[00:00:00] Speaker 05: Case number 17-3093, United States of America Appellant versus Joseph Daniel Hallford. [00:00:08] Speaker 05: Mr. Lanitz for the Appellant, Mr. Kramer for the Appellate. [00:00:19] Speaker 01: Good morning and may it please the Court. [00:00:21] Speaker 01: My name is Dan Laners and I represent the United States. [00:00:24] Speaker 01: If I might please request three minutes for rebuttal. [00:00:27] Speaker 01: The purpose of the Miranda inquiry is to allow law enforcement officers to make real-time judgments about whether the objective circumstances of an interview pose such a threat of governmental coercion that a reasonable person would not feel free to terminate the interview. [00:00:46] Speaker 01: In this case, the district court turned that objective analysis on its head, relying on facts unknown to the officers at the time of the interview, conduct by third parties that preceded the interview and were separate from it, and the defendant's own subjective state of mind to find that Hallford was in Miranda custody at the time of the interview and question here. [00:01:08] Speaker 01: Before we start on that question, [00:01:10] Speaker 02: I have a different question for you. [00:01:14] Speaker 02: In order to get here, we have an interlocutory appeal, you have to file a certificate, right? [00:01:19] Speaker 01: That's correct, Your Honor. [00:01:21] Speaker 02: And in the Bookhart case, the government represented that it would from now on, now being 2002 on, it would always file that certificate at the same time it filed its notice of appeal. [00:01:35] Speaker 02: Are you familiar with that? [00:01:37] Speaker 02: I was not familiar with that, Your Honor. [00:01:39] Speaker 02: But that was not done here. [00:01:40] Speaker 02: This was not done until about two months later, right? [00:01:43] Speaker 02: That's correct, Your Honor. [00:01:44] Speaker 02: And we said in that case that we would take that and consider, although we didn't regard this as jurisdictional, it's a matter of our discretion, and that we might well dismiss an appeal if the government didn't file the certificate right away, if it didn't treat this question with seriousness, [00:02:04] Speaker 02: And given the fact that you represented the last time you were here, that you did not need the statements of the defendant, why should we not dismiss it? [00:02:16] Speaker 02: And you've obviously changed your mind about that. [00:02:18] Speaker 02: Why should we not dismiss the case now? [00:02:22] Speaker 01: I think there are a variety of reasons why the court should not dismiss the case. [00:02:25] Speaker 01: We did file the certificate with the district court before filing our brief in this case. [00:02:30] Speaker 02: Right, but we said that you ought to be filing it at the same time as the notice of appeal. [00:02:35] Speaker 02: So now it's, it was several months, two months I think afterwards before you did that. [00:02:39] Speaker 01: It was, I accept the court's representation, that was approximately two months after I became involved in the case and realized that the certificate needed to be filed. [00:02:48] Speaker 01: We ensured that it was. [00:02:50] Speaker 02: I'm not blaming you personally, just to be clear about that, but you do represent the United States and it is a single entity. [00:02:56] Speaker 01: I understand, Your Honor. [00:02:58] Speaker 01: Additionally, the circumstances of the case have materially changed since we made that representation during the first appeal. [00:03:06] Speaker 01: During the first appeal, there were a number of charges at issue, including DC gun charges that did not require proof of the defendant's specific knowledge of the firearm's capacity as firearms. [00:03:20] Speaker 01: Those charges were voluntarily dismissed by the United States, and the only two charges remaining do require proof of the defendant's specific knowledge that [00:03:32] Speaker 01: He consciously possessed what he knew to be a destructive device. [00:03:35] Speaker 02: Well, you didn't indicate that the first time. [00:03:37] Speaker 02: You said that the charges could be proven without the statements. [00:03:42] Speaker 02: You didn't say some of the charges could be proved without the statements. [00:03:45] Speaker 02: You said the charges could be proven. [00:03:47] Speaker 01: I understand that that was the representation the government made during the first appeal. [00:03:52] Speaker 01: The government's view is that now that the firearms charges have been dismissed... Who dismissed them? [00:03:57] Speaker 02: When you say voluntarily, they were dismissed by the United States, right? [00:04:00] Speaker 02: Correct, Your Honor. [00:04:01] Speaker 02: Well, then you put yourself into the position you're in. [00:04:03] Speaker 02: It's not as if... [00:04:05] Speaker 02: Some hand somewhere puts you into that. [00:04:07] Speaker 02: You put yourself into that position. [00:04:09] Speaker 01: It's true that the United States voluntarily dismissed those charges, but it does change the nature of the proceeding in that the only two remaining charges require this specific knowledge. [00:04:19] Speaker 01: And given that the Molotov cocktail issue here was not entirely constructed, [00:04:24] Speaker 01: The defendant's statement during the interview that he had a Molotov cocktail in his car is significant proof that he consciously possessed what he knew to be a destructive device. [00:04:35] Speaker 01: And so the government does believe that the certification was appropriately filed. [00:04:39] Speaker 01: If not, at the time we represented in Boop night that we would file it. [00:04:43] Speaker 01: And the defendant has never relied on this non-jurisdictional issue in this case to argue that the appeal should be dismissed. [00:04:51] Speaker 01: So, I don't believe it would be appropriate for the court to do so, Susponte. [00:04:55] Speaker 02: All right. [00:04:56] Speaker 02: Well, however this comes up, again, I'd like a representation from the United States that will do what it said in Bookhart, that from now on, it will make the certifications at the same time as the notice of appeal. [00:05:10] Speaker 02: I will ensure that my chief of the appellate division. [00:05:14] Speaker 01: Maybe someone could send a court a letter to that effect. [00:05:19] Speaker 01: I will make a note of it, Your Honor. [00:05:21] Speaker 01: As to the merits of the case, the district court aired as a matter of law in concluding that Hallford was in Miranda custody at the time of the interview here. [00:05:31] Speaker 01: The district court inappropriately relied on, among other things, Hallford's interactions with doctors and nurses [00:05:40] Speaker 01: both at the George Washington University Medical Center and at the United Medical Center well before the interview at issue here. [00:05:47] Speaker 01: Those doctors and nurses' statements to Hallford are not properly attributable to the government because there was no agency relationship between those doctors and nurses and the government. [00:05:58] Speaker 05: In addition, the court relied on Hallford's... Do you dispute that the [00:06:05] Speaker 05: just generically in analyzing custody or not, that we start at the time the person is told [00:06:17] Speaker 05: they're going to be questioned, or do we start at the time they're actually in the room and the questioning starts? [00:06:24] Speaker 05: When do we start the custody inquiry? [00:06:27] Speaker 01: I think it depends on what the governmental agents know, because the point of Miranda is that they can evaluate the objective circumstances. [00:06:35] Speaker 05: We're asking not what the reasonable officers thought, but what the reasonable person thought, the person who's being questioned, correct? [00:06:42] Speaker 01: what a reasonable person would