[00:00:00] Speaker 00:
of the United States versus Martinez, DACA 23-2193.

[00:00:05] Speaker 00:
Counsel, when you're ready.

[00:00:11] Speaker 01:
Good morning, and may it please the court.

[00:00:15] Speaker 01:
Counsel, page message for the United States.

[00:00:19] Speaker 04:
It's actually coming through pretty good.

[00:00:21] Speaker 01:
OK.

[00:00:21] Speaker 04:
Yeah.

[00:00:22] Speaker 01:
I was hearing a little bit of a ringing.

[00:00:24] Speaker 01:
Maybe that's just me.

[00:00:25] Speaker 01:
I would like to reserve a couple of minutes for rebuttal.

[00:00:30] Speaker 01:
The United States has brought this appeal today because the District Court erred in excluding three critical categories of evidence from the murder trial of Santiago Martinez for the death of his longtime girlfriend, Diana Suazo.

[00:00:44] Speaker 01:
I'd like to touch on all three of these issues of exclusion today, and I'll turn first to the confession.

[00:00:49] Speaker 01:
The District Court first clearly erred in its characterization of the post-Polygraph interview.

[00:00:57] Speaker 01:
If you put on the interview recording,

[00:01:00] Speaker 01:
expecting to hear over three hours of unrelentingly aggressive and accusatory interrogation beginning with a barrage of accusatory and aggressive questioning as soon as the polygraph is complete, which are the findings that the district court made.

[00:01:16] Speaker 01:
You are going to wonder by the end if you have put on the right recording.

[00:01:19] Speaker 03:
Would you count that as a finding of fact the district court made?

[00:01:22] Speaker 01:
Yes, I would.

[00:01:24] Speaker 01:
I believe, I mean, it's a characterization of the facts, but I think this is a fact about the interrogation the District Court has found.

[00:01:30] Speaker 01:
I mean, if you don't believe they're facts, then I suppose that you could characterize it however you want, but we do believe that those are facts that are clearly erroneous.

[00:01:40] Speaker 01:
And to start with the most basic point, the questioning of Mr. Martinez ended at 2 hours and 22 minutes.

[00:01:47] Speaker 01:
This is an area of law in which duration matters, and two hours and 22 minutes is not the same thing as over three hours.

[00:01:56] Speaker 01:
And then turning to the nature of the questioning, Agent Coyle doesn't harass Mr. Martinez.

[00:02:01] Speaker 01:
She doesn't yell at him.

[00:02:02] Speaker 01:
She doesn't insult his intelligence or his character.

[00:02:06] Speaker 01:
She doesn't call him a liar.

[00:02:07] Speaker 01:
In fact, she praises him.

[00:02:09] Speaker 01:
She speaks calmly and quietly for almost two hours before we reach that four-minute period where her tone becomes sharp and she uses coarse language.

[00:02:17] Speaker 01:
Now that's an important moment.

[00:02:20] Speaker 01:
It's reasonable to note that it happened, but what is not reasonable is to assert that that tone is characteristic of the entire interview.

[00:02:30] Speaker 04:
I mean, does it really matter?

[00:02:31] Speaker 04:
So whether you're clever or aggressive,

[00:02:37] Speaker 04:
does it really matter which one you use if it's continual and unrelenting pressing to get what you want?

[00:02:46] Speaker 04:
Because I listened to this and I will admit I did not listen to two hours and 20 something minutes.

[00:02:54] Speaker 04:
I listened to it in about six minute intervals just to see what I was hearing.

[00:02:59] Speaker 04:
But I did hear somebody who was

[00:03:05] Speaker 04:
continuously and, and although very nice, strongly suggesting things to this, to, to the person being interviewed.

[00:03:18] Speaker 04:
And I just wonder if that, why it matters.

[00:03:21] Speaker 04:
I mean, as compared to Pena, for example, where the officers were getting up in his face and yelling at him and being much more aggressive.

[00:03:30] Speaker 04:
I mean, there are two approaches.

[00:03:33] Speaker 04:
calculated to do the same thing and in an unrelenting fashion?

[00:03:37] Speaker 01:
I think that it does matter.

[00:03:43] Speaker 01:
Degrees matter.

[00:03:44] Speaker 01:
I think that you don't have to reach our clear error issue.

[00:03:47] Speaker 01:
You don't have to find that any clear error occurred in order to reverse the district court here.

[00:03:52] Speaker 01:
But I think it does make a difference whether you have two hours of unrelentingly polite and gentle questioning.

[00:04:02] Speaker 01:
Even if that person is persistent, that's different than somebody who's getting yelled at for two or three hours on end.

[00:04:10] Speaker 01:
But even those cases, like in Pena, where there is very much more aggressive and accusatory questioning, it's of course not found that that renders the statement involuntary or the waiver unknowing.

