[00:00:00] Speaker 04:
Thank you very much.

[00:00:01] Speaker 04:
We'll call the next matter on calendar.

[00:00:04] Speaker 04:
Perez.

[00:00:24] Speaker 01:
Good morning, Your Honors, and may it please the Court, they are logged in for Jonathan Perez.

[00:00:28] Speaker 01:
I'll try to reserve two minutes for rebuttal and I'll watch my clock.

[00:00:31] Speaker 04:
Thank you.

[00:00:32] Speaker 01:
Mr. Perez's sentence was functionally increased by over a month because he was filmed in BOP, not because he had anything to do with the filming.

[00:00:42] Speaker 01:
That, as my friend on the other side now concedes, is not enough.

[00:00:45] Speaker 01:
Rather, he had to voluntarily participate in this filming somehow.

[00:00:50] Speaker 01:
But I think that leads to two problems here.

[00:00:53] Speaker 01:
The first is that BOP's actual findings and conclusions don't contain

[00:00:57] Speaker 01:
anything to that effect.

[00:01:01] Speaker 01:
And as I point out in the brief, the Hill decision, the Wolf decision from the Supreme Court, I think, stand for the proposition that we have to rely on what BOP actually did.

[00:01:12] Speaker 01:
We can't engage in this sort of post hoc rationalization.

[00:01:16] Speaker 01:
And the second issue, and relatedly, there isn't some evidence of voluntary participation

[00:01:23] Speaker 01:
Independent of that, the district court erred by not conducting de novo review following Perez's objections.

[00:01:29] Speaker 01:
I'd intended to just address the due process issue unless the court would like to direct me elsewhere.

[00:01:34] Speaker 04:
I did have some questions.

[00:01:35] Speaker 04:
I spent a lot of time looking at prison regulations and trying to figure out how we got to

[00:01:43] Speaker 04:
a 199 charge in this case.

[00:01:45] Speaker 04:
I mean, as I understand it, the 100 charges for BOP violations, that's like murder, kidnapping, rioting, yeah, very serious stuff.

[00:01:54] Speaker 04:
Bad stuff.

[00:01:55] Speaker 04:
And this, it's hard for me to understand how this is in the same category as those.

[00:02:00] Speaker 04:
I did look, it seems like there are, in the 300 series,

[00:02:04] Speaker 04:
It seems like if you smuggle in food, yeah, I mean, there's a penalty for that.

[00:02:09] Speaker 04:
But I just want to make sure there was never a finding of a 300 violation.

[00:02:13] Speaker 04:
It was only the 199.

[00:02:15] Speaker 01:
That's correct, Your Honor.

[00:02:17] Speaker 01:
Below when the magistrate judge held oral arguments, he asked the government about this, is why didn't you just charge him for the 300 food series?

[00:02:25] Speaker 01:
And of course, they didn't have an answer for that.

[00:02:28] Speaker 03:
And he pointed out... I thought they said something like too much time has passed and

[00:02:33] Speaker 03:
All the evidence that disappeared or something like that?

[00:02:37] Speaker 01:
I confess I don't quite understand the answer because there is a picture of him with the food.

[00:02:42] Speaker 02:
Does that matter?

[00:02:44] Speaker 02:
Does that matter?

[00:02:46] Speaker 02:
Does it matter why they charged one series of violations as opposed to the other?

[00:02:54] Speaker 02:
From your client's point of view?

[00:02:56] Speaker 01:
Sure, Your Honor.

[00:02:57] Speaker 01:
What matters is that some evidence has to support what they actually charged him with.

[00:03:02] Speaker 01:
something lesser because recall the 300 series results in far less good time loss.

[00:03:08] Speaker 01:
I think the maximum is 14 days.

[00:03:10] Speaker 01:
I'm not sure what the typical situation is but it's far less than the month and a half that we got.

[00:03:15] Speaker 04:
But he got the maximum for a 100 series, didn't he?

[00:03:19] Speaker 04:
Isn't 41 days the maximum?

[00:03:20] Speaker 01:
Correct.

[00:03:21] Speaker 01:
As I read the regs, that's correct, your honor.

[00:03:23] Speaker 01:
I think I've struggled with the same thing as to how do we get to the 199 and I think that's why I complain a little bit about

[00:03:32] Speaker 01:
trying to post hoc kind of fix what happened here is because it doesn't, I don't think at the end of the day, it quite adds up.

