[00:00:09] Speaker 05: We have six cases on our docket this morning, five set for oral argument. [00:00:14] Speaker 05: We'll take a break at some point, probably after the third or fourth case, but we'll see. [00:00:21] Speaker 05: We'll start with 23-7084, US versus Maytubby, Mr. Lee. [00:00:42] Speaker 00: Good morning, Your Honors. [00:00:43] Speaker 00: I'm Josh Lee from the Colorado Federal Public Defender's Office, and I represent Lance Maytubby. [00:00:49] Speaker 00: Mr. Maytubby's confession was the product of improper inducement and should have been suppressed. [00:00:54] Speaker 00: When Officer White started the interrogation, Mr. Maytubby was resolved to maintain his innocence. [00:01:01] Speaker 00: He repeatedly denied the accusations and resisted several strategies that Officer White employed to try to reverse those denials. [00:01:09] Speaker 00: But Officer White ultimately succeeded in overcoming Mr. Maytubby's resolve by offering a quid pro quo. [00:01:16] Speaker 00: If Mr. Maytubby confessed, Officer White would go to the prosecutor and advocate an extraordinarily favorable mitigation narrative that minimized Mr. Maytubby's culpability. [00:01:26] Speaker 00: And maybe Mr. Maytubby could just get into some counseling and move on with life. [00:01:30] Speaker 04: What was so extraordinary? [00:01:32] Speaker 04: I thought he just said that his report would say he was a stand-up guy and he took responsibility. [00:01:37] Speaker 00: No, there were a lot of very specific things. [00:01:40] Speaker 00: So let me go through them. [00:01:42] Speaker 00: He said, I'm going to tell the prosecutor that you're a working man, family man, and a pastor. [00:01:47] Speaker 00: Everybody that we've spoken to says you're a good and honest man with a good heart, that I believe fundamentally you're a good person, that you just made a mistake and acted out of character, that [00:01:57] Speaker 00: This this happened four years ago. [00:01:59] Speaker 00: It hadn't happened since and you know stuff like this happens It doesn't mean you're the type of guy who does these things doesn't mean you're any kind of predator So what's what's the extraordinary part? [00:02:09] Speaker 00: The extraordinary part is that it is a comprehensive mitigation narrative [00:02:15] Speaker 00: presented from the assistant chief of police who has an in with the prosecutor. [00:02:20] Speaker 00: And this court has never sanctioned anything like that before. [00:02:23] Speaker 04: But the defendant doesn't know that. [00:02:25] Speaker 04: They have to introduce themselves at the start of the interview. [00:02:28] Speaker 04: They don't know each other. [00:02:29] Speaker 04: He's in his street clothes. [00:02:30] Speaker 04: Does that understand it? [00:02:31] Speaker 00: No, he wasn't in his street clothes. [00:02:33] Speaker 00: He wasn't in his uniform. [00:02:34] Speaker 00: He wasn't. [00:02:35] Speaker 00: So it didn't play into my briefing, but he testifies explicitly he's in his uniform. [00:02:41] Speaker 00: The district court finds he wasn't in his uniform. [00:02:44] Speaker 00: That's clearly incorrect. [00:02:46] Speaker 00: But to the extent it becomes important to the court, that's clearly wrong. [00:02:50] Speaker 02: But he doesn't. [00:02:50] Speaker 02: What is that? [00:02:52] Speaker 02: Are you suggesting that that's some kind of implied promise of leniency? [00:02:57] Speaker 02: Because he's basically saying, I'm going to tell the prosecutor you're a good guy. [00:03:01] Speaker 00: I think it was a lot more than that. [00:03:03] Speaker 02: I just heard what you just read, and I want to know how does that fit into the cases, because the cases on promises of leniency where we've said, yeah, you've gone too far, are very specific in terms of saying, well, you're going to get this many years instead of this many years. [00:03:20] Speaker 02: It's a specific statement about what will happen if he confesses. [00:03:26] Speaker 02: And I don't see anything like that. [00:03:29] Speaker 00: It fits into the case law in two ways. [00:03:31] Speaker 00: First, the cases have explicitly said that an inducement of any sort can render a confession involuntary. [00:03:40] Speaker 00: There's no case from this court that I've been able to find that the government has cited that it has to take the specific form of a explicit promise of leniency. [00:03:49] Speaker 00: And in fact, there's two cases, one from this court and one from the Supreme Court, [00:03:53] Speaker 00: that treat inducements other than guarantees about a sentencing outcome as productive of an involuntary