think given the governmental coercion. [00:06:46] Speaker 05: First of all, the person doesn't know what the officers, what they do or do not know, and so I'm asking just temporally. [00:06:55] Speaker 05: In any case, when we're trying to decide whether someone was in custody or not, [00:07:00] Speaker 05: what you call a lot of things background facts. [00:07:03] Speaker 05: I'm trying to figure out when they stop being background, they start being relevant to the custody inquiry. [00:07:07] Speaker 05: And so the first dividing line I'm suggesting to you is when the person's told, they're going to be questioned. [00:07:13] Speaker 05: Does that count? [00:07:14] Speaker 05: Does that time count? [00:07:15] Speaker 01: Not if the officers don't know about it and they are told by four parties. [00:07:18] Speaker 05: Why does that affect the reasonable person's understanding? [00:07:21] Speaker 01: It affects whether or not there's governmental coercion. [00:07:24] Speaker 01: Those statements are not attributable to the government because those statements are not made by government actors and the officers aren't aware of them and so then can't take them. [00:07:35] Speaker 05: So the district court here [00:07:37] Speaker 05: found that the officers had to have known because there's no reason otherwise that the Medical Center employees would have told Mr. Halford that he had to go to the questioning and he had to do it. [00:07:49] Speaker 05: He had to go be questioned by the officers and he had to do it right then. [00:07:52] Speaker 05: So if you lose that fact-finding, so the officers somehow communicated to the Medical Center employees that he needed to question him, they need to question him now. [00:08:04] Speaker 05: Do you lose? [00:08:07] Speaker 01: I don't believe so, Your Honor. [00:08:09] Speaker 05: Let me ask you a different way. [00:08:10] Speaker 05: Is that a relevant fact for the custody analysis? [00:08:13] Speaker 01: Only if it's known to the officers and the third parties. [00:08:17] Speaker 05: I've given you the situation here, and that is the officers told medical center employees we want to talk to him. [00:08:23] Speaker 05: And from that conversation, the medical center employees understood that the officers wanted to speak to him, and they want to speak to him now. [00:08:31] Speaker 01: I don't believe under those circumstances those statements are properly considered as part of the analysis because but for causation is not enough to create an agency relationship. [00:08:42] Speaker 05: I don't want to talk tort standards here. [00:08:43] Speaker 05: I want to ask just structurally how on earth can it not be that the circumstances under which you're told to get yourself into an interrogation area [00:08:53] Speaker 05: are categorically irrelevant to the custody inquiry. [00:08:57] Speaker 01: In JDB, the Supreme Court made clear that a child's age is only relevant to the inquiry so long as it's known to the officers or should be known to a reasonable officer. [00:09:07] Speaker 01: Right. [00:09:07] Speaker 01: Under those circumstances, the child. [00:09:09] Speaker 05: You've lost a fact finding here. [00:09:10] Speaker 05: If I assume you've lost a fact finding here, that the officer's statements communicated to the medical employees. [00:09:17] Speaker 05: So they know what they told the medical employees. [00:09:20] Speaker 05: And then they know that the person that immediately appeared [00:09:23] Speaker 01: they don't know what the medical employees told Hallford to get him to the interview. [00:09:28] Speaker 05: And so that's why it's categorically irrelevant to the person being questioned, the suspect. [00:09:33] Speaker 05: It's unreasonable for the suspect, or it's categorically off limits for us to factor into the suspect's mindset, how the suspect was taken into the room. [00:09:43] Speaker 01: Yes, Your Honor, and there are multiple courts that have found that. [00:09:46] Speaker 01: The Eighth Circuit and [00:09:49] Speaker 01: Goudreau, his supervisor, told him, you have to go meet with the agencies now. [00:09:54] Speaker 01: The employee understood that as a command, and the court nevertheless said that's irrelevant to the Miranda custody inquiry because that statement was not attributable. [00:10:03] Speaker 05: Right, that's from another circuit. [00:10:04] Speaker 05: So there's nothing from this circuit that says that. [00:10:05] Speaker 05: Is there anything from the Supreme Court that says, categorically, we do not start the custody analysis until [00:10:11] Speaker 05: You're actually in the room being questioned. [00:10:16] Speaker 01: Nothing that says you don't start until you're in the room, but the court has focused on the objective circumstances known to the officers. [00:10:22] Speaker 01: A child knows his own age. [00:10:24] Speaker 05: And under my question, the officers know because they are the ones who told the medical center employees to get him there now. [00:10:30] Speaker 01: The court didn't make that finding. [00:10:33] Speaker 05: If under my hypothetical, if that's what the officers did, would that be relevant or not? [00:10:38] Speaker 05: Your argument seems to be it's not relevant, so it doesn't matter if they actually said, get him, bring him here now. [00:10:43] Speaker 05: Is that your position? [00:10:44] Speaker 01: If the officers actually said that, then they would know that they said that, and that that led him to being brought to the room. [00:10:51] Speaker 01: So then their officer's statements that they know about would properly be considered as part of the Miranda custody analysis. [00:10:58] Speaker 01: But those aren't the facts here. [00:10:59] Speaker 05: And then the district court found that the reason the medical center's employees said that to him was because that's what was communicated to them by the officers that we don't consider it? [00:11:10] Speaker 01: The court never found anything about what the officers said. [00:11:15] Speaker 01: The court reasoned backwards and sort of said, you know, race it to local or because these nurses said that Hartford had to go now. [00:11:24] Speaker 05: The only basis under which they would have told him [00:11:27] Speaker 05: that he had to go and he had to go now was because that's what the officers said. [00:11:31] Speaker 01: But the officers didn't even communicate with those nurses. [00:11:33] Speaker 05: That's not the point. [00:11:36] Speaker 01: I think it is clearly erroneous under these facts. [00:11:40] Speaker 05: That's a different question. [00:11:42] Speaker 05: I'm trying to understand. [00:11:43] Speaker 05: You say the facts don't matter. [00:11:45] Speaker 05: Do matter if the officers were aware of them and don't matter [00:11:52] Speaker 05: if they weren't aware. [00:11:53] Speaker 05: That's your position? [00:11:54] Speaker 00: Yes. [00:11:55] Speaker 05: Doesn't matter. [00:11:56] Speaker 05: There's there's otherwise the circumstances are utterly irrelevant. [00:12:00] Speaker 00: Yes. [00:12:01] Speaker 05: Okay. [00:12:02] Speaker 05: And if they what does they have to know or do they have to what a reasonable officer be aware that when they tell hospital employees we need to talk to somebody [00:12:17] Speaker 05: Would you like to talk to them now in the Hospital Employees Act on that? [00:12:21] Speaker 05: Does that matter to the analysis? [00:12:23] Speaker 01: The Supreme Court has said what an officer knows or a reasonable officer should have known. [00:12:28] Speaker 01: And so I think that's the controlling test here. [00:12:32] Speaker 01: But regardless, there's no evidence that the officers knew what the nurses said. [00:12:36] Speaker 01: To the contrary, they testified they had no idea what the nurses said. [00:12:39] Speaker 01: And the only testimony, the only facts about what the