[00:00:00] Speaker 05:
The next case on calendar Lemos is Zacharias versus Bundy has been submitted on the briefs.

[00:00:05] Speaker 05:
The next case on calendar for argument is United States versus Espinosa.

[00:00:33] Speaker 02:
Good morning, counsel.

[00:00:34] Speaker 02:
Good morning.

[00:00:35] Speaker 02:
May it please the court, Kara Hartzler, Federal Defenders, on behalf of Mr. Espinosa.

[00:00:40] Speaker 02:
In this prosecution for illegal reentry, the district court made two key errors.

[00:00:45] Speaker 02:
First, it applied the wrong legal standard to admit Mr. Espinosa's statements explaining why he wanted to remain silent in violation of the Fifth Amendment.

[00:00:54] Speaker 02:
Second, the immigration judge never told Mr. Espinosa about his right to appeal, which alone made his underlying removal order invalid.

[00:01:02] Speaker 02:
For either reason, the court should remand.

[00:01:05] Speaker 04:
So on the wrong legal standard, I guess this is probably where you're going next.

[00:01:09] Speaker 04:
So the first set of statements, the initial set of statements, I mean, it's pretty simple.

[00:01:15] Speaker 04:
Why isn't there a confession even before any invocation?

[00:01:22] Speaker 04:
How do you parse that statement in terms of where the invocation is?

[00:01:27] Speaker 04:
So I mean, I tried coming in illegal and the charges that I'm accepting.

[00:01:32] Speaker 04:
arguably confession.

[00:01:35] Speaker 04:
I mean, I don't see any reason why to keep talking, though, arguably, invocation.

[00:01:40] Speaker 04:
I mean, do we have anything telling us that that should end the inquiry because the invocation came after the confession?

[00:01:49] Speaker 02:
Your Honor, the order doesn't matter.

[00:01:52] Speaker 02:
If this were a question that we were arguing on appeal... Well, the order certainly matters in our cases where there's

[00:01:58] Speaker 04:
couple of hours between the two or I mean as I understand the doctrine it's it's there's a logic to it and after the invocation it's been invoked so it's but before the invocation it can come in the order only matters if our argument is that the officer should have stopped questioning unless there until that there was an unambiguous invocation that's not our argument

[00:02:27] Speaker 02:
Our argument is under Doyle.

[00:02:29] Speaker 02:
And the only consideration in this kind of bushy-head Doyle argument is, was there an explanation of Mr. Espinoza's refusal to talk that was admitted in the government's case in chief?

[00:02:44] Speaker 02:
That's all that matters.

[00:02:46] Speaker 02:
Order doesn't matter.

[00:02:47] Speaker 02:
Ambiguity doesn't matter.

[00:02:48] Speaker 02:
And for that purpose, I would actually very strongly urge the Court to look at our reply brief.

[00:02:53] Speaker 02:
and to look at especially the cases of Garcia Morales and Herd v. Terhune because order ambiguity only matters if this was an argument about cutting off question and that's where exactly where the district court and the government went wrong because they both looked solely at the issue of was this ambiguous and along with that you know what was the order but that doesn't matter for purposes of a bushy head argument all that matters is

[00:03:23] Speaker 02:
Was there a statement admitted that was an explanation of Mr. Ospinosa's refusal to talk?

[00:03:33] Speaker 02:
That's all that matters here.

[00:03:35] Speaker 03:
So I think you're right that the case law is a little bit confusing, in part because invocation can be used in two different senses.

[00:03:42] Speaker 03:
One is the sort that cuts off questioning, and the other is the just being silent is, in some sense, an invocation.

[00:03:55] Speaker 03:
We have said in Bushy head seems like it's sort of the you know I'm not going to talk kind of statement Which which should cut off questioning Doyle is about just not saying anything Why why does it makes and I'm not sure that we have a case that says that

[00:04:14] Speaker 03:
an explanation of simply not saying anything, that in that context the explanation is excluded.