confession. [00:04:02] Speaker 00: That's the Griffin case, which I cited, where the court treated a promise to protect the inmates' health and safety as an improper inducement, and the Haynes case from the Supreme Court, where the Supreme Court treated a promise of access to family as an improper inducement. [00:04:20] Speaker 00: So we have the general principle of law that [00:04:23] Speaker 00: Any inducement goes to produce a confession, an involuntary confession. [00:04:28] Speaker 00: And we have the case law that says misrepresentations. [00:04:35] Speaker 04: What was that? [00:04:36] Speaker 04: What if he would have said, this case has all the earmarks of one that will go federal. [00:04:40] Speaker 04: And you have all the earmarks of a guy who's going to cap out at the high level of 43. [00:04:46] Speaker 04: But if you accept responsibility, you get three levels off, and that's going to make the difference of 80 months in your sentence on the low end. [00:04:53] Speaker 04: Would you say that's an inducement, even though it's all true? [00:04:55] Speaker 00: No, that's the Perez case, in my view. [00:04:58] Speaker 00: There is a difference between providing accurate information about federal sentencing and promising to take direct action on the defendant's behalf and saying things that are misleading. [00:05:10] Speaker 04: Well, what is misleading about saying, here's our evidence, and if you're going to acknowledge that this is so, I'm going to go tell the prosecutor about that. [00:05:23] Speaker 04: No big shock there, and that you're a hard worker, stand-up guy, whatever else. [00:05:28] Speaker 00: That's the promise of direct action. [00:05:30] Speaker 00: The misleading aspect is when Officer White says, well, Mr. Maytubby says, how is this going to make a difference if you go to the prosecutor and do this? [00:05:39] Speaker 00: And Officer White says, ah, [00:05:41] Speaker 00: It'll make a big difference because you can, quote, get past this, get into some counseling, and move on with life. [00:05:47] Speaker 02: Well, he didn't say that. [00:05:48] Speaker 02: He said everyone. [00:05:50] Speaker 02: He talked about everyone. [00:05:52] Speaker 02: He mentioned the girl, the two young victims. [00:05:54] Speaker 02: He said everyone needs to get past this. [00:05:57] Speaker 00: I'm glad you mentioned this. [00:05:58] Speaker 00: That's important. [00:05:59] Speaker 00: Yes, I actually think it's important. [00:06:00] Speaker 02: Everyone needs to get some counseling. [00:06:02] Speaker 02: Everyone needs to move on. [00:06:04] Speaker 00: Right, including Mr. Maytubby. [00:06:05] Speaker 00: Here's why that supports my argument. [00:06:08] Speaker 00: Officer White's emotional healing framing? [00:06:11] Speaker 00: doesn't mean he wasn't actually talking about consequences. [00:06:14] Speaker 00: That was the vehicle that he used to deliver a message about consequences. [00:06:19] Speaker 00: What he would have been understood to be saying is this, we don't have to go the punitive route. [00:06:25] Speaker 00: This sort of rehabilitation and reconciliation is an alternative way forward to the punitive. [00:06:32] Speaker 00: What's that? [00:06:33] Speaker 05: He was saying that's an alternative to prison. [00:06:35] Speaker 00: He was saying, or that's how he would have been understood that it's an alternative to prison. [00:06:39] Speaker 00: Well, I think that's a reasonable interpretation. [00:06:41] Speaker 00: I think that's how Mr. Maytubby would have understood it. [00:06:44] Speaker 00: Yes. [00:06:44] Speaker 00: And it's in the context of Officer White saying, I'm going to go to the prosecutor and say, you're not a predator. [00:06:51] Speaker 00: You're not a future danger to anybody. [00:06:53] Speaker 00: And moreover, this specific mistake that you made four years ago, that can be healed. [00:06:59] Speaker 04: If that were so, if Mr. Maytubby had understood it that way, [00:07:03] Speaker 04: He would have said, you got a deal. [00:07:05] Speaker 04: Where do I sign? [00:07:06] Speaker 04: And yet we continue to go along with his denials. [00:07:09] Speaker 00: This is another critical point that I'm glad you brought up. [00:07:11] Speaker 00: That is what happened, because what Officer White had not done until the very end of the interrogation. [00:07:18] Speaker 00: So he talks about all these things he wants to do for Mr. Maytebi, but he doesn't make it clear that it's contingent on a confession. [00:07:25] Speaker 00: Then at the end of the interview, he says, look, I can't do these things for you. [00:07:30] Speaker 00: unless