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Case number 15-3003, United States of America appellate versus Joseph Daniel Hofford.

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Mrs. Sable for the appellate, Ms.

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Jeffress for the appellate.

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May it please the Court, David Sable, on behalf of the United States.

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Good morning.

[00:00:21] Speaker 02:
Good morning.

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This was a legally erroneous conclusion by the Court.

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The Court failed to take account of the requirement of Colorado v. Connolly that there must be substantial police coercion causing the statement.

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Under the case law, the government action, even as the Court found the facts to be, did not rise to the level of a due process violation.

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The district court's conclusion did not account for the fact that the appellee twice declined to consent to searches of his medical records and of his car.

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This fact stood in stark contrast to the court's conclusion that the appellee's will had been overborn.

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The court did not account for the fact that Appellee understood the difference between medical detention and police custody because he twice said, am I in trouble?

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Am I under arrest?

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And the agents told him, no, you're not in trouble.

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You're not under arrest.

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He understood the difference, Your Honor.

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And finally, the District Court didn't account for the fact that before the interview,

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The agent spoke to the staff at GW Hospital.

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They took a couple minutes at the interview to assess appellee's demeanor.

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And so they had no way of knowing, of being on notice, that there were these subjective vulnerabilities of appellee that they needed to be aware of.

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And this court has said that where the district court errs in weighing the totality of the circumstances in a voluntariness case, it will reverse.

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And that's the Eunice case from this circuit.

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Moreover, under the Unis case, the Unis case is helpful because it instructs, it teaches a lot about the voluntariness analysis.

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One thing that the Unis case says is the best barometer of the defendant's subjective ability to make a voluntary statement is his behavior at the time.

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And so in Eunice, for example, the defendant had fractured wrists.

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He was kept in a hot room.

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He was seasick.

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And the court said, look, he was alert.

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He was lucid.

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He was able to give a detailed statement.

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He agreed to speak.

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And so we're going to look at those factors.

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And that's the best barometer of whether the statement is voluntary.

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We're also going to look at those factors and understand that the defendant here would not have understood the hot, cramped room.

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He would not have understood the seasickness as induced towards making an involuntary statement.

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And here, the same is true.

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Appellee would have understood, yes, I'm in a hospital.

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Yes, I'm tired.

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I may be hungry, even though he's refusing food.

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But he would not have understood these factors to go towards any kind of compulsion to make an involuntary statement.

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But the problem that I see with that argument is that the Secret Service are the very first people that it appears that he speaks to from this record once he's taken to the United Medical Center.

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He's been strapped to a gurney and involuntarily committed against his will and taken from G. W. Hospital to U. M. C. And before he even talks to a doctor there, the first people he's brought to see by hospital staff are secret service agents who are asking him about statements he made to the doctors at G. W. So doesn't that create a circumstance where

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he would reasonably believe that he needs to talk to these secret service agents if he wants to get out of there.

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Well, with respect, your honor, I don't think that those are quite the facts.

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I think that he's told at GW that he's being committed by the doctors.

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And the nursing notes there say it was explained to him.

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He didn't like it, but it was explained to him.

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And then when he gets to UMC, they haven't evaluated him

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But he's somewhere in the building, and he's brought by the medical staff, including the doctor, in the building into this doctor's lounge.

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So we don't know exactly what had taken place, but it doesn't appear that... You didn't put the evidence on, right?

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I'm sorry?

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You didn't put any evidence on about that.

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Well, what we, yes, well, what the agent said is we came to UMC, we asked to see him, and they said, we're gonna put you in this room, is that okay?

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And they said, they said yes, and then he is brought to the room by- But you didn't put on any evidence about what the medical staff told him about what this meeting was for, why he was going there?

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or any of that, right?

[00:05:04] Speaker 00:
No, we don't have that at UMC.

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We do have the medical records from UMC and we have the medical records from GW, Your Honor.

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And the medical records from GW say that the FD-12 was explained to him and that he didn't agree with it, but it had been explained to him.

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All right, but the medical records from UMC, at least my review of him, doesn't reveal anything about what he was told before he was brought in to see the Secret Service.

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I don't recall seeing that either, Your Honor.

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But I don't think it would be reasonable to infer from those medical records that he hadn't talked to anybody at all.

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I mean, they hadn't completed the initial assessment of him, but it doesn't appear that he arrived contemporaneously with the appellee.

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with the agents.

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The district judge suppressed two items of evidence.

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One is statements to the agents and the other the material found in his automobile.

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I'm hard put to see why his statements to the agency mattered if you had the evidence derived from his car.

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Your Honor, the only reason that the agents were able to find his car and knew to find his car was the fact that he had told them that he had the weapons in his car.

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So they are the fruit at this point of the statement.

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I understand that's the theory that Judge Leon used, but my question is, let's suppose that he's wrong that the evidence from the automobile should be suppressed.

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Do we even have to reach the question whether the defendant was in custody at the hospital and therefore the statement should be suppressed too?