officer said when they arrived at the hospital was testimony from Agent Fox, which is that they asked to interview Hallford. [00:12:49] Speaker 01: And so any finding that the officer said something upon arrival at the hospital that caused the nurses to tell Hallford he wasn't entitled. [00:12:57] Speaker 05: Did they make clear they wanted to talk to him now while they were there? [00:13:01] Speaker 01: That's not what the officer testified he said. [00:13:04] Speaker 01: He said they arrived at the hospital and asked to speak with Hallford and that security personnel took them up to the fourth floor and officers found Hallford arriving at the interview room. [00:13:16] Speaker 01: That's the only evidence we have as to what the officers said. [00:13:20] Speaker 01: Hufford testified not only did the nurses tell him you have to talk to the agents, he testified that they identified them as FBI agents and Secret Service agents, which is wrong. [00:13:29] Speaker 01: And he said he was told that he wasn't allowed to have a lawyer present. [00:13:33] Speaker 01: And there's no testimony whatsoever that the officers said anything about attorneys. [00:13:39] Speaker 01: And so to the degree the district court seeks to attribute those statements to the officers [00:13:44] Speaker 01: interactions at the front desk, and then to consider them as part of a Miranda analysis, it's both clear error and legal error to consider those statements. [00:13:53] Speaker 01: And once you do away with those statements, this is an entire, from the viewpoint of Agent Fox, who conducted the interview, this is an entirely innocuous interview. [00:14:03] Speaker 01: It lasted approximately an hour. [00:14:04] Speaker 01: The defendant was never restrained. [00:14:06] Speaker 01: It was in conversational tones. [00:14:08] Speaker 05: The defendant was- I keep talking about the officer's perspective, but am I wrong? [00:14:13] Speaker 05: The test is what a reasonable suspect would think, a reasonable person being questioned would think. [00:14:17] Speaker 01: Given the objective circumstances of the interview, and the point is that the officers have to make an on-the-scene, real-time judgment, given the objective circumstances that they know as to how a reasonable person would [00:14:31] Speaker 01: interpret their circumstances and the threat of governmental coercion. [00:14:34] Speaker 01: So if the officers don't know about something, they can't take that into account in determining whether to give Miranda warnings, which is why JDB makes clear that the child's a test. [00:14:43] Speaker 05: If someone's in state police custody, [00:14:49] Speaker 05: And then the federal agents show up and say, hey, we'd like to talk to him. [00:14:55] Speaker 05: And the state police bring them into an interview room with the federal officers. [00:15:01] Speaker 05: Are there cases talking about [00:15:04] Speaker 05: whether that counts as continued custody status or how the fact that they're already in the custody of the state factors into whether they're deemed to be in custody for purposes of Miranda when they're questioned by the federal agents. [00:15:17] Speaker 01: Do you know of cases on that? [00:15:18] Speaker 01: I haven't seen cases directly analogous, Your Honor. [00:15:21] Speaker 01: What comes to mind are cases where a defendant is already incarcerated on separate charges. [00:15:25] Speaker 05: You know, I'm talking about that. [00:15:26] Speaker 05: It's got to happen, right? [00:15:28] Speaker 05: There's a lot of, you go find some states [00:15:30] Speaker 05: picks someone up, finds out there's a federal issue, and feds go in to question him? [00:15:36] Speaker 05: There's no cases at all that you're aware of on that? [00:15:39] Speaker 01: I'm not going to represent there are no such cases. [00:15:41] Speaker 01: I've read a lot of Miranda cases in preparation for this argument and for writing our briefs. [00:15:47] Speaker 01: I didn't identify that factual circumstance. [00:15:49] Speaker 05: What do you think the answer is? [00:15:51] Speaker 05: Do you think the fact that you're in state custody [00:15:55] Speaker 05: And then you're brought into a room to be questioned by the federal, by federal agents about presumably separate federal offenses. [00:16:02] Speaker 01: So I think there are two possible approaches. [00:16:04] Speaker 01: One, the court might analogize it to the schatzer or house situation where the defendant's already in separate custody, and the question is whether or not there are additional restraints on his freedom imposed by the federal officers that would render this Miranda custodial interview. [00:16:20] Speaker 01: Or the court may look at the state police as agents of the federal government in that circumstance, depending on whether the federal government knows. [00:16:28] Speaker 05: Would the officers have to know that? [00:16:32] Speaker 05: Would it only be agents if the federal officers ask? [00:16:36] Speaker 05: If they ask them to bring the person in for questioning? [00:16:38] Speaker 05: Is that enough to make it agency? [00:16:39] Speaker 05: Would you mind bringing them here for us so we can talk to him? [00:16:43] Speaker 01: The agency test requires not only knowledge on the part of the federal government, but also more than mere acquiescence in the agent's actions, and it requires that the agent be acting for the purpose of assisting the federal government. [00:16:56] Speaker 05: So I'm asking the question. [00:16:57] Speaker 05: Would you bring them into the... [00:16:59] Speaker 05: We're here. [00:16:59] Speaker 05: We'd like to talk to him about some federal offenses. [00:17:02] Speaker 05: Would you bring him into the room so we can talk to him? [00:17:05] Speaker 01: I think it would depend on whether or not the state police were intending to assist the federal government or acting in some other capacity. [00:17:12] Speaker 05: You're talking about the state police intent to assist. [00:17:16] Speaker 01: That would be part of the agency test. [00:17:19] Speaker 01: Here there's no evidence that the nurses were acting as agents of the federal government. [00:17:23] Speaker 05: They were intending to assist. [00:17:25] Speaker 05: They certainly were intending to assist by bringing him to you. [00:17:28] Speaker 01: not to assist the law enforcement function of investigating his statements. [00:17:33] Speaker 05: Well, of course they were. [00:17:34] Speaker 01: There's no evidence that the nurses were doing this out of an intent. [00:17:36] Speaker 05: I want to bring him there for medical treatment. [00:17:40] Speaker 01: He was in the hospital for medical treatment. [00:17:41] Speaker 01: There's no evidence in the record that the nurses' subjective intent was to aid the federal government as effectively state actors, nor is there any evidence that officers Fox and Maher knew what the nurses said to Holford. [00:17:56] Speaker 01: and did anything more than acquiesce and then bringing Hallford to the interview room. [00:18:00] Speaker 01: So under these circumstances, I think that it is legal error to consider those interactions, as well as the prior interactions where Hallford was brought from one hospital to another and what was told at George Washington University Hospital. [00:18:14] Speaker 01: And once you put those aside, I think as a matter of law, Hallford was not in custody. [00:18:20] Speaker 01: There are no further questions. [00:18:25] Speaker 01: Thank you. [00:18:30] Speaker 04: Good morning, Your Honors. [00:18:31] Speaker 04: A.J. [00:18:31] Speaker 04: Kramer on behalf of Mr. Holford. [00:18:34] Speaker 04: Chief Judge Garland, I'm both painfully and embarrassingly aware of Bookhart since I argued it. [00:18:39] Speaker 04: I think the statute, as the government did, you're absolutely correct, the government promised it would