you're honest with me. [00:07:32] Speaker 00: And by honest, he's already rejected his denial. [00:07:35] Speaker 00: So by honest, he means confess. [00:07:36] Speaker 04: Well, you originally said that when the counseling idea was brought up, that was a promise, that he'd get counseling. [00:07:44] Speaker 04: And that's how Mr. Maytubby understood it. [00:07:46] Speaker 04: Which I say, why didn't Mr. Maytubby just accept the deal? [00:07:50] Speaker 04: And if that was his understanding, let me finish. [00:07:52] Speaker 00: Sorry. [00:07:52] Speaker 04: I know you're eager. [00:07:54] Speaker 04: But five minutes elapsed. [00:07:58] Speaker 04: And then it's a, so you're saying I can go? [00:08:00] Speaker 04: And the officer says, yes, you can go. [00:08:03] Speaker 04: And that's when Mr. Maytubby says, I did it, essentially. [00:08:09] Speaker 04: In other words, what he was concerned about is, if I admit it, I'm going to get arrested. [00:08:14] Speaker 04: And when he found out that wasn't so, he gave it up, said I need to talk to my wife, so forth. [00:08:20] Speaker 04: So the counseling thing is an inducement. [00:08:23] Speaker 04: I think that's got a temporal problem. [00:08:25] Speaker 00: And I'm sorry to interrupt your ride. [00:08:27] Speaker 00: I'm too eager. [00:08:29] Speaker 00: The problem is that Officer White only made clear that this was a quid pro quo at the end. [00:08:36] Speaker 00: When he's talking about counseling, he doesn't make it clear that this is only going to happen if you confess. [00:08:42] Speaker 00: He makes it clear that this is only going to happen if you confess, and Mr. Maytubby confesses within 30 seconds. [00:08:49] Speaker 00: That is, to me, compelling proof that the quid pro quo overcame his will. [00:08:55] Speaker 04: What about the acceptance of responsibility piece? [00:08:58] Speaker 04: And what the officer said was true. [00:09:00] Speaker 04: If you admit it, you get less time. [00:09:03] Speaker 00: If that had been all he had said. [00:09:05] Speaker 00: that would qualify as a limited assurance under cases like Lewis and the recent Perez case. [00:09:13] Speaker 00: The promise is all of the specifics that he promised made it more concrete and credible and less like an empty platitude. [00:09:23] Speaker 00: That's why we allow these limited assurances. [00:09:26] Speaker 00: They're not very persuasive. [00:09:27] Speaker 04: How about all of the other, the Lopez factors, the district court went through painstakingly [00:09:33] Speaker 04: Those all bear on what you're saying too. [00:09:36] Speaker 04: Was the person intimidated? [00:09:37] Speaker 04: What was the setting? [00:09:39] Speaker 04: How long was the interview? [00:09:41] Speaker 04: Was the person free to go and understand that? [00:09:43] Speaker 04: That all weighs in on this business about promises of leniency and so forth too, doesn't it? [00:09:50] Speaker 00: Yes. [00:09:51] Speaker 00: My response to that is this court's decisions in Lopez and Young. [00:09:57] Speaker 00: The way I read those is if you have a compelling inducement combined with the defendant being misled, that those two factors alone can produce an involuntary confession. [00:10:10] Speaker 00: You don't need other indicia of coercion, and you don't need the defendant being particularly susceptible to coercion. [00:10:21] Speaker 05: My problem's with the last minute, because at the very end of this [00:10:26] Speaker 05: interrogation, the officer says what his plan is. [00:10:32] Speaker 05: The ambiguity is removed at this point. [00:10:34] Speaker 05: He says, essentially, I think this is probably the only reasonable way to read it, but you can dispute it, that look, you did something four years ago, you haven't done anything since then, it was out of character, he may end up, and I'll go tell the DA that, and then [00:10:56] Speaker 05: His last sentence was, so he manned up. [00:10:58] Speaker 05: This is how it is. [00:10:59] Speaker 05: The guy acted out of character. [00:11:01] Speaker 05: Then the defendant says, well, then I can go home right now then. [00:11:06] Speaker 05: And an officer replies, OK. [00:11:09] Speaker 05: And then he confesses. [00:11:10] Speaker 05: That seems to be, it just sums up that all he was saying is, I'll tell the DA, he's not [00:11:21] Speaker 05: intimidating him with confinement and things like that. [00:11:25] Speaker 05: He's told he can go home, and then he decides to confess. [00:11:30] Speaker 05: That doesn't sound like coercion to me. [00:11:34] Speaker 00: It's the type of coercion that this court found in Young