Legal Case Summary

Mr. Shapiro, would you please to hear from you? Yes sir. Thank you. Jonathan Shapiro for the... In the case, Faisal Kashimi. It's a pleasure to be here. There are two issues before the court. I want to spend the majority of my time on the Miranda issue. The second issue, I'm going to take my cue from the court. And that has to do with the issue we raise about the Ath amendment claimant proportionality. As the court is probably aware, we filed a motion... We don't get to that unless we get really right way for you on the Miranda one. Yes sir. Against you on the Miranda one. That's correct. And so I'll say my brief comments for that at the end if the court is even inclined to hear it. I recognize the... That's fine. That makes sense to me. You're in control. You're arguing on the list. All right. Then getting to Miranda, I think the issue is very straightforward and the law is well settled. There's no issue that this young man was being interrogated. One prong of Miranda. There's no issue that he did not get his Miranda warnings, the second prong. The sole issue is by objectives... I don't mean to cut you off, but I... There's something that concerned me. Just as a preliminary matter. It was a guilty plea to receipt in possession here. Yes sir. Which carried a five year mandatory minimum sentence. The receipt that's correct. That's right. Okay. And the prosecution here charged production and distribution. And we had a bench trial on that

. That's correct. And that resulted in a 15 year mandatory minimum. And this is sort of reading between the lines of what Judge Grincoma said. In your opinion, was this case overcharged? Not talking about proportionality, but I'm talking about a prosecution doesn't need to charge everything. I'm not saying that they might conceivably prove we kind of surprised to see the production and distribution counts. Well, I'm sorry to say that based on my long experience in this jurisdiction, it didn't really surprise me at all. And I'm sure the courts are aware there's been great. They didn't need to charge it. They didn't need to charge it at all. And we played to those. You would have had a five year exposing him to 30 years. I believe under the guidelines actually. And Judge Grincoma. But you had a five year mandatory minimum under the receipt and possession charge. Under the receipt. And Judge Grincoma says, I don't like this sentence that I'm giving out at all. I think it's wrong. Judge Grincoma is not bashful at all. It's expressing her view that the government in situations like this is usurping the power of judiciary. She made that very clear. But is these these sorts of cases where it's clear, you know, you have a younger, rather younger individual and they go for production and distribution under this. And the thing that's. I don't want to be dramatic, but I would use the word shocking is that the conduct in my view was at the margins of what the criminality is under the. It's not admirable. I mean, no, no, by no means. It's a bad conduct. The question I had. Is whether this need to be charged you prosecute has discretion for a reason. That's right. And you just you don't you don't just charge everything up to the hill. The court's going to start me on a rant, but you're also aware of what you use case all along. I'm sorry, sir. You in this case all the way through. Yes, sir. Okay. You've had it since the beginning. Yes. Okay. I wasn't this plead down. I think it was if they were going to charge to production and distribution. Probably the case plead down. It's to a five year mandatory minimum on receipt and possession and. Just dispense with the bench trial wouldn't it wouldn't. If it was going to be charged this way, wouldn't it plead down? Well, we we pled call it a naked plea. No plea agreement on five. There's no. No plea agreement memorial

. That's right. Did you hold out for or a charge concession on the production distribution? My partner was lead counsel. He's sitting here today and that question probably the best address to Miss Kayn who handled the prosecution start to finish his well. But the government was insistent on going forward. You made a no naked plea because you couldn't make a deal. That's what I usually that's how it comes about. That's right. You couldn't get a deal with it. It gets you think better. Well, it's right. You just played straight up. Right. It was our hope that Judge Brinkham would show her distaste for what the government is doing. She had some sympathy for you. She didn't did. But the prosecutors have the vast discretion. They do and we all know what the attorney general is trying to do these days, at least in the realm of drug to drug offenses that doesn't cross over into child pornography. Well, always escaped from these offenses. He was 18 and 19. He turned 20 on the day before his trial. He turned 21 yesterday or today. He has a risky move to the end of the plea of guilt. And how to take it that had the actual trial that became evidence that he ended up with guilty. Well, indeed. And I mean, the judge, it was his name, Judge. You took the plea who handed the trial. I don't know what you got out of that going to trial. I don't know what you got out of plea and guilty. Well, the hope was to be able to go in and admit something and take away part of the case when the government. Yeah. Reality comes to bear when lawyers make decisions and that the receipt and possession charge was very difficult to defend. And the hope was that the government would, despite. But they had to prove it. They had to prove it. They had to prove it. You got to start from square one. That's right. I see Judge Wilkinson's phone right in terms of how these things are done. I was a military judge for a long time. I saw a lot of these cases. And I never saw one get a sentence on this level. Typically, it happens that you've got someone out on the ship, young person. He doesn't want to go for boarding out in the town. So he's that playing with his little computer. And he gets these kinds of things and then he rises on the set of a computer. And then the whole he has charges of possession, receipt, distribution. Plenty of years is facing

. And it's Wilkinson's right. Typically, that's not something you would exact the amount of penalties that you could get mandatory sentences here. But given the posture of the where you are. To rely on a judge to overcome the prosecutor's discretion. I'm trying to understand the value of that strategy because you said you're about to go on a rant. But that won't help you if you don't tie this into a legal argument. I understand. So I guess you were trying to go there with the amendment or you're trying to do some type of proportionality review. And you recognize something that is not easy. In fact, that is over not existing in cases like this. Even with the juvenile type cases coming up, we're having difficulty. And this guy's not a juvenile. I've been so so so I think that the bottom line is what are we going to do is if we we empathize or something. What's going to happen? Nothing. Well, I mean, what can we do? Of course, got a remedy and I realize that we haven't read. I think what's the remedy? Well, what do you aim in that for the remedy? Well, there's two. The issue that would be a partial brand issue. Soon you lose on the Miranda issue. Then what's the remedy? The remedy is for the court to engage in a proportionality analysis and say that in this case, why can't we engage in a proportionality in that? Well, I hope you'll decide that you can't think our precedent against you. I do. You do think it's against you. And you're basing that on the most recent cases or what? There's been a base in that position on. Judge, there's been a stream of cases from the fourth circle. There's been a stream of cases. Yes. And I had one of my law clerks go back and study them. And the language of them has changed. It has. It's changed. And it's gotten more pro government. That's correct. There's least three of a series of them. And if you go back to the beginning, our precedent is exactly the same as everybody else's. Well, that's right. And more of the controls. What controls the most recent one or the earliest one? Well, you know, I don't. Well, I'll tell you, the earliest one does. If there's an in bank case in this court, MacMellan, are you familiar with that? I am not. MacMellan versus United States. 2004, written by our now chief judge, Judge Tracksman. Where there is an irreconcilable conflict between opinions issued by three judge panels of this court, the first case to decide the issue is the one that must be followed, unless an intel it is overruled by this court, sitting in bank or by the Supreme Court. Now, that's in bank. Now, if that's the law, then what is the law of the four circuit on proportionality reviewed in this situation? Well, the law would then be as expressed by just this Kennedy in the Harmony Opinion. There's this three-step analysis, and that's what we engaged in in our brief, which we stand by. The first..

