[00:00:00] Speaker 03:
We'll call 24-4058, U.S.

[00:00:03] Speaker 03:
versus Nakai.

[00:00:05] Speaker 03:
Mr. Palmer.

[00:00:14] Speaker 03:
Oh, I didn't check to make sure Judge Kelly.

[00:00:18] Speaker 03:
You all set, Judge Kelly?

[00:00:21] Speaker 04:
Man, I'm waiting for my coffee to be delivered.

[00:00:27] Speaker 03:
We'll just take a nap until we finish.

[00:00:30] Speaker 03:
OK.

[00:00:32] Speaker 03:
Oh, that's how you see it.

[00:00:33] Speaker 03:
OK, great.

[00:00:34] Speaker 03:
You may proceed.

[00:00:37] Speaker 02:
Good morning.

[00:00:37] Speaker 02:
May it please the court, Joseph Palmer for the government.

[00:00:41] Speaker 02:
The test for whether a suspect is in custody, this court reviews de novo.

[00:00:46] Speaker 02:
And that test is whether there are restraints on the suspect's freedom of movement to a similar degree as a formal arrest.

[00:00:54] Speaker 01:
So I'm going to stop you right there, because I'm not sure we were in agreement on what the standard of review is.

[00:00:59] Speaker 01:
The ultimate question is de novo.

[00:01:01] Speaker 01:
But it's a very fact-intensive inquiry.

[00:01:04] Speaker 01:
And we're here reviewing the district court's order in the light most favorable to the district court's determination.

[00:01:12] Speaker 01:
Isn't that right?

[00:01:12] Speaker 02:
I agree with that, Your Honor.

[00:01:16] Speaker 02:
That the subsidiary findings of fact, which we aren't challenging, are

[00:01:22] Speaker 02:
this court would defer to those findings.

[00:01:24] Speaker 02:
But our submission to you is taking the facts as the district court found them, do they add up to restraints on Mr. Nakai's freedom of movement to the same degree as if he were arrested?

[00:01:38] Speaker 03:
And our primary submission is that there weren't restraints.

[00:01:42] Speaker 03:
And in your argument, your position is that our review of that issue is de novo.

[00:01:46] Speaker 03:
Correct.

[00:01:47] Speaker 03:
And I don't think that's disputed, Your Honor.

[00:01:53] Speaker 02:
There weren't restraints on Mr. Nakai's freedom of movement in this case.

[00:01:57] Speaker 02:
He accepted a polite request to speak with agents in their unlocked, unmarked vehicle that was parked on his own property just a few feet from his front door.

[00:02:09] Speaker 02:
He wasn't searched.

[00:02:10] Speaker 02:
He wasn't handcuffed.

[00:02:12] Speaker 02:
He wasn't touched.

[00:02:14] Speaker 02:
He entered the vehicle, opened the door, and got inside on his own.

[00:02:18] Speaker 02:
The interview was relatively brief.

[00:02:21] Speaker 01:
Was there a finding that the doors were

[00:02:23] Speaker 01:
locked or unlocked?

[00:02:25] Speaker 01:
Is that just an inference you're asking us to draw?

[00:02:27] Speaker 02:
No, the judiciary court found that the doors were in fact unlocked.

[00:02:32] Speaker 01:
And what about whether Mr. Nakai knew that?

[00:02:36] Speaker 02:
There's no finding of whether Mr. Nakai knew that.

[00:02:39] Speaker 02:
I believe the finding is that they were visibly unlocked.

[00:02:42] Speaker 02:
And Mr. Nakai's subjective knowledge is of course not relevant.

[00:02:48] Speaker 02:
The test is whether a reasonable person in Mr. Nakai's position

[00:02:53] Speaker 02:
would believe that the doors were unlocked or locked.

[00:02:55] Speaker 02:
And we think the reasonable person would know that the doors were unlocked because he opened the door to get into the car.

[00:03:04] Speaker 02:
And there was no indication in the findings that something happened to cause them to be locked.

[00:03:08] Speaker 02:
And then at the close of the interview, he opened the door back up again and left.

[00:03:12] Speaker 02:
And so in those circumstances, I don't think it would be reasonable for a reasonable person in that situation to think that the doors were locked.

[00:03:19] Speaker 02:
In addition, he was in the front seat of an unmarked vehicle

[00:03:23] Speaker 02:
not in the rear of a police vehicle where if a suspect were arrested, you would expect them to be positioned.

[00:03:34] Speaker 02:
And so in this case, Mr. Nakai freely left the vehicle at the end of the interview, and that is also a factor that weighs against a finding of custody in this case.