and Lopez. [00:11:37] Speaker 00: He was very friendly to him. [00:11:39] Speaker 00: He wanted to convince him, I'm the type of guy who's going to go to bat for you. [00:11:44] Speaker 05: By telling the DA exactly what happened, not saying anything false to the DA, [00:11:51] Speaker 05: But he needs him to confess before he can tell the DA that you confessed. [00:11:57] Speaker 05: And then he says, yeah, you can go home. [00:11:59] Speaker 05: And then he confesses. [00:12:00] Speaker 00: What he was promising to do was not what he'd been reported to by the kids. [00:12:05] Speaker 00: He was promising to minimize this to the DA. [00:12:09] Speaker 05: By how? [00:12:10] Speaker 05: By saying it was out of character, he'd been clean for four years. [00:12:14] Speaker 05: Yes. [00:12:14] Speaker 05: Which is true. [00:12:16] Speaker 00: I mean, we have no idea whether that's true. [00:12:18] Speaker 00: Officer White has no idea whether that's true. [00:12:21] Speaker 00: That's something that Mr. Maytubby confessing does not imply that Officer White knows that it's never been repeated for four years. [00:12:30] Speaker 00: It was totally out of character. [00:12:31] Speaker 05: The lie was, I'll tell them you didn't do anything because I don't know of anything you did, but you haven't [00:12:42] Speaker 05: You haven't provided compelling evidence that you didn't do anything before. [00:12:47] Speaker 05: I'll tell them that anyway. [00:12:48] Speaker 05: That's the lie. [00:12:50] Speaker 00: The extraordinary inducement was he was promising to advocate this mitigation narrative that he really didn't have any basis for. [00:12:58] Speaker 00: And the false statement is the statement about counseling, what the mitigation narrative can accomplish. [00:13:05] Speaker 00: She's summing up here. [00:13:07] Speaker 05: He says, this is what my plan was, and he sums it up. [00:13:10] Speaker 05: Doesn't mention I'm going to promise you that you can go do counseling instead of incarceration. [00:13:18] Speaker 05: There's nothing about that in the sum up. [00:13:21] Speaker 05: He said, this is what my plan was. [00:13:23] Speaker 00: Doesn't that remove the ambiguity? [00:13:26] Speaker 00: No, because Mr. Maytubby has already asked what the result of your plan is going to be. [00:13:30] Speaker 00: And he says, get past this, get in some counseling, and move on with life. [00:13:35] Speaker 00: So the fact that he says this at the end doesn't remove what he said before. [00:13:39] Speaker 00: He's referring back to what he said before. [00:13:41] Speaker 04: He's the one who says that he's going to get arrested. [00:13:44] Speaker 04: He knows he's going to get arrested. [00:13:46] Speaker 00: Sure. [00:13:47] Speaker 00: And the most common outcome in the criminal justice system is arrest, booked, released. [00:13:54] Speaker 04: I don't see how you can compare this case to Lopez Young. [00:13:58] Speaker 04: You have the agent saying, I know the judge, I can basically [00:14:03] Speaker 04: manipulate your sentence. [00:14:04] Speaker 04: Every true statement you tell us is going to bring your sentence down some. [00:14:08] Speaker 04: And in Lopez, unless you confess, I'm going to drag your mom in here and prove she's a liar and so forth. [00:14:15] Speaker 04: We don't have anything even like that in this case. [00:14:18] Speaker 00: I think it is like those cases for the two reasons that I mentioned. [00:14:21] Speaker 00: There's an extraordinary inducement of, and there's an extraordinary inducement that is so far beyond just saying, I'll go tell the prosecutor that you cooperated. [00:14:31] Speaker 00: So that's the extraordinary inducement is to tell this totally comprehensive mitigation narrative. [00:14:38] Speaker 00: So both cases have extraordinary inducements. [00:14:41] Speaker 00: And then we have the suspect is misled. [00:14:45] Speaker 00: He's misled about the consequences of what that intervention can be, that the leniency can be you get past this, get into counseling, and move on with life. [00:14:53] Speaker 00: So that's why I think it's parallel to Lopez and Young. [00:14:56] Speaker 00: Thank you. [00:15:02] Speaker 05: Ms. [00:15:02] Speaker 05: Williams. [00:15:10] Speaker 03: Good morning, Your Honors. [00:15:11] Speaker 03: Lisa Williams, representing the United States of America. [00:15:15] Speaker 03: I think that I would like to start with this concept of any inducement can lead to an involuntary confession. [00:15:21] Speaker 03: because that's simply not the law. [00:15:24] Speaker 03: Induce, I looked up the definition in the dictionary