[00:00:00] Speaker 05:
morning.

[00:00:03] Speaker 05:
We have two cases today submitted on the briefs.

[00:00:09] Speaker 05:
Uh, the first, uh, Villa Castellum number 19 72945 271547.

[00:00:16] Speaker 05:
Um, those consolidated cases Villa Castellum versus Garland will be submitted on the briefs.

[00:00:28] Speaker 05:
Our second case submitted on the briefs today

[00:00:31] Speaker 05:
Number 23, nine Guzman Maldonado versus Garland also submitted on the briefs.

[00:00:38] Speaker 05:
We'll hear argument first this morning and number 21, one five eight to nine Jordan versus Howard.

[00:00:49] Speaker 01:
Good morning.

[00:00:50] Speaker 01:
Good morning.

[00:00:50] Speaker 01:
May it please the court Lee Tucker for Mark Jordan.

[00:00:54] Speaker 01:
I'll reserve two minutes for rebuttal.

[00:00:56] Speaker 01:
I'll keep an eye on the clock.

[00:00:59] Speaker 01:
Your Honors, when Mark Jordan stepped in and ended the knife fight between Kenneth Mills and Paul Weekly, there were no Bureau of Prison Guards in the vicinity, no one there in the area who had eyes on it.

[00:01:14] Speaker 01:
Furthermore, none of the prison staff or guards were observing the surveillance monitors, which had real-time footage showing the attack happening.

[00:01:25] Speaker 01:
No one was there.

[00:01:26] Speaker 01:
Mark Jordan stepped in.

[00:01:28] Speaker 01:
placed his foot on the wrist of weakly who was holding the knife, said break it up, kicked the knife away.

[00:01:36] Speaker 01:
Both men stood up and walked away.

[00:01:41] Speaker 01:
Mark not intervened.

[00:01:43] Speaker 01:
It's not unlikely that either Mills or Weekly could have ended up dead and joined the numbers of people who are victims of homicide in US prisons every year.

[00:01:55] Speaker 01:
But he did.

[00:01:55] Speaker 01:
And if he hadn't, the Bureau of Prisons would have spent the next few days calling the bereaved family, being interviewed by the FBI, girding themselves for possible lawsuit.

[00:02:05] Speaker 01:
Yes, Your Honor.

[00:02:06] Speaker 04:
I assume all that's true.

[00:02:07] Speaker 04:
And I think nothing in this record suggests to the contrary.

[00:02:11] Speaker 04:
Can a prison have a rule that says one prisoner may not break up a fight among others through the use of physical force?

[00:02:26] Speaker 01:
They could have that rule.

[00:02:27] Speaker 01:
That's not the rule that's issued here.

[00:02:29] Speaker 04:
That's the next question I wanted to get to.

[00:02:31] Speaker 04:
It seems to me pretty clear they could, and there might be good reasons for it.

[00:02:35] Speaker 04:
We don't want a third person involved in the fight.

[00:02:37] Speaker 04:
It's harder for us to police.

[00:02:39] Speaker 04:
We don't know what will result.

[00:02:41] Speaker 04:
There's a Seventh Circuit case that sort of says there's no constitutional right to defense of others.

[00:02:48] Speaker 04:
In this case, the hearing officer, the DOH, said, even if everything you say is true, Mr. Jordan, our rules prohibit you from doing this.

[00:03:03] Speaker 04:
So it seems to me they said they had such a rule.

[00:03:08] Speaker 01:
I disagree, your honor.

[00:03:10] Speaker 01:
Okay.

[00:03:10] Speaker 04:
Tell me why.

[00:03:11] Speaker 01:
Yeah.

[00:03:11] Speaker 01:
If I may, that's not what the D. H. O. Well, I can read you.

[00:03:14] Speaker 04:
I can read you the exact language from what he said.

[00:03:17] Speaker 04:
Go ahead.

[00:03:17] Speaker 04:
Tell me what you think he said.

[00:03:18] Speaker 01:
The D. H. O. Said it doesn't matter.

[00:03:21] Speaker 01:
The D. H. O. Was addressing the issue of whether or not the actions by Mr Jordan constituted as an assault under code 2224.

[00:03:30] Speaker 01:
And the elements of that, of course, are violence, the threat of violence, battery, including the unconsented touching of another.

[00:03:39] Speaker 01:
And the DHO is very specifically looking at that as being needed.

[00:03:43] Speaker 04:
Well, here's his language, DHO Lewag.

[00:03:46] Speaker 04:
Despite Jordan's intentions and Weekly's gratitude, the DHO believes Jordan had no right to step in and physically break up an altercation between two inmates.

[00:03:57] Speaker 04:
And then he said directly after that,

[00:03:59] Speaker 04:
though your intent may have been to quell the situation, you have no right to place your foot on another inmate."

[00:04:05] Speaker 04:
So he seems to be saying, that's our rule.

[00:04:08] Speaker 01:
And then what the DHO said was, because I determine you have no right, I'm finding this to be, by definition, an assault and a violation of 224.

[00:04:19] Speaker 04:
OK, so that's what I wanted to work backwards from.

[00:04:22] Speaker 04:
Let's assume there is no right of an inmate to come to the defense of another.

[00:04:29] Speaker 04:
Okay?

[00:04:30] Speaker 04:
Because that's what the DHO said.

[00:04:32] Speaker 04:
At the common law, it's an affirmative defense to assault.

[00:04:37] Speaker 04:
It's not a right, but an affirmative defense.

[00:04:39] Speaker 04:
But let's assume in prison it is not.

[00:04:41] Speaker 04:
At the prison rule is you may not do this.

[00:04:44] Speaker 04:
If that is the prison rule, and I know you don't think it is, tell me why the discipline in this case was, I think you would say violates due process.

[00:04:59] Speaker 01:
There are three things there.

[00:05:00] Speaker 01:
I just want to first acknowledge that your honor recognizes we don't agree that, um, that that is the prison rule.

[00:05:08] Speaker 01:
That's what this D H O said in the context of the two, and I understand.

[00:05:13] Speaker 00:
And the seventh circuit is an outlier in that the seventh circuit opinion in any event was about a due process rule.

[00:05:20] Speaker 00:
Correct.

[00:05:20] Speaker 00:
And the question here is what we have is a

[00:05:24] Speaker 00:
prison regulation that uses the word assault.

[00:05:28] Speaker 00:
The definition of assault isn't even in the regulation, is it?

[00:05:32] Speaker 01:
Your Honor, the definition of the assault is in Code 224, but it's not in 541.8.

[00:05:38] Speaker 00:
I see.

[00:05:39] Speaker 00:
But it is in a prison document.

[00:05:42] Speaker 00:
Yes.

[00:05:43] Speaker 00:
Not just in the DOH opinion.

[00:05:44] Speaker 00:
Correct.

[00:05:45] Speaker 00:
All right.

[00:05:46] Speaker 00:
And that definition is essentially the common law definition.

[00:05:50] Speaker 00:
Yes.

[00:05:50] Speaker 00:
Without the common law defense.

[00:05:53] Speaker 00:
Right.

[00:05:55] Speaker 00:
So can we talk, can we deal with this case without getting to the defense?

[00:06:02] Speaker 00:
My understanding is that we can, because the question is, was there actually an assault?

