn't emphasize this in my brief but but  custody in this case ends before the nd break when detective nack tells little passkey look i'm not going to last you you haven't done anything criminal certainly unobjective a reasonable person in that d it may be closed but he's been allowed to go outside and go to the bathroom and come back on his own accord use this phone just a step or you ask a question about the phone and that's a significant one is a person who's in custody who the police are trying to to to get to incriminate themselves going to be allowed to hold their phone make a phone call that they're not going to monitor him when he's alone in the world during this interview you saw him on the phone using at that time the judge fisher is asking us beyond this case what rubric would you suggest that we put into play in order to distinguish between a custodial and non custodial interrogation i think i think that any opinion you write in this case has to address that rather unique facts here and i'm not sure it's going to have broad application just the way that they're jacobs doesn't really have brought i that we put into play in order for future courts to distinguish between what is a custodial and noncustodial i think in this case you should say that although there are  we identified the factors the courts should consider determining whether a reasonable person would believe they're in custody that those factors don't have the same value in every case and they don't have they don't have the same weight and they'd you have to look at how they relate to each other and so here three things about this case they judge the man to focus on are significant the origins of the investigation and the status of the defendant as a victim and the nature of the crime that's under investigation the explore center all of those things because the origin of the investigation is that there he went to the cops who is uncle red and they coming to him that means that the fact that the that the interview took place in the police station is less significant than it would be if the if the police had summoned him there but when it became clear when the question it became clear in giving him miranda warnings there's no harm in saying you're free to go you're free to go you're free to go the question is where is his constitutional rights are violated by the absence activity when did lead a reasonable person to think you know i started this whole thing now i'm talking about myself i just can't walk away from here so judge fisher again in the jacob because they ambushed her in a sense here little koski could not have been ambushed he must have known and objectively reasonable person would have known it turned over these text messages and this letter that they were going to be questions about what this stuff means one of these what are these cryptic e mails mean what are they were furloughing to what's your relationship any objectively reasonable person would know and anticipate and not be surprised mind where he was laying a lot off of crystal would there became a point where she was interested in the it was clear that the questioning was a going to hand with crystal would wouldn't that be enough was another point that shows that he doesn't feel that he's really in custody as he's controlling this interview to some extent certainly much more than if the police are bearing down on him trying to get him to incriminate himself about something other than what he came in for he spent ten minutes early on in the interview complaining about what a crappy employee krista wood was and what did what did f b i agent say look we got to get back to the extortion  keep function they keep focusing relentlessly including during the challenge period on the explore should they keep going back and said let me read another one of these text messages what does this mean during that challenge period did they go further to doesn't this mean you're part of a group but that doesn't mean that we're going to lock you up because you may have been part of the scheme that just means we understand now what all this explosion is about it relooked store so may really have the goods on you this isn't some fake this is something that you have genuinely a reason to be worried about it so we want scorsone and because we know that and because it took us quite some time to get you to concede that yes i do have a relationship with the people that are sending me this stuff even after he had been handed a hoard that's when they said ok you did the right thing you finally came to us you should have come to us a long time your honest response to the court's invitation mr graves just need a breathtaking suggestion that this court take an object of inquiry designed to protect th amendment rights and customize the application of the test for the reasonable time and again few factors can be whatever you want them to be you add them up you add them up however you want to come out they come out and i've seen this in all kinds of areas of law so maybe maybe they're helpful here  in jacobs thought that they were that was a pretty tough situation for this person but is that it is or there's no further refinement beyond jacobs perhaps your honor if i could explain why i think they do work as your honour's careful opinion in the case reflects the th amendment is what we're really talking about here miranda of course has gotten somewhat more from it we tend to think of it as independent that really what we're talking about is ensuring that somebody has the meaningful opportunity to assert their th amendment rights and so the question is what are the factors that are going to influence their ability to assert their amendment rights and one of the aspects of that of course is the inherent coersion in the custodial interrogation the inherent coercion matters because it's coercion that's going to threaten to override the th amendment so when we start talking about how do we determine whether somebody is in custody what we're really asking is what are the factors that are going to influence this person's ability to know what their rights are and to resist the coersion inherent in the station house interrogation setting in particular so the reason that those factors work is precisely because they are flexible but mr gross's really breathtaking sit suggestion was that there should be more orders but if the idea is that someone who needs police help is subject to improve right or range of questioning about separate criminal conduct of their own there's someone who doesn't need police help that's backwards in terms of the ready th amendment because it's the person who can't leave because they're afraid because their kids are being threatened who already has an impaired ability to say no i'm going to remain silent and the person who is uncle set up the interview is closer not as close of course your honor but closer to miss jacobs than the ordinary person walking in off the street so mr ludwig koski is in this interrogation because his uncle said i'll set you up with my colleagues at the f b i and they will take care of you interesting or your honor what the government doesn't mention is that agent highland one of the f b i agents actually testified that the suppression hearing that he understood that the question on the table at that time because there wasn't fact an open investigation not a three year old or ten year old as mr gross said investigation to mr the because he there was an open investigation and what all of that is known to the police to look like here even if you took all of these statements during these incriminating statements off the table within the next two years they get two people to testify against him who are part of the group with him allegedly we get the assistant the pharmacy to testify against him and i believe that the assistant  guilty and so even if you were to have suppressed all of the statements made on june twenty four isn't there overwhelming evidence against were under chapman versus california constitutional harmless error it is not a question whether he would have been convicted without it the question is can the government demonstrate that the conviction is surely unattributable  closing argument your honor literally said the confession is the foundation of the case now this court said in brownley that when the government relies heavily on a confession it cannot be constitutionally harmless error the court also said in brownlee that when the admission of a confession influences the defense strategy it cannot be harmless or the supreme court said in arizona versus for the ninety there is no evidence like a confession  about the sea meant you're not under arrest st we contend that that's a tactic but regardless even if the court were to say that that statement terminated don't think you have to stay here you want to there is case law and i don't have anything from this circuit at hand but there is case law that says you are free to go there's a seven circuit case on this is far more powerful and in fact required to terminate custody you are not under arrest it's a negative implication and it's a legal concept that a layperson may not understand and so if they had said to him your freedom of even any time that unquestionably would have terminated you were not under does that mean i'm free to leave open the answer would have been yes probably it would have been and you know what your honor we would be here at least as to that question but let me just point out one thing about the record because that question actually comes after the win of the your honor it your honor judge ambers question on the leveraging the fear you know really what we have to remember here is this is unusual because he is being questioned about different conduct not the conduct that he came into  and the example of the other cases including all of the the cases that the government cited is as soon as the defendant starts talking about his own conduct either there are miranda warnings or the questioning is terminated entirely but what's super interesting here your honor is that this winter case is really the only case that either party has cited in which a defendant was questioned about different conduct then he expected to be questioned about this is different even th was kind of trying to have it both ways perhaps cooperating but not wanting to talk about her own conduct that's not what we have here what we have here is closer to swift where somebody goes in thinking he's there to talk about one thing and then is asked about different later conduct of his own and as the court nurse in swindon this court said that there could not be a voluntary waiver of about almost impossible he would not have been asked about his involvement when you look at those the letter and the transcript i mean they beg the question so the officers asked your honor not to solve the extortion again the officers were perfectly welcome to investigate we understand why they did and there are very easy safeguards that they could have employed and they didn't that's