[00:04:22] Speaker 03:
Why does it make sense to treat simply not saying anything the same as affirmative invocations for purposes of excluding the explanations?

[00:04:34] Speaker 02:
Your honor, I don't think there's a way to distinguish this case from Bushyhead.

[00:04:37] Speaker 02:
And the reason is because in Bushyhead, there were two statements.

[00:04:40] Speaker 02:
I have nothing to say.

[00:04:41] Speaker 02:
I'm going to get the death penalty anyway.

[00:04:43] Speaker 02:
In other words, it was a very fatalistic, why should I talk because I'm going to be convicted?

[00:04:49] Speaker 02:
There's nothing different here.

[00:04:51] Speaker 02:
Mr. Espinoza says over and over, you know, I did it.

[00:04:55] Speaker 02:
But because I think the evidence is really clear, I don't see any reason to talk.

[00:04:59] Speaker 02:
And there's no distinction materially for purposes of this case.

[00:05:03] Speaker 02:
between that and Bushyhead.

[00:05:05] Speaker 03:
So suppose in this case, he says that first statement that Judge Dunstan just read, and suppose there's a follow-up question, as there was here, like, so are you invoking?

[00:05:18] Speaker 03:
And he says, no, I'm not.

[00:05:21] Speaker 03:
And then he goes on to answer questions and doesn't say anything very interesting.

[00:05:26] Speaker 03:
In that scenario, would the initial statement be excluded?

[00:05:32] Speaker 02:
It might be a little bit different if he didn't ultimately invoke, but that's not what happened here.

[00:05:37] Speaker 02:
I understand.

[00:05:39] Speaker 03:
I'm trying to figure out the logic of your position.

[00:05:41] Speaker 03:
So if there is no ultimate invocation, but we still have the same first statement, does the first statement come in or not?

[00:05:48] Speaker 02:
I think it does as long, I'm sorry, the statement does not come in.

[00:05:52] Speaker 02:
And the reason is because Bushyhead itself is very clear that not merely silence, except that the circumstances of that silence as well, the entirety of Bushyhead's statement was an invocation of his right to silence.

[00:06:06] Speaker 05:
But Counsel, the problem is that we don't have silence here.

[00:06:08] Speaker 05:
That's the difficulty with your argument is we don't have silence.

[00:06:12] Speaker 05:
We have statements.

[00:06:14] Speaker 05:
And so I don't understand why we should follow

[00:06:18] Speaker 01:
a precedent that talks about silence.

[00:06:21] Speaker 01:
But I don't think Bushy had had silence either.

[00:06:23] Speaker 01:
And that was suppressed.

[00:06:25] Speaker 01:
That's the language you just read about silence.

[00:06:28] Speaker 01:
You said silence.

[00:06:29] Speaker 01:
That's correct.

[00:06:30] Speaker 01:
But in Bushy, the fact was actually that the person did make a statement.

[00:06:34] Speaker 02:
He said, I'm going to get the death penalty anyway.

[00:06:37] Speaker 02:
That's the equivalent of here, Mr. Espinosa saying, of course, it's obvious that I did it.

[00:06:43] Speaker 02:
And in both Bushyhead and here, there was a statement saying, yeah, I probably did it, and you're going to find me guilty.

[00:06:50] Speaker 02:
And because of that, I don't want to say anything.

[00:06:53] Speaker 02:
So because of that.

[00:06:54] Speaker 05:
So do you equate that with invocation, the statement that he made?

[00:07:01] Speaker 05:
What's your analytical framework?

[00:07:02] Speaker 05:
Are you saying the statements that he made constituted invocation of his right to remain silent?

[00:07:09] Speaker 02:
I'm saying that they were an invocation, but at a minimum, Your Honor, they were an explanation of why he was deciding not to talk.

[00:07:18] Speaker 02:
That's all that matters for this analysis.