[00:03:47] Speaker 01:
And the encounter was over 40 minutes.

[00:03:50] Speaker 02:
It was, correct, around 41 minutes, I think, is the duration of the interview.

[00:03:54] Speaker 02:
That is an amount of time, I think, in comparison to the case law that's considered to be relatively brief.

[00:04:00] Speaker 02:
It's shorter than the interview in the Jones case.

[00:04:03] Speaker 02:
It was 45 minutes to an hour.

[00:04:05] Speaker 02:
And so I think in that case, the duration of the interview is a factor that weighs against a finding of custody, in addition to the fact that Mr. McKay was released at the end of the interview.

[00:04:25] Speaker 02:
Where the district court, in our view, went awry in ascribing inordinate weight to a few factors.

[00:04:33] Speaker 02:
One of them is that we concede as a factor against the government in this case that the agents did not specifically advise Mr. Nakai that he was free to decline to speak with them.

[00:04:44] Speaker 02:
But this court's cases make clear that that is just one factor among many.

[00:04:47] Speaker 02:
And when the other factors indicate that there aren't restraints on

[00:04:52] Speaker 02:
the suspect's freedom of movement, then an interview can still be non-custodial.

[00:04:57] Speaker 02:
There's no pre-Miranda requirement that every time the police talk with a suspect, they must advise him that he's free to terminate the interview and leave.

[00:05:11] Speaker 02:
And we've cited to this court that the closest case that we could find factually to what happened here is the Eighth Circuit's decision in the Johnson case.

[00:05:21] Speaker 02:
where no advisement was given, and where the sort of physical setup of the interview in terms of taking place in the officer's vehicle with two agents and the suspect in the front seat of the vehicle was all on all fours with this case.

[00:05:34] Speaker 01:
But in Johnson, I thought the court said that the government there, the agents there didn't use strong arm tactics, right?

[00:05:43] Speaker 01:
And here, how are we supposed to understand that

[00:05:52] Speaker 01:
Mr. Nikai was told he needed to confess, and the nature of the encounter, as understood by the district court, seems to have involved the things missing in Johnson.

[00:06:05] Speaker 02:
I don't think what happened here amounts to strong-arm tactics, but let me first come back to what happened in Johnson.

[00:06:09] Speaker 02:
In some ways, the questioning in Johnson was more difficult for the suspect, because the agents not only accused him of committing the crime, but they

[00:06:21] Speaker 02:
had definitive DNA testing that established beyond any doubt that the story that the suspect was telling was false.

[00:06:27] Speaker 02:
And they confronted him with that irrefutable evidence.

[00:06:33] Speaker 02:
Now, in this case, it's true that the agent's questioning was designed to elicit a confession.

[00:06:42] Speaker 02:
And it's true that they confronted Mr. Nakai with the victim's account.

[00:06:48] Speaker 02:
And it's true that they didn't believe his attempt to tell them that it was the child who had initiated the sexual contact.

[00:06:55] Speaker 02:
But none of that went to the suspect's freedom of movement.

[00:07:02] Speaker 02:
The Supreme Court's decision in Oregon against Mathiasen is clear, that the nature of the questioning only goes to the custody inquiry if it effectively implies a restraint on the suspect's freedom of movement.

[00:07:14] Speaker 02:
In that case, the officers accused the suspect of committing a burglary.

[00:07:18] Speaker 02:
And they lied to him and told him, your fingerprints were found at the scene.

[00:07:23] Speaker 02:
And that elicited a confession from the suspect.

[00:07:26] Speaker 02:
And the Supreme Court said, but that questioning has nothing to do with the custody inquiry, because it didn't effectively communicate to the suspect, you're arrested, and you're no longer free to leave the interview.

[00:07:40] Speaker 02:
And so in our view, the district court gave inordinate weight to the nature of the question.

[00:07:47] Speaker 04:
Reporting in progress.

[00:07:49] Speaker 02:
Where you should.

[00:07:50] Speaker 02:
Should I pause, Your Honor?

[00:07:51] Speaker 02:
No.

[00:07:52] Speaker 02:
You gave inordinate weight to the nature of the questioning and didn't make a finding that the questioning effectively communicated to Mr. Nakai that he was effectively under arrest.

[00:08:04] Speaker 02:
And if we look at the larger.

[00:08:05] Speaker 01:
So I'm sorry.

[00:08:06] Speaker 01:
So is your argument on that point reliant on Kaziki?

[00:08:09] Speaker 01:
You started by saying that you don't question any of the district court's findings.

[00:08:12] Speaker 01:
You're not challenging any of the findings underlying the ultimate determination for clear error, right?

