[00:00:00] Speaker 02:
The next case that we'll hear is United States versus Bunton, and this is 23-2-0-0-7.

[00:00:05] Speaker 01:
May it please the Court, JK Theodosia Johnson, on behalf of Mr. Bunton.

[00:00:24] Speaker 01:
This case is governed by Eighth Amendment Standards, and if the conditions here

[00:00:29] Speaker 01:
couldn't meet the preponderance standard, there's no way you can meet the highest standard of beyond a reasonable doubt.

[00:00:36] Speaker 03:
Well, Counsel, before you really get going, I want to look at the verdict form, because as I read your brief, you were saying that the defendant in this case was found not guilty as to AS and as to SK.

[00:00:52] Speaker 03:
And that is not what the verdict form shows.

[00:00:55] Speaker 03:
The verdict form shows that under

[00:00:58] Speaker 03:
The defendant acting under color law willfully deprived A.S.

[00:01:02] Speaker 03:
of his right to be free from deliberate indifference resulting in bodily injury.

[00:01:07] Speaker 03:
That's not a charge of guilt or innocence.

[00:01:09] Speaker 03:
That was just the answer to the question.

[00:01:11] Speaker 03:
The jury said no, he wasn't.

[00:01:13] Speaker 01:
You have to look at the jury instructions as a whole and the indictment that went back.

[00:01:17] Speaker 01:
And I think the jury instructions as a whole in the way the instruction, the verdict form ended up, it's clear that they acquitted on the other

[00:01:25] Speaker 03:
Well, it may have been clear to you, but it's sure not clear to me.

[00:01:29] Speaker 03:
I mean, there's been no objection raised in problems with the jury verdict in this.

[00:01:35] Speaker 01:
Well, the other thing is throughout the process below, everyone agreed that it was just to Mr. Kinney who got the conviction.

[00:01:45] Speaker 03:
I hate to argue, I see nothing anywhere

[00:01:50] Speaker 03:
that says that he was acquitted because he's not charged under the verdict form of those offenses.

[00:01:59] Speaker 01:
Well, in the sentencing hearing, they had made an objection because he had been acquitted of those things, and they didn't want that considered.

[00:02:07] Speaker 01:
And the judge himself said, repeated it by preponderance twice that he found the guilty of this.

[00:02:15] Speaker 01:
And I think

[00:02:15] Speaker 01:
Even if you disagree with how the verdict form reads, which I don't disagree with it.

[00:02:22] Speaker 03:
I'm telling you that's what the verdict form says.

[00:02:24] Speaker 01:
Well, it says the first part is, is he guilty of, of depriving the rights?

[00:02:28] Speaker 01:
And it doesn't give the elements, right?

[00:02:30] Speaker 01:
But then if you look at the, at the, where it's split out, it gives the elements.

[00:02:33] Speaker 01:
He was deliberately indifferent and it caused bodily harm.

[00:02:37] Speaker 01:
And also, the evidence was so duplicative that if they believed Yarberry about Salam and himself, there's no way they couldn't have found bodily injury, given what bodily injury is defined as, which is anything, essentially.

[00:02:52] Speaker 03:
I don't want to take up any more of your time on that issue.

[00:02:55] Speaker 03:
I just wanted to be clear in my own mind and that you had a chance to respond.

[00:02:59] Speaker 03:
So, proceed.

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

[00:03:00] Speaker 02:
Well, despite my colleague's kindness,

[00:03:05] Speaker 02:
I have a follow-up, because I had a somewhat similar question.

[00:03:10] Speaker 02:
As I understand it, there's two distinct issues.

[00:03:14] Speaker 02:
Was there a violation, not in the Eighth Amendment, notwithstanding the instruction, but in the Fourteenth Amendment for pretrial detainees, was there intolerable conditions of confinement that were perpetrated by Mr. Button?

[00:03:29] Speaker 02:
And then there's a rather lenient maximum penalty

[00:03:35] Speaker 02:
And then the penalty is aggravated if there is a separate finding that finds not only were there intolerable conditions of confinement, but deliberate indifference that caused bodily injury.

[00:03:49] Speaker 02:
On the latter issue, until I think the second sentence of the conclusion of your reply brief, I never saw an argument that there was not sufficient evidence to find deliberate indifference causing bodily injury.

