[00:00:08] Speaker 00:
Good morning, your honors, counsel, and may it please the court.

[00:00:11] Speaker 00:
My name is Michael Gomez from the Office of the Federal Public Defender, and I'm appearing on behalf of my client, Ms.

[00:00:16] Speaker 00:
Bri Shanae Ford, and I'd like to reserve two minutes for rebuttal.

[00:00:20] Speaker 02:
All right.

[00:00:21] Speaker 00:
Your Honor, the only reason we're in federal court today is because of the repeated constitutional violations by an officer of the law who feels he is above the law because he continues to violate the law and has not faced repercussions for it.

[00:00:35] Speaker 00:
And the transfer of this case to federal court was all facilitated by his FBI agent friend.

[00:00:41] Speaker 00:
It appears as though we're all in agreement that what LAPD detective David Vinton did was wrong.

[00:00:48] Speaker 00:
There's no question about it.

[00:00:49] Speaker 00:
The government doesn't even deign to defend his misconduct because it's indefensible.

[00:00:54] Speaker 00:
So what does this court do when the origins... Excuse me.

[00:00:57] Speaker 02:
The district court said...

[00:00:59] Speaker 02:
Any violation of continued questioning after she invoked her right to counsel, the remedy for that would be suppression and nothing more.

[00:01:10] Speaker 02:
Why isn't that correct?

[00:01:12] Speaker 00:
Your Honor, yes, there were technical Miranda violations, at least seven of them here.

[00:01:18] Speaker 00:
That doesn't include the continued interrogation in the squad car or at the jail facility during booking.

[00:01:24] Speaker 00:
But what takes this case out of the Miranda world, it's not just about technical Miranda violations, but in a due process world, which is where the outrageous misconduct claim lives.

[00:01:35] Speaker 00:
or the equal protection world where the selective enforcement claim lives, or in the court's inherent supervisory authority, is what Detective Vinton did with those Miranda, with Ms.

[00:01:47] Speaker 00:
Ford's invocations of her Miranda rights and his violations of them.

[00:01:51] Speaker 00:
It's that he retaliated against her for invoking Miranda.

[00:01:55] Speaker 00:
So it's not just a Miranda violation, it's the retaliation, it's the threats of federal prosecution.

[00:02:00] Speaker 02:
So this is one of the most- The government cites cases saying that there's

[00:02:04] Speaker 02:
A prosecutor or an investigator can threaten prosecution if the suspect doesn't cooperate, and if the suspect doesn't cooperate, then can prosecute, and there's nothing untoward about that.

[00:02:18] Speaker 02:
What's your response to that?

[00:02:20] Speaker 00:
If this were just about threats during an interrogation where the individual or the defendant had already waived Miranda rights, where there wasn't repeated trampling over those constitutional rights, that would be a different question.

[00:02:33] Speaker 00:
But that's not the circumstances we have here.

[00:02:36] Speaker 00:
The circumstances here are there are clear Miranda violations.

[00:02:39] Speaker 00:
There is a clear retaliation because of those invocations of

[00:02:45] Speaker 02:
The government says it's not a constitutional right.

[00:02:48] Speaker 02:
It invokes Vega v. Takeo and says even ignoring the invocation of the right to counsel is not a constitutional violation, applying Vega v. Takeo in that context.

[00:03:00] Speaker 02:
Do you disagree?

[00:03:02] Speaker 00:
Well, it's not a per se constitutional violation, but there is no question that Miranda rights are prophylactic rights that came from the Fifth Amendment.

[00:03:11] Speaker 00:
And someone can validly invoke Miranda rights during an interrogation, a custodial interrogation, as happened here.

[00:03:18] Speaker 00:
And what the law also says is that once someone validly invokes a Miranda right, all questioning must cease.

[00:03:26] Speaker 00:
That's the law.

[00:03:27] Speaker 00:
And Detective Vinton did not follow the law.

[00:03:29] Speaker 02:
And if it doesn't cease,

[00:03:31] Speaker 02:
then the Remit Ava District Court said is you suppress those statements, so I understand they could still be used as impeachment.