[00:08:17] Speaker 02:
Correct.

[00:08:17] Speaker 01:
So are you saying the court didn't make a necessary finding to support its reliance on the nature of the confrontation or the nature of the questioning?

[00:08:31] Speaker 02:
I think we would characterize maybe a little bit differently that we would say that this court should look at the nature of the question.

[00:08:38] Speaker 02:
What the district court found as to what was said and or implied in the question as a historical matter, this court should defer to that.

[00:08:46] Speaker 02:
And I think that's clear in the record.

[00:08:48] Speaker 02:
The Disha Court sat in detail what the agent said to Mr. Nakai.

[00:08:51] Speaker 02:
We're not disputing that that was what was said.

[00:08:53] Speaker 03:
There's a recording anyway.

[00:08:54] Speaker 02:
There's a recording.

[00:08:56] Speaker 02:
But what we think this court should look at independently is part of the de novo question would be, did that questioning suggest to a reasonable person that he wasn't a restraint on freedom of movement of the same degree as a formal arrest?

[00:09:14] Speaker 02:
That's always the overarching question, regardless of which non-exhaustive factors the court considers, the court should always be coming back to, does this look like a formal arrest situation?

[00:09:27] Speaker 02:
When defendants are arrested, it looks different from what happened here.

[00:09:31] Speaker 02:
Defendants are normally searched, they're normally handcuffed.

[00:09:34] Speaker 02:
If they're put in a police vehicle, it's in the backseat of it.

[00:09:37] Speaker 02:
There's multiple officers on the scene.

[00:09:39] Speaker 02:
Sometimes weapons are drawn.

[00:09:40] Speaker 01:
But the point of an arrest... What have we said about how much like an arrest it has to be?

[00:09:45] Speaker 01:
I mean, what is really the difference between, in the government's view, between what's needed to show arrest and show custody?

[00:09:52] Speaker 02:
I think it's very close.

[00:09:54] Speaker 02:
Of a similar degree, I think, as a formal arrest, I think, is the language that's used in the Supreme Court's cases and in this Court's cases.

[00:10:02] Speaker 02:
And so the resemblance to an arrest situation, I think, has to be quite strong.

[00:10:06] Speaker 02:
in order for an interview to be deemed to be custodial.

[00:10:10] Speaker 02:
Because that's what we're asking.

[00:10:13] Speaker 02:
We're not saying there have to be physically restraints, but a reasonable person has to perceive the situation as restraining to a similar degree as if he were actually arrested.

[00:10:24] Speaker 03:
And our sub... And the Supreme Court has said when you are in custody, such as an interview at a prison or an interview after a traffic stop when you're not free to leave,

[00:10:37] Speaker 03:
doesn't amount to custody under Miranda.

[00:10:42] Speaker 03:
So it's not just whether you're free to leave.

[00:10:44] Speaker 03:
Even if you're not free to leave, there's still apparently, clearly more needed before it's like an arrest.

[00:10:53] Speaker 03:
Is that correct?

[00:10:54] Speaker 02:
That's correct.

[00:10:54] Speaker 02:
The Supreme Court in House versus Fields held in the prison context

[00:10:58] Speaker 02:
that when a prisoner was taken from the cell to a separate conference room in the prison, that that wasn't necessarily custody for Miranda purposes.

[00:11:06] Speaker 02:
And the same thing with traffic stops are generally not considered to be custodial for Miranda purposes.

[00:11:10] Speaker 02:
Because in addition to the restraints on the freedom of movement, the Supreme Court has said there has to be coercive pressures of a kind of similar degree when an actual custodial interrogation is taking place.

[00:11:24] Speaker 03:
Let me ask about the nature of the question.

[00:11:28] Speaker 03:
He did not confess at this point, did he?

[00:11:31] Speaker 03:
He said things, or did he?

[00:11:34] Speaker 03:
Or did he still say it was the child's fault?

[00:11:38] Speaker 03:
Did he ultimately confess in this?

[00:11:42] Speaker 03:
I may be totally confused.

[00:11:46] Speaker 02:
Confession.

[00:11:47] Speaker 02:
I think he did admit that sexual contact had occurred, but he persisted, I think, in saying that

[00:11:53] Speaker 02:
that he wasn't the one that initiated it.

[00:11:56] Speaker 03:
And at what point did he admit that sexual contact had occurred?

[00:12:00] Speaker 03:
How far into the interview?

[00:12:05] Speaker 03:
In particular, was it before the officers started accusing him of lying and saying you need to confess?

[00:12:14] Speaker 03:
Had he admitted the sexual conduct before then?

