[00:00:00] Speaker 04:
Andrew Jacobs, your honor, is ready to proceed.

[00:00:02] Speaker 00:
Please go ahead.

[00:00:04] Speaker 04:
Good morning, Judge Hawkins, Judge Bade, and Judge Bybee.

[00:00:07] Speaker 04:
The totality of facts of this lengthy and convoluted case demands a new trial be conducted.

[00:00:16] Speaker 04:
There's little difference of opinion here, frankly, as to the applicable law, but it is the facts in detail in this matter which demand the very closest examination and evaluation.

[00:00:29] Speaker 04:
I cannot overstress that in order to ensure that a just outcome should result.

[00:00:36] Speaker 04:
I have spent more time with the facts of this matter than I have with probably any other case of the facts in every possible medium, including audio and video and going through and timing how long something took and when it occurred and listening to the voices.

[00:00:56] Speaker 04:
as they were actually conducting, for example, these prison interviews.

[00:01:00] Speaker 04:
All of this is tremendously important to the matter that we're asked to look at here.

[00:01:07] Speaker 04:
I've never met a case that was like this.

[00:01:10] Speaker 04:
It's very common for us to have an assistant read a tape or maybe to read a transcript or to have somebody else do it.

[00:01:18] Speaker 04:
But this is, I've learned repeatedly in my association with this case, not the way to handle this matter.

[00:01:26] Speaker 04:
Judge Hawkins?

[00:01:27] Speaker 04:
I'm sorry, sir, you looked like you had a question.

[00:01:30] Speaker 01:
The trial here featured... Just listening, counsel.

[00:01:32] Speaker 04:
Yes, sir.

[00:01:33] Speaker 01:
Just listening.

[00:01:35] Speaker 04:
I'm just listening.

[00:01:36] Speaker 04:
Yes, sir.

[00:01:37] Speaker 04:
The trial here featured three principal defects.

[00:01:40] Speaker 04:
The improper admission of extrinsic statements of Detective Garcia that indicated that the defendant was, at that time of the interview, was incarcerated in a prison.

[00:01:52] Speaker 04:
The coerced confession, and I'm going to use that word, coerced confession of this defendant over almost six hours of interviews within a prison by two police officers on two occasions in addition to which there was a polygraph that didn't come into the evidence.

[00:02:10] Speaker 01:
Was he Mirandized?

[00:02:13] Speaker 04:
And this is a critical question here.

[00:02:16] Speaker 01:
Here's what occurred.

[00:02:16] Speaker 01:
And the question asks for a yes or no.

[00:02:19] Speaker 04:
Yes, sir.

[00:02:20] Speaker 04:
Yes, I would say within, within cognitive limits he was Mirandized.

[00:02:25] Speaker 04:
And he signed a statement, a written statement on both occasions.

[00:02:29] Speaker 04:
But it remains our contention, this was not an effective admission of Miranda on these particular facts in this particular location.

[00:02:38] Speaker 04:
Under these particular circumstances, he was being examined by police officers in a day room, in a prison, with passersby and other individuals present.

[00:02:50] Speaker 04:
It was not a private setting.

[00:02:52] Speaker 04:
And they were talking about child molestation of his daughters.

[00:02:56] Speaker 04:
in this comforting, soothing environment where everyone can seize, including the government, that if the occupants of this prison had come to know of it, this man's life would have been in actual factual danger.

[00:03:10] Speaker 04:
And that they did this for five and a half or six hours in total.

[00:03:16] Speaker 00:
Over two years.

[00:03:17] Speaker 00:
So the interviews took place two years apart.

[00:03:19] Speaker 04:
Yes, ma'am, that is correct.

[00:03:20] Speaker 00:
So your six hours is maybe three hours in each interview.

[00:03:24] Speaker 00:
He received Miranda warnings.

[00:03:26] Speaker 00:
I believe your brief concedes that the Miranda warnings were accurate.

[00:03:31] Speaker 00:
And he testified at the trial that he knew, he understood the Miranda warnings.

[00:03:36] Speaker 00:
He had received Miranda warnings on other occasions.

[00:03:38] Speaker 00:
He was an adult and he understood that he could refuse to answer questions.

[00:03:44] Speaker 00:
Right?

[00:03:44] Speaker 00:
I mean, so what you're saying is against that backdrop, we have to conclude that his confession was, his statements

[00:03:53] Speaker 00:
were coerced because this took place at a visiting room or a day room at the prison.

[00:03:58] Speaker 04:
Not merely for that reason.

[00:03:59] Speaker 04:
That is one of the factors.

[00:04:01] Speaker 04:
We are confronted here over and over again in this case with multi-factor analysis.

[00:04:06] Speaker 04:
One of the reasons why his will was overborn was the forum, was the situation confronted with police officers, and he stated that he wanted to talk to them so that they wouldn't tell the other people at the prison, even the guard, as to what the suspicion was and what he was being confronted with.

[00:04:22] Speaker 04:
The other is this man was mentally ill.