[00:03:39] Speaker 00:
Correct, Your Honor, but what I want this court to focus on is this is not about Miranda violations.

[00:03:44] Speaker 00:
This case is about a due process violation.

[00:03:47] Speaker 00:
It's about what Detective Vinton did after Miranda was violated and why and the threats he made, the retaliation he made against Ms.

[00:03:56] Speaker 00:
Ford because she didn't waive her Miranda rights.

[00:03:59] Speaker 00:
And it's he threatened her with federal prosecution and then followed through on those threats because she didn't waive her rights.

[00:04:06] Speaker 00:
So this is not just a Miranda case.

[00:04:09] Speaker 00:
It's not about Miranda violations.

[00:04:11] Speaker 00:
It's what happened because of her valid invocations of those Miranda rights, and that's a due process violation.

[00:04:17] Speaker 00:
As this court has said, an outrageous conduct, her outrageous conduct claims, which is one of the claims we represented here,

[00:04:24] Speaker 00:
It's when an officer's conduct is so outrageous and so offensive to our universal sense of justice that a prosecution and a conviction cannot stand.

[00:04:33] Speaker 00:
That's what we have here.

[00:04:35] Speaker 00:
So it's not just Miranda violations, it's the retaliation and the threats.

[00:04:39] Speaker 00:
And there's no question that those happen.

[00:04:41] Speaker 00:
The government doesn't dispute that that happened.

[00:04:45] Speaker 02:
The government also raises the argument that because the federal agent, Ms.

[00:04:52] Speaker 02:
Corcoran,

[00:04:53] Speaker 02:
said she was not aware of any of these violations in her declaration, and the court credited it.

[00:05:02] Speaker 02:
Regardless of what happened at the state level, there was no misconduct at the federal level.

[00:05:08] Speaker 02:
What's your response to that?

[00:05:10] Speaker 00:
So this is the government's attempt, because it can't defend detective Vince's conduct, to separate itself from that misconduct.

[00:05:18] Speaker 00:
But there was a clear factual error in the district court's finding that Agent Corcoran didn't know about the invocations, about Ms.

[00:05:26] Speaker 00:
Ford's invocations during the interrogation, or that this was in retaliation for her invoking those rights.

[00:05:32] Speaker 00:
So I've identified at least, well,

[00:05:35] Speaker 00:
as a precursor to all that, there's nothing, there's no case law or precedent prohibiting this court from imputing what happened during that interrogation to Agent Corcoran and the federal case.

[00:05:48] Speaker 00:
I've identified at least 19 different indications in the record that strongly suggest and undermine the district court's finding that Agent Corcoran didn't know anything about the case or about what happened in the interrogation.

[00:06:01] Speaker 00:
So first, they had discussed

[00:06:03] Speaker 00:
Detective Vinton and Agent Corcoran had discussed Ms.

[00:06:06] Speaker 00:
Ford before she was even arrested and falsely accused of murder because she was released two days later because she had no involvement in it.

[00:06:13] Speaker 00:
So they had already discussed her.

[00:06:15] Speaker 00:
During the interrogation, Detective Vinton texted Agent Corcoran and said, can you file federal gun charges if need be?

[00:06:24] Speaker 00:
And she said, 100% I can.

[00:06:27] Speaker 00:
Then after Ms.

[00:06:28] Speaker 00:
Ford was released, there was constant communication between Detective Vinton and Agent Corcoran over the next several months coordinating this federal case.

[00:06:37] Speaker 00:
And if the court looks at the content of those communications, they were all about Detective Vinton's attempts to elicit information from Ms.

[00:06:46] Speaker 00:
Ford, which she was not giving.

[00:06:48] Speaker 00:
And then because he was unable to get that information, Agent Corcoran continued in the federal investigation.

[00:06:54] Speaker 02:
Before you run out of time, do you want to address the implications of Duarte and Rahimi for your case?

[00:07:00] Speaker 00:
Yes, Your Honor.

