[00:00:00] Speaker 03:
Okay, let's see what's going on.

[00:00:02] Speaker 03:
So we're ready on the first case, United States versus Perez.

[00:00:06] Speaker 03:
Mr. Hall.

[00:00:15] Speaker 02:
May it please the court, Adam Hall for Alberto Santos Perez, the appellant.

[00:00:21] Speaker 02:
I request three minutes of rebuttal time.

[00:00:24] Speaker 02:
On August 22nd of 2022, Mr. Perez was

[00:00:29] Speaker 02:
arrested and interrogated by a DEA agent on suspicion of drug trafficking.

[00:00:34] Speaker 02:
Although the agent recited the Miranda warning, he didn't pause or seek or obtain an expressed waiver of the defendant's Miranda rights.

[00:00:43] Speaker 02:
Instead, he sought immediately to obtain a statement from Mr. Perez by using methods of coercion in his manner of interrogation as well as

[00:00:53] Speaker 02:
inducements, promises of leniency to induce a statement by Mr. Perez.

[00:00:59] Speaker 02:
These statements obtained by that DEA agent should have been suppressed as evidence and the district court's contrary conclusion was erroneous.

[00:01:08] Speaker 02:
Mr. Perez requests relief from this court in the form of a reversal of the determination of the district court.

[00:01:15] Speaker 02:
Beginning with the Miranda issue

[00:01:18] Speaker 02:
and whether or not it was waived.

[00:01:20] Speaker 02:
Obviously, as I mentioned moments ago, there was no express waiver, so the government was burdened to demonstrate an implied waiver by the course of conduct of Mr. Perez.

[00:01:31] Speaker 02:
Moreover, that the waiver, express or implied, would be knowing and voluntary on the part of Mr. Perez in the giving, a waiver of his rights in giving of the statement.

[00:01:44] Speaker 02:
Regarding the knowing dimension,

[00:01:47] Speaker 02:
as the court's aware, its measure is and requires an awareness of the consequences of the decision to abandon known right by Mr. Perez.

[00:01:58] Speaker 02:
And there are many factors cited by the government in its responsive brief that indicate that the waiver, if cited by the government, alleged by the government, was not a knowing one.

[00:02:10] Speaker 02:
No warning was given in writing, and Mr. Perez wasn't given an opportunity to read the warnings prior to being called upon to waive them at the insistence of the DEA agent.

[00:02:22] Speaker 01:
What would you say your best case is on the waiver, the best 10th Circuit case that would support your no-pause point?

[00:02:35] Speaker 02:
The case names aren't springing to mind immediately.

[00:02:39] Speaker 02:
The thing that supports most greatly the argument is this court's precedent regarding whether a waiver is knowing and the fact that many of those factors suggest that it's not knowing.

[00:02:52] Speaker 02:
Moreover, the cases cited regarding inducements and coercion tend to suggest that the waiver was not voluntary in the sense required.

[00:03:05] Speaker 01:
So in a sense, your coercion arguments

[00:03:08] Speaker 01:
part of the waiver analysis as well as the young confession?

[00:03:14] Speaker 02:
That is correct.

[00:03:15] Speaker 02:
So not all of the coercion occurred prior to Mr. Perez making comments, which would be part of the government's argument for the course of conduct indicating waiver, but many were which militate against the finding that would be necessary for a waiver, which it was the voluntary in the sense that it was the product of free

[00:03:35] Speaker 02:
and deliberate choice rather than intimidation, coercion, or deception.

[00:03:39] Speaker 01:
Is your argument kind of a hard, because the agent failed to pause and continued the conversation, is, are you asking for a bright line rule that that was, you know, dispositive evidence of no waiver?

[00:03:59] Speaker 01:
Or are we in a totality of the circumstances here?

[00:04:03] Speaker 02:
It would be nice if it was a bright line.

[00:04:05] Speaker 02:
based on my reading of this court's case law that it would support there being a bright line in failing to pause and ask whether there is a waiver.

[00:04:14] Speaker 02:
Certainly, I think an individual read a Miranda warning could, without sort of non-verbally or by conduct, communicate their intention to waive freely and voluntarily.

