[00:00:00] Speaker 03:
before was also well argued.

[00:00:04] Speaker 03:
Our third case is 23-3122, United States versus White.

[00:00:16] Speaker 03:
I suspect our visitors already know this, but the reason that the defendant is always the

[00:00:23] Speaker 03:
appellant in these cases challenging the verdict is because if there was a verdict in favor of the defendant, the government has no recourse.

[00:00:31] Speaker 03:
There can't be a second trial once the jury has acquitted a defendant of a crime under the double jeopardy claim of our Constitution.

[00:00:43] Speaker 03:
United States v. White involves some of the implications of one of the most famous

[00:00:49] Speaker 03:
Supreme Court decisions, Miranda versus Arizona.

[00:00:56] Speaker 03:
You may have even heard about that.

[00:00:59] Speaker 03:
I don't know how much American crime stories are on Albanian TV or in the movies that you get there.

[00:01:11] Speaker 03:
But under the Miranda decision, if a person is arrested,

[00:01:17] Speaker 03:
then the officer must give certain warnings to the defendant that you don't have to answer any questions.

[00:01:27] Speaker 03:
You have the right to remain silent.

[00:01:30] Speaker 03:
If you do speak, anything you say can and will be used against you.

[00:01:35] Speaker 03:
You have a right to an attorney before we question you.

[00:01:38] Speaker 03:
If you can't afford an attorney, an attorney will be provided to you.

[00:01:45] Speaker 03:
And after that,

[00:01:47] Speaker 03:
the Supreme Court decided that one of the implications of these warnings is to tell the defendant that if you don't speak, your silence can't be used against you.

[00:02:01] Speaker 03:
Here we have a slightly different situation where the defendant did speak to some extent.

[00:02:10] Speaker 03:
and then said, I don't want to answer any more questions.

[00:02:14] Speaker 03:
And the question before us is whether it was improper for the government to put on the fact that the defendant didn't say certain things when questioned by the officers, whether that can be used against the defendant at trial.

[00:02:33] Speaker 03:
So that's what we've got to decide in this case with the help of counsel, Ms.

[00:02:38] Speaker 03:
Jaffe.

[00:02:47] Speaker 01:
Thank you, Your Honors.

[00:02:48] Speaker 01:
May it please the court?

[00:02:50] Speaker 01:
Leah Yaffe for Appellant Eddie White.

[00:02:54] Speaker 01:
At Mr. White's trial, the last thing the government told the jury is that if Mr. White's duress defense, quote, was the truth, there is zero, no downside to telling Detective Miller that.

[00:03:05] Speaker 01:
And he didn't tell Detective Miller that because he didn't know what the evidence was at the crime scene at the time.

[00:03:12] Speaker 01:
This argument followed the government's repeated questioning of Detective Miller and its case in chief as to whether, for example, the detective gave Mr. White, quote, an opportunity to tell you what happened that might exclude him from being involved, might justify something he did.

[00:03:26] Speaker 01:
All he's got to do is tell you and you'll investigate, correct?

[00:03:31] Speaker 01:
And it also followed the government's repeated questioning of Mr. White during cross as to whether the detective gave him the opportunity, quote, several times to tell him what happened.

[00:03:40] Speaker 01:
In other words, the government repeatedly tried to discredit Mr. White's arrest defense by drawing attention to the fact that he did not share it with the police upon arrest.

[00:03:49] Speaker 02:
And that was plain error under... Is there a difference between commenting on silence and commenting on omissions from a story?

[00:04:01] Speaker 01:
So what the Supreme Court has said is you are allowed to comment on prior inconsistent statements, which might include an omission technically.

[00:04:09] Speaker 01:
But what you can't do is comment on something that the defendant just didn't tell to the police.

[00:04:14] Speaker 01:
And so the way to look at this is what were the questions that the government asked and what was the arguments that the government made designed to do?

[00:04:23] Speaker 01:
Were they pointing out prior inconsistent statements or a technical omission?

[00:04:28] Speaker 01:
Or were they saying, hey, it's a little bit suspicious

[00:04:31] Speaker 01:
that this exculpatory defense is being shared for the first time at trial.

[00:04:35] Speaker 01:
And here it's plain that it's the latter of those things.

[00:04:37] Speaker 01:
We know this, the very last thing, I know I just said it, but the very last thing that the government says to the jury is, here's why it's meaningful that he didn't say this to Detective Miller when he was arrested.

[00:04:49] Speaker 01:
It's meaningful because it allowed him to see the government's evidence and fabricate a story.

[00:04:53] Speaker 01:
That's drawing meaning from silence.

[00:04:54] Speaker 01:
It's not talking about a prior and consistent statement.

[00:04:59] Speaker 02:
Do you think that the record on that is ambiguous at all?

[00:05:02] Speaker 02:
I guess I'm wondering if you think you have a plainness problem.

[00:05:06] Speaker 01:
I don't, Your Honor.

[00:05:08] Speaker 01:
Here, I think what we know from Mr. White's interrogation is that he had an incident five months before the charging incident in this case.

[00:05:16] Speaker 01:
He was particularly scared of those people.

[00:05:18] Speaker 01:
He's equivocal about this point, but he thinks maybe they were there on May 8th.

[00:05:22] Speaker 01:
that he was so scared on May 8th that he defecated on himself and that he was running away from someone who was shooting at him and he needed to duck.

[00:05:29] Speaker 01:
So those statements, the government was permitted to

[00:05:34] Speaker 01:
argue could have inferences towards their story of what happened on May 8th.

[00:05:39] Speaker 01:
They also can support Mr. White's dress defense about what happened on May 8th, and talking about those statements was permissible.