. Was the judge break on my apply that? No. She said she couldn't. She said she fell down. She said she couldn't do it. You know, the difficulty here is that even where the circuits or even where courts admit some kind of proportionality review, it would be a very, very difficult thing to apply in this situation. Courts have rejected proportionality review in far more sympathetic situations than here. I mean, I have some sympathy for the question about reason, about the way in which this was charged, and why I wouldn't play it down, and a whole lot else. But you do have somebody who is soliciting 13-year-old girls and warning them or 13-year-old boys, I guess, and warning them to take pictures of themselves and is inducing those sorts of pictures by trading a picture of a tracy who's nude, and then once he gets the pictures, he distributes some... Not widely, but he did. He did. He did. So it's... These are 13-year-old boys, and you can imagine how mortified they or their families might feel when they've learned, and also you... With social media these days, the ability to humiliate a young child is enormously magnified. So, do I have sympathy for your fight, yes, up to a point? My sympathy extends to not getting a 15-year sentence, but a five-year sentence. He did something that the Congress has repeatedly said was quite wrong. I don't know, it was just a threshold concern about the way in which the case was charged. It was charged, but proportionality reviewed the problem I have with it is, I don't understand what the limiting principle is. Let me up till with what the church said in terms of the 13-year-olds who are now pornography, child pornography, in many instances, it may be somewhere overseas, and the actual so-called victims may be, at this may have been 40 years ago, and that's the old child pornography. So even though it's victim-tied in terms of what it does, that those cases are treated in the same way, and yet this one makes it... When you look at a proportionality review, you've got to consider these kids are still here. I have a number of people who might want to go to your custom and custom, after my review. I do, and I don't know where I stand Tim. I don't give you a little bit extra time, but we've taken up your time with something you may not have wanted to talk to us about. Well, I did, but I have just a few things to say about it. You went all the way to the same and I'll move on to Miranda. I mean, I feel pretty good about it, probably so far. I know I would have felt good sitting on this side of the courtroom in the last case. But the... It is true, and the courts have said over and over again, that it's exceedingly rare that a court's going to find a sentence unconstitutional as being cruel and unusual because of proportionality. I don't question that at all. But there are unique facts about this case, and we tried to point them out. Judge Brinkham made it very clear that this, although chronologically, 19-year-old boy, he was socially immature. She said that a number of times in different contexts. I think that has to play into the calculus in some way. The.

.. I said before that the conduct was on the margins of the criminality. It was a crime and it was bad, and as you say, it's conceivable that it'll live on forever. We've seen that. I can tell you that the United States Attorney's Office could prosecute child pornography cases day in and day out without putting a dent in it. It is so rampant. But the people who are getting prosecuted and getting those major sentences, which they should, are not these 19-year-old kids. And we presented some statistics from the Sentencing Commission. The average age of someone sentenced for production of child pornography is 42 years old. This is on the far extreme. And you've got a young guy who is going to go off to prison for 15 years. And as I said, perhaps a little too dramatically in my brief. He's ending up with a sentence that Congress never anticipated he would get, because he's going to be locked away in a largely sequenced case. And he's going to be a separate society where God knows what's going to happen to him. And when he gets out, he's going to be quite a different person. And not in ways that we hope that rehabilitation will work. The court in Roper and Graham and Miller, the. Eighth Amendment cases dealing with juveniles make the point that makes number points. But one is that a sentence like that for a young person is vastly worse than a similar sentence for a 42-year-old man. If we were to rule, if we just argue and. If we're to find some merit in the custody argument. Yes, sir. What happens on reminion? Well, it's a new ball game. All I can say, I. There will be an effect on the case. I don't know what will happen. Perhaps the United States will take to heart what you've said here and maybe change its view about what they ought to do. I would hope so. There will be more straightforward. A wave and trying to engage in proportionality. Well, if the United States. Exercise that discretion that would solve everybody's problem. Let me talk about. Give you some leverage. That's all. Yes, as in your position as a defense law, you're all going to give you a little bit leverage. Yes, let me talk briefly about the Miranda issue, which I think is a real good issue as well. You know, we're talking about custody. That's the only prong on Miranda that's an issue here. Was he in custody? And of course, the test is what a reasonable person conclude that his freedom of action was curcaled to a degree associated with formal arrest. Do we review that for clear error? Yes, sir. How do we get around that? It was clear. Here's what happened and judge Brinkham has said. If it wasn't for that tape recording, you'd win your case, which I take to mean that when she heard all the facts, you know, up to, you know, the interaction between the two agents in that basement room with this 19 year old kid that they showed her that he was in custody. Now we're. And I can reel them off. There were a bunch

. What do you do with judge Brinkham's comments on the tone of the discussion? Yes. That they were that the discussion was a chatty and informal and he was the defendant was told he was not under arrest and he was told he can leave it any time. He was at home. The door to the interview room was open. They weren't any handcuffs. They weren't any restraints. He said you can go upstairs and leave whenever given those facts was just an informal chatty thing in which the defendant's free to leave at any time. Is that cussed is that custodial? Well, there's several things I would say about that. First, what happened in that room downstairs is not an isolation. It's got to be judged by the objective facts and everything that occurred before, which are in my view astounding and lengthy and all on the our side of the ledger. I can go through and I want to briefly, but about what judge Brinkham has said concerning that conversation and the chatty nature of it and that he seemed so relaxed and the police were polite. None of that matters. In our view, we've been reluctant to find custody in a home environment. Well, it's true. I think the court has said that that is not talismanic. Nor is it talismanic that someone's told you're not under arrest and you're free to go. Those are factors that have to be included. But look what happened to him before he even got to that room. And then I do want to address your question about Judge Brinkham's comments. Here's what happened. This house was invaded by 20 to 30 agents. Why the house was invaded by 20 to 30 agents is a question I've got in my mind in a, you know, go in to seize the computer kind of case in a middle class neighborhood. So right off the bat, you know, I asked myself what's going on there. They had a battering ram at the ready, although they didn't use it. They pounded at the door. People inside heard the commotion. The door was answered. The police said they were using a command voice. Then agents stream through the house with guns drawn collecting people. All right. Not saying would, would you step outside? No, they were taken. The testimony is the mother was taken by the arm led downstairs. The shimmy is confronted in his bedroom naked in bed at gunpoint told to get up, raise his hands, taken by the arm and told to wait in the front yard with his parents. I just told stay there. They're out there. We're not on. We don't have before us a fourth amendment claim about the execution of the warrant. No, sir. The question is not a fourth amendment one. It's a question of whether those circumstances would give rise to a custodial situation. Exactly. And that's a fair point. Yes. Everybody was in custody at that point. Everybody was in custody at that point. And that doesn't end. It's really just the beginning because at that point, once the house was cleared and I don't fall to police for doing this