[00:04:24] Speaker 02:
That is not, however, what happened in connection with Mr. Perez's case.

[00:04:28] Speaker 01:
Under these facts, at what point in time did the government

[00:04:34] Speaker 01:
step over the line.

[00:04:37] Speaker 01:
If it's a totality, you know, I'm just looking at the sequence of the conversation.

[00:04:42] Speaker 01:
You know, when did it go from ambiguous to, you know, hard no?

[00:04:47] Speaker 02:
So there are sort of two questions.

[00:04:51] Speaker 02:
One is when did the waiver occur and when

[00:04:55] Speaker 02:
when was the interrogation such that it became, the statements became involuntary?

[00:05:01] Speaker 02:
And I think either one is going to be a problem for the government in terms of the suppression of evidence and would require a reversal.

[00:05:08] Speaker 02:
But I think the court's question is, okay, how do we know that there was no waiver or at what point do we know that there was no waiver by course of conduct, which would be voluntary?

[00:05:18] Speaker 02:
Certainly, Mr. Perez made a statement in this case and certainly he chose to form the words that came out of his mouth

[00:05:24] Speaker 02:
But that is the case in every involuntary confession case.

[00:05:29] Speaker 04:
Can you pinpoint a time and say at this moment there was a violation and then work backwards with the totality of circumstances and tell us why?

[00:05:38] Speaker 04:
But I don't know exactly when you contend that the violation occurred.

[00:05:44] Speaker 02:
So the nature of the violation is that, and it's made difficult by the absence of any express waiver or invocation.

[00:05:52] Speaker 02:
So the government is the one which is burdened to prove the waiver by course of conduct.

[00:05:58] Speaker 02:
And it's not clear to me from the government's argument when the government contends that waiver took place other than the making of the first exculpatory statement on the part of Mr. Perez.

[00:06:08] Speaker 02:
But what is clear is immediately after the agent's recitation of the Miranda warning, the agent did not pause and instead proceeded to immediately advise Mr. Perez of the

[00:06:21] Speaker 02:
severity of the charges that Mr. Perez was facing.

[00:06:24] Speaker 02:
But that's not a violation in and of itself.

[00:06:28] Speaker 02:
Certainly I agree with that, but it is a comment of a coercive character, a comment tending to try and push in the direction of waiver the defendant into making a statement or statements against his own interest, contrary to the rights that had just been read to him.

[00:06:45] Speaker 02:
So Mr. Perez, after being told he had the right to remain silent, was

[00:06:49] Speaker 02:
threatened with a lengthy incarceration and told that if he did cooperate, it was suggested to him he might be released that day without any charges.

[00:06:59] Speaker 02:
He was told about his ability to challenge the evidence that the agent had collected against Mr. Perez, but that he would be in handcuffs in an orange jumpsuit with the discovery handed to him by his attorney who would advise him in the words of the agent.

[00:07:18] Speaker 02:
that he should talk now, that the agent telling Mr. Perez what an attorney would tell Mr. Perez should he seek to invoke his right to Miranda.

[00:07:30] Speaker 01:
So all of those... Are any of those statements standing alone, coercive?

[00:07:36] Speaker 01:
Like, you know, one statement saying, okay, that's a violation or do we have to lump them together?

[00:07:44] Speaker 02:
I do think they have to be lumped together.

[00:07:46] Speaker 02:
I don't think any one of those statements is particularly violative, but on behalf of Mr. Perez, we agree with the government that the most particularly egregious comments on the part of the agent were those in which the agent placed himself in the hypothetical role of Mr. Perez's attorney.

[00:08:05] Speaker 02:
And then, beyond doing that, tells Mr. Perez what advice

[00:08:09] Speaker 02:
the agent as Mr. Perez's attorney would give the agent, and it was very self-serving for the purpose of the agent's investigation into the case.

[00:08:19] Speaker 01:
Does it matter if a lot of those statements were accurate or even truthful?

[00:08:26] Speaker 02:
I think the court can weigh that in the totality of the circumstances.