[00:04:22] Speaker 04:
How do you think Pena, I mean, Pena's relatively new, came out after the briefing in this case.

[00:04:27] Speaker 04:
How do you think Pena impacts our decision in this case?

[00:04:32] Speaker 01:
Well, I think Pena is extremely persuasive authority on the voluntariness question.

[00:04:39] Speaker 01:
So in Pena, that defendant, as you mentioned, had somebody in his face pointing a finger at him, yelling at him.

[00:04:45] Speaker 01:
It just being a lot more aggressive and accusatory than we have here.

[00:04:53] Speaker 01:
And the court found that that statement was voluntary.

[00:04:58] Speaker 01:
I just don't think it is possible to look at the facts of Kenya and compare them to the facts of the case here and come to the conclusion that this statement was involuntary.

[00:05:07] Speaker 03:
Well, but can I maybe re-characterize what Judge Carson's asking you?

[00:05:11] Speaker 03:
It seems to me the agent here engaged in a lot of psychological manipulation.

[00:05:15] Speaker 03:
Some of the techniques utilized sound very familiar to me in the school DeJohn L. Reed techniques.

[00:05:21] Speaker 03:
How have courts evaluated that type of psychological manipulation when weighing it for voluntariness?

[00:05:29] Speaker 01:
The court actually in Kenya did evaluate that a similar kind of encouragement, I could say, and said that just because a technique is calculated to elicit a confession does not make it prohibited by the Fifth Amendment.

[00:05:45] Speaker 01:
Confessions are an unmitigated good under the case law.

[00:05:50] Speaker 01:
And so just because somebody is using a technique, whether it be moral persuasion, whether it be appealing to the suspects,

[00:05:56] Speaker 01:
ties to the community or the opinion of his family or the feelings of the victim's family, these kind of things, they may persuade someone to confess, but they are not impermissible tactics to do so.

[00:06:09] Speaker 01:
And I don't think that anything that Egypt Coyle here did approach as an impermissible tactic.

[00:06:15] Speaker 01:
She did not.

[00:06:15] Speaker 01:
She didn't lie.

[00:06:16] Speaker 01:
She didn't threaten.

[00:06:17] Speaker 01:
She didn't physically abuse him.

[00:06:19] Speaker 01:
She didn't deprive him of necessities.

[00:06:21] Speaker 01:
None of those sorts of things.

[00:06:23] Speaker 01:
If empathy and this sort of gentle, nice treatment and affirming that he is a good person who's going to do the right thing in the end, if that sort of thing is coercive, then I would say that nearly every interrogation that the court faces would be held coercive.

[00:06:44] Speaker 01:
And that's simply not the case.

[00:06:45] Speaker 01:
The cases where a statement has been held to be coerced are

[00:06:50] Speaker 01:
starkly different than this sort of facts.

[00:06:52] Speaker 04:
Can I ask you about the texts?

[00:06:54] Speaker 04:
Of course.

[00:06:55] Speaker 04:
So you have this group of texts and the idea, I guess, from an evidentiary standpoint is you want to put them in to show that they've been, she's been trying to break up with him for a long time and he's been unaccepting of that.

[00:07:12] Speaker 04:
Is that fair?

[00:07:16] Speaker 01:
I mean, because to show that he knows that she has communicated an intention to end the relationship and the general response in the text is not enthusiasm on his part for this idea.

[00:07:31] Speaker 04:
I mean, the general response is largely nothing in his, in his, it's like, let's talk about it later.

[00:07:38] Speaker 04:
That doesn't happen.

[00:07:39] Speaker 04:
He doesn't say, no, I don't want to break up.

[00:07:41] Speaker 04:
He just basically ignores them.

[00:07:44] Speaker 04:
And don't, don't for your theory, I mean, don't you really need a response from him that indicates, uh, I'm never going to let you go.

[00:07:51] Speaker 04:
I'm going to, you know, you can't break up with me.

[00:07:54] Speaker 04:
We've got to be together or some kind of hostile response.

[00:07:58] Speaker 04:
Don't, don't you really need something like that for your texts to come in?

[00:08:02] Speaker 01:
No, I don't think so.

[00:08:04] Speaker 01:
He does say a couple of times, I'm sorry.

[00:08:07] Speaker 01:
He never says, you know,

[00:08:09] Speaker 01:
Absolutely, you're right.

[00:08:10] Speaker 01:
This has gone on too long.

[00:08:11] Speaker 01:
Like I'm done with you, too He doesn't want to break up, right?