[00:12:17] Speaker 02:
I think the answer to that question is yes, Your Honor, that relatively early,

[00:12:23] Speaker 02:
in the interview, he told the officers that what had happened was that the child was giving him a massage and that she had slipped.

[00:12:33] Speaker 02:
And it was at that point that the officers then began to engage in the form of questioning that the district court thought weighed in favor of custody when they said, look, we don't believe you that that's what has occurred.

[00:12:44] Speaker 03:
So if custody depends on whether the officers are being overbearing in their questioning, does that just mean that

[00:12:54] Speaker 03:
Miranda is required before the next step of the interrogation when the officers are starting to accuse him.

[00:13:02] Speaker 03:
In other words, say we thought that the overbearing questioning is what made this custody.

[00:13:09] Speaker 03:
If there was nothing new elicited after that, would that save you?

[00:13:18] Speaker 02:
Well, I think it would as to the statements that occurred before that.

[00:13:20] Speaker 02:
So in other words, I think if I'm understanding your Honor's question, we agree that the court could draw a line at a certain point and say, the interview was not custodial before that point.

[00:13:31] Speaker 02:
And then at a certain point, it became custodial.

[00:13:34] Speaker 02:
And that would mean that only statements that occurred after that point would be subject to suppression.

[00:13:40] Speaker 02:
And the court did something like this in the Guillen case, where it found agents were conducting a search.

[00:13:47] Speaker 02:
And at first, the court said initially it wasn't custodial, but as they presented the suspect with all the bomb components that they were finding in the house, that it got to the point where it was inevitable that the defendant would be arrested.

[00:13:58] Speaker 02:
And the court said, OK, custody began at that point.

[00:14:00] Speaker 01:
Did you present it that way in your opening brief?

[00:14:04] Speaker 02:
I don't know, Your Honor.

[00:14:06] Speaker 02:
Our submission has been that the entire interview was non-custodial because there weren't restraints on the suspect's freedom of movement and that the nature of the questioning

[00:14:16] Speaker 02:
By analogy to the Supreme Court's decision in Oregon versus Mathias, it didn't add up to an implication that the defendant's freedom of movement was restrained.

[00:14:25] Speaker 02:
It's not enough just that the agents elicited a confession or didn't believe the suspect's excuses.

[00:14:32] Speaker 02:
That's happened in many cases in which courts have found no custody.

[00:14:36] Speaker 02:
And if I could reserve the final minute of my time.

[00:14:49] Speaker 00:
May it please the court, Jessica Stengel on behalf of Mr. Andy Nuckeye.

[00:14:53] Speaker 00:
The government says it takes no issues with the district court's findings of fact, but yet that isn't true.

[00:14:58] Speaker 00:
In their opening brief, at least 21 times, and in their reply brief, at least 10 times, they characterize what happened as voluntary.

[00:15:05] Speaker 00:
In this context, that's a factual determination.

[00:15:07] Speaker 00:
Is it?

[00:15:08] Speaker 00:
It is, Your Honor, and it's not supported by anything in the record.

[00:15:12] Speaker 03:
Voluntary depends on what the officers did.

[00:15:14] Speaker 03:
That's a legal question.

[00:15:16] Speaker 03:
It's a mixed question of fact and law, which, as a constitutional issue, we review to no vote.

[00:15:22] Speaker 00:
I think when we're determining if a statement is voluntary under Miranda, you're right.

[00:15:28] Speaker 00:
It is a legal question.

[00:15:29] Speaker 00:
In this context, it is a factual determination that goes to the overall question of whether Mr. Nakai was in custody when being interrogated by law enforcement.

[00:15:39] Speaker 03:
And whether he's in custody.

[00:15:41] Speaker 03:
That's a mixed question of law and fact that we reviewed de novo.

[00:15:45] Speaker 00:
Am I wrong about that?

[00:15:47] Speaker 00:
You're not wrong about custody, but I think we're disagreeing in terms of voluntary in this case.

[00:15:51] Speaker 00:
What was a factual determination that the district court did not find support in any of the evidence presented and did not make such a finding that the government repeatedly uses it in its briefing does not turn it into something that it is not.

[00:16:04] Speaker 01:
I think you can proceed from the point of departure based on the government's

[00:16:07] Speaker 01:
statements to us this morning that they do not challenge any of the facts as clearly erroneous.

[00:16:12] Speaker 03:
The question is at what level it's a fact.

[00:16:15] Speaker 03:
The historical facts are not being challenged.

[00:16:18] Speaker 03:
The legal consequences of those historical facts is a matter that we review denomely.