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What difference does it make what he said at the hospital in light of the evidence?

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found in his car.

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Well, that would be right if there were another, and we did argue at the trial level, Your Honor, that the evidence would have been inevitably discovered because the car had been ticketed twice and it was in a public area.

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I'm shocked that it wasn't towed.

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Exactly.

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It would have been, certainly it would have been towed.

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It would have been found.

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It was in a high traffic area where the park police routinely patrol.

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And so in that sense, there would have been a basis for advancing, for locating that car.

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You didn't make a Nixby Williams argument before us did you?

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No, we did not, Your Honor.

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But I'm still back to my question, and maybe you don't understand it.

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Let's suppose that we assume that he was in custody.

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Assume that at the hospital.

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Yes, Your Honor.

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And that the district court should have held that as a result of that, his statements should not have been suppressed.

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Assume that.

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That he was, that he should have been warned, but it was nonetheless voluntary.

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Is that what the court is saying?

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No, I'm saying suppose the district court was wrong and holding that he was in custody.

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Oh, I'm sorry.

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Thank you.

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And therefore the district court erred in suppressing the statements that he made at the hospital.

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But it was a harmless error because those statements didn't amount to a hill of beans in light of the, the, um, evidence from the car.

[00:08:31] Speaker 03:
Well, yes.

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That would be perhaps if there had been a trial, right, but there hasn't been a trial at this point.

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There hasn't been a trial at this point.

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Certainly, if the statement is voluntary but nonetheless taken in violation of Miranda underpertain, the evidence nonetheless becomes available.

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If the evidence would inevitably have been discovered, then the evidence would be available and the statements are of little moment at trial.

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That's correct.

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We haven't had a trial.

[00:09:01] Speaker 04:
Well, I understand.

[00:09:02] Speaker 00:
Yeah.

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I'm sorry, Ron.

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Maybe I'm not correctly grasping the thrust of your question.

[00:09:07] Speaker 04:
But you appealed under 18 USC 3731, right?

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We took the interlocutory appeal.

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Yes, Ron.

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Can I ask you about something different?

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The government here makes a sort of unusual argument in asking the court not to consider

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the trial judge's written decision.

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Is that still the position of the government, that those are so substantially different that the court should not consider them?

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It is our position, and we made the argument in the brief, Your Honor.

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I don't think it's something that the Court needs to reach, nor do we feel the Court needs to reach the findings of clear error, because we think the voluntariness finding is error in and of itself, even as the Court found the facts.

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But we do think that it's unfair to consider a written opinion, even if

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It's only embellishment of the earlier findings after any party has briefed the case.

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It just gives an appearance of impropriety that this court should not be a party to.

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That's our view of it.

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That seems to be what the First Circuit is saying.

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Nobody's pointing any fingers or making any accusations.

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But sometimes these opinions can be helpful to the court to memorialize what the district court wants to say.

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We understand that.

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This court hasn't said that.

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But in this circumstance, it probably comes two months too late.

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What was the timing on that?

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You had 30 days to file your notice of appeal and filed it on the 30th day.

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We waited on purpose to the last day for that very reason.

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So the... Because Judge Leon said, I'm going to furnish an opinion?

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Right.

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So the case was argued in August.

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When we got to December, he said, I didn't have a chance to write it, but here are my oral findings.

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The appellant was released.

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He said, I'm going to issue a written finding because I know you're going to appeal me, so give me a chance to do that.

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So we waited to the 30th day.

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We filed the notice of appeal.

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That was mid-January, and the written order didn't come out until May.

[00:11:18] Speaker 03:
So your contention is that the police, in order to really fall within the Supreme Court case law,

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with respect to involuntariness, there needs to be some evidence of actual police coercion in the sense of deception or something of that nature, right?

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That's your position.

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Yes, that's... And I guess what I'm trying to drill down on here with my earlier question and where I am now is if the Secret Service

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based on all the evidence understands that this person has been involuntarily committed in that he's been committed and the basis of the commitment or statements that he's made to doctors at GW and immediately upon his commitment, they asked to speak to him about statements, those statements he made to the doctor at GW.

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They're in effect asking him about the basis of his commitment.

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And why wouldn't he perceive that he needs to cooperate with that if he wants to not be involuntarily committed anymore?

[00:12:51] Speaker 00:
a couple things your honor first of all he's committed to g w he's not moved to u m c because he's committed he's moved to u m c because it's psychiatric facility uh... he's committed at g w he's there for almost twenty four hours before he's moved to u m c uh... secondly

[00:13:08] Speaker 00:
In these medical detention cases, this is typically the scenario that the person who's in a car crash goes to the hospital.

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The doctors are treating him because of the car crash.

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The police want to talk to him because of the car crash.

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But a reasonable person, or even a person subjectively, would understand there's a difference between the doctors are here to treat me and the police are here to ask me about potential criminal activity.

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You know, I'm making a bomb in my house and the bomb blows up.