[00:04:24] Speaker 04:
He subsequently underwent not only examination, was found incompetent, but he was sent to Butner.

[00:04:30] Speaker 00:
Very significant amount of time later, right?

[00:04:32] Speaker 00:
So there's nothing in the record that suggests that he was suffering from a mental illness at the time of the interviews.

[00:04:38] Speaker 04:
I don't concede that.

[00:04:39] Speaker 04:
In fact, I find the notion of a person who once upon finding out what he was being confronted with to sit there for six hours and have a chat

[00:04:50] Speaker 00:
Well, counsel, when you say it that way, that's misleading.

[00:04:53] Speaker 00:
He didn't sit there for six hours.

[00:04:55] Speaker 00:
At one point, there was an interview of a couple of hours.

[00:04:58] Speaker 00:
And then two years later, there was another interview.

[00:05:00] Speaker 00:
So this isn't as if this man walked into a room and for six hours they interrogated him.

[00:05:05] Speaker 04:
If I may, Judge Bade, the first interview on 2015 took two hours and five minutes.

[00:05:13] Speaker 04:
The second interview in 2017, three hours and 27 minutes.

[00:05:17] Speaker 04:
And I would point out that in those two interviews,

[00:05:20] Speaker 04:
The first interview, the investigators did not get around to the subject matter of the interview until one hour and seven minutes into it.

[00:05:30] Speaker 00:
Okay.

[00:05:30] Speaker 00:
Now, is there any case law that suggests that if the officers speak to a person, a suspect, and don't ask a particular question immediately, you're saying, you know, they're talking to him, they're building rapport with him, they're asking him questions, that that is somehow

[00:05:48] Speaker 00:
mitigates or eliminates the effectiveness of their Miranda warnings.

[00:05:52] Speaker 04:
What I would say, Your Honor, is that it attenuates it the further it gets from the admission of the warning.

[00:05:58] Speaker 04:
And we also have an attenuated warning to the extent that the officers sort of sought to assure him, it's very clear, that this is sort of a formality because you're here but... So what they said to him was, you're in custody so we need to give you these warnings, which is a true statement.

[00:06:14] Speaker 00:
Miranda only applies to custodial interrogations.

[00:06:16] Speaker 00:
So the officers made a true statement to a man who had received Miranda warnings in the past, who indicated at that time that he understood and he understood he could ask questions and he could stop talking.

[00:06:26] Speaker 04:
Respectfully, Your Honor, the way I read it was that they told him, we just have to do this because you happen to be in prison.

[00:06:32] Speaker 00:
Well, we have the transcript.

[00:06:33] Speaker 00:
I've read the transcript.

[00:06:34] Speaker 00:
I've read the transcript.

[00:06:35] Speaker 00:
You can characterize it as you wish.

[00:06:36] Speaker 00:
But what they told him is we have to give you these warnings because you're in custody.

[00:06:41] Speaker 00:
And then he said, I understand.

[00:06:43] Speaker 00:
And they started asking him questions.

[00:06:45] Speaker 04:
Judge Bay, that is exactly what happened.

[00:06:48] Speaker 04:
Factually, that is what took place.

[00:06:50] Speaker 04:
My concern, going back to the mental illness, I am hard-pressed.

[00:06:55] Speaker 04:
I have never seen a criminal defendant spend this amount of time, especially having learned what he's accused of, talking with the officers in a manner in which he did.

[00:07:04] Speaker 03:
So the interviews were in 2015 and 2017.

[00:07:07] Speaker 03:
When was he evaluated for mental competency?

[00:07:10] Speaker 04:
He was evaluated all the way and I have it right here.

[00:07:13] Speaker 04:
It was in 2019 and 2020.

[00:07:16] Speaker 03:
So four years after the first interview, two to three years after the second interview, did you contend in the district court that he was mentally incompetent at the time that he gave either of these interviews?

[00:07:29] Speaker 04:
Not incompetent, no.

[00:07:30] Speaker 04:
Nor is that, I believe, the legal standard to which we must look.

[00:07:34] Speaker 04:
The question is, did his mental capacity at that time in any way

[00:07:39] Speaker 04:
obviate or attenuate the effectiveness of his understanding.

[00:07:43] Speaker 03:
I don't remember seeing what the nature of the incompetency in 2019-2020 was being evaluated for.

[00:07:52] Speaker 03:
Did you raise any of those details and try to assert that they were also present in 2015-2017?

[00:07:59] Speaker 04:
No, not at the preclusionary hearing, Your Honor, if that's what the Court is asking.

[00:08:03] Speaker 03:
Then what relevance is the fact that he was later evaluated for mental competency?

[00:08:07] Speaker 04:
I think that it is a factor that we must look toward.

[00:08:10] Speaker 04:
But what do we do with it?

[00:08:11] Speaker 03:
Do we have the details of why he was evaluated in 2019 or 2020?

[00:08:17] Speaker 04:
Certainly he had not been evaluated prior.

