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Case number 14-3060, United States of America versus Queen Inouye Appellant.

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Mr. Kramer for the appellant, Ms.

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Seifert for the appellee.

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Good morning.

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Good morning, Your Honors, and may it please the Court.

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In the first appeal of this case, in its brief on appeal, the government said that Ms.

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Inouye's testimony about the beating she had suffered, the control she had suffered, the financial

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The control that Mr. Osuagu had over her was irrelevant because she had raised no issue about a battered woman defense.

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The government, in matter of fact, said notably, Mr. Inouye had not raised a battered woman defense.

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And then on appeal in this court – this court said the same thing.

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They talked about – the court talked about the mere whiff of a

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a battered women's defense.

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I'm not sure what that is exactly, but in any event, they said that she had not evaded.

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That's where there's a very short relationship between the woman and the alleged batterer, and there are large periods of time when they're separate from one another during his crime.

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Could that be when that occurred?

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Well, that would not be this case then.

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It wouldn't.

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No, because they were... Perhaps I read the wrong record.

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During the period of the conspiracy that was charged, there was no evidence that he was away at all during that time period.

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During the – and nor was it a brief relationship.

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I mean, it lasted about seven months or more.

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But –

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48 days.

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48 days.

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Yes.

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And the not two months or spanning, it was 48 days, the government told the district court.

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But in any event, having said all of that, now the government on appeal in this court saying that BWS was not presented as a defense, and that was a direct result of the ineffectiveness of Ms.

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Inouye's trial counsel.

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Judge Friedman said he just didn't do what he should have but now everybody says it's irrelevant Well, I think it's actually properly brought under habeas because of the Supreme Court's decision That says people who have been excluded from the United States may bring habeas this seems if anything being

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people who are not allowed into the United States but can travel to the rest of the world, whereas Ms.

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Inouye would be excluded from the United States.

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So I think it's properly brought under.

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The government doesn't say, the government says it's properly brought.

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It doesn't say under which one, but I think it's properly brought under either or both, frankly.

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Although, if it's properly brought under habeas, it can't be brought under cordonomas.

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That's a substitute.

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Cordonomas was only an extraordinary case, and if the other remedies

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if this lapse of council is sufficiently extraordinary to come back after the case is otherwise over?

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Well, first of all, I'm sorry.

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I'm sorry.

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I didn't mean to interrupt.

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I didn't.

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I probably gave you some dead air.

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Go ahead.

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I guess two things.

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First of all, the government hasn't disputed that

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that is properly brought under.

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They don't say which one, but in a footnote, they say it's properly brought.

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And there's a case law cited in my brief that says claims of ineffective assistance of counsel and claims of removal or deportation, as it's called, constitute the sufficient circumstances for quorum nobis, really.

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So I think the government hasn't disputed it in this, nor has any

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contrary case law cited and there's ample case law to support that a claim of ineffective assistance of counsel in general as well as a claim of removal deportation is properly brought under Coronova's but I actually think it's properly brought under habeas in any event but it now the having

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according to the government and the district, this court on appeal, not supplied any evidence about battered women's syndrome.

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Now the record is replete with evidence of battered women's syndrome.

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Not only in general, Dr. Ginta testified at length both about battered women's syndrome in general and about the fact that Ms.

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Inouye suffered from battered women's syndrome.

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The government didn't present any contrary evidence, but didn't even challenge, really, Dr. Ginta's testimony.

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So now Judge Friedman said that the trial counsel was

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deficient in that not asking for CJA funds for an expert and not exploring and not properly advising Ms.

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Inouye about the need for an expert.

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But somehow all this testimony that the government, in its brief on the first appeal, said there was no such testimony, so there couldn't have been any.

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And this court pointedly noted that what was lacking in this case was

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expert witnesses testifying to the effects of isolation, financial dependence, or estrangement from family members.

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That's exactly what Dr. Jinter provided that her counsel, that Mr. Noway's trial counsel, had failed to provide, and now all of a sudden Judge Friedman finds that that wouldn't have made any difference.

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I would have made... Remembering that one member of this court in the panel opinion found that the duress instruction should have been given even without the expert testimony,

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That is a December.

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Notably, Judge Taylor was on the panel and gave a real one of these.

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One of this court's other duress cases.

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But in any event, the district judge said in order for the defendant to be entitled to a duress instruction, she must adduce evidence at trial showing that she herself, in fact, had no reasonable legal alternative.

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Subject objective.

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And that's standard.

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You want to respond to that?

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That's exactly the testimony Dr. Ginta provided, that a reasonable, she wrote about reasonable people in a battering relationship.

