[00:00:00] Speaker 04:
Case number 25-3023, United States of America versus Ezra Griffith Appellant. Ms. Lovely for the appellant, Mr. Goodand for the appellee.

[00:00:09] Speaker 00:
Good morning, Your Honors. Erica Hashimoto, Director of Georgetown Law's Appellate Litigation Clinic. With the court's permission, third-year law student Brittany Lovely will present argument on Mr. Griffith's behalf.

[00:00:21] Speaker 03:
Glad to have you here. Thank you. Good morning. Ms. Lovely? Good morning. Good morning.

[00:00:30] Speaker 03:
Go ahead.

[00:00:31] Speaker 02:
May it please the court.

[00:00:33] Speaker 02:
The second amendment issue we raised in our brief is currently pending before a different panel of this court. If your honors don't have any questions on that, we will rest on our briefs on that issue.

[00:00:44] Speaker 02:
This case is here on Mr. Griffith's request for remand and to consider two ineffective assistance of counsel claims.

[00:00:52] Speaker 02:
On direct appeal, the standard requires that we have shown a claim that is not conclusively foreclosed by this record. We have.

[00:01:00] Speaker 02:
Defense counsel was deficient in two respects. First, they failed to move to suppress a statement that was the product of Miranda custody. And second, they failed to meaningfully respond to the government's heavy reliance on flight as proof of guilt.

[00:01:17] Speaker 02:
In combination, these two errors put a close case in a position of prejudice for the defense.

[00:01:23] Speaker 02:
In line with this court's precedent, we request remand for factual development.

[00:01:30] Speaker 02:
On Miranda, the government collapses two distinct inquiries. A Terry stop may be lawful under the Fourth Amendment, but that does not resolve whether questioning during that stop was custodial under Miranda.

[00:01:42] Speaker 02:
Terry is taken from the officer's perspective and considers officer safety. It is an exception to the Fourth Amendment probable cause requirement, not the Fifth Amendment protections against self-incrimination.

[00:01:56] Speaker 02:
Miranda, in contrast, is taken from the perspective of the individual stopped and asks whether a reasonable person in Mr. Griffith's position would feel restrained to a degree akin to formal arrest.

[00:02:09] Speaker 06:
Well, I think we have some Supreme Court cases saying that the degree of restraint is the first requirement for Miranda custody. And the second is that there be, uh, the environment be inherently coercive akin to station house questioning. So, uh, And I guess we also have Berkamer saying normal Terry stops don't involve that kind of inherently coercive pressure. So I assume the first word out of your mouth is going to be handcuffs. But what creates that coercive environment in this case?

[00:02:43] Speaker 02:
Your Honor is correct. Handcuffs are a consideration, but this is a very fact-intensive inquiry. And here we have Mr. Griffith handcuffed behind his back, pressed up against a pole, multiple officers surrounding him. And as you said, handcuffs, this is a hallmark of formal arrest. He was questioned in the middle of a frisk. And no reasonable person in that situation would feel free to leave. But the request here is for factual development. Part of the deficiency is that council didn't develop the record on Miranda. There was no movement to suppress the statement, so there was no suppression hearing on Miranda.

[00:03:18] Speaker 02:
There are many facts to be developed at the district level to consider whether custody is necessary.

[00:03:23] Speaker 06:
factor here. What kind of facts? So we have the video.

[00:03:29] Speaker 06:
Just concretely, do you have an idea of what kind of facts you think should be developed if we were to revamp?

[00:03:35] Speaker 02:
Yeah, the positioning of the officers is something that is not clear from the record. There were also other people on scene that we could hear from to speak to, you know, where the position, where the officers are, what was said after the questioning and before he was Mirandized or taken, you know, into custody officially.

[00:03:56] Speaker 02:
And so I think that there at the district level are a lot of things that could come out that would speak directly to custody.

[00:04:05] Speaker 06:
your honors don't have to decide custody at this moment we are just asking for factual development okay can you for this issue can you can you address prejudice so one uh difficulty on your side might be that it's it's true that the government emphasized this statement uh i have no weapon statements in closing but it's also not obvious that that is a very good point. I think as the defense counsel said in closing, that's a very natural thing to say if you're being patted down for weapons.