[00:06:06] Speaker 00:
And that depends on whether it was unwanted.

[00:06:09] Speaker 00:
And Mr. Although the DOH, is that what they call him?

[00:06:17] Speaker 00:
DOH.

[00:06:18] Speaker 00:
D-H-O.

[00:06:19] Speaker 00:
Says that Mr. Weekly

[00:06:24] Speaker 00:
expressed his gratitude.

[00:06:26] Speaker 00:
He did more than that.

[00:06:27] Speaker 00:
He said it was not unwanted in the past tense.

[00:06:34] Speaker 00:
At the time, isn't what I understand him to be saying.

[00:06:38] Speaker 00:
So if one takes that as, but the DHO also says that he is giving Mr. Weekly less credit, less credence.

[00:06:49] Speaker 00:
I don't know what less credence and more credence means.

[00:06:52] Speaker 00:
So how does that fit in?

[00:06:54] Speaker 01:
Yes, Your Honor.

[00:06:56] Speaker 01:
That's interesting because the DHO gestures towards making a factual finding about Weekly's credibility and whether or not it was unwanted, but never does.

[00:07:04] Speaker 04:
Ultimately, he does say, you've changed stories about whether you were his friend or not his friend, and therefore I give your statements less weight, he says.

[00:07:17] Speaker 01:
Right, so two things.

[00:07:18] Speaker 01:
First of all, about weekly statements.

[00:07:20] Speaker 01:
Second of all, again, the DHO never relies on weekly statements or weekly consent or non-consent in its ultimate determination.

[00:07:30] Speaker 01:
Instead, it says it's by definition an assault.

[00:07:32] Speaker 01:
But as to weekly statements, both his 2010 statement and his 2016 statement said it wasn't an assault.

[00:07:40] Speaker 04:
Well, he said it wasn't an assault.

[00:07:42] Speaker 04:
I agree.

[00:07:43] Speaker 04:
He never said, I consented in advance

[00:07:46] Speaker 04:
to Mr. Jordan stepping on my hand, did he?

[00:07:50] Speaker 01:
Right.

[00:07:50] Speaker 01:
As we say in our brief and point out, it's somewhat intuitive.

[00:07:54] Speaker 01:
But to not consent is not the same as to not invite.

[00:07:58] Speaker 01:
And we don't know weekly state of mind.

[00:08:01] Speaker 04:
But there is some other.

[00:08:02] Speaker 04:
Judge Berzon asked the question I was trying to take you up to, which is let's assume that defense of others is not incorporated into the prison thing.

[00:08:11] Speaker 04:
Is there evidence here of an assault?

[00:08:14] Speaker 04:
What's in this record is evidence that Mr. Jordan said, break it up.

[00:08:21] Speaker 04:
And then they continued to tussle, the people on the ground.

[00:08:25] Speaker 00:
No, they did not.

[00:08:28] Speaker 04:
They did not break it up when he said break it up.

[00:08:31] Speaker 04:
They broke it up after he stepped on Mr. Weekly's hand.

[00:08:35] Speaker 04:
That's what the video shows, correct?

[00:08:36] Speaker 01:
Yes, he stepped on the hand and said break it up and they broke it up.

[00:08:39] Speaker 04:
Well, that's what I was going to ask.

[00:08:40] Speaker 04:
I thought the record showed that he said break it up and then stepped on his hand.

[00:08:45] Speaker 04:
Am I wrong about that?

[00:08:46] Speaker 01:
My understanding is it was essentially coterminous, the timing.

[00:08:50] Speaker 04:
I guess my question is, couldn't a finder of fact find that when somebody said break it up and the people, if he said it first and then the people continued to fight, that there was no consent to the touching?

[00:09:08] Speaker 01:
Your Honor,

[00:09:10] Speaker 04:
That may not be the fact in this case.

[00:09:12] Speaker 01:
That's not the record.

[00:09:13] Speaker 01:
Is that the record?

[00:09:15] Speaker 01:
That's my question.

[00:09:16] Speaker 01:
I don't agree that that is the record.

[00:09:18] Speaker 04:
Well, tell me where in the record.

[00:09:20] Speaker 04:
It's also the case.

[00:09:21] Speaker 04:
Just tell me, since the record may be of some importance, tell me where in the record I can determine whether or not he said it as he stepped on his hand or before he stepped on his hand.

[00:09:34] Speaker 01:
The description of the video is at page 59 of the record.

[00:09:41] Speaker 04:
And there's also a report from an officer.

[00:09:45] Speaker 04:
What does he say?

[00:09:46] Speaker 01:
He just repeats what the video showed.

[00:09:49] Speaker 01:
Nobody saw it.

[00:09:50] Speaker 01:
Right, and we don't have the video.

[00:09:51] Speaker 01:
We don't have the video.

[00:09:53] Speaker 04:
Right, so what does the officer say the video showed, which is, I think, what the DHO was basing his conclusions on.

[00:09:59] Speaker 01:
But could I just ask, Your Honor, I don't think I'm understanding the import of this question.

[00:10:03] Speaker 04:
Well, here, so let me, it may make no difference.

[00:10:05] Speaker 04:
To me, it seems to me that a finder of fact

[00:10:10] Speaker 04:
could infer consent if somebody said, break it up, people ignored him and did not break it up, and then thereafter someone stepped on the hand of one of them.

[00:10:20] Speaker 04:
We can infer the absence of consent.

[00:10:22] Speaker 04:
And so my question is, can I tell when the break it up occurred

[00:10:27] Speaker 04:
with respect to the stepping on the hand.

[00:10:30] Speaker 04:
My recollection, although I must admit, you've now got me doubting myself on this, that the officer seemed to say he first, he said break it up and then stepped on his hand.

[00:10:40] Speaker 04:
And Dr. Arzon suggested it was essentially contemporaneous.

[00:10:45] Speaker 04:
I'm trying to figure out where in the record, since I don't have the video, I can find this.

[00:10:49] Speaker 05:
And Ms.

[00:10:49] Speaker 05:
Tucker, we'll give you a couple minutes for rebuttal.

[00:10:52] Speaker 05:
Thank you.

[00:10:53] Speaker 05:
And then I'll have a question after you're able to respond on these record issues.

[00:10:56] Speaker 00:
Thank you.

[00:10:57] Speaker 00:
Which page number did you say was the description?

[00:10:59] Speaker 01:
59, Your Honor, and I believe also at 209.

[00:11:04] Speaker 01:
At 209, it's reproduced in the order of the magistrate judge.

[00:11:10] Speaker 05:
So I guess I have a different question.

[00:11:17] Speaker 05:
Is there a difference between the greater weight of the evidence?

[00:11:20] Speaker 05:
Some evidence, how does it compare to substantial evidence?

[00:11:23] Speaker 05:
We could talk all day about this record, but this is an administrative finding of fact by people who are still somewhat removed, but by law closer to the incident.

[00:11:35] Speaker 05:
How are we to assess the standard of reviewing this de novo, but what's the standard of fact finding that we're supposed to hold the Bureau to?

[00:11:45] Speaker 01:
Thank you, your honor.

[00:11:46] Speaker 01:
Right.