[00:07:01] Speaker 00:
What I'd like to address in that is that the court under Duarte, which is current binding precedent in this court, the court has not ruled on the Ambog petition or vacated the decision.

[00:07:12] Speaker 00:
So it's current precedent in this court.

[00:07:14] Speaker 00:
And it confirms that the district court here erred at step one of Bruin analysis.

[00:07:19] Speaker 00:
So the government's 28-J letter focuses on considerations that happened at step two.

[00:07:24] Speaker 00:
Rahimi itself was a step two analysis.

[00:07:28] Speaker 00:
What the court found in Duarte was at step one, the Second Amendment does cover the conduct in this case, Ms.

[00:07:34] Speaker 00:
Ford's possession of a firearm for self-defense.

[00:07:38] Speaker 00:
So at that threshold inquiry, at the very least, this court should remand to the district court so that it can correct its error, clear error of law, and engage in Bruin's step two analysis to determine whether there are historical analogs that would

[00:07:53] Speaker 00:
sustain a permanent disarmament as opposed to a temporary disarmament which the Supreme Court found in Rahimi.

[00:08:01] Speaker 02:
Do you want to save the rest of your time?

[00:08:02] Speaker 00:
Yes, and if there are no further questions, I'll save the rest of my time.

[00:08:17] Speaker 03:
Good morning, Your Honors.

[00:08:18] Speaker 03:
May it please the court, David Williams for the United States, and at council table is Alex Su, who is co-counsel in the trial court.

[00:08:25] Speaker 03:
I would like to begin by talking about defendants' claim that we all agree that something wrong happened here.

[00:08:33] Speaker 03:
We do not all agree that something wrong happened here.

[00:08:35] Speaker 03:
And it sort of breaks down into two components.

[00:08:39] Speaker 03:
There's the Miranda component, where

[00:08:41] Speaker 03:
We agree that continuing to question after a defendant has asked to have a lawyer or has invoked a right to remain silent, anything after that point cannot be used.

[00:08:50] Speaker 03:
That is a Miranda violation.

[00:08:52] Speaker 03:
But prosecuting someone after they invoke Miranda happens all the time.

[00:08:56] Speaker 03:
There is nothing wrong with it.

[00:08:57] Speaker 03:
That's the reason that the remedy for a Miranda violation is suppression rather than dismissal.

[00:09:02] Speaker 03:
And this goes at least all the way back to Bordenkircher from the Supreme Court in the 70s to say- But counsel's response to that would be, as he made, this goes beyond that, right?

[00:09:11] Speaker 01:
We're talking about the threat and the retaliation from that.

[00:09:16] Speaker 01:
Let me ask you this, because I couldn't quite tell from the record.

[00:09:20] Speaker 01:
What is the relationship between Vinton and Corcoran as reflected in the record?

[00:09:24] Speaker 01:
Is this a personal relationship?

[00:09:26] Speaker 01:
Did they serve on a joint task force together?

[00:09:29] Speaker 01:
I'm trying to figure out whether the record would feel the extent of the relationship in terms of like trading cases back and forth, working together and the like.

[00:09:39] Speaker 03:
Right.

[00:09:39] Speaker 03:
So this is in the record and was produced in Discovery as well, which is that Agent Corcoran

[00:09:46] Speaker 03:
was an FBI agent who helped with LAPD cases.

[00:09:52] Speaker 03:
She did not help with all LAPD cases.

[00:09:54] Speaker 03:
It was not a joint task force.

[00:09:55] Speaker 03:
Detective Vinton is not a task force officer.

[00:09:58] Speaker 03:
There is no formal relationship between them as respect to this case.

[00:10:03] Speaker 03:
But Agent Corcoran did assist LAPD when they needed FBI assistance.

[00:10:09] Speaker 03:
I think that's the scope of the relationship.

[00:10:11] Speaker 03:
They did exchange text messages, which were also produced below and I think attached to the, either to our opposition or to the defendant's reply.

[00:10:20] Speaker 03:
They spoke about other things as well because Agent Corcoran had a desk near the LAPD, like homicide detectives, and so she was able to talk to them to provide assistance when necessary.