[00:04:40] Speaker 06:
So why would that be so inherently incriminating that it would give rise to prejudice?

[00:04:47] Speaker 02:
So the errors in this case really shaped how the jury understood the evidence. As we saw, this wasn't a close case. And so the government's heavy reliance, or this was a close case and the jury deliberations really speak to that. They spent more time deliberating than they did hearing evidence. And so this statement coupled with, you know, the government's heavy reliance on consciousness of guilt being the linchpin of their argument, tells us this was highly prejudicial to Mr. Griffith.

[00:05:19] Speaker 02:
It was this statement and flight that the government needed to bridge the gap in their evidence. And that is what was really prejudicial. In Muhammad, this court has found that the errors that shape the inferences drawn from evidence carry a heightened risk of affecting the verdict. And at this level, we're just asking for remand. It's a colorable claim at the very minimum that this could have affected Mr. Griffith and that there is a reasonable probability that at least one juror could have had reasonable doubt.

[00:05:53] Speaker 05:
There were fingerprints on, was it the magazine?

[00:05:57] Speaker 02:
The magazine had a very minuscule amount of collectible data, DNA.

[00:06:01] Speaker 05:
DNA data.

[00:06:05] Speaker 05:
More than the gun had, right?

[00:06:08] Speaker 05:
One of them was inconclusive and one of them was at least less inconclusive, right? Yes. Which was the more conclusive?

[00:06:16] Speaker 02:
The magazine. The magazine, okay. The magazine was sticking out of the gun.

[00:06:20] Speaker 05:
And what are the statistical chances that the magazine was not his?

[00:06:25] Speaker 02:
It was one in 20 trillion times more likely that it was him and four unrelated individuals than not him and four unrelated individuals.

[00:06:39] Speaker 02:
It seems pretty prejudicial. But the government does not have any explanation of how or when the gun was handled. And the minuscule amount of DNA that was collected is a third less than is normally collected in cases like this. It would be 1 in 10 trillion instead of 1 in 1 trillion?

[00:07:00] Speaker 02:
I think that is a scientific question. I can't tell you about the odds of that, but I can tell you that because it was so much less, even the government's expert witness testified that they couldn't, beyond a reasonable doubt, say that it was Mr. Griffith's DNA. And the jury also heard testimony that there was other ways that DNA could have gotten there, right? He was in the park with friends all day. This could have been dropped by someone else. He could have shaken someone's hand, and the secondary transfer is an option here So these are all things that the jury heard, but the failure of defense counsel to test the Miranda issue and the flight issue really prejudiced Mr. Griffith.

[00:07:43] Speaker 06:
There's a very small amount of- Can I pick up on part of your answer? So do you have, what would the reasonable doubt look like? And to build on Judge Walker's questions, this gun is found next to where he ran and in a place where no one would put it on purpose. It's just sort of sitting there next to the sidewalk and it has his DNA on it.

[00:08:10] Speaker 06:
So, or at 99.999% chance it has his DNA on it. So someone would need to think both that, you know, he high-fived someone and then that person touched the magazine and that for some reason that person put it in an exposed place next to the sidewalk. Is there a more reasonable way to explain what the reasonable doubt would look like in this case?

[00:08:40] Speaker 02:
On the body-worn camera, you can see someone walking by. That is one explanation, like right where the gun was found. And that person was never talked to. That person may have come from the park.

[00:08:51] Speaker 06:
Why would they place it on the ground and just keep walking away?

[00:08:57] Speaker 02:
The officers were coming. There's no I mean, I can speculate, but there is no explanation as to how the gun got there. No one saw Mr. Griffith with a gun. No one saw him throw a gun. No one testified to him having a gun. So there is no other explanation that the government has offered.

[00:09:16] Speaker 05:
There's no other explanation than what?

[00:09:20] Speaker 02:
You know that. I mean, there is no conclusive explanation of how the gun got there.

[00:09:26] Speaker 05:
And the one possibility for it not being his gun is that it belonged to someone else who shook hands with him?