[00:03:40] Speaker 01:
And I think what Hill and Wolf stand for the proposition for is that there's a reason we have these written requirements, you know, under due process because we need to know what the BOP was charging him with.

[00:03:54] Speaker 01:
He needs to be able to defend himself.

[00:03:57] Speaker 01:
One of the reasons is so that faced with scrutiny from the courts, the BOP acts fairly.

[00:04:03] Speaker 01:
And I think it defies that to, you know, if the government could sort of construct new findings that are a little bit more appropriate.

[00:04:11] Speaker 01:
Because at the end of the day, if you look at ER's, I believe 136 and 139, it's clear that they thought knowing he was being filmed was enough.

[00:04:20] Speaker 01:
And that's a theory that I think they rightfully disclaim on appeal.

[00:04:23] Speaker 01:
So that alone, I think, forecloses the government's position here.

[00:04:30] Speaker 01:
If the court doesn't have any questions about the due process issue, sorry.

[00:04:34] Speaker 03:
No, but I have another question.

[00:04:38] Speaker 03:
What is the release date?

[00:04:40] Speaker 01:
Mid-December, December 18th, mid-December.

[00:04:43] Speaker 03:
He still has that date he had during the briefing?

[00:04:47] Speaker 01:
That's correct, Your Honor.

[00:04:48] Speaker 01:
I did check last night.

[00:04:49] Speaker 01:
It's still December 18th.

[00:04:50] Speaker 01:
Okay.

[00:04:51] Speaker 04:
But if we were to grant relief, I mean, you would want us to grant it as soon as possible because he's on that clock now, isn't he?

[00:04:59] Speaker 01:
That's correct, Your Honor.

[00:05:01] Speaker 04:
We're just about to start, if it hasn't started.

[00:05:05] Speaker 01:
We're getting a little late in the day, that's true, Your Honor.

[00:05:06] Speaker 01:
I would ask for that.

[00:05:08] Speaker 01:
We did move to expedite the appeal.

[00:05:10] Speaker 01:
I appreciate the court got us the first calendar available, so I do appreciate that.

[00:05:15] Speaker 01:
Yes, so I would just signal that we are getting to that clock.

[00:05:21] Speaker 01:
The second issue I raise on appeal is that the district court erred by not conducting de novo review.

[00:05:27] Speaker 01:
Judge Owens, I know you authored the Ramos decision, so I wanted to make sure I answered any questions your honor had about that.

[00:05:33] Speaker 01:
I think what Ramos stands for is that we do take the district courts at their word when they say they've done something, right?

[00:05:40] Speaker 01:
So if they say they've conducted de novo review, that's what they did.

[00:05:44] Speaker 01:
Here I think it's interesting because the district court doesn't appear to have done that.

[00:05:49] Speaker 01:
It says it's conducted de novo review only of the things to which we properly objected to, and then it goes on to define what a proper objection is, and it says you can't raise any new arguments, which is largely the case, but you also can't raise any old arguments that were before the magistrate judge.

[00:06:06] Speaker 01:
I think the Sixth Circuit's decision in Pierce and Judge Wallace's unpublished concurrence in Moss kind of criticized these orders, saying, well, that's a null set.

[00:06:17] Speaker 01:
a litigant can't ever win in that situation.

[00:06:20] Speaker 01:
And that sort of turns what de novo review is on its head, right?

[00:06:24] Speaker 01:
That's not how de novo review works.

[00:06:26] Speaker 01:
You're bound to re-raise certain arguments just like I am before this court.

[00:06:30] Speaker 01:
That's how de novo review works.

[00:06:32] Speaker 01:
So I think for either of those reasons, obviously our first argument is the due process issue, and that's what gets my client the most relief at this moment.

[00:06:41] Speaker 01:
So we'd urge the court to grant relief on that.

[00:06:45] Speaker 01:
If the court doesn't have any other questions,

[00:06:49] Speaker 01:
Thank you, Your Honors.

[00:06:58] Speaker 00:
Good morning, Your Honors, and may it please the Court Assistant U.S.

[00:07:01] Speaker 00:
Attorney Ryan Chapman for the appellee, Warden Engelman.

