[00:00:00] Speaker 01:
And the last matter before us today is 23-2047, United States versus Pena.

[00:00:18] Speaker 02:
Good morning, Your Honors.

[00:00:19] Speaker 02:
Kurt Mayer on behalf of Jose Pena.

[00:00:23] Speaker 02:
In this appeal, we're questioning what it means to give a statement voluntarily.

[00:00:29] Speaker 02:
A person should be able to decide for himself whether to speak.

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It should be an unconstrained, independent choice, untainted by tactics using inducements and improper influences brought to bear by the police in order to get the person to confess.

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Here, far from being unremarkable in the aggregate, the tactics used by Peña's interrogator, Rodriguez, were extraordinary.

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They were intended

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to undermine his ability to decide for himself whether to speak.

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And that Peña did not decide for himself to speak but was induced and improperly influenced to do so is best shown by Rodriguez using Peña's wife Ramirez to collaborate with him to get him to confess to the sex act with his daughter.

[00:01:23] Speaker 01:
The district court made a factual finding

[00:01:27] Speaker 01:
that I'm forgetting her last name.

[00:01:30] Speaker 01:
I think it's different.

[00:01:31] Speaker 01:
Judge Vasquez.

[00:01:32] Speaker 01:
No.

[00:01:33] Speaker 01:
Ramirez.

[00:01:35] Speaker 01:
Ramirez was not acting as an agent of the police beyond the point of informing Mr. Pena that in fact his daughter had named him as the person in the video.

[00:01:53] Speaker 01:
Would you have to show that that finding

[00:01:57] Speaker 01:
was clearly erroneous for us to find that she was acting as an agent at that point.

[00:02:04] Speaker 02:
Your Honor, I don't believe so.

[00:02:07] Speaker 02:
Why not?

[00:02:08] Speaker 02:
Well, because first of all, the court looks at the whole record.

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And this is a legal issue.

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The issue is, was the statement made voluntarily?

[00:02:17] Speaker 01:
The issue of whether his confession was coerced

[00:02:21] Speaker 01:
I agree with you is a legal issue that's based on all of the facts and circumstances, but isn't, I mean that's my question, isn't the factual finding of the role of Ms.

[00:02:38] Speaker 01:
Ramirez reviewed by us for whether it's clearly erroneous?

[00:02:43] Speaker 02:
Factual findings are, but our position is that this was a legal finding.

[00:02:48] Speaker 01:
That they were at least a mixed.

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A mixed finding, if you will.

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But we certainly believe it was a legal finding.

[00:02:55] Speaker 04:
Let me make sure I understand.

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You believe that the district court's conclusion that Ms.

[00:03:00] Speaker 04:
Ramirez was not acting as an agent for the police was a legal conclusion.

[00:03:06] Speaker 02:
Yes, Your Honor.

[00:03:08] Speaker 02:
And the reason I say that is because when you look at Colombe, the Supreme Court case, there also a wife was used to get a person to confess.

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And the court wasn't concerned about the agency.

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That never even came into play in their analysis of what happened.

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They were simply, they weren't interested in what means she used to coax him or what her motive was.

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It was simply, did she ask her husband to confess?

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And that's all that mattered to the court.

[00:03:37] Speaker 01:
And so that's why we're saying- Well, but the court, I think more than that mattered to the court in Columbia.

[00:03:43] Speaker 01:
I mean, it was a pre-arranged

[00:03:46] Speaker 01:
use of the wife there with the police officer admitting that he asked Mrs. Colombe to help the police and that he wanted to use her as a means of securing her husband's confession.

[00:04:03] Speaker 01:
We don't have, I mean, the testimony of the officer here is directly contrary to that, isn't it?

[00:04:10] Speaker 02:
Well, Your Honor, what I would say is that it's pretty clear that he brought her in

[00:04:16] Speaker 02:
to collaborate with him.

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And the reason I say that is he says to Pena, he says, I'm bringing your wife precisely so she can explain to you that this is not a fabrication.

[00:04:30] Speaker 02:
I want you to hear it from the mouth of a loved one.

[00:04:32] Speaker 01:
Right.

[00:04:32] Speaker 01:
That what is not a fabrication?

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I mean, the issue is that, according to the testimony of the officer, which the district court believed, that

[00:04:46] Speaker 01:
Mr. Pena would not believe that his daughter had turned him in.

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And they said they were bringing the wife in for the specific purpose of disabusing him of the notion that his daughter wouldn't have reported him.