[00:08:19] Speaker 03:
Right, but do we have the details of what he was evaluated for in 2019?

[00:08:23] Speaker 04:
Certainly.

[00:08:25] Speaker 04:
He was having problems.

[00:08:26] Speaker 04:
I was his trial lawyer.

[00:08:28] Speaker 04:
He was having repeated problems getting along with the lawyer.

[00:08:31] Speaker 04:
understanding the law, accepting the law.

[00:08:33] Speaker 04:
He was sort of delusional about the law.

[00:08:35] Speaker 04:
The Butner folks concluded that he was one of these, what do they call them, sovereign citizens.

[00:08:41] Speaker 04:
He was examined by two physicians in Tucson, both of whom concluded that he was so delusional in 2019, two independent doctors, that he was incompetent to proceed in court.

[00:08:54] Speaker 04:
He would have outbursts in court.

[00:08:55] Speaker 04:
He had troubles with Judge Velasco.

[00:08:58] Speaker 04:
It was a very pervasive feature of his personality.

[00:09:03] Speaker 03:
And yet, I don't think that any of those things really manifest themselves in the transcripts.

[00:09:07] Speaker 04:
I disagree, sir.

[00:09:08] Speaker 04:
I do disagree.

[00:09:10] Speaker 04:
the length and the engagement that he has with these officers, these long monologues that he gives.

[00:09:17] Speaker 04:
I urge you to review the transcripts.

[00:09:19] Speaker 04:
It's astonishing.

[00:09:20] Speaker 04:
He'll sit there and go on for a solid page of transcript with literally no question in front of him.

[00:09:27] Speaker 04:
This sort of conduct is insane when confronted.

[00:09:31] Speaker 04:
Once he came to know, over an hour after the first interview began, once he came to know what they were there for,

[00:09:38] Speaker 04:
the average criminal defendant would simply clam up, so to speak.

[00:09:42] Speaker 04:
He did the opposite.

[00:09:44] Speaker 04:
He sat there like a running faucet for almost six hours.

[00:09:49] Speaker 04:
So I think mental health is among the factors, respectfully among the factors, that we need to look at when determining voluntariness.

[00:09:57] Speaker 04:
It's this Preston analysis.

[00:10:00] Speaker 04:
It's not one factor where all of the issues here are multi-factor.

[00:10:05] Speaker 04:
And this is an example.

[00:10:07] Speaker 01:
The issues raised in the briefs is the trial court's denial of your motion for mistrial.

[00:10:14] Speaker 01:
You tried the case, right?

[00:10:15] Speaker 04:
Yes, sir.

[00:10:17] Speaker 01:
Based on the detective testifying about where your client was at the time of these interviews?

[00:10:24] Speaker 04:
Yes, sir, that is correct.

[00:10:26] Speaker 01:
Tell us how that's error.

[00:10:27] Speaker 04:
Judge, I was rather shocked.

[00:10:30] Speaker 04:
There was a ruling by Judge Jorgensen that

[00:10:34] Speaker 04:
no mention of prison was to be made for understandable reasons.

[00:10:37] Speaker 04:
We completed the entire first trial with no incidents whatsoever.

[00:10:42] Speaker 04:
No problems.

[00:10:43] Speaker 04:
Detective Garcia was unable to be a witness in the first trial.

[00:10:46] Speaker 04:
He was a witness in the second trial.

[00:10:49] Speaker 04:
I still don't know what his function was other than to amplify Detective Grant's statements.

[00:10:54] Speaker 04:
However, he began on direct examination by the government's attorney

[00:11:00] Speaker 04:
By stating, he was asked, what was his demeanor like?

[00:11:03] Speaker 04:
And he responded, well, he was doing really well.

[00:11:06] Speaker 04:
He was getting along very well with the other inmates.

[00:11:08] Speaker 04:
And I was flabbergasted.

[00:11:10] Speaker 04:
And we went to the- Were you ejected at that point?

[00:11:11] Speaker 04:
Yes, sir.

[00:11:12] Speaker 04:
And we went to the bench that minute.

[00:11:13] Speaker 04:
And I said, Your Honor, this is a mistrial.

[00:11:15] Speaker 01:
And what did Judge Jorgensen say?

[00:11:16] Speaker 04:
Well, she was actually curious.

[00:11:18] Speaker 04:
It's in the brief.

[00:11:19] Speaker 04:
She was actually curious as to whether it was intentional or not.

[00:11:22] Speaker 04:
The government's counsel assured her it was not, but it was so striking.

[00:11:26] Speaker 04:
I think that was her first reaction.

[00:11:28] Speaker 04:
I'm speculating the transcripts plain as it is.

[00:11:30] Speaker 01:
Didn't she admonish the jury?

[00:11:32] Speaker 04:
No, she did not.

[00:11:33] Speaker 04:
And that's very important.

[00:11:35] Speaker 04:
I was asked, I said, Judge, this is a mistrial.