file simultaneously from then on. [00:18:49] Speaker 04: The statute doesn't require it, although the government promised it. [00:18:54] Speaker 04: the as I read the case law looking behind the certificate, the government's representations in the certificate is not. [00:19:03] Speaker 04: permitted. [00:19:04] Speaker 04: There was the statement in the prior case by the government that they did not need the evidence to prove the charges, but I think I understood that because the government had dismissed the charges in the light of a Second Amendment motion, that it was just now the federal charges. [00:19:22] Speaker 04: So clearly I should have filed a motion under Bookhart, but [00:19:27] Speaker 04: What the statute, I guess, does not require it is the simple answer. [00:19:33] Speaker 04: The government turned this case on. [00:19:36] Speaker 04: The government is the one who turned the case on its head in its argument. [00:19:38] Speaker 04: It said Miranda warnings are for law enforcement officers. [00:19:42] Speaker 04: Miranda warnings are not for law enforcement officers. [00:19:45] Speaker 04: Miranda warnings are for people who are being questioned, the suspects. [00:19:49] Speaker 04: yet to ensure that they understand the situation. [00:19:53] Speaker 04: And I noticed the government didn't mention Howes versus Fields in its case. [00:19:58] Speaker 04: The government just wants you to ignore that case where the Supreme Court said twice. [00:20:03] Speaker 04: They most important, they said at the beginning of their analysis, most important respondent was told at the outset of the interrogation and was reminded again thereafter that he could leave and go back to his cell whenever he wanted. [00:20:16] Speaker 04: And then they concluded the analysis by saying, [00:20:19] Speaker 04: taking into account all the circumstances, including especially the undisputed fact that Respondent was told that he was free to end the questioning and return to his jail cell. [00:20:30] Speaker 04: We find that he was not in custody. [00:20:31] Speaker 04: And they just want you to ignore those statements in Howes versus Fields, that that was the most important fact in that case. [00:20:39] Speaker 02: Judge Millett, the... But can I ask about the problem in Howes was there were so many factors [00:20:47] Speaker 02: going in the other direction already, that that made it so important. [00:20:52] Speaker 02: This was one where the respondent didn't invite the interview, was not advised, he was free to decline to speak. [00:21:03] Speaker 02: It was a five to seven hour interview. [00:21:06] Speaker 02: The respondent was, the deputies were armed. [00:21:11] Speaker 02: They spoke in a sharp tone. [00:21:12] Speaker 02: At least those latter things are not the case in this case. [00:21:16] Speaker 04: Well, but the factors they pointed out in House, the three factors they pointed out for consideration are much more compelling in this case about being yanked out of away from friends and family. [00:21:28] Speaker 04: Mr. Hallford from Alabama that the agents knew was yanked out and sent to United Medical's UNC from GW Hospital. [00:21:39] Speaker 04: The other factors they talk about are the whether he thought that they [00:21:45] Speaker 04: Officers were his ticket out her or had some influence over his custody and whether they might He would be susceptible to talking to them because he thought they could help with his release None of those those three factors none of them were present in house versus field all of them are present in Mr. Halfords case Well, let me ask about a few facts that the court relied on that I'm a little uncertain on so one is this last point you made which is [00:22:12] Speaker 02: that an objective person in his position would have thought, it has to be an objective position, it can't be what he thought, right? [00:22:19] Speaker 02: We agree with that. [00:22:20] Speaker 02: About whether the officers could help him get out, right? [00:22:24] Speaker 02: Yes. [00:22:24] Speaker 02: Now his testimony is all about I think or I thought. [00:22:28] Speaker 02: It's not about objectives. [00:22:29] Speaker 02: So we have to impose an objective test on that. [00:22:33] Speaker 02: And as the district court's own opinion reflects, he was told that he was there because of a court order. [00:22:42] Speaker 02: That's why he was in the hospital, not because of the Secret Service or anyone else, but there was a court order. [00:22:47] Speaker 02: And that was an involuntary commitment because they thought he had a medical problem of either physical or mental nature. [00:22:58] Speaker 02: So given the fact that he was expressly told by the nurses and the court accepted that, that it was a court order, [00:23:08] Speaker 02: Why was it objective in that circumstance that he would think that the Secret Service could get him out as compared to these other cases where courts have said it wasn't objective? [00:23:18] Speaker 04: Well, I think there's a simple incident. [00:23:22] Speaker 04: First of all, he said, I was told there was a court order, but I didn't really understand why. [00:23:26] Speaker 04: So he said, I didn't understand why. [00:23:29] Speaker 02: But I really don't understand why it also doesn't matter. [00:23:31] Speaker 02: This is an objective test, right? [00:23:33] Speaker 02: You told us that. [00:23:35] Speaker 02: So it doesn't matter whether he really understands. [00:23:38] Speaker 04: And there was no testimony what he was told about the court order for an objective person. [00:23:43] Speaker 04: That means you have to stay in for 24 hours or 48 hours, and you can't be released until you go to a courtroom. [00:23:50] Speaker 04: There's no testimony about that at all. [00:23:52] Speaker 04: So an objective person would think, I'm in here under a court order. [00:23:57] Speaker 04: Now the Secret Service is here. [00:23:58] Speaker 04: And just as he testified, once they hear that I'm not a danger, that I don't present any danger to anybody, they'll make sure they'll help me get out. [00:24:06] Speaker 04: I don't think that's, from an objective viewpoint, that that's unreasonable. [00:24:09] Speaker 04: Well, in fact, I think just the opposite is perfectly reasonable as the district court found. [00:24:14] Speaker 02: How about the district court's finding that the officer was armed? [00:24:18] Speaker 02: when the defendant's testimony was that he didn't see the gun until after he had answered his questions. [00:24:25] Speaker 04: Well, he was armed. [00:24:26] Speaker 04: There was no question about that. [00:24:28] Speaker 04: But again, the questions went as seen by the defendant, right? [00:24:34] Speaker 04: And I think that's, frankly, people probably, it's probably reasonable to assume, I think, that Secret Service officers are armed. [00:24:41] Speaker 02: That's a different question. [00:24:43] Speaker 02: First of all, they were in casual clothes. [00:24:46] Speaker 02: They weren't in uniform. [00:24:48] Speaker 02: The court made a finding that they were armed and the facts, as stated by your client, is that he didn't notice that until after he had answered the question. [00:24:58] Speaker 02: So the fact that they were armed, which goes to the coerciveness, could not have gone to the coerciveness because he didn't know about it until he had already [00:25:06] Speaker 04: What he said was, I didn't see a gun until he stood up. [00:25:09] Speaker 04: But it would be perfect. [00:25:10] Speaker 04: That's a subjective fact, of course, which Your Honor has said as well. [00:25:14] Speaker 02: It's not subjective that that was the time he saw the gun, either. [00:25:18] Speaker 02: The gun was either visible or not. [00:25:21] Speaker 02: That's a fact in the world. [00:25:23] Speaker 02: Right, but it would be perfectly reasonable