[00:08:30] Speaker 02:
But if the historical function of the right against self-incrimination was sort of not to place the defendant in that sort of a situation to begin with, and as cited on page 27 of our brief, there was some extensive discussion of the abuses

[00:08:48] Speaker 02:
that led to the right against self-incrimination by all of the states even prior to the founding of the federal government.

[00:08:57] Speaker 02:
They viewed the cases that had developed in the states prior to the development of that right as having important results where the accused would be browbeaten into giving incriminating statements and be cornered and

[00:09:16] Speaker 02:
end up in contradiction to their own prior statements.

[00:09:20] Speaker 02:
And they viewed that practice to be abhorrent and decided to ban it.

[00:09:25] Speaker 02:
So I think the question is for this court, and this sort of goes to the voluntariness issue as well, is does this case, do these sets of facts look like

[00:09:39] Speaker 02:
something more akin to what is a laudable confession, sort of free flowing, voluntary narrative made by the accused, which was given to a law enforcement agent in order to exonerate sort of the moral sensibility of the defendant.

[00:09:57] Speaker 02:
Or does this look more like the abhorred practice from the founding era where an accused is brow-beaten and cornered and placed in a position which is untenable, effectively forced to give a statement?

[00:10:14] Speaker 03:
And the argument Mr. Perez is- Did any of these founding cases, did any of them include a warning by the officers?

[00:10:22] Speaker 03:
that anything you say can be used against you and you have a right to remain silent, you have a right to an attorney.

[00:10:28] Speaker 03:
Did any of them involve that?

[00:10:30] Speaker 03:
They did not.

[00:10:31] Speaker 03:
Isn't that an important factor here?

[00:10:33] Speaker 02:
I do think that.

[00:10:34] Speaker 02:
I mean, the function of Miranda is to take out of an extrajudicial interrogation the component of coercion inherent in the context of that interrogation, the custodial interrogation.

[00:10:50] Speaker 02:
But this particular agent added additional, well, number one, he undermined his Miranda warning by essentially immediately saying, you're in deep trouble and unless you cooperate with me, you're going to jail today, implying on the other side, you might be let go if you choose to talk to me today.

[00:11:07] Speaker 02:
But two, there are other coercive elements beyond just the fact of custody and the fact of interrogation against which Miranda was designed to

[00:11:18] Speaker 02:
guard those things being inherently coercive.

[00:11:21] Speaker 02:
There were additional coercive elements placed by the DEA agent for which I think the court must also account in deciding whether or not the statement given by Mr. Perez was voluntary.

[00:11:34] Speaker 04:
When you say confession, I just want to get the lay of the land, are we just talking about Cisneros and Craneville?

[00:11:41] Speaker 04:
Because he denied the tapia, right?

[00:11:44] Speaker 04:
So the incriminating statements.

[00:11:46] Speaker 04:
And that's it, though.

[00:11:48] Speaker 04:
That's the universe of the incriminating statements.

[00:11:50] Speaker 04:
Are the sales or dealings with Cisneros and Cranebill?

[00:11:54] Speaker 02:
The sales or dealings with Cisneros or Cranebill, the pre-warning statement that he gave, which was the phone number which served as a connection to evidence of the criminal conduct, that would essentially be the area of the statements that are material.

[00:12:15] Speaker 02:
I see that I've gotten to the point in my rebuttal time.

[00:12:18] Speaker 02:
So unless the court has any additional questions, I'll resume counsel David.

[00:12:26] Speaker 03:
Mr. Brown.

[00:12:46] Speaker 00:
Good morning, Your Honor.

[00:12:47] Speaker 00:
James Brown for the United States.

[00:12:49] Speaker 00:
May it please the Court.

[00:12:51] Speaker 00:
Your Honor, this Court should, from the District Court's finding that the defendant's Miranda waiver and his confession were both voluntary.

[00:12:57] Speaker 00:
The defendant, as this Court knows, received a valid Miranda warning.

[00:13:01] Speaker 00:
He was not subject to prolonged interrogation or detention.

[00:13:05] Speaker 00:
He was not particularly susceptible to coercion based upon his mental or physical characteristics.