[00:05:46] Speaker 01:
The government was permitted to ask about it, but what they couldn't do and what's plainly not part of the interrogation is say,

[00:05:54] Speaker 01:
There's this whole exculpatory defense that you're sharing for the first time.

[00:05:57] Speaker 01:
Isn't that meaningful?

[00:05:59] Speaker 02:
And what are the cases that constitute your law on plainness here?

[00:06:04] Speaker 02:
Assuming there's not persuasive value to this invocation, the argument.

[00:06:12] Speaker 02:
Sure.

[00:06:12] Speaker 02:
We have Doyle.

[00:06:14] Speaker 01:
So there's Doyle.

[00:06:14] Speaker 02:
What else you got?

[00:06:15] Speaker 01:
I think the Supreme Court case in Anderson v. Charles, which lays out this test of look at the design of the questions, draw meaning from silence, that's not okay.

[00:06:23] Speaker 01:
Is this about a prior inconsistent statement?

[00:06:25] Speaker 01:
That's okay.

[00:06:26] Speaker 01:
And then this court's adoption of that standard from Anderson v. Charles in United States v. Canterbury, where they said, look, we understand the defendant made some statements in this case.

[00:06:37] Speaker 01:
But the specific questions that are being challenged in the Canterbury appeal, those went to the silence, those went to draw meaning from silence.

[00:06:45] Speaker 02:
But Canterbury seems different, doesn't it?

[00:06:47] Speaker 02:
I mean, Canterbury is unlike our case, isn't it?

[00:06:50] Speaker 02:
Because there the defendant made only three short statements to police.

[00:06:54] Speaker 02:
We have a much, what I see as a more ambiguous record here.

[00:07:00] Speaker 02:
And we've got cases like May and Pemberton,

[00:07:03] Speaker 01:
So I think that there's an important difference here between verbosity and comprehensiveness.

[00:07:10] Speaker 01:
So yes, Mr. White spoke for a longer amount of time than Mr. Canterbury appears to have from that decision, but what he spoke about didn't provide us any information

[00:07:20] Speaker 01:
in any kind of detail about what happened on May 8th that was relevant to his duress defense or to the government's alternative theory of this shootout.

[00:07:28] Speaker 01:
So the reason this case is more like Canterbury and not like May or Twyman is because in those cases you have a defendant saying, for example, in United States v. May, yes, I committed this drug conspiracy.

[00:07:39] Speaker 01:
I gave this person this money to go buy cocaine at that bar.

[00:07:42] Speaker 01:
I stored her cocaine in my house in order to, like,

[00:07:46] Speaker 01:
have collateral for the debt that she owed me, and then just for the first time that trial says, oh, but one important detail is I tried to get out of it the day before.

[00:07:55] Speaker 01:
Here we don't have that.

[00:07:56] Speaker 01:
We don't have a description from Mr. White about what happened on May 8th.

[00:07:59] Speaker 01:
We don't even have him admit to possessing the Glock pistol, which he eventually does at trial.

[00:08:04] Speaker 02:
Well, he says he's not gonna talk about the gun, but then he talks about the gun.

[00:08:08] Speaker 01:
He does not talk about the Glock pistol in the interrogation, Your Honor.

[00:08:11] Speaker 01:
What he does is, at most... So he has to talk about the...

[00:08:15] Speaker 01:
the firearm, the charged firearm?

[00:08:18] Speaker 01:
I don't think there's a technical role like that, Your Honor.

[00:08:20] Speaker 01:
What I'm trying to suggest or to explain is we don't know what happened from Mr. White's statement at the post arrest interrogation.

[00:08:28] Speaker 01:
He doesn't admit or deny having the Glock pistol, and I think more importantly, he doesn't explain the circumstances leading up to his ultimate possession of the Glock pistol on that day.

[00:08:39] Speaker 01:
There are statements he makes that I think can be, you can draw inferences and the jury could draw inferences in favor of the government or in favor of Mr. White.

[00:08:47] Speaker 01:
But the problem is for the government that we don't know just based on the post-arrest interrogation video alone what happened on May 8th in any kind of detail.

[00:08:56] Speaker 01:
When we learn that is through Mr. White's duress testimony or from the government's perspective through their introduction of evidence.

[00:09:03] Speaker 01:
at trial, but we don't learn it from the folks who ask.

[00:09:06] Speaker 02:
So how could we be thinking about the fact that your client told Detective Miller that he's shared 90% of everything?

[00:09:12] Speaker 01:
Sure.

[00:09:12] Speaker 01:
I think what's important here is to look at how that was treated in the trial below, which literally nobody took that seriously.

[00:09:18] Speaker 01:
So Mr. White, during his interrogation, he says something like that a few times.

[00:09:24] Speaker 01:
The first time he says, I told you to start to finish what happened.

[00:09:28] Speaker 01:
And Detective Miller says, no, this is what I would need to know if I were going to investigate this and ask him a series of questions.

[00:09:34] Speaker 01:
And Mr. White immediately backtracks and says, no, I don't have the answers to that.

[00:09:38] Speaker 01:
I'm not going to incriminate myself, and I'm not going to incriminate anyone else.

[00:09:43] Speaker 03:
The difficult issue here is deciding what's our test.

[00:09:48] Speaker 01:
Sure.

[00:09:49] Speaker 03:
And even though it's an unpublished opinion, Pemberton does indicate what the test is.

[00:09:56] Speaker 03:
In that case, the defendant, when arrested, said nothing about the victim having a knife.

[00:10:04] Speaker 03:
But then mentions it at trial.