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I go to the hospital because my fingers are blown off.

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The doctors are going to treat me.

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I might be in restraints.

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The police are going to come talk to me because they're concerned about a bomb going off.

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So it gives rise to both, but people understand the difference.

[00:13:50] Speaker 03:
But the police in the hypothetical you're posing

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The police don't potentially hold the keys to whether you get out of the hospital or not.

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And they didn't hear.

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They didn't hear.

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They do if you're perceived as not cooperating with them and they're asking you about the statements that were the basis of your hospitalization.

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So the insight that we have into Appellee's thought process is the agents show up and he says, am I in trouble?

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Am I under arrest?

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And they say, no, you're not in trouble or under arrest.

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We just want to talk to you about your statements.

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And then after he tells them about the guns, he says, am I going to be arrested?

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And they say, well, that's not up to us.

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That's up to the prosecutors to make that decision.

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He understood the difference between police

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and doctors.

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He'd been arrested twice before.

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He'd been hospitalized before.

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He understood the difference.

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And when he wanted to say, no, you can't look at my medical records, no, you can't look in my car, he was able to say that.

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How can you say he was so volitionally impaired?

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How can you say that the agents, just by being nice, so overbore his will that he wasn't able to say no, that that's an involuntary statement?

[00:15:06] Speaker 00:
Yes.

[00:15:07] Speaker 00:
We have to assume, because the experts said it, that he was volitionally impaired, and that the agents did, he was volitionally impaired.

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But that was Colorado versus Connolly.

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You know, in Colorado versus Connolly, they knew he, they knew he'd been involuntary, he had psychological problems, he'd been involuntary hospitalized, but they took his statement anyway, because he seemed okay at the time.

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And what Justice Rehnquist said in Colorado vs. Connolly is there's no right to make a confession when you're totally

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There's no right of a criminal defendant to confess to his crime only when totally rational and properly motivated.

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We don't know why people choose to confess.

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Usually it's a bad idea, but they do that.

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There has to be a quantum of government coercion or else it's simply not a due process violation.

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We're talking about a due process violation and I just want to say these agents are assigned to the protective intelligence detail.

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Okay?

[00:16:09] Speaker 00:
What they do is when somebody threatens the president, when somebody makes a threat that – or makes a comment that could be a concern to somebody they protect, they go out and they complete their threat assessment questionnaire.

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They ask these questions, and they include, what did you do?

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What did you say?

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But they also include, do you have military service?

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Do you have any weapons?

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Because they're going to alert people, relevant authorities, whether it's a crime or not, to this information.

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They're assessing the threat.

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And so this agent had conducted 200 interviews and not made a single arrest.

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He's not trying to trick anybody.

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I grant you that there are times, and a lot of these people have mental issues that they end up talking to.

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I grant you there are times they're probably going to talk to people and maybe the statement will end up being involuntary and then you have a Hobson's choice of assess the threat or maybe lose the evidence.

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But this isn't such a case.

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Did the agents know before they began questioning the defendant that he drove to the mall with a car and left it there and didn't know where it was?

[00:17:11] Speaker 00:
They knew that he had driven the car, but they didn't know where it was.

[00:17:15] Speaker 00:
They knew that he was on the Korean War Memorial and that he'd had to take a cab or an ambulance to the hospital.

[00:17:23] Speaker 04:
Did they know that because the hospital staff told them that?

[00:17:28] Speaker 00:
Yes.

[00:17:30] Speaker 04:
Was there any motion to suppress the statements that he made to the hospital people?

[00:17:41] Speaker 00:
Not to my knowledge.

[00:17:45] Speaker 00:
No, I'm going with trial counsel who's indicating no.

[00:17:49] Speaker 04:
Do we know what those statements were, by the way?

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Was there any evidence put on regarding what he said, not to the agents, but to the hospital staff?

[00:17:59] Speaker 00:
I don't recall, and I would have to look to see if it was anything about a car.

[00:18:03] Speaker 00:
Actually, I do recall, he said, and it is in the hospital records that he said that he had driven from Alabama the day before, that he stayed at a hotel, and that he had gone to the mall, that he had participated in this anonymous demonstration, that he didn't like what people had said, that he bared his chest and dared the Secret Service to shoot him because he wanted to own the Secret Service.

[00:18:27] Speaker 00:
that he threatened a doctor if he didn't get his pain medication at GW.

[00:18:32] Speaker 00:
That is all on the record.

[00:18:33] Speaker 04:
And that's what triggered the Secret Services' interest in him.

[00:18:37] Speaker 00:
That's exactly right.

[00:18:38] Speaker 00:
So the GW then sends an email to the Secret Service, hey, we think maybe we should talk to this guy.

[00:18:43] Speaker 00:
And then they go to GW.

[00:18:45] Speaker 00:
Well, he's no longer there.

[00:18:46] Speaker 00:
He's at UMC.

[00:18:47] Speaker 00:
So then they drive down to UMC.