for a person to think that two Secret Service officers are armed. [00:25:28] Speaker 02: Well, if that's the case, that would be true in every single circumstance in which law enforcement questions, and we know that's not correct. [00:25:34] Speaker 02: Otherwise, the armed nature of the officers would be an irrelevant factor. [00:25:38] Speaker 02: It would just always be assumed. [00:25:40] Speaker 04: No, because they could go in without their weapons. [00:25:42] Speaker 02: They could be unarmed. [00:25:44] Speaker 02: That happens all the time. [00:25:45] Speaker 02: You don't think, yes, they could go in without their weapons, but under what you just told me, a reasonable defendant would assume they were armed whether he saw their weapons or not. [00:25:55] Speaker 02: That's true. [00:25:56] Speaker 02: Whether they were armed or not. [00:25:57] Speaker 04: They could objectively stand up and show up. [00:26:01] Speaker 04: They could say, we don't have our guns. [00:26:04] Speaker 04: They could say we're unarmed. [00:26:05] Speaker 02: Why would a defendant believe them? [00:26:08] Speaker 02: I mean, your position is... They just show that they were. [00:26:11] Speaker 02: The officers have to strip in order to establish that they're not armed. [00:26:16] Speaker 02: That's not what the cases say. [00:26:19] Speaker 02: I'm asking you whether the district court made a clearly erroneous factual finding and how important it is to us. [00:26:25] Speaker 02: No, it's not. [00:26:26] Speaker 02: He found that they were armed. [00:26:28] Speaker 02: Yes, but as part of the coercion, which had already, if there were coercion, had stopped by the time, by that point. [00:26:36] Speaker 02: He had already, at the moment at which he discovered it. [00:26:39] Speaker 04: Well, I have to say two things. [00:26:41] Speaker 04: First of all, it was not clearly wrong. [00:26:43] Speaker 04: It was because it was correct. [00:26:43] Speaker 04: It was true. [00:26:44] Speaker 04: They were wrong. [00:26:45] Speaker 04: Second of all, I think it's probably the least important factor in this particular case. [00:26:51] Speaker 04: Because he was told, before he went into the room, and Judge Millett, it has to start, [00:26:56] Speaker 04: with the directions they're given. [00:26:58] Speaker 02: Before we get to that point, because I'm going to ask you about that too, but I've got your point on this, but it was a good pivot. [00:27:05] Speaker 02: Now, one more fact. [00:27:07] Speaker 02: The court relied on the fact that he had no underwear on and wasn't wearing anything under his gown, while the exhibit shows that he was. [00:27:17] Speaker 02: What do we do about that? [00:27:19] Speaker 02: The exhibit shows something. [00:27:21] Speaker 02: It's not clear what it is. [00:27:22] Speaker 02: Well, there is something under the gown. [00:27:24] Speaker 02: I can pick it up and hold it. [00:27:25] Speaker 02: You've seen it, right? [00:27:26] Speaker 02: It could be. [00:27:27] Speaker 02: Let me put it this way. [00:27:28] Speaker 02: There were two hearings. [00:27:30] Speaker 04: What am I supposed to believe, my lying eyes or what? [00:27:33] Speaker 04: Well, there were two hearings. [00:27:35] Speaker 04: There were two hearings. [00:27:37] Speaker 04: The agents never testified anything to the contrary, that all he was wearing was the hospital gown. [00:27:42] Speaker 04: In fact, there was questions at the hearing about that. [00:27:44] Speaker 04: What's the exhibit? [00:27:45] Speaker 04: The exhibit, I understand, shows something. [00:27:48] Speaker 04: Was it entered into evidence? [00:27:49] Speaker 04: I have no idea how far that, whatever that is, goes down. [00:27:53] Speaker 04: What he said was, I was naked under the gown. [00:27:56] Speaker 04: And that could be that he had some kind of t-shirt on or something. [00:28:02] Speaker 04: But it was undisputed. [00:28:04] Speaker 04: The agents never said anything different. [00:28:06] Speaker 04: The doctor never said anything different. [00:28:07] Speaker 02: He said the gown was buttoned in the back, but actually buttoned in the front. [00:28:11] Speaker 04: He said, what he actually said was it was one of those gowns that ties in the back. [00:28:17] Speaker 04: The government plays fast and loose with the facts in this case. [00:28:20] Speaker 02: I'm only looking at the picture. [00:28:22] Speaker 02: I'm believing my eyes. [00:28:23] Speaker 02: I'm not believing either set of testimony for the moment. [00:28:26] Speaker 02: What he said was it was one of those gowns that ties in the back. [00:28:29] Speaker 02: No, the court relies on the fact that it was an open-backed hospital gown. [00:28:34] Speaker 02: That's how the court describes it. [00:28:36] Speaker 02: Was that clearly erroneous? [00:28:38] Speaker 04: No, well, it depends whether that means it was open in the back or was one of the open the back of the gown was open I mean again, I think that's not [00:28:49] Speaker 04: a crucial fact in this case. [00:28:52] Speaker 04: What the crucial fact is, is he was told that he had to go to this room, that he had to submit to the interview, that he had no right to have a lawyer, that he could not refuse to submit to the interview, and that they escorted him to the room, sat him down, [00:29:09] Speaker 04: He was surrounded by the agents and hospital staff. [00:29:13] Speaker 04: And Judge Malette, the only, that has to go back to what the agents said at United Medical Center. [00:29:20] Speaker 04: It was perfectly reasonable for the district court. [00:29:22] Speaker 05: Well, they can't have a lawyer part. [00:29:24] Speaker 05: How could that be tied to the agents? [00:29:26] Speaker 05: They said you can have a lawyer when you have your hearing on involuntary [00:29:31] Speaker 05: commitment, but is there any basis for believing that the officer said, we want to talk to him now, and he can't have a lawyer? [00:29:39] Speaker 05: I didn't see any basis for inferring that lawyer part out of it. [00:29:43] Speaker 04: Well, there's no reason they would have said it, except for what the agents portrayed. [00:29:48] Speaker 04: And Agent Fox gave different testimony about what he said. [00:29:53] Speaker 05: These folks at the medical center must know [00:29:56] Speaker 05: have familiarity with the involuntary commitment process. [00:29:59] Speaker 05: And so, he's asking for a lawyer when they have meant, when they said that happens when you have your involuntary, that's separate from this, that goes with your involuntary commitment process as opposed to the, they want to talk to you, they want to talk to you now. [00:30:13] Speaker 04: Right, but he said, can I have a lawyer for this, too? [00:30:15] Speaker 04: I'd like to have a lawyer for this. [00:30:17] Speaker 04: And they said, no, you'll get one later. [00:30:19] Speaker 04: What this testimony, Fox testified to different versions of what he said when they went to United Medical Center. [00:30:26] Speaker 04: He said, we essentially identified ourselves as Secret Service. [00:30:30] Speaker 04: We were there to speak to a patient, Mr. Hallford, who was transferred from DGW, and we were told to wait. [00:30:36] Speaker 04: That says nothing about asking to talk to Mr. Halford. [00:30:40] Speaker 04: The only, which was, it was perfectly reasonable for the district court to conclude that the only reason the United Medical Center people told Mr. Halford that was based on the, either what the Secret Service agents said to the people who were at the, [00:30:55] Speaker 04: they first had contact with, or the implications of the way they said, we're Secret Service, we're here to interview Mr. Hawford. [00:31:04] Speaker 04: And it could have all been taken care of had they, as they did [00:31:11] Speaker 04: in House versus Field said, you can