in preparation of the argument, succeed in persuading or influencing someone to do something. [00:15:32] Speaker 03: Black's law defines it as the act or process of enticing or persuading another person to take a certain course of action. [00:15:40] Speaker 03: Your honors, you can induce me to talk about a certain topic related to this brief by asking a question. [00:15:47] Speaker 03: And so inducing by itself, [00:15:49] Speaker 03: is not what the law is concerned about. [00:15:51] Speaker 03: The law is concerned about improper inducements. [00:15:55] Speaker 03: And so simply because Mr. Maytelby may have been induced by a mitigation report does not lead to the conclusion that his confession, if we're going to call it a confession, was involuntary. [00:16:07] Speaker 03: What the defense has to establish is some sort of improper [00:16:11] Speaker 03: inducement. [00:16:12] Speaker 02: Coercive? [00:16:13] Speaker 02: Is that what you're saying? [00:16:15] Speaker 02: Where is the line? [00:16:17] Speaker 03: Well, there does have to be coercive conduct in order for the confession to be involuntary. [00:16:24] Speaker 03: That was the Young case. [00:16:25] Speaker 03: So if there's no coercion, then you cannot find involuntariness. [00:16:30] Speaker 03: And the improper inducement would lead to the conclusion that there is coercive conduct. [00:16:35] Speaker 03: But then you still have to look at the 3501 factors and the Lopez factors and take in the totality of the circumstances. [00:16:44] Speaker 03: The case is cited by the defense to argue that any inducement can be coercive. [00:16:51] Speaker 03: Do not say that. [00:16:53] Speaker 03: First, the Hays case from the Supreme Court is a 1963 case about a robbery that took place in Spokane, Washington. [00:16:59] Speaker 03: The defendant in Hayes was held, I believe, for four total days, but he was not arraigned. [00:17:06] Speaker 03: He was not provided his right to counsel, his right not to speak. [00:17:10] Speaker 03: There was a whole host of coercive activity that took place. [00:17:13] Speaker 03: And along with that is they said, well, we'll let you call your wife if you just sign this confession. [00:17:18] Speaker 03: And in Hayes, he had confessed orally, but he didn't want to sign the written confession because in 1963, we didn't have [00:17:25] Speaker 03: videotapes and recordings. [00:17:27] Speaker 03: And so the written confession was really what the police wanted him to do. [00:17:30] Speaker 03: And so that call your wife is a tiny, tiny part of what the Supreme Court had serious issue with in Hayes. [00:17:38] Speaker 03: Griffith, the other case cited, is equally not just as simple as the defense say. [00:17:45] Speaker 03: Because when you look at what the defense cites in their reply brief, it seems like it's a case just about inducement. [00:17:51] Speaker 03: But they left off the first sentence of that quote. [00:17:53] Speaker 03: which says where a promise of leniency has been made in exchange for a statement, an inculpatory statement would be the product of inducement and thus not an act of free will. [00:18:03] Speaker 03: And so Griffith is a promise of leniency as the inducement. [00:18:08] Speaker 03: It's not a freestanding inducement. [00:18:10] Speaker 03: And so this circuit or the Supreme Court has never just acknowledged this vague concept that any inducement can lead to coercion. [00:18:20] Speaker 03: It has to be an improper [00:18:22] Speaker 04: indiscriminate so what so what if the officer asked something that it her induced in a way that he knew was really unlikely it had the officer said we've had a lot of sex offenders in here and i've got twenty years in the department as he said and uh... most the time the judges says get some counseling and we cut you loose you'll probably be arrested not go through a couple of inconvenient court hearings but are what we really want is for you to [00:18:50] Speaker 04: start feeling better about yourself and so forth and so on, that would be improper. [00:18:56] Speaker 03: So I think that gets, yes, Your Honor, I think it's much closer to improper because that's what I was going to say next is when this circuit has found improper inducement, it's been a promise of leniency combined with a misstatement of law or fact. [00:19:10] Speaker 03: That's some, reading the cases, that's what I could deduce as the equation for improper inducement is you have to have this promise of leniency in this case, [00:19:19] Speaker 03: Well, we'll get you counseling. [00:19:21] Speaker 03: That's also not true, right? [00:19:24] Speaker 03: And