[00:18:48] Speaker 00:
This is the next day.

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And UMC has not yet completed their initial evaluation.

[00:18:54] Speaker 00:
And that's how we get to this point.

[00:18:57] Speaker 00:
If there are no further questions, we'd ask that the court reverse the voluntariness finding.

[00:19:02] Speaker 00:
Thank you.

[00:19:15] Speaker 01:
May it please the court.

[00:19:16] Speaker 01:
Jonathan Jefferson on behalf of Mr. Hallford.

[00:19:20] Speaker 01:
The district court correctly found that under the totality of the circumstances here, Mr. Hallford's statements were involuntary.

[00:19:26] Speaker 01:
The district court applied the appropriate legal standard and correctly assessed both sides of the equation, the actions of law enforcement and the circumstances of Mr. Hoffer.

[00:19:35] Speaker 01:
The circumstances of Mr. Hoffer was in.

[00:19:37] Speaker 01:
A useful way to approach the analysis here is to compare the circumstances and the result of the interview law enforcement conducted on November 6th with the interview they attempted to conduct on November 8th.

[00:19:49] Speaker 01:
On November 8th, Mr. Holford's involuntary commitment expired and he was formally arrested.

[00:19:54] Speaker 01:
He was released to law enforcement, formally arrested and transported to a police station.

[00:20:01] Speaker 01:
At this point, he'd been provided psychiatric treatment for two days.

[00:20:05] Speaker 01:
He had undergone the initial assessment at UMC and been told what he was there for.

[00:20:11] Speaker 01:
They had stabilized him, and his treating physician felt he was sufficiently stabilized that he could be released.

[00:20:17] Speaker 01:
He'd had medication for his physical ailments and his psychiatric condition.

[00:20:21] Speaker 01:
He'd had therapy.

[00:20:23] Speaker 01:
So he was released to the police.

[00:20:24] Speaker 01:
He was given back his clothes.

[00:20:26] Speaker 01:
And once at the police station, the agents again attempted to interview him, but this time they mirandized him first.

[00:20:33] Speaker 01:
And the outcome on the 8th was that Mr. Hawford invoked his Fifth Amendment right to remain silent.

[00:20:38] Speaker 01:
And so that demonstrates, really beyond dispute, that in the absence of all of the coercive pressures that Mr. Hoffer was under from both sides of the equation, both the coercive pressure from what the agents were doing, from the circumstances of his involuntary commitment, and then what was going on internally with Mr. Hoffer, the physical issues he was struggling with, the mental health issues he was struggling with, those coercive pressures were the but for cause of this confession.

[00:21:05] Speaker 02:
I assume that you would agree

[00:21:07] Speaker 02:
that volitional impairment by itself is not enough to make his statement involuntary.

[00:21:15] Speaker 02:
I do agree with that.

[00:21:17] Speaker 02:
Okay.

[00:21:17] Speaker 02:
So what is it then beyond what was impairing his volition?

[00:21:23] Speaker 02:
the physical ailments, the pain, so forth.

[00:21:26] Speaker 02:
What is it that the agents did that you think rises to the level of substantial coercion?

[00:21:35] Speaker 01:
I would put it basically in three different categories.

[00:21:38] Speaker 01:
There were things the agents affirmatively did to, and I would put this in the category of what Colorado versus Connolly recognized as subtle psychological

[00:21:46] Speaker 01:
tricks that they engaged in that might not be objectionable if this was a normal circumstances, but that are objectionable under these circumstances.

[00:21:55] Speaker 01:
Two, I would say there are things that they took advantage of, that they freeroad on knowingly, which primarily is the fact that this man is involuntarily committed in the psychiatric ward of a hospital.

[00:22:09] Speaker 01:
And that they sort of took advantage of that.

[00:22:12] Speaker 01:
And then three things they refrained from doing.

[00:22:14] Speaker 04:
What are they supposed to do?

[00:22:16] Speaker 04:
They have information from the hospital that he drove from Alabama that there's an automobile and that he was talking about violence, talking about getting shot by the Secret Service.

[00:22:31] Speaker 04:
We don't know where the car is.

[00:22:34] Speaker 04:
What are they supposed to do?

[00:22:35] Speaker 04:
Wait till he gets out of the hospital before talking to him?

[00:22:38] Speaker 04:
I mean, there's an automobile and there's a potential for that automobile to have weapons and it's on the mall.

[00:22:45] Speaker 04:
What are they supposed to do?

[00:22:46] Speaker 04:
Well, I think in this circumstance, I mean, what they have... They took advantage of the fact that he was involuntarily committed.

[00:22:54] Speaker 04:
Well, I'm asking you, if that's taking advantage of him, what, you know, what are they supposed to do?

[00:22:58] Speaker 01:
Well, of course, I mean, as the government admitted, they can always question him.

[00:23:01] Speaker 01:
They can always question him and then, you know, to assess the situation and do the threat assessment that apparently they were there to do, and then they just risk losing, you know, being able to use the fruits of an involuntary statement at a later stage.