[00:05:04] Speaker 02:
That's true, Your Honor, but that's not what happened.

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Because if that was the purpose, she would have been in and out of there in less than a minute.

[00:05:11] Speaker 02:
We cited that

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If the court looks at 242.13 to 243.09, which is on pages 133 to 34 of the transcript, it's clear that that's not what's happening here.

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Because what happens then is the two of them use shared themes and tandem questioning to get Kenya to talk.

[00:05:31] Speaker 04:
Do you have any evidence that the wife was involved in a shared theme or a tandem kind of operation to get him to confess?

[00:05:41] Speaker 02:
Well, as far as

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her or the Rodriguez saying that, the only thing I can point the court to is a trial.

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She did say that she was asked to come in to help them.

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But however, even if there's no specific evidence, the evidence here shows that the two of them were working together.

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If you look, for example, Your Honor, at the shared teams, there's four of them, tell the truth, your daughter's life is at stake, the police you heard help, and jail might not be a possibility.

[00:06:10] Speaker 02:
If you look at the transcript when she's brought in, when Ramirez is brought in, she and Rodriguez are questioning him in tandem.

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They're using the same themes.

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For example, when Ramirez comes in, the first thing she says to him is, tell the truth, tell the truth.

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This is something he'd already heard 37 times from Rodriguez.

[00:06:30] Speaker 01:
Well, the first thing she says is she tells him that, in fact, his daughter did report it.

[00:06:34] Speaker 02:
Yes, Your Honor, that's correct.

[00:06:36] Speaker 01:
OK.

[00:06:36] Speaker 01:
That's correct.

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And then she then blurts.

[00:06:40] Speaker 01:
you know, come on, just tell the truth.

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Right, and she says your daughter wants to kill herself.

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That's another theme that was already introduced earlier in the interrogation by Rodriguez.

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And this is, for our position, this is extremely problematic because here you have somebody, what the purpose of that was, was to get

[00:07:06] Speaker 02:
Peña to fear, to believe and to fear that unless he confessed, his daughter's life was at stake.

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And again, during this period of time that Ramirez is in there, the two of them, her and Rodriguez, go back and forth talking about the daughter's life being at stake.

[00:07:23] Speaker 01:
What do we do with the fact that three separate times the officer said, should we have your wife leave?

[00:07:31] Speaker 01:
And Mr. Peña said, no, she can stay.

[00:07:34] Speaker 02:
Your Honor,

[00:07:36] Speaker 02:
at the point that he says, your wife can leave.

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And he says, no, it's okay, she knows everything.

[00:07:42] Speaker 02:
That was the point at which she had already sobbed and began crying.

[00:07:49] Speaker 02:
So her effect on him had already passed.

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She was used by Rodriguez to play on his emotions and get him to admit to the sex act.

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So by the time he said she can leave,

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It was already done.

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She had done the work that Rodriguez had brought her in there for.

[00:08:11] Speaker 01:
Well, one of the things that the district court relied on in concluding that Ms.

[00:08:18] Speaker 01:
Ramirez was not acting as an agent of the police officers was that Ms.

[00:08:24] Speaker 01:
Ramirez seemed to have a different view of what his truthful confession would show.

[00:08:33] Speaker 01:
that she seemed to still be under the impression that there was this gang that had threatened to kill him, and that this was the only way that they would not kill him.

[00:08:47] Speaker 01:
And that the police, on the other hand, believed that that was not true.

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And one of the things the district court relied on is when you look at her comments, she says, go ahead and tell them the truth, because right now,

[00:09:02] Speaker 01:
They think it's all on you.

[00:09:03] Speaker 01:
They think this is all your fault.

[00:09:05] Speaker 01:
Is that a reasonable assessment by the district court?

[00:09:11] Speaker 02:
First of all, we don't think it's relevant.

[00:09:13] Speaker 02:
And second of all, it's not reasonable.

[00:09:16] Speaker 02:
It's not relevant because it's the effect on Peña that matters.

[00:09:20] Speaker 02:
Were they playing on his emotions by bringing this up?

[00:09:23] Speaker 02:
And I would point out to the court, too, that Rodriguez admitted in his testimony at this question hearing

[00:09:29] Speaker 02:
that at that point that he brought Ramirez in, he had not gotten Peña to admit that he had had sex with his daughter.

[00:09:37] Speaker 02:
And that was the point of bringing Ramirez in.

[00:09:39] Speaker 02:
The whole business about the cartel didn't matter to him.