[00:09:37] Speaker 02:
Yeah, shook hands with him. He may have sneezed. Like, there are many ways that that small amount of DNA could have been transferred. I think defense counsel said that it was the size of maybe a grain of salt or So it's a very minuscule amount of DNA that could be collected. Like I said, one-third the amount that is normally collected in a situation like this.

[00:10:00] Speaker 05:
And I understand, like, you have the facts are what the facts are, and I think you're doing a great job with the facts that you have.

[00:10:09] Speaker 05:
But was there anything in the record about kind of, you know, the type of meeting that before this incident that might've been like a handshaking event, a business meeting where they're like, you know, go to conference table, shake hands, you know, negotiate the contract, take an Uber back or something like, I think the handshake theory seems like an odd theory.

[00:10:38] Speaker 02:
There were a lot of friends coming and going in the park. So I think, you know, you dap up your friends at the park. Yeah.

[00:10:47] Speaker 02:
So I think that, you know, there are many different ways. And I see my time has expired.

[00:10:53] Speaker 02:
So there are many different ways that this could have happened. I think that what we are raising here is that council should have tested the issue. We were talking a lot about what was on the record. And part of the deficiency is that council did not develop this record.

[00:11:05] Speaker 05:
Just one more quick question. I didn't understand. What was that? What is DAP up?

[00:11:11] Speaker 01:
It's like like shake hands, basically. Yeah. A cool way of shaking hands.

[00:11:18] Speaker 05:
Cooler, cooler than I am.

[00:11:21] Speaker 03:
Let me ask you, did you mention that he was the only one who ran of his group? Isn't that right? Yes. And when the officer said, what do you got, man, or something like that, and he answered, I don't have a weapon. I got no weapon or something. Is that right? Yes. And how long was the jury out again?

[00:11:43] Speaker 02:
A day. They heard evidence for less time than they deliberated.

[00:11:47] Speaker 03:
Okay.

[00:11:48] Speaker 02:
And the only three pieces of evidence were the flight, the small amount of DNA, and the statement.

[00:11:56] Speaker 03:
Well, in the furtive movements he made.

[00:12:00] Speaker 02:
It's not really clear what the officers meant by that. He was wearing a full bodysuit, a jumpsuit, and it's not clear from the record. We can't see those movements. So the testimony is not clear what the officers meant. And that is what the jury walked away with as well.

[00:12:18] Speaker 03:
All right. We'll give you a couple of minutes to reply. Thank you so much. Mr. Goodham.

[00:12:25] Speaker 03:
Good morning.

[00:12:26] Speaker 04:
Good morning, Your Honors. May it please the Court, David Goodhand for the United States.

[00:12:33] Speaker 04:
Remand for an evidentiary hearing in this case is unnecessary. The facts necessary for this Court to assess the merits of the proposed Fifth Amendment custody motion are already reflected in the copious body-worn camera footage and Officer Wood's detailed testimony about the stop. And in that respect, I take my cues from my opponent's brief.

[00:12:57] Speaker 04:
In their briefs, they never identified any facts that were missing relating to just the pure merits. Instead, the brief did focus on the question of why defense counsel did not make this motion.

[00:13:12] Speaker 04:
And I know here today there's been some vague suggestion that the positioning of the officers might be...

[00:13:20] Speaker 04:
important. Number one, there were two body-worn camera videos introduced at the suppression hearing. I would suggest that covers the landscape on this.

[00:13:31] Speaker 04:
In addition, we have Officer Wood's detailed testimony about the suppression hearing and the trial. Now, I recognize when I say this that the general rule here in Rashad world is remand. But this court has said when the record clearly shows the claim is meritless or when no further factual development is needed, we may dispose of the claim without remanding. Now, turning to the merits.

[00:13:58] Speaker 04:
As we've argued in our brief, we believe the Fifth Amendment custody motion with the facts that are in the record is meritless.

[00:14:07] Speaker 04:
This is, and of course,

[00:14:10] Speaker 06:
If the standard is clearly meritless, this seems to tee up a question that we've twice avoided resolving and that there's a circuit split on, which is during what is otherwise a Terry stop, if you slap handcuffs on someone, is that Miranda custody? It's hard to get to clearly meritless, isn't it?