[00:08:19] Speaker 01:
You can tell that from the text messages and that's an important part of the government's theory is that He killed her in a fight because she was trying to leave him and he did not want that as you can tell from the

[00:08:32] Speaker 01:
from some of his verbal responses in the text, but I don't believe that we have to have him verbalizing all of his feelings in these text messages.

[00:08:39] Speaker 01:
You can tell that there's conversations that are happening offline, right, that are not happening in the text messages, because sometimes the message will be like, we're breaking up, and then the next one from him is, you know, hours or days later, and he's like, see you soon.

[00:08:53] Speaker 01:
I mean, so you can tell there's stuff going on.

[00:08:54] Speaker 00:
Are you trying to show with the text, there are a couple of possibilities.

[00:08:58] Speaker 00:
Number one, he's so angry that she was gonna break up with him.

[00:09:02] Speaker 00:
that he's made up his mind he's going to kill her that night even though she made dinner and they had a long evening and everything else.

[00:09:09] Speaker 00:
Or the texts show that most likely what happened is they started their evening just fine and then she said she's going to break up, which enraged him and he killed her.

[00:09:20] Speaker 00:
Is that which of those two?

[00:09:21] Speaker 01:
Our theory is more along the lines of the second.

[00:09:24] Speaker 00:
Yeah.

[00:09:24] Speaker 00:
And that's not really, when I look at the text, that's a big stretch.

[00:09:29] Speaker 00:
to say that these texts, which had sparked no controversy, no violence, no foul language, so far as I saw, that those mean that, well, they must have had a fatal confrontation that night about something we have no idea whether it was even discussed because of these previous texts.

[00:09:51] Speaker 00:
But she had said that night, I'm breaking up with you.

[00:09:54] Speaker 00:
And he thought, oh, for real this time?

[00:09:56] Speaker 00:
Well, things got out of control.

[00:09:59] Speaker 00:
And he killed her.

[00:10:00] Speaker 01:
We actually do have evidence that they fought that night, and we know what they fought about, although that does come through his confession.

[00:10:07] Speaker 01:
So these text messages are more important if we don't have that confession.

[00:10:13] Speaker 01:
But we actually do the note that they fought that night about breaking up, and he did not want that, and things got out of control.

[00:10:20] Speaker 01:
We heard that from his own mouth.

[00:10:23] Speaker 01:
But I think, more basically, these messages show that

[00:10:29] Speaker 01:
Mr. Martinez has received several messages from his long-term girlfriend of a decade saying, I want out of this relationship.

[00:10:37] Speaker 01:
This isn't going anywhere.

[00:10:38] Speaker 01:
I'm unhappy.

[00:10:39] Speaker 01:
You're unfaithful.

[00:10:40] Speaker 01:
You're an alcoholic.

[00:10:41] Speaker 01:
All of this stuff.

[00:10:42] Speaker 01:
And those are the kind of things that stick with somebody.

[00:10:45] Speaker 01:
You don't forget that your partner of the decade has said these things to you.

[00:10:49] Speaker 01:
And even if you kind of, you paper over the problems and you keep going, all of that lurks in a person's mind.

[00:10:57] Speaker 04:
Give me a precedent that you have that admits something like this, where you have some emails, you have some texts, something like that, that basically have no response.

[00:11:11] Speaker 04:
We don't have anything in the context of ending a relationship, but a lot of the cases that we cited... Or just in another case where you don't have any... What's bothering me especially is you don't have anything on the other end to show that this is a real problem.

[00:11:28] Speaker 01:
So many of the cases that we cited, for instance, the one about the defendant who believes that the victim was a government informant, right?

[00:11:36] Speaker 01:
A lot of these

[00:11:38] Speaker 01:
statements, or the statement is admitted to show what the defendant thought.

[00:11:43] Speaker 01:
There's no corresponding statement where the defendant ever says, this is what I think, right?

[00:11:48] Speaker 01:
So that informant case, the defendant doesn't say to my recollection, oh, yeah, I believe that victim is a government informant and now I'm going to kill him.

[00:11:55] Speaker 01:
You know, we never have in these cases, or certainly not most of them, an explicit verbalization by the defendant.

[00:12:03] Speaker 01:
You know, the name of the doctrine is effect on the listener, not

[00:12:07] Speaker 01:
immediate verbalized response of the listener.

[00:12:10] Speaker 04:
Well, you have to have something to show the effect, though, don't you?

[00:12:13] Speaker 04:
Well, he killed her, right?

[00:12:15] Speaker 01:
I mean, that is essentially the government's theory is that he's expressing part of the effect of these perpetual breakup messages by resorting to violence.

[00:12:24] Speaker 04:
But you've got to tie them together.

[00:12:27] Speaker 01:
Well, I think that's a question for the jury.

[00:12:29] Speaker 01:
The jury could definitely say,

[00:12:31] Speaker 01:
You know what?