. I mean, they're allowed to. But the question is, what is the, what would a reasonable person conclude from this and the other fact? They are then directed back into the house. Not told. She would you like to come in and sit down and, you know, have tea with us and discuss this? No, they're taken into the living room. They're sat down while agents are still streaming. What do you do with the fact that he was told he's free to leave at any time? And he says, no, no, no, no, I don't, I don't need to leave. I don't need to take the break. I'm happy to cooperate and talk to you. That all happens downstairs. Once he is led downstairs by the police who don't say, gee, you know, we'd like to talk to you. Is there a place where we could sit where you'd be comfortable? That's not in the record. What's in the record is he was taken downstairs by an officer in front of him and an officer behind him and put into the room of their shoes. There's not a want to see him. Sorry, sir. His mother want to see him. She did. And what happened there? She was not allowed to see him. So, and by the way, he's in his boxers shorts for a good portion of this. They eventually give him clothes. Why didn't they let his mother see him? I probably have to ask this. He's not even a lawyer. And maybe she is. I don't know. We say you have a right to a lawyer, but you don't have a right to your mother. Apparently not. In any event. When he needs to use the bathroom. He is taken to the bathroom. An agent stands with him inside the bathroom. This is all happening before he gets to that room. And that's why I think that all this context is important in evaluating and what goes on in that room down there. They give him clothes as I was about to say, but no socks and shoes, which I find interesting. So, I think it says that any incriminatory statements were harmless era. Well, they do. We disagree. When you have the computer evidence of the distribution of the photographic pictures. And so, you know, there's. All the Facebook or what have you. The. The custodial statements really matter and light of the physical evidence that those. The 13 year old boys. Of having pictures of themselves and the nude isn't. I mean, is the custodial. Statements kind of peripheral. Well, that's an excellent question. And our answer. I think the

. At the state of the record now, the police got into those computers because the defendant gave them the passwords. So it's poisonous fruit. Yes, sir. When you've led guilty to the possession, do you reserve the right to appeal the issue of custody on mine? What happened to the plea was interesting and that. First, the government did its best to put all the facts. In its factual recitation to support the base for the plea. All the facts of the upcoming manufacturing trial. In recited them for the judge. Council, my partners that have said, hey, wait a second. We're having a trial on these next week. You know, this sounds like they're opening statement for next week. We're here to plead to these two charges only. Judge bring this. I understand. I understand. And then advise the defendant as well that. He was free to appeal the suppression issue. Now, there was no written plea agreement about waving rights to appeal or anything like that. But that is the advice that he got from Judge Brickman. That was not a conditional plea. But it wasn't it was not a conditional maybe he didn't have right to appeal. All I know is what the judge said. She could be wrong. Maybe what if she was wrong? That doesn't give a jurisdiction as far as she's wrong. Does that undermine the plea? No. Well, I think it undermined the plea. I don't want to even go there. But I'm like Judge Wynn. I'm not sure what you got out of this. I was out of this plea. It wasn't a conditional plea and you didn't get the reduction in distribution charges dismissed. I just wonder. I will tell you frankly, this is a strategic decision of the defense lawyers. I guess. But I don't want to stand what you got. What we got is we got the hope that the government would come to a consensus. Well, you told us for many getting it wasn't done that way in this particular prosecutor business. I said they kind of go after these things. I have a fighting faith in the ability of even prosecutors to change judgment. That didn't work. That business of the trial judge saying to you, you still can't appeal the suppression. The issue comes up of you and oh, if we went with him that, does that do? I mean the guilty pleas taking care of two. I can see the argument one way or the other in terms of the vice is given to the defendant of the time being made. But it's a strange case. It is. When we think about the outcome of this case. Maybe the only thing you have right to appeal is the proportionality review issue

. We have a right to appeal. You have a right to appeal the suppression because it came in a trial in the bitch trial. Yes, certainly. That's why you're feeling it. That's. Yeah. You're feeling it from the trial. That's that's correct. That gets around your conditional plea point. Yes. All right. You don't need the conditional plea. You don't need to. No, we went to trial. I couldn't figure out why you gave up that conditional. I'm not sure where I am. Time was. Is there anything I need? Yeah, but you know, I could just have a minute to. You know, I can't see those lights. These I can either read light on. Mr. Coleman. Mr. Coleman kindly turned it off. What. The stop are beyond is turned off. One one last thing, you know, and I'll sit down because you raised the issue of Judge Francomann's comments. I have great respect for Judge Brayden. I think she just got it completely wrong. She applied the wrong test. That all those sorts of things about, you know, what must have been going through the defendant's mind and how chatty and cooperative he was are addressed to the issue of voluntaryness, totally separate. In this case where we're talking about custody, the test is absolutely objective, not subjective, not what he thought. But the facts that would impress a reasonable person in his position and we've got it all in our brief and I just rest on that. All right. Thank you. It was a pleasure. Yeah. We thank you so much, Mr. Shapiro. And Mr. Greenspin's going to have some rebuttal time. Ms. Tain, we need to hear from your side of it. That's your honor. Good morning. May please the court. My name is Maureen Kane and I represent the United States