[00:10:06] Speaker 03:
Says he had a knife, and that's why I was shooting in self-defense.

[00:10:11] Speaker 03:
I think this sentence kind of captures it.

[00:10:13] Speaker 03:
Defendant's statements contain a sufficient, the statements at the time of arrest contain a sufficient level of detail suggesting that he would have mentioned a knife in the hands of the victim.

[00:10:26] Speaker 03:
And by that test, did your client say enough at the time of the arrest that you'd expect him to have mentioned this?

[00:10:37] Speaker 03:
And isn't that the case here?

[00:10:39] Speaker 03:
Wouldn't you have expected him when they're, because that would not implicate some, he wouldn't be snitching on someone to give this.

[00:10:49] Speaker 01:
So two points, Your Honor, to begin with.

[00:10:51] Speaker 01:
First, we do know the test, and it's from Charles and Hanterbury, which are Supreme Court, and then a published ten circuit decision, and the test is what was the design of what the government did here?

[00:11:03] Speaker 01:
Were they drawing meaning from silence?

[00:11:04] Speaker 01:
And if they were, that's improper.

[00:11:06] Speaker 01:
To distinguish from Pemberton's facts.

[00:11:08] Speaker 03:
Well, if Pemberton's drawing an inference from silence, it is.

[00:11:13] Speaker 03:
The question is, is it,

[00:11:16] Speaker 03:
is whether the questions, whether the argument made by the prosecutor is that this is inconsistent with what was said before.

[00:11:24] Speaker 03:
And what Pemberton suggests is the very fact that you spoke in some detail before suggests that you would have included that

[00:11:33] Speaker 03:
that element if it were true.

[00:11:36] Speaker 03:
So it's inconsistent with your prior full statement to be silent about this.

[00:11:43] Speaker 01:
And how is... I don't think I disagree with your read of Pemberton, Your Honor.

[00:11:48] Speaker 01:
I think I disagree with the implication on this case.

[00:11:50] Speaker 01:
So let's look at what the government says themselves in closing arguments.

[00:11:54] Speaker 01:
They say, he wouldn't really tell any of the specifics to Detective Miller.

[00:11:58] Speaker 01:
What we know is there was this incident from New Year's Eve, and what we're inferring is that

[00:12:03] Speaker 01:
this May 8th shootout happened.

[00:12:05] Speaker 01:
The government never claims that he has shared a comprehensive story, anything like what Mr. Pemberton did there, where he admitted, the actus reus, he admitted killing the person, said it was self-defense, said the person was verbally abusive, and just left out the detail of the knife.

[00:12:19] Speaker 01:
I think that's very different than what we have here, and it's important

[00:12:22] Speaker 01:
What the government argues in closing I think is really important to this question because they're exploiting the lack of a comprehensive story here.

[00:12:29] Speaker 01:
This isn't my gloss on it.

[00:12:31] Speaker 01:
The government's primary or one of their primary push backs on the duress testimony is to say he waited until trial and where he could see the government's evidence so he could fabricate an entire story around the evidence and that only has salience to the jury if the government also says

[00:12:50] Speaker 01:
He didn't tell any specifics.

[00:12:51] Speaker 01:
He waited.

[00:12:52] Speaker 01:
He was pretty silent.

[00:12:53] Speaker 01:
What happened here is the government making the plain point to the jury that there's a lot of information we did not learn from the post-arrest interrogation.

[00:13:01] Speaker 01:
We think our version of the story is better, but don't take our word for it.

[00:13:05] Speaker 01:
Let's look at what Mr. White did.

[00:13:06] Speaker 01:
What Mr. White did was not tell Detective Miller that he was innocent when he had the opportunity to tell him that he was innocent, and that is a powerful, a very powerful argument to be making to the jury.

[00:13:17] Speaker 01:
The government leans into it, right?

[00:13:20] Speaker 01:
It sets it up in the case in chief.

[00:13:22] Speaker 01:
It includes it in cross-examination of Mr. White, and then it leans into this, the very last thing they say to the jury before deliberation.

[00:13:29] Speaker 01:
I think that's meaningful here.

[00:13:30] Speaker 01:
It's a really, really powerful idea.

[00:13:32] Speaker 01:
It's a really unfair one, and it's a really unconstitutional one, and that's what happened to Mr. White.

[00:13:37] Speaker 01:
I don't think it's anything like the Pemberton case where the self-defense story and the admission of the crime had already happened in the post-arrest interrogation.

[00:13:47] Speaker 02:
Pemberton suggests that there's... Oh, I'm sorry.

[00:13:51] Speaker 02:
Go ahead.

[00:13:52] Speaker 02:
Do you think that Pemberton helps at all?

[00:13:55] Speaker 02:
I mean, I'm trying to understand this case under the rubric of the Plain Air Standard, and so you're right.

[00:14:02] Speaker 02:
Pemberton is an unpublished case, but it has some factual similarities here, and it's certainly drawing on precedent, and it was resolved on plainness, right?

[00:14:12] Speaker 01:
I think Pemberton is a good example of the type of issue that your honor was asking in your first question about what does an admission look like under the Charles test?

[00:14:20] Speaker 01:
And here we have a fairly comprehensive, here being the Pemberton case, a fairly comprehensive explanation, I did kill this person.

[00:14:29] Speaker 01:
I did it because of self-defense.

[00:14:31] Speaker 01:
We were drinking.

[00:14:32] Speaker 01:
He was very verbally abusive to me.

[00:14:35] Speaker 01:
He's not remaining silent about what happened.

[00:14:39] Speaker 01:
He's saying what happened and then there's this new detail which is treated as an inconsistent omission.