[00:11:46] Speaker 01:
So Mr. Jordan presented claims both under due process, the due process clause, which is the sum evidence standard as outlined by Hill and the greater weight of the evidence, which is the, uh, the regulations requirement that if there is conflicting evidence, which there was here, that the matter be determined by the greater weight of the evidence.

[00:12:08] Speaker 04:
What's our standard of review of the,

[00:12:11] Speaker 04:
the administrative finding that the greater weight of the evidence supported discipline.

[00:12:17] Speaker 01:
We don't get to- I was certain you have de novo review to determine whether the greater weight of the evidence was met and Hill- That's the question, I think.

[00:12:27] Speaker 04:
Yeah.

[00:12:28] Speaker 04:
Judge Johnson was asking, or is our review to determine whether any rational finder fact could have found this by the greater weight of the evidence?

[00:12:36] Speaker 04:
I mean, that's what we typically do in criminal cases, for example, even though the

[00:12:40] Speaker 04:
Proof has to be beyond a reasonable doubt.

[00:12:42] Speaker 04:
Our review is just to see whether any rational finder of fact could have found it by that standard.

[00:12:48] Speaker 01:
I don't believe this circuit has stated that.

[00:12:50] Speaker 01:
There has been a court that said it should be whether any rational finder of fact could have so found.

[00:12:58] Speaker 01:
And I will get that case for you.

[00:13:01] Speaker 04:
I think that is the standard.

[00:13:03] Speaker 04:
That's what I'm saying.

[00:13:03] Speaker 00:
What's the it?

[00:13:05] Speaker 00:
The it is in the instance of a 2240.

[00:13:09] Speaker 01:
for whether there was a greater way.

[00:13:12] Speaker 00:
And in what context is what I'm asking?

[00:13:15] Speaker 00:
Um, whether there is, is it in reviewing a prison, finding a fact in a, in a disciplinary case or what?

[00:13:24] Speaker 00:
I mean, what, in what context are we doing this in the context of determining whether the, I know, but what is the, the statutory

[00:13:36] Speaker 00:
I mean, that's not what we're doing in 2255.

[00:13:38] Speaker 00:
This is not a 2255, right?

[00:13:41] Speaker 00:
In, say, 20... This is a 20... This is a 22... 2241.

[00:13:46] Speaker 00:
Yeah.

[00:13:47] Speaker 00:
All right.

[00:13:48] Speaker 00:
Is that the context, or is it specifically in the prison disciplinary context, or in what context are we talking about this?

[00:13:58] Speaker 01:
Well, we're talking about it in the context of the...

[00:14:03] Speaker 01:
2241 under prison.

[00:14:05] Speaker 01:
I'm sorry, Your Honor, I'm not being very helpful, but I think that regardless of the standard here, it is met.

[00:14:11] Speaker 01:
Because the prison and then the magistrate judge, and again, this court is the first court to review the magistrate judge's decision here, both of them said it doesn't matter whether or not there was an unconsented touching.

[00:14:26] Speaker 01:
And so both of them said, we don't care about this element.

[00:14:30] Speaker 04:
And that is- But where did

[00:14:32] Speaker 04:
Where did either of them say it doesn't matter that there was unconsented touching?

[00:14:37] Speaker 04:
I know you think the touching was unconsented, but I don't see either in the magistrate judges and really it's the district court here.

[00:14:44] Speaker 01:
Page 222 of the excerpts from the order of the magistrate judge.

[00:14:51] Speaker 01:
Petitioners focus on whether or not the contact was unwanted is without merit.

[00:14:56] Speaker 04:
And again, it's unwanted as opposed to unconsent.

[00:15:00] Speaker 04:
See, consent is different than wanted, isn't it?

[00:15:02] Speaker 01:
Yes, but the magistrate judge is conflating the two.

[00:15:04] Speaker 01:
And I thought, generally, everybody was complaining.

[00:15:07] Speaker 01:
Yes, we are.

[00:15:08] Speaker 01:
It has been throughout this.

[00:15:12] Speaker 00:
One thing I was curious about is, in the law of assault, generally, or in this particular context, is the unwanted a subjective

[00:15:25] Speaker 00:
Is the fact that Wakeley says it was unwanted, is it his state of mind that matters?

[00:15:30] Speaker 00:
Is it Jordan's state of mind that matters?

[00:15:33] Speaker 00:
Is it an objective person's state of mind that matters?

[00:15:35] Speaker 00:
How do you decide what's unwanted?

[00:15:38] Speaker 01:
That's a good question, Your Honor.

[00:15:39] Speaker 01:
I think here we don't have to get to that because the only evidence they have as to Wakeley's state of mind was that it was not unwanted.

[00:15:47] Speaker 01:
And the only evidence we have as to Jordan's state of mind was that he was intervening to break up

[00:15:54] Speaker 04:
the fight not to commit an assault or an unwanted test.

[00:16:09] Speaker 04:
I mean, this is a little bit of a strange case because consent is normally an affirmative defense, but it seems to be under this prison regulation.

[00:16:17] Speaker 04:
One of the elements of the offense, the absence of consent, unwanted different than consent.

[00:16:23] Speaker 01:
Well, the language at issue is unconsented to, which is a little interesting that they chose to focus on that because it also, the code also encompasses battery.

[00:16:33] Speaker 01:
and the unconsented to touching is much more difficult.

[00:16:36] Speaker 04:
It's somewhat difficult to fit this into common law or even outside pegs because in the common law, the offense is the unconsent is the touching, the offense of touching and consent is an affirmative defense.

[00:16:53] Speaker 04:
Here, consent seems to be built into the elements of the offense and that's why I'm asking whether unwanted is the same as consent.

[00:17:02] Speaker 01:
For our purposes, I would say there's no meaningful distinction.

[00:17:06] Speaker 04:
Again, I'm having trouble finding what the DHO said here, but maybe I can ask you about it when you get back up.

[00:17:14] Speaker 00:
Yes, Your Honor.

[00:17:16] Speaker 00:
I thought he said this is essentially automatically an assault.

[00:17:22] Speaker 01:
That is what he said, Your Honor.

[00:17:23] Speaker 01:
By definition, the action was an assault with no examination of the elements.

[00:17:31] Speaker 05:
All right.

[00:17:31] Speaker 05:
Thank you, Ms.

[00:17:32] Speaker 05:
Tucker.

[00:17:34] Speaker 05:
We'll give you two minutes on recall.

[00:17:36] Speaker 01:
Thank you.

[00:17:43] Speaker 05:
Mr. Schmidt.

[00:18:00] Speaker 02:
Can you please the court?

[00:18:01] Speaker 02:
morning.

[00:18:01] Speaker 02:
My name is Mike Schmidt.

[00:18:02] Speaker 02:
I represent the respondent warden.

[00:18:05] Speaker 02:
This court should affirm the lower court's detailed, comprehensive and legally correct order upholding the prison disciplinary findings.

[00:18:14] Speaker 02:
I'm gonna jump into some of the questions you guys had.

[00:18:18] Speaker 00:
Can I jump into one of them?

[00:18:19] Speaker 00:
Because this is the one that surprised me.

[00:18:21] Speaker 00:
Is there any support in the record or any finding that Jordan first said break it up and then stepped on his hand?

[00:18:29] Speaker 02:
Fair question.