[00:16:24] Speaker 00:
100% agree.

[00:16:25] Speaker 00:
And I think we can look to Miranda versus Arizona to appreciate, quote, the very fact of a custodial interrogation

[00:16:33] Speaker 00:
exacts a heavy toll on individual liberty.

[00:16:36] Speaker 00:
This court, in determining custody, takes three, looks at three, consistently, excuse me, looks at three considerations.

[00:16:45] Speaker 00:
Whether there was police advisement, and this is not the first of one equals, in many cases, this is dispositive.

[00:16:52] Speaker 00:
And necessarily, this makes sense.

[00:16:53] Speaker 00:
And I think we can find support for this in this court's determination in Wagner, where the court said that a person is repeatedly told that he is free-determined in an interview

[00:17:03] Speaker 00:
is powerful evidence that a person would have understood he was free to terminate the interview.

[00:17:08] Speaker 00:
The inverse necessarily must be true.

[00:17:11] Speaker 00:
That a person is not told necessarily means they understand they are not free to terminate the interview.

[00:17:21] Speaker 03:
See, I thought this issue of being told you're free to leave takes on significance when you're in what looks like a custodial situation.

[00:17:32] Speaker 03:
And by telling the person you're free to leave, you negate the oppressiveness of the encounter.

[00:17:45] Speaker 03:
It seems to be somewhat circular.

[00:17:48] Speaker 00:
As this court has used it, it is one consideration in determining custody.

[00:17:53] Speaker 00:
And this makes sense, necessarily.

[00:17:55] Speaker 03:
And if the facts would otherwise likely lead to a finding of custody, a determination of custody, but the officers clearly stated to the suspect, you're free to leave, then it wouldn't be custody.

[00:18:10] Speaker 03:
I think that's the way in which it has...

[00:18:14] Speaker 03:
You're probably wrong, but this is my understanding, my impression from the case law, that if you look at the times when this is a determinate factor, it's when it's used the other way.

[00:18:25] Speaker 03:
And when everything looks oppressive, it's going to be custody unless there is a statement by the officers that you're free to leave, such as the airport case.

[00:18:38] Speaker 00:
In Griffin, I think you have it exactly backwards.

[00:18:42] Speaker 00:
It is oftentimes the determinative factor in determining custody.

[00:18:47] Speaker 00:
And again, I'm going to say that this makes sense, because any officer-citizen interaction is inherently coercive.

[00:18:53] Speaker 00:
We've all entered into a social contract that depends.

[00:18:56] Speaker 03:
If not telling someone they're not free to leave establishes custody, then every traffic stop requires Miranda warnings, because they're always in custody.

[00:19:09] Speaker 03:
They're not free to leave.

[00:19:12] Speaker 03:
Why doesn't that follow from what your analysis says?

[00:19:16] Speaker 00:
I think the traffic situation and much like the situation in Howes versus Field is fundamentally different.

[00:19:24] Speaker 00:
Here we have an officer who, two officers, individually drove their unmarked but very clear police vehicles onto a remote road where there's a remote person.

[00:19:37] Speaker 00:
But it was his property.

[00:19:38] Speaker 00:
His property.

[00:19:39] Speaker 01:
How should we be thinking about the fact that it was his property when we

[00:19:42] Speaker 01:
We're taking that fact, historical fact, but we're reviewing de novo.

[00:19:45] Speaker 00:
Sure.

[00:19:47] Speaker 00:
I think we look at it in terms of whether this was a police-dominated atmosphere, quite frankly.

[00:19:51] Speaker 00:
Again, putting it back into this court's analytical framework.

[00:19:55] Speaker 01:
Did the district court find it was a police-dominated atmosphere?

[00:19:58] Speaker 00:
Yes.

[00:19:58] Speaker 01:
And is that a factual finding?

[00:20:00] Speaker 00:
It is a legal determination supported by the facts of the record.

[00:20:07] Speaker 03:
Any more questions on that?

[00:20:08] Speaker 03:
I think the question is, do we defer to that?

[00:20:11] Speaker 03:
and review it only for clear error, or do we review that de novo?

[00:20:16] Speaker 00:
You review the legal determination de novo, and the facts are undisputed, so you take those as given, and you take any reasonable inference from those facts in the light most favorable to the district court's ruling.

[00:20:29] Speaker 03:
Now, we're using the word facts.

[00:20:33] Speaker 03:
We have to be precise about what you mean by a fact.

[00:20:36] Speaker 03:
And do you agree that it's the historical facts that we defer to the

[00:20:41] Speaker 03:
district court on, but the characterizations such as oppressive, custody, whatever, those mixed questions of law in fact.