[00:07:04] Speaker 00:
Your honors, the district court correctly dismissed the petition here because the disciplinary conclusion was supported by the minimally required some evidence in the record.

[00:07:12] Speaker 00:
The DHO's conclusion was not without a modicum of evidence or otherwise arbitrary.

[00:07:17] Speaker 00:
Accordingly, the district court's decision should be affirmed.

[00:07:20] Speaker 03:
It shouldn't take too long.

[00:07:22] Speaker 03:
Would you summarize what the some evidence is?

[00:07:26] Speaker 00:
Of course, Your Honor.

[00:07:27] Speaker 00:
The first piece of evidence would be the screenshot of the TikTok video itself.

[00:07:32] Speaker 00:
Now this screenshot provides some evidence by which the conclusion could be deduced as this court phrased it in the Lane case.

[00:07:40] Speaker 00:
And the DHO's conclusion in this case was that Mr. Perez was complicit in the illicit activity here.

[00:07:47] Speaker 03:
What did it mean by complicit?

[00:07:49] Speaker 03:
With what activity?

[00:07:51] Speaker 03:
With the charged activity?

[00:07:52] Speaker 00:
The charge activity, Your Honor, the creation of the video, which was prohibited Act 199, a disruptive conduct most like prohibited Act 108, possession of the cell phone.

[00:08:03] Speaker 00:
The other pieces of evidence in the record include the Chaffey memo, Your Honor.

[00:08:06] Speaker 00:
Now, the magistrate judge did not rely on this memo, but it is unquestionably in the record, and the DHO did consider it, and it alone would constitute some evidence.

[00:08:16] Speaker 00:
I'd like to briefly address the point raised by Mr. Ogden that the government is engaging in a post hoc rationalization here.

[00:08:23] Speaker 00:
That is not what is happening.

[00:08:24] Speaker 00:
As this Court has stated, the conclusion of the DHO just has to be deduced from the evidentiary record.

[00:08:30] Speaker 00:
And that conclusion is what the government is doing here.

[00:08:33] Speaker 00:
And I think a comparable case on the facts would actually be the Hill case.

[00:08:38] Speaker 00:
Now both parties cite Hill just for the some evidence standard, but looking at the facts of Hill, a prison guard heard a commotion there.

[00:08:45] Speaker 00:
He opened a door and saw one inmate with a black eye, three inmates running away.

[00:08:50] Speaker 00:
Now that guard never saw a fight

[00:08:52] Speaker 00:
never heard a fight, the injured inmate denied any fight occurred, and the attacking inmates maintained their innocence.

[00:08:59] Speaker 00:
The Supreme Court held that even with no direct evidence there, that there was some evidence that those inmates had been fighting and upheld the disciplinary decision.

[00:09:07] Speaker 00:
And that's a comparable case here.

[00:09:08] Speaker 02:
Was there any evidence that Mr. Perez possessed a cell phone?

[00:09:16] Speaker 00:
No, Your Honor, and that's why the government, that's why the BOP did not charge him with 108, which would be the possession itself.

[00:09:22] Speaker 02:
Any evidence that he consented to the videotaping?

[00:09:27] Speaker 00:
No direct evidence, Your Honor, but there is a reasonable inference that he did, and that's what the magistrate judge found.

[00:09:32] Speaker 02:
Or any evidence that he knew he was being videoed?

[00:09:36] Speaker 00:
Again, no direct evidence.

[00:09:37] Speaker 00:
Well, I rephrase that, Your Honor.

[00:09:38] Speaker 00:
I believe the screenshot itself would constitute evidence, just from where the video was being taken, the angle of the video, how close it was.

[00:09:46] Speaker 00:
It would strain credulity to think that someone would not be aware that they were being filmed in that situation.

[00:09:52] Speaker 03:
I think I disagree with you.

[00:09:55] Speaker 03:
I assume whoever did it didn't have a big video camera.

[00:10:00] Speaker 03:
It was probably a cell phone, right?

[00:10:02] Speaker 03:
Correct, Your Honor.

[00:10:04] Speaker 03:
And a guy is here, whatever he's doing, flipping steaks or whatever he had, and somebody's here with a cell phone, how can you

[00:10:15] Speaker 03:
I don't know, what's the standard of proof?