[00:18:30] Speaker 02:
There isn't any.

[00:18:31] Speaker 02:
And with respect to Judge Hurwitz, it would appear, and I'll concede it to plaintiffs and petitioners counsel, it would appear the best that we can glean from the available evidence is that it was probably coterminous.

[00:18:43] Speaker 02:
I mean, within seconds of one.

[00:18:44] Speaker 00:
And Jordan himself says that it was in the other order, that he first stepped on his hand and then said break it up.

[00:18:49] Speaker 00:
I think that's fair to say.

[00:18:50] Speaker 04:
under assuming that's true.

[00:18:52] Speaker 04:
Uh, what is there and assuming as I think, uh, is probably correct, given the regulation that it's your burden to show the absence of consent.

[00:19:04] Speaker 04:
What is the evidence of the absence of consent?

[00:19:08] Speaker 02:
Very good question.

[00:19:08] Speaker 02:
I think that actually is the nub of the crux of this, this, this case, um, cause it relates to all three of the issues being presented.

[00:19:18] Speaker 02:
It's an inference.

[00:19:19] Speaker 02:
And to go back to what Judge Johnstone was referring to and Judge Berzon, this is an objective standard.

[00:19:26] Speaker 02:
It's a reasonable person standard to the extent that you at all review whether or not self-defense or defensive others plays into this.

[00:19:32] Speaker 00:
We're not talking about defensive others.

[00:19:34] Speaker 00:
We're talking about the unwanted element.

[00:19:38] Speaker 00:
Correct.

[00:19:38] Speaker 00:
Let's back out the defensive others.

[00:19:40] Speaker 02:
Fair enough.

[00:19:41] Speaker 02:
Then the evaluation, because all you're getting is self-serving statements.

[00:19:45] Speaker 02:
That's just the nature of the crime, the incident.

[00:19:48] Speaker 02:
So to the extent that you have to decipher what occurred there.

[00:19:54] Speaker 00:
Why is it self-serving for Mr. Weekly to say it was not unwanted?

[00:19:58] Speaker 00:
Who's he serving by saying that?

[00:20:00] Speaker 02:
We get back to Judge Horowitz's observation that we had conflicting credibility statements.

[00:20:04] Speaker 00:
Well, whatever, but it's not self-serving on the part of Weekly.

[00:20:07] Speaker 02:
It is on the part of Weekly if they became friends.

[00:20:10] Speaker 00:
So in 2016, he became friends because he was grateful to him because he saved him from dying.

[00:20:16] Speaker 00:
That's why they became friends.

[00:20:17] Speaker 02:
There can be all kinds of reasons for loyalties in the prison system and respectfully.

[00:20:23] Speaker 02:
So, you know, if at 2010 he says we don't know each other and then in 2016 he says we were friends and he didn't say we were friends.

[00:20:32] Speaker 00:
He said it was my friend.

[00:20:33] Speaker 04:
It was my friend.

[00:20:35] Speaker 00:
Right.

[00:20:35] Speaker 00:
But he didn't say we were friends.

[00:20:36] Speaker 00:
Well, short answer is we don't know.

[00:20:38] Speaker 04:
We don't know why they were friends.

[00:20:39] Speaker 04:
Correct.

[00:20:40] Speaker 04:
So, and I don't, it seems to me the real question here is not whether the DHO should have credited or must have credited weekly statements.

[00:20:52] Speaker 04:
And by the way, none of them say I consented at the time to the touching.

[00:20:56] Speaker 04:
My question is what is the, what is the evidence of the absence of consent here?

[00:21:01] Speaker 04:
A reasonable finder of fact has to find, I think, under this circumstance, with this strange prison rule, where it's not an affirmative defense, but part of the elements, that the touching was unconsented to.

[00:21:15] Speaker 04:
So tell me how a finder of fact on the evidence in this case could reasonably find it was unconsented to.

[00:21:23] Speaker 02:
And I apologize.

[00:21:24] Speaker 02:
That was Judge Burzant's original question.

[00:21:27] Speaker 04:
That's why I want to take you back to it, because it's the critical question.

[00:21:31] Speaker 02:
I was getting there.

[00:21:32] Speaker 02:
So in order to appreciate how that finding came about, one needs to first understand the dynamics of the original assault.

[00:21:42] Speaker 02:
The original assault is Mills attacks weekly.

[00:21:47] Speaker 04:
Mills has a knife, Weekly takes it away.

[00:21:49] Speaker 04:
We've read the record, and unfortunately, we don't have the video.

[00:21:53] Speaker 04:
Correct.

[00:21:54] Speaker 04:
So tell me again.

[00:21:55] Speaker 02:
Well, so when Jordan, the petitioner, enters that combat, he is unaware of the origin of that combat.

[00:22:03] Speaker 02:
When he enters the scene, he sees Weekly with the shank, and Mills is on top of him.

[00:22:10] Speaker 02:
And when he enters, he steps out.

[00:22:12] Speaker 00:
Where does Mills being on top of him come from, by the way?

[00:22:15] Speaker 00:
I don't know if it matters, but I

[00:22:17] Speaker 00:
The DHO says that, and maybe because he's looking at the film, but the written evidence seems to be that they were side by side.

[00:22:27] Speaker 00:
I don't know whether it matters, but I don't know where the notion that he was on top of him came from.

[00:22:34] Speaker 02:
Maybe it doesn't matter.

[00:22:35] Speaker 02:
The point is that the victim, and this is what I'm alluding to about the origin versus when the petitioner approaches the combatants.

[00:22:43] Speaker 02:
When the petitioner approaches,

[00:22:45] Speaker 02:
the victim is now defending himself and has wrested away the shank.

[00:22:49] Speaker 04:
So the question is called Colton's report says that everybody says that in the first hearing, Mr Jordan says, that's what happened after, after the DHS reads the report, he says, that's what's happened.

[00:23:03] Speaker 04:
So do we have now?

[00:23:05] Speaker 04:
This is my question.

[00:23:06] Speaker 04:
I'm sorry.

[00:23:06] Speaker 04:
Do we have the Calton report in the record?

[00:23:09] Speaker 04:
The which report?

[00:23:10] Speaker 04:
The report that says, um,

[00:23:14] Speaker 04:
SIS Tech reported that he viewed Videocon and observed and everything else.

[00:23:19] Speaker 04:
Is that in the record in front of us?

[00:23:23] Speaker 02:
It's in Lieutenant Allen's statement.

[00:23:29] Speaker 04:
Where is it?

[00:23:31] Speaker 04:
Where is it?

[00:23:31] Speaker 04:
I mean, it says in the magistrate judge's report, it's what SIS Tech Kalten observed.

[00:23:38] Speaker 04:
Is Allen just reporting what Kalten observed?

[00:23:42] Speaker 04:
Kelton reviewed the video.

[00:23:43] Speaker 02:
Correct, yes.

[00:23:45] Speaker 02:
I believe Alan reviewed the video as well.

[00:23:48] Speaker 04:
Okay, so this talks about response, Document 12, Exhibit A, Attachment 2, in the magistrate judge's report.

[00:23:58] Speaker 04:
Where is that in our record?

[00:24:10] Speaker 04:
It's not in the excerpts of record, as close as I can find.