[00:04:02] Speaker 02:
Your argument throughout the opening brief and until the conclusion in that one sentence of your reply brief was all that there was not enough evidence of intolerable conditions of confinement.

[00:04:13] Speaker 02:
So as a practical consequence, I think the question at least for me is,

[00:04:19] Speaker 02:
Well, for Yarberry, Salam, all of the other pre-trial detainees on this van, can you consider the urine bottles that they had to urinate in these bottles?

[00:04:35] Speaker 02:
Or Salam's, the bottom of his foot, having to walk on urine-covered floor of a van,

[00:04:45] Speaker 02:
that cause trench foot.

[00:04:47] Speaker 02:
You know, those things, not bodily injury, but on the more general conditions, are we confined to look at only the fact that Kenny wasn't able to urinate, or can we look at Salam's inability to urinate, or that Salam and Yarberry had their hands tied behind their back and couldn't eat for nine hours once they left Sirocco County.

[00:05:09] Speaker 02:
That's sort of the practical question that I have.

[00:05:12] Speaker 02:
And why can't I consider all of those other pretrial detainees on that issue?

[00:05:18] Speaker 01:
You can on that issue, I agree.

[00:05:20] Speaker 01:
But even so, they didn't establish that there was a substantial risk of serious harm to any of them.

[00:05:30] Speaker 01:
Even with the handcuffing behind the back, it has to be done with a non-penological purpose.

[00:05:34] Speaker 01:
And it was done with a penological purpose here.

[00:05:36] Speaker 01:
Mr. Button is not a train corrections officer.

[00:05:39] Speaker 01:
PTS gave him barely any training before sending him off on a road

[00:05:42] Speaker 01:
trip to transport up to 12 fugitives and felons with an individual with no training.

[00:05:50] Speaker 02:
Did he not know that most people, that they have to urinate within a 36-hour period?

[00:05:57] Speaker 01:
Well, why the log does reflect that, the government admitted in its answer brief on page 9 on footnote 4, I believe, that the log isn't entirely accurate, that both Yarberry and Kenny testified to stops within there, and then Yarberry

[00:06:12] Speaker 01:
testified that the longest they had gone without a rest for a break was 9 to 11 hours.

[00:06:18] Speaker 01:
But even so, it's not on Mr. Button.

[00:06:21] Speaker 01:
You can hear Officer Harone when they stop at Socorro bellow at the detainees, I don't have to let you use my facilities.

[00:06:29] Speaker 01:
And that is the problem.

[00:06:30] Speaker 01:
Mr. Button had to find a secure facility in order to allow these inmates to use the washroom.

[00:06:37] Speaker 01:
And he couldn't just go willy-nilly.

[00:06:41] Speaker 01:
was not given that opportunity, that's not on him.

[00:06:45] Speaker 01:
That's on the company for not better planning for secure facilities.

[00:06:49] Speaker 03:
That's your argument at the trial level, which is almost the same argument here.

[00:06:55] Speaker 03:
And I know, counsel, you know that in the sufficiency of the evidence standard, there's no higher standard almost than that.

[00:07:04] Speaker 03:
And you're telling me on the basis of just what I've read in the briefs and look at the record,

[00:07:10] Speaker 03:
There is no evidence, I mean no evidence, that from the standpoint of there is just no evidence that is going to support the conviction of your client under the sufficiency of the evidence rule.

[00:07:29] Speaker 03:
I'm having a hard time with that standard when I apply it to your case.

[00:07:33] Speaker 03:
I can't speak for my colleagues.

[00:07:36] Speaker 01:
That's where I am.

[00:07:37] Speaker 01:
Well, let's look at the Eighth Amendment cases that set the benchmark, right?

[00:07:40] Speaker 01:
Those are preponderance standards.

[00:07:42] Speaker 01:
If you can't meet a preponderance standard, there's no way you can meet beyond a reasonable doubt.

[00:07:46] Speaker 01:
If you look at the Spain, it's 36 hours in a cell continuously that's flooded with four inches of water with urine and feces and later uneaten food.

[00:07:56] Speaker 02:
But it could urinate.

[00:07:57] Speaker 02:
Excuse me?

[00:07:58] Speaker 02:
But he could urinate in a cell.

[00:08:01] Speaker 02:
It was disgusting.