[00:14:44] Speaker 01:
perhaps correctly, in Pemberton.

[00:14:48] Speaker 01:
We don't have that kind of like, here's the story, here's what happened.

[00:14:51] Speaker 01:
I basically told you, you know, I told you that there was like a shootout, but now I'm telling you that there's a carjacking.

[00:14:56] Speaker 02:
There's no- Is it internally inconsistent?

[00:14:57] Speaker 02:
Do you think that your client's interview is internally inconsistent?

[00:15:01] Speaker 01:
No, Your Honor.

[00:15:02] Speaker 01:
I think that there were statements that Mr. White made that could be inferred, that could have multiple different inferences, and he had the opportunity to explain what he meant.

[00:15:11] Speaker 01:
on the stand and the government had the opportunity and took it to question him about isn't this more likely to support the shootout theory than your carjacking defense and all that's fine we haven't challenged it on this appeal.

[00:15:23] Speaker 01:
All we've challenged are the plain instances in which the government was talking totally devoid of any specific statement that Mr. White made in the interrogation.

[00:15:31] Speaker 01:
If you look what he's doing and what the government's doing in the

[00:15:33] Speaker 01:
case in chief in the direct examination of Detective Miller.

[00:15:36] Speaker 01:
They're just playing the interrogation video and they're pausing it and they're saying, is that an opportunity where he could have said something?

[00:15:42] Speaker 01:
Yes, no?

[00:15:43] Speaker 01:
If he had said something, would you have investigated it?

[00:15:46] Speaker 01:
All he had to do was tell you, right?

[00:15:47] Speaker 01:
Then he would have investigated it over and over and over.

[00:15:50] Speaker 01:
It's not part of a colloquy like we see in Charles that was getting towards an omission.

[00:15:54] Speaker 03:
Let me interrupt.

[00:15:56] Speaker 03:
Sure.

[00:15:56] Speaker 03:
I want to hear from Judge Heabel.

[00:15:57] Speaker 03:
Yes.

[00:15:58] Speaker 03:
But when

[00:16:02] Speaker 03:
When White was being interrogated by the officer, who tried to get more details, he said, I might not have the, that he had told virtually the whole story.

[00:16:15] Speaker 03:
He did say, I told you everything.

[00:16:18] Speaker 01:
Yes, sir.

[00:16:21] Speaker 03:
Isn't that contrary to what you're arguing now?

[00:16:23] Speaker 03:
If he said he told the whole story, and he left out something vital to his defense, then isn't that an inconsistency?

[00:16:32] Speaker 01:
So I think there's two parts of that question if I'm understanding it correctly.

[00:16:36] Speaker 01:
The first is, was Mr. White partially silenced in this case despite making that statement?

[00:16:41] Speaker 01:
I think unquestionably yes, and it's how both Detective Miller and the trial prosecutor understood him.

[00:16:46] Speaker 01:
And looking at that statement in context, we have Detective Miller pushing back on a similar statement a few minutes earlier saying, this is the type of information I would need to know, and it never gets shared with him in the interrogation.

[00:16:57] Speaker 01:
Could the government ask specifically about the 90 to 95% question?

[00:17:02] Speaker 01:
Sure, and I think that they did.

[00:17:03] Speaker 01:
We haven't challenged that part of the record.

[00:17:05] Speaker 01:
What we've challenged is separately them saying totally unrelated to that statement, which they are not leaning on as any sort of proof that he was in fact comprehensive.

[00:17:15] Speaker 01:
Totally separate from that statement, we have the government repeatedly making the point that this duress defense was not shared with Detective Miller and drawing a conclusion for the jury

[00:17:26] Speaker 01:
That's because you fabricated it.

[00:17:28] Speaker 01:
And that's just the most quintessential type of Doyle error you can have is you have an exculpatory defense.

[00:17:34] Speaker 01:
We didn't hear anything about the exculpatory defense.

[00:17:38] Speaker 04:
Well, I'm trying to figure out exactly when the defendant relied on his right to be silent and Miranda and when he was saying, I'm not going to testify because I don't want to be a snitch.

[00:17:54] Speaker 04:
When did the defendant clearly

[00:17:56] Speaker 04:
I mean, at the very end, I think he said, I'm not going to testify further.

[00:18:01] Speaker 04:
And later, not during the examination, but later he said, I had the feeling that I was being trapped.

[00:18:09] Speaker 04:
But his feelings later don't control this case for me.

[00:18:14] Speaker 04:
What controls is when he asserted the right for silence at the time.

[00:18:19] Speaker 04:
Can you tell me when he clearly asserted his silence was because of Miranda rights?

[00:18:25] Speaker 04:
not because of not wanting to be a snitch.

[00:18:28] Speaker 01:
Yes, Your Honor.

[00:18:30] Speaker 01:
Two points, if I may.

[00:18:32] Speaker 01:
First, it's our position very strongly that he did not have to expressly invoke his Miranda warnings, and I can get into that in a minute.

[00:18:40] Speaker 01:
He did not have to expressly invoke his right to remain silent in order to claim joy or error.

[00:18:44] Speaker 01:
I can explain that further.

[00:18:45] Speaker 01:
I know I'm low on time, but to get to Your Honor's specific question, our position is in the alternative.

[00:18:52] Speaker 01:
If you were to find that he needed to expressly invoke, which I think would be inconsistent with Supreme Court precedent, when he says to Detective Miller about seven minutes in, I'm not going to say whether I had a firearm or not, and Detective Miller respects that.