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She specifically said Ms.

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Inouye had no desire to profit from Dr. Iweala.

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Her participation was against her will.

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that reasonable people entrapped in a battering relationship act this way, Mr. Noe acted, and a reasonable person to be trapped remaining makes more sense than leaving.

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So she provided the exact testimony.

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The district court has essentially adopted a test

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focused on a reasonable person, meaning someone who is not suffering from a battered woman syndrome.

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That is the problem.

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The impact makes no sense.

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If you read the district court's decision, you cannot have a battered woman syndrome defense unless the evidence is someone had a gun in my head when I did what I did.

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He's essentially wiped it out.

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with the test that he's applied.

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I mean, I couldn't agree more.

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I think that's exactly the problem.

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And that's what Judge Val said when she wasn't given the instructions.

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She said he didn't have a gun to her head at every second.

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And that's the problem.

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That's what the expert testimony provided.

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She said she had ample opportunity to tell people at work and at school and her family.

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But

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Dr. Jinta said that's exactly what battered women do not do.

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And the cases are legion about these concepts.

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Well, I don't understand.

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I'll hear what the governor will say.

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I don't understand the district court's decision because he's essentially wiped out the possibility of the defense.

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You don't measure reasonableness as against someone who's not a battered woman.

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That makes no sense.

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It's like saying a crippled person who's tied up

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should be able to run because reasonable people can run.

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It makes no sense whatsoever.

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No, I couldn't agree more.

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And even this court said in its original opinion that they you had to take in her particular circumstances, they said.

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you had to evaluate the duress defense.

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Now, they said because no expert testimony was provided about these things like isolation and financial and the threats.

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But the cases are legions saying that a reasonable person in a battered women's situation does not leave.

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In fact, just the opposite, because they're so frightened, they think that they will be beaten.

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And in fact, Osu Awu threatened to kill her in a barrier in a house.

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where no one else knew where she lived, not even her husband, whom she was separated from, knew where she lived.

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He threatened to bury her, kill her, and bury her in the house.

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He threatened several times to kill her.

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He hit her, beat her repeatedly every time she voiced an objection to this scheme.

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And that's exactly what the expert, I mean,

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All the articles, there's an article by a professor who's an expert in battered women's syndrome, Marianne Dutton, that's cited in my brief that talks about how a reasonable person would not leave, a reasonable perception of imminent danger, and a reasonable perception of lack of alternatives.

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That's what battered women's syndrome is all about.

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And these are reasonable in the situation they're in.

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Judge Friedman said the evidence is admissible.

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He said generalized testimony is admissible, but then he said, I don't really understand.

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But after that, there's nothing you do with it.

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It's just there and it means nothing.

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So it seems to be even a contradiction in terms that it's admissible, but there's nothing you do with it.

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So in many of the cases talk about

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the reasonable perception too from the situation.

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So the fact that

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This is the evidence that was missing.

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And Judge, couldn't you?

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You disagree with the Fifth Circuit decision, the 1994 Fifth Circuit decision then?

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Willis or Dixon?

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Yeah, Willis.

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I mean, Willis, the thing about Willis is there was extensive testimony about battered women's syndrome admitted in that case, and a duress instruction was given.

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The Dixon case that followed after that noted Willis, but then said, but generalized testimony about battered women's syndrome is admissible.

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So the case itself admitted, and not only in Willis, there was the generalized testimony, but there was specific testimony that the woman in Willis did suffer from bad agreement syndrome.

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So it went beyond just the generalized.

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So I frankly,

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As I said, the government in this court said in the first appeal, this is the evidence that's lacking.

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There was no such evidence presented.

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Now the evidence presented an uncontroverted counsel.

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The evidence still is not presented at trial.

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The opinion is still correct.

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You're coming in here perhaps on an extraordinary read and saying the evidence is in the record.

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You have something you put in there to try to

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No, no, I couldn't agree more, Judge Dintel.

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You're absolutely right.

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There was no such evidence presented originally.

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This court said that's the shortcoming in the case when you have the mere width.

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for something exceptional now, you're way beyond.

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I don't think it's exceptional to say a defense lawyer should.

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You don't think this is an extraordinary case?

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No, not at all.

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Well, maybe it's for nothing.

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No, I think.

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It's not an extraordinary case, you lose.

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Well, extraordinary.

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If it's for nobody, it has to be extraordinary, right?

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But they've defined extraordinary as ineffective assistance of counsel and or deportation from the United States.

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Both present that kind of extraordinary circumstance.