[00:12:32] Speaker 01:
This is too long, or he never said anything in the text message.

[00:12:36] Speaker 01:
I think he just forgot these.

[00:12:38] Speaker 01:
I don't think it mentioned anything to him.

[00:12:40] Speaker 01:
I think he just ignored it.

[00:12:41] Speaker 01:
The jury should be allowed to take that.

[00:12:44] Speaker 04:
But that's true with every kind of attenuated evidence.

[00:12:47] Speaker 04:
I mean, there's a lot of evidence that we say, no, no.

[00:12:50] Speaker 04:
Look, that is so thin.

[00:12:51] Speaker 04:
There is so little relevance.

[00:12:53] Speaker 04:
We're not going to let that in.

[00:12:54] Speaker 04:
But we could say, well, you know what?

[00:12:56] Speaker 04:
We're going to go, even though this seems irrelevant to me, we're going to go ahead and let it in and let the jury decide.

[00:13:00] Speaker 04:
I mean, then the jury's got a bunch of irrelevant things, things that might not mean anything in the end game.

[00:13:08] Speaker 01:
If the district court didn't think that we had met the 104 standard for conditional relevance, it could have excluded the text messages on that theory.

[00:13:15] Speaker 01:
That's not what it did.

[00:13:17] Speaker 01:
It excluded them as hearsay, as asserted for the truth, as introduced for the truth of the matter asserted.

[00:13:25] Speaker 01:
That's the district court's basis of decision.

[00:13:28] Speaker 01:
That is wrong, because these messages are not being introduced for their truth.

[00:13:32] Speaker 01:
At this very basic level, these are just not hearsay, and that was the exclusionary ground that district court gave.

[00:13:39] Speaker 03:
Council, I know you're guarding your time, but can I go back to the post-polygraph statements?

[00:13:43] Speaker 03:
Can you help us understand the government's position on what factors would be most important under looking at fields in that case to see what were the change in circumstances?

[00:13:52] Speaker 03:
I know what the district court said and relied upon, but what's the government's view on what were the most important factors we should consider if we're going to articulate a post-fields test?

[00:14:00] Speaker 01:
So I wouldn't suggest that the court needs to come up with any new framework.

[00:14:03] Speaker 01:
Fields is asking, are the statements still voluntary?

[00:14:06] Speaker 01:
Is the way we're still knowing and intelligent?

[00:14:09] Speaker 01:
And there are very established bodies of case law on both of those questions.

[00:14:13] Speaker 01:
So I wouldn't suggest the court has to come up with anything new here.

[00:14:17] Speaker 01:
So I would essentially apply those two established bodies of law with a focus on whether anything has changed since the

[00:14:24] Speaker 01:
you know, signing of the waiver form or since the explicit waiver.

[00:14:27] Speaker 01:
You know, waiver takes many forms.

[00:14:29] Speaker 01:
It doesn't have to be explicit.

[00:14:30] Speaker 01:
But if you've already determined that at the beginning, when the form was signed, everything was fine, then it's a very sensible shortcut to ask, well, what has changed?

[00:14:38] Speaker 01:
So I would suggest you apply those two frameworks with an emphasis on anything that's changed.

[00:14:44] Speaker 01:
I'd like to reserve the remaining time for Buddle.

[00:14:52] Speaker 02:
Violet Edelman for Santiago Martinez.

[00:14:55] Speaker 02:
In its briefing and here today, the government is trying to distract this court from the totality of the circumstances relevant to the waiver question.

[00:15:05] Speaker 02:
In reality, the government has not offered a single compelling justification for disturbing the district court's soundly reasoned and fully supported conclusion that, as the district court put it, the moment Special Agent Coyle's post-test questioning began, the prevailing legal standard requiring rewarning was met.

[00:15:24] Speaker 02:
That is,

[00:15:25] Speaker 02:
The circumstances had changed so seriously that Mr. Martinez was no longer making a knowing and intelligent relinquishment of rights.

[00:15:32] Speaker 04:
Had they really changed that much?

[00:15:34] Speaker 04:
It seems to me that what happened here is he received his Miranda warning, signed the form, and the nature of the Miranda warning is, listen, we're going to give you this polygraph and then afterward we're going to go over the results and talk about it.

[00:15:52] Speaker 04:
and that the nature of the questioning, at least as it began, was talking to him about the fact that he had failed the polygraph.

[00:16:05] Speaker 04:
Isn't that within the warning?

[00:16:07] Speaker 02:
That's not exactly what happened here.

[00:16:10] Speaker 02:
In the six plus hour ordeal that Mr. Martinez underwent, these are the facts that the district court found in support.