. This court should affirm the district court's order denying the defendant's motion to suppress statements for several reasons. Now contrary to the defendant's arguments, the district court made numerous factual findings that do go directly to the custody issue and not just to the voluntaryness issue. The district court specifically stated on the record that the state and us are about the time. He's been on a lot of time with the other side on this business of proportionality. The question of the manner of the posthumousness please was given question of why it went for fall this is. I mean, I understand that maybe it doesn't go too much to the heart of the issue. But nonetheless, it was discussed a lot. And it seems like maybe you ought to say something. Absolutely. It's fine. Absolutely. So it is important to note that this defendant is an online sexual predator and a sexual predator in person. We have recorded statements from this defendant that he sexually abused five children. He was in direct contact with ages eight through 15. That didn't satisfy him. He then took his activities online to groom little boys that he found on the internet after trolling the internet. And he would engage these young boys into conversation, pretending to be this young, attractive female. He spent weeks, months, and even years with minor B enticing him and persuading them to engage in sexually explicit conduct so that he could obtain child pornography. After obtaining this child pornography, he turned around and he distributed the images of minor A and minor G to others on the internet. So he spent years at the time of this. He was how old? So he was charged for conduct from when he was 18 and 19 years old. His youngest victim was 13 years old. And the trial record shows that the youngest victim told him I'm kind of embarrassed. I haven't even hit puberty yet. So the years, I'm trying to understand years that you're talking to him. He spent years, are you talking about since he was 18 or years started back before he was 18? So for what he was convicted of, it was 18 to 19 years old, the way we charged the indictment. With the image and stuff about the things going on, I'm trying to see if that's before they got. Correct. And so then for one of our victims, minor B, he started that conduct when the defendant was 17 years old and continued to talk to minor B for a number of years. And it took years for minor B. So this was juvenile conduct. Some of the relevant conduct that came in at trial was juvenile conduct as to minor B and minor B only. Minor A and minor G. Minor B, the juvenile conduct goes back to 17. Normally it was to go back before that. From what I recall with trial, it only went to 17. He may have been engaged in this even earlier. I don't recall. I don't recall. Oh, oh, correct. For our evidence. For someone after him on. Correct. And it's just back to 17. Correct. And the defense did not. And so when he played guilty, that exposed him to 10 years. He's played guilty to two counts. Correct. He played guilty to possession and receipt of trial for minor B. Which gave him exposure to up to 30 years. Then he had up to 30 years. Okay. So he could have gotten 30 years for that. Correct. And then you, after that, that wasn't enough for you though. Correct. You wanted to trial. You went to trial to get him convicted on the offense that had the 15 year mandatory minimum. Correct, Your Honor. Because you wouldn't trust a court. To give him enough time, even though the court had up to 30 years leeway, you wanted to 15 year mandatory minimum and you could only get that not going to court. And I respectfully disagree with that statement, Your Honor. The Department of Justice that we didn't trust. Correct. Factual recitation. That we didn't trust the district court. The Department of Justice has a policy. Well, if the, if the, if the, if 30 years, there's a lot of time for a 19 year old kid, even in the circumstances that you have described, I don't argue with any of the facts. We accept that. He played guilty to it. But the, but 30 years is a lot of leeway. And there are a lot of real bad people out there that got in less than 30 years in the court system this country, even in the East or District of Virginia. But you went to trial in the exercise of prosecutorial discretion to get the 15 year minimum. We went to trial with our prosecutorial discretion. We have a policy that if we indict on counts, we need to get the trial. We have a lot of policies. The government's got a lot of policies. I stood in your shoes for a long time. And I know all about government policies. But in the bottom line though, is somebody somewhere along the line using some common sense. That's the exercise of prosecutorial discretion. You went to trial here to get the 15 year mandatory minimum. That's what you got out of the trial. Isn't that correct? We got that out of the trial. You got that out of the trial. And you didn't have that from the guilty, please. Correct. OK. What did you have from the guilty, please? You had how much in terms of mandatory minimum and how much in terms of the statutory maximum? So for receipt of child pornography, it's a mandatory minimum of five years incarceration and a maximum of 20. And then for possession of child pornography, there is no mandatory minimum and the maximum is 10 years. And so you had a mandatory minimum of five on the receipt and possession counts. Just on the receipt. On just receipt

. He's played guilty to two counts. Correct. He played guilty to possession and receipt of trial for minor B. Which gave him exposure to up to 30 years. Then he had up to 30 years. Okay. So he could have gotten 30 years for that. Correct. And then you, after that, that wasn't enough for you though. Correct. You wanted to trial. You went to trial to get him convicted on the offense that had the 15 year mandatory minimum. Correct, Your Honor. Because you wouldn't trust a court. To give him enough time, even though the court had up to 30 years leeway, you wanted to 15 year mandatory minimum and you could only get that not going to court. And I respectfully disagree with that statement, Your Honor. The Department of Justice that we didn't trust. Correct. Factual recitation. That we didn't trust the district court. The Department of Justice has a policy. Well, if the, if the, if the, if 30 years, there's a lot of time for a 19 year old kid, even in the circumstances that you have described, I don't argue with any of the facts. We accept that. He played guilty to it. But the, but 30 years is a lot of leeway. And there are a lot of real bad people out there that got in less than 30 years in the court system this country, even in the East or District of Virginia. But you went to trial in the exercise of prosecutorial discretion to get the 15 year minimum. We went to trial with our prosecutorial discretion. We have a policy that if we indict on counts, we need to get the trial. We have a lot of policies. The government's got a lot of policies. I stood in your shoes for a long time. And I know all about government policies. But in the bottom line though, is somebody somewhere along the line using some common sense. That's the exercise of prosecutorial discretion. You went to trial here to get the 15 year mandatory minimum. That's what you got out of the trial. Isn't that correct? We got that out of the trial. You got that out of the trial. And you didn't have that from the guilty, please. Correct. OK. What did you have from the guilty, please? You had how much in terms of mandatory minimum and how much in terms of the statutory maximum? So for receipt of child pornography, it's a mandatory minimum of five years incarceration and a maximum of 20. And then for possession of child pornography, there is no mandatory minimum and the maximum is 10 years. And so you had a mandatory minimum of five on the receipt and possession counts. Just on the receipt. On just receipt. But you had a mandatory minimum of five and a statutory maximum of 30. If the district court chose to stack, the case of the last 30 years. You would have any counts of receipt and possession. One count of receipt, one count of possession. All right. So if the district court wanted to stack, you had minimum of five and a maximum of 30. Correct. I did want to not that I disagree with my fine colleagues comment, but I didn't want to understand what the Department of Justice policy was. So Department Justice policy states that if you indict a case, you are to go forward on the most readily provable serious, the most readily provable and serious offense. And our production of child pornography was our most readily provable case. All we had to do to prove that case was to introduce all of the email evidence that came from the T.M. But you weren't obligated to do that. I mean, sure, you have a Department of Justice policy, but isn't there some discretion on the part of an AUSA to not to charge everything? I mean, these cases vary in their facts. Wouldn't the 19 year old age of this individual might that not weigh in his favor? I mean, you're not obligated. Are you to push on? So AUSA has had their discretion, but of course, we have our supervisors and we have people above them that shape what we do. Yeah, but I mean, the policy is a policy, but it's not frozen. It's not locked step. It doesn't exist to the exclusion of saying, hey, we can prove the production in distribution, but we've already got five years, and we might argue for more. And this is a 19 year old kid. And you'd have discretion there not to push it. Arguably, yes, but I have supervisors and people hire up from me that shape what the line prosecutors do. I understand, but you could, you know, you could, they're not judgements as, I mean, some common sense ought to, you know, enter in somewhere. I mean, I think you can sense we are uneasy about this. And the uneasiness is not that this individual is blameless. What this individual did was terrible, but his life's gonna be ruined. Very substantially impaired with a five year sentence in whatever else he got. It's very difficult to come back and get a job. And make a go of life. And he's in for 30 years, of 15 years, you know, his chances of really doing very well in life, about over. Is this hard to recoup? Now that, in my view, doesn't argue for proportionality review because what he did and because of our precedence and because courts across the country have rejected proportionality review in cases that are far more sympathetic than this one. Because it's very, it's very difficult to have a proportionality framework or to understand what the limiting principles are other than the judges don't like the sentence. So that's not the way to go, but I'm still uneasy. I don't like it. What happened here. So, judge of prank him it didn't like what happened. As far as I can see. So, in the event you lose on your custody point, and I'm not saying you will, what's gonna happen? So, if we were to lose on the custody points, I argue that there is harmless error. I know, we're supposed to lose on harm. And that I lose on harm is error. Then the case would have to go back down and the production and distribution charges would remain outstanding and we would have to go back to trial on those cases. And then we'd have to go back to sentencing. You go back to trial on what? The production and distribution counts. And then, I mean, we just have to make a decision as to how you want to proceed on. Correct. I mean, my supervisors would dictate how we're gonna go forward. So, you don't make any decisions