[00:08:03] Speaker 02:
It was covered with feces.

[00:08:05] Speaker 02:
These guys are on a van without a bathroom and a water bottle that they empty out and pee in the bottle while it's moving.

[00:08:18] Speaker 02:
And so there is urine all over the floor.

[00:08:21] Speaker 02:
A guy gets trench foot from it.

[00:08:24] Speaker 02:
So you're saying because there is feces, that we had one unpublished opinion, that there was feces all over a cell, that you can still go to the bathroom?

[00:08:34] Speaker 01:
No, actually, into Spain you couldn't.

[00:08:36] Speaker 01:
Well, I guess you could urinate.

[00:08:38] Speaker 01:
There were no working toilets, which were adding to the mess.

[00:08:42] Speaker 01:
It took me a really long time to figure out where you could find something that would show the hierarchy of human waste, as the government put it.

[00:08:48] Speaker 01:
But I finally found it with the CDC, where you, under what conditions, you close a pool.

[00:08:53] Speaker 01:
You close a pool if there's vomit, if there's blood, or if there's feces.

[00:08:56] Speaker 01:
They don't even mention urine.

[00:08:58] Speaker 01:
So urine itself has for ages been used as a folk medicine for forewounds.

[00:09:04] Speaker 01:
It's gross.

[00:09:06] Speaker 01:
I mean, it's gross.

[00:09:10] Speaker 01:
I have no argument on that.

[00:09:12] Speaker 01:
But that's not the standard.

[00:09:13] Speaker 01:
The standard is a substantial risk of serious harm.

[00:09:17] Speaker 01:
And it can't be a speculative harm.

[00:09:19] Speaker 01:
You have to actually point to something that's going to happen.

[00:09:22] Speaker 01:
It doesn't have to happen.

[00:09:23] Speaker 01:
But you can't just say, oh, it's so gross.

[00:09:26] Speaker 01:
Something's bound to happen.

[00:09:28] Speaker 02:
What about the testimony for Salam that he actually got trenched with?

[00:09:32] Speaker 02:
Now, I understand, for some reason, the jury said that there was not deliberate indifference that caused bodily injury for Salam.

[00:09:40] Speaker 02:
But again, we're not talking about that verdict form, which you haven't challenged.

[00:09:46] Speaker 02:
We're talking about intolerable conditions of confinement.

[00:09:48] Speaker 02:
And so can we not infer, viewing the evidence to the light, most favorable to prosecution that for Salam, there was at least a serious risk of harm, that he has open wounds on his foot.

[00:10:01] Speaker 02:
He's walking around on a urine-covered floor, that there is a serious risk of harm, i.e., that it could cause trench foot for Salam.

[00:10:12] Speaker 01:
Well, then you have to look at the second part, which is that it's deliberate indifference and that Mr. Button has to be actually aware of the condition before he disregards it.

[00:10:22] Speaker 01:
And the evidence is pretty clear that no one knew of that condition of Mr. Salam's foot until they got to Kansas.

[00:10:29] Speaker 01:
And Yarberry testified that there was a smell, but everyone agreed the back of the van smelled and they couldn't pinpoint it to Yarberry's foot.

[00:10:41] Speaker 02:
What about in Sirocco County when you actually visibly see a button throwing, well, Tazing Yarberry and then throwing Kenny against the chain-link fence and he ends up with lacerations.

[00:10:58] Speaker 02:
Can we not say that in Sirocco County that we can see with our own eyes that there was at least a serious risk of harm for Kenny throwing him against the chain-link fence or for Tazing Yarberry?

[00:11:12] Speaker 01:
First, it's the Coro.

[00:11:14] Speaker 01:
It's really bothered me.

[00:11:14] Speaker 01:
I'm sorry.

[00:11:15] Speaker 01:
Sorry.

[00:11:18] Speaker 01:
I grew up in New Mexico.

[00:11:19] Speaker 01:
It came to me.

[00:11:19] Speaker 00:
So it's Coro County.

[00:11:21] Speaker 00:
Sorry.

[00:11:24] Speaker 01:
Both of those are much more excessive force than conditions of confinement.

[00:11:30] Speaker 01:
And really, they're different analysis, right?

[00:11:34] Speaker 01:
What is excessive force and what's a condition of confinement are not the same.