[00:16:17] Speaker 02:
He was young, had no experience with the justice system, and was not represented by counsel.

[00:16:22] Speaker 02:
They sought him out at the Pueblo unannounced, led him and his parents off the Pueblo to a police department, talked to them briefly and then sent his parents out of the room where they gathered he was in a state of extreme emotional distress and then asked if he would take a polygraph exam to quickly clear his name.

[00:16:38] Speaker 04:
Okay.

[00:16:39] Speaker 04:
Now he had mentioned to them before that he was willing to take a polygraph, right?

[00:16:44] Speaker 02:
That's true.

[00:16:45] Speaker 02:
That was a week before, but he didn't initiate this encounter, which is more how it appears in some of these other cases.

[00:16:52] Speaker 04:
Hold on.

[00:16:53] Speaker 04:
And we say he's young, but he was like 28 years old, if I remember correctly.

[00:16:58] Speaker 02:
All of these factors go to the question whether, I think the way Fields frames it is, it was reasonable to expect that there would be post-test questioning.

[00:17:07] Speaker 02:
And so the district court

[00:17:09] Speaker 02:
made an observation and a factual finding about him based on its experience with him and the other facts in the record, that that contributed to that he wasn't someone who would expect, based on the way this waiver was given to him, that it would apply to a post-test interrogation, specifically because the rights themselves were given, actually the district court said simultaneously, it was on an iPad, it was one after the other within one minute,

[00:17:35] Speaker 02:
Here's your Miranda waiver, here's your polygraph, now you're taking a polygraph test.

[00:17:39] Speaker 02:
And then she groomed him basically for two hours, unrecorded, to take that test.

[00:17:45] Speaker 02:
So there's this mounting expectation that he's taking a test.

[00:17:48] Speaker 02:
This is about a polygraph test.

[00:17:50] Speaker 02:
It's three hours total of time when he was in the police department getting ready and being prepared to take a test that was presented in one light to him.

[00:18:00] Speaker 02:
And so the district court made

[00:18:02] Speaker 02:
a slew of findings all in support of this, which is unquestionably relevant to the analysis here.

[00:18:11] Speaker 02:
Because when you're looking in the context, in the Miranda context, the background experience and conduct of the accused is always relevant.

[00:18:19] Speaker 02:
That's a question we always look at, but when you have a polygraph situation where there is a once valid waiver of rights, then we have to look at what that waiver said and what the person would have understood about that waiver and how it was presented and then what happened in the time that went by after, how much time went by, and then the way that the agent approached the person after the test and the way that they conducted the questioning.

[00:18:45] Speaker 02:
But really the turning point for the district court

[00:18:47] Speaker 02:
was the moment when she ended the test and said, all right, you failed or you didn't pass the test.

[00:18:54] Speaker 02:
Now we need to talk about what happened.

[00:18:56] Speaker 02:
Um, there's no case where there's mandatory language like that and rewarning has not been required.

[00:19:02] Speaker 02:
Um, and the other piece is that counsel, but isn't it also true?

[00:19:05] Speaker 03:
There's no case where a warning has been required.

[00:19:10] Speaker 03:
Well, there was, we have a test from fields.

[00:19:13] Speaker 03:
No, but you just said there was no case that at the point in time where the polygraph stopped, that there's no case that tells us that a warning is not required.

[00:19:22] Speaker 03:
But I would say, at least from my review of the briefs, the contrary is true as well.

[00:19:26] Speaker 03:
And what we're doing here is applying a fields test to look at whether the circumstances have changed and then analyzing whether or not a rewarning was appropriate.

[00:19:33] Speaker 03:
But there's no hardline rules on this, right?

[00:19:35] Speaker 02:
Well, there's no bright light rule, but there are circuit court cases where rewarning was required.

[00:19:40] Speaker 02:
in the Ninth Circuit and the First Circuit.

[00:19:42] Speaker 03:
Based upon the change in circumstances.

[00:19:44] Speaker 03:
Yes.

[00:19:46] Speaker 03:
If you remove this out of the polygraph context, you mention there's ways to analyze statements, there's technical compliance with Miranda, but then just general voluntariness.

[00:19:57] Speaker 03:
Are you conceding or contesting the factors that we have applied in cases about voluntariness generally?

[00:20:03] Speaker 03:
And you've discussed some of them already.

[00:20:06] Speaker 03:
Are you

[00:20:07] Speaker 03:
Are you making an argument that his statements would not be voluntary as a separate argument compared to just he needed to be warned again after the polygraph test?

[00:20:18] Speaker 02:
That is a separate argument that I have made and stand by it.

[00:20:24] Speaker 02:
It's not dispositive because on the waiver issue, the district courts

[00:20:29] Speaker 02:
decision was sound and supported, and there's no reason to reverse it.

