[00:00:08] Speaker 03:
Good morning, counsel.

[00:00:10] Speaker 03:
Good morning, your honors.

[00:00:11] Speaker 03:
My name is Elizabeth Kruszek.

[00:00:13] Speaker 03:
I represent Damien Wathagoma.

[00:00:16] Speaker 03:
I will watch the clock and attempt to reserve approximately three minutes for rebuttal.

[00:00:20] Speaker 03:
Thank you, counsel.

[00:00:21] Speaker 03:
Thank you.

[00:00:22] Speaker 03:
The district court here committed multiple errors that both individually and combined require reversal of Mr. Wathagoma's conviction and remand for a new trial.

[00:00:33] Speaker 03:
Running through this case, the thread I think that holds everything together is Mr. Wathagoma's interrogation and purported confession that impacts all the issues that I've raised with the exception of the supervised release one.

[00:00:48] Speaker 03:
And so with that in mind, my plan is to talk first about the voluntariness issue and then the judge's response to the jury's question because those both implicate the purported confession directly and then move on to other issues, although I am happy to revise my plan at any time if your questions indicate that I should.

[00:01:10] Speaker 03:
So I'll start with the voluntariness.

[00:01:14] Speaker 03:
This is a case where there are multiple coercive techniques that were used to overbear Mr. Wathagoma's will.

[00:01:23] Speaker 03:
And I would point you to there is a brief section of his interrogation where you can see all of these techniques coming together from ER 492 to ER 501, where there are misrepresentations about the strength of the evidence.

[00:01:39] Speaker 02:
Also, aren't police officers allowed to misrepresent

[00:01:44] Speaker 02:
evidence when they're questioning?

[00:01:45] Speaker 03:
So the case law is that misrepresentations do not necessarily equal coercion, and I'm not disputing that.

[00:01:52] Speaker 03:
But if you look at a case like Crawford, it talks about misrepresentations.

[00:01:57] Speaker 03:
There's a fine line between a misrepresentation and coercion.

[00:02:00] Speaker 03:
You can lie, but you can't coerce.

[00:02:02] Speaker 03:
And so the question is kind of how much daylight is between that.

[00:02:05] Speaker 03:
In your view, how many misrepresentations were there

[00:02:10] Speaker 03:
that were made by the police.

[00:02:12] Speaker 03:
There were two significant ones, and I can identify exactly what they were for you.

[00:02:16] Speaker 03:
First was that Detective Gones said that Mr. Wathagoma's grandmother saw him with his pants down.

[00:02:24] Speaker 02:
And he admitted that he was mistaken on that, but someone else had said that.

[00:02:28] Speaker 02:
So is there the misrepresentation if it's not intentionally done?

[00:02:35] Speaker 03:
Yes, I think it is, because for, and let me talk about why, because the question is the impact on Mr. Wathagoma, okay?

[00:02:42] Speaker 03:
So what happened is Detective Gana starts out and he says, Becky, your grandmother saw you

[00:02:48] Speaker 03:
with your pants down, which we all know was not accurate.

[00:02:52] Speaker 03:
And then he says, AC also says your pants were down.

[00:02:55] Speaker 03:
So it's not just a substitute.

[00:02:56] Speaker 03:
It's the two people who were awake and were seeing things at the time.

[00:03:01] Speaker 03:
So basically, Grandma Becky is not going to be a witness for you, even though that's not what she said.

[00:03:06] Speaker 03:
And AC is not going to be a witness for you.

[00:03:09] Speaker 02:
Did AC say his pants were down?

[00:03:11] Speaker 02:
She did.

[00:03:11] Speaker 02:
OK, so that was not a misrepresentation.

[00:03:13] Speaker 03:
No, the misrepresentation is that Grandma Becky said his pants were down.

[00:03:18] Speaker 03:
when that's not what Grandma Becky said.

[00:03:19] Speaker 03:
So that means Grandma Becky is not going to help you.

[00:03:22] Speaker 02:
And then he makes a... Did he think Grandma Becky was going to help him otherwise?

[00:03:30] Speaker 02:
Because hadn't he been told to leave the home and so would he have been surprised that Grandma Becky wasn't going to help him after she was the one who initially accused him, right?

[00:03:40] Speaker 02:
Correct?

[00:03:41] Speaker 02:
And told everyone else what he was doing.