[00:13:10] Speaker 00:
And the statements, the incriminating statements that he did make were apparently the result of calculation

[00:13:16] Speaker 00:
rather than coercion, as evidenced by the fact that he denied and minimized his involvement in this offense.

[00:13:24] Speaker 03:
How long was the pause between the Miranda warnings and the statements by the officers that he's in trouble, et cetera?

[00:13:37] Speaker 00:
Well, first we have three statements before the Miranda warning, and then we have the Miranda warning, and then we have

[00:13:46] Speaker 00:
a request by the agent that the defendant talked to him.

[00:13:49] Speaker 03:
Prior to giving the Miranda... And what was the time lapse between the Miranda warnings and the request?

[00:13:58] Speaker 00:
There was no time lapse.

[00:14:00] Speaker 00:
He read the Miranda warning and then he said, you are my target.

[00:14:03] Speaker 00:
And then he proceeded into the, we would like you to cooperate with us.

[00:14:07] Speaker 00:
That's what happened.

[00:14:08] Speaker 00:
As we argue in our brief,

[00:14:10] Speaker 00:
That was a waiver by implication, or implied waiver, as the Supreme Court has found in the Bregui case, which we cite in our brief.

[00:14:19] Speaker 00:
The defendant, through his course of conduct, waived his Miranda rights by making his first exculpatory statement when he denied that he arrived at the scene to pick up the sham, that confedamine that the officers were trying to arrange for him to pick up.

[00:14:36] Speaker 00:
We identify the point of the waiver

[00:14:39] Speaker 00:
in footnote four and page 25 of our brief.

[00:14:43] Speaker 00:
But I'd like to point out one thing that's very important here.

[00:14:46] Speaker 00:
The defendant has actually waived the argument that his waiver was unknowing.

[00:14:52] Speaker 00:
In the district court and in his opening brief, he argued that the waiver was unknowing because it was coerced because of the officer's interrogation methods.

[00:15:01] Speaker 00:
He never argued that he didn't understand the waiver based on the nine factors that we set forth in our brief.

[00:15:07] Speaker 00:
He never argued below

[00:15:09] Speaker 00:
on his opening brief that he did not understand the waiver.

[00:15:12] Speaker 00:
Today, that's his principal argument.

[00:15:14] Speaker 00:
That's what he started out with.

[00:15:15] Speaker 00:
And then he cited the nine factors in our brief and says that he didn't understand the waiver based on those nine factors.

[00:15:22] Speaker 00:
But the fact is that the district court, and that's a waiver, that's changing a theory to a new theory in a reply brief for the first time on appeal, and that's a waiver of that issue.

[00:15:33] Speaker 00:
But it really doesn't make any difference because the district court made a factual finding

[00:15:38] Speaker 00:
that is not clearly erroneous, that is supported by the evidence that the district court cited that the defendant's waiver and his confession were both voluntary.

[00:15:47] Speaker 00:
And that is a factual finding that has never really been challenged in this case with any sort of specificity.

[00:15:54] Speaker 00:
The defendant has never looked at that factual finding and said the court was wrong, clearly this thing the court cited was wrong, was not supported by the record, it's not a permissible view of the evidence.

[00:16:05] Speaker 00:
He's never said that.

[00:16:07] Speaker 00:
That is a non-clearly erroneous actual finding.

[00:16:11] Speaker 03:
It doesn't have a legal component.

[00:16:15] Speaker 03:
Don't the courts say, yeah, the officers did these things.

[00:16:18] Speaker 03:
That's not improper coercion.

[00:16:21] Speaker 03:
That is coercion.

[00:16:22] Speaker 03:
Don't we have a legal issue before us also?

[00:16:26] Speaker 03:
Not just what actually happened, because that probably isn't an issue.

[00:16:34] Speaker 03:
Everything's recorded.

[00:16:36] Speaker 03:
So is it really just a factual finding for which we review for clear error, or is there a legal component?

[00:16:43] Speaker 00:
Well, it's a genomic review, and the court reviews the legal findings as the court knows.

[00:16:48] Speaker 00:
The court reviews the legal findings to see if they're correct, and the court reviews the factual findings for a clear error.

