[00:00:03] Speaker 01: Good morning, Your Honor. [00:00:04] Speaker 01: May it please the Court, Caleb Mason, for the defendant and appellant in this matter, Mohammed Ansari. [00:00:11] Speaker 01: I will keep track of my own time, but I'd like to reserve two minutes for rebuttal. [00:00:16] Speaker 01: Sure. [00:00:17] Speaker 01: This is a coerced confession case. [00:00:19] Speaker 01: That's what I want to focus on this morning. [00:00:23] Speaker 01: The briefing raises a couple other issues, and I'm happy to take questions on those. [00:00:27] Speaker 01: But I really want to focus on this statement and the admission of this statement. [00:00:33] Speaker 01: There are four separate reasons why reversal is required here. [00:00:39] Speaker 01: They are independent. [00:00:41] Speaker 01: If the court agrees with the defense on any of those reasons, then reversal would be required. [00:00:48] Speaker 01: I'll lay out a little roadmap, and then I want to take them one at a time. [00:00:50] Speaker 01: The first is voluntariness. [00:00:52] Speaker 01: This confession was not voluntary. [00:00:55] Speaker 01: It was extracted through the improper use of threats and promises, specifically threats to put Mr. Ansari on a no-fly list and not let him fly again, talk to the airlines, make sure that he never got on a plane again, unless he simply said exactly what the agents wanted him to say, and they told him multiple times over two hours exactly what they wanted him to say. [00:01:17] Speaker 01: the transcript shows the agents telling him exactly what he had to say and the consequences if he didn't and then promises if you'd simply say what we're telling you to say we will move along from this we will resolve this today [00:01:32] Speaker 01: In other words, we'll give you a warning and the agents in fact use that term multiple times explicitly. [00:01:38] Speaker 01: Secondly, the second form of improper conduct that rendered this statement coerced was the use of extrinsic falsehoods. [00:01:45] Speaker 01: As we know, agents who are interrogating a subject can lie about things intrinsic to [00:01:53] Speaker 01: the facts of the case. [00:01:55] Speaker 01: An agent can say, we found your DNA on the crime scene somewhere. [00:02:00] Speaker 01: And that could be a complete lie, but that would not render a subsequent confession involuntary. [00:02:05] Speaker 01: By contrast, an extrinsic falsehood is when the agent lies about something extrinsic to the crime itself. [00:02:12] Speaker 01: And the classic example of this is a promise of leniency. [00:02:15] Speaker 01: If you simply tell us what we want you to say, simply confess. [00:02:20] Speaker 01: Then you will get a warning, we will move along, and we will leave. [00:02:24] Speaker 01: We will be on our way. [00:02:26] Speaker 01: Leniency in exchange for a confession is the classic extrinsic falsehood, and the agents deployed that here. [00:02:34] Speaker 01: Second, we're still on the roadmap, is the rule of completeness discussion. [00:02:38] Speaker 01: This is the third? [00:02:40] Speaker 01: No, the first issue is voluntariness and it has two subparts. [00:02:43] Speaker 01: The reasons why this statement was involuntary. [00:02:46] Speaker 01: The second general issue is the rule of completeness. [00:02:48] Speaker 01: I'm calling it the rule of completeness [00:02:50] Speaker 01: and obviously this is in the rules of evidence at 106, but I think under Kentucky v. Crane this is also of constitutional dimensions. [00:02:59] Speaker 01: It goes to the core right of a defendant to challenge the reliability and credibility of a confession or other statement introduced against him. [00:03:09] Speaker 01: So the rule of completeness argument is if the government was going to put in part of this statement then the whole thing should come in. [00:03:16] Speaker 01: The defense made this motion [00:03:17] Speaker 01: asked for the entire thing to come in. [00:03:19] Speaker 01: We had lengthy argument on this, and ultimately the district court denied that motion and directed the defense to provide snippets, excerpts, and then did not even allow all of those excerpts in. [00:03:32] Speaker 02: What were you proposing? [00:03:33] Speaker 02: Were you proposing to play the entire recording for the jury, or you just wanted the whole transcript to go in as an exhibit, and then the jury can decide what to look at? [00:03:41] Speaker 01: Yeah, I wanted the entire recording to go in as an exhibit. [00:03:45] Speaker 02: To be published to the jury, play, the full two hours plus. [00:03:48] Speaker 01: I would have done that if permitted, and I would have simply admitted the recording and played excerpts if that had been an option as well and let the jury listen to it on their own. [00:03:56] Speaker 02: But you would have played excerpts. [00:03:57] Speaker 02: You wouldn't have had the jury sit through the whole two plus hours, would you? [00:04:00] Speaker 01: Your Honor, if the judge had let me do that, I would have done it. [00:04:03] Speaker 01: I would have played the entire thing. [00:04:04] Speaker 01: And I'll tell you why. [00:04:07] Speaker 01: Listening to that entire recording, I imagine the court has done, [00:04:12] Speaker 