[00:24:12] Speaker 04:
Is it somewhere else in the record?

[00:24:15] Speaker 02:
I did come across it, Judge.

[00:24:16] Speaker 04:
OK, well, we can keep looking.

[00:24:19] Speaker 04:
I don't want to use your time to look.

[00:24:20] Speaker 04:
Thank you.

[00:24:22] Speaker 05:
I'm trying to understand the usual course of these findings for disciplinary purposes.

[00:24:32] Speaker 05:
Should we expect, for example, a finding, a specific finding on the record, that the touching was unconsented if it were an element?

[00:24:40] Speaker 02:
Yes.

[00:24:41] Speaker 02:
And I think you can still find that.

[00:24:42] Speaker 02:
And I'm getting there with those two other questions.

[00:24:49] Speaker 05:
What's your best excerpt from the DHO's decision that the DHO found that it was finding?

[00:24:54] Speaker 05:
Not incidental because it met the definition of assault, but that based on his review of the record,

[00:25:02] Speaker 05:
which need only meet this lower standard of some or greater evidence that it was unconsented.

[00:25:09] Speaker 02:
So you have the participants' statements, which I submit to you are self-serving, regardless of whether you have them.

[00:25:17] Speaker 02:
So I'm looking at the agency.

[00:25:18] Speaker 02:
That's who we're reviewing.

[00:25:19] Speaker 02:
Right.

[00:25:20] Speaker 02:
So the agency looked at the combatants, looked at the circumstances, how the roles had flipped, how the victim was now the one that was being interfered with.

[00:25:27] Speaker 00:
But the question is, as I understand it, the DHO said this is by definition assault.

[00:25:33] Speaker 00:
Right?

[00:25:33] Speaker 00:
He did say that.

[00:25:34] Speaker 02:
Yes.

[00:25:34] Speaker 00:
Did he ever make a finding that it was unwanted?

[00:25:40] Speaker 02:
He made a finding that it was unconsented to.

[00:25:42] Speaker 02:
It's on the third page of the DHL.

[00:25:48] Speaker 02:
Fourth page, where you have Roman numeral number seven.

[00:25:52] Speaker 00:
What page are we on in the record?

[00:25:54] Speaker 02:
In the SER, it's 41.

[00:25:57] Speaker 02:
In the DHL, it would be the fourth out of the five pages.

[00:26:02] Speaker 00:
SCR, tell me again, 41, is that what you're saying?

[00:26:07] Speaker 02:
SCR 41, yes.

[00:26:08] Speaker 02:
So you have Roman numeral seven and it defines assault and then it gives its opinions or reasons for finding that assault.

[00:26:15] Speaker 02:
Is this the third rehearing finding?

[00:26:19] Speaker 02:
It's the 2016 finding which is being appealed.

[00:26:21] Speaker 04:
Yeah, the last one.

[00:26:22] Speaker 02:
Yes.

[00:26:24] Speaker 02:
And the crux of that is that no

[00:26:27] Speaker 02:
no victim would consent to being interfered with.

[00:26:29] Speaker 02:
This is the answer to both of your questions.

[00:26:31] Speaker 00:
Well, in fact, this one would have, because he was not actually the original victim.

[00:26:38] Speaker 02:
And he was the original victim.

[00:26:40] Speaker 00:
No, I mean, he was the original victim, right?

[00:26:42] Speaker 00:
Yes.

[00:26:43] Speaker 00:
And he was the original victim.

[00:26:45] Speaker 00:
He had wrested the knife away, or the shank away.

[00:26:50] Speaker 00:
Correct.

[00:26:50] Speaker 00:
But he had no reason to think he was going to be able to hold onto it.

[00:26:53] Speaker 00:
We don't know.

[00:26:55] Speaker 00:
I know we don't know, but if you want to speculate as to whether he would have appreciated somebody coming in and getting rid of that knife and making the thing at least non-lethal, he probably would have, because he had it at the moment, but he had no reason to think he was going to keep it.

[00:27:13] Speaker 02:
In Petitioner's own statement, he said that

[00:27:15] Speaker 02:
that knows came after him with the intent of murdering him.

[00:27:19] Speaker 02:
That's how terrified he was.

[00:27:20] Speaker 02:
That's how terrifying.

[00:27:21] Speaker 02:
Now he's in that in a few seconds in which that victim sustained cuts to his neck.

[00:27:28] Speaker 02:
serious enough to have to be taken out of the FMC, out of that federal penitentiary, to a local hospital for treatment.

[00:27:35] Speaker 02:
That's how serious his neck lacerations were.

[00:27:37] Speaker 00:
And therefore, the fact that somebody got the knife out of the way was quite possibly, he said it was wanted and perfectly logical it would have been.

[00:27:47] Speaker 02:
After the fact, he said that.

[00:27:48] Speaker 04:
Mr. Smith, you had the sequence of weekly statements for a moment.

[00:27:53] Speaker 04:
Yes.

[00:27:54] Speaker 04:
As I recall, at some point,

[00:27:58] Speaker 04:
Mr. Jordan tried to get him to come to, I think it's the second hearing, the first re-hearing.

[00:28:04] Speaker 04:
And he said, I'm not going to come.

[00:28:08] Speaker 04:
Look at the video.

[00:28:09] Speaker 04:
It shows everything.

[00:28:12] Speaker 04:
So he wouldn't, and he wouldn't be interviewed at that point.

[00:28:16] Speaker 04:
And he later submits a declaration or a very long one.

[00:28:21] Speaker 04:
But he doesn't, that's not, he does not consenting to be interviewed at that point, is he?

[00:28:26] Speaker 04:
It was a request that he'd be interviewed at that point.

[00:28:28] Speaker 02:
This is of the petitioner or weekly?

[00:28:30] Speaker 04:
Weekly.

[00:28:32] Speaker 04:
Weekly says three things.

[00:28:34] Speaker 04:
I mean, he says something at the first one.

[00:28:37] Speaker 04:
He says at the second one, he says, look at the video.

[00:28:40] Speaker 04:
I don't have anything to add.

[00:28:42] Speaker 04:
At the third one, he has a declaration.

[00:28:44] Speaker 04:
Was he ever interviewed in any of those occasions and is there's a record?

[00:28:49] Speaker 04:
Indicate whether he would he can consent it to be interviewed or not and I do see my time is up You can take time to answer.

[00:28:57] Speaker 02:
I don't believe the record indicates how or what precipitated his his varied Statement studies.

[00:29:03] Speaker 04:
Yeah, I know we know from the record that he declined to show up at the second one, correct Mr. Jordan asked that he be there and his response was look at the video.

[00:29:11] Speaker 04:
It shows everything I just don't know whether when you said he he declined to be interviewed and

[00:29:17] Speaker 04:
I'm trying to figure out how I can find that out from the record.

[00:29:20] Speaker 02:
I apologize.

[00:29:21] Speaker 02:
I didn't say he declined to be interviewed.

[00:29:23] Speaker 02:
I don't know that we know what precipitated his interview or decision not to be interviewed.

[00:29:27] Speaker 02:
But he was interviewed a third time.

[00:29:29] Speaker 02:
He was?

[00:29:29] Speaker 02:
I'm sorry?