[00:16:53] Speaker 00:
And here the court made an underlying factual finding that his waiver was voluntary based upon his personal characteristics.

[00:16:59] Speaker 00:
He was 33 years old.

[00:17:00] Speaker 00:
He spoke English perfectly.

[00:17:01] Speaker 00:
He had a GED.

[00:17:03] Speaker 00:
He didn't have any mental problems, no substance abuse problems.

[00:17:08] Speaker 00:
That was the basis of the finding.

[00:17:10] Speaker 03:
The argument about involuntariness is based on the conduct of the officer, not the characteristics of the defendant.

[00:17:18] Speaker 03:
And even if he

[00:17:20] Speaker 03:
satisfied all those characteristics that you just mentioned, if the officer were really abusive, at some point you would concede that it's involuntary, wouldn't you?

[00:17:33] Speaker 00:
Yeah, that would be the legal piece of the de novo review.

[00:17:36] Speaker 00:
And that gets into the second issue, which we call issue 2B, which goes to the voluntariness of the confession as opposed to the voluntariness of the waiver.

[00:17:47] Speaker 00:
I'd like to talk about that.

[00:17:49] Speaker 00:
And that's, again, it's a NOAA review.

[00:17:51] Speaker 00:
The court reviews the factual findings for clear error.

[00:17:53] Speaker 00:
We have a non-clearly erroneous factual finding that the defendant voluntarily confessed.

[00:17:59] Speaker 00:
The court considered all of the so-called coercive factors that the defendant talks about.

[00:18:05] Speaker 00:
The first one, probably one of the main ones, is this promise of leniency issue.

[00:18:11] Speaker 00:
The only offer made by the agent was that if you work with us, you can help yourself out.

[00:18:18] Speaker 00:
That was the offer.

[00:18:19] Speaker 00:
That is a vague, nonspecific, non-committal assurance, limited assurance, that this court has found to be a permissible interrogation tactic.

[00:18:30] Speaker 00:
We appoint the court to the United States v. Rotabah decision as probably the closest decision we have.

[00:18:36] Speaker 00:
It's probably our best case for this issue.

[00:18:41] Speaker 00:
And that is where the officer said, if you work with us, we'll go easy on you.

[00:18:46] Speaker 00:
This court found that, in the Rodabau case, to be a permissible interrogation tactic.

[00:18:50] Speaker 00:
In our case, it's similar.

[00:18:51] Speaker 00:
The officer basically said, if you work with us, you can help yourself out.

[00:18:56] Speaker 00:
There's really not a distinction.

[00:18:57] Speaker 01:
In the Rodabau case, the court... But, you know, Mr. Hall conceded that any one of these standing alone would probably not be coercive.

[00:19:05] Speaker 01:
So, you know, it's like reasonable suspicion.

[00:19:07] Speaker 01:
We're looking at the totality of the circumstances.

[00:19:10] Speaker 01:
So it just wasn't that statement.

[00:19:13] Speaker 01:
Some courts, I don't think our circuit's taken a position clearly yet that separation from family or children can be coercive.

[00:19:24] Speaker 01:
Here you've got a cascading series of inducements, promises.

[00:19:30] Speaker 01:
At some point those could be coercive.

[00:19:32] Speaker 01:
The question here is whether they

[00:19:35] Speaker 01:
became coercive.

[00:19:36] Speaker 00:
You know, that's a fair point.

[00:19:37] Speaker 00:
And that goes to the court's point about the totality of the circumstances.

[00:19:40] Speaker 00:
And that's why we dealt with every single point that he made in our briefing.

[00:19:44] Speaker 00:
The court mentioned the separation from family comment.

[00:19:49] Speaker 00:
And the comments were something like, you have four kids.

[00:19:52] Speaker 00:
If you go to jail, you'll be separated from your kids.

[00:19:55] Speaker 00:
It was something like that.

[00:19:57] Speaker 00:
And this court, as a matter of fact, in our 28 jail later, this court has found that such promises

[00:20:02] Speaker 00:
are not inherently coercive or do not necessarily render the confession involuntary.