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So when you say extraordinary,

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I've cited the cases in the brief that say ineffectiveness and or deportation satisfies the Coram Nova standard.

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When I say it's not extraordinary, what I really mean is you had a lawyer who basically fell down in a premise he knew about and did nothing about

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to try to get the testimony before the court, which would have made the difference in this case.

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It's clear.

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I mean, she testified all this, and then there was no instruction enough.

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He wasn't even allowed to argue it in his closing.

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So I would just ask the court.

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And again, just until the government hasn't disputed that this case satisfies, not sure which one, but they have just said that they're not.

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It would be a jurisdictional question, wouldn't it, Mr. Framer?

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It would be a jurisdictional question.

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I think it's seven.

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And this court just recently in a case talked about quorum nobis and how quorum nobis is an appropriate vehicle of relief in a case just decided I think in November or December where it talked about

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uh, be a petition for order from, uh, Corum Novus provides a way to collaterally attack a conviction who's no longer in custody.

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They say extraordinary cases, but then they say in particular and central to this case, it may be used to redress fundamental errors in criminal proceedings such as violations of the Sixth Amendment right to counsel.

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That's the new in case that was decided in November.

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So that's exactly

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That's exactly what this case is about, nor, as I said, has the government disputed it.

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But I also think it's actually jurisdiction is under habeas, according to the Supreme Court.

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I think it's the Jennings case back in the 1950 maybe, or I'll look it up, where they said if somebody's been excluded, not allowed to enter the United States, that relief is available under habeas.

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Thank you very much.

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May it please the court, Karen Seifert for the United States.

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The Court of Appeals has already found that the facts in this case did not warrant a duress instruction.

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What do we have here?

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Is this habeas or is this quorum nobis?

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The government's position, as stated in our brief at footnote 10, is that this is a quorum nobis case.

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There are really no facts at all about the immigration status of this particular individual, and so I don't know how the

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There could be support for the habeas contention that she's subject to deportation proceedings.

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That factual record was not made below.

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The government agrees with your honor that Cormnovus is a higher standard, but does think that the claim could be cognizable.

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Certainly, your honor.

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So the only question, though, for this court is whether the addition of general expert testimony fix the sufficient defect or the particular defects in the factual record takes it beyond what the district court already found was defective.

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That's what we said last time was missing.

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I don't agree, Your Honor, that that's what the court said.

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In fact, the court said that although expert testimony was missing, it also said that there is no evidence about financial dependence, estrangement from family members.

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And the court goes on to say Miss Inouye said that she had many alternative sources of protection and support.

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And that was really key to the court's holding was she had other friends and family that she had accessibility to.

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The court didn't have the battered woman syndrome expert testimony before it.

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However, those things are viewed very differently when you look at what an expert says about someone who is a battered woman.

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I agree, Your Honor, that the expert... Because they have an incapacity.

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So what that they have money or so what that they have family?

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That's the whole point of it.

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I understand.

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That just doesn't help them.

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The court was principally saying the first time the information, the expert testimony was not there.

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So that's the proper fight now.

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And we need to focus on what Judge Friedman said, which I find very perplexing, as I said.

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He's essentially said, yeah, there was clearly a failing by counsel, but you can't win because you can't prove in fact

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that she didn't have alternatives.

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Well, that's totally inconsistent with the battered woman syndrome if you're a victim of it.

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She didn't have alternatives.

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If you're a battered woman, you do not perceive you have alternatives.

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Two points, Your Honor.

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First, Judge Friedman's position is completely consistent with the 5th, 9th, and the 11th circuits.

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Well, I can give you all the circuits that go the other way.

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So it's a question of first impression for us.

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There are other circuits, and there are many district court cases that go the other way.

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So why don't we go from there, OK?

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Well, it's also consistent with this court's own precedent that the individual who's claiming duress must have, in fact, an opportunity.

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So, can battered women's syndrome ever be recognized in a duress case?

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I think that this court has in its precedent left open whether on the first prong, and that is whether or not there is a unlawful threat of imminent death, whether that is a subjective or an objective inquiry, specifically in Jenrette, the court assumed that Congressman Jenrette's

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fears that were induced by his alcoholism were reasonable, but then went on to say that he, in fact, had other opportunities.

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But are you saying you're not answering Judge Kavanaugh's question?

[00:17:45] Speaker 01:
I was going to say that, too.

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What is the answer to the question?

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Yes, it could be to the extent on the first prong.

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I think that could be a problem.

[00:17:53] Speaker 04:
No, no, no.

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Is it a viable defense or not?

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Can it be raised?

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No, because on the second prong, it must be in fact.

