against a wall handcuffed behind his back and then frisked and then seated in the living room and we think that the custody continued when agents thompson and shereen scored and familarity into the bedroom sat him on the bed took two seats facing him and with their backs against the closed door of the bedroom who's obviously i think definitely in custody during that entire  is a good deal a sense and what you're saying our our doctrines in this circuit make it a very hard argument to make if you look at the fox case and like nine people crawling over her house and she was seated at her dining room table and she was interviewed for an hour and a half or more and whether she was free to leave it sounds like it's basically the same case well in this case the all doubt is removed because agent thompson implicitly admitted that he was in custody when at the suppression hearing he was unable to identify any time at which he would have allowed y yes i think it does because i thought it was and i stated well dumps and stated that he believed that familarity was not in custody and i think his admission by not being able to identify on the stand any time at which he could see that family could leave i think that's an open and shut case that he that it really wasn't custody was he handcuffed entire time he ten minutes in living room and then they went to the bedroom and they pre warning there was another ten minutes in which thompson repeated the same things over so during the second ten minutes well the handcuffs were off in the bedroom but i don't i don't think that changes the i'm just trying to pin down this one so when when they removed him from the living room to the  bit that's my understanding you have the cuffs came off but they were sitting in front of a closed door and there was there was somebody guarding the door outside was he told that he was free to leave if we think we will tom a thompson kept saying to him you're not you're not under arrest you're not under arrest but the but the facts are different you know i mean he was forcibly handled he was a sterile and forcibly handled handcuffed and frisked out in the you know in the living room so i think that the fact that he was frantic provide some reason for for  restraining him in some way absolutely other than rather than that being and then to see him of arrest absent restraint for the protection of officers because he was he was frantic where there's two district court's new arrest they were in custody and that's exactly what happened here but in the bedroom i mean he was looking wedged in the bedroom he couldn't move but that's what thompson did though and both of ten minutes instead he took those to periods to inform family that they had a warrant they were there to seize items they were there to clear up matters and they were there to find people  s pre warning accusations i think were the functional equivalent of custodial interrogation because he knew that confronting a suspect with evidence of guilt and as the set you know that he said it the first time he went through that litany of accusations and then in the bedroom again without mirandizing him without even asking many pedigree questions and then when  because the result because there was a vailable subjective and subjective evidence suggesting that thompson employed a two stage interrogation procedure to avoid miranda his subjective attend intent was in fact very relevant to the issue of deliberateness and and the court has is obligated the disc obligated in the words of the capers panel to conduct a quote searching and penetrating inquiry of the officer sest ammonia proffered reasons for delaying miranda warnings and the evidence that that require suppression hearing there were two of them he categorically denied seeing familarity in restraints on cross examination he testified that he could not recall where their family was handcuffed and yet he insisted that he was focused on them at the second suppression hearing he testified he could not be certain whether family that he was handcuffed and then he testified on equivocally that he was not handcuffed thompson's inconsistency goes to show that i mean his his inconsistent testimony and agent sure ronny which was there she unequivocal incredibly testified that families sans were secured behind his back when he was thrust against a wall and for us  which is really logical when you consider the circumstances as you say there was a hysterical some suspect he needed to be restrained in order to do that frisk in order to do that he would have been handcuffed making the accuser tory statements before being before warnings both in the living room and in the bedroom we have continuity of questioning he was the one doing the questioning of both places we had where you get to a two step analysis you have to yes yeah exactly how do you distinguish he did he implicitly ask them to cooperate he said listen we've we've got all the evidence against you we know what you've done and we want you to cooperate so also relevant so from from family levy's perspective he's being told listen we've got all this evidence against you and we want you to cooperate he's got what's he going to say i mean he's i mean the government is all the time getting confessions and admissions from people by confronting them with their guilt and the evidence against them and saying you know all you've got to do is tell the truth and cooperate so i think  implicitly agent thompson by repeating what he did in the living room in the bedroom confronting him with evidence of his guilt and ask him to cooperate had to listen and he he had to have please the court good morning your honor is my name is jessica fender and i represent the united states i also represent the united states a child your honour's just to bring this into focus here everything that has been discussed so far just establishes that familarity he was not in custody but even if he had been there was a valid knowing waiver of mr family's miranda rights and as a result and because there was no two stage deliberate interrogation are focused on what happened before more of the warning or top of that's correct your honor and i think in this case the facts are very clear about what happened i do need to correct a couple of slight mischaracterizations i think of the record simple the agents came into the apartment mr family he was up against a wall special agent thompson testified that he was not clear about whether or not mr family was in handcuffs at that time but special agent ronnie said that she thought he was in a matter of a few minutes one or know on your side but maybe not but the notion that he's in there in a bedroom and there are ten f b i agents around the apartment and he said he feels you know  but even putting that aside the free to leave inquiries not the relevant one for purposes of custody under miranda the question here is whether mr family are frankly a reasonable person and mr family circumstance would feel that they were under for and they've told him nothing and they know he's he's done some pretty terrible things you think he could go a reasonable person would say excuse me but you know i really have the things to do to get up and when perhaps they would not want to leave your honor but that's different about with regard to whether or not they like you and want to stay partner in think you want to stay i think it's often the case your honor the it and i think the court has recognized in the past that when somebody is having a residence search of their premises that they often do want to stay and to make sure sort of what's going on and observe what's happening around th i am not telling you under that he was factually free to leave i am telling your honor that he was specifically instructed that he was not under arrest that he was free to leave that handcuffs had mr family actually tried to leave would have reevaluated his options but that does not again go to the question of whether or not mr family was in custody