[00:23:13] Speaker 01:
So there's always that option.

[00:23:15] Speaker 01:
But more than that, I mean, here when you're dealing with someone who is plainly in a compromised psychiatric state, they have to do more to make sure that the interview is voluntary.

[00:23:26] Speaker 01:
I mean, they could have mirandized him, they could have explained he was free to leave, they could have explained he was free not to talk to them, they could have done something to communicate to him the fact that... Well, they told him that they asked for his permission to speak to them.

[00:23:41] Speaker 01:
Well, they said, can we talk to you about those statements?

[00:23:44] Speaker 01:
And the first thing they did.

[00:23:45] Speaker 01:
That's the same thing, isn't it?

[00:23:47] Speaker 01:
They asked me for permission.

[00:23:48] Speaker 01:
They said, can we talk to you about your statements?

[00:23:51] Speaker 01:
They didn't say, can we talk to you about weapons possession.

[00:23:53] Speaker 01:
They didn't say, can we talk to you about other issues which really might have alerted even someone in Mr. Hofford's compromise statement.

[00:24:01] Speaker 04:
The statements, wasn't the possibility of weapon possession reasonably related to the statements he made about getting shot by the Secret Service?

[00:24:10] Speaker 01:
Well, they say, if you look at the record of what Agent Fox said, he said, I told him they were not illegal statements.

[00:24:18] Speaker 01:
They were just statements that caused concern among hospital staff as well as the Secret Service.

[00:24:23] Speaker 01:
That's true, isn't it?

[00:24:24] Speaker 01:
He made a deliberate effort.

[00:24:25] Speaker 01:
Is that true?

[00:24:26] Speaker 01:
Yes, that is true.

[00:24:27] Speaker 01:
That's not deceiving him at all.

[00:24:30] Speaker 01:
Although what he's really doing is he's linking his concerns and the hospital's concerns to make quite clear to Mr. Hallford that, listen, if you want any chance of leaving here, you need to talk to us.

[00:24:42] Speaker 01:
I mean, that's what he's doing right there.

[00:24:45] Speaker 01:
You have to consider, I think, this is really worse than the station house.

[00:24:48] Speaker 01:
You know, the government seems to think that Mr. Holford's involuntary commitment at the hospital is somehow less coercive than if he was at a station house.

[00:24:57] Speaker 01:
But that's really not true.

[00:24:58] Speaker 01:
I mean, at a station house, at least someone has a frame of reference.

[00:25:01] Speaker 01:
They know they're going to see a judge.

[00:25:02] Speaker 01:
They know they're going to see a lawyer at some point.

[00:25:05] Speaker 01:
They know that there's some sort of background procedures that apply here.

[00:25:09] Speaker 01:
I don't know what the government was referring to.

[00:25:11] Speaker 01:
There is no evidence that he'd been explained anything about how long he was going to be there, what the legal authority was for him being there.

[00:25:18] Speaker 01:
There's no evidence that he was – he didn't see a judge, he didn't see a lawyer.

[00:25:22] Speaker 01:
I mean, he's really in a much worse situation, much – in terms of the coercive pressure of what he is under than at the station.

[00:25:29] Speaker 04:
He was in a worse situation than – what's that – the gentleman's name, Mr. Howes?

[00:25:34] Speaker 04:
It was questioned in a prison for seven to eight hours.

[00:25:40] Speaker 01:
Certainly in a much worse situation than Mr. Howes, because Mr. Howes knows he's under a definite commitment.

[00:25:45] Speaker 01:
He knows that basically, you know, he's in a prison where he knows the prison runs the show, not these officers coming in.

[00:25:52] Speaker 01:
He knows that those officers don't really have an ability to affect his immediate fate.

[00:25:57] Speaker 01:
Mr. Holford has no idea.

[00:25:59] Speaker 01:
He's in this sort of legal limbo, and he's been detained now, and the government, I think, just said it accurately.

[00:26:04] Speaker 01:
He's been detained for over 24 hours.

[00:26:06] Speaker 04:
How do we know he has no idea?

[00:26:08] Speaker 01:
There's no evidence he does.

[00:26:10] Speaker 01:
There's no evidence anyone ever explained it to him.

[00:26:12] Speaker 04:
So you assume, because nobody explained that you're in a hospital, in a hospital gown, you've been committed by hospital personnel, that you assume that he didn't know that?

[00:26:24] Speaker 01:
Well, it's the government's burden here.

[00:26:26] Speaker 01:
And I would say that they have not put on any evidence the difference between – he's in there for making anti-government statements, essentially.

[00:26:33] Speaker 01:
I mean, he's made a number of statements, but among them are anti-government statements.

[00:26:36] Speaker 01:
Two agents of the Secret Service come to see him, so two agents from the same government that he supposedly made these statements about.

[00:26:44] Speaker 01:
I think even a reasonable person, I mean, Mr. Hoffman is in a badly compromised state.