[00:03:45] Speaker 03:
Well, I think there's a significant dispute about what he was doing.

[00:03:51] Speaker 02:
Well, but that's not the question.

[00:03:52] Speaker 02:
The question is his perception of what Grandma Becky would do in his defense.

[00:03:57] Speaker 02:
And she was the one who sounded the alarm, so to speak, in terms of what he was doing at AC.

[00:04:04] Speaker 02:
So why would the fact that she said something have an effect on him, her not being in support of him, when she already wasn't in support of him?

[00:04:14] Speaker 03:
Well, she actually was in support of him because what she said to Detective Ganas during a body cam interview that I submitted was that he didn't touch her and he didn't have his pants down.

[00:04:25] Speaker 03:
So what she would have admitted to having seen when she walked into the living room was Anais with her pants down and my, or excuse me, the AC with her pants down and the Mr. Wathagoma behind her not touching her

[00:04:43] Speaker 03:
with his pants up.

[00:04:44] Speaker 03:
That's not a crime.

[00:04:45] Speaker 03:
That's not what she told the other members of the family, though.

[00:04:47] Speaker 03:
We don't know.

[00:04:48] Speaker 03:
She screamed out something.

[00:04:52] Speaker 03:
That's what she said she saw, but what she told the police wasn't.

[00:04:55] Speaker 02:
But let me move on to... Well, I'm just saying, in terms of your attaching so much importance to the effect it would have on him about his grandma, the record is mixed on that.

[00:05:07] Speaker 03:
But let me move on, because there's more than just the grandma.

[00:05:13] Speaker 03:
Okay.

[00:05:14] Speaker 03:
Detective Ganas says, I spoke with, or I listened to the confrontation call with Serena and you said your pants were down, which wasn't true.

[00:05:26] Speaker 03:
So what has happened is he's now convinced Mr. Wathagoma that there's no, no one is going to say what Mr. Wathagoma has said and what his grandmother actually said to the police, which is he wasn't touching her and his pants were up.

[00:05:39] Speaker 03:
And so there's no out for him at this point.

[00:05:44] Speaker 03:
And then it is Detective Gones who says, hey, I know it's hard to admit that your penis touched her butt, but it's not like you killed her.

[00:05:55] Speaker 03:
And that's really the first time that Mr. Wathagoma has heard that particular allegation.

[00:06:01] Speaker 03:
It's Detective Gones that brings it up.

[00:06:03] Speaker 03:
And then Detective Gones says, and you said to Serena that your penis was out.

[00:06:09] Speaker 03:
And then he says, you know, the thing that's really important here after Mr. Wathagoma then hears that there's no witness that is going to assist him in his defense, the most important thing here is to confess, to get your family's forgiveness.

[00:06:24] Speaker 03:
And his family is very important to him, and he wants to come back.

[00:06:27] Speaker 03:
He had offered to actually take his life.

[00:06:29] Speaker 01:
How long did this interview go?

[00:06:30] Speaker 03:
It went for about 50 minutes.

[00:06:31] Speaker 01:
50 minutes?

[00:06:34] Speaker 01:
And where did it take place?

[00:06:35] Speaker 03:
It took place at a school.

[00:06:37] Speaker 01:
Okay, so it's not like he was interrogated for hours in the middle of the night in the station house.

[00:06:43] Speaker 01:
No.

[00:06:43] Speaker 01:
This is at his place of employment?

[00:06:47] Speaker 03:
Which I would point out, Your Honor, is an elementary school, and that was another technique that was used.

[00:06:51] Speaker 01:
And he chose the room that it was where the interview took place, correct?

[00:06:55] Speaker 01:
I believe that he did lead them to an empty multi-purpose room.

[00:06:58] Speaker 01:
And so, and then, you know, it's only a 50-minute conversation.

[00:07:03] Speaker 01:
Yes, they use some standard police techniques to overplay the evidence and to try and minimize the guilt to try and open up the conscience.

[00:07:12] Speaker 01:
I don't see how under our case law that amounts to involuntariness.

[00:07:19] Speaker 03:
I would say that it does, Your Honor.

[00:07:21] Speaker 03:
I think the combination of the coercion and using the family and the nature of the misrepresentations, but if I may

[00:07:28] Speaker 03:
pivot and say that the jury also had questions about this confession.

