[00:00:00] Speaker 01:
Good morning.

[00:00:01] Speaker 01:
May it please the court, counsel?

[00:00:03] Speaker 01:
My name is Jason Holden, and I represent the defendant appellant, Alexander Davis, if I may reserve two minutes for rebuttal.

[00:00:10] Speaker 01:
The appeal waiver in Mr. Davis's plea agreement does not prevent this court from considering the heart of Mr. Davis's appeal, which is the violation of his Fifth Amendment right against self-incrimination by the district court at sentencing.

[00:00:25] Speaker 01:
The Fifth Amendment protected Mr. Davis during his psychological examination to determine his competency.

[00:00:33] Speaker 01:
It protected his admissions and it protected his statements.

[00:00:37] Speaker 01:
The Fifth Amendment is the very purpose for federal rule of criminal procedure, rule 12.2 sub c sub 4.

[00:00:45] Speaker 01:
And that rule is plain and unambiguous.

[00:00:48] Speaker 01:
And it provides that none of the statements Mr. Davis provides during the course and scope of his psychological examination can be- So, counsel, a violation of that rule would not be grounds for you to be here.

[00:01:01] Speaker 01:
No, Your Honor, I disagree.

[00:01:03] Speaker 01:
That rule is the very purpose of that rule in 19.

[00:01:07] Speaker 03:
You can argue that it derives from the Fifth Amendment, but it has to be an independent Fifth Amendment grounds, or you don't have any standing to be here.

[00:01:14] Speaker 03:
You've waived this.

[00:01:15] Speaker 01:
Well, Estelle is the Fifth Amendment grounds.

[00:01:17] Speaker 01:
In Estelle, the government acknowledged that the Fifth Amendment applies to sentencing.

[00:01:23] Speaker 01:
And what's very important about Estelle, Your Honor, is that the court recognized that the very purpose of a statement

[00:01:30] Speaker 01:
during a psychological examination cannot be then transferred for a greater purpose.

[00:01:37] Speaker 01:
That's the issue of voluntariness under the Fifth Amendment in Estelle.

[00:01:40] Speaker 01:
So in that case, the defendant gave a statement for purposes of a psychological examination, and then the government, actually the judge, tried to use that statement for a broader purpose, for purposes of sentencing.

[00:01:53] Speaker 03:
So counsel, when your client requested the psychological examination, what did he think was going to happen with it?

[00:01:58] Speaker 01:
Well, a couple of things, Judge.

[00:02:01] Speaker 01:
It was requested for purposes of competency.

[00:02:05] Speaker 01:
And that's what's very critical about.

[00:02:08] Speaker 03:
But he knew that it would go to the government, right?

[00:02:10] Speaker 03:
And he knew that it would go to the court.

[00:02:12] Speaker 01:
Yes, the rules provide for that.

[00:02:13] Speaker 01:
But there's a difference between providing it to the government and providing it to the court and use, Your Honor.

[00:02:18] Speaker 01:
And that is exactly what Estelle provides.

[00:02:20] Speaker 01:
And that is also why the text of Rule 12.2 is not just based on the Fifth Amendment, but also incorporates Estelle.

[00:02:27] Speaker 01:
Do you have any case that directly supports the point that you're making today?

[00:02:32] Speaker 01:
It's not controlling.

[00:02:33] Speaker 01:
But in Carcyon is the case out of New York.

[00:02:37] Speaker 03:
And are there cases opposed?

[00:02:40] Speaker 01:
Say that, Your Honor?

[00:02:41] Speaker 03:
Do you have cases in which courts have held just exactly the opposite?

[00:02:45] Speaker 01:
Yes, the Sixth Circuit in Graham Wright is what the district court relied upon, but the Sixth Circuit got it wrong, and I'll tell you why.

[00:02:51] Speaker 01:
The Sixth Circuit does not understand what Estelle really says.

[00:02:56] Speaker 01:
The Sixth Circuit talks about Estelle in the sense that

[00:02:59] Speaker 01:
It is only a death penalty case.