[00:19:06] Speaker 01:
And then about 17 minutes in, when Detective Miller gives him a list of questions and things he would want to know if you're going to investigate a potential story that Mr. White would have,

[00:19:17] Speaker 01:
Mr. White says, I don't have those answers.

[00:19:20] Speaker 01:
I'm not going to incriminate myself, and I'm not going to incriminate anyone else.

[00:19:23] Speaker 01:
So those, I think, are two limited invocations of his right to remain silent about whether he committed the conduct he's charged with and what were the circumstances leading up to it.

[00:19:34] Speaker 01:
But again, I think the Supreme Court has been very clear that the invocation doctrine is for claims arising out of the Fifth Amendment self-incrimination clause and not for claims writing

[00:19:44] Speaker 01:
arising out of the due process clause.

[00:19:46] Speaker 01:
In fact, in Doyle, they specifically say, we don't need to look at whether they're actually relying on their Miranda rights or not.

[00:19:53] Speaker 01:
It's insolubly ambiguous whether they are, and that's enough for it to be fundamentally unfair.

[00:20:00] Speaker 01:
I know I'm out of time.

[00:20:01] Speaker 01:
Thank you, Your Honors.

[00:20:10] Speaker 03:
Mr. Gantz.

[00:20:16] Speaker 00:
Good morning and may it please the court, Brendan Gantz for the United States.

[00:20:20] Speaker 00:
Quote, I just told you from start to finish why I'm here.

[00:20:24] Speaker 00:
Mr. White said that to Detective Miller during his 46-minute long post-arrest interview.

[00:20:29] Speaker 00:
He also said, quote, I told you what happened.

[00:20:32] Speaker 00:
At trial, however, Mr. White presented a duress defense premised on the notion that he actually had not told Detective Miller what happened at all.

[00:20:40] Speaker 00:
In fact, one of the few specific things about the events of that day that Mr. White claimed to have discussed with Detective Miller

[00:20:45] Speaker 00:
was his decision to pick up the Glock, which he claimed he was referring to when he told Detective Miller he would not let anyone shoot him again, even if it meant going to prison.

[00:20:54] Speaker 00:
Now Mr. White contends for the first time on appeal that he was relying on his Miranda rights to remain partially silent as to whether he possessed a gun on May 8th, even as he also argues that the jury was entitled to believe his testimony that he discussed that specific subject with Detective Miller.

[00:21:10] Speaker 00:
In reply, he clarifies that his argument is that a defendant who discusses a topic and even discusses it in, quote, some detail, unquote, can later assert that he was partially silent as to the same topic.

[00:21:21] Speaker 00:
That argument is directly contrary to the Supreme Court's decision in Anderson, which makes clear that once a defendant decides to speak as to the subject matter of his statements, he has not remained silent at all.

[00:21:31] Speaker 00:
More broadly, Mr. White's position is contrary to both the law and the factual record in this case, and on plain error review, this court should affirm for three reasons.

[00:21:40] Speaker 00:
First, the law is clear that once a defendant waves his Miranda rights and tells a version of his story to the police, Doyle does not apply except, quote, to the extent that a defendant clearly relies on a Miranda warning to refuse to answer specific questions.

[00:21:54] Speaker 02:
How does that square with Canterbury where we didn't consider a threshold inquiry?

[00:22:01] Speaker 00:
Well, Canterbury doesn't discuss the question of invocation, and for that reason, we would submit it's simply not relevant to the question of invocation, for the most part.

[00:22:08] Speaker 02:
Well, it doesn't help your position, but how do we reconcile it with your position?

[00:22:12] Speaker 00:
Well, so, Your Honor, we would, to take a step back from Canterbury for just a moment, and then I'll return to it, we would submit the Doyle Doctrine and the Fifth Amendment Doctrine are distinct, but they are closely related because Doyle protects a defendant's silence only to the extent that it's induced by Miranda warnings.

[00:22:29] Speaker 00:
Now, in determining whether Doyle applies, we would suggest that the analysis should proceed in two steps.

[00:22:34] Speaker 00:
First, if a defendant is silent, as in Doyle or the Bracte case they cite, or his statements are tantamount to silence, as in Doyle itself, then Doyle applies because that silence is insolubly ambiguous.

[00:22:46] Speaker 00:
But once a defendant decides to speak, as Anderson makes clear, a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.

[00:22:54] Speaker 00:
And thus, Doyle does not apply.

[00:22:55] Speaker 00:
And as this court pointed out in Martinez versus Trani, the Supreme Court has never applied Doyle where a defendant expressly waived his Miranda rights as Mr. White did here.

[00:23:04] Speaker 04:
You expressly waived those rights.

[00:23:07] Speaker 04:
I don't see ever that this defendant expressly waived his Miranda rights.

[00:23:12] Speaker 04:
I take it to do that, you have to say, I waive my Miranda rights.

[00:23:17] Speaker 00:
Well, Your Honor, Mr. White signed a Miranda waiver form at the beginning of the interview, and in fact, not only that, but repeatedly throughout the course.

[00:23:25] Speaker 00:
But then he invoked it after that.

[00:23:27] Speaker 00:
He never specifically invoked it.

[00:23:28] Speaker 00:
Well, he didn't invoke the word of Miranda, but he said, I'm not going to say anymore.

[00:23:32] Speaker 00:
Your Honor, Mr. White did not clearly, first of all, the interview didn't end when Mr. White said he wasn't going to say anymore.

[00:23:38] Speaker 00:
The interview ended when Detective Miller was trying to press Mr. White to give him names of people who were involved, which he hadn't been willing to do throughout the interview.

[00:23:47] Speaker 00:
And Mr. White said, I wish I could be a snitch, but I can't, so I'm not going to give you the names.

