[00:00:00] Speaker 00:
Good morning, everyone.

[00:00:01] Speaker 00:
Welcome to the Ninth Circuit.

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The first case on the calendar is United States versus Tulth.

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For everyone in the audience, we will be taking a short break after the Tulth case and then proceed to the remainder of the calendar.

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Judge Berzahn and I would like to thank very much Judge Lefkoe from Illinois, who is sitting with us, and we very much appreciate

[00:00:30] Speaker 00:
her doing so and Judge Lefkoe is going to be participating by video.

[00:00:38] Speaker 00:
Good morning, Judge Lefkoe.

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Can you hear us okay?

[00:00:41] Speaker 04:
I can hear you.

[00:00:42] Speaker 04:
Can you hear me and good morning?

[00:00:43] Speaker 00:
Yes, we can.

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Everything is all set.

[00:00:46] Speaker 00:
So we'll proceed.

[00:00:48] Speaker 03:
We don't have any closer video.

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That's all we've got.

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We don't have a video that's anywhere near us.

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Thank you.

[00:01:06] Speaker 00:
All right, so counsel, you have 10 minutes aside and whenever you are ready.

[00:01:18] Speaker 02:
Good morning, Your Honors.

[00:01:20] Speaker 02:
May it please the court, my name is Tracy Van Buskirk and I represent the appellant in this case, the United States of America.

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I would like to reserve two minutes of my time for rebuttal.

[00:01:31] Speaker 02:
Your Honors, in this case,

[00:01:32] Speaker 02:
The Mosley v. The Michigan v. Mosley factors strongly favor a finding that the defendant's rights were scrupulously honored.

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Here, the district court failed to give proper weight to the most important Mosley factor, which is the provision of fresh Miranda warnings.

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And in this case, they were given before each subsequent interview that took place after the defendant's invocation.

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When the agent contacted the defendant for a second interview, he not only read the Miranda warnings, but both before and after those warnings, he spoke to the defendant in a very understandable way and made clear that a conversation would happen only if it was completely voluntary and up to the defendant.

[00:02:15] Speaker 03:
But what, do you think he lied to the defendant before the waiver was obtained?

[00:02:24] Speaker 03:
No, Your Honor.

[00:02:25] Speaker 03:
And is that, does that matter?

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Suppose he did, suppose he did.

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I think it does matter because the court has to consider the totality of circumstances.

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I know, but that's not very helpful.

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So does that factor matter?

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And that to me is the key factor here because that's what the district court largely relied upon.

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But he said that they, he suggested that they had lied before he got the waiver, but it doesn't seem that he did or did he.

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Your Honor, the government's position is that he did not lie before the waiver.

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His lie took place after the defendant had verbally acknowledged his rights, signed the waiver, and then when he said he'll listen, then the agent provided him with something that was untrue, which was that they had found the victim's track.

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But he also signed the waiver.

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Yes, Your Honor.

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Right.

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So he agreed to speak at least until he stopped them at that point.

[00:03:21] Speaker 02:
That's correct, Your Honor.

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He signed the waiver that acknowledges that he understood his rights and that he was willing to proceed with questioning without an attorney present.

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And he did that with both subsequent interviews.

[00:03:31] Speaker 02:
He did it on the first interview, too.

[00:03:32] Speaker 00:
Counsel, this may not really be germane to the legal issues before us, but is there any update on Mrs. Begay?

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Has her body ever been found or has she ever showed up?

[00:03:47] Speaker 02:
Your Honor, neither Ms.

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Begay's truck nor her body have been found.

[00:03:51] Speaker 00:
All right, thank you.

[00:03:52] Speaker 02:
You're welcome.

[00:03:54] Speaker 02:
Your honors, the district court did not place much weight on these fresh warnings and instead as the court has already touched on, the district court really relied on lies that were told by the agent during the interview.

[00:04:09] Speaker 02:
But in Mosley, the lies that were told by the police were far more incriminating than the lies that were told to the defendant in this case.

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In Mosley, the lie that was told to the defendant was that someone had implicated him, someone had confessed, and that someone had said that he was the shooter in a robbery murder.

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Here, and even in light of that lie, the Supreme Court found that the defendant's rights had been scrupulously honored.

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Here, by contrast, the agent's lie did not tie evidence directly to the defendant.