[00:14:27] Speaker 04:
Two points, Your Honor. First, I think the circuit split actually relates to the question of whether or not handcuffs can necessarily convert an otherwise lawful Terry stop into custody. So everybody agrees, I think. this court, all the circuits, that we're talking about a mosaic analysis. That is, you know, you look at the entire scheme of things and ask the question, you know, as Hal said, the additional question is whether the relevant environment presents the same coercive pressure as the type of station house questioning at issue in Miranda.

[00:15:02] Speaker 04:
And so my only point is, And Coulter, I think, the Fifth Circuit case we rely on heavily in our brief, provides five useful factors to consider when you're assessing the coerciveness of the environment. And I would suggest that for those five, plainly tip in favor of no custody. Of course, we have the handcuffs. You know, that's, of course, the sort of elephant in the room, if you will. But simultaneous... With a handcuffing here, we have, as the body-worn camera footage reveals, Officer Wood's declaration to the defendant, the suspect at that point.

[00:15:44] Speaker 04:
You know, the exact phrasing is, you're just being stopped. Relax. You're just being detained.

[00:15:51] Speaker 06:
I get why you're just being stopped is not so threatening. Isn't you're just being detained?

[00:15:58] Speaker 06:
Sounds a lot like you're being arrested, doesn't it?

[00:16:01] Speaker 04:
I don't think so. And again, I think the tone is important here, number one. But number two, I would put a lot of emphasis on just.

[00:16:08] Speaker 04:
To my mind, that phrasing and the conversational, cordial nature of the interaction between Officer Wood and the suspect is akin to sort of what Berkamer called a presumptive temporary, it's presumptively temporary. A traffic stop, Berkamer said, passengers, drivers understand is presumptively temporary. That's why we're comfortable not having Miranda custody requirements in that context. Here, I would say the admonition of Officer Wood served the same purpose.

[00:16:44] Speaker 04:
You're just being detained. You're just being stopped. If we step back and ask, would a reasonable person in those circumstances understand that they were under restraint associated with formal arrest, I think the answer is no. And so from the government's perspective, if you take the mosaic of factors, you know, the other – I've already – touched upon the officer's statement regarding the individual's freedom to move. The location of the questioning is very important here. This was a public park within view of the defendant's friends who he had just left.

[00:17:18] Speaker 04:
That, of course, diminishes the possibility that an officer... I appreciate all these arguments.

[00:17:24] Speaker 06:
And just to back up the point of my initial question, I think as this reflects, this is very fact dependent. It's arguably a close question, because it implicates this issue of the salience of the handcuffs. And if the standard is just it has to be a colorable claim.

[00:17:44] Speaker 06:
What's the sounds like that makes it a colorable, debatable claim, it could be useful to have the district court resolve it in the first instance.

[00:17:52] Speaker 04:
I guess that's where I disagree. This is a pure issue of law, the NOVA review. It's a reasonable person standard.

[00:17:59] Speaker 04:
And so it is perhaps a close question. But if this court is in just as good a position as a district court to assess the merits of that custody question, this court can do it. And then the district court is not saddled with a possible hearing about why defense counsel did or did not take the steps relating to the motion.

[00:18:22] Speaker 05:
I mean, I would think that if it is a close question, that helps you because it's not deficient performance for an attorney to, for whatever strategic reason, decline to make a motion that may well not succeed.

[00:18:46] Speaker 04:
As this court has said on many occasions, you're not deficient if you fail to file a meritless motion.

[00:18:53] Speaker 06:
So... But if you fail to file a motion that may or may not succeed, that presents a close question.

[00:19:03] Speaker 04:
And again, if this court disagrees with my core argument that the facts here, as developed in the suppression hearing and at the trial, and as reflected on the body on camera, don't answer the question of custody... then i i think you should remand because um then you will get into questions on the back half of strickland if you will relating to okay what was the defense counsel thinking when he did that assessment and i can imagine a scenario frankly at least one scenario where the defendant says i'm not afraid of that statement in fact maybe i think that statement could help me i'm denying that i have a weapon so let's not file a motion to suppress so uh But again, you know, and again, I full well understand Rashad is generally your remand, if there are any doubts.