[00:07:32] Speaker 02:
I think... Before I leave there, tell me the closest case you have in the Ninth Circuit that fits the circumstances of this case that would show involuntariness.

[00:07:43] Speaker 03:
And I acknowledge I don't have a four-square on the facts case, Your Honor.

[00:07:46] Speaker 03:
I think the sort of Tingle-McShane line of cases where you're using coercion, you're using sort of leverage of a loved one against a person, I understand that my facts are not

[00:07:57] Speaker 03:
like within, you know, spot on with that, but I think that idea and the problem with this case is that there's a combination of coercive techniques in my view that are at play.

[00:08:10] Speaker 03:
But in any event, whether the Judge Aaron is admitting the confession or not, the jury had questions about that confession and what they should do with that confession.

[00:08:22] Speaker 00:
Counsel, when you say the jury,

[00:08:23] Speaker 00:
Do you mean a juror or did I misread the record?

[00:08:26] Speaker 03:
Well, there was a jury question that was signed by juror number eight, and I suppose that's the record that we have.

[00:08:31] Speaker 03:
We know there was at least one juror who had those questions.

[00:08:34] Speaker 00:
Okay.

[00:08:34] Speaker 00:
I just want to be clear.

[00:08:36] Speaker 03:
And I think because we don't know if that was combined, if juror number eight was the foreperson who was submitting questions on behalf or not.

[00:08:42] Speaker 02:
Is juror number eight the foreperson?

[00:08:44] Speaker 03:
I don't know off the top of my head, Your Honor.

[00:08:46] Speaker 02:
This is oftentimes, if it's from the entire jury, it'll be the foreperson who

[00:08:49] Speaker 03:
but in any event there were questions and the response that the district court gave uh... was misleading and effectively ultimately defense counsel agreed to the compromise instruction response true no not true uh... there was a there was an extended discussion uh... and

[00:09:15] Speaker 03:
The defense counsel objected and said when you bring issues of evidentiary, when you say evidentiary issues that can be confusing and I think he says you should just look, you should just say look to the jury instructions and the evidence and then there's an objection.

[00:09:30] Speaker 00:
I may have misread the record.

[00:09:31] Speaker 00:
I thought that each side had a submission and the district court basically cobbled them all together and at that point there was no objection from the defense counsel.

[00:09:40] Speaker 03:
No, no, because, um... I'll ask the government what their view is.

[00:09:45] Speaker 03:
Yeah, yeah.

[00:09:46] Speaker 03:
Defense counsel did preserve the objection, and I don't think the government disagrees with me on that.

[00:09:50] Speaker 03:
We may disagree about what we actually propose, but we don't disagree about that, I don't think.

[00:09:55] Speaker 02:
Do you disagree with the Court's characterization of the questions as those seeking to resolve evidentiary issues?

[00:10:04] Speaker 03:
I do.

[00:10:04] Speaker 03:
And the reason for that is

[00:10:09] Speaker 03:
First of all, I think that the district court was trying to say admissibility of evidence is the best that I can figure out.

[00:10:16] Speaker 03:
But I don't think that these questions, in the context of the way that the case was litigated, go towards evidentiary issues that are beyond the purview of the jury.

[00:10:25] Speaker 03:
They asked questions that went directly to the circumstances of Mr. Wathagoma's interrogation.

[00:10:30] Speaker 03:
They did ask whether that interrogation is legal.

[00:10:33] Speaker 03:
In context, what that means is, should we be hearing that confession?

[00:10:36] Speaker 03:
Is there something wrong with that confession?

[00:10:38] Speaker 02:
And the jury instruction, they get- They ask questions about why was he interviewed, where he was interviewed, and- Correct.

[00:10:45] Speaker 03:
That goes towards the circumstances of the confession, which are directly related to the jury instruction on voluntariness.

[00:10:51] Speaker 02:
What should the court have said?

[00:10:53] Speaker 02:
in response to a question as to why was he interviewed, where he was interviewed.

[00:10:58] Speaker 02:
What should the court have said in response to that question?

[00:11:01] Speaker 03:
So I think, and as I said in my brief, I have not taken the position that the judge should have directly answered that question.

[00:11:08] Speaker 03:
I think for that particular question, he said you have to rely on your own memory for what the facts of the case are.

[00:11:16] Speaker 03:
It's your duty to determine what the facts of the case are.