[00:26:49] Speaker 01:
We put on a psychiatrist, the government never called their own to evaluate him.

[00:26:52] Speaker 01:
And basically said that he's in a badly compromised state at this time.

[00:26:55] Speaker 01:
And I think that's pretty clear from what Dr. Kaiser, his treating physician, said as well.

[00:26:59] Speaker 01:
So in that circumstance, why would he think that these agents wouldn't control his fate?

[00:27:05] Speaker 01:
In fact, I think if these agents, even a reasonable person would think, you know what?

[00:27:10] Speaker 01:
These agents are going to go and they're going to talk to this doctor who's sitting in the room with me.

[00:27:14] Speaker 01:
They're going to talk to my treating physician and everything else.

[00:27:16] Speaker 01:
They are going to have influence over whether I am

[00:27:20] Speaker 01:
I'm going to stay here for who knows how long.

[00:27:23] Speaker 01:
I mean, the point is that nothing, there's no evidence that anything had been explained to him about his situation.

[00:27:28] Speaker 01:
So that's even more, much more bewildering, I think, and coercive than the typical station house.

[00:27:36] Speaker 02:
Doesn't this get us right back to inquiring into the defendant's state of mind?

[00:27:44] Speaker 02:
And I mean, Connolly says that's what we're not supposed to be doing.

[00:27:49] Speaker 02:
We're supposed to be looking objectively at what the police did to, quote, ring a confession on it.

[00:27:55] Speaker 01:
And I would go back, I would say, well, I think Connolly says basically you look at both sides of the equation.

[00:27:59] Speaker 01:
You can't just look exclusively.

[00:28:00] Speaker 02:
It's a factor, certainly.

[00:28:02] Speaker 02:
But we can't, everything can't turn on what we think he thought.

[00:28:07] Speaker 01:
And so we look at what the agents did.

[00:28:08] Speaker 01:
And one thing was, I think they made him, they minimized what they were going to focus on during the interview to the point where it wouldn't alert him, especially someone in his badly compromised state, that they were going to tread on issues such as firearms possession, which of course are criminal, have criminal concerns.

[00:28:23] Speaker 01:
They prematurely said, you're not in trouble, when they didn't know that.

[00:28:27] Speaker 01:
I mean, he was in trouble.

[00:28:28] Speaker 01:
He was involuntarily committed for making statements.

[00:28:31] Speaker 01:
And he was on the precipice of potentially far more trouble, depending on his answer to their questions.

[00:28:37] Speaker 01:
So that was sort of a false reassurance there.

[00:28:39] Speaker 01:
And then they did link their interests and the hospital's interests together, such that I think any reasonable, and this is what Dr. O'Brien found in testimony that was not provided by the government,

[00:28:50] Speaker 01:
in a way that Mr. Hofford would think, these guys have either control or heavily influence, what's going to happen here?

[00:28:58] Speaker 01:
I need to talk to them.

[00:29:00] Speaker 01:
And if they said, you don't have to talk to us, you can go back to your room, this is a voluntary interview, then maybe that would have alleviated some of the coercive pressure.

[00:29:07] Speaker 01:
But they didn't do any of that here.

[00:29:09] Speaker 01:
They did none of that here.

[00:29:10] Speaker 01:
And they certainly didn't read his Miranda rights.

[00:29:14] Speaker 03:
Was there anything in the record about why they didn't read his rights at the commencement of the interview?

[00:29:24] Speaker 01:
Well, the agent certainly knew of Miranda rights, and he knew he could.

[00:29:28] Speaker 01:
He really didn't ever explain why he didn't do it.

[00:29:33] Speaker 01:
Why he didn't do it.

[00:29:36] Speaker 01:
And I think that the government says, well, they're there to do a threat assessment.

[00:29:39] Speaker 01:
Well, OK, if they're there to do a threat assessment, then they can do their threat assessment.

[00:29:43] Speaker 01:
But if you're there going to ask questions that tread on potentially incriminating matters, you're not going to be able to use those answers afterwards.

[00:29:51] Speaker 01:
And we know that when Mr. Hawford, again, was read, as Miranda writes, on the 8th after it had been stabilized, he invoked.

[00:29:58] Speaker 01:
So we know that this is not just a technical violation of Miranda's prophylactic rule.

[00:30:02] Speaker 01:
It is an involuntary state.

[00:30:04] Speaker 04:
The government counsel tells us that the government also defended the search of the car on the basis of the inevitable discovery rule.

[00:30:14] Speaker 01:
Well, you know, the government's been quite unfair to the district court here in terms of how they've characterized.

[00:30:18] Speaker 01:
They made a lot of statements down there that are different from what... They waived that argument down there.

[00:30:24] Speaker 01:
I mean, they expressly said, we're not pursuing that argument.

[00:30:28] Speaker 01:
So obviously, the judge didn't get around to addressing it.