[00:03:02] Speaker 01:
That's not what Estelle is all about.

[00:03:04] Speaker 01:
Estelle is about the fact that you give a statement, which as you've recognized, Mr. Davis gave a statement for purposes of his competency, but then that statement cannot be then transformed into a broader purpose.

[00:03:17] Speaker 01:
That is the very heart of the involuntary nature of the statement.

[00:03:20] Speaker 04:
Why doesn't it matter that in Estelle, the defendant didn't want the evaluation, but here he did?

[00:03:25] Speaker 01:
Well, I think rule 12.2 sub c sub 4 speaks to that, Your Honor.

[00:03:29] Speaker 01:
The rule literally says, with or without the defendant's consent.

[00:03:33] Speaker 01:
But it goes to voluntariness, Your Honor.

[00:03:35] Speaker 01:
I can have the purpose to give you a statement to determine my competency.

[00:03:41] Speaker 01:
It's a very neutral, very minor issue.

[00:03:44] Speaker 01:
I am not giving you permission, then, to use that against me for all purposes at sentencing.

[00:03:50] Speaker 04:
Well, as Judge Bybee has pointed out, you need a constitutional hook.

[00:03:53] Speaker 01:
you keep pointing to Estelle but again Estelle was a compelled evaluation that was used and that's not the case here no that's not what Estelle is about Estelle is not just about a compelled examination when you take a look at Estelle what's very critical is that

[00:04:09] Speaker 01:
the statement was it was not a compelled examination for purposes of the competency what was the problem in Estelle is that he gave a statement for purposes of competency and then the doctor at the time of sentencing i.e.

[00:04:25] Speaker 01:
whether or not the death penalty would apply transformed that statement to say that he had future dangerousness and that's the voluntary hook of the fifth amendment that is what Estelle is all about it is taking that narrow

[00:04:39] Speaker 01:
statement for a neutral purpose and using it for a broader purpose.

[00:04:44] Speaker 01:
Think about that.

[00:04:45] Speaker 01:
I want you to think about the chilling effect.

[00:04:51] Speaker 01:
that Judge Christensen's action has on a lawyer like me.

[00:04:57] Speaker 01:
We ought to be encouraging lawyers to get their clients evaluated.

[00:05:02] Speaker 01:
Mental health is a huge issue in our criminal justice system.

[00:05:08] Speaker 01:
And when I was a federal defender, I defended all kinds of people who had mental health problems.

[00:05:14] Speaker 01:
I got mental examinations, determined competency all the time as a federal defender.

[00:05:20] Speaker 01:
If you are now going to tell me that I'm going to send my client to a BOP facility, to a BOP psychologist, and then you as the judge can use that statement against my defendant at sentencing, I'm no longer going to get my client evaluated.

[00:05:36] Speaker 01:
It is a tremendously chilling effect, Your Honors.

[00:05:39] Speaker 01:
And that is not the policy that this court should adopt.

[00:05:42] Speaker 03:
Could a distinction be drawn between one who is being used in sentencing where it's gone to trial as opposed to one that has pled guilty and then waived his remaining rights?

[00:05:59] Speaker 01:
This case is a little bit unique in that.

[00:06:01] Speaker 01:
I've never seen a competency evaluation after a plea.

[00:06:06] Speaker 03:
It is a little unusual.

[00:06:07] Speaker 03:
And your client did waive his appellate rights, and he waived all of his rights.

[00:06:11] Speaker 03:
No, he didn't.

[00:06:12] Speaker 03:
No, he didn't.

[00:06:13] Speaker 01:
No.

[00:06:14] Speaker 01:
Judge.

[00:06:15] Speaker 01:
We know that whether or not an appellate waiver is a contract issue.

[00:06:20] Speaker 01:
He did not waive his rights to the Fifth Amendment.

[00:06:24] Speaker 01:
He says, we have satisfied Wells and Atherton here.