[00:11:19] Speaker 03:
If, if there's a larger question of what could the court have said that would not have been misleading to all of these questions, I think the court could have said, um, you know, you must rely on your own memory for the facts and you must look to the jury instructions.

[00:11:33] Speaker 02:
I think the real error for the court to not say that.

[00:11:37] Speaker 03:
Yes, it was because what the court also said is you are to rely or you are not here to decide.

[00:11:44] Speaker 03:
evidentiary issues.

[00:11:45] Speaker 02:
What was wrong with the court saying that?

[00:11:46] Speaker 02:
What was wrong with the court telling the jury that it's not the jury's function to decide evidentiary issues?

[00:11:52] Speaker 03:
Because it's very confusing.

[00:11:55] Speaker 03:
The jury is supposed to decide the weight of the evidence.

[00:11:58] Speaker 03:
The judge gets to decide the admissibility, but the jury decides the weight.

[00:12:02] Speaker 03:
And when the judge says you're not here to decide evidentiary issues, that strongly suggests that

[00:12:08] Speaker 03:
Nothing that the jurors were interested in with relation to this confession was relevant.

[00:12:13] Speaker 03:
And that is not true.

[00:12:14] Speaker 01:
The jurors question was doing two things.

[00:12:19] Speaker 01:
One, it was asking for facts that were not in the trial record and asking for the answers to those facts.

[00:12:27] Speaker 01:
And then second, it was asking whether or not the actions were lawful, which goes to issues like

[00:12:36] Speaker 01:
whether it was involuntary and should have been admitted.

[00:12:39] Speaker 01:
And it's not the role of the jury to expand the factual record.

[00:12:44] Speaker 01:
It's not the role of the jury to decide the lawfulness of the evidence that's been presented to them.

[00:12:49] Speaker 01:
So I don't see why, you know, the answer that says stay in your lane basically is inappropriate.

[00:12:56] Speaker 03:
because it directed the jury outside of its lane would be my response to that because the jury, it negates this instruction.

[00:13:05] Speaker 03:
There's a specific instruction which defense counsel pointed out about voluntariness.

[00:13:09] Speaker 01:
Voluntariness may be a pretrial evidentiary issue, but there's also part for the jury to... But that instruction doesn't say that the jury should be speculating about things that are not in the record.

[00:13:19] Speaker 01:
No, but it does... It should be looking at all the circumstances in the record and not thinking about

[00:13:24] Speaker 01:
other things they'd like to know that aren't there.

[00:13:27] Speaker 03:
Right.

[00:13:27] Speaker 03:
But in context, when you say you are not here to decide evidentiary issues, what that conveys is this is not a question that is within your purview.

[00:13:35] Speaker 03:
And the fact is there are certain aspects of that issue that are within the jury's purview.

[00:13:40] Speaker 03:
I see I am down to a low amount of time.

[00:13:43] Speaker 03:
So if I may, I'd like to reserve the remainder.

[00:13:57] Speaker 04:
Good morning, Your Honors.

[00:13:58] Speaker 04:
May it please the Court, Amanda Tesarek on behalf of the United States.

[00:14:02] Speaker 04:
The jury's verdict in this case should be affirmed, because all of appellant's arguments attacking the validity of that verdict are not errors, and they are certainly not reversible errors.

[00:14:16] Speaker 04:
I'd like to start with voluntariness, unless the Court would like me to address other issues.

[00:14:20] Speaker 04:
I'm happy to do so.

[00:14:21] Speaker 04:
But on the issue of voluntariness, this was a voluntary confession.

[00:14:27] Speaker 04:
Mr. Watagoma, the defendant, was approached at his place of work.

[00:14:31] Speaker 04:
As your honors have already noted, he wasn't in a police station.

[00:14:34] Speaker 04:
He wasn't restrained in any way.

[00:14:36] Speaker 04:
He was told, one of the very first things he was told was that he was not under arrest.

[00:14:40] Speaker 04:
And he was told multiple times during the interview that he would not be arrested that day.

[00:14:46] Speaker 04:
He had graduated from high school with honors.

[00:14:48] Speaker 04:
He had finished some college.

[00:14:52] Speaker 04:
And so the,

[00:14:53] Speaker 04:
As again, Your Honors have also noted that this was an interview that was under an hour long.

[00:14:59] Speaker 04:
This was not an interview that overbore the defendant's will.