leave at any time. [00:31:15] Speaker 04: This is voluntary. [00:31:16] Speaker 04: That could have taken care of it. [00:31:18] Speaker 04: They could have said, what did you? [00:31:20] Speaker 05: Could he have left at any time? [00:31:22] Speaker 04: Could he have left at any time? [00:31:23] Speaker 05: I mean, it sounded like, and maybe I wasn't reading it accurately, that he wasn't allowed to move around this part of the hospital on his own. [00:31:35] Speaker 05: He had to be escorted. [00:31:36] Speaker 04: Not only did it have to be escorted, there were key cards that had to be swiped. [00:31:40] Speaker 05: Well, not to go out of this lounge area. [00:31:44] Speaker 04: You couldn't get out of the lounge area even without a key card swipe. [00:31:47] Speaker 04: Back to his room. [00:31:49] Speaker 04: Okay. [00:31:50] Speaker 05: He wouldn't be afraid to leave under any circumstances. [00:31:53] Speaker 04: By himself. [00:31:54] Speaker 04: Right. [00:31:55] Speaker 04: That was undisputed that he could not just get up and leave and walk away because [00:32:01] Speaker 04: The doors, you had to have a key card swipe to get back to his room. [00:32:06] Speaker 04: I think they swiped it at least twice on the way from his room to the... That was true in Howes also. [00:32:12] Speaker 02: They were locked into the place where the questioning occurred. [00:32:16] Speaker 02: He could only get back to his cell if they let him go back to his cell, and that would be the same here. [00:32:20] Speaker 04: Well, what they said in house, the door was open at times in house. [00:32:26] Speaker 02: In order to get to the conference room, Field had to go down one floor, pass through a locked door that separated two sections of the facility. [00:32:35] Speaker 04: Yes, and he would have had to have been escorted back to his cell by an officer. [00:32:39] Speaker 02: And the same would have to be here. [00:32:41] Speaker 04: Well, first of all, he was surrounded in the room by a number of people. [00:32:45] Speaker 04: So in his chair, in the chair he was sitting in, there were the two officers and three hospital staff and others sitting in the room. [00:32:53] Speaker 04: The government agreed that the staffers took him to the room, sat him down, [00:32:59] Speaker 04: He was essentially surrounded or flanked by at least four people in a relatively small room. [00:33:05] Speaker 04: That's it on August 27th of 2014 at pages 40 to 41. [00:33:12] Speaker 04: He was escorted to the room and the government agreed to those facts. [00:33:16] Speaker 02: So... So you think he was more constrained in the hospital than the prisoner was? [00:33:23] Speaker 02: Yes, absolutely. [00:33:25] Speaker 02: I mean, they just let prisoners wander around. [00:33:27] Speaker 02: And if he made a bolt out the door, that would have been fine. [00:33:32] Speaker 04: Well, they let them wander around in non-secure areas. [00:33:35] Speaker 02: It was less secure. [00:33:35] Speaker 02: He had to go through a lot of doors. [00:33:37] Speaker 04: But they don't let people in. [00:33:39] Speaker 04: The testimony was to even get out of the corridor he needed. [00:33:42] Speaker 04: There was a key swipe. [00:33:44] Speaker 04: I think it was much more secure at United Medical Center than most prisons, although somebody wandered into his room and took a nap at one point. [00:33:52] Speaker 04: But it seems, I think, you've got to remember, he was constantly asking to be released from there. [00:34:00] Speaker 04: So they were, and when the Secret Service officers came, he thought, this is how I can finally get released. [00:34:07] Speaker 04: He had been consistently asking about that. [00:34:09] Speaker 02: Can I ask a question along the lines that you were discussing with Judge Millett and that Judge Millett was, [00:34:16] Speaker 02: Discussing with opposing counsels. [00:34:18] Speaker 02: So what are we them the district court in this case that rejected the idea that Circumstances had to be limited to those that were known by the officers And I'll add to that objectively known by the officers so what and you're resisting that that point and what are we to make of what the Supreme Court said both in JDB and in Yarrow borough that [00:34:44] Speaker 02: By limiting analysis to the objective circumstances of the interrogation and asking how a reasonable person in the suspect's position would understand his freedom to terminate questioning and leaving, the objective test avoids burdening police with the task of anticipating the idiosyncrasies of every individual suspect. [00:35:05] Speaker 02: officers are not required to make guesses as to circumstances unknowable to them at the time. [00:35:12] Speaker 04: But I think what the district court was perfectly reasonable finding a fact was that these facts were known to the officers. [00:35:21] Speaker 04: They went and told the people at United Medical Center [00:35:24] Speaker 04: that they were there to talk to Mr. Holford, and the people at United Medical Center relayed that. [00:35:31] Speaker 04: Whatever they said led the people at United Medical Center to tell Mr. Holford that it was mandatory he could not have it. [00:35:39] Speaker 02: I understand that point, but what about the other things, the things that happened at the first hospital, the transfer from the first hospital to the second hospital under restraints? [00:35:50] Speaker 02: Those things were not known or really knowable by the [00:35:53] Speaker 02: by an objective officer. [00:35:55] Speaker 02: Well, they would clearly know what they could have asked. [00:35:58] Speaker 02: They asked a lot of questions. [00:35:59] Speaker 02: Well, that may be right, but it says officers are not required to make guesses as to the circumstances. [00:36:06] Speaker 04: They didn't have to guess. [00:36:07] Speaker 04: They asked a lot of questions at GW Hospital. [00:36:10] Speaker 02: So they were responsible for finding out all of the circumstances before he got to the room that they were in with. [00:36:18] Speaker 02: I understand your other point, that they should, this court inferred that they were the one who transmitted the message. [00:36:25] Speaker 02: Whether that's reasonable inference or not, we'll put to the side just for the moment. [00:36:29] Speaker 02: But the other things that happened outside of any action by them, even outside of the day on which they arrived, [00:36:37] Speaker 04: I don't think that they were tasked with knowing that he was transported in restraints from GW. [00:36:43] Speaker 04: I'll go that far. [00:36:44] Speaker 05: Really? [00:36:45] Speaker 05: I would have thought that the one thing law enforcement generally would know is that someone who's being involuntarily committed as, I think that would be a danger to himself, it wasn't totally clear, is not going to, is going to be in restraints on their, they may not know things, statements that were made, but the basic process of, [00:37:05] Speaker 05: Here's how we transport somebody who's being involuntarily committed. [00:37:10] Speaker 05: And here's how someone is, you know, processed when they arrive. [00:37:13] Speaker 05: I would have thought law enforcement knows. [00:37:16] Speaker 05: It's not like this is the first person who's ever been involuntarily committed in Washington, D.C. [00:37:22] Speaker 04: I don't disagree with you, obviously, but I have to say it's not in the record, but I think it's perfectly one way or another about that. [00:37:32] Speaker 05: There is no questioning of the officer as to what was knowable generally about this process. [00:37:38] Speaker 04: Yes, there was nothing in the record about that. [00:37:41] Speaker 04: I would say this, that the officers could have alleviated this whole thing by doing one of two things that they did not do. [00:37:50] Speaker 04: They