[00:06:29] Speaker 01:
We didn't say all remaining issues, all Fifth Amendment issues.

[00:06:34] Speaker 01:
And he could not have anticipated at the time that he signed the plea agreement that this would have even been an issue.

[00:06:40] Speaker 03:
What would the plea agreement had to have looked like in order to satisfy Atherton?

[00:06:46] Speaker 01:
Well, one, it has an entire agreements provision in it, paragraph 14.

[00:06:51] Speaker 01:
So everyone at the time of signing that would have had to have said any constitutional issues related to the sentence.

[00:06:59] Speaker 01:
And that's not what it says.

[00:07:01] Speaker 01:
And that's what Atherton is all about.

[00:07:02] Speaker 01:
And that's what Wells is all about.

[00:07:04] Speaker 01:
I have raised this issue.

[00:07:06] Speaker 01:
I am right within Wells.

[00:07:07] Speaker 01:
I'm right within Atherton.

[00:07:09] Speaker 01:
I am challenging the constitutionality.

[00:07:11] Speaker 01:
I am challenging the sentence.

[00:07:13] Speaker 01:
And I did not waive any Fifth Amendment rights.

[00:07:16] Speaker 01:
And what's unique about Atherton is it recognizes the scope of the waiver.

[00:07:23] Speaker 01:
And this waiver just doesn't say anything about Fifth Amendment.

[00:07:27] Speaker 01:
So I'm right within those cases.

[00:07:29] Speaker 00:
Can you address our decision in the Bauman case?

[00:07:32] Speaker 00:
It read Estelle narrowly.

[00:07:34] Speaker 00:
And what you're doing is you're asking us to read Estelle much more broadly, but it seems like we've already

[00:07:39] Speaker 00:
said confining it to the facts there.

[00:07:42] Speaker 01:
That's right.

[00:07:43] Speaker 01:
But Bauman, as I pointed out in my brief, I've been practicing for 25 years every change of plea.

[00:07:51] Speaker 01:
The district court says, you can have counsel with you at the PSR interview.

[00:07:56] Speaker 01:
Bauman is very narrow.

[00:07:57] Speaker 01:
It doesn't apply here.

[00:07:58] Speaker 00:
You can- It does have language.

[00:08:00] Speaker 00:
The defendant there raised Estelle, and we said we're going to be very narrowly in the context of this bifurcated capital proceeding.

[00:08:08] Speaker 01:
Yep, and I can explain.

[00:08:10] Speaker 01:
So what Bauman is really about is whether or not a PSR interview is a critical stage.

[00:08:16] Speaker 01:
And this court said it is not a critical stage.

[00:08:19] Speaker 01:
So what did we do in an embalment?

[00:08:22] Speaker 01:
We said, for purposes of voluntariness, we are not worried about the voluntary nature of a traditional PSR interview.

[00:08:32] Speaker 01:
This court's interpretation of Estelle and embalment is consistent with what I'm asking it to do here, which is to say, the purpose of the statement for a neutral purpose

[00:08:43] Speaker 01:
i.e.

[00:08:44] Speaker 01:
a competency examination is you cannot take that statement broader and apply it to a broader sentence.

[00:08:51] Speaker 01:
And so you can issue this decision without violating Bauman.

[00:08:59] Speaker 01:
I'll reserve one minute for rebuttal.

[00:09:01] Speaker 01:
Thank you.

[00:09:01] Speaker 00:
Thank you.

[00:09:12] Speaker 02:
Police of the Court, Tim DeTarca of the District of Montana on behalf of the United States.

[00:09:18] Speaker 02:
As was discussed in the argument so far, all of Mr. Davis' non-constitutional claims are waived through the application of the appellate waiver in his plea agreement.

[00:09:29] Speaker 02:
His constitutional claims, and in particular his claim with respect to self-incrimination,

[00:09:37] Speaker 02:
doesn't withstand scrutiny for three reasons.

[00:09:39] Speaker 02:
First, the statements were not involuntary.