[00:07:20] Speaker 04:
I guess I'm concerned.

[00:07:22] Speaker 04:
It's an awfully hard line to draw that we are, what, looking at punctuation?

[00:07:28] Speaker 04:
So in Bushyhead, there's a comma between the explanation or confession and the invocation.

[00:07:35] Speaker 04:
Here, the transcript contains a period.

[00:07:39] Speaker 04:
I get that you're framing Bushyhead, as I think it's true to Bushyhead, that it is treating the entire statement as a whole.

[00:07:49] Speaker 04:
In other words, that we shouldn't parse it into a confession and invocation.

[00:07:54] Speaker 04:
So that's what I understand your original response to me was.

[00:07:57] Speaker 04:
But how do we do that reliably without kind of falling into magic words land or, I mean, again,

[00:08:08] Speaker 04:
this is distinguishable by at least a period in the transcript.

[00:08:12] Speaker 02:
I'm not sure that I would have to go back to look at Bushyhead.

[00:08:16] Speaker 02:
I thought it was a period in Bushyhead as well, but I could be wrong.

[00:08:19] Speaker 02:
Even assuming that it was, as Your Honor characterizes it, I think all that this Court needs to look at is two things that were admitted.

[00:08:27] Speaker 02:
The statement, I don't see any reason why to keep talking though.

[00:08:31] Speaker 02:
And then in the second, I don't see the point of you know talking.

[00:08:36] Speaker 02:
Under Bushyhead and Doyle, all that matters is that that is an explanation of why he doesn't want to talk.

[00:08:42] Speaker 02:
And it came in in the government's case in chief.

[00:08:44] Speaker 02:
That's the end.

[00:08:45] Speaker 04:
But I guess, so again, with Bushyhead, it is different.

[00:08:51] Speaker 04:
You say the order doesn't matter, that it's all just circumstances of invocation of silence and silence, although that's not really silence, as Judge Rollinson has pointed out.

[00:09:02] Speaker 04:
But in even Bushyhead,

[00:09:05] Speaker 04:
reported invocation came first.

[00:09:08] Speaker 02:
And again, the order doesn't matter as long as an explanation of why he wanted to remain silent was admitted.

[00:09:16] Speaker 04:
So how long does that logic follow?

[00:09:19] Speaker 04:
Just to push you on this a little bit, the order doesn't matter.

[00:09:22] Speaker 04:
So if this were not a sentence but a paragraph, if it were two paragraphs, if the first paragraph was an extended

[00:09:33] Speaker 02:
Statement that could be read as a confession in great detail and then the second paragraph said and that's why I'm not going to talk to you and give you know is that different Yeah, well your honor I think I would like to save a little bit of rebuttal time But the case I would encourage this court to look at is Gomez that was cited in our opening brief and in Gomez there was actually a long exchange where the person

[00:09:59] Speaker 02:
explained and said, no, no, no, I don't want to talk.

[00:10:01] Speaker 02:
And it was back and forth over time.

[00:10:04] Speaker 02:
The court ruled against the defendant there, but only because it was brought in for impeachment purposes.

[00:10:12] Speaker 02:
The court basically said in Gomez, yes, but if the government had brought this in and it's case in chief, that whole thing would not have come in.

[00:10:19] Speaker 02:
So I would encourage the court to look at that Gomez case in our opening brief.

[00:10:24] Speaker 02:
And I will say what little time I have left.

[00:10:26] Speaker 02:
Thank you.

[00:10:26] Speaker 02:
Thank you, counsel.

[00:10:31] Speaker 00:
Good morning.

[00:10:32] Speaker 00:
May it please the court, Benjamin Hawley for the United States.

[00:10:35] Speaker 00:
The logic and the analysis underlying Doyle and Bushyhead and all of those cases is that the government cannot punish somebody for exercising their rights.