[00:09:43] Speaker 02:
As a matter of fact, that's pretty evident too, because again, after he goes through and has him admit all the elements of criminal sexual penetration in New Mexico, he then dismisses his wife, and then they go into the Jaime Pérez thing.

[00:09:59] Speaker 02:
Her point, his point of bringing her in was to play on Kenya's emotions, to get him to confess to the sex act.

[00:10:07] Speaker 02:
He figured he would take care of the Jaime Perez thing by himself.

[00:10:12] Speaker 02:
Didn't need her there.

[00:10:13] Speaker 02:
And there was also an issue about what would happen if he pushed that with her there.

[00:10:19] Speaker 02:
How would she react?

[00:10:20] Speaker 02:
She was much more useful to him if she was still believing that there was a cartel involved, as opposed to having him say,

[00:10:28] Speaker 02:
Oh, by the way, this was all me.

[00:10:30] Speaker 02:
I'm the one who inveigled our daughter to have sex with me.

[00:10:36] Speaker 03:
So as to harmless air, there is a whole litany.

[00:10:50] Speaker 03:
And if you analyze the evidence, you have the cell phone and the Facebook evidence

[00:10:57] Speaker 03:
of Pena setting up this scheme.

[00:11:01] Speaker 03:
You have his fabrication of being beaten, followed by a denial of that whole thing.

[00:11:11] Speaker 03:
You have videos of Pena having sex with a female.

[00:11:16] Speaker 03:
You can't identify, facially, who that is, but the

[00:11:24] Speaker 03:
woman is holding a phone that has a unique case that is identical to the one of his daughters.

[00:11:33] Speaker 03:
She has white fingernail polish, exactly like his daughter.

[00:11:39] Speaker 03:
And his daughter struggles with her testimony, but ultimately says, I believe so, in response to a question of whether she had sex with her father.

[00:11:52] Speaker 03:
There was a disclosure of sexual activity with the father to the resource officer at school.

[00:12:00] Speaker 03:
She told the nurse that she was forced to have sex with a family member.

[00:12:07] Speaker 03:
She was visibly distraught on October 4.

[00:12:13] Speaker 03:
She was a very good student before the incident.

[00:12:20] Speaker 03:
There was male DNA found in her vagina, and penis semen on her underwear.

[00:12:32] Speaker 03:
Now, why is the air, if any, not harmless in light of the record?

[00:12:39] Speaker 02:
Your Honor, there must be proof beyond reasonable doubt that the verdict given here was surely unattributable to the confession.

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And that can't be proven here when we consider how damning a confession is.

[00:12:56] Speaker 02:
And I would add to that, too, that there were specific elements of the charge defenses that the government did not have direct evidence on.

[00:13:05] Speaker 02:
Specifically, the first charge is incite enticement.

[00:13:11] Speaker 02:
That came from his statement that he was Jose Pena.

[00:13:16] Speaker 02:
Because if this cartel threat was something that could have been a defense,

[00:13:20] Speaker 02:
then there's a question about who is enticing her to do this.

[00:13:24] Speaker 02:
The same goes to the other charges, too.

[00:13:28] Speaker 01:
I don't understand what you just said.

[00:13:30] Speaker 02:
I don't understand it either.

[00:13:31] Speaker 02:
What I'm saying, Your Honor, is if you take the confession out of the case, right?

[00:13:39] Speaker 01:
Well, that ignores the fact that they have all the

[00:13:44] Speaker 01:
computer information that points to, they don't need him to confess that he is the one that was enticing his daughter because they have a whole bunch of evidence based on use of the website and where he is and that he is the one, the only one who knows he's at Walmart.

[00:14:08] Speaker 01:
I think it is when she's contacted and that she's being contacted.

[00:14:12] Speaker 01:
It's like the calls coming from your own house.

[00:14:14] Speaker 01:
She's being contacted on a device that's connected to the same internet connection because they're in the same house.

[00:14:22] Speaker 02:
But what I'm saying, Your Honor, is that this isn't about whether without this confession at a trial, he would surely be convicted.

[00:14:31] Speaker 02:
The question is, is the verdict here surely unattributable to the confession?

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And that's not so here.

[00:14:39] Speaker 02:
The confession was featured by the government in their opening, in their closing,

[00:14:43] Speaker 02:
When we raised the reasonable doubt in our closing, the government pointed that, well, whatever doubt you might have, that's solved by his confession.

[00:14:53] Speaker 02:
We're not arguing that the government had no evidence whatsoever.