[00:23:52] Speaker 00:
Detective Miller ended the interview.

[00:23:53] Speaker 04:
And actually at two prior... So you think the only time he asserted a right not to talk was in giving the names of snitches and then

[00:24:03] Speaker 04:
He did not assert that as a Miranda right, but rather out of a fear that it could hurt him.

[00:24:09] Speaker 00:
Not even him.

[00:24:10] Speaker 00:
Yes, that it could hurt him because he would be labeled a snitch and because he was protecting other people.

[00:24:14] Speaker 00:
But those are not reasons to invoke a Miranda.

[00:24:16] Speaker 00:
That's not an indication of Miranda.

[00:24:18] Speaker 00:
And he never invoked Miranda over the course of the 46-minute interview.

[00:24:22] Speaker 00:
There are two prior times where Detective Miller actually is about to stand up and leave and says, I'm going to give you an opportunity to decide if there's anything else you want to say.

[00:24:29] Speaker 00:
And Mr. White continues talking before he can even stand up to leave.

[00:24:33] Speaker 00:
So this is a defendant who repeatedly throughout the interview also said, I know that I didn't have to talk to you.

[00:24:40] Speaker 00:
And I wasn't going to say anything.

[00:24:41] Speaker 00:
But based on your attitude and your approach to the interview, I decided to speak with you.

[00:24:46] Speaker 04:
Let's go back to where the government

[00:24:52] Speaker 04:
I think potentially did violate Bemberton, and that would have been in the government's closing argument, where the government said that the defendant refused to give this answer.

[00:25:05] Speaker 04:
Wouldn't he have done so?

[00:25:09] Speaker 04:
I think other times, maybe it's a little less clear whether the government violated Bemberton, but it's hard to say that they didn't violate it in the closing argument, where the government said,

[00:25:22] Speaker 04:
He didn't say this.

[00:25:24] Speaker 04:
And the implication is if he were innocent, he would have given that other answer.

[00:25:29] Speaker 04:
Let's just focus on the government's use in the closing argument.

[00:25:32] Speaker 00:
Absolutely, Your Honor.

[00:25:33] Speaker 00:
And I want to focus on that specific part right at the end of closing.

[00:25:37] Speaker 00:
Before I do, if I could just briefly finish answering Judge Rossman's question about the two-step inquiry.

[00:25:41] Speaker 00:
Of course.

[00:25:43] Speaker 00:
After he's waived his Miranda rights, then he's got to rely on this court's partial silence cases.

[00:25:48] Speaker 00:
That derives from the Herald decision.

[00:25:49] Speaker 00:
And Herald is very clear in its language.

[00:25:51] Speaker 00:
It carves out a narrow exception to the Anderson rule that says that to an extent that a defendant clearly relies on a Miranda warning to refuse to answer specific questions, then he can invoke Doyle.

[00:26:03] Speaker 00:
And Canterbury and May, in discussing partial silence, not only cite to Harold, they cite to the specific footnote of Harold that includes the language that I just quoted.

[00:26:13] Speaker 00:
So those decisions are consistent that a defendant does, if he's going to waive, then he later needs to invoke his right before he can claim partial silence.

[00:26:21] Speaker 00:
Now, as to the government's closing argument, the government, a number of the instances that Mr. White highlights as comments on supposed silence are actually comments on inconsistent emissions.

[00:26:34] Speaker 00:
As we pointed out, Mr. White said that he had given a complete story, and so anything that he said that he admitted that was material was directly inconsistent with that statement.

[00:26:44] Speaker 04:
and Mr. White throughout the course of... You're relying on that statement.

[00:26:48] Speaker 04:
He didn't say I gave you the complete story.

[00:26:50] Speaker 04:
He said I gave you about 90% of the complete story.

[00:26:53] Speaker 00:
Well, he said both.

[00:26:54] Speaker 00:
At one point, he said I told you from start to finish why I'm here.

[00:26:56] Speaker 00:
At another point, he said 90 to 95%.

[00:26:58] Speaker 04:
Yeah, I don't think that those are inconsistent.

[00:27:00] Speaker 04:
I think I told you why I was here is more of a general statement I'm going to talk.

[00:27:05] Speaker 04:
But then I think he's specifically saying there's part of it I didn't tell you.

[00:27:10] Speaker 04:
And I think it can be implied that that part was because of Miranda.

[00:27:15] Speaker 04:
And the government said, wouldn't he have told you those things if that would have helped his case and if it was true?

[00:27:22] Speaker 00:
Well, what he didn't tell Detective Miller, and you can see this in the interview, is the names of the people who were involved.

[00:27:27] Speaker 04:
We're not talking about the names of the people, no.

[00:27:29] Speaker 04:
I think that in the closing argument, the government is talking about his inconsistent stories about how he got the gun.

[00:27:36] Speaker 00:
So, Your Honor, the government repeatedly made the argument, a number of statements that Mr. White highlights goes to this.

[00:27:43] Speaker 00:
The government repeatedly made the argument that Mr. White had told Detective Miller, he had made repeated statements throughout the interview suggesting that he had

[00:27:53] Speaker 00:
in fact, possessed a gun, not only on the day in question, but for months since then, since he was shot earlier, he said on New Year's Eve.

[00:28:00] Speaker 00:
He said, I got shot.

[00:28:02] Speaker 00:
Do you really think that someone who got shot is not going to have a gun, whether he's supposed to or not?

[00:28:06] Speaker 00:
He repeatedly said that he wasn't going to let anyone shoot him, even if it meant that he had to go to prison.

