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Jason for 21 30 47.

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United States of America.

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John Paul Gamara of balance.

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Please fall for the balance.

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Mr. Hansford for the Epoch.

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This spoke.

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Good morning.

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Good morning and may it please the court.

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I lean ball for appellant John Paul.

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This court should vacate Mr. Mara's conviction for three reasons.

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First,

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because Agent Klein's testimony was admitted in violation of Mr. Gamara's Fifth Amendment rights because he had not been given a Miranda warning at the time of the interview.

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Second, the district court failed to properly assess the lack of probative value and high prejudice for Agent Klein's testimony under federal rule of evidence 403.

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Third, Mr. Gamara received ineffective assistance of counsel during the cell motion interlocutory appeal.

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In light of these reasons and because Mr. Gomorrah has already served his full sentence for the undue conviction, this court should vacate his conviction and remand to the district court with instructions to dismiss.

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In the alternative, this court should vacate and remand to the district court for further proceedings or factual development.

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First, the district court erred in the agent's testimony in violation of Mr. Gomorrah's Miranda rights.

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I wanted to ask you if Miranda has any application here.

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Miranda deals with protecting the defendant from the use of his statements obtained in interrogation against him.

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The government did not use any statement from him to hear, did they?

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They simply said what the officer had told him, right?

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Your Honor, the importance of the testimony was not only what the agents told Mr. Gamara, but the testimony that Agent Gamara expressed an understanding of the warnings given by the agents.

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The importance was the understand your objection is simply to the one statement by the officer that he appeared to understand by the eight.

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Is that that what your objection is to?

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Yes, your honor.

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Did you have any any comparable case for the court has said Miranda applies any evidence of that sort?

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Yes, your honor.

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There was a similar case in this

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Circuit decided in 2019, that was United States versus Halford, where the defendant was similarly in custody in involuntarily mental health treatment center and was interviewed by agents in a similar setting.

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And the testimony there, it was found that he was in custody and he should have been given a Miranda warning in that circumstance.

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Was the evidence there simply in effect of what the agent had said and observed or was there a statement by the defendant?

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that was any issue in that case.

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Your honor, that case involved statements by the defendant.

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But in this case, the import of the evidence was not only the statement by the agent, but that understanding of the defendant.

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Not only that.

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That's what I'm coming.

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Do you have a case anywhere that says that that's protected by Miranda?

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Take about the Fifth Amendment.

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I have a specific case where the defendant expressing an understanding is protected by Miranda.

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However, that's

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part of the interrogation was his expression of understanding that testimony was not simply the observation.

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I really questioned whether the fifth amendment has any application here.

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They're not trying to offer any evidence of what he said.

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Why does the fifth amendment or Miranda have any application?

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Your honor, that evidence wasn't explicitly, he stated this,

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but it was his words and actions that the agents implied conveyed the understanding, which was part of the interrogation.

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The previous conversation in the earlier part of the interrogation had been a direct question and answer about a crime committed.

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As part of that interrogation, Agent Klein inquired whether Mr. Gamara understood

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These warnings he was given him and the response was Mr. Gomara apparently conveying an understanding.

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And that was the import of the testimony.

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Well, I do not have a case specifically saying that Miranda applies when the response was the implication or the understanding.

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The testimony from Agent Klein was

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based on Mr. Gamara's response to the interrogation, which is protected by Miranda.

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Your Honor, the second reason that the district court improperly admitted this evidence of Agent Klein's testimony was abuse of discretion and admitting the evidence under Rule 403.

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This testimony was admitted and it was about, it took place during Mr. Gamara's involuntary incarceration.

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At the time, he had been involuntarily committed for mental health reasons, and he was unable to properly understand or really understand at all the warnings that agent client was giving him.

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However, this error was not considered by the judge below.

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It should be reviewed for a plain error.

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And it was plain error in that case that the prosecution did not put forth the evidence that this excuse me, support that this evidence had any probative value.

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This evidence indeed had no probative value.

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And it was highly prejudicial because the jury could infer from the evidence or and did indeed infer from the evidence intent.

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The high

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and no probative value was not properly considered by the district court.