[00:15:04] Speaker 04:
Now, Pellant has argued that it did because there were misrepresentations made by law enforcement.

[00:15:10] Speaker 04:
Your Honors have already recognized that in this circuit, it is recognized that misrepresentations by law enforcement do not negate the voluntariness of a confession.

[00:15:21] Speaker 04:
Officers are allowed to overstate evidence they have.

[00:15:24] Speaker 04:
They're allowed to engage in trickery, deceit, misrepresentations.

[00:15:27] Speaker 04:
And in this case, the misrepresentations, as the officer testified at trial, was largely inadvertent.

[00:15:34] Speaker 04:
He mistakenly attributed a statement made by one witness to a different witness.

[00:15:39] Speaker 04:
And as Your Honor has recognized,

[00:15:42] Speaker 04:
Grandma Becky was not going to testify on behalf of Mr. Watagoma, on behalf of the defendant during this case.

[00:15:50] Speaker 04:
She was the one who saw this happening.

[00:15:52] Speaker 04:
She was the one who stopped this.

[00:15:53] Speaker 04:
She was the one who yelled to the living room that the defendant is humping AC, that he's trying to have sex with her granddaughter.

[00:16:02] Speaker 04:
She was the one who stopped this entire thing from happening.

[00:16:05] Speaker 04:
The argument that somehow knowing that Grandma Becky wasn't going to be in his corner, she wasn't going to be in his corner to begin with.

[00:16:13] Speaker 04:
Furthermore, there's this argument about using family as some sort of a psychological tactic to get someone to confess.

[00:16:21] Speaker 04:
And the appellant has cited to Tingle for that proposition.

[00:16:24] Speaker 04:
But the facts of Tingle are completely different from the facts in this case.

[00:16:28] Speaker 04:
In Tingle, you had a mother and her two-year-old child.

[00:16:32] Speaker 04:
And law enforcement officers told her,

[00:16:34] Speaker 04:
you're not going to see your child for a long time unless you start coming clean.

[00:16:40] Speaker 04:
And what the court recognized in that case is that the relationship between a parent and certainly a minor child, or maybe even just a child in general, embodies a primordial and fundamental value in society.

[00:16:52] Speaker 04:
And the court recognized a similar sort of situation in McShane, although in McShane they held that the confession was still voluntary, but the idea of significant others.

[00:17:01] Speaker 04:
boyfriend, girlfriend, maybe spouses.

[00:17:03] Speaker 04:
I'm sure we can think of relationships that are so close where you're providing for someone, you're trying to protect someone that it could overbear your will and you might confess to something that you actually didn't do.

[00:17:15] Speaker 04:
In this case, the defendant stopped by this family's house at most of his own admission, at most twice a month.

[00:17:23] Speaker 04:
They certainly knew him.

[00:17:24] Speaker 04:
They were familiar with him.

[00:17:25] Speaker 04:
They were even friendly with him.

[00:17:26] Speaker 04:
But this isn't someone who provided for them in any way.

[00:17:29] Speaker 04:
It's not someone who took care of them in any way.

[00:17:31] Speaker 04:
They didn't depend on him for anything, and he didn't depend on them.

[00:17:35] Speaker 04:
And so the idea that this relationship could be used to overbear his will is just one that strains Tingle and sort of strains credulity.

[00:17:44] Speaker 04:
Furthermore, the difference between Tingle and McShane, in McShane,

[00:17:47] Speaker 04:
The court recognized that one of the reasons why that confession was held to be voluntary is because the girlfriend who was brought to the police precinct where the boyfriend was being questioned, there was a legitimate purpose in doing so.

[00:18:01] Speaker 04:
The girlfriend was a material witness in the case.

[00:18:04] Speaker 04:
The police needed to speak with her.

[00:18:06] Speaker 04:
They didn't bring her in just for the purposes of coercing a confession out of the defendant.

[00:18:13] Speaker 04:
In Tingle, they recognized that there was really no reason to bring up the two-year-old child of the defendant except for to coerce the confession for a bank robbery.

[00:18:25] Speaker 04:
In this case, the victim in the case is one of defendant's family members.

[00:18:30] Speaker 04:
It's his niece.

[00:18:32] Speaker 04:
These family members were also witnesses.

[00:18:35] Speaker 04:
So in talking about the investigation and talking and interviewing the defendant, family members are necessarily going to come up during that conversation.