[00:10:33] Speaker 03:
That was not this case though.

[00:10:34] Speaker 03:
Agent Corcoran was never assigned

[00:10:36] Speaker 03:
or ever worked on the homicide investigation in this case, she said that in her declaration that she had no involvement in this homicide investigation.

[00:10:44] Speaker 03:
And so she knew Detective Vinton had previously told the LAPD officers in general that she could take a 922G if they had an appropriate case.

[00:10:53] Speaker 03:
And that's how this case came to her, was that she had told them in general that if they thought there was an appropriate case, she could take one.

[00:11:00] Speaker 03:
But Detective Vinton was not the officer who made the initial arrest.

[00:11:03] Speaker 03:
That was a month and a half earlier.

[00:11:06] Speaker 03:
And so when Detective Vinton told her about it, the actual case file, the records, those were all things that were prepared by the officers who made the arrest a month and a half before Detective Vinton ever interrogated Ms.

[00:11:19] Speaker 03:
Ford.

[00:11:20] Speaker 03:
And so when Agent Corcoran is then bringing the case, investigating the case, what she's looking at for the 922G, which ended a month and a half before

[00:11:28] Speaker 03:
I think the issue here is that if

[00:11:47] Speaker 03:
is a due process violation that swallows the Miranda suppression rule whole because what defendant is suggesting here is by prosecuting the reason they prosecuted was because she invoked but that's going to be the issue with many Miranda violations and so if you require dismissal after continuing to question all of those cases that talk about suppression

[00:12:10] Speaker 03:
have to be wrong.

[00:12:11] Speaker 03:
And that can't be.

[00:12:12] Speaker 03:
The Supreme Court has not gone remotely that far.

[00:12:15] Speaker 03:
And particularly in light of the Vega-Viteko notion that Miranda on its own is not a separate constitutional violation.

[00:12:22] Speaker 03:
It is a prophylactic.

[00:12:24] Speaker 03:
And in this case, the defendant never actually said anything.

[00:12:26] Speaker 03:
We're talking about an interrogation that lasted 10 minutes, more or less.

[00:12:30] Speaker 03:
I think it was 11 and a half, 12.

[00:12:31] Speaker 03:
The recording is only 15.

[00:12:33] Speaker 03:
And it starts with a bunch of silence and ends with silence.

[00:12:36] Speaker 03:
It's a short interview.

[00:12:39] Speaker 03:
Ms.

[00:12:39] Speaker 03:
Ford never says anything at all, really, other than that she wants a lawyer.

[00:12:44] Speaker 03:
There's not any incriminating information said.

[00:12:48] Speaker 03:
And if you listen to the recording, Detective Vinton doesn't actually ask her about herself.

[00:12:52] Speaker 03:
And this was another point we made in the briefing, which is that the questions were about other people.

[00:12:57] Speaker 03:
Even Miranda, even the Fifth Amendment, does not protect

[00:13:01] Speaker 03:
incriminating statements as to other people.

[00:13:03] Speaker 03:
You can be compelled to give statements about other people.

[00:13:09] Speaker 02:
The problem is, I understand it is that, and then said, if you don't cooperate, he violated her Miranda right, and then said, and if you don't cooperate, I'm going to elevate this, and they'll be prosecuted federally, which will be much worse for you, or words to that effect, which seems to be different than a mirror and a violation.

[00:13:31] Speaker 03:
It's different from a Miranda violation, but it's no different from Lopez, where an officer says, cooperate or else.

[00:13:38] Speaker 03:
And this court has said that that is perfectly acceptable.

[00:13:41] Speaker 03:
And I think that there is always at least some implicit request of, talk to us, and we will help you.

[00:13:50] Speaker 03:
Talk to us or else is part of the interrogation that happens when police officers are talking to a defendant about a criminal violation that

[00:14:00] Speaker 03:
The only motivation for a defendant to talk is to benefit them if they've already committed a crime.

[00:14:06] Speaker 03:
And so I think that that or else is part of the nature of a conversation between police and defendants who've been arrested.