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And this was plain error.

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The evidence of this with this lack of probative value and high prejudice should never have reached the jury.

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And that was plain error below.

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You point out that we have some precedents saying plain error, we have some precedents saying it's no cause and no exceptions.

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Which precedent came first?

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you know.

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Could you clarify the question?

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Sure.

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So I think part of what you and the government disagree about is whether you should have the benefit of plane air review when there was no cause for not raising this argument or whether you just don't get to make the argument at all when there's no cause for raising the argument.

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And some of our cases say plane air.

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Some of our cases say no review at all, not even for plane air.

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And

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I'm with you that our circuit has had some seeming inconsistencies, but I'm wondering which of the two did we say first?

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Your honor, the circuit has never been clear in terms of this particular rule after there was a 2014 amendment that removed the word waiver from this rule, rule 12B3, or excuse me, 12B3, and that this circuit has never cited a case after the amendment of that rule.

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Didn't the committee that made the amendment also say the amendment doesn't have any substantive change?

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Your honor, the exact wording was that the amendment doesn't change the standard of excuse me, the amendment doesn't change the standard of review.

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And that meant that it doesn't change the standard for claims

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under that apply that that rule applies to.

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Our argument is that rule does not apply.

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Rule 52B applies here because with the removal of the word waiver, the reason that the, excuse me, the committee made that amendment was because they believe that district courts were improperly believe that the rule applied when an argument was forfeited and not waived.

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Here, it is clear from the advisory committee notes that this rule specifically is supposed to apply to arguments that were waived, not forfeited.

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Any alternative meaning with that federal rule of criminal procedure 52B, which is the rule that applies plain error to errors that affect substantial rights.

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What's the standard that you were referring to that did not change?

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Oh, excuse me, this standard, specifically the good cause standard didn't change.

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So what the committee was saying was that what is good cause hasn't changed, but what's the good cause standard applies to it was clarified by that amendment.

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Your honors, our final argument is that defense counsel provided ineffective assistance during the interlocutory appeal of the district court's forced medication ruling here that

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Excuse me, the lower court decided that the defendant could be forcibly medicated after a cell hearing and process.

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That was appealed to this court in an interlocutory appeal, and this court did uphold the district court ruling for the cell hearing.

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that the defendant could be forcibly medicated.

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However, the defendant's attorney provided ineffective assistance of counsel by failing to appeal, obviously stronger, clearly stronger arguments than the arguments that he appealed specifically.

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Does this really survive Strickland that he made one argument rather than another when he may took the appeal, he brought the question before the court of appeals?

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How the argument is framed, is that really going to survive Strickland?

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Yes, Your Honor.

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The standard here is whether he failed to make arguments that were clearly stronger than the ones that were made.

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And in this case, he did fail to make arguments that were clearly stronger on all four factors.

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Notably, all four factors are requirements that the government must meet in order to be able to medicate the client.

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The appeal brought that before the Court of Appeals.

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He simply didn't argue it that way.

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I mean, the question of whether

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the class of those standards was before the court.

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He really think to the levels requires that he didn't make the argument that particular argument as opposed to the other one.

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Uh, your honor, I see I'm out of time.

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If it was such plain error, no, so awful.

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And he brought the case before the court and had the we had the question before us.

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Are you really going to say that it made a difference in the case that he didn't press that argument as opposed to having the issue before the court?

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Your honor here, the standard is whether the arguments made work clearly.

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Excuse me, the arguments not made work clearly and obviously better than the arguments made.

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Okay.

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Thank you.

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All right, we'll give you some time and reply.

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Thank you.

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All right, Mr. Hansford.

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Good morning, Your Honor, and may it please the court, Eric Hansford for the United States.

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Each of the defendant's claims here fails on the merits.

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He has shown no plain Miranda error, where this court has already recognized in all for one that involuntary commitment alone is not enough to establish Miranda custody.

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And as Judge Santel was saying, the primary statements that were coming in

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the defendant is arguing caused prejudice for his understanding, which are not Fifth Amendment statements.

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In addition, the defendant shows no grave abuse of discretion under Rule 403.