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Right, so you know is your answer.

[00:18:01] Speaker 01:
No, you're saying.

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No, battered women's defense is never a cognizable defense.

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or way to raise a duress defense.

[00:18:10] Speaker 01:
And that's certainly what Judge Friedman is saying.

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Because he's misreading reasonable.

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And I don't know how that makes a lot of sense, frankly.

[00:18:18] Speaker 01:
Because you're in the circumstance where, as Judge Edwards said, by definition, if you accept the battered woman syndrome testimony, expert testimony, the woman does not have reasonable alternatives.

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For one, just on the- Even though a person without would have the reasonable alternatives, of course.

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But as Judge Edwards says, you don't look at the person without, do you?

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First, addressing the standard, Your Honor.

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The court has said, and several other courts have said, that historically the words reasonable and well-grounded, and this is from Castro Gomez in the First Circuit, hypothesizes a defendant of ordinary firmness and judgment, and then asks, what would that ordinary person have done in these experiences?

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The standard is, what did a reasonable person do?

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Not what a reasonable battered woman would do.

[00:19:09] Speaker 03:
I don't understand that.

[00:19:12] Speaker 03:
It makes no sense whatsoever.

[00:19:19] Speaker 00:
The defense is a historical common law defense that is extremely limited to very- No, not duress is better, better woman.

[00:19:27] Speaker 00:
Yes.

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Duress is a historical common law defense.

[00:19:30] Speaker 00:
Exactly.

[00:19:30] Speaker 03:
Better woman is more reasonable.

[00:19:33] Speaker 00:
Yes, your honor.

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And it is mostly come up in obviously self-defense cases.

[00:19:39] Speaker 03:
Self-defense cases, yeah.

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But duress, on the other hand, has always been held by this court to only apply in extremely harrowing situations.

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And it says it has an extremely high bar.

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Now, I don't agree with your honor, Judge Edwards, that the court essentially wiped out the defense.

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I would point this court to the Ninth Circuit's decision in Johnson.

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In that case.

[00:19:59] Speaker 04:
They put you the Sixth Circuit decision.

[00:20:01] Speaker 04:
So in the First Circuit decision.

[00:20:02] Speaker 04:
I will not hear about the Ninth Circuit.

[00:20:05] Speaker 00:
I'll get to the Sixth Circuit decision in just one moment, Your Honor.

[00:20:09] Speaker 04:
Absolutely.

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In Johnson, there were three different women in that case who all said that they wanted to assert a defense of duress.

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And the court did permit one of them to assert a defense of duress because she actually tried to escape multiple times from her abuser and was either stopped or beaten at the result of her efforts to escape.

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So the court said she met the literal terms of duress.

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The other defendants couldn't show that they took those opportunities to escape.

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And the court said, look, they haven't made out a duress claim.

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And so in Johnson, that's a great case where there's different factual circumstances where a woman, a battered woman, can say, look, I'm still qualified for the defense, even though it's not a subjective inquiry.

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You have to be able to show you're a woman.

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I tried, so I got the daylights beaten out of me a few times.

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And that should be good enough.

[00:21:04] Speaker 04:
That's like the gun at the head.

[00:21:05] Speaker 04:
It really makes no sense.

[00:21:06] Speaker 04:
If the battered woman syndrome is what the experts say it is, you are dealing with a woman who does not have the capacity to make the move to leave.

[00:21:17] Speaker 04:
Now, whether that person is or is not in that situation, the jury can decide it.

[00:21:22] Speaker 04:
But the evidence is absolute.

[00:21:24] Speaker 04:
I've read over and over this material.

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There's no conceivable way that you can say that person has the capacity to make the move.

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And so what the district court judge did is essentially say there is no such defense here.

[00:21:36] Speaker 04:
Unless someone has a gun at the head, that's it.

[00:21:40] Speaker 00:
Not necessarily a gun at the head, but unless there is a short enough immediate need to commit the crime because you have no other choice and no other opportunity.

[00:21:48] Speaker 04:
You're not understanding battered woman syndrome.

[00:21:50] Speaker 04:
It's really not that easy.

[00:21:52] Speaker 04:
On your honor.

[00:21:52] Speaker 04:
These are people who are living, you said is a terrorist, it is terror for them.

[00:21:57] Speaker 04:
They are being terrorized.

[00:21:58] Speaker 04:
They are frozen.

[00:21:59] Speaker 04:
And the expert in this case explains how it plays out.

[00:22:02] Speaker 04:
They are incapacitated.

[00:22:04] Speaker 04:
They've gotten the daylights beaten out of them.