[00:14:58] Speaker 02:
But that's not the question here.

[00:14:59] Speaker 02:
The question is, is the verdict truly unattributable to the statement?

[00:15:05] Speaker 02:
And it's not.

[00:15:09] Speaker 01:
whether the verdict resting on the permissible evidence would have been the same in the absence of the coerced confession.

[00:15:18] Speaker 02:
Okay, that's a sure way.

[00:15:20] Speaker 02:
I mean, we point to Glass.

[00:15:21] Speaker 02:
Glass talks about the context in which it came in, how it was used, and how it compares, certainly.

[00:15:30] Speaker 02:
But our point in our reply was to point out that, for example,

[00:15:37] Speaker 02:
Your Honor and Judge Murphy pointed out about the electronic evidence.

[00:15:41] Speaker 02:
Our position was there was doubt about that, that there was these interlocking IP addresses don't tell you who's using what device and when.

[00:15:50] Speaker 02:
And so there was some question about that.

[00:15:52] Speaker 02:
The same with the DNA.

[00:15:54] Speaker 01:
Well, what about the semen in the underwear?

[00:15:56] Speaker 01:
I mean, you know, it's hard to refute that.

[00:16:01] Speaker 02:
There was semen in the underwear.

[00:16:05] Speaker 02:
And how that got there, our theory or our suggestion to the jury was that they were sleeping in bed.

[00:16:12] Speaker 02:
There could be transference, something like that.

[00:16:15] Speaker 02:
But again, well, what I guess what I'm trying to emphasize here, Your Honor, is that it's not whether he would have been convicted without, whether the evidence shows you would have been convicted without it.

[00:16:26] Speaker 02:
It's whether, was the statement attributable to the verdict here?

[00:16:31] Speaker 02:
And it was.

[00:16:32] Speaker 02:
Confessions are so damning.

[00:16:35] Speaker 02:
They're the most probative, damning evidence that the government has when it's coming from a person's own mouth that he committed all the elements of the crime.

[00:16:45] Speaker 03:
Understood.

[00:16:46] Speaker 03:
But let me just back up in your explanation about semen on the underwear.

[00:16:51] Speaker 03:
Was there independent evidence that, other than on the occasion we're talking about, that he was in bed or sleeping with his daughter?

[00:17:04] Speaker 03:
Or are you just saying that could have happened?

[00:17:06] Speaker 03:
Which way is it?

[00:17:07] Speaker 03:
Is there evidence to support that?

[00:17:09] Speaker 02:
There was evidence to support that the two of them slept in the same bed whenever she stayed with her father.

[00:17:15] Speaker 02:
Yes, there was evidence of that.

[00:17:18] Speaker 02:
My time is up.

[00:17:22] Speaker 02:
Thank you.

[00:17:23] Speaker 01:
Thank you.

[00:17:33] Speaker 00:
Good morning.

[00:17:34] Speaker 00:
May it please the court.

[00:17:35] Speaker 00:
Jamie Roybal on behalf of the United States.

[00:17:38] Speaker 00:
The court is aware of the, I think, unique facts in this case, which is that for more than one year, Mr. Peña pretended to be a teenage boy on Facebook to communicate with his teenage daughter.

[00:17:49] Speaker 00:
He convinced her that a Mexican cartel was going to kill their family unless she responded to a very specific threat, which was to have sex with her father and film those videos and send them.

[00:18:00] Speaker 00:
They were filmed and they were sent.

[00:18:02] Speaker 00:
Mr. Peña ultimately did confess to being behind the fake Facebook account that sexual assault of his daughter was captured in eight videos.

[00:18:10] Speaker 00:
After a jury trial, he was convicted of coercion and enticement of a minor.

[00:18:15] Speaker 03:
What about on the confession itself?

[00:18:19] Speaker 03:
This theory that the defendants put out that the presence of Ramirez was initially affected by the government in the effectively

[00:18:31] Speaker 03:
That tainted the whole thing after that.

[00:18:33] Speaker 03:
It even taints Peña's request that she remain in the room.

[00:18:39] Speaker 00:
Yes, Your Honor.

[00:18:39] Speaker 00:
Certainly we're here today because of Mr. Peña's confession.

[00:18:42] Speaker 00:
And I would say, first off, the question of whether or not Miss Ramirez was acting at the direction of the police.

[00:18:52] Speaker 00:
The way that Mr. Peña has framed that in his brief, we believe that this is a question of fact.