could have actually done a third thing, too, that would have helped. [00:37:54] Speaker 04: They could have said to Mr. Hallford at the very beginning of the interview, as they did in House versus Fields and as they did in the middle of the interview in House versus Fields, this is voluntary. [00:38:05] Speaker 04: You can leave at any time. [00:38:06] Speaker 04: That would have taken care of it under House versus Fields. [00:38:09] Speaker 04: probably, along with the other facts. [00:38:11] Speaker 04: But they also could have said to me, Mr. Hallford, what did they tell you about coming here? [00:38:18] Speaker 04: How did you get into the room? [00:38:20] Speaker 04: They wanted to seemingly go on a deliberate ignorance avenue of trying to not know how Mr. Hallford got to the room, despite the fact that it was their actions that got Mr. Hallford to the room. [00:38:35] Speaker 03: I'm trying to understand whether you want to rest [00:38:39] Speaker 03: on that alone or are you... There are a couple of things that you're arguing. [00:38:45] Speaker 03: One is, I think, that the district court assumed or found that the staff acted at the behest of the Secret Service and then you point to two critical things. [00:38:56] Speaker 03: He was told that he had to go to the interview and he could not have a lawyer. [00:39:00] Speaker 04: Right. [00:39:00] Speaker 03: So that's one line and it's only by inference that the district court is drawing that conclusion. [00:39:07] Speaker 03: There's no specific [00:39:08] Speaker 03: facts that this was looking to. [00:39:10] Speaker 04: No testimony, right? [00:39:11] Speaker 03: Right. [00:39:11] Speaker 03: Then your argument switches as if to suggest, well, you know, this is a coercive setting because Secret Service knows if he's in this institutional institutional setting, he is restrained in ways that he would be nervous about. [00:39:32] Speaker 03: And so they are obliged on the fields [00:39:35] Speaker 03: to reassure him as soon as they saw him. [00:39:37] Speaker 03: Are they two separate theories? [00:39:39] Speaker 03: Are they going together? [00:39:40] Speaker 03: What? [00:39:41] Speaker 04: No, they're going together. [00:39:42] Speaker 04: Definitely. [00:39:43] Speaker 03: Um, he's you've got to have that inference. [00:39:46] Speaker 03: We've got to accept the district court's inference. [00:39:49] Speaker 04: No, I don't think you have to accept. [00:39:51] Speaker 04: No, no, I'm sorry. [00:39:52] Speaker 04: I'm sorry. [00:39:53] Speaker 04: I see where I know. [00:39:55] Speaker 03: I'm sorry. [00:39:57] Speaker 04: That's, you're absolutely right. [00:39:58] Speaker 04: I think you look at the, all the facts. [00:40:02] Speaker 04: This court said in the first Hallford, you look at all the facts to determine. [00:40:07] Speaker 04: Clearly, there was no reason to remand it to the district court. [00:40:11] Speaker 04: If this, what the government's arguing is nothing different than an argument on the first appeal, yet this court remanded it for the specifically for the Miranda finding that the district court had made originally. [00:40:22] Speaker 04: Now there's more facts from Mr. Hallford's testimony. [00:40:25] Speaker 04: undisputed facts. [00:40:27] Speaker 04: In fact, the district court found that Mr. Halford not only was credible, but that to the extent there was any difference between his testimony and that of the agent, that Mr. Halford's testimony was to be credited and that the agent was not credible. [00:40:43] Speaker 04: So I think that it's a perfectly reasonable inference that the agent said something to the [00:40:49] Speaker 04: people at United Medical Center that caused them to go tell Mr. Holford, you have to go to this interview right now. [00:40:56] Speaker 04: You have no choice, and you can't have a lawyer. [00:40:59] Speaker 04: That's a perfectly reasonable inference. [00:41:00] Speaker 04: And it is an important fact, because that's the basis for why he went to the interview. [00:41:07] Speaker 04: Because he said, I don't want to go now. [00:41:09] Speaker 04: I don't want to do it. [00:41:11] Speaker 04: They said, you have no choice. [00:41:12] Speaker 04: He then said, well, if I have no choice, can I at least have a lawyer there? [00:41:15] Speaker 03: All right. [00:41:15] Speaker 03: Suppose we disagree with that. [00:41:18] Speaker 03: Can you win? [00:41:19] Speaker 03: In other words, yes, we don't buy the district court's finding. [00:41:23] Speaker 03: Let's assume you don't buy the district court's finding that you can assume that the staff was acting at the behest of the Secret Service. [00:41:33] Speaker 03: And so when they told him he had to go to the interview and he could not have a lawyer, we attribute that to the agents. [00:41:39] Speaker 03: Suppose we don't buy that. [00:41:40] Speaker 04: for argument purposes only. [00:41:43] Speaker 04: Yes. [00:41:44] Speaker 04: And I'll tell you why. [00:41:45] Speaker 04: Because first of all, for what I said in the House versus Fields, what the court said was the most important fact and repeated that was never done in this case. [00:41:54] Speaker 04: Second of all, he was surrounded in a small room [00:41:57] Speaker 04: as the government agreed, in a small room by about six people, in a chair, he was brought there, he was sat down, he's surrounded by them, they start, and as he, as the government in its cross-examination of Mr. Hallford characterized it, the government itself said, they told you that they had questions with regard to the statements that you made, they told you, and he said yes, that's correct, [00:42:24] Speaker 04: and they asked you about those statements and he said yes that's correct that was the government's own characterization of how it went about so they didn't [00:42:33] Speaker 04: According to the government's cross-examination, they didn't ask him, we want to make statements. [00:42:38] Speaker 04: They told him, we're going to talk to you about this, and they started asking him questions. [00:42:42] Speaker 04: So I think even without that fact, it's a coercive atmosphere in which he's never told that it's voluntary, he has a right to leave, and according to him, that he's not under arrest either, because he said, I never even mentioned arrest. [00:42:56] Speaker 04: That was not mentioned. [00:42:57] Speaker 04: So the facts are so coercive at that point. [00:43:02] Speaker 04: A reasonable person would not have felt free to leave, let me put it that way, after being brought there. [00:43:09] Speaker 04: And the government goes on this agency theory, which is not really appropriate in the fact that if the people at United Medical Center [00:43:20] Speaker 04: Because of what the agents told them, told that to Mr. Holford, they don't have to be agents. [00:43:24] Speaker 04: They're relaying. [00:43:25] Speaker 04: The government wants to get into a technical agency relationship. [00:43:29] Speaker 04: They're relaying what they're told by the agents, and that's perfectly reasonable. [00:43:33] Speaker 04: But even without a Judge Edwards, there's enough facts here in this case because he was not told he was free to leave. [00:43:39] Speaker 04: And the other two house factors. [00:43:42] Speaker 04: that this court had some question about in its original opinion, like why would Mr. Halford have thought that they were his ticket out of there or would influence him, that even though a doctor had testified about it, this court questioned that testimony. [00:43:57] Speaker 04: But now you have Mr. Halford's testimony, which is that I thought that I had to talk to him, and these are the other two factors in House versus Field, where he says I thought [00:44:08] Speaker 04: they were my ticket out. [00:44:10] Speaker 04: I thought if I told them they saw that I was no danger that I would be