[00:11:40] Speaker 01:
And again, I point back to the legitimate penological purpose, which is Kenny and Yarmory were aggravating these other prisoners.

[00:11:49] Speaker 01:
It's a volatile situation.

[00:11:50] Speaker 02:
He was aggravating Button because he's yelling at the guy in whatever it was you said, Socarro County.

[00:11:58] Speaker 02:
that we're being tortured on the van.

[00:12:01] Speaker 02:
And so Button says, yeah, this guy's going to be a problem.

[00:12:03] Speaker 02:
He's ratting me out.

[00:12:05] Speaker 02:
And so then he tases Yarberry and throws him against the chain link fence.

[00:12:10] Speaker 02:
You know, words can't hurt.

[00:12:11] Speaker 02:
I mean, we all tell our school kids that.

[00:12:14] Speaker 02:
Exactly.

[00:12:16] Speaker 02:
His words are, this guy's torturing me.

[00:12:19] Speaker 02:
Please help me, God.

[00:12:22] Speaker 01:
Well, also Socorro County did not think it was serious enough, so they didn't put them back on the van and send them on their way.

[00:12:27] Speaker 01:
Yeah, and they stopped taking any more vans.

[00:12:31] Speaker 01:
That was not just.

[00:12:32] Speaker 01:
Everyone likes to say it's justified, this one incident, but it was more of a buildup.

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

[00:12:41] Speaker 03:
Before you run out of time, do you want to address anything about the distinction between malice and willful?

[00:12:48] Speaker 03:
Because I notice that that's one of the issues

[00:12:51] Speaker 03:
that you've read that that prevented you from having a fair trial.

[00:12:55] Speaker 01:
Yes.

[00:12:55] Speaker 01:
So malice in law is a term of art.

[00:12:58] Speaker 03:
And that's why you have to give it a jury instruction on it to the jury, because no one... Well, willful is a term of art also according to our case law.

[00:13:07] Speaker 01:
Correct.

[00:13:07] Speaker 01:
And I think they did get a definition of willfully.

[00:13:10] Speaker 03:
That's what the statute said, that he was charged under willful.

[00:13:13] Speaker 03:
Yes.

[00:13:15] Speaker 01:
But malice is commonly understood just to be bad purpose.

[00:13:19] Speaker 01:
more than just bad, like actually, what deliberately a different would be.

[00:13:24] Speaker 01:
It's malicious, right?

[00:13:26] Speaker 01:
And both the government and the judge use the legal definition as a term of art.

[00:13:34] Speaker 01:
If it wasn't a term of art, it wouldn't be understood that way.

[00:13:39] Speaker 01:
And I would like to reserve the rest of my time.

[00:13:41] Speaker 02:
OK.

[00:13:41] Speaker 02:
We will stop here.

[00:13:42] Speaker 02:
Judge Kelly, do you have any questions?

[00:13:45] Speaker 02:
I have no questions.

[00:13:47] Speaker 02:
OK.

[00:13:47] Speaker 02:
We'll hear from the appellate.

[00:14:06] Speaker 00:
Good morning, Your Honors.

[00:14:07] Speaker 00:
May it please the court, Jonathan Bakker, for the United States.

[00:14:10] Speaker 00:
This court should affirm the jury's conviction of defendant Anthony Bunton for his abuse of pretrial detainees in his custody during a multi-day prisoner transport.

[00:14:19] Speaker 00:
I'll briefly address the three issues that Bunton raises on appeal.

[00:14:23] Speaker 00:
First, the trial record contains overwhelming evidence that Bunton willfully violated the 14th Amendment by creating objectively serious conditions of confinement.

[00:14:32] Speaker 00:
Second, the District Court acted well within its great latitude to limit the scope of closing argument by precluding the defense from using a potentially confusing term to describe the willfulness element.

[00:14:44] Speaker 00:
And finally, the District Court's Allen Instruction, to which the defense never objected, contained all the indicia of a proper, non-coercive charge to continue jury deliberations.

[00:14:56] Speaker 00:
But this court need not wade into the record to resolve this appeal.

[00:14:59] Speaker 00:
Among the various issues and sub-issues that Bunton raises, he has waived, in whole or in part, all of them except for the closing argument issue.