. But you had a mandatory minimum of five and a statutory maximum of 30. If the district court chose to stack, the case of the last 30 years. You would have any counts of receipt and possession. One count of receipt, one count of possession. All right. So if the district court wanted to stack, you had minimum of five and a maximum of 30. Correct. I did want to not that I disagree with my fine colleagues comment, but I didn't want to understand what the Department of Justice policy was. So Department Justice policy states that if you indict a case, you are to go forward on the most readily provable serious, the most readily provable and serious offense. And our production of child pornography was our most readily provable case. All we had to do to prove that case was to introduce all of the email evidence that came from the T.M. But you weren't obligated to do that. I mean, sure, you have a Department of Justice policy, but isn't there some discretion on the part of an AUSA to not to charge everything? I mean, these cases vary in their facts. Wouldn't the 19 year old age of this individual might that not weigh in his favor? I mean, you're not obligated. Are you to push on? So AUSA has had their discretion, but of course, we have our supervisors and we have people above them that shape what we do. Yeah, but I mean, the policy is a policy, but it's not frozen. It's not locked step. It doesn't exist to the exclusion of saying, hey, we can prove the production in distribution, but we've already got five years, and we might argue for more. And this is a 19 year old kid. And you'd have discretion there not to push it. Arguably, yes, but I have supervisors and people hire up from me that shape what the line prosecutors do. I understand, but you could, you know, you could, they're not judgements as, I mean, some common sense ought to, you know, enter in somewhere. I mean, I think you can sense we are uneasy about this. And the uneasiness is not that this individual is blameless. What this individual did was terrible, but his life's gonna be ruined. Very substantially impaired with a five year sentence in whatever else he got. It's very difficult to come back and get a job. And make a go of life. And he's in for 30 years, of 15 years, you know, his chances of really doing very well in life, about over. Is this hard to recoup? Now that, in my view, doesn't argue for proportionality review because what he did and because of our precedence and because courts across the country have rejected proportionality review in cases that are far more sympathetic than this one. Because it's very, it's very difficult to have a proportionality framework or to understand what the limiting principles are other than the judges don't like the sentence. So that's not the way to go, but I'm still uneasy. I don't like it. What happened here. So, judge of prank him it didn't like what happened. As far as I can see. So, in the event you lose on your custody point, and I'm not saying you will, what's gonna happen? So, if we were to lose on the custody points, I argue that there is harmless error. I know, we're supposed to lose on harm. And that I lose on harm is error. Then the case would have to go back down and the production and distribution charges would remain outstanding and we would have to go back to trial on those cases. And then we'd have to go back to sentencing. You go back to trial on what? The production and distribution counts. And then, I mean, we just have to make a decision as to how you want to proceed on. Correct. I mean, my supervisors would dictate how we're gonna go forward. So, you don't make any decisions. Are you telling us now you don't really make any decisions? These... No, I do make plenty of decisions. I don't want to be supervised. No, I do... And are these supervisors? I want to ask... A follow-up on that question. Are these supervisors, in this case? Are they in Washington, D.C.? Or are they in Alexandria? Both. Well, somebody makes the final call. Is that the United States Attorney sitting in Alexandria? Yes. For purposes... He makes the final call. For purposes of this case. For purposes of this case, it was the United States Attorney in Alexandria. Yes. All right. And there's... You say we're going back to trial. There's gonna be some discussion about that. Well, of course there'd be discussion, but that is the posture that we would then be in. In the case, we're about... The only question is that you could go back to trial. Correct. The question that you know, you're not... I'm not getting it. Correct. You could negotiate a plea. Correct. However... Or try to negotiate a plea

. Are you telling us now you don't really make any decisions? These... No, I do make plenty of decisions. I don't want to be supervised. No, I do... And are these supervisors? I want to ask... A follow-up on that question. Are these supervisors, in this case? Are they in Washington, D.C.? Or are they in Alexandria? Both. Well, somebody makes the final call. Is that the United States Attorney sitting in Alexandria? Yes. For purposes... He makes the final call. For purposes of this case. For purposes of this case, it was the United States Attorney in Alexandria. Yes. All right. And there's... You say we're going back to trial. There's gonna be some discussion about that. Well, of course there'd be discussion, but that is the posture that we would then be in. In the case, we're about... The only question is that you could go back to trial. Correct. The question that you know, you're not... I'm not getting it. Correct. You could negotiate a plea. Correct. However... Or try to negotiate a plea. Correct. But... Based... 98... 9% of the cases you've all prosecuted end up in, please. Things like the ones come through here. I mean, we... There are numerous pleas, you're right. Hardly anybody goes to trial. Anyone who works there, please, guilty. You're correct. There are many, many pleas out there. It is important to note that one... This isn't a kid. This is a man who is able to vote. He's able to join our military. He's able to get married. He displayed tremendous psychological manipulation and sophistication by targeting these kids online. And as I said before, minor say and minor G are now floating around on the Internet with their faces exposed, engaging, and sexually explicit conduct, because they thought that they were talking to a young, attractive girl who is romantically interested in that. And Judge Brinkamad, despite the statements that she made about the mandatory minimum at trial, she said the evidence of enticement is overwhelming. And she said that you couldn't come up with a better case of enticement. You go back to the facts. And so... And as I said before, we've been judged, we'll continue. It says, we don't disagree with you on any of that. We just don't. I was wondering how that ended up. It's horrible conduct. It's horrible conduct. The question is, you know, when you get 15 year mandatory minimum and then something, then whatever. You know, it's just... This was not a homicide. It didn't, as far as I've been, you ever come into physical contact with any of these children? Not with the three boys online, but he sexually abused the five, ranging in age from eight to 15