[00:30:31] Speaker 01:
But also, the government characterized the agent's intent quite differently down there than they have here.

[00:30:35] Speaker 04:
So they waived the inevitable discovery contention?

[00:30:39] Speaker 01:
I think they weren't going to win on it.

[00:30:44] Speaker 01:
Under the impound rules and everything, it didn't look like, actually, the car would inevitably be impounded in search.

[00:30:51] Speaker 04:
It had tickets on it, didn't it?

[00:30:52] Speaker 01:
It did have tickets on it.

[00:30:53] Speaker 04:
And you're saying that it's not clear that it would have been impounded?

[00:30:58] Speaker 01:
No, because they have to make Mr. Hallford's father was the owner of the car.

[00:31:02] Speaker 01:
They have to make reasonable contacts to contact the owner.

[00:31:04] Speaker 01:
And in fact, they did contact Mr. Hallford eventually, the father, I'm sorry.

[00:31:08] Speaker 01:
And if they had done that, Mr. Hallford would have gotten his car out of there, the father.

[00:31:12] Speaker 01:
So really, I think that was, I'm speculating, I don't know their internal decision making process, but they gave up that argument very deliberately.

[00:31:19] Speaker 01:
They made it initially and then gave it up.

[00:31:21] Speaker 01:
But they also argued down there that this was necessitated by public safety.

[00:31:27] Speaker 01:
And they argued that the agents actually went into this interview

[00:31:33] Speaker 01:
with the intent of getting information out of Mr. Hawford on things like firearms.

[00:31:39] Speaker 01:
So, I mean, you know, they said that the firearms question, quote, and this is on page 48 of the appendix, quote, was necessary to determine whether Hawford had the present ability to confront USS personnel with a firearm in furtherance of provoking an armed and deadly response.

[00:31:56] Speaker 01:
Likewise, when Hawford responded affirmatively, the agent's subsequent inquiries were intended to assess Hawford's ready access to the firearms.

[00:32:03] Speaker 01:
So the way the government's portrayed the intention of the agents in this court is really, they did the polar opposite in the district court.

[00:32:12] Speaker 01:
And the district court's finding that the agents were looking to deceive Mr. Hofford to get at this information fits very comfortably with what I just read and which is what they had told the district court about the agents' intent.

[00:32:24] Speaker 01:
So for them to argue now, there should really be a stop from arguing that's a clearly erroneous factual finding at this judge.

[00:32:31] Speaker 02:
You say that his invocation of his Miranda rights on the 8th show that he was in control at that point.

[00:32:39] Speaker 02:
Why doesn't the fact that he refused to release his medical information and refused to give them permission to search his car show that he was in control on the 6th?

[00:32:49] Speaker 01:
What the record shows is that those rights were explained to him in one of the situations a form was presented to him.

[00:32:54] Speaker 01:
And, you know, this is at the very end of the interview.

[00:32:57] Speaker 01:
At this point, the officers and agents have asked these firearms questions.

[00:33:00] Speaker 01:
One of them has gotten up very suddenly to make a call to put out a, you know, be on the lookout.

[00:33:07] Speaker 01:
He's left the room.

[00:33:08] Speaker 01:
So at this point, I think

[00:33:09] Speaker 01:
You know, the agents have sort of gotten these incriminating answers and the dynamic has changed.

[00:33:16] Speaker 01:
And I think even someone in Mr. Hoffer's debilitating state has realized at this point that these guys are looking, they're not my ticket out of here.

[00:33:25] Speaker 01:
You know, as I thought, these guys were really looking to jam me up.

[00:33:29] Speaker 01:
And so at that point, it dawned on him what was going on.

[00:33:33] Speaker 01:
And having had the rights explained to him, he was able at that point to sit down.

[00:33:37] Speaker 01:
Now, if they'd Mirandized him at the beginning, I think the eighth shows, and if he had been, you know, had the resistance, hadn't had his powers of resistance zapped, as the district court put it, he would have been in a position to, to, to, to invoke.

[00:33:51] Speaker 02:
Thank you.

[00:34:04] Speaker 00:
Good morning again.

[00:34:06] Speaker 00:
Your Honor, in response to your question from the government's Exhibit 2 on the GW note, this was admitted in the motions hearing.

[00:34:17] Speaker 00:
It's not in the appendix, although it should be.

[00:34:20] Speaker 00:
notes.

[00:34:21] Speaker 00:
Patient reassessed at 4 o'clock.

[00:34:24] Speaker 00:
Patient complained of being held against will and wanting to smoke.

[00:34:28] Speaker 00:
Explained to patient regarding rationale and need for involuntary admission.

[00:34:32] Speaker 00:
Contacted social worker, so forth and so on.

[00:34:35] Speaker 00:
That's in the GW notes.

[00:34:37] Speaker 00:
So the FD-12 was explained to him by somebody at GW.

[00:34:42] Speaker 00:
So there wasn't any reason when he got to UMC for him to suddenly think he was taken to UMC and presented with the agents and the agents were driving the train.