[00:22:06] Speaker 04:
The guy has made it very clear.

[00:22:08] Speaker 04:
You make a move, you're dead.

[00:22:10] Speaker 04:
I mean, I wish I could have the people here lined up.

[00:22:13] Speaker 04:
And I don't understand Judge Friedman credits the first district court judge as having personal knowledge of battered women, and that's satisfactory to overcome.

[00:22:24] Speaker 04:
You let an expert testify, and then you make the judgment.

[00:22:27] Speaker 04:
A judge can't say, I know something about something, and that overrides what an expert might say.

[00:22:33] Speaker 04:
That's not acceptable.

[00:22:35] Speaker 00:
I think why Judge Huvel did not consider that to be necessary is because the facts of this case, and if I could just have a moment to address what those facts were, did not support that Miss Inouye did not have other opportunities.

[00:22:48] Speaker 00:
So one fact that both the Court of Appeals and the District Court found relevant was that in June, while Miss Inouye was still with her alleged abuser,

[00:22:56] Speaker 00:
she made a call to Nigerian officials to report the crime.

[00:23:01] Speaker 00:
And she stated, her first testimony was she felt that that was the quote, convenient time.

[00:23:05] Speaker 00:
She later stated that she was quote, safe at that point.

[00:23:08] Speaker 00:
But in any event, she says, when asked why she calls the officials in Nigeria, she says, I know how they work.

[00:23:14] Speaker 00:
I know that if I report this, they must do something.

[00:23:17] Speaker 00:
That is evidence that she was a woman who understood what other opportunities legal remedies were available to her.

[00:23:23] Speaker 04:
That's what the first trial judge surmised without the help of an expert.

[00:23:28] Speaker 04:
The expert did not say what you're just saying.

[00:23:30] Speaker 00:
The expert actually didn't know about that.

[00:23:32] Speaker 00:
She never told the expert that in her time when she testified and told the expert what

[00:23:36] Speaker 04:
But the question is, given what the expert is saying and what we read in this record now, whether it makes any sense whatsoever for this counsel not to bring an expert before the court and let the expert testify with respect to battered woman syndrome generally and, if permissible, this woman in particular.

[00:23:55] Speaker 00:
I don't think that the question is whether it makes any sense.

[00:23:57] Speaker 00:
The question, and it's appellant's burden to show, that had that expert testified, she would have gotten the instruction, and additionally, a reasonable juror would have voted in her favor.

[00:24:09] Speaker 01:
But you presented there in terms of the facts might be a reason the jury would discount, perhaps, the expert testimony.

[00:24:16] Speaker 01:
But I don't know that that's a reason not to have the expert testimony in and to assume, as the court before assumed and as your brief, your prior brief assumed, that it was significant that there hadn't been expert testimony.

[00:24:29] Speaker 00:
Well, additionally, Your Honor, there are multiple facts about the very beginning of this case when she makes the first attempt to go get money from Dr. Iwala.

[00:24:39] Speaker 00:
She's by herself.

[00:24:41] Speaker 00:
The aggressor is not with her.

[00:24:42] Speaker 00:
At that point, she actually has not experienced any threat of imminent death.

[00:24:46] Speaker 00:
She has been hit.

[00:24:47] Speaker 00:
The government does agree with that.

[00:24:49] Speaker 00:
But there has been no threat of death or harm.

[00:24:51] Speaker 00:
That doesn't come until weeks later in the case.

[00:24:54] Speaker 04:
She's been hit, right?

[00:24:56] Speaker 00:
She has been hit, but this court has found that's not enough.

[00:24:59] Speaker 04:
How many times you have to get hit?

[00:25:01] Speaker 00:
According to the record, it has been twice at that point.

[00:25:04] Speaker 04:
But my point is... Are you suggesting that as a medical matter, you have something to show that twice is not enough?

[00:25:10] Speaker 00:
My point is that the courts have routinely required a, and this is the standard of this court, imminent death or serious bodily injury.

[00:25:18] Speaker 04:
I'm talking about that, but you've got to put it in the context of a battered woman syndrome, how it is they act.

[00:25:23] Speaker 04:
And yet you're suggesting, and I'm not blaming you, but to suggest to me, based on what I'm reading about what experts say, that she was only hit a couple of times, as if that's not enough.

[00:25:35] Speaker 04:
I'd like to have some battered woman here to tell you now, oh no, that's plenty.

[00:25:40] Speaker 00:
I think the question is whether there's a sufficient factual basis that she didn't have, that she was, in fact, at the time of the crimes.