[00:11:38] Speaker 04:
It's the only remedy.

[00:11:40] Speaker 04:
And she said, well, what if I don't give a mistrial?

[00:11:42] Speaker 04:
What admonition would you like?

[00:11:45] Speaker 04:
And I said, Judge, you are giving me an impossible problem.

[00:11:47] Speaker 00:
So she offered you a cure to a different stress?

[00:11:49] Speaker 00:
Certainly.

[00:11:50] Speaker 00:
And you rejected it?

[00:11:51] Speaker 00:
Yes, I did.

[00:11:52] Speaker 00:
So then your client later testified that he had been convicted of two felonies?

[00:11:57] Speaker 00:
He placed this information before the jury in the trial as well?

[00:12:00] Speaker 04:
That is correct.

[00:12:02] Speaker 00:
Okay.

[00:12:02] Speaker 00:
So we would have to conclude that this statement by the detective had an impact on the verdict.

[00:12:09] Speaker 00:
The fact that they heard the detective say he was, I think he's something like he was helping others, other inmates, he was doing well.

[00:12:16] Speaker 00:
Actually a positive statement, other than of course the problem that it reveals that he's

[00:12:21] Speaker 00:
incarcerated at the time, but then he later says he was convicted of two felonies.

[00:12:25] Speaker 00:
So that seems much more damning, and that was placed before the jury by the defendant himself.

[00:12:31] Speaker 00:
So how could this one comment have affected the verdict?

[00:12:34] Speaker 04:
I'm hopeful to reserve some time, Judge, but basically he had not made a decision as to testify or not at the point of the government's direct case.

[00:12:44] Speaker 00:
So are you going to say that he decided that because the detective made this remark that

[00:12:49] Speaker 00:
He better go ahead and testify that he committed two felonies.

[00:12:53] Speaker 04:
He might have and he had the right to not.

[00:12:56] Speaker 04:
And that decision was made for him by this act of the detective and the government.

[00:13:03] Speaker 04:
The decision was taken out of his hands and placed into a Hobson's choice.

[00:13:07] Speaker 04:
That was the word I used in trial.

[00:13:09] Speaker 04:
And that's not right.

[00:13:11] Speaker 04:
They can't do that.

[00:13:13] Speaker 00:
I don't know how you can answer this, but how did he come to the decision that it's going to be better if I testify and put my criminal record before the jury?

[00:13:21] Speaker 04:
I was the president of the gaming law side at UNLV.

[00:13:23] Speaker 04:
People were always asking me to divine the impossible.

[00:13:26] Speaker 04:
I don't know is the answer.

[00:13:27] Speaker 00:
So we have to speculate?

[00:13:29] Speaker 04:
We would have to speculate.

[00:13:30] Speaker 00:
Okay, so you have about a minute and a half left.

[00:13:33] Speaker 00:
I appreciate it.

[00:13:33] Speaker 00:
Thank you.

[00:13:33] Speaker 00:
Do you want to reserve that?

[00:13:35] Speaker 04:
Yes, ma'am.

[00:13:35] Speaker 04:
Thank you.

[00:13:47] Speaker 02:
Good morning, may it please the court.

[00:13:49] Speaker 02:
My name is Craig Russell appearing on behalf of the United States.

[00:13:53] Speaker 02:
I'm going to start where the court just left off with respect to the court declining to declare a mistrial because I think there's an important point to be made here.

[00:14:04] Speaker 02:
The district court here did correctly decline to declare a mistrial based upon the unsolicited, isolated and vague reference the detective made

[00:14:14] Speaker 02:
to the defendant's inmate status.

[00:14:17] Speaker 02:
And just real quick, I think what I just heard from defense counsel was he wasn't sure if his client was going to testify and that somehow this comment may have played into the defendant's decision to testify.

[00:14:28] Speaker 02:
I would point out to the court that defense counsel promised during opening statement in this case that his client was going to take the stand and deny these charges.

[00:14:36] Speaker 02:
So I don't think there's a plausible argument to be made that somehow this vague statement referenced to the inmate status

[00:14:42] Speaker 02:
contributed to the defendant's decision to testify in this case, and I just wanted to make that clear at the very outset.

[00:14:48] Speaker 02:
Also, this type of vague and isolated statement has repeatedly been held by this court to not justify a mistrial.

[00:14:56] Speaker 02:
Here, there was no specific attention brought to the comment at the time it was made, and the statement conveyed no specific information as to the defendant's criminal history.

[00:15:06] Speaker 02:
This court, in cases like Yarborough and Allen,

[00:15:09] Speaker 02:
have repeatedly said that this type of reference to a prison record does not warrant a mistrial.

[00:15:14] Speaker 02:
And there's also several unpublished cases reaching the same result that we started in our brief and were cited below.

[00:15:20] Speaker 02:
And it's especially true in this case, as the court mentioned a moment ago, the defendant here did take the stand and tell the jury himself that he had two prior felony convictions.