[00:20:33] Speaker 02:
And so this court doesn't need to reach that issue in this case.

[00:20:35] Speaker 02:
But a lot of the findings that she made and, in fact, the way she phrased her holding do support a conclusion that the statements also weren't voluntary.

[00:20:46] Speaker 02:
And of course, they are overlapping inquiries.

[00:20:48] Speaker 02:
But they're not controlling the voluntariness question, because it's a different analysis.

[00:20:54] Speaker 02:
And so that's why Peña has limited application to this case.

[00:20:58] Speaker 02:
And even if you want to look at the coercion and the question of coercion and voluntariness alone, all of the things that I just laid out about the situation that made it coercive leading up to the change in circumstances also inform that too and make it different than Peña.

[00:21:17] Speaker 02:
central issue in all of the briefing of this case and in the district court's decision was about whether the waiver that he signed before he took the test applies to his post-polygraph interrogation.

[00:21:30] Speaker 02:
And what the district court did, even though now the government really tries to drill down on the factors and exclude most of the ones that the district court considered, it looked at these factors that

[00:21:43] Speaker 02:
are articulations of the totality.

[00:21:45] Speaker 02:
And that is unquestionably relevant.

[00:21:48] Speaker 03:
So if we have, maybe would take issue with some of the factors that the district court found most important.

[00:21:53] Speaker 03:
For example, the district court found that, I think, Agent Coyle switched from her role, I think this was as it was described, from a neutral test administrator to an interrogator.

[00:22:03] Speaker 03:
Well, let's say I disagree and say she was never neutral.

[00:22:06] Speaker 03:
And I would disagree with that finding.

[00:22:09] Speaker 03:
If we're looking at the totality, what other factors would you say beyond just what the five that the district court really focused on that you think are important for us to consider as well?

[00:22:19] Speaker 02:
Well, I don't think it boils down to a list of factors.

[00:22:23] Speaker 02:
I think all of these circuit courts have sort of looked at different facts and maybe... Sure.

[00:22:29] Speaker 03:
So what are the facts of your client or this circumstance that you would stress that we really take a look at?

[00:22:35] Speaker 02:
It is the progression and what was conveyed to him from the beginning of the encounter through to the end of the test.

[00:22:41] Speaker 02:
And then the shift after the test into this now, what it really amounted to was he was being treated like someone who was innocent until proven guilty.

[00:22:53] Speaker 02:
And then after the test, suddenly it's, you're guilty, you have to, now you're presumed guilty, you have to explain what happened.

[00:22:59] Speaker 02:
And that was the way she then conducted the interrogation.

[00:23:02] Speaker 02:
Whatever her tone was,

[00:23:04] Speaker 02:
That's what she was doing.

[00:23:05] Speaker 02:
And that's not dispositive to the question of whether it needed to be rewarned, because the turning point was really as soon as she demanded an answer at the end of the test.

[00:23:14] Speaker 02:
But it confirms and compounds that conclusion.

[00:23:19] Speaker 04:
So it... Do you agree with the district court's description of the manner in which the interrogation took place?

[00:23:28] Speaker 02:
Well, I think...

[00:23:30] Speaker 02:
First, the characterization of the interrogation as accusatory is definitely, I mean, even Agent Cobb called it highly accusatory.

[00:23:41] Speaker 02:
And I think because she repeatedly said, you know,

[00:23:45] Speaker 02:
this, you're not telling me what actually happened suggesting that he was lying.

[00:23:49] Speaker 02:
That is sort of by definition accusatory aggressive.

[00:23:53] Speaker 02:
I mean, the government seems to assume that in order to be aggressive, it had to be violent, which I don't agree with.

[00:23:58] Speaker 02:
I think it was, she was aggressive in her pursuit of the statements.

[00:24:03] Speaker 04:
Unrelentingly aggressive.

[00:24:06] Speaker 02:
It was unrelenting.

[00:24:07] Speaker 02:
She was finding different ways throughout the entire course to push him and find emotional access points for him.

[00:24:16] Speaker 02:
But again, maybe even if this court thinks that it was a stretch or an exaggeration at the point in the opinion where she framed it that way, because she talked about this interview in various shades for pages, the district court.

[00:24:32] Speaker 02:
And there's one spot, I think, where it says that, unrelentingly aggressive and accusatory.

[00:24:37] Speaker 02:
That wasn't central to the finding because she located the shift.

[00:24:43] Speaker 02:
The moment he disconnected the test, began reporting and employed mandatory language conveying that because he had not passed the test, he had no choice but to continue answering her questions.

[00:24:53] Speaker 04:
Have you come across a case and you have to get past your Miranda issue to answer my question.