[00:14:16] Speaker 01:
Right, but it can't be that every Miranda violation, the only remedy is suppression, right?

[00:14:20] Speaker 01:
Because you wouldn't have.

[00:14:22] Speaker 01:
the outrageous government conduct type of motions.

[00:14:25] Speaker 01:
That may not be the facts of this case, but we need to weigh each case on its own facts.

[00:14:30] Speaker 03:
Right.

[00:14:31] Speaker 03:
Each case on its own facts.

[00:14:32] Speaker 03:
And I think one of the illuminating components of this is the court has talked about different categories of outrageous conduct that can warrant dismissal.

[00:14:43] Speaker 03:
There's no way to have a single universe of outrageous conduct because you never know what could happen in the future.

[00:14:48] Speaker 03:
But the categories that have been talked about are physical or psychological coercion and when the government agents direct the entire enterprise from the get-go.

[00:14:57] Speaker 03:
And I could see a Miranda violation could certainly be psychological or physical coercion if it extends for a very long time.

[00:15:06] Speaker 03:
I think we cited a brief in our case where the officer threatens the wrath of God.

[00:15:11] Speaker 03:
And the remedy was suppression.

[00:15:13] Speaker 03:
And this court subsequently affirmed the conviction of 400-some-odd-month sentence that if it is sufficiently coercive, yes, a Miranda violation could absolutely be outrageous conduct.

[00:15:25] Speaker 03:
But again, this was a case where

[00:15:27] Speaker 03:
The interview lasted about 10 minutes.

[00:15:29] Speaker 03:
Ms.

[00:15:30] Speaker 03:
Ford never had any difficulty saying she didn't want to talk.

[00:15:33] Speaker 03:
All she said was that she didn't want to talk.

[00:15:35] Speaker 03:
She never said anything incriminating.

[00:15:37] Speaker 03:
There was no coercive component to this interrogation.

[00:15:41] Speaker 03:
And so to the extent there's a Miranda violation, there's no coercion in the Miranda violation.

[00:15:50] Speaker 02:
Do you want to address the implications of Duarte and Rahimi?

[00:15:54] Speaker 03:
Yes, Your Honor.

[00:15:55] Speaker 03:
I think the easiest and most straightforward way to handle this case would be to look at Duarte.

[00:16:03] Speaker 03:
And of course, that en banc situation is still pending.

[00:16:06] Speaker 03:
but to look at Duarte and say that it expressly deals with nonviolent felons.

[00:16:11] Speaker 03:
Duarte is an as-applied challenge case dealing with nonviolent felons.

[00:16:16] Speaker 03:
And in this case, we have a defendant with a robbery conviction, a burglary conviction, a juvenile robbery adjudication.

[00:16:24] Speaker 03:
She's a violent felon.

[00:16:25] Speaker 03:
And so Duarte would not extend to this case.

[00:16:28] Speaker 03:
And so on the as-applied portion, the as-applied portion was not made below.

[00:16:32] Speaker 03:
So that's to be reviewed.

[00:16:35] Speaker 03:
for plain error.

[00:16:36] Speaker 03:
There's no case anywhere that says that violent felons can have firearms, and so that's dispositive on the plain error portion.

[00:16:45] Speaker 03:
On the pure legal question, the de novo question of whether 922-G is facially unconstitutional, I think Rahimi is sort of dispositive on this.

[00:16:58] Speaker 03:
It says that

[00:17:00] Speaker 03:
And I'm quoting prohibitions like those on the possession of firearms by felons are presumptively lawful.

[00:17:05] Speaker 03:
I don't see how this court can get around that statement by Rahimi at this point.

[00:17:13] Speaker 03:
Perhaps future developments by the Supreme Court will address it.

[00:17:16] Speaker 03:
They will surely take up a 922-G1 case in the near future.

[00:17:19] Speaker 03:
But at this point,

[00:17:21] Speaker 03:
prohibitions on the possession of firearms by felons are presumptively lawful.

[00:17:27] Speaker 03:
And I know we noted that that's contradictory to Duarte's commentary.