for purposes of the fifth amendment it's clear in get this case that he was not but even if he was he was given both oral and in writing a miranda warning which he then waved in or written he signed a written waiver of those rights so even if this court was to find that mr kennedy was in custody which the government feels that it's clear and just pressure judge prescott found it was clear that he was not there is still a valid miranda waiver in effect here and so there's there's really no it's valid unless it's it's part of  two step and might be part of a two step if there is a fall and it violated miranda to ask whether he would cooperate in an investigation of  once you're involved in the plot to blow up the statue of liberty you're going to say i don't know what you're talking you know i can say yes i'm happy to cooperate how could you cooperate if you don't know anything that's the tricky part of that question and  and it seems to me that once somebody says yes i will cooperate or i put it to you and once a person says yes i will cooperate in something as specific as and as a plot to prostitute children  produce child pornography they're already conceding that that's something that they do or that they are in that war your honor i respectfully disagree i think that as your honour's own experience and as i think frankly many law enforcement officers would tell you as well it is often the case that people will agree to speak with the law enforcement agents that are asking them questions and then either proceed to lie about their own involvement or to seek to minimize or in some cases of course there's  situations in which law enforcement has the wrong person and they agree to cooperate to tell the truth and to exculpate themselves which may be appropriate in that case the opposing counsel here has cited no case no law whatsoever ask a question and give somebody agree to speak with the agents further that is not an interrogation under the case law of the circuit that's where when what i look to find the exact question that was asked because would you cooperate is one thing when you agreed to speak with those friends or is something else what was it what's the finding as to what the question once was your honor i believe that there were two in the record that there were two times where a special agent thompson basically conveyed the same notion to mr family during and before his questioning in one situation prior to entering the bedroom mr familarity was basically told you know we just want to clear some matters up i think was the precise thing which i'm not sure but something like that would you agree to speak with us and he said ok that was the earlier part of the interaction between the two later in the bedroom mr familarity was advised in more detail mr special agent thompson showed him the search warrant talked to him as your honor has suggested about sort of the nature of the investigation and then he was asked i think it was something along the lines of you know we're here to try to find people who are forcibly raping kids is that something that you can help us with and mr family indicated that he would speak further we're here to find people who were forcibly raping kids can you help us use up a question and was that your honor at the precise thing which i'm not sure i know i know that mr i and i'm certainly happy to check the record briefly and try to get that for you just you can just type tell me where to find  because you're getting very close to my example blowing up the statute but your honor can you help us better honor again and if somebody has no information about the statue of liberty bombing attempt then they also can answer that question say yes i can help you i have nothing to do with that and you're looking in the wrong place you're spending your resources and an inopportune time when you should be catching the bomber simply answering yes or no is not an interrogation and i think the rhode island case makes that clear that something specifically designed to elicit an incriminating response doesn't have to be a question it can be actions but it has to be something that an officer can reasonably first see will elicit an incriminating response that's not what happened here and the answer  question excuse me of whether someone will speak to you further agrees to speak with you further i don't know thank you question was somewhat more subtle response  yes your honor i'm certainly happy to try to address it better perhaps your honor could retrieve the question or restate it for me then there are questions eliciting information about something to which they answer yes i can help implies that you know about a thing and if you know about it that's criminal your honor i in other words it's incriminating just to admit that you know something about and can help and cooperate with respect to an investigation that is specifically described because it means that you when you wouldn't know anything about it unless you were involved in your honor i don't i do not think that there is any fact or circumstance or any case law that's been cited for that proposition but separate and apart and again we're asking what is an incriminating question what's this put into evidence what was that question and answer put into evidence a trial your honor it was in the direct testimony of special agent thompson and he described the circumstances of mr family's statement  as i say here today i can't tell you precisely how that question answer came in but it was something along the lines of as i suggested to your honor that there was an initial questioning period in the pit before mr family was brought into the bedroom that the question was something like can you help we would like to clear some matters up mr family he agreed which is i think frankly the statement that the posing council has largely pointed to as the if you will genesis of the two step into your opinion criminalizing about being willing to clear  when he'd be willing to cooperate your honor he was asked initially and again special agent thompson's testimony is not exactly precise i think the formulation does change what's the finding i mean a lot of testimony yes is mixed up that's why it's so your honor on the in the record on pages appendix page one eighty two and one hundred three judge prescott states that she credited special agents thompson testimony to the effect that while in the bedroom mr family had calmed down that he showed mr family the search warrant was told again that he was not under arrest they told mr family that he wanted to ask some questions relating to child pornography and that the agent's goal was to find people who were forcibly raping children and filming them and that maybe mr family would help the judge then credited the testimony to the effect that mr kennedy agreed to help the agents and then they asked pedigree questions and then mr family was then mirandized which again is in contr of course your honor it's again at pages one eighty two and one hundred three of the i believe it's the second appendix going to on appeal but as the the government posited i believe was found by judge prescott there's no issue with statements like that in fact the idea that you've asked for cooperation honour's based on all the subjective and object of evidence that has been discussed in the briefs and here today we don't believe the government has or can or can demonstrate of evidence that thomson did not engage in a two step procedure to avoid the miranda warnings and the court did not conduct the intense  inquiry to verify that the court just accepted agent thompson's testimony as credible regard despite the inconsistent seasons testimony and based on that denied th suppression motion so i think the court really clearly erred by not conducting the appropriate in korea that this court has a done a fight in these situations there was plenty of evidence to suggest the two step procedure and she was taken on submission that's the last case on calendar