[00:25:05] Speaker 04:
So we're going to assume

[00:25:07] Speaker 04:
You're just going to assume that, for purposes of my question, that the Miranda warning was good.

[00:25:14] Speaker 04:
Have you come across a case where this type of soft-spoken but very persistent type of questioning resulted in a finding that a confession was not voluntary?

[00:25:32] Speaker 02:
No, I don't think so.

[00:25:34] Speaker 02:
But I will say that,

[00:25:37] Speaker 02:
Miranda itself talks about the coercive nature of these psychological tactics, the read method that was discussed earlier.

[00:25:46] Speaker 02:
And it is true that recently, the kind of physical violence that you used to see in interrogations isn't something that officers do anymore.

[00:25:55] Speaker 02:
That doesn't mean that they aren't overbearing someone's will, which is really the guiding standard, by using psychologically coercive methods.

[00:26:06] Speaker 00:
Can I ask you about the prior acts since time's running low?

[00:26:10] Speaker 02:
Yes.

[00:26:11] Speaker 00:
Is the example in Comanche the hypothetical dicta?

[00:26:17] Speaker 00:
Because that case obviously did not involve the same situation with the wife.

[00:26:23] Speaker 02:
Well, I don't think it's dicta, but I think the most important thing that Comanche says that we accept is that when

[00:26:32] Speaker 02:
404b evidence is being introduced and its purpose requires an inference based on propensity, then it's improper.

[00:26:38] Speaker 02:
And so no matter what the purpose the government articulates is, if it requires a propensity inference, then it's invisible.

[00:26:47] Speaker 02:
And the chain of inferences that the government sets out in its briefing all are just ways of talking about propensity evidence.

[00:26:56] Speaker 02:
Dicta or not, I don't think it's controlling, but certainly Comanche was laying out how its holding applied to a circumstance like this one, and so I think it makes it pretty easy.

[00:27:06] Speaker 02:
I would like to address the text messages if I can.

[00:27:13] Speaker 02:
So there is no case where statements like this have been introduced for their effect on the listener, where it's an accumulative effect.

[00:27:22] Speaker 02:
distinct from the effect that seems to be proven in real time and based upon a chain of inferences again.

[00:27:29] Speaker 02:
The government characterizes the non-hearsay purpose in a way that is actually just rife with inferences that each one requires a leap.

[00:27:40] Speaker 02:
At one point, I count four such inferences.

[00:27:44] Speaker 02:
The government says the jury might reasonably infer it's the sort of thing that one remembers.

[00:27:50] Speaker 02:
That's an inference.

[00:27:50] Speaker 02:
It's the sort of thing that might make someone feel insecure.

[00:27:54] Speaker 02:
There's an inference.

[00:27:55] Speaker 02:
And it's the sort of thing that could make an insecure person resort to violence.

[00:27:58] Speaker 02:
So there's this multi-step kind of process you have to go to to extrapolate from these messages the purpose that the government is saying it wants to introduce the messages for.

[00:28:09] Speaker 02:
And that is not what the effect on the listener exception is for.

[00:28:14] Speaker 02:
The effect on the listener applies when there's a direct causal effect.

[00:28:20] Speaker 02:
And so the messages or the statements spur someone into action and they do something that can only be explained by introducing this statement.

[00:28:29] Speaker 02:
That's not what these messages are.

[00:28:30] Speaker 02:
These messages are about the truth of the matter asserted, which is that she was trying to break up with him.

[00:28:38] Speaker 02:
And so those are, there's no way to get the messages in under that exception.

[00:28:44] Speaker 00:
I'm going to give you a couple extra minutes, so don't rush that fast.

[00:28:49] Speaker 02:
Because I'm going to give opposing counsel a couple of minutes on rebuttal Are there any further questions?

[00:28:58] Speaker 04:
I'm sure I can come up with some go ahead if you have something else you want to say Do you have any example of

[00:29:13] Speaker 04:
I mean, you heard what I was telling your opposing counsel.

[00:29:17] Speaker 04:
It strikes me that a problem with these messages is we can't look at them and tell what the effect on the listener is.

[00:29:26] Speaker 04:
We look at these and there's seemingly no effect on the listener.

[00:29:31] Speaker 04:
The listener says nothing in return.

[00:29:33] Speaker 04:
And I mean, are you aware of text messages or emails or communications?

[00:29:42] Speaker 04:
where someone throws out a, I'm going to break up with you or whatever the case may be.

[00:29:46] Speaker 04:
And the, and the response is nothing.

[00:29:49] Speaker 04:
And then they're admitted to show the effect on the listener.

[00:29:55] Speaker 02:
I'm not aware of a case like that.

[00:29:56] Speaker 02:
And I would point to there's a 10th circuit case where I think

[00:30:02] Speaker 02:
this court said at one point, the effect is obvious.