[00:15:10] Speaker 00:
So this court can affirm the jury's conviction on largely procedural grounds.

[00:15:15] Speaker 00:
I don't want to leave the court with the impression that the United States is running away from the merits of this case, so unless your honors have any questions about the forfeiture and waiver issues, I'll move straight to the merits of the

[00:15:29] Speaker 00:
objectively serious conditions that occurred on this.

[00:15:32] Speaker 02:
Well, on the forfeiture issue, on the Rule 29 issue, the prosecutor stands up after defense counsel makes a very limited Rule 29 argument and says, there is a prima facie case on all of the elements, goes through all of the elements, and then the district court says, yeah, I find that there's a prima facie case.

[00:15:52] Speaker 02:
And we do have cases that say that once a district court adjudicates

[00:15:57] Speaker 02:
an issue on the merits, whether or not it was suespante or not, that excuses the forfeiture.

[00:16:07] Speaker 00:
That's true, Your Honor, but I think if you look at the, this is the initial Rule 29 motion, of course the question that

[00:16:16] Speaker 00:
You know, an initial Rule 29 motion is waived when the defense does a renewed Rule 29 motion.

[00:16:23] Speaker 00:
That's Bowie.

[00:16:23] Speaker 00:
This court's decision in Bowie holds that proposition.

[00:16:26] Speaker 00:
But even if you're looking at the initial Rule 29 motion, yes, the United States

[00:16:31] Speaker 00:
identified the conditions at issue that arose to a constitutional violation, but it didn't get into a full, in-depth conversation of why the human waste, the restraints, the heat, all collectively amounted to objectively serious conditions of confinement, and tethering it to this court's case law on those issues, because it wasn't unnoticed that

[00:16:53] Speaker 00:
the defense was actually challenging the deprivation of a right element.

[00:16:58] Speaker 00:
And so the United States would have gone into far more detail about why and developed the record much more for this court's benefit if it was on notice about it.

[00:17:06] Speaker 02:
So how do we write this waiver argument, this waiver rationale?

[00:17:10] Speaker 02:
Do we say that, well, the government did address all of the merits, but it didn't do it very long?

[00:17:18] Speaker 02:
It was just an abbreviated recitation of the fact that all of the elements were satisfied.

[00:17:25] Speaker 02:
It seems like a very slippery standard for us to articulate.

[00:17:31] Speaker 00:
I would say that the proper analysis is, what did the defense say?

[00:17:36] Speaker 00:
And again, I think you start with the renewed motion.

[00:17:39] Speaker 00:
And there's no question there.

[00:17:40] Speaker 00:
All with regard to count, too, that the defense said at the renewed Rule 29 motion was there was not, willfulness wasn't satisfied.

[00:17:48] Speaker 00:
That's it.

[00:17:49] Speaker 00:
And so there's no question.

[00:17:51] Speaker 00:
And the United States responded.

[00:17:55] Speaker 00:
commensurately to that.

[00:17:57] Speaker 00:
And stains on our prior argument, right?

[00:18:00] Speaker 00:
Yes, and even if you look to the initial, the defense specifically identified willfulness, color of law, bodily injury as the issues that they were raising in the Rule 29 motion and said nothing about deprivation of a right.

[00:18:15] Speaker 00:
But again, I don't want to get bogged down on the forfeiture and waiver issue because I think this case is so clear that there's overwhelming evidence

[00:18:22] Speaker 00:
of objectively serious conditions of confinement.

[00:18:25] Speaker 03:
Well, you bet, counsel.

[00:18:26] Speaker 03:
You've made a couple of comments that really bother me in regards to what the government is obligated to do.

[00:18:34] Speaker 03:
As I heard you say, that you're only going to do the minimum that's necessary based upon what opposing counsel presents.

[00:18:43] Speaker 03:
And I tell you, if that's your position, you're on a slippery slope, as far as I'm concerned.

[00:18:49] Speaker 03:
It's your burden.

[00:18:50] Speaker 03:
As the government in every instance in regards to these, I don't care how little they do, it's your responsibility.

[00:18:58] Speaker 00:
I'm sorry, Your Honor, if I left you with that impression.

[00:19:00] Speaker 00:
No, the United States went out of its way to address all of the elements of this 242 condition.