[00:17:32] Speaker 03:
The way that it overruled Vongshei was to say that that language from Heller is no longer valid.

[00:17:38] Speaker 03:
I think Rahimi undercuts that severely.

[00:17:40] Speaker 03:
But the simple answer in this case is, she's a violent felon and Duarte does not apply to her.

[00:17:48] Speaker 03:
Unless the court has further questions,

[00:17:50] Speaker 03:
I would be happy to submit.

[00:17:52] Speaker 02:
Thank you.

[00:18:08] Speaker 00:
In the couple of minutes I have left, I just want to clarify a few things from the record based on the government's arguments.

[00:18:15] Speaker 00:
First, I'd like to address Judge Wynn's question about the relationship between Detective Vinton and Agent Corcoran and the federal government's involvement, her involvement specifically, in the murder investigation, because the government says she was never involved at all in the homicide investigation, but she was.

[00:18:33] Speaker 00:
So when the government, when Agent Corcoran arrested Miss Ford, it was for the express purpose of providing Detective Vinton another opportunity to interview her again, as her text message said, to interview her again on the unrelated homicide investigation.

[00:18:51] Speaker 00:
She took, Agent Corcoran took Ms.

[00:18:53] Speaker 00:
Ford after her arrest to the Van Nuys police station.

[00:18:56] Speaker 00:
Detective Vinton works in Stottel, which is 12 miles away, for him to interview her again.

[00:19:02] Speaker 00:
She also, Agent Corcoran, also offered to interview Ms.

[00:19:04] Speaker 00:
Ford while she was a captive audience in the squad car.

[00:19:07] Speaker 00:
Then after the arrest, after this interrogation, which was not recorded per FBI policy,

[00:19:14] Speaker 00:
The government sought a search, obtained a search warrant to search Ms.

[00:19:18] Speaker 00:
Ford's phone, which was relevant to the homicide investigation, but not the gun charges here.

[00:19:22] Speaker 00:
And then the federal prosecutors asked for Ms.

[00:19:25] Speaker 00:
Ford's passcode for the phone and asked if she would be willing to cooperate in the homicide investigation.

[00:19:31] Speaker 00:
So the federal gun charges here never had anything to do with the federal gun charges here.

[00:19:36] Speaker 00:
They were all related to the state homicide investigation.

[00:19:39] Speaker 00:
We keep talking about Miranda violation and prosecutions.

[00:19:42] Speaker 00:
This case is not a vindictive prosecution or selective prosecution case.

[00:19:47] Speaker 00:
It's outrageous misconduct, dismissal under the court's inherent supervisory authority for Detective Vinton's long history of misconduct.

[00:19:55] Speaker 00:
The type of person who would do what Detective Vinton did here is someone who's done it before.

[00:19:59] Speaker 00:
He was implicated in the 1990s Rampart scandal and has been the subject of 11 lawsuits.

[00:20:06] Speaker 00:
has drawn a rare public rebuke from prosecutors for falsifying evidence, perjuring himself.

[00:20:12] Speaker 00:
So this is the type of person who exacted retaliation on Miss Ford.

[00:20:18] Speaker 00:
And finally, regarding Duarte and Rahimi and their effect on this case, the government appears to confuse step two of the Bruin analysis when he talks about violent felons and nonviolent felons and that

[00:20:32] Speaker 00:
disarmament laws are presumptively lawful.

[00:20:35] Speaker 00:
That's a step two analysis.

[00:20:36] Speaker 00:
We're talking about step one, and the district court's error was clear at step one when it found that the Second Amendment didn't apply at all to prior felons, but we know now that it does.

[00:20:46] Speaker 00:
So we ask that this court reverse and vacate Ms.

[00:20:49] Speaker 00:
Ford's conviction, dismiss the indictment, or alternatively reverse for further proceedings.

[00:20:55] Speaker 00:
Thank you, Your Honors.

[00:20:56] Speaker 02:
Thank both sides for their argument.

[00:20:58] Speaker 02:
The case of United States versus Ford is submitted and will