[00:34:51] Speaker 00:
The agents had nothing to do with this.

[00:34:53] Speaker 00:
Law enforcement had nothing to do with this.

[00:34:54] Speaker 00:
This was a medical issue.

[00:34:56] Speaker 00:
And he understood that it was a medical issue.

[00:34:59] Speaker 00:
Secondly, the evidence

[00:35:04] Speaker 00:
seems to be, with respect to the consent, Your Honor, with respect to your question, that with respect to one of the two instances, he was shown a form which would have said you don't have to consent.

[00:35:13] Speaker 00:
With respect to the other, it appears that he wasn't so advised.

[00:35:17] Speaker 00:
It's not exactly clear.

[00:35:18] Speaker 00:
That's in our brief.

[00:35:21] Speaker 00:
What is clear is that even if he was told at the end of the interview

[00:35:25] Speaker 00:
You don't have to consent.

[00:35:26] Speaker 00:
Even if he then had an oh shoot moment, let's call it, you know, I just told the agents that I had guns in my car, I think I might be in trouble, it still shows his volitional capabilities.

[00:35:36] Speaker 00:
It still shows he's in control.

[00:35:39] Speaker 00:
He made a bad decision to talk to them, okay, but a bad decision isn't an involuntary decision.

[00:35:45] Speaker 00:
It shows he's incapable.

[00:35:48] Speaker 00:
Two days later, sure, he makes a different decision, but that day, that hour, he's in control of his volitional abilities.

[00:35:56] Speaker 00:
The court failed to consider that fact.

[00:35:59] Speaker 00:
The court mentioned it in its findings, but failed to weigh the totality.

[00:36:02] Speaker 00:
It was error.

[00:36:04] Speaker 04:
I don't know why that's a bad decision at this point.

[00:36:09] Speaker 04:
If he's acting rationally, he realizes he left the car on the mall and the car's going to get recovered and it's going to be traced back to him.

[00:36:17] Speaker 04:
And so I might as well tell him that.

[00:36:20] Speaker 00:
Right, in the sense that he thinks he's going to get ahead of the curve and maybe nobody's going to hurt him and certainly

[00:36:27] Speaker 00:
But potentially so, Your Honor.

[00:36:28] Speaker 00:
We just don't know why people confess to certain things, but that's part of the sweeping inquiry into a subject... Have you ever read The Empath of Perverse?

[00:36:36] Speaker 00:
No, I have not, Your Honor.

[00:36:37] Speaker 04:
You ought to read it.

[00:36:38] Speaker 04:
It's by Edgar Allan Poe.

[00:36:40] Speaker 04:
It's a story about a guy who commits a perfect murder.

[00:36:43] Speaker 04:
And he starts thinking to himself, I'll never be caught unless I confess.

[00:36:48] Speaker 04:
And that dogs him and haunts him.

[00:36:51] Speaker 04:
And ultimately, he confesses.

[00:36:53] Speaker 00:
Right.

[00:36:54] Speaker 00:
Well, that's what makes these things so tricky.

[00:36:57] Speaker 00:
It's a black box.

[00:36:58] Speaker 00:
And I think Justice Rehnquist said it in Connolly.

[00:37:01] Speaker 00:
And Judge Posner said it in the Rice versus Collins.

[00:37:05] Speaker 00:
If you look at the Siddiqui case, Your Honor, if you look at the Eunice case, Siddiqui was a case where

[00:37:12] Speaker 00:
The defendant had been shot in the stomach, was medicated, was subject to soft restraints, and the agents asked her a number of questions, hospitalized against her will, but she was lucid and able to engage the agents in coherent conversation.

[00:37:30] Speaker 00:
And in Siddiqui and in Yunus, that's the most important thing.

[00:37:34] Speaker 00:
And here, yes, he said, hemophilia causes me extreme pain, but he didn't appear to be pain then.

[00:37:39] Speaker 00:
He said, yes, I haven't eaten in a couple days, although he had, but he declined an offer of chocolate from the doctor who was sitting right in the next room.

[00:37:47] Speaker 00:
You know, he said, yes, I haven't slept in a couple days, although he had, but he didn't appear to be nodding off like the defendant in Taylor.

[00:37:53] Speaker 00:
They didn't have to keep waking him up.

[00:37:55] Speaker 00:
There were no false promises of leniency, which a factor that tends to stand on separate footing.

[00:38:01] Speaker 00:
That was the Ninth Circuit case in Preston.

[00:38:03] Speaker 00:
There just isn't a case like this where courts have said, this is involuntary.

[00:38:09] Speaker 00:
We need the government to be bad actors to suppress it.

[00:38:12] Speaker 00:
Up to a certain point, Your Honor, the government agents here were not bad actors.

[00:38:16] Speaker 00:
This was not a due process violation.

[00:38:20] Speaker 00:
Thank you.

[00:38:21] Speaker 02:
Thank you.