so as the panel noted in questioning counsel, nothing Officer White said to Mr. Maytubby was a lie. [00:19:35] Speaker 04: Well, let me go back to my question, which was, can the officer do that and it's not an improper inducement? [00:19:42] Speaker 04: And you said that's closer or something, but you're still not saying that would be improper inducement? [00:19:47] Speaker 03: Well, I think, again, [00:19:50] Speaker 03: I think I could agree that it's improper inducement. [00:19:54] Speaker 03: Where I would not agree is that it's necessarily coercive so that the confession is involuntary. [00:19:59] Speaker 03: Because I think the court would have to look at the remaining Lopez factors and the totality of the circumstances. [00:20:04] Speaker 03: The case law has been clear that not one single factor is ever determinative in deciding whether or not a confession is involuntary. [00:20:10] Speaker 04: If we look at the recording, we listen to the words, and we say, Mr. Maytubby may well have understood that that's what was being dangled to him. [00:20:18] Speaker 04: Is that a reversal? [00:20:20] Speaker 01: No. [00:20:21] Speaker 04: Even if if you came in and said he understood that, would that be a reversal? [00:20:26] Speaker 01: No. [00:20:31] Speaker 03: So in this case, there's not a promise of leniency. [00:20:35] Speaker 03: And there's not a misrepresentation. [00:20:37] Speaker 03: You're not going to say why you say no? [00:20:40] Speaker 03: I'm interested also. [00:20:42] Speaker 03: I've learned to only answer the question asked. [00:20:45] Speaker 03: That was a yes or no question. [00:20:47] Speaker 03: Well, now there's a new question. [00:20:48] Speaker 03: No, because again, with all things like, let's take a step back and really look at this. [00:20:54] Speaker 03: Your Honor, I saw a little look on your face when you called it an interrogation, because it's really hard to call this an interrogation. [00:21:00] Speaker 03: He's in the break room. [00:21:03] Speaker 03: of the police station where the victim's grandma was interviewed the day before. [00:21:08] Speaker 03: He's free to go. [00:21:09] Speaker 03: He came down voluntarily. [00:21:11] Speaker 03: He's advised of his rights. [00:21:14] Speaker 03: Officer White is described as the nicest, perhaps the nicest police officer ever. [00:21:20] Speaker 03: And so, and Mr. Maytubby is of average intelligence. [00:21:26] Speaker 03: He understands what's going on. [00:21:28] Speaker 03: He understands the charges against him. [00:21:30] Speaker 03: He's not susceptible to, you know, [00:21:33] Speaker 03: not getting what's going on. [00:21:35] Speaker 03: And part of that average intelligence is knowing he's being accused of sexually abusing children. [00:21:42] Speaker 03: And it doesn't take a rocket scientist to figure out that you can't do that under any circumstance, right? [00:21:49] Speaker 03: This is not a crime that's hard to understand. [00:21:51] Speaker 03: And so even if Officer White had made a misrepresentation [00:21:58] Speaker 03: or you can get counseling instead. [00:21:59] Speaker 03: I mean, it's just so far beyond the pale for that to be a reasonable interpretation. [00:22:03] Speaker 03: And then you combine it with the fact that I think it's important what Mr. Maytubby said at the end, please don't arrest me at my work. [00:22:12] Speaker 03: He understands the gravity of what's going on. [00:22:15] Speaker 03: He understands what he just confessed to. [00:22:17] Speaker 03: And he didn't confess to it because of some, you know, [00:22:24] Speaker 03: unreasonable inference that he really thought he was going to get away with counseling instead of being arrested because he knows he's getting arrested and he says, please don't do it at my work. [00:22:34] Speaker 03: So I think again, not one single factor is determinative in this interview, but with all, and let's not forget it's 26 minutes long. [00:22:43] Speaker 03: I mean, this is not a four day long interrogation. [00:22:46] Speaker 03: It's not a four hour long interrogation. [00:22:48] Speaker 03: It is less than a half an hour and it's a conversation [00:22:52] Speaker 03: that is civil and polite and friendly. [00:22:56] Speaker 03: And I also do think that what the court hit on, the timing of the confession is key because Mr. Maytubby says, all right, well then I wanna go. [00:23:08] Speaker 03: And Officer White says, okay. [00:23:12] Speaker 03: And then he says, well, I'm gonna say yes, I did it. [00:23:16] Speaker 03: I mean, Officer White didn't say, [00:23:19] Speaker 03: Are you sure you want to