[00:28:11] Speaker 00:
He said that before he got shot, he didn't possess a gun, but after he got shot, it changed everything for him.

[00:28:16] Speaker 00:
Now the government argued in trial after Mr. White testified on direct examination that he didn't tell Detective Miller the story he testified at trial, instead he told a different story.

[00:28:26] Speaker 00:
He testified that he was hesitant to talk to Detective Miller because he didn't trust him and he thought Detective Miller was only going to use whatever he said to incriminate him.

[00:28:34] Speaker 00:
Now part of how the government responded to that was by highlighting that Detective Miller had in fact given him a full and fair opportunity to say what he wanted and wasn't dead set on proving his guilt.

[00:28:44] Speaker 00:
But another important way that the government addressed that argument was to say, it doesn't make sense that he gave that explanation for why he wouldn't tell Detective Miller

[00:28:53] Speaker 00:
the story he told at trial instead of the story he told before, because he said things that were obviously incriminating.

[00:28:59] Speaker 00:
These statements about possessing a gun for months, whether he's allowed to or not, are obviously incriminating.

[00:29:04] Speaker 00:
And it wouldn't make sense for him to say that, but then to withhold details that would have been exculpatory.

[00:29:09] Speaker 00:
So right before the part of the closing argument that my friend on the other side quoted, the government is making that very argument.

[00:29:16] Speaker 00:
The government says, ladies and gentlemen, Mr. Burdick, the defense counsel told you,

[00:29:20] Speaker 00:
Well, he doesn't want to tell Mr. Miller everything, he doesn't trust him.

[00:29:23] Speaker 00:
Then why say things to Detective Miller that are more incriminating on their face?

[00:29:26] Speaker 00:
Suggesting that maybe he was involved in something, but they weren't the aggressor.

[00:29:30] Speaker 00:
These statements about since January, I need to protect myself, what would you do?

[00:29:33] Speaker 00:
Wouldn't you possess a firearm?

[00:29:35] Speaker 00:
Those statements are more incriminating than what he told you today.

[00:29:38] Speaker 00:
And if what he told you today was the truth, there is zero, no downside to telling Detective Miller that.

[00:29:43] Speaker 00:
So that is a comment on the inconsistency between the statements that he gave to Detective Miller and the statements that he gave at trial.

[00:29:49] Speaker 00:
and that is rebutting his explanation for why he didn't tell Detective Miller what he had said at trial.

[00:29:55] Speaker 00:
The government needs to be able to do that to address the question of inconsistent statements.

[00:30:01] Speaker 00:
That's not a Doyle violation, it's asking a jury to draw inferences, it's probing the trial evidence.

[00:30:07] Speaker 00:
That's Anderson, that's May, and that's this case.

[00:30:11] Speaker 03:
Let me ask you something about the signature on the Miranda warning sheet.

[00:30:17] Speaker 03:
There are two things I've seen on those sheets.

[00:30:20] Speaker 03:
One is, I acknowledge that I received these warnings.

[00:30:24] Speaker 03:
There's another that sometimes is there saying, and I waived my rights.

[00:30:30] Speaker 03:
Did he say both things or one of those or which one in this case?

[00:30:34] Speaker 03:
Because you said it was a waiver and often what you sign isn't a waiver, it's an acknowledgement that you were warned.

[00:30:41] Speaker 00:
The record is somewhat unclear as to what exactly he signed.

[00:30:44] Speaker 00:
It's not in the record.

[00:30:45] Speaker 00:
The document's not in the record?

[00:30:47] Speaker 00:
The document's not in the record.

[00:30:49] Speaker 00:
What is clear is that he initialed the part of the form that said that he understood that he had the right to remain silent, and then he signed at the bottom of the form.

[00:30:56] Speaker 00:
And again, we're not just relying on the Miranda waiver reform.

[00:30:58] Speaker 00:
We're also relying on the fact that he said repeatedly throughout the interview, you know, I wasn't going to say anything, but based on your approach to this, I'm talking to you.

[00:31:06] Speaker 00:
And he never invoked Miranda

[00:31:09] Speaker 00:
his Miranda rights clearly as Harold requires, or really in any way.

[00:31:14] Speaker 03:
The statement that is highlighted about... Harold requires after there has been a waiver.

[00:31:20] Speaker 00:
Right, right.

[00:31:21] Speaker 03:
And I thought you were relying on this document as a waiver, but that's iffy.

[00:31:26] Speaker 00:
Well, we do think that he waived at the beginning of the interview by signing the document, and then after he signs the document

[00:31:33] Speaker 00:
The detective begins asking him questions and says, where do you live?

[00:31:38] Speaker 00:
And Mr. White says, well, I'd rather you ask me a real question.

[00:31:41] Speaker 00:
And then only once the detective says, OK, well, what happened out there today?

[00:31:44] Speaker 00:
Does Mr. White begin to talk to him?

[00:31:47] Speaker 00:
So that's clearly waiving his right to silence.

[00:31:49] Speaker 00:
And that's reflected throughout the interview in his statements about knowing that he didn't have to talk and deciding to do so.

[00:31:54] Speaker 02:
Are you asking us to import some sort of Fifth Amendment reasoning into due process context?

[00:32:00] Speaker 02:
Or are you suggesting that it already exists?

[00:32:03] Speaker 00:
It already exists and it already comes direct.

[00:32:05] Speaker 02:
And is it Harold?

[00:32:06] Speaker 00:
It's Harold, that's right.

[00:32:08] Speaker 00:
And Harold is very clear in its language.

[00:32:10] Speaker 02:
Does Harold talk about the Fifth Amendment?