[00:15:31] Speaker 02:
So in light of that disclosure to the jury, this vague statement, I think, is clearly harmless.

[00:15:38] Speaker 02:
And there was also the issue here about the request for your curative instruction.

[00:15:44] Speaker 02:
The defendant's position is that the district court should have Sue Esponte immediately done a curative instruction in the district court.

[00:15:53] Speaker 02:
I think it's clear from the record, the district court, if the defendant had asked for one, would have given a curative instruction at the time.

[00:16:00] Speaker 01:
In any event, the district- Did she offer, did Judge Jorkenson offer a curative instruction?

[00:16:05] Speaker 02:
She asked the defense counsel whether he wanted a curative instruction.

[00:16:10] Speaker 02:
Yes.

[00:16:10] Speaker 02:
And in any event, Your Honor, there was a curative instruction of sorts given.

[00:16:14] Speaker 02:
The district court before deliberations did instruct the jury that the defendant was not on trial for any offenses that were not charged in the indictment.

[00:16:23] Speaker 02:
And I think we can presume that the jury followed that instruction.

[00:16:28] Speaker 02:
Moreover, the statements the defendant made in this case to law enforcement were entirely voluntary.

[00:16:36] Speaker 02:
And the Miranda warnings that were given to him were not nullified by any pretextual statements or confusing caveats.

[00:16:43] Speaker 02:
What, and I think the court noted this, what was told to the defendant before Miranda warnings was that they were being given because he was in custody, which the district court found to be an entirely correct statement in the context of him being incarcerated in state prison at the time.

[00:16:59] Speaker 02:
And we also know that the statements were voluntary because

[00:17:03] Speaker 02:
During the suppression hearing, which the district court itself held, the district court had an opportunity to hear directly from the defendant when he admitted that his statements were entirely voluntary.

[00:17:14] Speaker 02:
He also testified that he knew that he could stop the questioning at any time.

[00:17:19] Speaker 02:
So if he ran into a part of the questioning where he was uncomfortable, he testified he knew he could have stopped.

[00:17:25] Speaker 02:
The case here that the defendant primarily relies on is Judy versus Ryan.

[00:17:31] Speaker 02:
was presented an entirely different set of facts.

[00:17:34] Speaker 02:
In that case, the defendant was 17 years old, and the detectives kept him up all night from 9.30 until 10 in the morning with continuous questioning.

[00:17:44] Speaker 02:
In that case, the detectives implied that Miranda warnings were a mere formality, and they deviated significantly from standard Miranda warnings, including telling the defendant that his right to counsel only applied if he had been involved in criminal activity.

[00:17:59] Speaker 02:
Of course,

[00:18:00] Speaker 02:
Under those circumstances, any request for counsel would be tantamount to an admission of guilt.

[00:18:05] Speaker 02:
None of that happens here.

[00:18:07] Speaker 02:
Here, the district court who conducted the hearing made a finding that the defendant was sufficient age and maturity to understand his Miranda warnings.

[00:18:17] Speaker 02:
The interviews here were relatively brief.

[00:18:20] Speaker 02:
The first one was two hours, the second one was three and a half, and they were separated by about a year and a half to two years in time.

[00:18:28] Speaker 02:
And as I mentioned,

[00:18:29] Speaker 02:
The district court found that the agent here didn't deviate from standard Miranda warnings and did not give any confusing caveats.

[00:18:37] Speaker 02:
The district court here also made several factual findings that are important to the finding of voluntariness in this case.

[00:18:45] Speaker 02:
District court found that the defendant had previous experience with the criminal justice system and had previously been advised of his Miranda rights.

[00:18:53] Speaker 02:
Also, and this is an important point for a number of reasons, the district court here found

[00:19:00] Speaker 02:
that it wasn't coercive police activity that impacted the defendant's willingness to speak.

[00:19:06] Speaker 02:
And this was after the district court heard him testify at the suppression hearing.

[00:19:10] Speaker 02:
It was outside forces, specifically his fear that other inmates might find out about the allegations.

[00:19:16] Speaker 02:
And that is what impacted his unwillingness to speak or willingness to speak.

[00:19:22] Speaker 02:
And lastly, the district court found that although in a prison setting, the interview took place in a large public room, which

[00:19:29] Speaker 02:
the district court found actually cut against the finding of involuntariness.

[00:19:35] Speaker 02:
Also, there was a delay, rather slight delay between the start of the first interview where there was Miranda warnings and questioning on the substance of the allegations.

[00:19:47] Speaker 02:
But that was a relatively brief period of time.

[00:19:49] Speaker 02:
The defendant testified that it was only a half hour or an hour.

[00:19:52] Speaker 02:
So any delay here was not inappropriate.

[00:19:55] Speaker 02:
In fact, this argument or this type of argument has been foreclosed

[00:19:59] Speaker 02:
by Supreme Court precedent.

[00:20:01] Speaker 02:
In Colorado versus Spring, the Supreme Court held that mere silence as to the subject matter of allegations do not by themselves invalidate Miranda warnings.