01: To me, listening to it, it's pretty dramatic and demonstrative of the extent to which the ultimate statement that was introduced as a confession was coerced, was not voluntary. [00:04:25] Speaker 01: And indeed, in the discussion with the district court, in the hearing on, this was April 14th, [00:04:31] Speaker 01: the hearing on the motion to eliminate to admit the entire thing. [00:04:34] Speaker 01: The district court said this. [00:04:35] Speaker 01: The district court said, well, come on, I've listened to it. [00:04:38] Speaker 01: And it goes on and on and on for hours of denials. [00:04:42] Speaker 01: Why does the jury need to hear that? [00:04:43] Speaker 01: It's just duplicative. [00:04:45] Speaker 01: Your client is simply denying that he did this for hours. [00:04:48] Speaker 01: They don't need to hear that. [00:04:48] Speaker 01: That's duplicative. [00:04:50] Speaker 01: I mean, I think it's true that he went on for hours denying, engaging in this conduct. [00:04:56] Speaker 01: That is true. [00:04:57] Speaker 01: He did. [00:04:57] Speaker 01: And that's precisely why the jury needed to hear it. [00:05:01] Speaker 01: The statement was introduced by the government in snippets, little tiny excerpts of phrases that the government then claimed were a confession and proved the defendant's guilt. [00:05:13] Speaker 01: The jury did not get to hear the full two plus hours of him being brow beaten by three agents with two other officers standing behind him [00:05:27] Speaker 01: in which he consistently said, I did not do this. [00:05:30] Speaker 01: I was asleep. [00:05:31] Speaker 01: And the agent said, keep telling us that, pal, and you're never going to fly again. [00:05:36] Speaker 01: We're going to put you on a no-fly list. [00:05:38] Speaker 01: We're going to call the airlines. [00:05:40] Speaker 01: You will never fly again. [00:05:41] Speaker 01: We know what happened. [00:05:42] Speaker 01: We know what happened. [00:05:43] Speaker 01: We know you did it. [00:05:43] Speaker 01: Just tell us exactly what we're telling you to say. [00:05:47] Speaker 01: I think the effect on any trier effect of hearing the entire thing, I would have introduced the transcript as well, but I understand that was... Introduced even the parts where your client apparently lied. [00:06:00] Speaker 02: He said, oh, I was passed out. [00:06:03] Speaker 02: I was not conscious during this flight. [00:06:04] Speaker 02: I never got anything to drink. [00:06:06] Speaker 02: And then later he said, well, okay, I might have been awake for some portion. [00:06:10] Speaker 02: I did ask for milk tea. [00:06:13] Speaker 02: I guess the whole transcript itself is not completely favorable to your client, even separate from the confession. [00:06:23] Speaker 01: The entirety of the interview, yeah, it includes him first saying, I didn't order a tea, and then saying, I ordered a tea. [00:06:28] Speaker 01: I don't think a jury would have convicted because of that. [00:06:31] Speaker 01: What the jury needed to hear was that he sat there for the first, I mean, it's 150 pages of transcript, but we'd be talking about the recording, which was the original evidence, for two hours. [00:06:42] Speaker 01: Consistently denying having engaged in any kind of intentional touching of the passenger next to him and it was all part of that was I was passed out So I didn't touch her. [00:06:52] Speaker 02: I was unconscious. [00:06:53] Speaker 02: I was asleep the entire flight. [00:06:54] Speaker 01: That wasn't true, right that does go to whether he in fact Part of the statement was I was asleep the entire flight and then he was asked Well, didn't you order a drink and he said yeah, I guess I ordered a tea. [00:07:08] Speaker ?: I [00:07:09] Speaker 01: I mean, but that's, yes, the answer to the court's question, the direct answer is yes. [00:07:15] Speaker 01: I wanted the entire statement in, the entire recording. [00:07:18] Speaker 01: I think a jury listening to that entire recording could have, a reasonable jury could have, [00:07:24] Speaker 01: deemed the ultimate inculpatory statements to be non-voluntary because of the length of time and the brow-beating and the threats and the promises and the extrinsic falsehoods. [00:07:36] Speaker 01: Just tell us what we want you to say and you'll walk out of here with a warning. [00:07:40] Speaker 01: I do think that. [00:07:43] Speaker 01: The third issue now is [00:07:50] Speaker 01: related to the rule of completeness. [00:07:52] Speaker 01: And that is a defendant's right to challenge the credibility and reliability of a statement. [00:07:58] Speaker 01: This right is, the seminal place we look at it is Kentucky v. Crane, which is discussed in the briefing. [00:08:05] Speaker 01: That is a constitutional right to put on a defense. [00:08:08] Speaker 01: to challenge the reliability and credibility of a statement introduced against the defendant. [00:08:14] Speaker 01: How do you do that? [00:08:15] Speaker 01: There are multiple ways of doing it. [00:08:17] Speaker 01: One of the ways was the rule of completeness argument. [00:08:20] Speaker 01: You simply put in the whole statement. [00:08:22] Speaker 01: Now the second way that you could do