[00:04:41] Speaker 02:
The agent said things like the truck was found, or doing testing in forensics, there was some blood, but at no time did the agent say something to the effect of, and your DNA was found in that truck, or link the evidence directly to the defendant, as was done in Michigan v. Mosley.

[00:04:57] Speaker 02:
Also, the six days in between the interviews should have been viewed favorably by the district court.

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It shows that the agents respected the defendant's right to cut off questioning.

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They did not badger him.

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They did not go back and try to wear down his resistance with repeated attempts or repeated approaches over a short period of time.

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There was the solid six days in between the invocation and when the agent reapproached for the second interview.

[00:05:26] Speaker 02:
The court's questions at the evidentiary hearing seem to suggest that the court may have viewed that time in custody in a different way, may have viewed it disfavorably instead of favorably representing that the agents actually allowed the defendant time to cut off questioning and consider whether he would engage in another interview.

[00:05:45] Speaker 00:
But the courts have made clear more time is better for the government in looking at the Michigan v. Mosley factors.

[00:05:53] Speaker 02:
I think that's correct, Your Honor.

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The courts have been mainly concerned with short turnarounds when agents have either repeatedly gone back or just waited a short period of time before reapproaching the defendant.

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There's very little case law talking about a number of days like what we have here.

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And I do think that in Moseley, this should be weighed as a favorable factor because the concern was the shortness of the reapproach.

[00:06:21] Speaker 04:
The district judge seemed to, well, called it a pretext or a setup to get him to talk again by implying at least that they had more information.

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So how do you respond to that?

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Why is that wrong?

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Pardon me, Your Honor.

[00:06:48] Speaker 02:
The district court did seem to imply that, well the district court didn't imply, the district court straight out said that it was a pretext.

[00:06:56] Speaker 02:
But the agent was very clear from the outset, he wanted to talk to the defendant and he only wanted to do it and he wanted to talk about some options and he only wanted to do it if it was completely voluntary and let the defendant know again and again only if he was willing to do it and it was up to him.

[00:07:12] Speaker 02:
But there was no doubt that the agents wanted to talk to them, they didn't need a pretext.

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And we don't think there was a pretext in this case.

[00:07:21] Speaker 00:
Counsel, I'm not sure the case law is very clear on this point and I'm not sure it's even relevant here, but is the reason why the government wants to talk to the defendant, is the importance to the government, is that a relevant factor in analyzing the law under Michigan v. Mosley?

[00:07:45] Speaker 00:
That is, if it is a very inconsequential issue, it's one thing.

[00:07:51] Speaker 00:
But if it is a much more consequential issue, whichever way it cuts, it's something else?

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Or is that just irrelevant in the government's view?

[00:07:59] Speaker 02:
Your Honor, from the government's view, it goes to the totality of circumstances.

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And it's something the court should consider when weighing the factors.

[00:08:06] Speaker 02:
Because one of the factors is the agents going back to talk about the same subject.

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Well, here, the same subject is this ongoing disappearance of someone.

[00:08:16] Speaker 02:
In evaluating the weight of that factor, certainly it can't outweigh a defendant's Fifth Amendment rights, but in thinking about that factor, it supports going back and talking to someone on the same subject, because they're not going back to say, we have a completed bank robbery, and we think you did it.

[00:08:35] Speaker 02:
It was, we are trying to locate this woman, and we think you're the person that has the best information.

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So I do think it fits into the Moseley factor.

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But what is the relevance?

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In fact, they made these stories up because they were convinced that he had something to do with her disappearance and they wanted him to say what he'd done.

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So what's the relevance of the fact that they didn't know where she was?

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The relevance of the fact is that they needed to talk to someone who had some idea of where she was.

[00:09:16] Speaker 02:
Yeah, but they didn't need to lie to him to tell the stories.

[00:09:19] Speaker 02:
They did not, Your Honor, I agree.

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They did not have to lie.

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That was a tactic.

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That is an acceptable police tactic.

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I understand that, but it's an acceptable police tactic.

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Essentially, we tried to get a confession, and that's what they were really trying to do.

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So I don't understand the relevance of

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the fact that they didn't know where she was.

[00:09:37] Speaker 02:
Well, I respectfully disagree that they were trying to get a confession.