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Indeed, I think he's now conceding that this court is only reviewing the Rule 403 ruling for plain air.

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And that's because the only record evidence in this case is that the defendant did appear to understand the agent's warnings and that he did have a conversation

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with the agent in this 2014 incident.

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And the defendant shows no ineffectiveness in the interlocutory appeal, where the arguments that he's now identifying are not clearly stronger than the arguments selected by the experienced federal public defender who handled his appeal.

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There's no reason that ultimately would have led to a ruling that he could not be forcibly medicated.

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what he would be required to show.

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The concurrence, as you know, was pretty hard on the defendants attorneys.

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What do you how much should that matter to us?

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So I think the concurrence as we read it is primarily concerned with kind of what standards should be met going forward and expressing concerns about this case, but not saying that

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had these arguments been made, that would have made a difference in this case.

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Do you think, maybe you just answered this with your last sentence, but do you think she thought the attorney was ineffective, at least on performance?

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I mean, I don't think the concurrence takes a position on ineffectiveness.

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And I think there's a lot that the concurrence isn't dealing with.

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particularly in Judge Bates' careful opinion underlying the case.

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Judge Bates is giving a lot of explanations, for example, for why there are important government interests that the concurrence isn't dealing with.

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And I think the larger issue would be that it is a concurrence.

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It doesn't represent the majority of the court.

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The concurrence actually joins the majority opinion.

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But a lot of the arguments that are being made, even those at the

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concurrence seems sympathetic to, are rejected by the majority.

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I'm not saying that you will or won't win on this ineffective assistance issue, but if you were going to win, would you rather say no prejudice because you got a fair trial, even if you shouldn't have been forcibly medicated, or would you rather us take a look at the concurrence and if we disagree with the analysis there,

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express disagreement as a court?

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I mean, I think insofar as it's out there suggesting that the government is supposed to be meeting higher standards based on the concurrence, I think it would be useful for this court to clarify that no, the district courts are not required to take the 10th Circuit approach and kind of micromanage the cell proceedings and that

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the approach that many other circuits have taken.

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I thought your answer might be both.

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Well, fair enough, Your Honor.

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Yes, I think that's right.

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I do think we have stronger institutional interests.

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So we do think there are two threshold problems in terms of the arguments that would prevent this court from breaching the merits, which is the Rule 12 problem with the Miranda claim, which is that under Rule 12,

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Unless a defendant shows good cause, an under-raised suppression issue cannot be addressed on appeal at all.

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We do have institutional interests in having that issue resolved.

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And then there's also the threshold problem with the ineffectiveness in the cell claim, which is that a cell explains after the forcible medication has already happened, an appeal comes too late.

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I think our institutional interests in the cell claim are less strong because

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come up with much frequency.

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In Rule 12, this is kind of a recurring issue that the people are raising issues that were not raised below that should have been raised under Rule 12.

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And both sides are having to brief them.

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The court is having to wrestle with them in a way that Rule 12 suggests.

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And I apologize if this is in your brief.

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And I'm just not remembering it off the top of my head.

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But what's your response to your present counsel's explanation

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the comment when the rule was changed.

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And she says, well, when it talks about standard, it's talking only about the meaning of cause.

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So yeah, we disagree with that reading of the comment.

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I think what the full comment says is that the amendment to the amendment is taken to remove the waiver language because some circuits

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Unlike this court and unlike the Supreme Court in Davis, had taken the waiver language in the old rule 12 to mean there has to be an intentional relinquishment of a known right, which obviously isn't happening when you're just having failing to file a motion.

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So some circuits like the Eighth Circuit had said, well, there's no waiver in those circumstances, so we will review.

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So the rules are amended to take out that waiver language

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because the rules committee explains that waiver language is causing confusion.

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That was never the standard that you were supposed to have an intentional relinquishment of a known right.

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So therefore we're going to take out that language.

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And then the rules committee says it retains the existing standard for untimely claims.

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The party seeking relief must show good cause for failure to raise a claim by the deadline.

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So the rules committee is saying you still have to make that good cause showing

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And again, that stems from Supreme Court precedent, the 1973 Davis decision.