[00:19:08] Speaker 03:
I just want to be clear that that's not what you were trying to tell me.

[00:19:11] Speaker 03:
Yes, Your Honor.

[00:19:12] Speaker 03:
All right, thank you.

[00:19:13] Speaker 00:
So going to the merits.

[00:19:16] Speaker 00:
In assessing whether there are objectively serious conditions of confinement, this court looks to the totality of the conditions on the van, not just one-by-one human waste restraints, heat.

[00:19:27] Speaker 00:
And here there's an incredibly powerful heuristic that shows how all of those conditions should be evaluated together.

[00:19:34] Speaker 00:
We have not one

[00:19:36] Speaker 00:
but two detention centers that took unprecedented actions in response to what they observed when Bunton came to the facility.

[00:19:45] Speaker 00:
So starting with Shawnee County, where Bunton's trip culminated,

[00:19:52] Speaker 00:
Officer Edwards viewed all the detainees coming in and noticed all these, in his words, unusual things.

[00:19:59] Speaker 00:
That they were wet to the touch, that they had articles of clothing.

[00:20:03] Speaker 00:
Mission that Abu Salam obviously had this very serious condition that smelled like rot, rotting flesh, he said.

[00:20:12] Speaker 00:
And then, therefore, told his superior, Lieutenant Barnhill, about what was going on, called him in the middle of the night.

[00:20:17] Speaker 00:
Lieutenant Barnhill undertook his own investigation and called

[00:20:21] Speaker 00:
his superior, Phelps, who issued for the first time in the jail's history an order saying that these detainees cannot be released back to the custody of Mr. Button because it was so appalling the conditions that they witnessed.

[00:20:38] Speaker 00:
And similarly, in Socorro County, as Judge Baccarat noticed, that jail stopped having prisoner transports come to that facility altogether in response to the conditions that they observed.

[00:20:53] Speaker 00:
So if this court's looking for a heuristic to kind of step back from the particulars here,

[00:20:58] Speaker 00:
and say, in the totality, were there objectively serious conditions?

[00:21:04] Speaker 00:
Well, that's clearly meant just based on what the actions of these two facilities and the testimony from Officer Edwards, Lieutenant Barnhill, and Nurse Johnson about just what they observed in the totality at the culmination of this trip.

[00:21:25] Speaker 00:
I want to take a moment to just talk about the urine versus other bodily, and I know it's gross to talk about this, but I just say that Dyspain itself cites to Johnson versus Lewis from the Ninth Circuit, which was a case about exposure to urine only.

[00:21:46] Speaker 00:
So it is not true that urine cannot be the basis of a conditions of confinement claim focused on exposure to human waste.

[00:21:56] Speaker 00:
In any event, for all the reasons that the Your Honors have pointed out, there are aggravating circumstances here that made the exposure to urine in this instance particularly problematic.

[00:22:10] Speaker 00:
Clearly, there are objectively serious conditions of confinement here, and deliberate indifference I really don't think is at issue here because Bunton didn't just act with a deliberate indifference towards these conditions.

[00:22:24] Speaker 00:
I mean, he created them himself.

[00:22:26] Speaker 00:
He's the one that prevented people from having restroom breaks for up to 36 and a half hours.

[00:22:33] Speaker 00:
He's the one that

[00:22:34] Speaker 00:
In response to people speaking out against the conditions of confinement on the van, restrained them behind their backs for long periods of time, put them in the segregation cage, denied them food, water, restroom breaks that other detainees received during those long periods of time.

[00:22:50] Speaker 00:
He's the one that blasted detainees with hot air while they were complaining about the heat on the van while driving through the Arizona desert and said, I've got something for you, when he did that.

[00:23:02] Speaker 00:
So he wasn't just deliberately indifferent, he was consciously creating the conditions at issue.

[00:23:09] Speaker 00:
And similarly with willfulness.

[00:23:14] Speaker 00:
Bunton just says that he acted at all times in accordance with his training.

[00:23:17] Speaker 00:
Well, that's not true based on the testimony that I just mentioned.

[00:23:23] Speaker 00:
But in addition to that, willfulness can be inferred from the plain wrongfulness of all those conditions.

[00:23:29] Speaker 00:
It can be inferred from the fact that PTS policy required him to report any time that he restrained somebody behind their back, any time that he put them in the desegregation kit for disciplinary reasons.