this, which we also tried, was to use expert testimony. [00:08:27] Speaker 01: And the defense had two experts. [00:08:29] Speaker 01: One of them was Dr. Richard Romanoff, who is a psychologist. [00:08:33] Speaker 01: The other one is Dr. Richard Leo, who is a PhD sociologist and law professor. [00:08:39] Speaker 01: Dr. Romanoff [00:08:40] Speaker 01: was prepared to testify about Mr. Ansari's mental state, his mental illness, his trauma from growing up under a military dictatorship, and the particular fear of police and law enforcement that that created in him, and the effect that such early trauma would have on a person interacting with law enforcement [00:09:01] Speaker 01: interrogation context. [00:09:02] Speaker 01: This was the first time that Mr Ansari had been questioned by law enforcement since he and his family fled Pakistan after his friends were killed. [00:09:12] Speaker 01: shot during a political demonstration in front of him and he testified to that narrative at trial. [00:09:18] Speaker 01: But he was not permitted to put on a psychologist, Dr. Romanoff, to testify as to how that experience would affect your interactions with law enforcement. [00:09:28] Speaker 01: Dr. Romanoff's testimony would have gone directly to [00:09:32] Speaker 01: the core constitutional right articulated in Crane to challenge the reliability and credibility of a statement being introduced against you as a confession. [00:09:41] Speaker 01: The second expert was Dr. Richard Leo, and Dr. Richard Leo is one of the nation's foremost experts on false confessions. [00:09:49] Speaker 01: He has studied this empirically. [00:09:51] Speaker 01: He has testified as an expert in dozens of trials. [00:09:54] Speaker 01: All of these materials were properly noticed to the government, presented to the district court, and the district court did not permit him to testify. [00:10:02] Speaker 01: The primary reason the district court gave was that he did not consider social science to be real science, and he did not think that Dr. Leo really met the Daubert test as being sufficiently scientifically reliable. [00:10:15] Speaker 01: I think that holding should be reversed. [00:10:18] Speaker 01: An expert who has studied false confessions [00:10:22] Speaker 01: The reasons they occur, the fact that they occur is of critical importance in any jury trial where the defendant is alleging that the confession is false. [00:10:33] Speaker 01: And the reasons given for that are set forth in the brief and have been- Let me ask you with Dr. Leo. [00:10:37] Speaker 02: If it was error to exclude it, why was the error not harmless based on all the evidence? [00:10:43] Speaker 01: The government expressly conceded, and this is in page 58, note 18 of the government's brief, the red brief, you'll find that footnote at the bottom of that page, that if there was any error in the introduction of the statement, that error was not harmless. [00:10:58] Speaker 01: That's the government's position, and the government is correct to take that position. [00:11:01] Speaker 01: Their whole case was this statement. [00:11:02] Speaker 02: Dr. Leo, are you talking about the confession? [00:11:04] Speaker 01: I am talking about the admission of the confession. [00:11:07] Speaker 02: Oh no, I'm asking you a separate question. [00:11:09] Speaker 02: I'm asking about Dr. Leo. [00:11:11] Speaker 02: Why is that not harmless error based on all the other evidence? [00:11:14] Speaker 01: Because the confession was the heart of the government's case, and the defense had a right to contest its reliability and credibility. [00:11:22] Speaker 01: And absent that right, you have a jury. [00:11:25] Speaker 01: And let's talk about what harmless error means. [00:11:28] Speaker 01: How likely is it that a jury, having seen the evidence that we wanted to put in and were prevented from putting in, how likely is it that a jury would have come up with the same guilty verdict? [00:11:38] Speaker 01: And the reasons why courts have said consistently that false confession evidence is important and admissible is that juries come into a court without an understanding of the existence, the reality, or the reasons for false confessions. [00:11:54] Speaker 01: A lay jury comes into a courtroom, sits there in the jury box, and hears a statement that sounds inculpatory. [00:12:00] Speaker 01: And to them, they will ask the question, as we quoted multiple cases saying in the briefs, why would anybody confess to something they didn't actually do? [00:12:09] Speaker 01: That question is going to leap out of the consciousness of any lay juror, and they're going to ask themselves that. [00:12:15] Speaker 01: And that's why it's so important that the defense be able to put on an expert to say, yes, false confessions do occur. [00:12:23] Speaker 01: And here are the reasons they occur. [00:12:25] Speaker 01: Here are some of the documented instances in which they occur. [00:12:27] Speaker 01: Here are some of the techniques that tend to produce them. [00:12:31] Speaker 03: So counsel, quick question on Dr. Leo's testimony. [00:12:33] Speaker 03: I think the district court also excluded it under 403. [00:12:36] Speaker 03: Yes, your honor. [00:12:37] Speaker 03: What's