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What they were trying to do is to establish, get from the defendant who had the best information where they could try to locate either the victim or her body to find out what happened.

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So it could be that in telling that, the defendant incriminated himself.

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However, he could have said a variety of other things.

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He could have said, my brother did it.

[00:10:01] Speaker 03:
If you're trying to talk to someone who you don't think

[00:10:03] Speaker 03:
had some criminal culpability, you wouldn't make up stories like that.

[00:10:07] Speaker 03:
It's possible, Your Honor.

[00:10:09] Speaker 00:
Did you want to reserve the remainder of your time, Counsel?

[00:10:12] Speaker 02:
Yes, I would, Your Honor.

[00:10:12] Speaker 02:
Thank you.

[00:10:28] Speaker 01:
Good morning.

[00:10:28] Speaker 01:
Your honors may please the court.

[00:10:30] Speaker 01:
My name is Assistant Federal Public Defender Keith Hilsendager.

[00:10:34] Speaker 01:
I represent the defendant in this case, Preston Tolf.

[00:10:40] Speaker 01:
I want to talk for a second about this belief that we all share who have experienced criminal cases about the fact that the police are allowed to lie to a suspect.

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I tried to figure out what the source of that rule is, and it appears to be

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related to challenges where the defendant says the cops lied to me and so my subsequent confession was involuntary.

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That's not the question here.

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The question here is whether or not Agent Roundy scrupulously honored Mr. Preston's prior invocation of his right to silence.

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And the

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The passage of time can't be just isolated in a vacuum.

[00:11:29] Speaker 01:
It has to be evaluated against what the FBI was doing during that time, right?

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So Mr. Tolf was initially jailed at a different location than the location where Agent Rowdy interviewed him.

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And he was interviewed at that first location by a different agent, Agent Arendt.

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And Agent Arrington said, I asked Agent Roundy to interview him because his office is closer to where Mr. Toth was being held on this state probation violation.

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So they had to have talked to each other about what Agent Arrington wanted Agent Roundy to get Mr. Toth to say.

[00:12:13] Speaker 01:
It's not just that Agent Arrington would have said, hey, go talk to this guy.

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Although I also was curious about where this rule came from, that it's okay to lie to people.

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And although it bothers me and it's definitely the rule during, so if.

[00:12:29] Speaker 01:
It's the rule that says the statements are nevertheless voluntary.

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It has nothing to do with the scrupulously honored part.

[00:12:38] Speaker 03:
I understand that, but this was all the lies.

[00:12:43] Speaker 03:
The specific lies were all after he had already signed the Miranda waiver.

[00:12:49] Speaker 01:
Well, but let's talk about what the circumstances under signing the waiver, too, because that's a little less... But can you answer Judge Berzahn's question and then go on?

[00:13:00] Speaker 00:
Do you agree that the actual lies were all post-waiver?

[00:13:06] Speaker 01:
He did utter the lies to Mr. Tolt after Mr. Tolt signed the form, but

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In order to get Mr. Toth to sign the form, what he did is he shows up and he says, hey, I wanna talk to you again.

[00:13:19] Speaker 01:
And Mr. Toth says, you know, that didn't go so well last time.

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And Agent Roundy says, I know, but I'm gonna present you with a couple of options.

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And Mr. Toth says, like the district court focused on, well, I'll listen to what you have to say.

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And then in order to,

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be able to listen to what Agent Roundy had to say.

[00:13:40] Speaker 01:
Agent Roundy said, well, you've got to fill in this form first.

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And he just starts filling in the form.

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And then at some point, after he's filled in most of the form, he hands it to Mr. Tolt, who then signs it.

[00:13:51] Speaker 03:
Oh, but he gives him the warnings.

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He says several times, and you can stop it at any time, and so on.

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And then he signs it.

[00:13:57] Speaker 01:
He presents the form to him as this is not only

[00:14:01] Speaker 01:
not only an opportunity for you to make statements to me, it's for me to make statements to you.

[00:14:07] Speaker 00:
Yeah, but as Judge Berzon said, I mean, I'm looking at 2ER 195.

[00:14:11] Speaker 00:
These are the rights you have.

[00:14:13] Speaker 00:
We call them the advice of rights, but basically you don't have to talk to me.

[00:14:16] Speaker 00:
And then he reads your client his rights and your client's signs.