[00:20:07] Speaker 00:
That's the little case which we cite in our 28J letter, 119F4, page 776, 10th circuit, 2024, where the court, where the officer in that case expressed regret the idea of the defendant and his son being separated indefinitely if the defendant was booked on the first degree murder charge.

[00:20:24] Speaker 00:
And this court said that that did not weigh heavily for a finding of involuntariness under the circumstances, including that the defendant was calm and level-headed throughout.

[00:20:32] Speaker 00:
So that's basically similar to our case.

[00:20:36] Speaker 00:
We think the same rationale applies.

[00:20:38] Speaker 00:
And in support of that finding, the court cited a First Circuit case, United States v. Jacques, which we also referenced in our 28-J letter.

[00:20:47] Speaker 00:
The third thing that the defendant relies upon is this idea that the officer inserted himself as the defendant's hypothetical attorney.

[00:20:56] Speaker 00:
We've acknowledged this comment was advisable.

[00:20:58] Speaker 00:
It was probably not the best practice.

[00:21:01] Speaker 00:
But at the same time, it wasn't necessarily coercive and it wasn't enough to overbear the defendant's will and critically impair his capacity for self-determination.

[00:21:12] Speaker 00:
The agent testified that in making that comment, he was trying to explain to the defendant how this process would play out.

[00:21:20] Speaker 00:
And he was doing that in the context or trying to explain that with the idea in mind that two of the defendants

[00:21:29] Speaker 00:
co-defendants in this case had also cooperated.

[00:21:32] Speaker 00:
And his explanation is at record volume one, page 181, where he was saying, what I was trying to relate to Mr. Perez is that most people, if they talk to us, either talk to us at that time, or they agree to cooperate with law enforcement and help us further the investigation at a later time, much like what Mr. Craneville did and Mr. Cisneros did in a proffer, an attempt to try to mitigate some sort of the charge that he or she could face.

[00:21:56] Speaker 00:
That's record volume one, page 181.

[00:21:58] Speaker 00:
So that was not an advisable comment, but he was just trying to explain how this would play out.

[00:22:04] Speaker 00:
And in the officer's experience, the way this plays out 90% of the time is, in order to get a sense reduction, the defendant has to cooperate.

[00:22:14] Speaker 00:
And that's why he said, your attorney's probably going to tell you that you need to cooperate.

[00:22:18] Speaker 00:
That's not coercive, and it's not enough to overbear the defendant's will.

[00:22:24] Speaker 00:
Now, we think probably the best evidence

[00:22:27] Speaker 00:
that the defendant's will was not overborn was the fact that the defendant gave his statements that were apparently the result of calculation and not coercion.

[00:22:38] Speaker 00:
The defendant knew what was on the table.

[00:22:41] Speaker 00:
He knew he could help himself out if he cooperated, because that was the offer.

[00:22:46] Speaker 00:
If you cooperate, you could help yourself out.

[00:22:48] Speaker 00:
So he gave as minimal information as he could.

[00:22:52] Speaker 00:
He denied and minimized his involvement and gave the agent

[00:22:56] Speaker 00:
Yes, I dealt with this person on a couple of occasions for a pound each.

[00:23:01] Speaker 00:
I dealt with this other person on a couple of occasions for a pound each.

[00:23:06] Speaker 00:
And the agent in his testimony said that this was just denying and minimizing his involvement.

[00:23:11] Speaker 00:
That shows that his capacity for rational thought, his capacity to make a rational decision was never critically impaired.

[00:23:19] Speaker 00:
He was strategically making limited statements in order to get a benefit

[00:23:25] Speaker 00:
It just turned out to be not enough because the officer knew it was not the truth.

[00:23:29] Speaker 00:
And we get that calculation versus coercion argument from the Ramon Zarate case.

[00:23:34] Speaker 04:
As far as the accuracy of the agent's comments, was safety valve an issue in this case?

[00:23:41] Speaker 00:
I don't think he got safety valve.

[00:23:42] Speaker 00:
He got a 225-month sentence.

[00:23:45] Speaker 04:
Would he have been eligible for that?

[00:23:47] Speaker 00:
You know, that I don't know.