[00:10:43] Speaker 00:
So we cannot tell the jury that they should find the person guilty because he invoked his right to silence or because he actually was silent or wanted an attorney or anything like that.

[00:10:52] Speaker 00:
And that's not what the government did here.

[00:10:53] Speaker 00:
We were relying on affirmative statements that Mr. Espinosa made.

[00:10:57] Speaker 00:
And at no point in argument did we say something about

[00:10:59] Speaker 03:
Because he invoked or he didn't answer these questions therefore you should find him guilty, but the statements that he made were in response to the question Hector would you like to speak with us today, or do you want to wait for an attorney so doesn't that?

[00:11:14] Speaker 00:
Doesn't that the fact that that was the question that prompted this Inform our assessment of what he was doing I think it informs it but it doesn't resolve it and the reason is because there are five or six transcript pages where the agent is continually trying to get him back to

[00:11:29] Speaker 00:
I just need to know, are you invoking or not?

[00:11:30] Speaker 00:
And he keeps going off talking about the evidence, and it's obvious what I did.

[00:11:34] Speaker 00:
And so I would essentially characterize it as not responsive to the question she's trying to ask.

[00:11:39] Speaker 00:
And that's certainly how the agent and the court took it, is we're trying to address this issue first.

[00:11:43] Speaker 00:
Once we've addressed that, then I would be happy to talk about the evidence.

[00:11:46] Speaker 00:
Once we determine he actually did fully affirmatively, yes, I am invoking, then of course the questioning stopped at that point.

[00:11:52] Speaker 04:
Why doesn't this case then turn on whether the initial

[00:11:57] Speaker 04:
Arguable invocation.

[00:11:59] Speaker 04:
I mean, I don't see any reason why to keep talking though Should be read as an invocation because you don't argue harmless error, and that was right at the beginning There were statements all throughout that pick up on subsequent statements So whatever the status of that first statement is right?

[00:12:13] Speaker 04:
That's not this case.

[00:12:14] Speaker 04:
We've got the subsequent statements and I mean, I don't see any reason to keep talking Not having a reason to keep talking sounds a lot like I don't want to keep talking which is an invocation

[00:12:27] Speaker 00:
So I guess my response there would be that this court has the specific language matters a lot and cases usually in the invocation as to Whether they're actually invoking and questioning should stop turn on very slight differences in language Maybe I should get a lawyer.

[00:12:41] Speaker 00:
I think I want a lawyer should I get a lawyer?

[00:12:44] Speaker 00:
All go different directions and in fact those were not held to be invocations here He's saying I don't see the point of talking and the reason for that was it's pretty obvious and pretty straightforward So I don't see the point of talking

[00:12:54] Speaker 00:
He's not saying I don't see the point because I want to exercise my rights.

[00:12:58] Speaker 00:
It's just you all have the evidence.

[00:12:59] Speaker 00:
What's the point here?

[00:13:01] Speaker 00:
At the very least, it's ambiguous if he was invoking.

[00:13:04] Speaker 00:
And of course, ambiguity means questioning doesn't have to stop.

[00:13:07] Speaker 00:
And the government can still comment on it, because the whole point of this doctrine is that we can't punish somebody for exercising their rights.

[00:13:13] Speaker 03:
But wasn't that all true in Bushyhead, too?

[00:13:15] Speaker 03:
I mean, there he said, I have nothing to say, which isn't, you know, I am invoking my right to silence.

[00:13:20] Speaker 03:
It's just I don't have anything to say.

[00:13:23] Speaker 00:
Why is this different?

[00:13:25] Speaker 00:
So it's different because, well, I think that's a more clear invocation.

[00:13:28] Speaker 00:
And agreed, there aren't magic words.

[00:13:30] Speaker 00:
There isn't a, you know, I am invoking.

[00:13:32] Speaker 00:
But there, the Bushy head court said that was a clear invocation, so whatever explanation of that necessarily comes along.