. Correct. But... Based... 98... 9% of the cases you've all prosecuted end up in, please. Things like the ones come through here. I mean, we... There are numerous pleas, you're right. Hardly anybody goes to trial. Anyone who works there, please, guilty. You're correct. There are many, many pleas out there. It is important to note that one... This isn't a kid. This is a man who is able to vote. He's able to join our military. He's able to get married. He displayed tremendous psychological manipulation and sophistication by targeting these kids online. And as I said before, minor say and minor G are now floating around on the Internet with their faces exposed, engaging, and sexually explicit conduct, because they thought that they were talking to a young, attractive girl who is romantically interested in that. And Judge Brinkamad, despite the statements that she made about the mandatory minimum at trial, she said the evidence of enticement is overwhelming. And she said that you couldn't come up with a better case of enticement. You go back to the facts. And so... And as I said before, we've been judged, we'll continue. It says, we don't disagree with you on any of that. We just don't. I was wondering how that ended up. It's horrible conduct. It's horrible conduct. The question is, you know, when you get 15 year mandatory minimum and then something, then whatever. You know, it's just... This was not a homicide. It didn't, as far as I've been, you ever come into physical contact with any of these children? Not with the three boys online, but he sexually abused the five, ranging in age from eight to 15. And that's incredibly problematic. He was a juvenile. Both. As a juvenile and as an adult. And he admits to this on the tape recording. All five kids, he admits to it. And then in the doctor's report, Dr. Madison's report that was also submitted. He talks about some of the... Well, we moved to notice it as relevant conduct. And Judge Brinkham, I thought it would be too prejudicial. So she said, it wouldn't come in. You know, so often things in law come down to a matter of degree. And a matter of balance. And... You would... You try to balance your disgust. I'm usually wearing a visibly for the solicitation and the prolonged solicitation. And that occurred here with the question of whether you can sort of place a light beyond redemption. And it's... It's difficult for me because I feel torn about it. And I recognize it under the law. It's not my job, the sentence. I don't think it's my job to engage in a freewheeling proportionality review. But really, not happy. Tell us about the custody issue and why you think this was not custodial. With respect to the custody issue, the undisputed evidence shows that in the evidence that you have to be in the light most favorable to the government to the extent that any of this was not on the tape. It shows that the defendant was told multiple times that he was free to go and he is not under arrest. On the tape, you hear the agents repeatedly telling the defendant, you can answer some questions or you don't have to answer questions. It's completely up to you. And... You can leave whenever you want to leave. There's some feels that way. But, I mean, isn't there such thing as the circumstances and so of a bearing that your words might be meaningless? You've got 20 officers who storm into this house, which is incredible in and of itself. But I mean, what time of day was it? So it was at 9 a.m. and the defendant's father

. And that's incredibly problematic. He was a juvenile. Both. As a juvenile and as an adult. And he admits to this on the tape recording. All five kids, he admits to it. And then in the doctor's report, Dr. Madison's report that was also submitted. He talks about some of the... Well, we moved to notice it as relevant conduct. And Judge Brinkham, I thought it would be too prejudicial. So she said, it wouldn't come in. You know, so often things in law come down to a matter of degree. And a matter of balance. And... You would... You try to balance your disgust. I'm usually wearing a visibly for the solicitation and the prolonged solicitation. And that occurred here with the question of whether you can sort of place a light beyond redemption. And it's... It's difficult for me because I feel torn about it. And I recognize it under the law. It's not my job, the sentence. I don't think it's my job to engage in a freewheeling proportionality review. But really, not happy. Tell us about the custody issue and why you think this was not custodial. With respect to the custody issue, the undisputed evidence shows that in the evidence that you have to be in the light most favorable to the government to the extent that any of this was not on the tape. It shows that the defendant was told multiple times that he was free to go and he is not under arrest. On the tape, you hear the agents repeatedly telling the defendant, you can answer some questions or you don't have to answer questions. It's completely up to you. And... You can leave whenever you want to leave. There's some feels that way. But, I mean, isn't there such thing as the circumstances and so of a bearing that your words might be meaningless? You've got 20 officers who storm into this house, which is incredible in and of itself. But I mean, what time of day was it? So it was at 9 a.m. and the defendant's father... It was a weekday. They were waiting for the youngest boy to go to school. I don't remember what time. This is a family who's in the house. You have the father who has a federal drug conviction for conspiracy. They're not coming for his federal drug. Is that the reason they storm in because... No, but they knew about that going into the house. I was in it. Just tell me father, mother. There was an aunt. There's the defendant. And then there's a younger brother. Don't have information. There are a lot of guns and bombs or anything in there. Going into the house, they did not have specific information on guns and bombs. However, Hargrove allows for law enforcement to go in, do their protective sweep, and have guns drawn. I don't think we have a question of... I don't think we have a fourth amendment question before us. It's not a question of how the warrant was executed because you can get into some very difficult situations trying to prescribe a police what they can and can't do in a situation where they might well anticipate danger. That is before. The question is not whether the manner of execution violated the fourth amendment, but the question is whether it created a degree of justice. The degree of coercion and such that an individual would feel themselves in custody. And when you have the family pulled out on the lawn and you have 20 to 30 agents and you have... The family members taken into different rooms and you have the 19-year-old brought down to the basement for a conversation. And the boy's mother is unable to reach him. And when he goes to the restroom, he has... he is accompanied by an officer. The question then, particularly with somebody 19 years old, is whether you could have taken the... or rather routine step of reading Miranda warnings. You might have gotten the same statements that you got anywhere. But why would that be such an exceptional burden upon law enforcement in situations like this where you have a SWAP team of 20 to 30 people? And you have the suspect in a situation where he is not with his family. Why would it be an impossible burden on law enforcement to ask them to read Miranda warnings? So, law enforcement did not view him in custody. And in fact, Detective Craig Paul repeatedly stated during the suppression hearing he was not under arrest and had the defendant got up and left. Detective Craig Paul would let him leave