[00:20:54] Speaker 03:
We reviewed de novo.

[00:20:55] Speaker 03:
Do you disagree with that?

[00:20:57] Speaker 00:
You reviewed de novo with all reasonable inferences being drawn in favor of upholding the district court's ruling.

[00:21:03] Speaker 03:
all reasonable inferences about what?

[00:21:05] Speaker 03:
About historical facts?

[00:21:07] Speaker 03:
Or are you saying, because if it's a mixed question of law and fact, which I think voluntary and custody are, then my understanding was, and correct me if I'm wrong, because then I need to rethink this.

[00:21:21] Speaker 03:
On those matters, we reviewed de novo.

[00:21:24] Speaker 00:
Custody is a legal determination that is reviewed de novo.

[00:21:28] Speaker 00:
In this particular setting, voluntary is a factual determination that the district court

[00:21:33] Speaker 00:
did not make.

[00:21:34] Speaker 00:
For example, the government says that it was obvious.

[00:21:41] Speaker 00:
Let's go with voluntary.

[00:21:42] Speaker 00:
The government says that Mr. Nakai voluntarily got into the truck.

[00:21:46] Speaker 00:
The way that it happened was that the FBI agent asked the Navajo investigator, why don't we get into my ride?

[00:21:54] Speaker 00:
And then turned to Mr. Nakai and says, why don't you, would you like to sit in the front seat?

[00:21:59] Speaker 03:
Whether that was voluntary, it seems to me we have to review de novo.

[00:22:03] Speaker 00:
No, I would disagree, Your Honor.

[00:22:04] Speaker 00:
That's a factual determination that we cannot, and the district court didn't make it, so any inference drawn must be made in favor of the district court's ruling.

[00:22:13] Speaker 00:
Gee, I thought there plenty is... So we can, I think we can look to United States versus Jones for a very good example of how this court deals with what is, what is a legal question versus what is a factual question.

[00:22:30] Speaker 00:
Because in Jones...

[00:22:32] Speaker 03:
There's a mixed question of law and fact.

[00:22:34] Speaker 03:
That's what we're most interested in here.

[00:22:38] Speaker 03:
What actually happened that you reported what the officer said, what Mr. Nakai said, and so on.

[00:22:46] Speaker 03:
Those are historical facts.

[00:22:48] Speaker 03:
Those we review for clear air if there were findings.

[00:22:51] Speaker 03:
Once we characterize that and say the Mr. Nakai

[00:22:57] Speaker 03:
voluntarily got into the car or he was in custody.

[00:23:00] Speaker 03:
Those are mixed questions of law and fact.

[00:23:04] Speaker 03:
And because this is a constitutional issue, particularly in the Miranda context, we review that de novo.

[00:23:13] Speaker 03:
To what extent?

[00:23:15] Speaker 00:
Go ahead.

[00:23:16] Speaker 00:
I think you and I are going to have to agree to disagree on this matter because the only legal question at issue here is whether Mr. Nakai, Nakai, excuse me,

[00:23:26] Speaker 00:
was in custody.

[00:23:27] Speaker 01:
Based on all of the facts found by the district court viewed in the light most favorable to that determination.

[00:23:33] Speaker 01:
Yes, Your Honors.

[00:23:34] Speaker 03:
Wait, wait, wait, wait.

[00:23:36] Speaker 03:
I thought you agreed that whether he's in custody based on the historical facts is a mixed question of law and fact that we reviewed de novo.

[00:23:44] Speaker 03:
You don't agree with that.

[00:23:45] Speaker 00:
I disagree with that statement, but... Oh my gosh.

[00:23:48] Speaker 03:
That's fundamental.

[00:23:49] Speaker 01:
We'll have to look at that.

[00:23:51] Speaker 01:
Now I'm confused, too.

[00:23:52] Speaker 01:
I thought that you agreed that the ultimate determination was reviewed de novo.

[00:23:55] Speaker 00:
The ultimate, 100%, the issue of custody is reviewed de novo.

[00:24:00] Speaker 00:
And all of the historical facts, which nobody disagrees with, we all accept them as true.

[00:24:05] Speaker 03:
That's for clear error.

[00:24:08] Speaker 03:
We reviewed them in the light most favorable.

[00:24:11] Speaker 00:
And all the inferences drawn from those facts have to be reviewed in the light most favorable to the district court's ruling.

[00:24:18] Speaker 03:
Voluntariness is a legal issue.

[00:24:20] Speaker 03:
You can't say,

[00:24:23] Speaker 03:
That person observed the voluntariness.