[00:13:38] Speaker 00:
It was not a situation where he's just saying, I'm not, I don't see the point of talking, and there's explanation for why.

[00:13:44] Speaker 00:
Explanation that goes with an invocation is what matters.

[00:13:47] Speaker 00:
And to further out that, I would point to the cases, actually, the defense relies on in the reply brief, Garcia Morales and Heard,

[00:13:53] Speaker 00:
Garcia Morales was the case where the person talked for some amount of time and then said, but I don't want to talk about co-conspirators with this recorder on.

[00:14:00] Speaker 00:
The defense there made exactly the same argument here.

[00:14:02] Speaker 00:
And this court resolved that by saying, but the person wasn't silent.

[00:14:04] Speaker 00:
The government was not drawing inferences of guilt from the silence.

[00:14:08] Speaker 00:
Same thing here.

[00:14:09] Speaker 00:
Hurd was a state habeas case where the officers asked the person to reenact the murder.

[00:14:15] Speaker 00:
And he declined to do that.

[00:14:16] Speaker 00:
He answered other questions.

[00:14:17] Speaker 00:
And there, the entire issue was whether selective invocation is a doctrine, if that exists.

[00:14:23] Speaker 00:
And this court said it does.

[00:14:24] Speaker 00:
And so he did selectively invoke by refusing to reenact the murder.

[00:14:28] Speaker 00:
And therefore, the government couldn't comment on that against silence.

[00:14:32] Speaker 00:
So it matters ultimately if you're characterizing it as silence or not.

[00:14:36] Speaker 00:
And here, again, there was no improper inference.

[00:14:38] Speaker 00:
We were not arguing the invocation as inference of guilt.

[00:14:41] Speaker 00:
We were using his affirmative statements.

[00:14:43] Speaker 00:
It's pretty obvious and pretty straightforward.

[00:14:44] Speaker 00:
I tried coming in illegally.

[00:14:48] Speaker 04:
Just to come back to these questions,

[00:14:52] Speaker 04:
your brief has a helpful passage pages 20 and 21 that says these are invocations these aren't although most of the ones that aren't invocations are out of circuit or unpublished so coming back to this question of you know exactly how do we right how do we parse a

[00:15:13] Speaker 04:
these words.

[00:15:13] Speaker 04:
I guess I'm trying to figure out the workability of either of these rules for, I mean, if we assume here that we have an officer who is in good faith engaging in an extended colloquy to try to explain this, although maybe not being quite as precise as you'd hope.

[00:15:34] Speaker 04:
I mean, how are we supposed to draw the line there?

[00:15:39] Speaker 04:
The again assume if I don't see any reason why to keep talking If we think that that's enough of an invocation Is that the end of the story for this government's case I don't think so so in terms of the workability the The these are always going to be difficult cases and just the sheer number of cases again kind of parsing that specific language in for the agent or for the officer

[00:16:06] Speaker 00:
indicates that.

[00:16:07] Speaker 00:
And I don't know without some kind of magic words line that we can ever have a just bright line, this invoked, this did not.

[00:16:13] Speaker 00:
I think the problem would be, though, if we then divide what is an invocation for purposes of the agent sitting there with the defendant, determining whether questioning can continue or not, and later whether the government can comment on whatever comments were made.

[00:16:26] Speaker 00:
That should be the same line.

[00:16:28] Speaker 00:
And here, our argument was and is that he did not clearly invoke for those purposes.

[00:16:33] Speaker 00:
It was ambiguous.

[00:16:34] Speaker 00:
And ambiguity here goes, that question can continue.

[00:16:37] Speaker 04:
Right.

[00:16:38] Speaker 04:
I guess one of the concerns with the argument that this is ambiguous, though, is that the government itself, including potentially this officer, understood it as an invocation, which is why it wasn't introduced in the first trial.

[00:16:49] Speaker 00:
No.

[00:16:49] Speaker 00:
I don't think that's the, the record's not clear as to why it wasn't introduced in the first trial.