[00:09:43] Speaker 02:
Second, the statements were not placed into evidence against him.

[00:09:48] Speaker 02:
And third, the issue of mental health was raised by the defense at sentencing.

[00:09:54] Speaker 02:
With respect to voluntariness, the district court found, and this is an excerpt from the record pages 20 and 21, that Mr. Davis's statements were voluntary.

[00:10:07] Speaker 02:
The competency evaluation was made on his motion.

[00:10:11] Speaker 02:
And as the district court outlined, he knew and expressly that the statements were going, the evaluation was going to go to the district judge.

[00:10:28] Speaker 04:
I mean, I think that your friend on the other side is arguing that voluntariness is somehow informed by the purpose for the statement being given.

[00:10:36] Speaker 04:
Do you agree with that?

[00:10:37] Speaker 04:
Is there authority for that idea?

[00:10:42] Speaker 02:
I don't believe there is authority for that idea.

[00:10:48] Speaker 02:
And what I think is critical here is I think that argument would have more weight if

[00:10:59] Speaker 02:
if the competency evaluation had been ordered not on the defense motion.

[00:11:05] Speaker 02:
And it's important to note the distinction here.

[00:11:09] Speaker 02:
Rule 4241B, a hearing under Rule 4241B, is not necessary for there to be a competency hearing under 4241A.

[00:11:22] Speaker 02:
Defense counsel often

[00:11:24] Speaker 02:
will seek a defense-only competency evaluation, mental health evaluation, and then only if they determine that the information is favorable to the defendant, bring that before the court for a competency hearing or something along those lines.

[00:11:42] Speaker 02:
So this was on the defendant's own motion.

[00:11:45] Speaker 02:
And that is constitutionally significant.

[00:11:51] Speaker 02:
A Buchanan case at the Supreme Court found that.

[00:11:55] Speaker 02:
The Graham Wright case by the Sixth Circuit found that.

[00:11:59] Speaker 02:
So the statements were voluntary.

[00:12:01] Speaker 02:
Even setting that issue aside, independently, the language of Rule 2.2C4 is very specific.

[00:12:12] Speaker 02:
It says that the competency evaluation will not be placed into evidence against the defendant.

[00:12:21] Speaker 02:
And I would recommend that the court read that language consistent with the language of Rule 32i as to how evidence is introduced by the parties at sentencing and is distinguished from background information in the PSR.

[00:12:39] Speaker 02:
Never in this case was any evidence, was any competency evaluation placed into evidence against the defendant.

[00:12:48] Speaker 04:
Is that a requirement for the Fifth Amendment?

[00:12:50] Speaker 02:
Say that again.

[00:12:51] Speaker 04:
Is that a requirement for the Fifth Amendment argument to apply?

[00:12:54] Speaker 02:
So I think rule 12.2b is actually broader than the Fifth Amendment protection.

[00:13:07] Speaker 04:
I guess that's why I'm asking.

[00:13:08] Speaker 04:
Because again, as Judge Bybee has noted, we're on a narrow scope of issues here because of the appeal waiver.

[00:13:13] Speaker 04:
And so the argument that you're making, is that relevant just to the rule or to the constitutional theory?

[00:13:19] Speaker 02:
I am arguing that there's, with respect to this point, well, there's no rule 12.2c violation at all, but particularly with respect to this point, the fact that this wasn't put into evidence shows that there was no rule 12.2 violation and sort of a fortiori, not a, it was not just in the constitutional sense, his

[00:13:44] Speaker 02:
he was never compelled to testify against himself in the language of the Fifth Amendment.

[00:13:50] Speaker 02:
And this provides important protections.

[00:13:55] Speaker 02:
It provides the protection for the defendant in the criminal trial context, obviously, where evidence has to be put into the record.

[00:14:03] Speaker 02:
It applies in a

[00:14:06] Speaker 02:
capital sentencing, where the government has a burden to put in the evidence to prove the aggravating factors.