[00:18:44] Speaker 04:
For those reasons, this confession was voluntary.

[00:18:47] Speaker 04:
And unless the court has any additional questions on the issue of voluntariness, I'd also like to turn to the other issue that was raised by appellants during their oral argument of the jury instruction.

[00:19:01] Speaker 04:
The appellant, I think, essentially is getting at sort of what is around the periphery of the questions that are asked.

[00:19:11] Speaker 04:
that they implicate the confession, but the problem is we have to look at the questions that were actually asked.

[00:19:18] Speaker 04:
They didn't ask about can we consider the circumstances of the investigation.

[00:19:22] Speaker 04:
The questions that specifically were asked were was the confession legal?

[00:19:28] Speaker 04:
Was the defendant told what to expect?

[00:19:30] Speaker 04:
That's a factual question.

[00:19:32] Speaker 04:
Why did they interview him at his work?

[00:19:34] Speaker 04:
Another factual question.

[00:19:36] Speaker 04:
Should he have been given his Miranda rights?

[00:19:38] Speaker 04:
A legal question.

[00:19:39] Speaker 04:
Could this be grounds for appeal?

[00:19:41] Speaker 04:
Clearly it was grounds for appeal, as we now know, but it was not a question within the jury's purview.

[00:19:46] Speaker 04:
It was something outside of what they were there to decide, which was guilt or innocence of the defendant.

[00:19:55] Speaker 04:
And so in fashioning response to those questions, the judge had a responsibility to tell them, you're going down the wrong path.

[00:20:01] Speaker 04:
You're going down some rabbit holes and steer them back on track.

[00:20:05] Speaker 04:
And that's exactly what the judge did.

[00:20:07] Speaker 04:
He told them you're not to consider evidentiary issues.

[00:20:10] Speaker 04:
Now, to the extent that that was in any way unclear, and I'm not conceding that it was, but if it was, he then immediately followed it up with you are to consider

[00:20:21] Speaker 04:
the evidence presented, and the jury instructions.

[00:20:24] Speaker 04:
And the jury instructions explain what the jury can consider, what is proper for them to consider, the circumstances of the statements made by the defendant.

[00:20:33] Speaker 04:
Additionally, there are jury instructions regarding you must rely on your own memory.

[00:20:38] Speaker 04:
And so these factual questions, you have to rely on whatever you heard.

[00:20:42] Speaker 04:
So directing them back to the jury instructions as a whole should answer all of the questions that are in

[00:20:50] Speaker 04:
the questions that they submitted to the court.

[00:20:55] Speaker 04:
This court is to presume that the jury understands the answers, the judge's answers to its questions.

[00:21:05] Speaker 04:
And that's not Ninth Circuit case law, that's United States Supreme Court case law.

[00:21:07] Speaker 04:
The United States Supreme Court has said that we presume that a jury understands the answer that a judge gives to the jury's questions.

[00:21:18] Speaker 04:
And here there were no follow-up questions.

[00:21:20] Speaker 04:
The jury did deliberate for a period of time after they received the answers to their question and then ultimately returned with a verdict of not guilty.

[00:21:27] Speaker 04:
And so from that record, we are to presume that they understood the answer that they were given from the judge.

[00:21:35] Speaker 04:
I would like to address briefly the question regarding supervised release conditions.

[00:21:41] Speaker 04:
I think that your honors

[00:21:45] Speaker 04:
you have a lot of discretion over what you do in remanding this case.

[00:21:49] Speaker 04:
Appellant and I both agree.

[00:21:50] Speaker 02:
I don't have a lot of discretion because our law says that the oral pronouncement controls.

[00:21:56] Speaker 02:
And so if there's a discrepancy between the oral pronouncement and the written judgment, what we have done traditionally has been to remand for the written judgment to conform to the oral pronouncement.

[00:22:12] Speaker 04:
Certainly, your honor, and you could do that in this case, the government's position.

[00:22:15] Speaker 04:
Why would we do otherwise?

[00:22:17] Speaker 04:
So the reason to do otherwise is because this case, or the issue of Montoya, that case changed sort of the framework of these supervised release conditions, because prior to Montoya,

[00:22:30] Speaker 04:
if conditions were included in the pre-sentence report, it was sort of assumed that the defendant was on notice.

[00:22:38] Speaker 04:
And then Montoya said, no, this is part of the sentence.