[00:30:06] Speaker 02:
And so that's, oh no, that was a Seventh Circuit case, but the inference is obvious.

[00:30:12] Speaker 02:
So here, it's not obvious because you can tell the government is sort of casting around for a way to articulate the effect.

[00:30:22] Speaker 03:
Why isn't it obvious?

[00:30:23] Speaker 03:
Isn't it the point that it goes to that there was volatility in their relationship?

[00:30:30] Speaker 02:
But that isn't an effect on the listener.

[00:30:34] Speaker 02:
The point of volatility in the relationship, that's an inference about the nature of their relationship, which depends on the statements being true, because it's that she was breaking up with him rather than them causing him to do something.

[00:30:48] Speaker 02:
The effect on the listener is a very finite exception, and it just doesn't work here.

[00:30:57] Speaker 02:
And for those reasons, we ask that, if there are no further questions, that the district court's well-reasoned conclusions be affirmed.

[00:31:03] Speaker 02:
Thank you.

[00:31:14] Speaker 00:
Counsel, you have a couple of minutes.

[00:31:17] Speaker 01:
I appreciate the honor.

[00:31:18] Speaker 01:
I'd like to just pick up with Judge Federico's question about

[00:31:22] Speaker 01:
Doesn't it go to the volatility in the text messages of their relationship?

[00:31:25] Speaker 01:
And I do think it goes to the volatility of their relationship and that he knows it.

[00:31:30] Speaker 01:
Importantly, he knows this relationship is not hunky-dory.

[00:31:34] Speaker 01:
He knows that his longtime girlfriend has told him like 10 times, we're done.

[00:31:39] Speaker 01:
He tells the investigator on the day of her death.

[00:31:41] Speaker 00:
Which seems to cut the other way.

[00:31:44] Speaker 00:
In other words, oh, as usual, another email saying that we're breaking up as though he's not going to believe that it's for real.

[00:31:51] Speaker 00:
It's just something that they do.

[00:31:52] Speaker 01:
I mean, probably the eighth time you hear this and you haven't broken up, you're not going to give it as much credence.

[00:31:58] Speaker 01:
I totally understand that, but a relationship in which somebody is saying over and over, we're done, I'm not happy, you're an unfaithful alcoholic, all of this stuff, that's not a relationship with no issues.

[00:32:10] Speaker 01:
That's what he told the FBI on the morning that they arrived at the scene, right?

[00:32:16] Speaker 01:
He knows he is saying something that he cannot personally believe to be true.

[00:32:21] Speaker 01:
He knows this is not a relationship with no issues.

[00:32:25] Speaker 01:
This is up and down drama all the time.

[00:32:28] Speaker 01:
So he knows that if for no other reason than because of these messages that she had sent him.

[00:32:34] Speaker 01:
That was a purpose that the government identified.

[00:32:37] Speaker 01:
And it's not the matter asserted in the text messages.

[00:32:40] Speaker 04:
I mean, isn't it just a different way of saying what's asserted in the text messages?

[00:32:48] Speaker 04:
Listen, she's told him multiple times she was going to break up with him.

[00:32:53] Speaker 04:
Wait, we're not offering it for the truth.

[00:32:55] Speaker 04:
We're just, we are offering to show it that they had a volatile relationship.

[00:33:00] Speaker 04:
I mean, sort of what's the difference?

[00:33:02] Speaker 04:
If it wasn't volatile, she wouldn't be threatening to break up with him.

[00:33:07] Speaker 04:
I mean, it's just one signal.

[00:33:09] Speaker 04:
You know, they're both the signal of the same thing.

[00:33:11] Speaker 01:
A lot of these hearsay issues are pretty nuanced in what the truth asserted is and what the purpose is.

[00:33:17] Speaker 01:
But here, let's not even take the breakup ones.

[00:33:20] Speaker 01:
Let's take the ones where she says, you've cheated on me.

[00:33:23] Speaker 01:
You can't handle your drink.

[00:33:25] Speaker 01:
Those are assertions, and we don't care if they're true.

[00:33:28] Speaker 01:
We care that he knows she has accused him of these things.

[00:33:31] Speaker 01:
And a person who knows that cannot truthfully tell the FBI, this is a relationship with no issues.

[00:33:36] Speaker 01:
We were just fine.

[00:33:38] Speaker 00:
Any further questions?

[00:33:40] Speaker 00:
Right.

[00:33:41] Speaker 00:
Thank you, counsel.

[00:33:42] Speaker 00:
Thank you, Your Honor.

[00:33:42] Speaker 00:
Thank you both for your arguments.

[00:33:45] Speaker 00:
The case is submitted and counsel are excused.