[00:10:18] Speaker 03:
Any evidence?

[00:10:19] Speaker 03:
How can that be, you know, how is there evidence that he knew he was being filmed or that he was complicit in it?

[00:10:27] Speaker 03:
What's the evidence just because he was close by?

[00:10:29] Speaker 03:
Yes, your honor, because there were lots of people close by.

[00:10:33] Speaker 03:
Why weren't they all charged?

[00:10:35] Speaker 00:
Well, your honor, we don't know who was close by in that specific video.

[00:10:39] Speaker 00:
There were, I believe, seven other inmates who were filmed on various videos and they were part of the investigation as well.

[00:10:45] Speaker 00:
But in this specific video, you know, the video was close by.

[00:10:48] Speaker 00:
And looking at the screenshot, the hashtags that were meant to share the video were all about, you know, life in prison, being locked up.

[00:10:55] Speaker 00:
It was clear that the purpose here was to show, look at what we're doing.

[00:10:59] Speaker 00:
We're getting lobster in prison.

[00:11:01] Speaker 00:
This guy cooking the lobster is the star of our video.

[00:11:04] Speaker 00:
Now, that is a reasonable inference that Mr. Perez, being the star of the video, consented to and agreed to be in the video.

[00:11:10] Speaker 00:
And as the Supreme Court stated in Hill, even if the evidence can be interpreted in multiple ways, as long as the government's conclusion is reasonable, it should be upheld under the standard.

[00:11:20] Speaker 04:
I just had another question about these regs.

[00:11:23] Speaker 04:
So in the video, he has a pair of scissors.

[00:11:26] Speaker 04:
He does, Your Honor.

[00:11:28] Speaker 04:
Are they allowed to have scissors in the dorm?

[00:11:31] Speaker 04:
I don't know for sure, Your Honor.

[00:11:33] Speaker 04:
I would assume not.

[00:11:34] Speaker 04:
I mean, it seems to me that scissors are a dangerous weapon in prison, and these aren't like

[00:11:40] Speaker 04:
you know, kids paper cutting scissors.

[00:11:42] Speaker 04:
These are like scissors you could stab someone with.

[00:11:43] Speaker 04:
And so I was just puzzled again when the guy's on video with scissors, which seems to be a violation, and the food's a violation, but we charge him with something that is neither of those things.

[00:11:56] Speaker 04:
I take it there was no discussion.

[00:11:57] Speaker 04:
I didn't see anything in the record about scissors being a violation here.

[00:12:00] Speaker 00:
No, Your Honor.

[00:12:01] Speaker 00:
I confess I could only speculate why the BOP did not charge him with anything else.

[00:12:05] Speaker 00:
But even setting that aside, some evidence supports the conclusion.

[00:12:08] Speaker 00:
that he participated in this video and committed prohibited Act 199.

[00:12:11] Speaker 00:
And if the court has no further questions on this issue, I'd just like to briefly turn to the district court's decision here.

[00:12:20] Speaker 00:
You know, the government would submit that the court did conduct an overview and that looking at the cases the district court cited, they only stand for the proposition that objections need to be specific.

[00:12:31] Speaker 00:
And finally, even if the court does disagree with that and finds that the district court's review was insufficient, this court's own de novo review would obviate that error.

[00:12:40] Speaker 00:
And unless the court has any further questions.

[00:12:41] Speaker 02:
You have one quick question.

[00:12:44] Speaker 02:
Your friend said magistrate judge.

[00:12:48] Speaker 02:
The district court here was a magistrate judge.

[00:12:51] Speaker 00:
The magistrate judge did the report and recommendation, your honor, and it was reviewed de novo by the district judge.

[00:12:56] Speaker 03:
Gotcha.

[00:12:56] Speaker 03:
Thank you.

[00:13:01] Speaker 03:
You're from the U.S.

[00:13:04] Speaker 03:
Attorney's Office in Los Angeles, right?

[00:13:06] Speaker 00:
Correct, Your Honor.

[00:13:07] Speaker 03:
You have other cases before the same judge?

[00:13:10] Speaker 00:
I have before, Your Honor, yes.

[00:13:12] Speaker 03:
Is this, in this kind of case, as usual, standard of review?

[00:13:18] Speaker 00:
I confess, Your Honor, I'm not familiar with this particular judge's practice.