go? [00:23:21] Speaker 03: Can you just stay a little bit longer? [00:23:22] Speaker 03: Oh, well, if you leave now, I'm going to really have to write that into the report." [00:23:26] Speaker 03: He said, okay. [00:23:27] Speaker 03: He said, go ahead. [00:23:28] Speaker 03: And then Mr. Maytubby decides knowingly and voluntarily to say, okay, yes, I'm going to say I did it. [00:23:38] Speaker 03: And so with all those factors, even if there was some slight misrepresentation with everything else that's going on, I don't think that there would be sufficient [00:23:50] Speaker 03: facts to find that that confession was involuntary and should have been suppressed. [00:23:58] Speaker 03: I also want to take up the issue with the counseling, because this is not a promise of counseling in lieu of prison. [00:24:07] Speaker 03: And I'm not going to read. [00:24:09] Speaker 03: The government tried to transcribe as much as the interview correctly. [00:24:13] Speaker 03: I did want to say, [00:24:16] Speaker 03: Defense counsel pointed out in his brief 1 error in transcription and I went back and listened and I agree with his I apologize for that wrongly transcribed part and I do believe that defense counsel's choice of words is correct. [00:24:31] Speaker 03: It was a bit hard to hear. [00:24:32] Speaker 03: So, but on page 9 of the brief is where this conversation takes place. [00:24:39] Speaker 03: And defendant, Mr. Maytebi asked, so what's the difference? [00:24:42] Speaker 03: I mean, it's going to be the same, right? [00:24:43] Speaker 03: Because officer White is saying, no, well, you know, maybe it's a one-off thing or you stand up guys. [00:24:48] Speaker 03: So what's the difference? [00:24:49] Speaker 03: It's going to be the same. [00:24:50] Speaker 03: He doesn't say, oh, well, we'll just get you into counseling. [00:24:53] Speaker 03: That is completely taken out of context. [00:24:55] Speaker 03: What he says is, no, there are people in the world that this is their MO. [00:24:58] Speaker 03: And then there's people that drink and do drugs and they make mistakes. [00:25:02] Speaker 03: And then it's not, there's people that's not part of their day. [00:25:03] Speaker 03: I mean, he goes through this very long conversation with him. [00:25:08] Speaker 03: And then he's saying, you know, you got to talk to God. [00:25:11] Speaker 03: If you're, you said you're a pastor, so if you want to talk to God about it, talk to God. [00:25:14] Speaker 03: But I, and then he says, I think it's happened. [00:25:17] Speaker 03: I think you're the kind of guy, I think you've probably been struggling with it. [00:25:20] Speaker 03: The girls struggle too. [00:25:21] Speaker 03: And I don't think they deserve to struggle. [00:25:23] Speaker 03: I don't think you deserve to struggle. [00:25:24] Speaker 03: I think it's everybody, I think it's something that everybody needs to get past, get into some counseling, move on with their life. [00:25:32] Speaker 03: That's the reference to counseling. [00:25:34] Speaker 05: It is completely unreasonable to... You don't think saying move on with your life means move on with your free life? [00:25:42] Speaker ?: In prison? [00:25:42] Speaker 03: No. [00:25:42] Speaker 03: I don't, Your Honor, because again of the nature of these charges. [00:25:46] Speaker 05: And that it couldn't possibly have thought that he would escape prison. [00:25:51] Speaker 03: Correct. [00:25:52] Speaker 03: That is an unreasonable inference. [00:25:54] Speaker 03: And I agree that it doesn't that the question is that what officer white minute was how the defendant interpreted it. [00:26:01] Speaker 03: But it is unreasonable for any defendant to interpret it that way. [00:26:05] Speaker 02: And at this level of review, why is it unreasonable after he's just spent the last few minutes just building this guy up and tell him how he's different than all these other [00:26:16] Speaker 02: folks who assault young children. [00:26:19] Speaker 02: He's not like them. [00:26:20] Speaker 02: This is a one-off deal. [00:26:22] Speaker 02: And, oh, by the way, you're a really good person and I'm going to tell the prosecutor how good you are. [00:26:28] Speaker 02: And then, oh, by the way, everybody just needs to get counseling and move on with their lives. [00:26:34] Speaker 03: Everybody, including you. [00:26:36] Speaker 03: Well, because, Your Honor, that's not necessarily what he spent the last [00:26:45] Speaker 03: several minutes doing he didn't say you're, you know, for example, he didn't say you're different from everyone else. [00:26:50] Speaker 02: Well, that was that long