your response to that? [00:12:38] Speaker 01: I don't, I don't think that there's any 403 basis here. [00:12:41] Speaker 01: I mean, the 403 test is, you know, is the evidence, um, substantially more prejudicial than probative. [00:12:49] Speaker 01: I mean, I don't see any prejudice. [00:12:50] Speaker 03: There's the other part of now the district court did not articulate this, but I want to give you a chance to respond. [00:12:54] Speaker 03: The other parts of 403 that it's a waste of time or it's a sideshow. [00:12:58] Speaker 03: Oh, I talked about that. [00:12:59] Speaker 01: I would disagree with that, and I think the Court could disagree with that just on the face of the papers. [00:13:04] Speaker 01: There was no cumulativeness or waste of time. [00:13:06] Speaker 01: This was a short trial. [00:13:08] Speaker 01: Dr. Leo's testimony would have been false confessions are real. [00:13:12] Speaker 01: Here is the general statistical prevalence that we have been able to identify through actual cases. [00:13:17] Speaker 01: Here are the reasons that are associated with them. [00:13:20] Speaker 01: Here are the interrogation techniques that tend to produce them. [00:13:23] Speaker 01: That's what he would have testified to. [00:13:25] Speaker 01: That would not take that long. [00:13:26] Speaker 01: I've pretty much just done it. [00:13:29] Speaker 02: So I don't think that there's any waste of time. [00:13:36] Speaker 02: that mister i'm sorry testified to about his trauma about being in paxton serving other people dealing with law enforcement but you said basically romanoff would basically testify to the same kind of self-serving hearsay i don't know how we can find abuse of discretion on that one. [00:13:50] Speaker 01: Your Honor, this court's case law actually goes the other way and the case law suggests that if you're going to put on a false confessions expert like dr leo you must also call an expert witness to talk about the specific psychological propensity [00:14:04] Speaker 01: of your defendant, your client, to give a false confession. [00:14:08] Speaker 01: In other words, you have to connect the two, and you cannot do both of those through the same expert. [00:14:12] Speaker 01: You need one expert to talk about false confessions generally, and then you need a second one to talk about the particular psychological circumstances of this case. [00:14:21] Speaker 01: So I would disagree with the court. [00:14:22] Speaker 01: I think we needed both, and they were not cumulative. [00:14:25] Speaker 01: They talked about very different topics. [00:14:27] Speaker 01: For the last 20 seconds, if I could also mention the request for counsel issue, the Sixth Amendment invocation claim. [00:14:35] Speaker 01: I think this one is very important. [00:14:36] Speaker 01: It's a question of law. [00:14:38] Speaker 01: The court can decide it simply based on the transcript. [00:14:42] Speaker 01: The agent says to him, this is going on your record no matter what. [00:14:46] Speaker 01: Mr. Ansari says, if it's going on my record, then I need a lawyer. [00:14:52] Speaker 01: That is an unambiguous invocation of counsel. [00:14:56] Speaker 01: The agent has already supplied the antecedent condition, and the defendant says, if it's going on my record, I need a lawyer. [00:15:05] Speaker 01: The analogy is, you tell me, if my time is up, I better stop. [00:15:12] Speaker 03: There you go. [00:15:12] Speaker 03: All right, we'll give you two minutes for rebuttal. [00:15:14] Speaker 03: Thank you, Your Honor. [00:15:39] Speaker 04: Good morning, Your Honors. [00:15:40] Speaker 04: May I please the court? [00:15:41] Speaker 04: James Santiago, appearing on behalf of the United States of America. [00:15:47] Speaker 04: The trial was fair. [00:15:48] Speaker 04: The defense had its opportunity to present its theory of the case, and a jury rejected that. [00:15:55] Speaker 04: Two separate district courts evaluated the defense arguments, and their rulings should be affirmed. [00:16:03] Speaker 04: The center of the case, the heart of the government's case, as acknowledged in the closing argument and in the rebuttal, [00:16:09] Speaker 04: was a percipient witness testimony, the testimony of two flight attendants, the testimony of the victim, and the testimony of a passenger who sat in the very same row and saw the crime actually happening. [00:16:25] Speaker 04: The defendant's interview was voluntary when looking at the totality of the circumstances. [00:16:31] Speaker 04: He was a 47-year-old businessman with extensive travel and a waiver of his Miranda rights, both orally and in writing. [00:16:40] Speaker 04: was in a public setting, and his will was not overborn when looking at the totality of the circumstances. [00:16:47] Speaker 04: And defendants cherry pick statements do nothing to change the fact that the agents were professional in their dealings with them, and they're dealing with a defendant who one of the courts described after reviewing the entire transcript as being evasive, misleading, and dishonest. [00:17:02] Speaker 04: And he was the one who caused the interview to drag on for two and a half hours, not the agents. [00:17:09] Speaker 04: The defendant's story