[00:20:11] Speaker 02:
And lastly, the district court here actually found that whatever delay there was, again, it was relatively short, an hour, half hour to an hour, was not inappropriate because the agent testified during that time she was trying to build rapport.

[00:20:24] Speaker 02:
So not an inappropriate reason to have this rather slight delay.

[00:20:28] Speaker 02:
before getting into the subject matter of the allegations.

[00:20:31] Speaker 00:
So your opposing counsel has argued that the defendant was perhaps suffering from mental illness at the time of these interviews.

[00:20:42] Speaker 00:
Is there anything in the record that we can look to to determine if that affected the interrogations?

[00:20:48] Speaker 02:
Unfortunately, no, because the issue was not raised below either orally at the hearing or in writing.

[00:20:54] Speaker 02:
So there's nothing in the record addressing

[00:20:57] Speaker 02:
this issue, and no good cause having been shown why it wasn't raised below.

[00:21:02] Speaker 02:
I don't believe it's properly before the court here today.

[00:21:05] Speaker 02:
I would say, Your Honor, there was an implied finding here.

[00:21:09] Speaker 02:
As I mentioned a moment ago, the district court, after hearing directly from the defendant, did find that he was of sufficient age and maturity to understand his Miranda warnings.

[00:21:19] Speaker 02:
So perhaps not directly addressing that point, but I think by implication, the district court found here that the defendant was competent to understand his Miranda rights.

[00:21:28] Speaker 02:
Also, importantly, Your Honor, this Court has held in cases like Derrick v. Peterson and United States v. Cicilli that personal characteristics such as a person's mental condition are only relevant if there is outside, or excuse me, if there is coercive police activity.

[00:21:46] Speaker 02:
And as I mentioned a moment ago, the District Court found that there wasn't any here, that it was outside forces, if anything, that were impacting the defendant's willingness to speak, not coercive police activity.

[00:22:02] Speaker 02:
Also, Your Honor, the district court here also correctly declined to subpoena jurors to discuss their deliberations.

[00:22:12] Speaker 02:
In this case, the defense attorney claims that he heard two jurors discuss the detective's reference to the defendant's inmate status.

[00:22:23] Speaker 02:
This was a statement that was made in open court.

[00:22:25] Speaker 02:
The only purpose to subpoena these jurors would have been to talk about

[00:22:29] Speaker 02:
whether they discuss it during deliberations, which clearly runs afoul of the Rule 606, near categorical bar on juror testimony about statements and happenings during deliberations to attack the verdict.

[00:22:46] Speaker 02:
This statement was made in open court, so the only purpose of a subpoena would be to inquire into that subject matter.

[00:22:52] Speaker 02:
In addition, the exception to this rule that's founded, Rule 606 B2A does not apply.

[00:22:59] Speaker 02:
This statement again was made in open court.

[00:23:01] Speaker 02:
There was no question that it was made.

[00:23:02] Speaker 02:
It was not extraneous under this exception such that it would have allowed juror testimony on this subject matter.

[00:23:09] Speaker 02:
This court's decision in Rayleigh is instructive on this case.

[00:23:12] Speaker 02:
In that case, dealt with a defendant's decision not to testify and whether that was discussed during deliberations.

[00:23:20] Speaker 02:
And in that case, this court found that that happened, it was internal and intrinsic to the trial proceedings and was not.

[00:23:28] Speaker 02:
extrinsic.

[00:23:29] Speaker 02:
And so for these reasons, the district court did correctly decline to subpoena jurors to discuss their deliberations.

[00:23:36] Speaker 02:
One other point I would like to make is that also with respect to these issues, especially with respect to the issue of voluntariness of the defendant's statements, any error with that regard would have been harmless under Arizona versus Fulminate.

[00:23:53] Speaker 02:
Here, with respect to the statements, the evidence here was very strong

[00:23:58] Speaker 02:
The jury heard from two different victims here that testified in granular detail as to the abuse they suffered at the hands of their father in this case over a two-year period of time.

[00:24:12] Speaker 02:
The jury also heard the testimony of the defendant in this case.

[00:24:16] Speaker 02:
He took the stand and denied these allegations.

[00:24:19] Speaker 02:
And so the jury in this case had an opportunity to hear from two victims and the defendant and had an opportunity

[00:24:26] Speaker 02:
to judge their credibility over and above these statements that are being challenged.

[00:24:33] Speaker 02:
Lastly, the jury here also heard from an expert to explain why disclosure in the case may have been delayed and also to explain why there may have been some differences in the recollection from the two victims.

[00:24:45] Speaker 02:
And lastly, the nature of these statements that are being challenged for voluntariness, they certainly show a consciousness of guilt

[00:24:53] Speaker 02:
However, they are far short from an unambiguous confession.

[00:24:56] Speaker 02:
So for that reason, based upon the rather ambiguous nature of these statements and the strong evidence, the government's position is here that any error with respect to the admission of the statements would have been harmless.