[00:13:22] Speaker 00:
I would note that the briefing points out that there are many judges in multiple districts that have written similar language into their orders here.

[00:13:29] Speaker 00:
And it's for that reason that would indicate that there is not a large-scale abdication of the district judge's responsibility.

[00:13:37] Speaker 00:
The language here that Mr. Perez complains of should be read narrowly as stated in our written argument.

[00:13:43] Speaker 00:
Thank you, Honors.

[00:13:45] Speaker 04:
Thank you.

[00:13:50] Speaker 01:
Your Honor, just a couple of quick points.

[00:13:55] Speaker 01:
To the due process issue, the court doesn't get there if it agrees with me that the BOP never made the findings my friend on the other side submits.

[00:14:04] Speaker 01:
As far as the questions about what some evidence exists, I think the camera angle argument and a lot of these contextual arguments all suffer from the same problem that we don't have the video.

[00:14:16] Speaker 01:
There's a sole screenshot.

[00:14:17] Speaker 01:
It appears to be from like lower down.

[00:14:21] Speaker 01:
sort of the question, would it be obvious to somebody?

[00:14:23] Speaker 01:
I don't think it would necessarily be obvious at all.

[00:14:28] Speaker 01:
We never hear from the people, despite the government submitting an affidavit from the SIS technician, who's the investigator here.

[00:14:37] Speaker 01:
He supposedly saw the video, but he never even describes it.

[00:14:40] Speaker 01:
So even in these deferential standards of review, like substantial evidence or what have you, speculation never takes the place of evidence.

[00:14:49] Speaker 01:
And I'd submit this is on the

[00:14:50] Speaker 01:
on the side of speculation rather than evidence.

[00:14:55] Speaker 01:
Same thing for whoever Juan Lo the TikToker was.

[00:14:59] Speaker 01:
We have no way of connecting him to Mr. Perez other than this one out of context screenshot.

[00:15:08] Speaker 01:
And evidently, I would just point out that the food issue was apparently pretty commonplace at this facility.

[00:15:14] Speaker 04:
Certainly, this case would suggest that.

[00:15:17] Speaker 01:
And I want to answer the scissors question.

[00:15:22] Speaker 01:
I can only speculate as well.

[00:15:24] Speaker 01:
My take on that is I believe my client was a chef at one of these points.

[00:15:28] Speaker 01:
So he had, they look like safety scissors to me.

[00:15:31] Speaker 01:
So I suspect that's why they didn't go that route.

[00:15:33] Speaker 01:
He might've been able to have, I'm speculating though.

[00:15:36] Speaker 01:
I don't know the answer to that.

[00:15:37] Speaker 02:
That requires real speculation.

[00:15:39] Speaker 01:
That is, and I just wanted to make sure I had a different take on that from the government.

[00:15:43] Speaker 04:
And in terms of the,

[00:15:46] Speaker 04:
The only photos I saw in this record were the photo of the scissors in the food and then him showing his arm.

[00:15:52] Speaker 04:
There are suggestions that there were other photos screenshot, but I did not see them as part of this record.

[00:15:58] Speaker 01:
That's because they don't relate to my client.

[00:16:01] Speaker 01:
They're not part of this record because there was just a lot of other food things going on.

[00:16:06] Speaker 01:
I have the full discovery.

[00:16:07] Speaker 01:
None of it relates to my client.

[00:16:09] Speaker 01:
I think this record is limited to this because this is all that exists with respect to my client.

[00:16:17] Speaker 01:
And on the de novo review issue, I don't actually think these are particularly common orders.

[00:16:25] Speaker 01:
You do see it coming out of a few specific parts of the central district of California.

[00:16:31] Speaker 01:
And what we learned from Moss, and I did look into this, it does appear that the district of Montana uses this type of order, but I can't find another example of it other than the Sixth Circuit's decision in Pierce where they critique the same thing.

[00:16:46] Speaker 01:
So unless the court has any other questions.

[00:16:49] Speaker 04:
All right, thank you very much, counsel.

[00:16:50] Speaker 04:
I will say this has been one of the most interesting cases I've had in my 10 years on the bench.

[00:16:56] Speaker 04:
Thank you for your briefing and your argument.

[00:16:58] Speaker 04:
This matter is submitted.