changed. [00:17:11] Speaker 04: He'd give a little bit, he'd walk it back a little bit. [00:17:14] Speaker 04: Gradually remembering things, and remembering things you can't remember if you are, in fact, asleep. [00:17:20] Speaker 04: His story changed. [00:17:23] Speaker 04: Furthermore, with regards to the rest of defendant's arguments, all the remaining arguments, there is no abuse of discretion by the district court in his rulings. [00:17:34] Speaker 04: The district court provided [00:17:36] Speaker 04: defense the opportunity to introduce 11 excerpts of the interview as opposed to all two and a half hours of the interview. [00:17:44] Speaker 04: The recording itself is the evidence and not necessarily the transcript. [00:17:49] Speaker 04: And even over the government's hearsay objections to introducing those full two and a half hours of self-serving statements, the defense had its opportunity to present its theory of the case, being able to argue [00:18:01] Speaker 04: And as the district court said, it was a matter of degree. [00:18:04] Speaker 04: There had to be enough there for the defendant in the event he testified or did not testify to make that argument. [00:18:09] Speaker 04: And that's the argument that defense made throughout the entire case. [00:18:14] Speaker 04: Regarding the experts, the defense noticed three experts. [00:18:18] Speaker 04: One of them was let in, being able to speak about sleep in general. [00:18:22] Speaker 04: The other two experts were properly excluded by the district court using its discretion and acting as its gatekeeper. [00:18:30] Speaker 04: their testimony would have been unreliable. [00:18:32] Speaker 02: Relying on its subjective inter... Mental health diagnoses are ever relevant to a voluntariness analysis? [00:18:39] Speaker 04: Yes, Your Honor. [00:18:40] Speaker 04: It is a totality of the circumstances, and you have to take the... There's no... It's not necessarily... Wouldn't the diagnoses here not be relevant to whether he voluntarily confessed? [00:18:51] Speaker 04: Well, obviously, Your Honor, they are relevant, and they were able to present that theory to the case. [00:18:55] Speaker 04: The defendant did testify, but with the agents, no. [00:18:59] Speaker 04: They know he's a 47-year-old man, public setting, and he agreed to an interview. [00:19:02] Speaker 04: Looking at the totality of the circumstances, he did say in the interview that he does travel for work. [00:19:08] Speaker 04: So yes, it is taken into account, but that is not the only factor. [00:19:12] Speaker 04: There are all the other factors regarding the voluntariness of the interview that the court has to weigh, and not just tick off check boxes, which I think is what the Preston case, that the district court referenced in the Preston. [00:19:24] Speaker 02: If then Romanov testifies to the bipolarity and the depression and the anxiety, you're saying it's relevant, then why shouldn't it have been admitted? [00:19:34] Speaker 04: Just because it's relevant, Your Honor, does not mean it's necessarily admitted. [00:19:38] Speaker 04: Under 403, it would have been just cumulative evidence bolstering defendants' inadmissible hearsay testimony. [00:19:44] Speaker 04: They were able to get that out, saying his experience in Pakistan, and it was very prejudicial to an extent, but he was able to still tell that story. [00:19:52] Speaker 02: So with that, weighing everything, Your Honor, not just, yes. [00:20:12] Speaker 04: but not enough that would have made any difference, Your Honor. [00:20:16] Speaker 04: They were excluded and the district court did use its discretion and properly excluded them because it would have been cumulative evidence. [00:20:24] Speaker 04: It was more prejudicial than anything else, raising in all those experiences all his traumatic background, which the government is sympathetic to, but really doesn't have, it is not the controlling factor in the voluntariness argument. [00:20:37] Speaker 03: But Council, let me just ask this devil's advocate here. [00:20:40] Speaker 03: So if my kid comes to me and says, well, I'm really having a bad day at school, that's my kid telling me. [00:20:44] Speaker 03: If a psychologist comes to me and says, your kid had a really bad day at school, okay, now I'm taking that a little more seriously. [00:20:52] Speaker 03: Isn't there a possibility the jury could have seen, because you had the testimony of an expert saying, yeah, this guy really does have all these problems, that the jury may have taken more from that? [00:21:01] Speaker 04: It can, Your Honor, but I don't think that's necessarily a fair comparison. [00:21:04] Speaker 04: When you're dealing with your child who's coming in with problems, you recognize that as a child. [00:21:09] Speaker 04: Here we have a grown man, 47 years old, who tells agents he travels extensively for work, that he's a consultant for companies and he travels all over the countries. [00:21:18] Speaker 04: This is a sophisticated individual. [00:21:20] Speaker 04: and in the agents from their interview with them, they asked him the questions before they read them as Miranda writes. [00:21:26] Speaker 04: Are you taking any medications? [00:21:27] Speaker 04: They observed