... It was a weekday. They were waiting for the youngest boy to go to school. I don't remember what time. This is a family who's in the house. You have the father who has a federal drug conviction for conspiracy. They're not coming for his federal drug. Is that the reason they storm in because... No, but they knew about that going into the house. I was in it. Just tell me father, mother. There was an aunt. There's the defendant. And then there's a younger brother. Don't have information. There are a lot of guns and bombs or anything in there. Going into the house, they did not have specific information on guns and bombs. However, Hargrove allows for law enforcement to go in, do their protective sweep, and have guns drawn. I don't think we have a question of... I don't think we have a fourth amendment question before us. It's not a question of how the warrant was executed because you can get into some very difficult situations trying to prescribe a police what they can and can't do in a situation where they might well anticipate danger. That is before. The question is not whether the manner of execution violated the fourth amendment, but the question is whether it created a degree of justice. The degree of coercion and such that an individual would feel themselves in custody. And when you have the family pulled out on the lawn and you have 20 to 30 agents and you have... The family members taken into different rooms and you have the 19-year-old brought down to the basement for a conversation. And the boy's mother is unable to reach him. And when he goes to the restroom, he has... he is accompanied by an officer. The question then, particularly with somebody 19 years old, is whether you could have taken the... or rather routine step of reading Miranda warnings. You might have gotten the same statements that you got anywhere. But why would that be such an exceptional burden upon law enforcement in situations like this where you have a SWAP team of 20 to 30 people? And you have the suspect in a situation where he is not with his family. Why would it be an impossible burden on law enforcement to ask them to read Miranda warnings? So, law enforcement did not view him in custody. And in fact, Detective Craig Paul repeatedly stated during the suppression hearing he was not under arrest and had the defendant got up and left. Detective Craig Paul would let him leave. So if he's not in custody, then law enforcement didn't believe we need to read him Miranda writes up front. And with respect to this protective sweep, you're absolutely correct. They're not challenging for amendment issues. But Hargrove talks about the custody issue in light of a protective sweep with agents armed storming a house in Hargrove states that just because that happens during the protective sweep time period, does that then turn the interview automatically into a custodial situation? They recognize. One of the things is driving this situation is that this defendant is 19 years old. And to me, that's very different from somebody who's 45. Well, the defense makes a number of arguments about him being 19 years old. It's important to note he graduated. He finished his first year of college who was working part time at the time of his arrest. The district court specifically found on the record, this is an intelligent man. And when you look at his actions, the psychological manipulation to get these boys to do what he wanted to do, it's clear he is an intelligent person who knows what he's doing to get what he wants. And furthermore, you know, Judge Brinkham, I noted on the record, oh, he's 19 and he's immature. But I think we need to be careful about how we interpret he's immature. I mean, there are 40-year-old men who play video games on these high-tech play stations and online. And I could say, well, geez, that's immature. But that doesn't then make them have lessened culpability for the criminal conduct that they engaged in under the eighth amendments. I think the non-pregid issue effect that you say even if you did without the statements, there was enough evidence to do that. So the government's production and distribution evidence all lied in the emails from the T. Campbell 2011 Gmail accounts. And we introduced over 500 exhibits at trial, most of which were those emails. And Miners A, B and G authenticated their end of the email conversations. And then at trial Peter Greenspun, Mr. Greenspun stipulated that the emails between Miners A and Miner G are from his client, the defendant. And so with that stipulation, there is no question that the defendant was the user of that email account and engaging in the enticement and the persuasion conduct and receiving the images of child pornography and distributing them. You might not be stipulating it the next time around. That's probably correct, Your Honor. But with that now, the defense argues in their reply brief, oh, that doesn't matter. We are planning on appealing this case all along, but the defense has a duty to preserve the record. And they did not preserve the record on that point, allowing the United States to argue harmless error. Moreover, the defense during the plea hearing admitted that yes, I use the T. Campbell 2011 Gmail account to receive these images of child pornography from Miners A, B and G. Again, further tying this defendant as the user behind that account, which made up all of our production and distribution evidence. So it's the emails and the emails alone that make up our case plus the stipulations as to who was on both ends of those emails. Sounds like we've given everybody a lot of extra time. And we appreciate not only Mr. Shapiro's argument, we very much appreciate your argument. Thank you so much. And let us hear now from Mr. Green's fine and rebuttal. Good morning, Mayor. Please the court. And we do appreciate the opportunity for the extra time and argument here. And I suspect from the inquiry of the court to Mr. Shapiro, particularly, that I may be on the hot seat. So I'm certainly happy to answer any questions the court has as to how this proceeded. Mr. Hashimi when he came to us was charged with a 15 year mandatory minimum of five year mandatory minimum

. So if he's not in custody, then law enforcement didn't believe we need to read him Miranda writes up front. And with respect to this protective sweep, you're absolutely correct. They're not challenging for amendment issues. But Hargrove talks about the custody issue in light of a protective sweep with agents armed storming a house in Hargrove states that just because that happens during the protective sweep time period, does that then turn the interview automatically into a custodial situation? They recognize. One of the things is driving this situation is that this defendant is 19 years old. And to me, that's very different from somebody who's 45. Well, the defense makes a number of arguments about him being 19 years old. It's important to note he graduated. He finished his first year of college who was working part time at the time of his arrest. The district court specifically found on the record, this is an intelligent man. And when you look at his actions, the psychological manipulation to get these boys to do what he wanted to do, it's clear he is an intelligent person who knows what he's doing to get what he wants. And furthermore, you know, Judge Brinkham, I noted on the record, oh, he's 19 and he's immature. But I think we need to be careful about how we interpret he's immature. I mean, there are 40-year-old men who play video games on these high-tech play stations and online. And I could say, well, geez, that's immature. But that doesn't then make them have lessened culpability for the criminal conduct that they engaged in under the eighth amendments. I think the non-pregid issue effect that you say even if you did without the statements, there was enough evidence to do that. So the government's production and distribution evidence all lied in the emails from the T. Campbell 2011 Gmail accounts. And we introduced over 500 exhibits at trial, most of which were those emails. And Miners A, B and G authenticated their end of the email conversations. And then at trial Peter Greenspun, Mr. Greenspun stipulated that the emails between Miners A and Miner G are from his client, the defendant. And so with that stipulation, there is no question that the defendant was the user of that email account and engaging in the enticement and the persuasion conduct and receiving the images of child pornography and distributing them. You might not be stipulating it the next time around. That's probably correct, Your Honor. But with that now, the defense argues in their reply brief, oh, that doesn't matter. We are planning on appealing this case all along, but the defense has a duty to preserve the record. And they did not preserve the record on that point, allowing the United States to argue harmless error. Moreover, the defense during the plea hearing admitted that yes, I use the T. Campbell 2011 Gmail account to receive these images of child pornography from Miners A, B and G. Again, further tying this defendant as the user behind that account, which made up all of our production and distribution evidence. So it's the emails and the emails alone that make up our case plus the stipulations as to who was on both ends of those emails. Sounds like we've given everybody a lot of extra time. And we appreciate not only Mr. Shapiro's argument, we very much appreciate your argument. Thank you so much. And let us hear now from Mr. Green's fine and rebuttal. Good morning, Mayor. Please the court. And we do appreciate the opportunity for the extra time and argument here. And I suspect from the inquiry of the court to Mr. Shapiro, particularly, that I may be on the hot seat. So I'm certainly happy to answer any questions the court has as to how this proceeded. Mr. Hashimi when he came to us was charged with a 15 year mandatory minimum of five year mandatory minimum. And we as you might expect tried to negotiate with the government to get rid of the 15 year mandatory minimum. I think we could be charged much more. There really wasn't much more they sort of threw the child pornography book at him. And for each one of those distributions is a separate charge or a lump together. But there there were multiple it could have been more, but they could all be run my question is that could they have charged each one of those. Theoretically and then they but they could all be run. Each one is a separate distribution. Theoretically as to what the government exists. Sentences. That that's right. And then that would have been a sentencing issue because those could be run concurrently as far as that mandatory sentence on that is concerned. The but here's the situation if I could address the some of the Miranda points and then talk about the plea process and I know that I'm on a short leash time wise. You don't have a whole lot of time. Yes, sir. The on the Miranda issue. The you know the facts about the entry into the house and all of that. The police never told Phasal Hashimi who's a big kid, but he's a sort of a baby, he is well, he's great big heavy overweight immature and manner and so on. He was not a great student. He went to community college took a couple of courses and worked at Best Buy and the police did not tell him that his mother wanted to talk to him. The police were directing this all around as you've heard, but here's some of the some of the highlights of what went on down there in the basement. He was told that while the agent was going upstairs that he would have to leave someone there to watch him because he couldn't leave him alone. That's the officer's testimony. He was told. Did you do the joke break him up credit that she heard all that. It was that was from the officer. Yes, that's right. He was told I don't care if you don't want to answer, but I need to know the truth. So that can mean I don't care if you don't want to answer. You're going to answer my questions. That's essentially a command manner by the police. They wanted as she me to stay in the basement. Here's what really happened. The government suggests that maybe didn't have to say in the basement. The agent says the officer says, I will go up see what's going on. Then come back down and talk to you and let you know what's going on. Are you cool with going up and sitting with your parents right now? She me says I don't want you or he says I don't want you writing this statement in front of your parents unless you want to. I can't leave you here with nobody here. I can grab another agent. The government points to claim evidence that has she me could do as he pleased. That's subject to interpretation. But it has nothing to do with signing a consent form or anything about the emails. He is told he can do what he wants, but that's with regard to the written the consent to have access to the computers. That's not with regard to whether or not he was in custody at all. And judge Brinkham a credit sort of the tone of all that, but the analysis stops when they start questioning him. It's at the point that they start questioning him, not the two hours of questioning, which we assert drives the custody Miranda issue. As far as the facts of the case are concerned, there's been some liberty taken. We would suggest by the government as far as that's concerned