[00:14:20] Speaker 01:
Right.

[00:14:23] Speaker 01:
Before Agent Roundy showed up, he had planned to tell Mr. Tolth these extra lies, these more... Why is that relevant if Mr. Tolth didn't know about any lies before he signed?

[00:14:35] Speaker 01:
Because the question is whether Agent Roundy scrupulously honored Mr. Tolth's prior invocation of his right to silence and lying as the antithesis of scrupulous behavior.

[00:14:47] Speaker 01:
Planning to lie to someone is the antithesis of scrupulous behavior.

[00:14:52] Speaker 04:
Could you say that Mr. Tull saying, I'll listen to what you have to say, was his consent to talking to them?

[00:15:11] Speaker 04:
Has he ever said he didn't understand what was meant by, then they hand him the consent form?

[00:15:23] Speaker 01:
The district court found that Mr. Toth saying, I'll listen to what you have to say is not the same as, I want to talk to you.

[00:15:31] Speaker 01:
I will talk to you.

[00:15:33] Speaker 01:
It was according to the district court, Agent Roundy's unilateral assumption that those two things were equivalent.

[00:15:40] Speaker 01:
And Agent Roundy proceeded on that basis.

[00:15:42] Speaker 00:
Well, but I mean, he signed, he gave him the rights.

[00:15:45] Speaker 00:
He handed him the form and he signed it.

[00:15:47] Speaker 01:
He gave him the rights, he handed him the form, and he signed it.

[00:15:50] Speaker 03:
And the form doesn't just say, you read me your rights.

[00:15:53] Speaker 03:
It says, I'm going to work to talk.

[00:15:57] Speaker 01:
Yes, it does.

[00:15:58] Speaker 01:
But it was presented to him in the context of, you have to sign this form also to be able to listen to what I have to say.

[00:16:07] Speaker 01:
And that, at the very least, undermines his prior invocation of his right to silence, which is the real question here.

[00:16:18] Speaker 03:
I mean, the reason why I have a hard time is that I understand you're saying it's a different question.

[00:16:29] Speaker 03:
But once the interview has begun, it's hard for me to tell why it is a different question.

[00:16:38] Speaker 03:
And so if this turns out to impugn

[00:16:47] Speaker 03:
the Miranda rights, why wouldn't it impugn the Miranda rights in the first interview as well?

[00:16:54] Speaker 03:
In other words, this was a second interview, but if it was a first interview and the same sequence occurred, you would presumably say the same thing.

[00:17:05] Speaker 03:
That is, if they lied to him during the interview, not before it, that it would impugn the validity of the Miranda rights.

[00:17:15] Speaker 03:
And I don't think that's ever been the law.

[00:17:18] Speaker 01:
I would make the same characterization of what Agent Arrington did in the first interview.

[00:17:24] Speaker 03:
That's right.

[00:17:25] Speaker 03:
If the issue here were whether to suppress... Is there any case law, is any of the case law in which there has been lying during an interview, presumably after Miranda rights, ever impugned the validity of the Miranda waiver?

[00:17:44] Speaker 01:
The waiver, yes.

[00:17:45] Speaker 01:
The previous invocation, no.

[00:17:48] Speaker 01:
I cannot find.

[00:17:49] Speaker 01:
I did not find.

[00:17:51] Speaker 03:
But I'm saying forget the previous invocation.

[00:17:53] Speaker 03:
Suppose this was the first interview.

[00:17:56] Speaker 03:
There was no previous invocation.

[00:17:58] Speaker 03:
This was the first interview.

[00:18:00] Speaker 03:
There was a Miranda warning.

[00:18:03] Speaker 03:
There was a signature.

[00:18:05] Speaker 03:
And then they start to lean these lies.

[00:18:10] Speaker 03:
I mean, I find them extremely distressing, but that's the law.

[00:18:14] Speaker 03:
Wouldn't your argument say that in all of those instances the Miranda warning was voided?

[00:18:22] Speaker 01:
Your Honor, now I understand what you're getting at.

[00:18:25] Speaker 01:
And I have to back up over something I just said where I would be making the same argument with respect to Agent Arrington as I would be with respect to Agent Roundy.

[00:18:35] Speaker 01:
Your Honor, I agree.

[00:18:36] Speaker 01:
If this were the first interview, there would necessarily have been no prior invocation of his Miranda rights.