[00:25:47] Speaker 04:
What was a good reason for the attorney not to bring in an expert, to let the expert testify and then let the jury decide?

[00:25:55] Speaker 00:
Was there a good reason?

[00:25:55] Speaker 03:
That's not your position.

[00:25:57] Speaker 03:
You're not taking the position that the attorney was not guilty of failure to adequately represent.

[00:26:02] Speaker 03:
No, the court, the government doesn't... You're admitting that the attorney failed at what he should have done.

[00:26:08] Speaker 03:
The question comes at the next step.

[00:26:09] Speaker 03:
The next step.

[00:26:11] Speaker 00:
Right.

[00:26:11] Speaker 00:
We're not conceding deficiency per se because I don't believe that that was found by the trial court.

[00:26:16] Speaker 00:
He stopped short of that.

[00:26:18] Speaker 01:
He said that he needed to... Well, are you conceding it though?

[00:26:21] Speaker 00:
No, I think that there needs to be further factual development on the record.

[00:26:25] Speaker 00:
For one, the court never found that she was actually eligible for CJA funds, and I think she would need to be eligible for the funds to show that she could have gotten the expert to then show that the expert would have been introduced.

[00:26:37] Speaker 03:
So there's still factual development.

[00:26:41] Speaker 00:
We concede it was certainly a mistake not to address it with her, which is exactly what Judge Friedman found.

[00:26:47] Speaker 00:
The question of Strickland deficiency requires the court to look at all of the facts and circumstances of trial counsel's entire representation in the case and assess his overall performance.

[00:26:56] Speaker 00:
The court did not do that.

[00:26:59] Speaker 00:
Caution that the the better course for this court is if you find prejudice to remand to the district court for factual development on that prong the court never even Considered which side of which either the mr. Owanagay's testimony or miss Inouye's testimony it believed it never even made credibility determinations for this court to rely on so be difficult I think to

[00:27:21] Speaker 00:
to decide the deficiency prong without more information and factual development on that prong.

[00:27:26] Speaker 00:
But if I might just go back to Judge Edwards' question about the Sixth Circuit, I would note for this court that the Sixth Circuit is analyzing a habeas case under Michigan law.

[00:27:35] Speaker 00:
So the impact of that decision, and I would note that Judge Martin specifically references

[00:27:40] Speaker 00:
a prior Court of Appeals decision in a self-defense case saying that under Michigan law, the Court of Appeals would find that duress involves a subjective inquiry.

[00:27:51] Speaker 00:
And if you read Judge Guy's dissent into the Sixth Circuit, he says, we never even talked about the standard here.

[00:27:57] Speaker 00:
And Judge Guy says the standard in Michigan is an objective standard.

[00:28:01] Speaker 00:
It's not what a reasonably prudent battered woman would do, it's what a reasonably prudent person would do.

[00:28:06] Speaker 01:
and that that's why judge why logic behind allowing battered women syndrome for self defense but not to rest.

[00:28:13] Speaker 00:
Well, in self-defense, the state of mind of how the threat is perceived by the individual is obviously a key issue in the case.

[00:28:24] Speaker 00:
And one of the things that's key about self-defense is we're talking about a defendant who is now attacking someone who has repeatedly attacked her.

[00:28:32] Speaker 00:
Duress, we're saying, OK, we're going to take that relationship and allow that to excuse criminal conduct that you admit that you did towards third parties.

[00:28:41] Speaker 01:
And that seems very different from a legal standpoint as to what society in these justification defenses... Why not allow juries to sort that out with the expert testimony and the testimony that you would no doubt give in opposition to that in the ordinary case rather than excluding it categorically?

[00:28:59] Speaker 00:
It's the judge's role as a gatekeeper, as the Supreme Court held in the duress, one of its very first duress cases, to make sure that there's a sufficient factual basis here.

[00:29:09] Speaker 00:
This is powerful testimony that can certainly be very sympathetic, and so the judge's role is to make sure that there's a sufficient factual basis.

[00:29:16] Speaker 04:
Your position is so inconsistent because the first time up you said, and the court found,

[00:29:20] Speaker 04:
the expert information wasn't there.

[00:29:23] Speaker 04:
Now you're essentially saying there can be no such defense, which makes no sense to me.

[00:29:30] Speaker 00:
I think the first time around, the focus was on what was the missing factual components.

[00:29:35] Speaker 00:
All a bladder women expert does is to give a different veneer at which you look at those missing factual components, but they're still missing.

[00:29:43] Speaker 00:
It's not a Band-Aid to solve the missing factual issues.