[00:29:30] Speaker 00:
Third time he was interviewed.

[00:29:32] Speaker 02:
Correct.

[00:29:33] Speaker 00:
So you said that there was a finding about the unwantedness on page 41.

[00:29:40] Speaker 00:
What I see is that the DHO says

[00:29:47] Speaker 00:
that, um, Jordan's stepping of inmate weekly's arm is by definition an assault parentheses, unwanted touching of another.

[00:30:00] Speaker 00:
Is that what you're saying was a finding that it was unwanted?

[00:30:26] Speaker 02:
I'm reading at the bottom of 41.

[00:30:28] Speaker 02:
41 of the SER?

[00:30:31] Speaker 02:
Yes, sir.

[00:30:32] Speaker 00:
Okay, I'm here.

[00:30:33] Speaker 02:
Assaulting another inmate by putting a foot on their hand or arm during a physical altercation between two inmates can escalate the incident between both inmates.

[00:30:41] Speaker 00:
But that's not a finding about whether it was unwanted.

[00:30:44] Speaker 02:
These are the reasons for the sanctions and actions taken.

[00:30:48] Speaker 02:
These are the reasons.

[00:30:49] Speaker 02:
That's the DHO report.

[00:30:50] Speaker 00:
I know, but what I want to know is whether there's a finding that it was unwanted.

[00:30:54] Speaker 02:
I would submit that this is the way that a DHL would indicate this is their finding.

[00:30:58] Speaker 02:
I mean, these are the conclusions.

[00:31:00] Speaker 00:
But he didn't say it wasn't.

[00:31:01] Speaker 00:
He seems to be saying, and he said in the other sentence I read, that essentially putting a foot on their hand or arm during a physical altercation isn't assault, unwanted or not.

[00:31:13] Speaker 02:
In the preceding two pages, they discussed the impact of putting a foot on a combat and how it can elevate into a melee.

[00:31:22] Speaker 00:
So was he applying a per se rule?

[00:31:24] Speaker 00:
Per se, with whether it's wanted or not.

[00:31:28] Speaker 02:
As in strict liability or?

[00:31:29] Speaker 00:
Well, essentially, whether it's wanted or not.

[00:31:31] Speaker 00:
That seems to be what he's saying.

[00:31:33] Speaker 00:
It's by definition a song.

[00:31:34] Speaker 02:
No, I would say it's an objective standard.

[00:31:36] Speaker 00:
But where does he find, objectively, subjectively, or otherwise, that it was in fact unwanted?

[00:31:44] Speaker 02:
Because no reasonable victim, no reasonable person in that position would consent.

[00:31:49] Speaker 00:
But did he say that?

[00:31:51] Speaker 00:
Or did he make a finding of any kind about it?

[00:31:57] Speaker 02:
My recollection is that he did.

[00:32:00] Speaker 00:
Well, I can't find it.

[00:32:01] Speaker 00:
I looked carefully.

[00:32:11] Speaker 02:
Above the part number, above section seven, about four paragraphs up, so still on the same page, but under, it would be under Roman numeral five.

[00:32:22] Speaker 02:
The DHO believes that Jordan stepping on Weakley's hand or arm rendered him with only one arm to defend himself against Mills, who was on top of inmate Weakley.

[00:32:31] Speaker 02:
The DHO believes that this could have resulted in Mills having an advantage against Weakley, and that incident could have resulted in more serious injuries as a result.

[00:32:39] Speaker 02:
That's all true.

[00:32:40] Speaker 00:
I mean, it's not of his truth.

[00:32:41] Speaker 00:
It's true that that's what he said.

[00:32:42] Speaker 00:
But he did say, Weakley says it was not unwanted.

[00:32:47] Speaker 00:
I mean, except for this very peculiar credibility find, which doesn't say, I'm not going to believe anything.

[00:32:52] Speaker 00:
He says, I'm going to give him less credence.

[00:32:56] Speaker 00:
But he never says, I'm not giving that credence.

[00:32:58] Speaker 00:
And he never makes a finding about it.

[00:33:00] Speaker 02:
I would submit that in the capacity of a detention officer, this is their way of making a finding.

[00:33:06] Speaker 02:
This is their reasoned conclusions in this report.

[00:33:08] Speaker 05:
Mr. Schmidt, do you agree that we're reviewing whether

[00:33:15] Speaker 05:
the bureau met its own standard of proof de novo?

[00:33:20] Speaker 02:
You would review whether or not the petition was denied de novo.

[00:33:25] Speaker 02:
You would review the facts, findings made by the lower court.

[00:33:29] Speaker 02:
for clear air.

[00:33:30] Speaker 00:
On the lower court?

[00:33:31] Speaker 05:
No.

[00:33:32] Speaker 05:
There's no lower court finding.

[00:33:33] Speaker 05:
We're looking at a record and the Bureau's own standard of proof for the regulatory standard is the greater weight of the evidence and the due process standard is some evidence.

[00:33:44] Speaker 05:
You agree with that, right?

[00:33:45] Speaker 05:
I agree with that.

[00:33:45] Speaker 05:
And our review then, similar to other review of administrative determinations,

[00:33:52] Speaker 05:
of whether they met their own standard or are standard under due process.

[00:33:58] Speaker 05:
That's, that's de novo.

[00:33:59] Speaker 05:
Yes.

[00:34:00] Speaker 05:
Okay.

[00:34:01] Speaker 04:
And you don't contest, I take it that in this habeas proceeding, we can properly review whether or not they met their own regulatory standard as opposed to simply whether or not they afford a due process.

[00:34:16] Speaker 04:
You certainly haven't briefed that.

[00:34:18] Speaker 02:
I, correct.

[00:34:20] Speaker 04:
So that's why we're, it seems to me there's two different standards of review then for two different claims made by Mr. Jordan.

[00:34:27] Speaker 04:
His due process claim, all we see is whether there's any evidence.

[00:34:32] Speaker 04:
That's right.

[00:34:32] Speaker 04:
On the regulatory claim, if you will, because there's no statute here.

[00:34:37] Speaker 04:
We review to see whether any rational find or a fact could have reached the conclusion.

[00:34:42] Speaker 02:
I would agree with that.

[00:34:43] Speaker 02:
And there's an important caveat that sometimes gets omitted with respect to the greater weight of the evidence.

[00:34:48] Speaker 02:
the some evidence standards applies to everything.

[00:34:51] Speaker 02:
The clear weight of the evidence only applies when there's conflicting evidence.

[00:34:55] Speaker 05:
The greater weight?

[00:34:56] Speaker 05:
The greater weight.

[00:34:56] Speaker 05:
I'm sorry, yes.

[00:34:57] Speaker 05:
And I guess just to follow up on Judge Hurwitz's question, because of the habeas posture of this petition, does that suggest that does or does not the

[00:35:13] Speaker 05:
prison regulation here have the status of a law that we're reviewing for whether Mr. Jordan is detained in violation of.

[00:35:24] Speaker 02:
Well, I mean, it wouldn't be a criminal law to an administrative rule.

[00:35:28] Speaker 02:
So I'm guarded about where the question's going.

[00:35:33] Speaker 05:
I'm just trying to figure out.