[00:23:49] Speaker 04:
And doesn't that matter though?

[00:23:50] Speaker 04:
Because when we look at Young and we see what the agent told the defendant in that case, the court finds it important that the agent has misstated what the sentence would be, just probably clumsily.

[00:24:10] Speaker 04:
And this would be the same sort of thing, wouldn't it?

[00:24:13] Speaker 04:
He's saying to the defendant or to the arrestee,

[00:24:18] Speaker 04:
Here's your chance.

[00:24:20] Speaker 04:
This is the only way you're going to get yourself a lower sentence, and that may have been inaccurate.

[00:24:25] Speaker 00:
Well, you know, that is not clear from the record.

[00:24:28] Speaker 00:
What is clear from the record is that he was charged under 841B1A, which is tend to life.

[00:24:35] Speaker 00:
That's what the weight gave.

[00:24:37] Speaker 00:
And I think even given the amount of weight that he faced, we don't see how he could have gotten less than 10 years, given the amount of weight that he eventually faced in the PSR.

[00:24:48] Speaker 04:
Why not with safety valve?

[00:24:49] Speaker 00:
Well, safety valve just says the mandatory minimum is not applicable.

[00:24:54] Speaker 00:
But here, he was facing a guideline sentence of over 200 months, which is basically double the 10-year sentence.

[00:25:03] Speaker 00:
I don't think even with safety valve, you could have gotten below.

[00:25:05] Speaker 00:
That just gives it, safety valve just gives the court discretion to go below the 10 year.

[00:25:10] Speaker 00:
And there's no evidence here that the court would have exercised that discretion.

[00:25:14] Speaker 04:
Yeah.

[00:25:14] Speaker 04:
Well, I guess what it illustrates, it may not be the be all end all, but what it illustrates is the problem as does US versus Young with turning agents loose to be discussing legal principles and the hazards that that entails.

[00:25:31] Speaker 00:
You know, that's a fair point.

[00:25:33] Speaker 00:
But at the same time, Your Honor, the penalty is relevant in any type of situation where you're trying to get a defendant to cooperate.

[00:25:39] Speaker 00:
And an agent cannot be held to the standard of a lawyer.

[00:25:42] Speaker 00:
You know, if it's a comical misstatement of the penalty, that's one thing.

[00:25:48] Speaker 00:
But if it's something that fits with what's written in the statute book, that's another.

[00:25:53] Speaker 00:
And that's what happened here.

[00:25:54] Speaker 00:
And given the total amount of weight, we don't see how he could have gotten below 10 years.

[00:25:59] Speaker 00:
There's no reason for the courts to have gone below 10 years based on what he pled to.

[00:26:04] Speaker 00:
So, you know, that's a fair point, but also Young involved other things.

[00:26:08] Speaker 00:
In the Young case, the officer, and we talk about the totality of the circumstances, in the Young case, the officer misrepresented how the interrogation system works.

[00:26:19] Speaker 00:
He said, you can physically buy down your time with every truthful statement.

[00:26:22] Speaker 00:
He also said, I have access to a federal judge, and I can tell the federal judge to do this or do that.

[00:26:27] Speaker 00:
And the misstatement of the penalty was a little bit exaggerated.

[00:26:30] Speaker 00:
It's not what he even could have faced.

[00:26:32] Speaker 00:
Here, this is what the defendant could have faced.

[00:26:34] Speaker 00:
Even with safety belt, he could have faced 10 years or more.

[00:26:37] Speaker 04:
So sometimes the coercion is just the evidence of guilt.

[00:26:41] Speaker 00:
Right.

[00:26:42] Speaker 00:
Right.

[00:26:43] Speaker 00:
Which goes to our main point here.

[00:26:45] Speaker 00:
This is an officer advising a suspect of the realistic consequences for cooperating or not cooperating.

[00:26:52] Speaker 00:
Number one, is not inherently coercive, and number two, cannot

[00:26:57] Speaker 00:
cannot overbear a defendant's will so as to impair his ability for self-determination.

[00:27:06] Speaker 00:
Just giving a defendant accurate, realistic information is not coercive.