released from there automatically and it's only after they started asking the questions about the guns that I realized things were different than I had been led to believe. [00:44:24] Speaker 04: So I think the answer is yes without that fact it's still custodial interrogation but I think that fact is perfectly reasonable. [00:44:33] Speaker 04: The government could have [00:44:35] Speaker 04: asked people at the origin, the government could have brought this evidence out, but it never did. [00:44:40] Speaker 04: And I disagree with them about the burden of proof, although the district court found no matter what the burden of proof is, the defendant has, that it's been met in this case, that he was in custody. [00:44:51] Speaker 04: So the long, simple answer to your question is yes, even without that fact, he was in custody. [00:45:00] Speaker 05: Do you know, are there any cases that deal with the situation when someone's already in state police custody and then federal agents show up and ask the state police if they can question? [00:45:11] Speaker 05: I have to think this happens not at all uncommonly. [00:45:15] Speaker 04: Yes, I think it's quite common, actually. [00:45:18] Speaker 04: And I'm saying this, my recollection is that there are a number of cases in that it's [00:45:25] Speaker 04: Because this was not in law enforcement custody. [00:45:29] Speaker 05: I get that he was in state custody. [00:45:31] Speaker 04: Yes. [00:45:33] Speaker 04: But I think there's no, as I recall the cases on that, once a person's in custody, he's in the custody of the state police. [00:45:42] Speaker 04: So he's in custody. [00:45:43] Speaker 04: And all the federal agencies do is come in and question him. [00:45:47] Speaker 04: He's still in custody, as I recall the cases. [00:45:52] Speaker 04: There's no break. [00:45:54] Speaker 04: The difference in these case in Howes and in this case is that he's not in custody of a law enforcement agency being questioned. [00:46:03] Speaker 04: He's in custody for a different reason. [00:46:06] Speaker 04: But if there's a law enforcement agency there questioning him and another law enforcement agency comes in because they say he's either another state or the federal come in and say, yes, he's a suspect in our crime too. [00:46:18] Speaker 04: That's just a continuation of the original questioning. [00:46:22] Speaker 04: So it would come down to whether there might be an issue about whether he had to be read his Miranda rights again. [00:46:29] Speaker 04: That's where I'm hesitating a little. [00:46:31] Speaker 04: I can't remember what the law is on that. [00:46:35] Speaker 04: Thank you. [00:46:36] Speaker 04: Thank you. [00:46:37] Speaker 02: Time left? [00:46:40] Speaker 02: Give me another two minutes. [00:46:47] Speaker 01: Thank you, Your Honor. [00:46:48] Speaker 01: If I may correct a couple of factual points, there's no testimony that there were locked doors that required a key card between Hulford's room and the interview room. [00:46:56] Speaker 01: There was testimony that the officers had to be key carded in to the area where the interview room was located from the elevators. [00:47:05] Speaker 01: The interview room itself, the door was unlocked and open throughout the interview. [00:47:10] Speaker 01: The testimony that Mr. Kramer referenced about other people being in the room [00:47:16] Speaker 01: was, first of all, just at the beginning of the interview, and the officers never asked them to leave. [00:47:22] Speaker 01: But regardless, courts have routinely found that the presence of third parties ameliorates the concerns that animated Miranda. [00:47:30] Speaker 01: Miranda was concerned with incommunicado questioning by the police. [00:47:35] Speaker 01: So, for example, in Berkamer, one of the reasons the court found that a tarry stop was not Miranda custody was that there were third parties [00:47:42] Speaker 01: passersby. [00:47:43] Speaker 01: So if there were, in fact, doctors and nurses present for parts of the interview, that actually makes this look less like Miranda custody. [00:47:51] Speaker 05: Your position is that they weren't during the interview. [00:47:53] Speaker 05: They obviously brought him in during the interview time. [00:47:56] Speaker 05: I understood the record that they left or maybe filtered out slightly. [00:48:00] Speaker 01: And there was a doctor who was sitting just around the corner who listened to the interview and offered Hallford chocolate during the interview. [00:48:06] Speaker 01: So he knew that there were third parties listening in. [00:48:08] Speaker 05: Could he have gotten up and then walked out of the room? [00:48:10] Speaker 01: I believe he could have. [00:48:13] Speaker 01: There was no suggestion that he was unable to do that. [00:48:17] Speaker 01: But regardless, as we've pointed out, the cases say that in circumstances such as this, the question is more properly framed as whether he could ask to terminate the questioning and be returned to his room. [00:48:29] Speaker 02: Is that on the question on the first of the two house questions that is on the curtailment of movement, this issue that you're just discussing? [00:48:39] Speaker 01: Yes, that's how I understand it. [00:48:40] Speaker 02: And not on the coercive nature of the question. [00:48:43] Speaker 01: I understand the coercive nature to be a more... It's already assumed before you get to that step that the person can't leave. [00:48:51] Speaker 01: Correct, Your Honor. [00:48:53] Speaker 01: The court made clear the agents had no [00:48:58] Speaker 01: requirement that they do a further investigation of the pre-interview conversations that Hallford had, JDB could have said that officers must ask a child his or her age, which would be a very simple thing to do, and the child could answer. [00:49:12] Speaker 01: But JDB did not impose that requirement on officers. [00:49:15] Speaker 01: Rather, it said that the child's age to be properly considered as part of the Miranda custody analysis [00:49:21] Speaker 01: must be known to an officer or a reasonable officer should have known. [00:49:26] Speaker 01: So there is no duty that law enforcement have to do an investigation as to the pre-interview circumstances. [00:49:33] Speaker 01: The transportation from one hospital to another, Judge Millett, [00:49:38] Speaker 01: There's no evidence in the record that there is a mandatory directive that people who are involuntarily committed be restrained. [00:49:48] Speaker 05: Not a mandatory directive, I'm talking about common experience of officers, but it sounds like that just wasn't put into the record here. [00:49:53] Speaker 01: There's no evidence in the record suggesting that it's a common experience. [00:49:57] Speaker 01: We don't know one way or the other whether they chose to do it because this person had made threatening statements, had threatened a doctor, or whether they always do it. [00:50:06] Speaker 01: And so to suggest that the officers must have assumed that, I don't think there's any facts in the record to make that a reasonable inference. [00:50:13] Speaker 05: The officers were aware of what statements [00:50:18] Speaker 05: I'd assume, if I'm wrong, that the officers were at least aware of the statements that had triggered the hospital notifying the Secret Service to investigate. [00:50:27] Speaker 01: Yes, they learned those both through the email. [00:50:29] Speaker 05: That he wanted to be shot by the Secret Service. [00:50:31] Speaker 01: about wanting to have his parents owned by the agency, wanting to be shot by the Secret Service, the threat to the doctor. [00:50:38] Speaker 01: I believe the record shows that the agents were aware of all of those things. [00:50:42] Speaker 01: I see that my time is up. [00:50:43] Speaker 01: We would ask that the district court's judgment be reversed.