[00:22:42] Speaker 04:
It has to be pronounced orally in court.

[00:22:44] Speaker 02:
Right.

[00:22:45] Speaker 04:
Right.

[00:22:46] Speaker 04:
This case was sentenced, I believe, prior to Montoya.

[00:22:50] Speaker 04:
And so Montoya, because those conditions were not imposed, the court didn't remand for conforming the

[00:22:59] Speaker 04:
judgment and conviction to the oral pronouncement.

[00:23:02] Speaker 04:
It remanded for the reimposition of the conditions.

[00:23:06] Speaker 02:
Right.

[00:23:06] Speaker 02:
But the written judgment in this case included conditions that were given orally but expanded on them.

[00:23:15] Speaker 02:
And so that's a different situation.

[00:23:17] Speaker 02:
So why should we allow the district court to expand on conditions that's already been imposed?

[00:23:23] Speaker 02:
Wouldn't that be like a resentencing almost?

[00:23:29] Speaker 04:
Well, Your Honor, I think there are two answers that I would give to that.

[00:23:33] Speaker 04:
The first is that in Montoya, there were conditions that were not included.

[00:23:40] Speaker 04:
In this case, there are conditions that are included, but there are parts omitted.

[00:23:43] Speaker 04:
But I don't necessarily know that the court has to draw some sort of a line between how much of a condition has to be omitted.

[00:23:50] Speaker 04:
Is it the entire condition?

[00:23:52] Speaker 04:
Then can you remand?

[00:23:53] Speaker 04:
Is it an entire group of conditions?

[00:23:55] Speaker 04:
Then can you remand?

[00:23:56] Speaker 02:
Is it certain parts?

[00:23:57] Speaker 02:
Well, but the case we have here is

[00:23:58] Speaker 02:
Conditions were pronounced orally.

[00:24:02] Speaker 02:
And then the written judgment expanded on them.

[00:24:05] Speaker 02:
And so isn't the defendant entitled to have the conditions that were orally pronounced and that he has to adhere to be the ones that are set forth?

[00:24:16] Speaker 02:
And because if it goes back, then the conditions are being expanded.

[00:24:21] Speaker 04:
I, well, I think that the conditions, if you look at the parts that are omitted, I think there are some parts of the conditions that are omitted that actually clarify what the condition means and maybe are even protective to, I think part of the condition that was omitted was that he has to tell other people that the subject or the premises is subject to search.

[00:24:41] Speaker 04:
That's something that might protect other people.

[00:24:43] Speaker 01:
Where did that extra language come from?

[00:24:44] Speaker 01:
Does it come from like a standard form or anything or are,

[00:24:50] Speaker 01:
Was any of the stuff that was added in the written and not in the oral mandatory?

[00:24:56] Speaker 04:
It was not mandatory, Your Honor.

[00:24:57] Speaker 01:
None of it was mandatory.

[00:24:58] Speaker 04:
None of it was mandatory.

[00:24:59] Speaker 04:
They are special conditions, and they're included in the pre-sentencing report, typically, and then the judge goes through and imposes... Do the pre-sentence report have as a recommended condition the full language that was put into the written judgment?

[00:25:13] Speaker 04:
Yes your honor and prior to Montoya that that kind of shorthand that likely would have been enough and then Montoya was decided and said that's not enough.

[00:25:23] Speaker 04:
I think that your honors have the power to send it back to allow the district court to.

[00:25:29] Speaker 04:
reimpose these conditions as they were set out in the pre-sentence report.

[00:25:33] Speaker 04:
And I think it might be prudent to do so here because of that issue that Montoya, which sort of changed the framework of how judges impose these conditions, was decided after the case was sentenced.

[00:25:43] Speaker 02:
We'll hear from the defendant on that point.

[00:25:45] Speaker 04:
Yes, Your Honor.

[00:25:47] Speaker 04:
With that, unless the court has any further questions, we would ask that this court affirm the jury's verdict and remand for reimposition of two of the special conditions.

[00:25:58] Speaker 04:
Thank you, Your Honor.

[00:26:01] Speaker 02:
Council, could you start with your position on the remand of the supervised release conditions?

[00:26:08] Speaker 03:
Yes, ma'am.

[00:26:10] Speaker 03:
My position is that this court has very clear case law regarding the relief for the claim that I made.