[00:18:57] Speaker 03:
Certainly this court does review... Okay, but let's assume that is.

[00:19:01] Speaker 03:
Okay.

[00:19:02] Speaker 03:
And the question is whether it's clearly erroneous.

[00:19:09] Speaker 03:
And they say that it is very clear that she is initially there at the behest of the government.

[00:19:19] Speaker 03:
And that taints the whole thing, including

[00:19:23] Speaker 03:
Peña's subsequent solicitation or subsequent statements that he wants her to remain in the room.

[00:19:32] Speaker 03:
Even if the suggestion is those other things are okay then.

[00:19:38] Speaker 03:
But if she's there at the government's behest, doesn't that taint everything?

[00:19:43] Speaker 00:
It is not, Your Honor.

[00:19:44] Speaker 00:
So what the district court found is that the initial moment that Ms.

[00:19:48] Speaker 00:
Ramirez walked into the room to explain to Mr. Pena that his daughter had in fact reported this to the school resource officer for the purpose of, for that sole purpose, she was acting at the direction of the police.

[00:20:02] Speaker 00:
And what the district court found is that it does not stand to reason, that was what she put in her order, it does not stand to reason that what came after was at the direction of the police.

[00:20:12] Speaker 00:
The district court accepted Sergeant Rodriguez's testimony at the suppression hearing that he brought her in to explain that her daughter had reported it and that beyond that there was no, I believe the word Mr. Mayor used was coordination between the two.

[00:20:26] Speaker 00:
And if you look at her statements, I mean the court has to conduct a de novo review of the voluntariness issue.

[00:20:32] Speaker 00:
If you look at her statements, it is clear that she did not believe that asking him

[00:20:39] Speaker 00:
to tell the truth would have caused him to get into trouble.

[00:20:43] Speaker 00:
And so, you know, things that she said to him, like, right now, because right now they want to blame you, Jose.

[00:20:50] Speaker 00:
They want to blame you for the whole thing.

[00:20:52] Speaker 00:
They're going to put you in jail.

[00:20:55] Speaker 03:
Those kinds of comments.

[00:20:57] Speaker 03:
But this is all before the point of demarcation.

[00:21:02] Speaker 03:
Everything else is after he requested her to remain in the room.

[00:21:05] Speaker 03:
This happens before that.

[00:21:07] Speaker 00:
That does happen before that, right.

[00:21:08] Speaker 00:
But if the argument is just bringing her in, then taints the entire confession, I disagree with that quite strongly.

[00:21:17] Speaker 00:
And I think that the record, again, shows that that's not the purpose, that she did not come into the room to, unlike the Columba decision, in the Columba decision, there was testimony, both I think by the wife and the officer, that he brought her in specifically to ask

[00:21:37] Speaker 00:
the defendant to confess.

[00:21:39] Speaker 00:
And I would also argue that the Columby decision is very distinguishable from our case because that interrogation took place over the course of, I think, four nights and five days.

[00:21:49] Speaker 00:
He asked for a lawyer multiple times, and he didn't get one.

[00:21:53] Speaker 00:
There is nothing remarkable about Mr. Peña's confession other than the content, frankly.

[00:21:59] Speaker 00:
But this is a confession or an interrogation that took place.

[00:22:06] Speaker 03:
Your position is that the record is clear.

[00:22:10] Speaker 03:
Well, it is not a clearly erroneous finding by the district judge that she was brought in to indicate to him that her daughter is so troubled with this.

[00:22:26] Speaker 00:
That's my position, yes, your honor.

[00:22:27] Speaker 00:
And I think that's supported.

[00:22:29] Speaker 03:
And then once she does that, that she is no longer the agent of the government?

[00:22:35] Speaker 00:
Yes.

[00:22:36] Speaker 00:
And I think again, if the court looks at her statements, which the district court did here, that is supported.

[00:22:43] Speaker 00:
So he tells her while she's still in the room, if I tell the whole truth, they're still going to arrest me.

[00:22:50] Speaker 00:
And her response to him is, are you sure?

[00:22:53] Speaker 00:
Maybe the truth will change.

[00:22:55] Speaker 00:
And then again, I think that Mr. Pena has to take some, he must bear some responsibility for asking her to stay in the room

[00:23:02] Speaker 00:
Not once, but twice.

[00:23:03] Speaker 00:
Sergeant Rodriguez asks her, or asks if he can excuse her and he says no, she can stay.

[00:23:09] Speaker 00:
And Ms.