[00:23:41] Speaker 00:
any time that he wasn't able to get them a restroom break beyond six hours.

[00:23:46] Speaker 00:
And Mr. Esquien, the trip manager for this trip, testified that he received no such reports.

[00:23:54] Speaker 00:
And it can also be inferred from Mr. Button's intimidation of witnesses and giving them favors that they perceived to be to make them quiet.

[00:24:04] Speaker 00:
So there's multiple... Does that argument run afoul?

[00:24:09] Speaker 02:
of the acquittal on the separate charge against Button for intimidation of witnesses.

[00:24:15] Speaker 00:
I don't think so, Your Honor, because this court has precedent going back to Young versus United States in 1948 that says it's not the purview of this court to reconcile inconsistencies in a jury's verdict.

[00:24:26] Speaker 00:
If there's evidence in the record that supports the verdict, then that's fair game for sufficiency of the evidence.

[00:24:33] Speaker 00:
But again, we're not relying exclusively on the intimidation.

[00:24:39] Speaker 00:
As I mentioned, there are many other indicia that the willfulness element is satisfied.

[00:24:46] Speaker 00:
So I'm happy to answer any other questions about that issue or the closing argument or the Allen instruction.

[00:24:55] Speaker 00:
But if Your Honors have no further questions, we'll rest on the briefs.

[00:24:58] Speaker 00:
Judge Kelly, do you?

[00:25:01] Speaker 03:
OK.

[00:25:03] Speaker 02:
Thank you.

[00:25:04] Speaker 02:
And how much time does the appellant have?

[00:25:08] Speaker 02:
OK.

[00:25:09] Speaker 02:
You know, I apologize to appellant counsel.

[00:25:11] Speaker 02:
I took out so much of your time.

[00:25:12] Speaker 02:
I'm going to give you two full minutes.

[00:25:15] Speaker 02:
I'm going to give you 57 extra seconds.

[00:25:18] Speaker 01:
Thank you, Your Honor.

[00:25:20] Speaker 01:
So one of the things I want to point out is that substantial risk of serious harm is an objective standard for the blasting heat

[00:25:27] Speaker 01:
We only have Mr. Yarberry and Mr. Kinney saying it's very hot, and it's somewhere in the Arizona desert.

[00:25:33] Speaker 01:
Arizona has many temperate regions.

[00:25:35] Speaker 01:
And in March, the temperature varies greatly.

[00:25:37] Speaker 01:
So that is a subjective component.

[00:25:40] Speaker 01:
And it was only for 20 minutes.

[00:25:42] Speaker 01:
I mean, case law is replete with even in dangerous ambient temperatures, if it's less than 30 minutes, it's perfectly, well, not perfectly fine from a humane standpoint, but from an eighth amendment standpoint.

[00:25:56] Speaker 01:
In going back,

[00:25:58] Speaker 01:
Things like the clothing, that wasn't in Mr. Button's control.

[00:26:02] Speaker 01:
The clothing was not in Mr. Button's control.

[00:26:07] Speaker 01:
They came on with what they came on with.

[00:26:10] Speaker 01:
They got showers when they could.

[00:26:11] Speaker 01:
Those things were not within his control.

[00:26:14] Speaker 01:
I mean, he did the best he could under the circumstances, but the circumstances themselves are hard.

[00:26:22] Speaker 01:
He has to be cognizant of his safety.

[00:26:25] Speaker 01:
He has to be cognizant of the safety of the other detainees.

[00:26:27] Speaker 01:
He has to be cognizant of the safety of the public.

[00:26:30] Speaker 01:
So he has to be sure that he's in control of that van.

[00:26:35] Speaker 01:
And while he says that they're just talking out loud, outside Riverdale, they were yelling and shaking the van so hard it was rocking on rocking, and they had to turn around and go back to Riverdale.

[00:26:46] Speaker 01:
This is not a serious risk of substantial harm, because he had a penological reason for detaining

[00:26:56] Speaker 01:
Yarberry and Kinney as he did, and it just simply doesn't rise to the level, it doesn't rise to the level of serious risk of substantial harm.

[00:27:08] Speaker 02:
Thank you.

[00:27:09] Speaker 02:
Well presented by both sides, this banner will be submitted.