piece you just read. [00:26:52] Speaker 02: That was implication of all of that is you're not like some of these other defendants. [00:26:57] Speaker 02: I've seen all these people and you're different. [00:26:59] Speaker 03: Correct. [00:26:59] Speaker 03: Well, you could be like some of these defendants, not some of these, you know, some people [00:27:05] Speaker 03: do it because they're on drugs. [00:27:06] Speaker 03: Maybe you were on drugs and that's why you did it. [00:27:09] Speaker 02: I'm just saying all of that precedes that line about moving on with your life, getting some counseling, everybody can do that this way, you just have to confess. [00:27:20] Speaker 02: Is that reasonable to assume that? [00:27:22] Speaker 03: No, because there's no, the only tie-in to avoiding prison is move on with your life and that's not a sufficient enough, the government said that's not a sufficient enough statement [00:27:33] Speaker 03: to then be interpreted, move on with your life, means no prison. [00:27:40] Speaker 03: I think if he would have said, get counseling and avoid prison, this would be a different case. [00:27:48] Speaker 03: But that's not what this officer said. [00:27:50] Speaker 03: And as you noted, Judge Warren, he also said everyone needs counseling. [00:27:54] Speaker 03: The girls need counseling. [00:27:56] Speaker 02: I think this officer shows his words very well. [00:27:59] Speaker 02: He's trained. [00:27:59] Speaker 02: He knows what to do. [00:28:00] Speaker 02: He is very trained. [00:28:01] Speaker 02: Yeah. [00:28:01] Speaker 02: Right? [00:28:01] Speaker 03: Well trained. [00:28:04] Speaker 03: He is trained, he chose his words carefully. [00:28:07] Speaker 03: This is a very well-run interrogation, conversation. [00:28:12] Speaker 03: But at what point, how can that then be unconstitutional? [00:28:17] Speaker 03: He knows where the line is that this court has set. [00:28:20] Speaker 03: He's not making misrepresentations. [00:28:22] Speaker 03: He's not making promises of leniency. [00:28:25] Speaker 03: He's doing everything that the case law requires of him so that this isn't coercive. [00:28:34] Speaker 03: And never before has a court recognized that like saying, you know, we call it a mitigation report. [00:28:43] Speaker 03: It's not a mitigation report. [00:28:44] Speaker 03: Those are defense counsel's words. [00:28:46] Speaker 03: What he said is I'm going, I've done my interview and I'm going to write everything up, which means he's going to write the statement of the girls up, the grandma's statements, the evidence that he's collected along with this confession. [00:28:57] Speaker 03: So the spin that we're seeing on it is not necessarily what the report is. [00:29:04] Speaker 03: or what was promised. [00:29:08] Speaker 03: What was promised is what was stated. [00:29:09] Speaker 03: So it just seems that there is no misrepresentation about a fact or a law, and there is no promise of leniency. [00:29:22] Speaker 03: And when we're trying to make inferences and trying to decide what's reasonable, the standard of review is to give an interpretation [00:29:32] Speaker 03: that matches up with the district court's interpretation. [00:29:34] Speaker 03: And the district court found three times that there was no course of activity on the part of Officer White during this conversation. [00:29:42] Speaker 03: And so given the totality of the circumstances, the government would request that this court affirm the district court's holding. [00:29:52] Speaker 03: Thank you. [00:29:53] Speaker 05: Mr. Lee, have some more time? [00:29:56] Speaker 05: Good. [00:30:04] Speaker 00: Briefly, opposing counsel says that the Haynes case doesn't mean we care about an inducement of any sort. [00:30:10] Speaker 00: But let me read what Haynes says. [00:30:12] Speaker 00: Quote, the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort. [00:30:20] Speaker 00: That's just what it says. [00:30:22] Speaker 00: Second, this inducement was improper because it was not a limited assurance within the meaning of this court's case law, and it was accompanied by this deceptive statement about counsel. [00:30:32] Speaker 00: So I'd ask that you refer. [00:30:33] Speaker 04: Are you saying our precedent is out of line with Haynes? [00:30:36] Speaker 00: No. [00:30:37] Speaker 00: I don't think so. [00:30:38] Speaker 00: I do think that this court's carved out a limited assurance, which is just basically making vague statements or statements about what the law in general already requires. [00:30:51] Speaker 05: Thank you. [00:30:52] Speaker 05: Thank you, counsel.