[00:14:14] Speaker 02:
And even if the government were to use it in a Rule 32i context to, for example, prove a sentencing enhancement or something like that, it would apply.

[00:14:26] Speaker 02:
But that has to be read consistent with

[00:14:29] Speaker 02:
18 USC 3661 which says that there aren't limitations on what the court can consider with respect to background information and it just makes no it it wouldn't make any sense for the judge not to have

[00:14:46] Speaker 03:
the information about.

[00:14:48] Speaker 03:
Mr. Holden, I think, has very articulately said, look, if you uphold this here, the next time this happens, I'm going to have to think twice before I request an evaluation of my client.

[00:15:00] Speaker 03:
Even if I think he's got mental problems, I don't know what might be said and what might get used against him in a sentencing hearing.

[00:15:06] Speaker 03:
So I'm going to be deterred from doing this.

[00:15:10] Speaker 02:
So what's your answer to that?

[00:15:11] Speaker 02:
So I have two answers to that, Your Honor.

[00:15:12] Speaker 02:
The first is, as I noted,

[00:15:16] Speaker 02:
A competency hearing, a court ordered competency evaluation under 4241B is not a necessary first step to a competency hearing under 4241A.

[00:15:33] Speaker 02:
Defense counsel can and often does seek defense-only examinations.

[00:15:41] Speaker 02:
And then my second point is, and this is what I was trying to get at a moment ago, which is that what it means to be used against a defendant, that's clear when the government is putting in evidence for enhancement, for an aggravating factor, or for guilt.

[00:16:03] Speaker 02:
It is not clear when a court is trying to determine the 3553A factors as to what is sufficient but not greater than necessary sins.

[00:16:11] Speaker 03:
So you had access to this report.

[00:16:13] Speaker 03:
Could you have used the report?

[00:16:16] Speaker 02:
No.

[00:16:19] Speaker 02:
The United States could not have put the report into evidence under Rule 32i.

[00:16:24] Speaker 02:
OK.

[00:16:26] Speaker 03:
You mean in a trial proceeding?

[00:16:28] Speaker 02:
In a trial proceeding.

[00:16:30] Speaker 02:
OK.

[00:16:30] Speaker 03:
What about at sentencing?

[00:16:32] Speaker 02:
I don't want to separate out the constitutional question and the rule question.

[00:16:40] Speaker 02:
Constitutionally, there's no question here because his statements were voluntary.

[00:16:47] Speaker 02:
But just as a matter of the application of rule 12.2, I do think defense counsel could raise an objection if the government tried to admit into evidence

[00:17:02] Speaker 02:
the competency evaluation for a purpose like a sentence enhancement, to prove up a sentence enhancement.

[00:17:18] Speaker 02:
The final point that I want to make with respect to this is, so not only were the statements voluntary, not only were they not placed into evidence against him, but in this case, the defendant's mental health was placed at issue by the defense.

[00:17:37] Speaker 02:
And that's at excerpts of the record, pages 33 and 34.

[00:17:41] Speaker 02:
Defense counsel clearly argues that his untreated mental health

[00:17:45] Speaker 02:
was a reason to mitigate the sentence, either to put him in supervised release because he can get better service there or not to sentence him to prison because, in the defense counsel's words, the services wouldn't be adequate there.

[00:18:03] Speaker 02:
And this goes to my point that depriving the judge of accurate mental health information when the court has to evaluate these factors under 3553A

[00:18:14] Speaker 02:
and analyze the kind of argument that goes to mental health doesn't make any sense.

[00:18:21] Speaker 02:
It isn't a constitutional question.

[00:18:23] Speaker 02:
And so for all of those reasons, there was no violation of the Fifth Amendment here.

[00:18:33] Speaker 02:
There also wasn't a violation of the rule.

[00:18:37] Speaker 02:
But as we note, the rule sweeps broader than the Constitution.

[00:18:42] Speaker 02:
And that argument is waived anyway.

[00:18:45] Speaker 02:
If there's no further questions, stand in our briefs.

