verandah eyes and told he had a right to remain silent a right he then unequivocally invoked in a court filing subsequent to that he had a telephone conversation with his daughter a conversation he knew the government was monitoring m government was right over her shoulder listening to everything said when his daughter accused him of knowingly smuggling drugs he didn't dispute the accusation instead he exclaimed his daughter's name and they both moved on to other topics of conversation now those facts make this case more or less identical to what happened in franklin when his court found doyle are adopting the lower court's decision the only distinction in government drawn between these two cases is that in franklin after the defendant's daughter made this accusation he pointed to a sign that said communications may be monitored so he responded inaudibly instead of audibly saying communications may be is the feller holding against them what they didn't say that it is their right to remain silent even though they were told they do have the right to remain silent and in many of these adoptive admission and doyle cases the defendant doesn't literally stay silent in fact in doorless self the defendant didn't actually stay silent when he was questioned by police he made some comments but he never gave an explanation for his seemingly criminal conduct  yes there was a discussion pretrial about the issue and in the course of a century said it would reserve on the issue and then before it came up at trial if he said it was in the civil so necessarily he must have thought he bought the government's argument  it doesn't matter you are ok so we're interested in whether you made a finding and you may not be but i think we would like to know whether he made fun of the end that may affect our view of the case question of adoptive admission to the jury and was that the proper thing to do and he just put that you're on either and we didn't explain so he could give decided he was leaving the question to the jury to potential for a three problems there are i agree we didn't raise those objections but absolutely especially at when you do it in light of the fact that closing the government argued not only did was the statement  a confession of his daughter so his own daughter knew he was guilty which of course made the comment all the more powerful and all the more prejudicial which is why of course the government admitted below that the effect on the jury would be  powerful with this admission so the government's i think fall back argument is that this is harmless but i don't think that can possibly be because the government presented this as a full confession at closing we know from the supreme court's decision in arizona before monday that the erroneous admission of full confessions are of their bullying not harmless in fact that's why again the prosecutor called this powerful evidence of guilt well the prosecutor said obviously the call is strong evidence of your client's yacht's and its impact on the jury will be powerful absolutely so they can't argue it was harmless now that was there as many words that i find this is an adoptive admission when you look at supplemental excerpts of record ninety five to one zero nine that is the hearing before the morning of trial that's where the parties were discussing this  most discussion was about doyle but our position would be the only reasonable inference in his records that the court also found it to be an adopted emission because that was the theory that the government squarely put before it and that was the theory that the  defense squarely objected not particularly point to supplemental excerpt of record one of the two the prosecutor at the bottom of the page says the government's position as he says cynthia because he wants her to stop talking because he knows admitting facts that go to his knowledge of the crime he's attempting to frustrate her admissions and thereby adopting them cynthia that is true but they're recording this and that actually goes to the top of this you all one of three now i sure would  adopted let's say you look at the context and you say well you could argue that maybe the jury ought to make the decision would you run before zero three problems  giving it to the jury because overwhelmingly prejudicial because it's essentially an admission of guilt that's how you look like she should that you're on i would say and i know just wardlaw brought this up that's exactly what the district court house to do what the law says is that under one of four be the district court in this is it gill fifty eight after or to fourteen nineteen initially the district court need only find that sufficient foundational facts have been introduced for the jury reasonably did clear that the defendant did actually hear understand and exceed to the statement that's basically three requirements there was never any dispute here that the defendant heard it and then he understood it and then yes there is about the response but all of the authorities that i'm aware of in fact i know we cited more brief weinstein's federal evidence has a section titled ambiguous response here's a direct quote when a party's response to a statement is less than clear the meaning of the response usually creates a question for the trial fact now was forced for three concerns not only were they never that objections never interposed below if there's one thing i want to leave the court with you know if it seems like this was al sort of one sided unfair evidence or ruling that is entirely not the case the defense was able to actively oppose the inference that we sought not only did they call superior to the stand they had to testify oh that was just my you that's not what he meant i didn't know anything about the car i have no knowledge of the facts so they were able to counter it that way in addition they were able to a deuce one of their own cause it was from may of tw the defendant had no problem saying my lawyers are fighting this case i'm innocent and they argued in closing that you know it is ambiguous and therefore you should consider our take on it so in the end i mean the way i read is the transcript of the hearing it was all about do oil and about allowing in a statement that was made after miranda rights and those were the cases the court was discussing and