[00:23:10] Speaker 00:
Ramirez herself offers to be removed from the room and he asks her a second time to stay.

[00:23:16] Speaker 00:
And so I don't think that we can say that, you know, there is no case law that we are aware of either at the Supreme Court level in this circuit or any other circuit.

[00:23:28] Speaker 00:
that just the mere presence of a third person in an interview then renders a confession involuntary.

[00:23:34] Speaker 03:
Oh, I understand that.

[00:23:34] Speaker 03:
I mean, the whole issue here is agency, I think.

[00:23:36] Speaker 00:
Yes.

[00:23:37] Speaker 00:
And I think, you know, we cited this in our brief, and I would point the court to it again today.

[00:23:43] Speaker 00:
It's a very different context.

[00:23:45] Speaker 00:
It's a drug case, but United States versus Fernandez.

[00:23:48] Speaker 00:
And this court held that sharing a common goal does not transform an independent actor into an agent.

[00:23:54] Speaker 00:
And so Ms.

[00:23:56] Speaker 00:
Ramirez is

[00:23:57] Speaker 00:
goal was tell the truth because then they will see that a cartel is threatening our family and that this was the only way that you could save our family, right?

[00:24:07] Speaker 00:
Sergeant Rodriguez's goal may be similar, tell the truth because he knows that the truth is not that the cartel is actually threatening the family.

[00:24:18] Speaker 00:
That does not mean that Miss Ramirez is acting at the direction of the police and again,

[00:24:25] Speaker 00:
I think this court would have to reject the district court's, if we want to call it a credibility finding or just acceptance of Sergeant Rodriguez's testimony at the suppression hearing that he did not direct her beyond asking her to come in to explain that the daughter had reported this to the school police.

[00:24:42] Speaker 01:
If we did reject that and we concluded that Ms.

[00:24:46] Speaker 01:
Ramirez was acting as an agent of the police for the whole time she was in there, would you concede that the confession was coerced?

[00:24:55] Speaker 00:
No, and again it's because the voluntariness analysis has five separate factors and not a single one of them is determinative.

[00:25:06] Speaker 00:
And so the district court, I think, did a pretty thorough analysis of each of those five factors and she determined that under the totality of the circumstances, the confession was voluntary.

[00:25:19] Speaker 00:
So again, if this court takes a de novo look at that,

[00:25:25] Speaker 00:
we would have to look at Mr. Peña's age.

[00:25:27] Speaker 00:
He was an adult male.

[00:25:29] Speaker 00:
He was, I think, close to 40 years old at the time.

[00:25:32] Speaker 00:
This was an interview that lasted, I believe it was three hours and 45 minutes, so close to four hours.

[00:25:43] Speaker 00:
You know, I think just looking at all five factors, again, the nature of the questioning, Sergeant Rodriguez wasn't doing anything remarkable.

[00:25:53] Speaker 00:
And the district court made a number of factual findings that were not favorable to Sergeant Rodriguez.

[00:25:59] Speaker 00:
The district court judge did not approve of his tone, for example.

[00:26:05] Speaker 00:
But she also noted there is no civility requirement when we're talking about an interrogation setting.

[00:26:11] Speaker 04:
Well, he was doing more than being uncivil.

[00:26:13] Speaker 04:
He was yelling.

[00:26:14] Speaker 04:
He was shoving his finger in his face.

[00:26:16] Speaker 04:
He was getting up in his space.

[00:26:19] Speaker 04:
All things that are intimidating, right?

[00:26:22] Speaker 00:
I would agree.

[00:26:23] Speaker 00:
partially at least with that judge.

[00:26:25] Speaker 00:
And of course, you don't have any audio recording of the suppression hearing, but he is quite loud.

[00:26:32] Speaker 00:
It's something that he was quite loud at the suppression hearing as well.

[00:26:36] Speaker 00:
When you gave him a microphone, he was even much louder than that as well.

[00:26:41] Speaker 00:
And she found that his tone was quite skeptical of Mr. Pena.

[00:26:46] Speaker 00:
He told him from the outset, I don't believe you for one second.

[00:26:51] Speaker 00:
There's certainly,

[00:26:53] Speaker 00:
were issues, I think, that District Court had with the manner in which he conducted the interrogation.

[00:26:57] Speaker 04:
I mean, that could cut your way, though, too, right?

[00:27:00] Speaker 04:
Because part of the allegation is that they were trying to convince him that he wouldn't be in trouble.