[00:35:35] Speaker 05:
I think we'd pin the parties down on whether it's

[00:35:39] Speaker 05:
greater weight of evidence, whether we can hold on our de novo review, review the administrative record to see whether they met their own standard of proof.

[00:35:48] Speaker 02:
I would submit one important consideration.

[00:35:52] Speaker 02:
The greater weight only applies when there's conflicting evidence.

[00:35:55] Speaker 02:
We believe there's enough evidence that's not conflicting, that's undisputed.

[00:35:58] Speaker 00:
If there's conflicting evidence, well, there's not even conflicting evidence on this unwanted standard issue.

[00:36:04] Speaker 00:
I mean, there's not even conflicting evidence unless one draws

[00:36:10] Speaker 00:
aside from the fact that there was no finding.

[00:36:12] Speaker 00:
So what do we do with that?

[00:36:14] Speaker 02:
Well, I would respectfully disagree on whether or not there was no finding.

[00:36:17] Speaker 00:
Well, where is the finding?

[00:36:19] Speaker 00:
I know what a bad dream you've had.

[00:36:21] Speaker 00:
But every time I've asked you where the finding is, you read me a finding about something else.

[00:36:26] Speaker 00:
The finding about whether he, in fact, steps into his hand and whether, in fact, whether Miller was on top of him and so on, but not about the unwanted issue.

[00:36:39] Speaker 00:
And then we have Weekly saying that it was not unwanted, was not unwanted in the past, as well as I'm grateful for it.

[00:36:46] Speaker 00:
I mean, insofar as the only possible finding is when the DHO says something about whether he's grateful or not, but he didn't only say he was grateful, he said that it was unwanted.

[00:37:00] Speaker 00:
So I'm just having a hard time finding

[00:37:04] Speaker 00:
both how it could not be against the greater weight of the evidence, because there doesn't seem to be any contrary evidence, and there doesn't seem to be a finding.

[00:37:13] Speaker 02:
I understand your Honor's concern.

[00:37:16] Speaker 04:
I have one last question before you sit down.

[00:37:20] Speaker 04:
I know Weekly uses the term unwanted.

[00:37:23] Speaker 04:
Is it your view that unwanted and unconsented mean the same thing?

[00:37:26] Speaker 02:
In this, for this purposes of this case, those definitions can overlap in sort of a common usage.

[00:37:33] Speaker 02:
And for purposes of this case, I'm not going to say that there's a difference.

[00:37:37] Speaker 00:
And you're not contending that there had to be an affirmative showing of consent.

[00:37:43] Speaker 00:
In other words, he didn't have to say, please step in my arm or something.

[00:37:46] Speaker 00:
Of course not, yes.

[00:37:47] Speaker 05:
Correct.

[00:37:48] Speaker 05:
All right.

[00:37:49] Speaker 05:
Unless you have anything else, Mr. Schmidt.

[00:37:51] Speaker 05:
Thank you.

[00:37:52] Speaker 02:
Just with respect to the conflicting greater weight, I mean, the reason why we can go with simply

[00:37:56] Speaker 02:
uh... some evidence is because of the uncontroverted facts defining it is the fact that the defense the petitioner stepped on the arm the fact that combatant roles had shifted and now he was stepping on the arm of the victim no reasonable victim would assent to that in the moment in the moment and that's the evaluation that was being done thank you and i'd ask that you affirm the lower court's decision

[00:38:27] Speaker 01:
Thank you, Your Honor.

[00:38:34] Speaker 01:
Well, in fact, the government

[00:38:37] Speaker 01:
acknowledged in its answering brief at 21, quote, crucially and unbeknownst to the petitioner at the time he was stepping on the arm of the victim.

[00:38:46] Speaker 01:
So they've conceded that Mark Jordan had no way of knowing in what position the victim was, whether weakly was the aggressor or the victim.

[00:38:58] Speaker 01:
And furthermore, as Judge Berzon points out, the fact that he may have been at that moment, that it may have begun with him as the victim and now he got the knife, does not lead to the inexorable conclusion that he would not have wanted.

[00:39:12] Speaker 04:
It's not the inexorable conclusion, I guess.

[00:39:16] Speaker 04:
The question is whether it's a reasonable conclusion.

[00:39:19] Speaker 01:
Well, it could have been, but it also wasn't a conclusion made by the D.H.O.

[00:39:23] Speaker 01:
because the D.H.O.

[00:39:24] Speaker 01:
again never made a finding.

[00:39:27] Speaker 04:
Let me ask you this, and I think I recall the record correctly on this point.

[00:39:34] Speaker 04:
Your client never claimed that he had the consent of Mr. Weekly, did he?

[00:39:39] Speaker 01:
Our client was never asked whether he had.

[00:39:41] Speaker 04:
That's not, that's not what I'm asking.

[00:39:44] Speaker 01:
It never came up.

[00:39:45] Speaker 04:
Normally one would think that if you were, if you, if you had the consent of someone that you hit, you would know about that in advance and you would say so, but he never says so, does he?

[00:39:57] Speaker 01:
It never came up your honor in that way.

[00:40:00] Speaker 04:
I also would like to point out, um, so can, can we infer from, see in the normal situation when consent is a defense to assault,

[00:40:09] Speaker 04:
The assaulter says, oh, I had his consent.

[00:40:13] Speaker 04:
And we don't have that here, do we?

[00:40:15] Speaker 05:
But this is an element in who had the burden of proof.

[00:40:18] Speaker 01:
The burden of proof was on the

[00:40:20] Speaker 01:
Bureau of Prisons to find that.

[00:40:23] Speaker 04:
Well, but can you can you infer from Mr. Jordan?

[00:40:26] Speaker 04:
I know it never came up and he didn't have you at the time, which would have been much better for him.

[00:40:32] Speaker 04:
But can you infer from the fact that he never claims consent and absence of consent?

[00:40:37] Speaker 01:
No, you may not.

[00:40:38] Speaker 01:
And I just would like to point out this is an unusual situation for this question to come up.

[00:40:43] Speaker 01:
I believe in most cases with an unconsented touching

[00:40:46] Speaker 01:
As an issue, it's not a knife fight between two people.

[00:40:50] Speaker 04:
Well, in most cases, with an unconsented touching, it's an affirmative defense.

[00:40:54] Speaker 04:
And therefore, the defendant has to prove that it was consented.

[00:40:57] Speaker 04:
This is strange because we all seem to agree in this case is an element.

[00:41:03] Speaker 04:
So I'm just trying to figure out whether or not your client's failure to claim consent below

[00:41:11] Speaker 04:
Let the hearing officer not to make any finding on it.

[00:41:17] Speaker 01:
So your honor, that actually leads me to another point I wanted to make, if the court would.

[00:41:21] Speaker 01:
So my colleague suggests that you, this court, can find the fact of an unconsented touching.

[00:41:29] Speaker 01:
And I disagree.

[00:41:30] Speaker 01:
First of all, the record wouldn't support such a finding.

[00:41:34] Speaker 01:
But this court is not a fact finder.

[00:41:36] Speaker 01:
And the fact that we keep grappling with this, I think, just goes to the problem here, which is that

[00:41:41] Speaker 01:
The requisite findings were never made by the DHO.

[00:41:46] Speaker 01:
The evidence was not sufficient for it to have made those findings, but it did not in any event.