[00:18:49] Speaker 02:
Great.

[00:18:49] Speaker 02:
Thank you.

[00:18:54] Speaker 01:
Judge Bybee and Judge Forrest, I have a constitutional hook.

[00:18:56] Speaker 01:
It's Estelle.

[00:18:57] Speaker 01:
It says that any effort by the state to compel Responda to testify against his will at sentencing clearly would contravene the Fifth Amendment.

[00:19:06] Speaker 01:
The government is wrong.

[00:19:07] Speaker 04:
So the key word in there is compelled.

[00:19:09] Speaker 01:
That's right.

[00:19:10] Speaker 01:
But then when you read Estelle, the notion of voluntariness relates to this.

[00:19:16] Speaker 01:
The statements were uttered, the fact that the statements were uttered in the context of a psychiatric examination does not automatically remove them from the reach of the Fifth Amendment.

[00:19:25] Speaker 01:
And then they talk about the purpose for which the statement is given and the purpose for which it is used.

[00:19:31] Speaker 01:
The government is wrong about how defense lawyers get examinations.

[00:19:36] Speaker 01:
We don't apply under 3006 for a private defense examination.

[00:19:41] Speaker 01:
We always, we do it under 4241.

[00:19:44] Speaker 01:
That's how you do it.

[00:19:45] Speaker 01:
It is provided to the court, it is provided to the defense, and it's provided to the government.

[00:19:49] Speaker 01:
That does not equal use.

[00:19:50] Speaker 01:
The constitutional hook here is very clear as it relates to... Why would we give it to the government and the court?

[00:19:56] Speaker 01:
Because that's what the rule provides.

[00:19:58] Speaker 03:
Well, I understand that's what the rule provides, but doesn't that tell us something?

[00:20:01] Speaker 01:
No, it doesn't, Judge, because that's what Estelle is talking about.

[00:20:04] Speaker 01:
I am only trying to evaluate whether or not I'm competent to go to trial.

[00:20:09] Speaker 01:
I am not giving you those statements for purposes 3553A factors.

[00:20:14] Speaker 04:
Well, if that was the limited purpose, then why do this after the plea and were the only thing on the table of sentencing?

[00:20:19] Speaker 04:
That makes no sense.

[00:20:21] Speaker 01:
Well, in this particular circumstance, when you read the motion, he was having an issue related to COVID, I think, because he was in some

[00:20:30] Speaker 01:
He was in segregation.

[00:20:32] Speaker 01:
But mental health was not brought up.

[00:20:34] Speaker 01:
The government's citation to the statements of defense counsel, I cite it fully in my reply brief.

[00:20:39] Speaker 01:
Please read it.

[00:20:40] Speaker 01:
They're lifting certain statements.

[00:20:42] Speaker 01:
His mental health was not brought up at sentencing.

[00:20:45] Speaker 01:
And I think, and Carsey Allen really talks about it.

[00:20:48] Speaker 01:
Judge Abrams from New York talks about how we can have a, I'm sorry, I'm over time.

[00:20:55] Speaker 01:
I'll finish.

[00:20:55] Speaker 01:
Can I finish?

[00:20:57] Speaker 01:
May I finish?

[00:20:58] Speaker ?:
Go ahead.

[00:20:59] Speaker 01:
Judge Abrams talks about how you can have a competency examination under Estelle and separate that from the 3553A factors.

[00:21:08] Speaker 01:
I appreciate the court.

[00:21:10] Speaker 01:
I know it would be easier not to have oral arguments.

[00:21:12] Speaker 01:
I appreciate the time.

[00:21:14] Speaker 01:
But thanks for making me feel like a real lawyer today.

[00:21:17] Speaker 01:
So thank you.

[00:21:18] Speaker 00:
Great.

[00:21:18] Speaker 00:
Thank you.

[00:21:19] Speaker 00:
Thank you both.

[00:21:20] Speaker 00:
The case has been submitted.