[00:29:46] Speaker 04:
It's not missing if the explanation is that the woman is incapacitated.

[00:29:50] Speaker 04:
You're assessing the facts pursuant to how you might deal with the situation.

[00:29:55] Speaker 04:
And that's obvious that you're right.

[00:29:57] Speaker 04:
It would be unreasonable for you to not call someone.

[00:30:02] Speaker 04:
But that's not what this is all about.

[00:30:03] Speaker 04:
This is about someone who allegedly was incapacitated because she was battered.

[00:30:09] Speaker 04:
and the expert's explanation as to what that means says she did not have the capacity and you can't just take well on Tuesday she made a call here or whatever you need someone to explain it to the jury and let the jury sort it out battered women are in a terrible situation

[00:30:25] Speaker 00:
I don't disagree with that, Your Honor.

[00:30:26] Speaker 00:
I would note, though, that it's not the government's opinion.

[00:30:30] Speaker 00:
It's this court's precedent that has made it very clear that the subjective, what's inside the defendant's mind is just not something we're willing to look behind.

[00:30:37] Speaker 00:
We're not willing to look into their head and ask what were they thinking and was that reasonable.

[00:30:41] Speaker 00:
And that is generic.

[00:30:42] Speaker 00:
If this court decides that it wants to allow BWS testimony to go to whether or not the individual, the defendant, actually had a reasonable legal alternative, then it should review Jenrette and say, why aren't we asking whether Congressman Jenrette's alcoholism and fear of mobsters was the reason why for two days he didn't go to authorities?

[00:31:03] Speaker 00:
That's the same question that he posed.

[00:31:05] Speaker 00:
He said, I am an alcoholic and I'm crazy.

[00:31:09] Speaker 00:
You know, so that's why I didn't go to the police.

[00:31:11] Speaker 00:
The court said we're not willing to look at that.

[00:31:14] Speaker 03:
I recall he was pretty crazy.

[00:31:19] Speaker 03:
Not just in this case.

[00:31:22] Speaker 00:
You're too young to remember.

[00:31:24] Speaker 00:
Unless there are any other questions, the government respectfully requests this court to affirm the ruling of the district court.

[00:31:30] Speaker 01:
Thank you.

[00:31:31] Speaker 01:
Give you a few minutes for rebuttal.

[00:31:33] Speaker 02:
Thank you, Your Honor.

[00:31:37] Speaker 02:
A few quick things.

[00:31:39] Speaker 02:
The case that I was referring to about habeas is Jones versus Cunningham.

[00:31:44] Speaker 02:
It's at page 35 of my brief where the court stated that the Supreme Court that had repeatedly held that habeas is available to an alien-sinking entry into the United States.

[00:31:55] Speaker 02:
So I think that it's even more important to converse.

[00:31:59] Speaker 02:
This information, there's a couple of things the government said that are not correct.

[00:32:04] Speaker 02:
In June 2006, she testified that she waited until Osu!agu had moved out of the house they were sharing when she thought she might be safe enough to go to the authorities.

[00:32:15] Speaker 02:
So it was not true that he was still living with her at the time.

[00:32:20] Speaker 02:
He had moved out.

[00:32:22] Speaker 02:
The question about

[00:32:24] Speaker 02:
the eligibility for CJA funds about a remit until the government had not disputed this in the district court during the 2255 proceedings because she had been determined to be eligible for CJA appointment of counsel, a finding that was not revoked.

[00:32:40] Speaker 02:
It's on the docket sheet in the appendix.

[00:32:44] Speaker 02:
So she was eligible for CJA funds, and that was never argued below.

[00:32:48] Speaker 03:
Does the government even raise that in their brief?

[00:32:49] Speaker 02:
No, they do raise it, I would say, obliquely in their brief.

[00:32:54] Speaker 02:
But it was not contested below, and she, in fact, had been determined to be eligible.

[00:32:59] Speaker 02:
And then finally, about the deportation or the removal, I looked during the... I can't find it.

[00:33:06] Speaker 02:
It was clearly mentioned at one of the... I believe the first evidentiary hearing that until the proceedings were concluded, she was under a removal order, but the proceedings... And it's in the transcript somewhere, and I just...

[00:33:22] Speaker 02:
because there's several hundred pages.

[00:33:24] Speaker 02:
The reason is, it wasn't when it was said to Judge Huvel, I believe, it was at that hearing.

[00:33:29] Speaker 02:
The government didn't dispute it, so there was no argument about it.

[00:33:32] Speaker 02:
And then it was in my brief about the quorum nomus, and until today, that's the first I heard that there may be a question about that.