[00:24:25] Speaker 00:
Voluntariness is a legal issue only when it comes in the context of after having been Mirandized and the defendant is arguing that his will was overcome.

[00:24:33] Speaker 00:
We can look at United States versus Pettigrew, which was an older case, and then from 2024, United States versus Little.

[00:24:40] Speaker 03:
Those are very clear in terms of the- I've taken too much of your time on this issue.

[00:24:44] Speaker 03:
We'll just have to figure that out.

[00:24:46] Speaker 01:
How can we say that your client was in custody when there's no physical contact and only two officers, it was honest property?

[00:25:00] Speaker 01:
Why isn't taking all of these sorts of facts as not clearly erroneous?

[00:25:05] Speaker 01:
The officers didn't raise their voices and that we still would

[00:25:09] Speaker 01:
would say that there was custody here as a matter of law.

[00:25:12] Speaker 00:
So with the first factor, police advisement, that clearly didn't happen.

[00:25:15] Speaker 00:
Mr. Nakai could not know that he was free to leave.

[00:25:18] Speaker 00:
So then we look at whether it was a police-dominated atmosphere.

[00:25:24] Speaker 00:
And then we can finally look at whether the nature of the interrogation was coercive and accusatory.

[00:25:30] Speaker 00:
And I'm going to work backwards.

[00:25:31] Speaker 00:
The nature of the interrogation was absolutely coercive and accusatory.

[00:25:37] Speaker 00:
repeated accusations of him being a bad guy, of him not telling the truth.

[00:25:43] Speaker 00:
And in fact, at one point, the FBI officer, the FBI agent says to Mr. Nakai, quote, is that what you're selling me?

[00:25:51] Speaker 00:
This is entirely dissimilar from the questioning in Jones and entirely on point with the questioning in Griffith, where it was repeated and prolonged accusations of wrongdoing with no possibility for anything other than that.

[00:26:06] Speaker 00:
Then we can look at whether this was a police-dominated atmosphere.

[00:26:11] Speaker 00:
And many things go into that particular consideration.

[00:26:17] Speaker 00:
We have officers, one of them who had a gun visible and one wearing the law enforcement badge, they put Mr. Nakai into a police truck on his own property.

[00:26:29] Speaker 00:
Nobody else was around.

[00:26:29] Speaker 00:
No one was going to overhear this.

[00:26:32] Speaker 00:
They deliberately took him

[00:26:34] Speaker 00:
kept him out of his home, away from his wife.

[00:26:37] Speaker 00:
This was a police truck.

[00:26:39] Speaker 00:
There was a police radio that had to be turned down and there was a rifle rack.

[00:26:43] Speaker 00:
The fact of where Mr. Nakai was sitting is irrelevant.

[00:26:48] Speaker 00:
In Jones, she was in the back seat and she was found not to be in custody.

[00:26:54] Speaker 00:
In large part because repeatedly the officer told her she was free to go, she didn't have to answer any questions, the officer repeatedly showed her

[00:27:03] Speaker 00:
that the door was unlocked.

[00:27:05] Speaker 00:
There was nothing coercive or overbearing and domineering about that encounter.

[00:27:09] Speaker 00:
It was the precise opposite of what happened here.

[00:27:12] Speaker 00:
And finally, the government wants this court to consider whether Mr. Nakai, consider the fact that Mr. Nakai was released at the end of his interrogation.

[00:27:24] Speaker 00:
This court does not consistently use this factor in determining whether a person was in custody, and it makes sense.

[00:27:31] Speaker 00:
It's somewhat of a

[00:27:32] Speaker 00:
curious factor in that custody would be determined based on what happens after the fact of the interrogation.

[00:27:40] Speaker 00:
And in this particular instance, based on the facts of this case, Mr. Nakai wasn't just told, all right, get out of here, buddy, he was told very specifically, you're free to go inside.

[00:27:53] Speaker 00:
Implicit in that statement are two things.

[00:27:56] Speaker 00:
One, that he was not free to go before that, and two, he was free to go inside telling

[00:28:02] Speaker 00:
which conveyed to him that law enforcement knew exactly where to find him when they came back because they knew that he had done something wrong.

[00:28:11] Speaker 03:
Let me ask you a question with regard to oppressive.

[00:28:14] Speaker 03:
Your view is the entire time they were in the car, there was the oppressive atmosphere that required a Miranda warning.

[00:28:23] Speaker 03:
Is that correct?

[00:28:24] Speaker 03:
No.

[00:28:24] Speaker 03:
Or did it happen at some point during the time in the car that it became oppressive enough that Miranda warnings were required?

[00:28:32] Speaker 00:
The latter, Your Honor.