[00:27:08] Speaker 04:
But at the same time, the officer's telling him, I don't believe you from the very beginning.

[00:27:12] Speaker 04:
He's suggesting to him that he thinks he's guilty.

[00:27:15] Speaker 00:
Yes, Your Honor.

[00:27:15] Speaker 00:
I do think that the record shows that Sergeant Rodriguez told him from the outset

[00:27:23] Speaker 00:
what happened here was a problem.

[00:27:25] Speaker 00:
He didn't believe him.

[00:27:26] Speaker 00:
And I would also like to point out, I think it's certainly relevant to the court's review, at no point did Mr. Peña ever ask to speak to an attorney.

[00:27:36] Speaker 00:
At no point did Mr. Peña ever say, I want to invoke my right to remain silent.

[00:27:41] Speaker 00:
Quite the opposite, Mr. Peña confirmed six separate times in the interview that he understood his rights.

[00:27:48] Speaker 00:
And he continued to talk with Sergeant Rodriguez.

[00:27:51] Speaker 01:
Let me ask you about the interrogator saying, if you don't confess, your daughter's going to kill herself.

[00:28:01] Speaker 01:
Your daughter and your son might kill themselves.

[00:28:05] Speaker 01:
What about that?

[00:28:06] Speaker 00:
Is that over the line?

[00:28:07] Speaker 00:
No, Your Honor, both children had reported

[00:28:10] Speaker 00:
suicidal ideations at that point.

[00:28:14] Speaker 00:
The daughter was quite distressed, as you may imagine she would be.

[00:28:18] Speaker 03:
Well, the truth doesn't make it less compelling.

[00:28:21] Speaker 01:
I would point the court to... And he said, you know, if your daughter kills yourself, that will be on you.

[00:28:26] Speaker 01:
That will be your fault.

[00:28:28] Speaker 00:
And I think that when Ms.

[00:28:29] Speaker 00:
Ramirez came into the room, she also told him, your children are suffering and your daughter wants to kill herself.

[00:28:35] Speaker 00:
And so I would point the court to the Supreme Court case.

[00:28:39] Speaker 01:
Again, the fact that it's true doesn't change the analysis of whether it weighs in favor of finding that it was coerced.

[00:28:47] Speaker 00:
Well, what I would say, Your Honor, is I would point the court to the Supreme Court's decision, the Tompkins decision that we cited in our brief.

[00:28:55] Speaker 00:
And the Supreme Court said in that case,

[00:28:57] Speaker 00:
Quote, the Fifth Amendment privilege is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion.

[00:29:06] Speaker 00:
And so I think had, I'll use the hypothetical, had Sergeant Rodriguez made that up on his own, had the daughter not reported that she was going to commit suicide, I think had Sergeant Rodriguez just made that up and told Mr. Peña that that would be a different issue.

[00:29:27] Speaker 03:
what we're suggesting is incorrect.

[00:29:29] Speaker 03:
Is it anything that's truthful, whether compelling a confession or not, is fair game?

[00:29:38] Speaker 00:
I don't think that the children wanted to commit suicide as a result of the situation that was created by Mr. Pena, that that was brought to his attention, that that can be considered official coercion attributable to Sergeant Rodriguez.

[00:29:55] Speaker 00:
Kind of the similar with the Catholic religion comments, right?

[00:29:58] Speaker 00:
And this, I would point the court to the same case.

[00:30:00] Speaker 00:
In that case at the Supreme Court, the defendant stayed nearly silent for three hours, you know, once in a while saying yes or no.

[00:30:10] Speaker 00:
And then the questioning officer asked him if he believed in God.

[00:30:14] Speaker 00:
He started crying and he said yes.

[00:30:16] Speaker 00:
And he said, do you ask God to forgive you for killing those victims?

[00:30:21] Speaker 00:
And then he said yes.

[00:30:22] Speaker 00:
And the Supreme Court found that that was not

[00:30:24] Speaker 00:
That was not unduly coercive.

[00:30:27] Speaker 00:
So I think, again, in this case, that he was confronted with facts that were true does not make the confession involuntary.

[00:30:36] Speaker 03:
Have you exhausted your analysis of the totality of the circumstances and the five factors?

[00:30:42] Speaker 00:
What do you mean, Judge?

[00:30:43] Speaker 03:
Do you think you've covered it all?

[00:30:45] Speaker 00:
Oh, for here today?

[00:30:46] Speaker 00:
Well, I see my time is going quickly, so I would like to address the harmlessness question.