[00:33:39] Speaker 02:
It's in the record and undisputed.

[00:33:43] Speaker 02:
It's in the record and undisputed until this morning's argument.

[00:33:46] Speaker 02:
And I would have put something more in the brief had I known it was in.

[00:33:49] Speaker 01:
Counsel emphasized the Jen Redd case.

[00:33:52] Speaker 01:
You want to distinguish that?

[00:33:54] Speaker 02:
Sure.

[00:33:54] Speaker 02:
He met with these two people he claimed he thought were mobsters.

[00:34:01] Speaker 02:
But they didn't threaten him in any way.

[00:34:04] Speaker 02:
There was no threats.

[00:34:05] Speaker 02:
They didn't hit him.

[00:34:06] Speaker 02:
They didn't threaten him to do anything to him.

[00:34:09] Speaker 02:
He then said, give me a day or two to think it over.

[00:34:14] Speaker 02:
They didn't say anything to him about any kind of threat at all.

[00:34:17] Speaker 02:
And then he took another day or two to agree to it.

[00:34:20] Speaker 02:
So this court said he had ample opportunity to go to the authorities in those intervening days, and it was either two or three days, I'm not sure.

[00:34:29] Speaker 02:
But he never claimed that anybody had threatened him.

[00:34:32] Speaker 02:
He claimed he had a

[00:34:33] Speaker 02:
belief that they were mobsters somehow.

[00:34:36] Speaker 02:
But they had not said a word to him, a threatening word to him, so there was no danger of an imminent threat, nor was there a danger that he have any belief that he couldn't go to the authorities, reasonable belief.

[00:34:50] Speaker 02:
Mrs. Inouye had both.

[00:34:52] Speaker 02:
She was under, not only was she under an imminent threat, and the government talked about death, but the test actually is imminent threat of death or bodily injury.

[00:35:01] Speaker 02:
Not only was she under an immediate threat, she actually, when she said no at the beginning of this, he had beaten her before that.

[00:35:09] Speaker 02:
But when she said no when he first proposed this, he beat her.

[00:35:12] Speaker 02:
She said head, body, and shoulders.

[00:35:14] Speaker 02:
So she had the threat.

[00:35:16] Speaker 02:
And every time she beat it, he beat her once for not answering the door while she was asleep.

[00:35:21] Speaker 02:
He beat her at every opportunity, so there was a reasonable threat of imminent danger and imminent violating.

[00:35:27] Speaker 02:
And then the answer to the Jenrett case is, and of course he just said all this, he didn't present any expert testimony of any kind.

[00:35:35] Speaker 02:
The difference is, and nor I think could he have,

[00:35:39] Speaker 02:
because the difference in the battered woman syndrome is this, what's called learned helplessness, the control by the batter, the utter control by the batter, which is reasonable.

[00:35:50] Speaker 01:
Council says that there should be a distinction, however, between self-defense and duress because of your committing criminal conduct on a third party.

[00:36:00] Speaker 02:
Well, I mean, first of all, there's a legion of cases.

[00:36:04] Speaker 02:
There's fraud cases.

[00:36:06] Speaker 02:
There's drug cases.

[00:36:08] Speaker 02:
So there's a number of cases that don't make that distinction at all.

[00:36:12] Speaker 02:
If you are suffering from battered woman syndrome, which Ms.

[00:36:15] Speaker 02:
Inouye was, according to Dr. Gypta, there is no difference when the batterer tells you to do something

[00:36:22] Speaker 02:
You're under that, as she testified and as Dr. Ginger testified at length, you're under their complete control.

[00:36:29] Speaker 02:
You cannot do anything else.

[00:36:31] Speaker 02:
And so whether you take action against the batterer eventually or whether you do what the batterer said,

[00:36:40] Speaker 02:
to prevent your reasonable fear of imminent bodily injury or death, and he threatened a killer, either one is under the control there.

[00:36:50] Speaker 02:
The distinction doesn't make any sense to me, nor have courts drawn any such distinction.

[00:36:56] Speaker 02:
There's a number of cases cited in my brief, both drug cases, there's a welfare fraud case, there's another fraud case, that make no such distinction about whether the criminal act is

[00:37:08] Speaker 02:
against the batterer or some other kind of criminal act, such as a drug case or a fraud case.

[00:37:14] Speaker 02:
So I think that is a distinction without a difference, let me put it that way, in a battered woman syndrome case.

[00:37:22] Speaker 02:
Thank you very much.

[00:37:23] Speaker 01:
Thank you.

[00:37:24] Speaker 01:
To both counsel, the case is submitted.