his demeanor. [00:21:28] Speaker 04: And Special Agent Rickow's declaration, they noted that, that he didn't appear to be suffering from any sort of ailments. [00:21:36] Speaker 04: And to be asking agents on the spot to be diagnosing people when they're responding, trying to tree out the situation, I don't think is necessarily appropriate. [00:21:45] Speaker 04: Now here, as it replies to the expert, [00:21:47] Speaker 04: going back to it would it would have violated 403 as your honor when you ask the question of the appellant earlier it would have been cumulative but regarding the question of whether or not like yes in some cases it does make sense but not necessarily here and the district court appropriately uses discretion in excluding those experts. [00:22:13] Speaker 04: Uh, moving on, just regarding the rule of completeness, uh, I already briefly touched on this. [00:22:19] Speaker 04: Two and a half hours, the recording itself is the, the evidence as opposed to the transcript. [00:22:24] Speaker 04: Defendant did get those 11 experts in over the government's hearsay, um, objections. [00:22:30] Speaker 04: Now regarding the invocation of counsel, the Davis case is directly on point. [00:22:36] Speaker 04: And this case, the Davis case, Supreme court case post-states [00:22:40] Speaker 04: the Ninth Circuit case, that defense cites in their papers regarding some doctrine of conditional invocation. [00:22:47] Speaker 04: There is no such thing. [00:22:48] Speaker 04: Davis establishes that bright-line rule. [00:22:51] Speaker 04: There has to be an unambiguous request. [00:22:54] Speaker 02: Now, the majority of the government's thing, a conditional invocation can never be sufficient under Davis? [00:23:03] Speaker 04: Under the current, like, I don't want to make, certainly, make a bright-line rule. [00:23:07] Speaker 02: It is conditional, but the agent knows the condition is satisfied. [00:23:10] Speaker 04: The agents were confused on the spot, Your Honor. [00:23:13] Speaker 04: The agents were confused about whether or not he was doing. [00:23:17] Speaker 02: Right, okay, let's not talk about Mr. Ansari. [00:23:19] Speaker 02: I just want to understand your position. [00:23:20] Speaker 02: If it's conditional, but the agents know whether the condition is satisfied or not, is that enough under David's? [00:23:26] Speaker 04: I think it depends. [00:23:28] Speaker 04: It depends on how clear and convincing, or how clear and unambiguous that invocation is and whether or not... It could be. [00:23:34] Speaker 02: There's no bright line, because the way you said it almost sounded like conditional invocations don't, you know, ever satisfy Davis. [00:23:41] Speaker 04: No, I could envision scenarios... If it's clear and ambiguous. [00:23:44] Speaker 02: Yes. [00:23:44] Speaker 02: Clear and unambiguous. [00:23:46] Speaker 00: Is there anything conditional about what the agent said to him? [00:23:50] Speaker 00: It's going to go on your record? [00:23:52] Speaker 04: But he said that, and he wanted to clarify, like, what does that mean? [00:23:57] Speaker 04: And there was a back and forth of four people talking at the time. [00:24:00] Speaker 04: And in their mind is, hey, this is a guy who already waived his rights, orally and in writing, and now he's not clearly invoking, what is he doing? [00:24:09] Speaker 04: He's asking us for legal advice. [00:24:11] Speaker 04: He asked them multiple times, should I get a lawyer? [00:24:14] Speaker 04: The Davis case is directly on point. [00:24:17] Speaker 04: It post-dates the Ninth Street case that... He didn't say, should I get a lawyer? [00:24:22] Speaker 00: He didn't ask that question. [00:24:23] Speaker 00: He said, I mean, is it going to be on my record? [00:24:26] Speaker 00: Because then I need to get a lawyer. [00:24:28] Speaker 04: But then he asked, what should I do after that? [00:24:31] Speaker 04: Multiple times, Your Honor. [00:24:37] Speaker 04: He asked them multiple times, yes, I know, I understand, but I'm asking you guys, what do I do? [00:24:43] Speaker 04: That is not a clear invocation. [00:24:45] Speaker 04: And that is not a point where necessarily it would raise the agent's awareness. [00:24:51] Speaker 04: And as the Davis case explains, agents aren't required to ask clarifying questions. [00:24:57] Speaker 04: That's the Brightline law. [00:24:59] Speaker 04: Miranda is the protection at the front. [00:25:02] Speaker 04: And even the Davis case acknowledges there are times when various defendants could be put at a disadvantage, whether or not because of linguistic barriers, things to that nature. [00:25:12] Speaker 04: But the agent should not be put in a position where they have to give legal advice. [00:25:18] Speaker 04: And that is what he was doing here, Your Honor. [00:25:19] Speaker 03: And so your take is, for example, on ER-1151, Judge Bea read you the passage. [00:25:24] Speaker 03: about going on the record. [00:25:26] Speaker 03: And then when he then says, I know, should I get a lawyer? [00:25:29] Speaker 03: You have to read those in combination. [00:25:32] Speaker 03: You can't just read the one statement. [00:25:33] Speaker 03: You have to read the second statement where he's, in a sense, still