[00:25:12] Speaker 02:
Lastly, the government's expert in this case did not provide

[00:25:15] Speaker 02:
any prejudicial character testimony.

[00:25:19] Speaker 02:
The defendant on this point is complaining about three different things the expert said.

[00:25:23] Speaker 02:
One, that child sex abuser can be in a normal adult intimate relationship, that an abuser can love and care for the child he is abusing, and that abuse can occur without close family members knowing.

[00:25:35] Speaker 02:
None of these things provide a profile or

[00:25:39] Speaker 02:
described characteristics of a typical child molester such that this testimony would have run afoul of rule 404.

[00:25:47] Speaker 02:
This court has approved of this type of testimony on a number of occasions, specifically in United States versus Big Head.

[00:25:53] Speaker 02:
This court approved of testimony about why disclosure from a child sex abuse victim may be delayed.

[00:26:00] Speaker 02:
In Holloneck and Tayus, this court approved a testimony about grooming.

[00:26:05] Speaker 02:
whether that type of activity could be innocent or it could be something else.

[00:26:10] Speaker 02:
The language in Holmeck is specifically instructive here.

[00:26:14] Speaker 02:
This court held that extensive experience interviewing victims can qualify that person to testify about relationships the victims have with their abuser, and that's exactly what happened here.

[00:26:24] Speaker 02:
The defendant on this point relies heavily on United States versus Wells, which provided an entirely different set of facts.

[00:26:33] Speaker 02:
That case involved

[00:26:35] Speaker 02:
murder at an airport, excuse me, at a Coast Guard station in Alaska.

[00:26:39] Speaker 02:
The government presented an expert that testified as to homicidal workplace violence.

[00:26:46] Speaker 02:
That expert knew about the specific allegations and facts of the case and also provided testimony during trial of the personality and psychological characteristics of people that engage in homicidal workplace violence.

[00:26:59] Speaker 02:
Specifically, that expert testified that those people are generally male.

[00:27:03] Speaker 02:
narcissistic, have grandiose views of themselves, and have a sense of entitlement.

[00:27:08] Speaker 02:
And in that case, the prosecutor argued in closing that the defendant fit that description to a T. None of that happened here.

[00:27:16] Speaker 02:
In this case, the expert witness presented by the government was a blind expert.

[00:27:20] Speaker 02:
She had no knowledge of the facts of the case.

[00:27:23] Speaker 02:
As I mentioned, she did not describe characteristics of a typical child molester.

[00:27:28] Speaker 02:
And lastly, the prosecutor here did not argue that the defendant somehow fit a profile

[00:27:33] Speaker 02:
Rather, in closing argument, the prosecutor cited this expert testimony mainly to argue that to show why disclosure may have been delayed and why recollections may have been slightly different between the two victims, which is testimony that this court has approved of in the prior cases that I mentioned earlier.

[00:27:53] Speaker 02:
I see my time is almost up.

[00:27:56] Speaker 02:
Does the court have any questions for me?

[00:27:59] Speaker 00:
No, thank you.

[00:28:00] Speaker 02:
Seeing none, the government would simply ask that this Court affirm.

[00:28:03] Speaker 02:
Thank you.

[00:28:08] Speaker 04:
Your Honor, if I may, the remark I would have is that one of the seminal features of this case is the first trial ended in a missed trial.

[00:28:17] Speaker 04:
When we're doing an analysis of whether or not something affected the outcome, probably affected the outcome, might have affected the outcome,

[00:28:26] Speaker 04:
Testimony without Garcia, the trial without Garcia ended in a mistrial.

[00:28:31] Speaker 00:
The one with him ended in a guilty murder.

[00:28:34] Speaker 00:
Did the defendant testify in the first trial?

[00:28:36] Speaker 04:
Yes.

[00:28:38] Speaker 04:
And the other thing that I think is highly important to this jail interview business is the distinction between interrogation technique and the voluntariness, the rapport.

[00:28:52] Speaker 04:
And they always, police officers always say, oh, I'm just trying to establish a report.

[00:28:55] Speaker 04:
But I urge the court to take a look in volume five of the exercise review at about base 1200, where Agent Grant gives what I can only characterize as religious instruction.

[00:29:08] Speaker 04:
It sounds like Jimmy Swagger, I'm dating myself.

[00:29:12] Speaker 04:
There's literally instruction from her stating that God will forgive you and where is your faith, she asks him in the course of this interior.

[00:29:20] Speaker 04:
Where is your faith in God?

[00:29:22] Speaker 04:
It's literally so.

[00:29:23] Speaker 04:
So they're using real technique.

[00:29:26] Speaker 04:
They want this guy.

[00:29:27] Speaker 04:
They spent a lot of time on him.

[00:29:29] Speaker 04:
They wanted to come up with something.

[00:29:31] Speaker 04:
And they were certainly being inventive.

[00:29:34] Speaker 04:
But to overcome the will, I think that is what happened here.