[00:32:13] Speaker 00:
Harold in, I'm sorry, the defendant in Harold himself did use the phrase Fifth Amendment, yes.

[00:32:18] Speaker 00:
And what this court said in Harold is he has to clearly rely on his Miranda rights to refuse to answer specific questions.

[00:32:24] Speaker 00:
Mr. White has never really addressed that language from Harold, but that is still good law.

[00:32:29] Speaker 00:
It's cited in May and Canterbury.

[00:32:31] Speaker 00:
And I think May is important to highlight because the level of inconsistency that we're dealing with here is far greater than what this court addressed in May.

[00:32:40] Speaker 00:
In May, the defendant told police after his arrest that he had given his co-defendant money to buy drugs to sell because she needed it, but only at trial did he claim that he subsequently withdrew from the conspiracy and then participated again only because he believed her life was otherwise in danger.

[00:32:54] Speaker 00:
Now, there's nothing directly or necessarily inconsistent about those two stories.

[00:32:58] Speaker 00:
But they're at least arguably inconsistent because they imply different motives.

[00:33:02] Speaker 00:
Just like in Pemberton, there was at least an arguably inconsistency.

[00:33:06] Speaker 00:
And that's sufficient under the language of May.

[00:33:08] Speaker 00:
As May says, a Doyle violation can be found only if the prosecutor's comments in context were manifestly intended to be a comment on the defendant's exercise of his right to remain silent or would naturally and necessarily be understood as such.

[00:33:21] Speaker 00:
That's a very high standard and it's even higher when we're here on plain error review.

[00:33:25] Speaker 00:
And I just want to point out that the contradiction here that we have is much more direct than in May.

[00:33:30] Speaker 00:
We have two fundamentally different stories.

[00:33:33] Speaker 00:
In the first instance, it was, this all started when I was shot on New Year's Eve.

[00:33:39] Speaker 00:
Ever since, these people have been harassing me every single day.

[00:33:41] Speaker 00:
I see them every day.

[00:33:42] Speaker 00:
I saw them again today.

[00:33:43] Speaker 00:
They shot at me.

[00:33:45] Speaker 00:
And I'm not going to tell you their names, but we definitely wasn't the aggressors.

[00:33:49] Speaker 00:
In the second version of the story, it's I was alone.

[00:33:52] Speaker 00:
And I have no idea who shot.

[00:33:53] Speaker 00:
I don't even know if they were shooting at me.

[00:33:55] Speaker 00:
I was carjacked.

[00:33:56] Speaker 00:
I never saw anybody.

[00:33:57] Speaker 00:
I never even looked in their direction.

[00:33:58] Speaker 00:
Those are two fundamentally different stories.

[00:34:01] Speaker 00:
And in probing the differences between those two stories, the government needs to be able to ask questions and to ask the jury to draw inferences about why Mr. White would tell a different story the first time and not the second time.

[00:34:13] Speaker 04:
That includes... Well, once you get to the stories are inconsistent.

[00:34:17] Speaker 04:
Can the government then ask for why did you not say something else?

[00:34:23] Speaker 04:
I mean, can the government then ask about inconsistencies because of an omission or can clearly the government can ask the affirmative statements you made before are inconsistent with the affirmative statements you can make now?

[00:34:37] Speaker 04:
But can the government say the omissions that you didn't testify about before are inconsistent with what you said now?

[00:34:46] Speaker 00:
Yes, Your Honor, and that's clear in the Supreme Court's decision in Anderson as well as in May.

[00:34:50] Speaker 00:
The government can ask about inconsistent omissions as well as inconsistent statements.

[00:34:54] Speaker 00:
The Supreme Court said in Anderson, anytime you tell a story, you're of course omitting a different story, but we're not going to adopt a formalistic understanding of silence that would say that you can ask about one but not the other.

[00:35:06] Speaker 00:
And that's precisely what Mr. White is asking this court to do, to say the government could highlight, for example, his statement to Detective Miller that we definitely wasn't the aggressor, but couldn't ask him why he didn't tell Detective Miller that he was alone.

[00:35:16] Speaker 00:
That's the formalistic understanding of silence that Anderson rejected and that this court should reject here.

[00:35:22] Speaker 00:
And if I could particularly just, I know I'm out of time, but just to highlight the point with one point about what he testified at trial.

[00:35:31] Speaker 00:
He testified at trial that his statements about not letting someone kill him were because what I meant was I picked up the gun to run to not be shot.

[00:35:37] Speaker 00:
In his opening brief argues, the jury could accept that.

[00:35:40] Speaker 00:
But immediately after that, the next question the government asked was, and Detective Miller gave you every opportunity to tell him what happened, correct?

[00:35:46] Speaker 00:
Now, the government is asking there, well, if that's what you were referring to, why didn't you say that?

[00:35:50] Speaker 00:
And the government needs to be able to ask a question like that.

[00:35:52] Speaker 00:
It needs to be able to highlight the inconsistent emissions as well as the inconsistent statements as part of probing the facts at trial.

[00:35:59] Speaker 00:
Thank you.

[00:36:00] Speaker 00:
Thank you, Your Honors.

[00:36:05] Speaker 03:
Your time has expired.

[00:36:06] Speaker 03:
Thank you very much.

[00:36:08] Speaker 03:
Excellent arguments.

[00:36:10] Speaker 03:
Counselor excused.

[00:36:12] Speaker 03:
Case is submitted.

[00:36:14] Speaker 03:
We're now going to take a

[00:36:15] Speaker 03:
Well, maybe a little longer break.

[00:36:18] Speaker 03:
I'm going to ask my clerks to put the baklava up for our guests.