leaving it up in the air whether he wants a lawyer. [00:25:39] Speaker 04: You do have to look at all of it, Your Honor, just to give it context. [00:25:42] Speaker 04: Because just parsing it out, it is difficult. [00:25:46] Speaker 04: And there was some equivocation there. [00:25:49] Speaker 04: But at the end of the day, the agents weren't sure what he was doing. [00:25:52] Speaker 04: And it was ambiguous. [00:26:04] Speaker 04: With that, Your Honors, all I'd like to close with is- Let me ask you one more question. [00:26:09] Speaker 02: Yes, Your Honor. [00:26:11] Speaker 02: So the officers couldn't have threatened that a court or prosecutor would treat Mr. Ansari more harshly if he chose to remain silent. [00:26:20] Speaker 02: So why are the threats about putting someone on a no-fly list when they fly for a living? [00:26:26] Speaker 02: Why aren't those equivalent? [00:26:27] Speaker 02: How can we distinguish that? [00:26:29] Speaker 04: they're not necessarily threats your honor they are responding to a situation and yes I mean when looking at some of the other cases but looking at the totality of circumstances just because there are some arguably course questions does not make the interview involuntary this case is nothing in comparison to the case of Hernandez [00:26:47] Speaker 04: the do car which is highlighted in the government's answering brief. [00:26:52] Speaker 04: In that case it was a I believe it was a 17-year-old who was accused of shooting some whether or not he was involved with the shooting and his you're saying sometimes suggestion that you're going to be treated more harshly is okay if overall it's not [00:27:08] Speaker 04: So coercive is that I mean it sounds like you're saying a little bit is okay a little bit of suggestion that you're going to be treated more harshly so it depends on who you're dealing with and how reluctant they are are being this case with the questions they were asking is nothing in comparison to that case I just referenced which was held up by this court in a subsequent ruling it started off with a magistrate recommendation that was adopted [00:27:28] Speaker 04: And then the Ninth Circuit upheld that case because any coercion that was there, to the extent there was some, which is much more extreme in comparison to the case at hand, was too attenuated. [00:27:39] Speaker 04: He was already giving confessions throughout the entire interview before any of that stuff came up. [00:27:45] Speaker 04: And in this case, the agents were doing their job. [00:27:47] Speaker 02: In which case? [00:27:48] Speaker 02: The case you're talking about or in Mr. Ansari? [00:27:50] Speaker 04: In Mr. Ansari's case. [00:27:52] Speaker 04: The case I referenced, Hernandez v. Dukar, [00:27:55] Speaker 04: The that case was about a gang member pressuring him like, hey, you better own up to this. [00:28:01] Speaker 04: We want to know we called him out for being a liar. [00:28:03] Speaker 04: We know you weren't there. [00:28:05] Speaker 04: You better write an apology for this. [00:28:06] Speaker 04: It's going to only get worse for this. [00:28:07] Speaker 04: We're going to start knocking on doors of all your homies. [00:28:11] Speaker 04: And they were just putting a lot of fear in him. [00:28:13] Speaker 04: And that was a young man. [00:28:14] Speaker 04: That is not what we have here. [00:28:16] Speaker 04: We have a grown man who was evasive for an hour and a half, two hours, changing his story. [00:28:22] Speaker 04: And the agents are saying what they literally have to do. [00:28:26] Speaker 04: Like, they don't know what's going on. [00:28:28] Speaker 04: They responded knowing nothing about the case. [00:28:30] Speaker 04: They know that a woman woke up, had a hand. [00:28:32] Speaker 02: The coercion is okay if you're sophisticated and older? [00:28:35] Speaker 02: I'm sorry, I just don't know where the, how do we draw the line? [00:28:39] Speaker 02: How do we draw the line? [00:28:39] Speaker 04: I don't think you can necessarily draw a line, Your Honor. [00:28:42] Speaker 02: Uh-huh. [00:28:42] Speaker 04: I think you have to look at the totality of the circumstances. [00:28:45] Speaker 04: And the circumstances here, [00:28:47] Speaker 04: Yes, the agents did have to apply a little bit of pressure, but it's because they were responding to somebody who was being misleading and deceptive and clearly not being honest with them. [00:28:57] Speaker 04: So their statements, in comparison to other cases where this court has held that those statements were voluntary, were not coercive, nowhere near the same degree. [00:29:06] Speaker 04: They were triaging a situation. [00:29:09] Speaker 04: They knew they had a difficult person that they were interviewing. [00:29:12] Speaker 04: And what they do have to do is they have to react immediately like, oh, we have a guy who travels all the time, and he can't control himself. [00:29:20] Speaker 04: We have to let these airlines know. [00:29:22] Speaker 04: And they were just stating the position that they were in. [00:29:25] Speaker 04: So I do not believe that their statements were coercive, Your Honor. [00:29:30] Speaker 02: But it sounds like, I'm sorry. [00:29:31] Speaker 03: I was