. And we as you might expect tried to negotiate with the government to get rid of the 15 year mandatory minimum. I think we could be charged much more. There really wasn't much more they sort of threw the child pornography book at him. And for each one of those distributions is a separate charge or a lump together. But there there were multiple it could have been more, but they could all be run my question is that could they have charged each one of those. Theoretically and then they but they could all be run. Each one is a separate distribution. Theoretically as to what the government exists. Sentences. That that's right. And then that would have been a sentencing issue because those could be run concurrently as far as that mandatory sentence on that is concerned. The but here's the situation if I could address the some of the Miranda points and then talk about the plea process and I know that I'm on a short leash time wise. You don't have a whole lot of time. Yes, sir. The on the Miranda issue. The you know the facts about the entry into the house and all of that. The police never told Phasal Hashimi who's a big kid, but he's a sort of a baby, he is well, he's great big heavy overweight immature and manner and so on. He was not a great student. He went to community college took a couple of courses and worked at Best Buy and the police did not tell him that his mother wanted to talk to him. The police were directing this all around as you've heard, but here's some of the some of the highlights of what went on down there in the basement. He was told that while the agent was going upstairs that he would have to leave someone there to watch him because he couldn't leave him alone. That's the officer's testimony. He was told. Did you do the joke break him up credit that she heard all that. It was that was from the officer. Yes, that's right. He was told I don't care if you don't want to answer, but I need to know the truth. So that can mean I don't care if you don't want to answer. You're going to answer my questions. That's essentially a command manner by the police. They wanted as she me to stay in the basement. Here's what really happened. The government suggests that maybe didn't have to say in the basement. The agent says the officer says, I will go up see what's going on. Then come back down and talk to you and let you know what's going on. Are you cool with going up and sitting with your parents right now? She me says I don't want you or he says I don't want you writing this statement in front of your parents unless you want to. I can't leave you here with nobody here. I can grab another agent. The government points to claim evidence that has she me could do as he pleased. That's subject to interpretation. But it has nothing to do with signing a consent form or anything about the emails. He is told he can do what he wants, but that's with regard to the written the consent to have access to the computers. That's not with regard to whether or not he was in custody at all. And judge Brinkham a credit sort of the tone of all that, but the analysis stops when they start questioning him. It's at the point that they start questioning him, not the two hours of questioning, which we assert drives the custody Miranda issue. As far as the facts of the case are concerned, there's been some liberty taken. We would suggest by the government as far as that's concerned. There's a suggestion which Ms. came brought up over and over again to judge Brinkham about the statement, including suggestions that there had been some hands on physical contact. The government doesn't tell you that the CPS investigation shop protective services all came back unfounded as far as that is concerned. There's no prosecution, state or federal. As far as any of that is concerned. So the government tries to paint phasal as far as that's concerned. The custody, sorry, not the custody, is far as the references to him being a man, not the kid, the court made evaluations in that regard. But the government made statements. Sorry, the court made of finding as to what this is. If I get anything across in this brief time, this is not a solicitation type of a case where somebody's on the computer trying to find kids to meet up with the McDonald's to take into a car and to do terrible things to these kids. They were 14, 15, 13, 15 and 15, I believe at the time of this sexting. Judge Brinkham have called it sexting. She said this is sexting. They were hardly coerced in a literal sense to do anything. These kids found, Hashimi, Hashimi found these kids on websites that were to for this kind of conduct. It's not that he's going out to a to a high school yearbook and finding names and finding them on Facebook or something of that nature. This is the sending back and forth of pictures with no solicitation to try to meet up at McDonald's later or to get together. There was very little sexual talk. Some of the boys in question were more sexual in their chat than Hashimi was. So that all goes to then the sentencing and the proportionality evaluation of the case because this is not someone who's out there. Somebody wanted to get pictures. It's not somebody out there who's trying to solicit for physical sexual abuse. I'm not congratulating Mr. Hashimi obviously for this conduct. So we tried to work this case out as a five year minimum mandatory and if Judge Brinkham have felt that she should give them seven or eight years and she could do what she felt under those circumstances. The government said and they can't get around that the court used the same words that they were effectively not trusting her to do the right thing. They had up to 30 years at that point. So when you get down to the strategy if you will, we did not prevail on the suppression motion. And I believe that in light of that or I think the records clear I shouldn't say I believe to the court, but the record is clear from all the statements that were made and encouraged the court to read all these comments by the back and forth with the court. The record that the best posture of this case is we were going to lose on the receipt and possession type charges, but the sexting charge the production charge was certainly arguable. But given the statements that were admitted that it was arguable much more favorably to a judge than to a jury. If the statements aren't admitted, then the sexting case likely goes to trial in front of a jury. So there is no way that it's harmless or because there was consideration as to what was the best way tactically, strategically to try the case given the circumstances as they existed at that point. And so it's anything but harmless or the government. Miss Cain told the judge about DOJ policies told me about the DOJ policies on and on and on again. If the court wants, I will within by Monday provide a pleading which identifies cases where the United States, where the US Attorney's Office and the Eastern District of Virginia time and time again pleads down cases despite the policy in case. And that policy is long question given the recent comments by attorney. The policy is the policy is a guideline is not the region. It is not rigid and I've had line. The attorney general himself is criticizing mandatory minimums. Yes, sir. And I've had, you know, you go to supervisors or the line prosecutors go to supervisors and that's a term of negotiation. If I was saying let him plead to possession, no mandatory minimum, it would be a different story. But the offer was to plead to a five year mandatory minimum for a 19 year old. And this conduct went back into baseless shimmy's mid teenage years. They the government knew that the forensics computer forensics show that we want to thank you, sir, unless my colleagues have some additional questions. Thank you

. Thank you very much. And what we'd like to do is a adjourn court come down and agree to each of you