[00:41:51] Speaker 01:
And I would also like to respond.

[00:41:53] Speaker 04:
Well, that leaves me to a question.

[00:41:55] Speaker 00:
Judge Burr is almost going to ask first.

[00:41:57] Speaker 00:
Let her go first.

[00:41:57] Speaker 00:
Well, just my curiosity.

[00:41:59] Speaker 00:
And maybe we don't have time for this.

[00:42:01] Speaker 00:
But in fact, this defines as an assault

[00:42:07] Speaker 00:
by these regulations, but in fact, it's a battery, not an assault that they're talking about, right?

[00:42:14] Speaker 00:
Because it's not.

[00:42:15] Speaker 01:
That would be my reading, but again, the DHO did not approach it.

[00:42:20] Speaker 00:
It was actually an assault.

[00:42:21] Speaker 00:
Ordinarily, this would not be an assault anyhow, because whatever it was, it actually happened.

[00:42:30] Speaker 00:
Correct.

[00:42:31] Speaker 04:
Just a really quick question.

[00:42:34] Speaker 04:
Do you want us to send this back to the prison to see whether or not a finding of unconsented touching can be made because they failed to make one?

[00:42:47] Speaker 04:
Or what do you suggest?

[00:42:50] Speaker 04:
It's a habeas.

[00:42:50] Speaker 04:
What would you be doing?

[00:42:52] Speaker 01:
Correct.

[00:42:52] Speaker 01:
Your Honor, the relief we are seeking is for the court to

[00:42:56] Speaker 01:
remand to the district court with instructions to grant the habeas petition, restore Mr. Jordan's 27 days of good time credit, and expunge his disciplinary record.

[00:43:04] Speaker 04:
The Bureau... Well, is it a conditional writ though?

[00:43:07] Speaker 04:
That's my question.

[00:43:08] Speaker 04:
Is it a conditional writ based on them not making a finding of non-consent, if you will, or is it an unconditional writ?

[00:43:18] Speaker 01:
This is unconditional.

[00:43:19] Speaker 01:
And the Bureau of Prisons has had 14 years with this.

[00:43:23] Speaker 01:
There were three hearings.

[00:43:24] Speaker 01:
There were three reports.

[00:43:26] Speaker 01:
There were four habeas cases.

[00:43:28] Speaker 01:
These incidents took place 14 years ago.

[00:43:30] Speaker 01:
One of the witnesses is dead.

[00:43:32] Speaker 00:
Do we have any idea why they kept doing this over?

[00:43:40] Speaker 01:
I do not know, Your Honor, but it was exceptionally deletory on their part.

[00:43:45] Speaker 00:
Here's a strange question.

[00:43:47] Speaker 00:
Is there any chance that having a mediator talk to the jury would be of any use?

[00:43:51] Speaker 00:
I beg your pardon?

[00:43:52] Speaker 00:
Is there any chance that having a mediator talk to the parties about this 14-year-old case would be of any help?

[00:44:00] Speaker 01:
Your Honor, we did approach the government about a settlement, but it was not fruitful.

[00:44:08] Speaker 04:
So you don't think, well, I guess I'd ask both sides, would mediation be beneficial?

[00:44:14] Speaker 01:
Potentially.

[00:44:17] Speaker 04:
We would prefer a ruling.

[00:44:19] Speaker 04:
Of course.

[00:44:20] Speaker 04:
And they'd prefer a ruling under which they win.

[00:44:24] Speaker 04:
I'm just trying to, I'm asking why you're both here, whether or not mediation might be beneficial.

[00:44:29] Speaker 00:
Can we ask the government attorney that?

[00:44:35] Speaker 02:
I came on this case a year ago.

[00:44:37] Speaker 02:
I saw a 14 year history and I was involved, looked into the procedural process and I saw that there were, so every time the prisoner moves to another

[00:44:46] Speaker 02:
federal penitentiary the jurisdiction shifts to that locality and for about 10 years it was it was kicked out the can was kicked down the road no question about it until 2016 that doesn't explain why you keep having new hearings you could have

[00:45:01] Speaker 00:
had new cases with the old hearing.

[00:45:02] Speaker 00:
But you keep having new hearings.

[00:45:04] Speaker 02:
You know, Ms.

[00:45:05] Speaker 02:
Tucker and I, she alerted me to the fact that Mr. Jordan was about to be moved out of Tucson.

[00:45:10] Speaker 02:
And I saw my opportunity to escape this.

[00:45:13] Speaker 02:
And I said that.

[00:45:14] Speaker 00:
But what's the answer to the mediation question?

[00:45:16] Speaker 02:
Yes, all right.

[00:45:17] Speaker 02:
So I mean, the history is what it is.

[00:45:20] Speaker 04:
Well, you don't have to answer us today.

[00:45:22] Speaker 04:
But I wonder whether or not we might ask the parties to let us know within a brief period of time whether they're

[00:45:29] Speaker 04:
Because it does seem to me, and I don't mean to minimize this, but it's 27 days of good time in a 30-year sentence, and the events occurred over a decade ago.

[00:45:40] Speaker 04:
So I'm trying to figure out whether or not, from either side's perspective, it makes sense to get together and see whether some agreement can be made.

[00:45:49] Speaker 02:
I'm a minion in my office.

[00:45:52] Speaker 04:
That's why I said you can take some time to respond.

[00:45:54] Speaker 04:
Until 10 seconds.

[00:45:56] Speaker 04:
Ask that next higher minion.

[00:45:59] Speaker 02:
Until about 10 seconds ago, I didn't know mediation was even a possible outcome.

[00:46:05] Speaker 00:
We have wonderful mediators.

[00:46:06] Speaker 00:
Sometimes you manage surprising things.

[00:46:10] Speaker 00:
And what we usually do is we don't tell you to go mediate.

[00:46:15] Speaker 00:
We say to have a telephone call with the mediation office about whether you should go forward with mediation.

[00:46:22] Speaker 02:
My only trepidation about that, Your Honor, is we look at the case law history, the progeny of this kind of litigation.

[00:46:29] Speaker 02:
And there's numerous cases involving 27 days.

[00:46:32] Speaker 02:
My fear is that the precedent would get set.

[00:46:35] Speaker 04:
Here, let me make it easy for you.

[00:46:38] Speaker 04:
You can say no.

[00:46:39] Speaker 04:
You can say yes.

[00:46:40] Speaker 04:
Mediations don't set precedents.

[00:46:43] Speaker 04:
They sometimes result in settlements, and they sometimes don't.

[00:46:46] Speaker 04:
And we shouldn't do any more today than just alert you to the possibility that it's available and let you talk to the other side.

[00:46:53] Speaker 05:
And on that note, Ms.

[00:46:55] Speaker 05:
Tucker, if you have anything to close briefly and then

[00:47:00] Speaker 01:
Thank you, Your Honors, unless there are further questions.

[00:47:04] Speaker 05:
Okay.

[00:47:04] Speaker 05:
Thank you.

[00:47:05] Speaker 05:
Thanks to both counsel for their presentations and your patience with our questions.

[00:47:09] Speaker 05:
We appreciate it.

[00:47:10] Speaker 05:
We'll follow up.

[00:47:17] Speaker 05:
That case is now submitted.