[00:18:43] Speaker 01:
And so the only question would be whether the waiver was valid.

[00:18:46] Speaker 01:
There's plenty of case law talking about the validity of waivers.

[00:18:50] Speaker 01:
And just because the police lie to someone in order to get them to waive their Miranda rights.

[00:18:56] Speaker 03:
So it's not only a question of the voluntariness of the confession.

[00:18:59] Speaker 03:
It's a question of the voluntariness of the Miranda waiver.

[00:19:05] Speaker 01:
At the first interview, yes.

[00:19:08] Speaker 03:
That becomes extremely fine cut at that point.

[00:19:12] Speaker 03:
If in fact it doesn't avoid the Miranda warning, why would it avoid it the second time around just by itself?

[00:19:22] Speaker 01:
Because you don't look at these three interviews in a vacuum.

[00:19:25] Speaker 01:
The second interview takes place against the backdrop of the fact that Agent Rounding knew that Mr. Tolt had ended his interview with Agent Arrington by saying, I don't want to talk to you.

[00:19:37] Speaker 01:
Agent Roundy approached Mr. Tolf knowing that there had been a prior invocation.

[00:19:42] Speaker 01:
And the case law is clear.

[00:19:44] Speaker 01:
You look at whether the invocation is scrupulously honored, because that means the defendant has expressed his desire to deal with the police in a certain way, and thereby accommodate the inherently coercive nature of custodial interrogation by, in this case, invoking his right to silence.

[00:20:05] Speaker 01:
I don't want to talk to you.

[00:20:08] Speaker 01:
I just lost my train of thought, and then I see that the yellow light is on.

[00:20:13] Speaker 01:
So if there are no more questions, I'll ask the court to affirm, please.

[00:20:19] Speaker 00:
Thank you, counsel.

[00:20:21] Speaker 00:
You have a little bit of time left.

[00:20:24] Speaker 02:
I'll talk fast.

[00:20:26] Speaker 02:
Thank you, honors.

[00:20:27] Speaker 02:
I know that counsel said that lying is the antithesis of scrupulous, scrupulously honoring.

[00:20:34] Speaker 02:
In Michigan v. Mosley, that's not what the Supreme Court found.

[00:20:37] Speaker 02:
The Supreme Court found that the defendant's rights were scrupulously honored after an agent lied to him about his involvement and what evidence they had against him.

[00:20:46] Speaker 02:
And I would say that the, respectfully, that counsel got the chronology wrong here when Agent Roundy was talking to the defendant at the second interview.

[00:20:55] Speaker 02:
He first said, first advised him of his Miranda warnings

[00:20:59] Speaker 02:
and asked the defendant, do you understand?

[00:21:03] Speaker 02:
And the defendant said, yes, I do.

[00:21:05] Speaker 02:
And then the conversation continues where it went to, do you want to talk to me?

[00:21:09] Speaker 02:
I don't know.

[00:21:10] Speaker 02:
Last time it didn't go so well.

[00:21:12] Speaker 02:
Then there was more discussion about this has to be completely up to you.

[00:21:16] Speaker 02:
This has to be completely voluntary.

[00:21:18] Speaker 02:
And then he said, I'll listen.

[00:21:20] Speaker 02:
And I'll listen is certainly not a clear invocation of the right to silence.

[00:21:24] Speaker 02:
It's saying exactly that.

[00:21:25] Speaker 02:
I'll listen to what the

[00:21:26] Speaker 02:
Agent had to say, and Tulth did that, and then he began to engage as the interview progressed.

[00:21:32] Speaker 02:
And in terms of what was going on during the six days in between the first interview and the second.

[00:21:36] Speaker 00:
Why don't you conclude, counsel, please.

[00:21:37] Speaker 02:
Thank you, your honor.

[00:21:39] Speaker 02:
Your honors, because the Mosley factors weigh in favor of finding that the defendant's rights were scrupulously honored during the second and third interviews, I'd ask the court to reverse.

[00:21:48] Speaker 00:
All right.

[00:21:49] Speaker 00:
We thank counsel for their arguments.

[00:21:51] Speaker 00:
The case just argued is submitted.

[00:21:52] Speaker 00:
We will now take a short recess.

[00:21:54] Speaker 00:
Thank you.