[00:27:11] Speaker 00:
And that is just all that the officer did here.

[00:27:14] Speaker 00:
He gave him realistic and accurate information.

[00:27:17] Speaker 00:
And that's the case that this court is facing today.

[00:27:22] Speaker 00:
I see my time's up.

[00:27:23] Speaker 00:
I'll retire if the panel doesn't have any further questions.

[00:27:26] Speaker 00:
Thank you.

[00:27:26] Speaker 00:
We'd ask the court to affirm.

[00:27:28] Speaker 00:
Thank you.

[00:27:36] Speaker 03:
Mr. Hall, you have a little time left.

[00:27:42] Speaker 02:
So I'll begin with the government's argument of waiver on the sort of knowing dimension of the Miranda

[00:27:50] Speaker 02:
requirement.

[00:27:51] Speaker 02:
So we disagree with the fact that it's waived.

[00:27:54] Speaker 02:
I think if the court reviews our opening brief, there's a discussion of the dimension of knowledge with respect to waiver of Miranda.

[00:28:01] Speaker 02:
In response, the government in its

[00:28:04] Speaker 02:
responsive brief cited case law addressing factors relevant to that particular dimension that had not been expressly discussed in the opening brief, but those factors were discussed in the reply brief.

[00:28:16] Speaker 02:
I think there was adequate opportunity both of this argument previously for the full play of the issue to come to the fore and we argue against any waiver.

[00:28:25] Speaker 03:
Well, the fact that you put it in your reply brief so they have an opportunity to raise the oral argument doesn't cut it.

[00:28:32] Speaker 02:
Well, but it was based on- It was either in your opening brief or it was waived.

[00:28:36] Speaker 02:
Isn't that really the test?

[00:28:38] Speaker 02:
That's the typical rule, although in a recent case, the McBride case, this court determined that it is not bound strictly by that if the sequence is as I had just discussed.

[00:28:51] Speaker 02:
We're not bound.

[00:28:52] Speaker 02:
You're bound.

[00:28:54] Speaker 02:
I understand that as well.

[00:28:55] Speaker 02:
You're right.

[00:28:56] Speaker 02:
What about waiver in the district court?

[00:28:59] Speaker 02:
By not addressing the knowing component?

[00:29:02] Speaker 02:
I do think that the gravamen of the defendant's challenge is related to the voluntariness issue.

[00:29:10] Speaker 02:
And there is overlap between knowledge and voluntariness that's at play in this case.

[00:29:18] Speaker 02:
And the cases typically speak to the elements of coercion and intimidation.

[00:29:24] Speaker 02:
And I do think that those on standing on their own are sufficient to establish the involuntariness of the waiver

[00:29:30] Speaker 02:
in the absence of a waiver of Miranda rights.

[00:29:34] Speaker 02:
I do also want to, as I'm running out of time, address the issue of the promise of leniency.

[00:29:39] Speaker 02:
The government's characterization is the agent's promise of leniency was akin to just a vague promise, you can help yourself out, or to a promise akin to, I'll tell the prosecutor about your assistance in the cases cited by the government.

[00:29:55] Speaker 02:
That's not what the district court, I think, correctly found.

[00:29:58] Speaker 02:
At page 11 of the district court's opinion, the district court says the agent represented to Perez that he, the agent, had spoken with the prosecutor who informed the agent he could take it as far as he wanted to go.

[00:30:13] Speaker 02:
The agent later explained that he had permission to take Perez to jail that day if he didn't give the agent anything actionable.

[00:30:20] Speaker 02:
The agent also suggested the opposite was true.

[00:30:23] Speaker 02:
If Perez gave something actionable, he could be released that day and not charged.

[00:30:27] Speaker 02:
That sort of inducement or promise is something that as a matter of both nature and degree is different than the analogy given by the government.

[00:30:36] Speaker 02:
I see I'm out of time by 12 seconds and I'll retire.

[00:30:40] Speaker 02:
Thank you, counsel.

[00:30:41] Speaker 03:
Case is submitted.

[00:30:51] Speaker 03:
Looks like you both can be excused.