[00:26:17] Speaker 03:
Montoya is a different situation because those are the set of standard conditions that show up in the PSR and that were not read orally.

[00:26:25] Speaker 03:
These conditions, and there's two conditions and there's portions of the conditions that the judge did not read into the record.

[00:26:33] Speaker 03:
These conditions are special conditions that had to be read orally.

[00:26:37] Speaker 03:
They were read orally.

[00:26:39] Speaker 03:
And the judge omitted certain parts of them.

[00:26:41] Speaker 03:
And so our position is simply that Montoya is not applicable here.

[00:26:44] Speaker 01:
But Montoya, over my dissent, held that you can't use shorthands.

[00:26:51] Speaker 01:
And it was a very common practice, pre-Montoya,

[00:26:54] Speaker 01:
for district judges not to sit there and read all the verbiage that's in the listed conditions that are in the pre-sentence report, but to tick through the list more generally.

[00:27:05] Speaker 01:
And so why, given that this was pre-Montoya and the judge may have been doing a shorthand to what's in the pre-sentence report, why shouldn't we send it back to say, well, what did you really mean now that you can't use any shorthands?

[00:27:21] Speaker 01:
You've got to say it word by word.

[00:27:24] Speaker 03:
So because these are special conditions, shorthand wasn't allowed pre Montoya either.

[00:27:30] Speaker 03:
These are special conditions of supervision that had to be imposed on the record.

[00:27:33] Speaker 03:
And so the judge's decision to read them in whatever manner he chose, that is what the sentence is.

[00:27:39] Speaker 03:
So my position is Montoya is not really in play here, because it's a different circumstance.

[00:27:43] Speaker 03:
The judge always would have had to read these conditions.

[00:27:46] Speaker 03:
And he did.

[00:27:46] Speaker 03:
He did read most of them.

[00:27:49] Speaker 03:
He left out certain parts.

[00:27:50] Speaker 03:
And so our position is simply that the parts that he did not

[00:27:53] Speaker 03:
orally pronounced are not part of the judgment.

[00:27:55] Speaker 02:
So, counsel, your position is Montoya is limited to standard conditions and not special conditions.

[00:28:01] Speaker 03:
Correct, because the law didn't change as to special conditions.

[00:28:04] Speaker 03:
Montoya doesn't change that law.

[00:28:06] Speaker 02:
All right.

[00:28:06] Speaker 02:
Thank you, counsel.

[00:28:06] Speaker 02:
I would just... I know I'm almost out of time, but I do want... Well, you're over time, but I asked you a question, so just... I'll complete your thought.

[00:28:15] Speaker 03:
I wanted to address one issue about the response to the jury's questions.

[00:28:21] Speaker 03:
which as you look at the questions is actually asked.

[00:28:23] Speaker 03:
I don't dispute that, but you have to look at the questions in

[00:28:27] Speaker 03:
context.

[00:28:28] Speaker 03:
The judge, and the case law in this is clear, this is not the kind of general jury instructions are fine.

[00:28:34] Speaker 03:
There are specific case law that addresses what happens when the jury asks a question at the end of a case like this, and what the judge says is extremely important because it's the last word that comes out of the judge's mouth.

[00:28:44] Speaker 03:
That case law makes it very clear that the judge has a very specific obligation to try to understand what it is the jury is asking

[00:28:52] Speaker 03:
and answer it in a way that allows.

[00:28:54] Speaker 02:
You know, the judge did that in this case, tried to understand what the jury was asking.

[00:28:58] Speaker 02:
I think he misunderstood.

[00:28:59] Speaker 02:
Most trial judges are very assiduous about that, and they try to understand what the jury is asking.

[00:29:05] Speaker 03:
Well, the judge here immediately said the jury is, these are not questions that are appropriate for the jury.

[00:29:10] Speaker 03:
And my position is that at least some of those questions were, and they implicated, circumstances and when viewed in the context.

[00:29:16] Speaker 02:
You disagree with the judge, you disagree with the way the judge

[00:29:18] Speaker 03:
I think that he too narrowly interpreted the question, Your Honor.

[00:29:22] Speaker 03:
Thank you.

[00:29:23] Speaker 02:
Thank you to both counsels.

[00:29:24] Speaker 02:
The case just argued is submitted for decision by the court.

[00:29:28] Speaker 02:
We will be in recess until 1115.