so i mean i personally from these things for me i don't think doyle really applies i think that the real question is whether this was an adoptive admission and that and it really that parties both of their briefing which the district court said that it read talk to first about the adopted admissions that's the not constitutional issue and then they had the loyal second the briefs talked about yes ok so and then you know when the prosecutor says it again it's a simple little excerpt the record one of two and then realize two is just i think this was the morning of trial this was only a motion to exclude was only raised like three days before i think the government's had its response the day before but again it were an abus discretion or view i think it's a fair reading from the record it's not like the words adoptive admission never came up at that hearing or that they were never briefed in fact the opposite of both of those propositions a sound ok so  statement the tone the circumstances it's a reasonable reading that he's basically saying cynthia don't talk about that that's bad for my case that's at least one plausible reading and that is that we go to the jury or the judge it goes to the judge for a preliminary determination but then it goes to the jury again i cited appeal case earlier this is a short quote fifty eight f thirty fourteen twenty just report is not supposed to weigh the evidence and decide whether the foundational showing is strong or weak  when you think about this it's almost like the situation ubiquitous an american experience a teenager his parents meet his boyfriend or girlfriend for the first time in the parent start talking about something embarrassing that happened you know something that they they don't want to hear about the well it wasn't the only evidence we had your honor it was enough to bring it into court and as i pointed out earlier the defense wasn't you know a silent bystander here they actively were able to oppose this they called the daughter to the stand they introduced other call not the strongest argument i'm just covering my bases i think i understand they asked for a jury not i can't deny that but you know it wasn't the only evidence his driver seen and that's a thing that troubles me about some of these cases it wasn't the only evidence i mean  i mean you know he probably could have gotten convicted without the tape well you know hindsight's always clear you are having stronger in twelve years when i remember when i was we had so many cases that were eleven to one people didn't want to deliberate they watch c s i too much of the government doesn't have the unit you know this was something that we thought had value it just has to satisfy the relevance we put it before the court both parties were able to argue equally satisfy the roles of evidence and that's and that's the judge's job right correct and you know you here you look again it's an abuse of discretion standard jewel says that you only need to you know to find that they actually heard understood and exceeded two of those three isn't a case where the defendant said boy i'm guilty i knew there were drugs this was almost gold for them they could say well ladies and gentlemen the jury the government just relies on this one word well let me go over the evidence with you which is exactly what they did stand she told you that he was just holding her even though he signed a pro forma invocation of rights you had no problem having sixty six phone calls with his daughter no problem talking about this case whatsoever i mean doyle i know my  feel are coming from the panel again this isn't something that we snuck you know that we were the only party that had evidence about they called the daughter she testified at length they do stick contrary recording they said our client has no trouble east's weinstein a very respected treatise went to parties response is less than clear the meaning usually creates a question for the trier of fact sears published case six sixty three f second at nine o four nine o five the panel of this court that said quote there's conflicting evidence and quote it was still proper to go to the jury all i can say is those are the cases those are the ones i've cited this was not an unfair trial parties were able to litigate fairly almost  just three points your honor first the plenary question the point the government's missing is this court has never said that as long as a statement is in big u s you can go to the jury for them to decide whether to doctor the mission and every single case the government cites the plenary question is and i'll quote from sears one of the cases the government has mentioned before admitting a statement as admission by acquiescence the district court must determine as a plumber a question of whether another circumstance an innocent defendant would normally be induced to respond the point in all these cases it's a question of not whether you can interpret the defendant's statement in some way consistent with an adoption the question is always would you expect a defendant to dispute the accusation that's true even in cases in which the accusation instead the court always asked itself the plenary question would you expect an innocent defendant to dispute that accusation and that's a standard where we want the court to apply here in that the standard the district court never applied  answer may be then it's in admissible because the the government bears the burden to prove the statement is admissible and here the answer isn't maybe because of the fact that mr marino attorney told him not to discuss the case then he won and because if he can't came after miranda and i also think this practically speaking you put defendants in possible position if anything they said in the presence of an accusation could be used against them unless they express fully and unequivocally dispute the accusation if the defendant is in with his cellmate in the so may ask him are you guilty of this offense unless you find the right magical combination of words the government could always argue that while that statement was ambiguous and so the celly statement should come against the defendant and the government refer to this statement as quote gold for the defense what's that's not the case with the government able to do here was was allow the jury to hear that