[00:16:53] Speaker 00:
But regardless.

[00:16:54] Speaker 04:
Well, we're unlikely to see that in writing.

[00:16:59] Speaker 00:
Sure.

[00:17:00] Speaker 00:
And I don't think the agent understood it that way.

[00:17:01] Speaker 00:
And that's why she continued to

[00:17:03] Speaker 00:
go back and try to get clarity as to, you know, I need a yes or a no.

[00:17:07] Speaker 00:
This isn't a yeah or a sure.

[00:17:09] Speaker 00:
I need to understand, are you invoking or not?

[00:17:11] Speaker 00:
She was doing what I think agents should do is, what's the plan here?

[00:17:16] Speaker 00:
Are you invoking?

[00:17:16] Speaker 00:
If so, that's fine.

[00:17:17] Speaker 00:
If not, then let's continue.

[00:17:19] Speaker 00:
But I want clarity.

[00:17:20] Speaker 00:
And that's why it took, you know, again, four or five pages of transcript if we're trying to get a clear answer one way or the other.

[00:17:26] Speaker 00:
as opposed to just, well, that was ambiguous, and kind of marching forward and trying to get statements in that way.

[00:17:31] Speaker 05:
So do I understand your argument correctly?

[00:17:33] Speaker 05:
Are you saying that even if there were invocations so long as the government doesn't comment on silence, there's no Fifth Amendment violation?

[00:17:41] Speaker 05:
Is that your argument?

[00:17:43] Speaker 00:
Not quite.

[00:17:44] Speaker 00:
So we cannot comment on silence, and we also could not comment on invocation.

[00:17:47] Speaker 00:
So we couldn't say, for example, he invoked, and that is evidence of guilt.

[00:17:50] Speaker 05:
But do you make a distinction in this case where you said you just discussed the affirmative statement and didn't comment on it?

[00:17:57] Speaker 05:
Are you drawing that distinction?

[00:17:59] Speaker 00:
I am pointing to the opening and closing argument, for example.

[00:18:03] Speaker 00:
The statements that the prosecutors highlighted were, I tried coming in illegally.

[00:18:06] Speaker 00:
It's pretty obvious and pretty straightforward.

[00:18:08] Speaker 00:
Those were the comments that they were leading with.

[00:18:12] Speaker 04:
Why isn't that an explanatory invocation under Gomez?

[00:18:16] Speaker 04:
I mean, it seems to be explaining.

[00:18:18] Speaker 04:
But it's not explaining an invocation, I guess, would be the distinction we're drawing.

[00:18:21] Speaker 04:
How do we know that?

[00:18:22] Speaker 04:
We're back to punctuation games then.

[00:18:24] Speaker 00:
I wish I could draw a bright line for the court.

[00:18:27] Speaker 00:
I don't think this court's cases have drawn a bright line, and I don't know that it's possible.

[00:18:31] Speaker 00:
So what this court has said is, when there's ambiguity, we find not an invocation.

[00:18:36] Speaker 00:
It has to be clear and ambiguous.

[00:18:37] Speaker 00:
To the extent this was at most ambiguous in the government's view, and therefore the agent could continue, and therefore if we apply the same standard as we should, the government could properly

[00:18:46] Speaker 00:
comment on it as affirmative evidence of guilt, as it's not silence.

[00:18:50] Speaker 00:
It's a statement that we are bringing in.

[00:18:51] Speaker 00:
I agree that if he invoked and said, I mean, bushy head, right, if he said, if it was found this is an invocation and here's why I'm invoking, then yes, that would be a problem kind of both for the agent and then at trial.

[00:19:02] Speaker 00:
Our argument is that's not what it was.

[00:19:04] Speaker 00:
At most, it was ambiguous.

[00:19:05] Speaker 00:
And if it's ambiguous, that goes in favor of continuing questioning and permitting comment.