[00:19:50] Speaker 04:
Here, the only doubt is whether or not this amounted to custody. That's a pure question of law. It's de novo review. You all are as good a position as the district court to make that determination.

[00:20:02] Speaker 06:
The other reason to not remand would be if we don't think there's any prejudice. And the council today made an argument, a lot of arguments about trying to minimize the significance of the DNA evidence.

[00:20:16] Speaker 06:
What's your best rehabilitation of that as a significant piece of it?

[00:20:21] Speaker 04:
Well, you know, again, as we've characterized in our brief, it's a pretty far-fetched suggestion of the secondary transfer. And to answer a question that came up during my opponent's argument, there was no testimony relating to handshaking, high-fiving, anything like that. That was supposition on the part of the defendant. Instead, what there was was this. Apparently, there was a person walking outside the fence line that the officers did not stop.

[00:20:53] Speaker 04:
And so in closing argument, the defendant does what a defendant does, try to argue reasonable inferences based on that. That was a pretty attenuated chain, I would suggest, for secondary transfer, coupled with this sort of if I can, the far-fetchedness of this notion that somebody who had had high-fived the defendant then decided to leave his firearm right next to the fence line openly displayed. On the prejudice, I do think that's an alternative ground here.

[00:21:27] Speaker 04:
My opponent said that really there were only three pieces of evidence here, one, the statement, two, the flight, and three, the DNA. That's, I would suggest, sort of a diminishment of the government's case.

[00:21:42] Speaker 04:
It is very important, I think, that the gun was found directly on the flight path of the suspect. The gun was clean and dry, as the photographs reveal and as the testimony demonstrated. The gun was fully exposed.

[00:21:57] Speaker 04:
Again, you can see this on the body more on camera. And then we have the waistband adjustments, which cannot be underestimated to the extent that we had. experienced officers who described what they saw as they approached the suspect in the pavilion. And there were three different occasions where they saw adjustments to the waistband. They have plenty of experience in firearms. And they said these suggested to them that he was armed.

[00:22:24] Speaker 04:
I just want to close with one thing. I see that I have five seconds left.

[00:22:29] Speaker 04:
It's important to understand why we have Terry stops.

[00:22:33] Speaker 04:
In this context, we want... some ability of officers to ask questions because that's a point of a Terry stop to investigate. You can either dispel suspicion or confirm suspicion. At bottom, what I would suggest we have here is a non-coercive Terry stop that has not shifted into Miranda territory.

[00:22:58] Speaker 04:
If there are any other questions, I'd be happy to answer them. But otherwise, we would ask that you affirm the conviction below, number one, and number two, that you decline the request to remand. Thank you, Your Honor.

[00:23:09] Speaker 03:
Thank you. Ms. Lovely, why don't you take a couple minutes?

[00:23:16] Speaker 02:
I'd like to touch on two points that Miranda focused and then focused on prejudice. First, the government asked this court to resolve a fact-bound custody question on a silent record. But even they acknowledge this uncertainty. This court has not resolved whether handcuffing during a Terry stop constitutes Miranda custody. They discussed Berkemer, and I will briefly say that this was... you know, anything but a routine stop. And even this court under Jones found in similar circumstances for a stop where, you know, one officer followed an individual into a stairwell, pulled them down by their waist, and asked the question prior to handcuffing the exact same question.

[00:23:56] Speaker 02:
This found custody, but it fell under a very narrow exception to Miranda protections.

[00:24:03] Speaker 02:
So this makes the issue at the very minimum debatable. And under this court's precedent, debatable issues on a silent record are remanded, not resolved on direct appeal. Turning to prejudice, at this stage, the question is not whether prejudice is proven, but whether it is conclusively foreclosed. And it is not.

[00:24:24] Speaker 02:
This was a close case, and the government relied heavily on inferences of consciousness of guilt to prove their case.

[00:24:31] Speaker 02:
For these reasons, the court should remand for factual development.

[00:24:35] Speaker 03:
All right. Thank you, Ms. Lovely. You were appointed by the court to represent the defendant, and you've done an outstanding job. Thank you.