[00:30:54] Speaker 03:
Did you pretty much cover all the factors?

[00:30:56] Speaker 03:
Pretty much, Judge.

[00:30:57] Speaker 00:
I will say just in closing on this topic, I don't think that any of the cases that Mr. Peña cited are at all comparable to the facts that we have in this record.

[00:31:08] Speaker 00:
And so I will move on to address the harmlessness question.

[00:31:12] Speaker 00:
Should the court disagree with us and find that they

[00:31:16] Speaker 00:
The confession was admitted in error.

[00:31:19] Speaker 00:
It is our position that that error was harmless beyond a reasonable doubt.

[00:31:22] Speaker 00:
And we recognize that that is a very high standard.

[00:31:24] Speaker 00:
And I think in this case, we can meet this.

[00:31:27] Speaker 00:
We feel confident we can meet it.

[00:31:30] Speaker 00:
A review of the trial record.

[00:31:32] Speaker 01:
And what is the test for us?

[00:31:36] Speaker 01:
I think the defense's position is that we would have to conclude that the jury didn't rely

[00:31:46] Speaker 01:
at all on the confession to convict him.

[00:31:49] Speaker 01:
Would you agree that that's the standard?

[00:31:51] Speaker 00:
My understanding of the standard is would the jury have convicted him absent the confession?

[00:31:58] Speaker 00:
And I'll do my best to summarize our evidence in 10 seconds.

[00:32:02] Speaker 00:
We had very compelling computer evidence showing that his IP address was the same IP address that was being used.

[00:32:13] Speaker 03:
Did I pretty much cover everything when I listed all those items?

[00:32:17] Speaker 03:
Are there things I missed?

[00:32:19] Speaker 00:
You did cover most of it, Judge.

[00:32:21] Speaker 00:
What I would, may I finish my answer?

[00:32:24] Speaker 03:
Well, I think Chicago did a little, didn't he get more time?

[00:32:26] Speaker 00:
Yeah, but it's fine.

[00:32:27] Speaker 00:
Okay, thank you.

[00:32:29] Speaker 00:
I would point the Court to one specific message that, quote, Jaime Pérez sent Jane Doe, which was it, quote, it doesn't look like you're enjoying it.

[00:32:40] Speaker 00:
Don't be crying.

[00:32:41] Speaker 00:
I want for you to be enjoying it.

[00:32:43] Speaker 00:
And all of the videos that we presented to the jury did not show her face.

[00:32:48] Speaker 00:
This is something that I really emphasized at closing.

[00:32:50] Speaker 00:
The only way he knew that she was crying, which is something that she reported to the SANE examiner as well, is because he was in the room with her.

[00:32:58] Speaker 00:
So that's one thing.

[00:32:59] Speaker 00:
I think the DNA evidence was very compelling.

[00:33:03] Speaker 00:
I think the nature of the Facebook threat, that it was only that sex with her father would cure this issue.

[00:33:10] Speaker 00:
I think that's about it, Judge.

[00:33:14] Speaker 03:
You know, on the ultimate question of would the jury have convicted without the confession, isn't that problematic in light of the government's closing?

[00:33:29] Speaker 03:
They said that even if there was doubt about the other evidence, that conviction could be based solely on the

[00:33:37] Speaker 00:
I don't recall saying it could be based solely on the confession.

[00:33:42] Speaker 00:
What I recall is there's quite a lot, but here's a list of all of the other evidence, but also you do have his confession.

[00:33:52] Speaker 00:
We admit that we used it.

[00:33:54] Speaker 00:
It was compelling evidence, but I disagree with the notion that

[00:33:59] Speaker 00:
we presented with the jury either in opening or in closing or throughout the evidence presented at trial that it was the only thing that they could rely on.

[00:34:09] Speaker 00:
And then if I could just add one more thing.

[00:34:12] Speaker 01:
You're two minutes over.

[00:34:13] Speaker 00:
Oh, thank you Judge, thank you.

[00:34:18] Speaker 01:
And I'm gonna give you two minutes because she ran two minutes over.

[00:34:21] Speaker 01:
I thought he went over.

[00:34:22] Speaker 01:
Did he go over?

[00:34:24] Speaker 01:
He went over two minutes.

[00:34:25] Speaker 01:
Oh, two minutes so we're even, sorry.

[00:34:27] Speaker 01:
We will take this matter under advisement and the court will be adjourned.

[00:34:35] Speaker 01:
Thank you.