going to say, I think where the confusion may lie here is that there may be some coercion. [00:29:37] Speaker 03: The question is, is it unduly coercive? [00:29:39] Speaker 03: And there's, agents are allowed to push. [00:29:42] Speaker 03: The question is, in this case, did they push too far? [00:29:44] Speaker 03: And did they overbear the will of this man? [00:29:47] Speaker 03: And I think I understand your argument is that in this case, even though there was some pushing by the agents, if you look at the totality of the circumstances, your position is he was not pushed too far. [00:29:56] Speaker 04: Correct, Your Honor. [00:29:56] Speaker 04: What I was going to say, and thank you for pointing that out, his will was not overborn. [00:30:02] Speaker 04: Coercion, the Preston case, which the lower court already did this analysis, looking at the read factors, the read interrogations. [00:30:09] Speaker 04: ticked off all those factors and given in light of all the totality of circumstances, his will was not overborn. [00:30:16] Speaker 00: But we have to look at it de novo, right? [00:30:18] Speaker 04: Yes, your honor, for the voluntariness. [00:30:23] Speaker 04: Unless the court has any further questions, the government would ask that the court affirm and the government would submit. [00:30:33] Speaker 04: Thank you, counsel. [00:30:33] Speaker 04: Thank you, your honor. [00:30:47] Speaker 01: Thank you your honor. [00:30:49] Speaker 01: I have taken notes and will try to address several of the points made in order. [00:30:55] Speaker 01: I would like to start with the claim that [00:31:03] Speaker 01: First, one of the first comments the government made. [00:31:05] Speaker 01: The heart of this case was percipient witness testimony, I guess as opposed to the defendant's statement. [00:31:11] Speaker 01: I think that one is hard to take seriously if we look at the evidence in the case and the government's own closing argument, which focused almost entirely on the statement. [00:31:23] Speaker 01: He said it, he said it, he said it. [00:31:25] Speaker 01: The government said that a dozen times in closing, focused on the statement. [00:31:30] Speaker 01: Absent the defendant's statement, what you have is a victim who says she woke up and his hand was on her thigh. [00:31:40] Speaker 01: That was never disputed, that his hand was on the thigh. [00:31:42] Speaker 01: you have a passenger seated in the next seat over who says he saw the hand on the thigh. [00:31:47] Speaker 01: That was never disputed. [00:31:49] Speaker 02: And then I thought he saw the hand for an hour. [00:31:52] Speaker 02: Yes, buried in her crotch. [00:31:55] Speaker 02: So I guess that's pretty persuasive evidence as to where the hand was watching it for an hour and then also saying he wakes Mr Ansari wakes up and looks around and you have two flight attendants saying he's pretending to be sleeping. [00:32:09] Speaker 01: We also presented five witnesses who were seated in all the adjoining seats who said they saw and heard nothing unusual at all, which directly contradicts the victim's own statement about her reaction when she woke up. [00:32:21] Speaker 01: My point is just that this case stands and falls on that confession, and I don't think the court could properly rule that the admission of the confession was harmless in light of the other evidence. [00:32:33] Speaker 01: The other thing is what I really want to focus on. [00:32:36] Speaker 01: The government said then [00:32:38] Speaker 01: And on the invocation issue, after saying, if it's going on my record, I want a lawyer, the government said, well, then he asked later more questions. [00:32:46] Speaker 01: What should I do? [00:32:47] Speaker 01: But you all know the rule of the Sixth Amendment invocation of counsel. [00:32:52] Speaker 01: You have to stop asking questions. [00:32:54] Speaker 01: When a person invokes, you stop. [00:32:58] Speaker 01: then get to keep questioning to see if you can elicit some more statements that you can then say were simply questions. [00:33:05] Speaker 01: And if you listen to this recording, it is really dramatic. [00:33:09] Speaker 01: After two hours of peppering him without respite, the moment he says, is this going on my record because then I want a lawyer, there are five full seconds of silence. [00:33:18] Speaker 01: All the agents stop because they know he just invoked. [00:33:22] Speaker 01: They know it. [00:33:23] Speaker 01: They can hear it. [00:33:24] Speaker 01: A jury would have heard it too. [00:33:27] Speaker 01: When a person invokes, you must stop. [00:33:30] Speaker 01: You do not get to keep asking questions to generate a record that the prosecutor can then say creates equivocation or ambiguity. [00:33:37] Speaker 01: And that is exactly what happened here. [00:33:41] Speaker 01: I am over time. [00:33:41] Speaker 01: If the court has any questions for me, I obviously have other thoughts. [00:33:47] Speaker 03: All right. [00:33:47] Speaker 03: Thank you, counsel. [00:33:47] Speaker 03: Appreciate it. [00:33:48] Speaker 03: Thank you, your honor. [00:33:48] Speaker 03: I thank you both for your briefing and argument in this interesting case. [00:33:51] Speaker 03: This matter is submitted.