[00:19:10] Speaker 00:
Again, not on silence, but on whatever he actually said.

[00:19:15] Speaker 00:
I'm certainly happy to answer any questions on that or the other issue, but otherwise I would submit.

[00:19:21] Speaker 05:
Thank you.

[00:19:29] Speaker 02:
I'd like to go to your question, Judge Johnston.

[00:19:32] Speaker 02:
The question of how do we slice and dice these statements?

[00:19:35] Speaker 02:
What do we look at and what do we not look at?

[00:19:38] Speaker 02:
The legal theory that has been set out in our reply brief shows why you don't have to do any of that.

[00:19:44] Speaker 02:
All you have to look at is was there an explanation of why he didn't want to talk?

[00:19:49] Speaker 02:
There absolutely was.

[00:19:50] Speaker 02:
And because of that, this is not absolute.

[00:19:53] Speaker 05:
That's why we're here.

[00:19:55] Speaker 05:
So we're trying to figure out whether or not

[00:19:57] Speaker 05:
it was unequivocal.

[00:20:00] Speaker 02:
If I could explain maybe our theory, it's basically this.

[00:20:05] Speaker 02:
Bushyhead said that silence is treated the same as an explanation of why someone wants to remain silent.

[00:20:12] Speaker 02:
And then Garcia-Morales and Hurd said that when it's silence, that you don't look at ambiguity, you don't look at order, you don't parse it out.

[00:20:23] Speaker 05:
Yeah, I understand that, but it's hard to say that talking is silent.

[00:20:27] Speaker 02:
I think that's exactly what Bushyhead said, and I would point to the government's statement saying, well, but in Bushyhead it was different because they said it was ambiguous.

[00:20:36] Speaker 02:
They actually didn't say that.

[00:20:37] Speaker 02:
They didn't talk about anything regarding ambiguity or order or anything in Bushyhead.

[00:20:42] Speaker 02:
It's just not part of the analysis.

[00:20:44] Speaker 03:
Suppose, I mean, if you imagine, say you have a murder case, and the suspect waves his rights and then talks and says lots of things, and at one point they ask him, you know, where's the body?

[00:20:56] Speaker 03:
And he says, well, I'm not going to tell you that because I disposed of it in such a way that you'll never find it.

[00:21:04] Speaker 03:
Would you say that that's, I mean, that is a particular question that he is not answering and he's giving an explanation for why he's not answering it.

[00:21:12] Speaker 03:
Would you say that that statement is excluded?

[00:21:14] Speaker 02:
Yes.

[00:21:15] Speaker 02:
Because if, and that is exactly like we have here.

[00:21:18] Speaker 02:
I'm not going to tell you because of X. Because of doesn't matter.

[00:21:22] Speaker 02:
Anytime there's a, I'm not going to tell you here's my reason

[00:21:25] Speaker 02:
it doesn't come into the government's case in chief.

[00:21:28] Speaker 02:
That's what this court has held.

[00:21:30] Speaker 05:
What's your response to the government's parsing of what it was arguing, that it was not commenting on silence, it was not commenting on the invocation, and therefore there's no Fifth Amendment violation.

[00:21:44] Speaker 02:
What's your response to that?

[00:21:45] Speaker 02:
I disagree with that, Your Honor, and the reason is because none of these cases have ever said that the reason why you're explaining why you're silent matters.

[00:21:54] Speaker 02:
It's just the Fifth Amendment says if you're doing it because you want to remain silent, why you're doing it is irrelevant.

[00:22:04] Speaker 02:
I'm happy to go on, but I know the court has a long calendar.

[00:22:07] Speaker 05:
Any questions?

[00:22:08] Speaker 05:
Thank you.

[00:22:09] Speaker 05:
Thank you, Your Honor.

[00:22:09] Speaker 05:
Thank you to both counsel for your helpful argument.

[00:22:11] Speaker 05:
The case just argued is submitted for decision by the court.