[00:29:37] Speaker 04:
I think he was over-born, the combination.

[00:29:40] Speaker 04:
Yes, sir.

[00:29:40] Speaker 01:
Didn't your client testify on cross?

[00:29:44] Speaker 01:
And I'll quote the question.

[00:29:46] Speaker 01:
So you knew perfectly well at the onset of this interview that you could stop the interview at any time.

[00:29:52] Speaker 01:
Didn't you answer yes?

[00:29:54] Speaker 04:
I don't think he really felt that way.

[00:29:56] Speaker 04:
And I don't think that was ultimately his testimony.

[00:29:58] Speaker 04:
He testified.

[00:29:59] Speaker 04:
He felt compelled.

[00:30:00] Speaker 04:
And he felt testified.

[00:30:01] Speaker 04:
He felt fearful.

[00:30:03] Speaker 04:
that they would inform, if he refused to speak to them, that they would somehow inform inmates or the staff at the jail, which even the government concedes could be fatal to him.

[00:30:13] Speaker 04:
So that's the way I read the record here, Judge.

[00:30:15] Speaker 04:
I don't think he came and said, I had no fear whatsoever speaking, and I was perfectly comfortable.

[00:30:20] Speaker 04:
I don't think that's what he told Judge Sarganson.

[00:30:21] Speaker 01:
No, he said, I understood.

[00:30:23] Speaker 01:
I could stop the interview at any time.

[00:30:26] Speaker 01:
And his answer was yes.

[00:30:27] Speaker 01:
Not yes with some sort of amendment.

[00:30:32] Speaker 01:
Yes, period.

[00:30:33] Speaker 04:
I would urge the court to take a look at his entire testimony to Judge Jorgensen regarding his expression of fear under the circumstance in that day room being interrogated by these officers with individuals going by which could endanger his life.

[00:30:47] Speaker 04:
I just think it's one of the factors.

[00:30:49] Speaker 03:
Doesn't that cut against it?

[00:30:51] Speaker 03:
Doesn't that suggest that he wouldn't?

[00:30:52] Speaker 03:
that he would end the interview rather than have to disclose something in a public place, in a prison where other prisoners might hear?

[00:31:00] Speaker 03:
Doesn't it clear that he would clam up rather than talk?

[00:31:02] Speaker 04:
Judge Bybee, did I mention his mental insanity?

[00:31:05] Speaker 03:
Well, you did, but that didn't get us very far.

[00:31:10] Speaker 04:
I don't have a psychological explanation as to what quirk of this man's mental infirmity

[00:31:18] Speaker 04:
would cause him to do what he did.

[00:31:20] Speaker 03:
Yeah, but the circumstances that you've cited seem to cut against the point that you're making.

[00:31:26] Speaker 03:
It seems to suggest that he would have stopped the interview rather than have to talk with them in a place where there might be other prisoners that would overhear something.

[00:31:35] Speaker 04:
I would point out first, the officers selected the venue.

[00:31:39] Speaker 04:
Now, the first time might have been an act of convenience.

[00:31:41] Speaker 04:
The second time certainly was not.

[00:31:43] Speaker 04:
That was a coercive measure on their part.

[00:31:46] Speaker 04:
It had been effective in getting him to speak before, and it was effective the second time.

[00:31:51] Speaker 04:
So in terms of, I can't think of a more uncomfortable, unsafe, dangerous situation than to do what was done here, regardless of the motivation.

[00:32:02] Speaker 04:
Their motivation was to obtain a confession and squeeze him.

[00:32:05] Speaker 04:
And they did.

[00:32:06] Speaker 04:
And they didn't get much, but they got what they got.

[00:32:09] Speaker 04:
And it was the centerpiece, the centerpiece of the government's case, these rolling

[00:32:16] Speaker 04:
transcripts they used on video both times and that they showed, these interviews were so important, the first jury, the interview of the 215 was 2 minutes or 2 hours and they showed 1 hour and 16 minutes to the jury of that video.

[00:32:32] Speaker 04:
The other was 3 hours and 27 minutes on 2017 and this jury was shown 2 hours of this.

[00:32:40] Speaker 04:
Audio, live audio with a rolling transcript, if you haven't seen this,

[00:32:45] Speaker 04:
You should take a look, the government audiovisual people did themselves here.

[00:32:50] Speaker 04:
But this was the very centerpiece of the government's case, this interview.

[00:32:55] Speaker 04:
It's critically important.

[00:32:57] Speaker 04:
And it was conducted in such a manner, I don't believe it should have been presented to the jury.

[00:33:02] Speaker 00:
I'd say you are over time.

[00:33:04] Speaker 00:
Yes, ma'am.

[00:33:05] Speaker 00:
Any other questions?

[00:33:07] Speaker 00:
I see no other questions.

[00:33:09] Speaker 00:
Thank you both, counsel, for your arguments this morning.

[00:33:10] Speaker 00:
This case is submitted.