[00:28:33] Speaker 03:
And at what point was that?

[00:28:36] Speaker 00:
I think drawing a bright line for any particular issue is somewhat of a dangerous exercise.

[00:28:40] Speaker 00:
But what I will say is that the recording, which you guys have, and the FBI agent himself characterized it as it started conversational, but then turned confrontational.

[00:28:51] Speaker 00:
The first nine minutes of this interaction were benign.

[00:28:55] Speaker 00:
Absolutely.

[00:28:58] Speaker 00:
Did he?

[00:28:58] Speaker 00:
Nothing happened.

[00:28:59] Speaker 00:
And then it turned into,

[00:29:02] Speaker 00:
a full-on interrogation because the officer knew, the officer believed, and this is what he told Mr. Nuckeye, that you're lying and that the victim is telling the truth.

[00:29:11] Speaker 03:
So in the first nine minutes, did he say that he had had contact, sexual contact, with the victim?

[00:29:20] Speaker 03:
No, Your Honor.

[00:29:21] Speaker 03:
There was no discussion.

[00:29:22] Speaker 03:
He didn't admit at all that he

[00:29:25] Speaker 03:
At one point, she's saying it was her fault.

[00:29:28] Speaker 03:
She's the one who initiated the contact.

[00:29:30] Speaker 03:
That was not in the first nine minutes?

[00:29:32] Speaker 00:
No.

[00:29:33] Speaker 00:
And the potentially... That was early on.

[00:29:37] Speaker 04:
I've got the transcript right here.

[00:29:40] Speaker 04:
And the ancient said, tell me about the massage that she used to give.

[00:29:45] Speaker 04:
I told her to just massage right here.

[00:29:47] Speaker 04:
It got out of hand.

[00:29:48] Speaker 04:
She just slipped.

[00:29:50] Speaker 04:
I said, no.

[00:29:52] Speaker 04:
The ancient said, I don't believe you.

[00:29:55] Speaker 04:
Mr. Knock, I never admitted to anything.

[00:30:03] Speaker 04:
And the agent said, well, he said, I'd be sitting in the labor room, she'd come in and start punching me.

[00:30:10] Speaker 04:
Not stroking stuff here.

[00:30:12] Speaker 04:
Agent, I know it did happen.

[00:30:15] Speaker 04:
And if you talk about it again, that's all I know.

[00:30:18] Speaker 04:
Never admitted anything.

[00:30:21] Speaker 00:
I'm out of time.

[00:30:23] Speaker 00:
May I respond?

[00:30:24] Speaker 03:
Yes.

[00:30:25] Speaker 00:
So to the extent that there were potentially incriminating statements made, it happened within the first 15 minutes, so only six minutes after they had finished chit-chatting.

[00:30:39] Speaker 00:
And the agent persisted then for another 15, 20 minutes in accusing Mr. Nakai of being a liar and of being basically a bad person.

[00:30:51] Speaker 00:
These are the very strong-arm tactics that Miranda very specifically warned against 60 years ago.

[00:30:55] Speaker 00:
Nothing's changed.

[00:30:57] Speaker 04:
For that reason, this court should... He specifically said, I don't think you're a bad guy.

[00:31:04] Speaker 04:
He said you're a bad guy.

[00:31:07] Speaker 04:
Sure.

[00:31:09] Speaker 04:
As Miranda... We can listen to the interview tape.

[00:31:12] Speaker 04:
We've got the tape.

[00:31:13] Speaker 04:
We can listen to it.

[00:31:14] Speaker 00:
You can listen to it, and I will just end with Miranda notes that one of the very

[00:31:20] Speaker 03:
Tools.

[00:31:21] Speaker 03:
Thank you, Your Honor.

[00:31:24] Speaker 03:
Thank you.

[00:31:25] Speaker 03:
Mr. Palmer, you have a few seconds.

[00:31:30] Speaker 02:
Thank you, Your Honor.

[00:31:30] Speaker 02:
Just very briefly, one point about voluntariness.

[00:31:33] Speaker 02:
We agree that that issue is part of the legal determination that this Court would review de novo.

[00:31:39] Speaker 02:
But even if it weren't, I think the District Court effectively found that Mr. Micaiah's participation in entering the truck was voluntary when it found as a factor favoring the government

[00:31:50] Speaker 02:
And I'm quoting from page 37 of the district court's order, which is found at page 124 of the appendix, that Mr. Nikai, quote, complied with the agent's request to enter the agent's truck.

[00:32:01] Speaker 02:
And I don't think that would be a factor that favored the government if the district court's view had been that that was the case.