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And so I think for the rules to be overruling Supreme Court precedent, interpreting rule 12 would have been fairly extraordinarily.

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And you would have thought they would have noted that if that's what they were doing.

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And so we think we'd particularly point to the 10th Circuit's bowline decision.

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We think that has a really careful analysis, goes through the full history here.

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and explains why it is that the waiver language, the deletion of the waiver language, doesn't change the stand.

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As to the court's earlier question about, insofar as this court has conflicting precedent, which came earlier, it is the decisions that are finding waiver.

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It's the, cite the 1976, not sure how to say this case name, but back yellow, something along those lines,

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And then there's also the 1973 Supreme Court precedent, which, of course, would trump this court's precedent.

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And we're also not entirely sure there's a true conflict in this court's cases.

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Instead, it seems like the court is defaulting to plain air review and not addressing rules well, not recognizing that as an issue.

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So it's more of a kind of bribe by ruling, which the Third Circuit in rows in

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Identical parallel circumstances has said, well, we're not going to take those rulings that kind of aren't engaging with the merits as actual merits holdings that are contrary, conflicting with the precedent.

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We're going to take the cases that really engage with these issues.

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This court's decision in Weathers, for example, has a very thorough examination of all the history here.

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Can you spell or give me a comment on that one?

[00:20:00] Speaker 02:
The 76 case?

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Yeah.

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Yes, your honor.

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So I think we cited on page 16 of our brief is where we argue that the decisions that are.

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I see it.

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And I do want to point out there's language in the Hall for one decision, which is cited in the briefs, but it's language that didn't highlight in the brief.

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um, about Miranda custody that we think is dispositive on that issue.

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Um, so on 8 16 f third at 8 60, the court says as to Hoffords involuntary commitment, this was simply the first step in the analysis, not the last, not all mandatory hospitalizations can't amount to Miranda custody.

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So we think that is the defendant is arguing essentially

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based entirely on the involuntary commitment.

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There was Murray into custody here.

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Hallford directly rejects that.

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And in fact, when it goes back down and then comes back in Hallford 2, what the court is emphasizing there is that Secret Service agents were effectively ordering Hallford to speak, not that he was involuntary.

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If there are no other questions, we'd ask the court to confirm.

[00:21:25] Speaker 01:
Why don't you take two minutes?

[00:21:30] Speaker 00:
Thank you, Your Honor.

[00:21:31] Speaker 00:
First of all, the defendant does not concede that plain error is the standard on the 403 argument.

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Plain error is the standard for the Miranda issue, which is not preserved below.

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The 403 issue was presented and preserved below.

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So the standard there is abuse of discretion.

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Second, the government's argument on the Rule 12 issue

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ignores more recent Supreme Court cases that deal with the rule that also applies here, which is the rule for plain air, which is 52B.

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For example, just in 2020, the Supreme Court decided in Davis versus the U.S.

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that unpreserved arguments, including factual arguments below, may be reviewed for plain error on appeal under federal rule of criminal procedure 52B.

[00:22:17] Speaker 00:
There's also the 1993 case, U.S.

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versus Elano, where the Supreme Court reviewed the

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error under Federal Rules of Criminal Procedure 52, which again requires that for reversal that an error be plain and affects substantial rights.

[00:22:35] Speaker 00:
Again, here this error plain error standard applies because although the error was not preserved below, it does affect substantial rights.

[00:22:44] Speaker 00:
The third Miranda argument the government asserts is simply based on the fact that Mr. Gomara was involuntarily committed at the time

[00:22:54] Speaker 00:
That's simply not true.

[00:22:56] Speaker 00:
There are many factual similarities to Halford in this case that are in the record that support a finding of Miranda custody.

[00:23:03] Speaker 00:
Despite the record is slightly thinner than Halford, indeed in Halford, this court did remand to develop the factual record further.

[00:23:15] Speaker 00:
I'm I'm I'm I'm I'm I'm I'm I'm I'm

[00:23:40] Speaker 00:
have no further questions.

[00:23:41] Speaker 01:
This is this book you were appointed by the court to represent your client and we thank you for your very able assistance.

[00:23:48] Speaker 01:
Thank you your honor.