may it please the court william glasser for the united states the army investigator did not turn walker's voluntary interview into a custodial one by asking about his extramarital relationships even though they could possibly expose him to court martial under the uniform code of military justice and mr walker statements throughout the interview were given voluntarily turning first of the miranda issue the key error that the district court made was in concluding the by simply asking questions about potential extramarital relationships that could potentially elicit an admission that mr walker was engaged in adulterous affairs was not charged very much in the military your honor that's correct it is not charge frequently it's the equivalent of a misdemeanor and there's a series of factors th e commanding officer must consider and determining whether to bring such a charge so so simply asking that question or mr walker answering that question mr walker would not likely be under the impression that he was admitting to a crime that would immediately subject him to an arrest i point to that for example to the common law rule that an ordinary police officer may not arrest someone for a misdemeanor committed outside his presence and there was no indication in this case even that see id investigators there is testimony in id investigators will ordinarily not perform arrests unless there's a prior order in place that's something that usually is done by the military police so the context here does not indicate that simply admitting to these affairs which could potentially subject him to court martial would would that would not indicate that he was therefore in custody as that term is used in the miranda cases well let's let's talk about whether he he went  terribly to the police department to see id office sit in a barracks where where is that your honor it is it's a it's about twenty to thirty minutes away i was the testimony about twenty to thirty minutes away and it is on another military installation as you might know hawaii has a significant number of military installations so that he did go voluntarily and the reason for that is that he first of all he initially requested to sit down on the sofa when the military police officer was just asking these very basic preliminary questions right after she came in and saw the body but it reported him to yet very police or yes your honor he did he called nine one one and nine one one then transferred him to the military dispatcher he initiated that that's correct so at that point he is he is a victim he is not he's not a suspect he's the reporting party know but at some point the agent mitchell comes and says you need to come with me corona to come downtown so i'm just so you're going to see id investigator is actually a civilian it's always someone who's former military and then essentially leaves the military and comes back as a civilian investigator but i think there's no question that you know someone who's in the military is going to sort assume that he has to follow orders i don't think there's any question there but so how does that factor into our voluntariness sure analysis here well your honor i think it's important to sort of step back and look at the broader context here and it's comparable to a civilian situation where someone reports a crime reports the death of his wife the murder of his wife and at that point that triggers certain investigative responsibilities by the police force to determine you know to secure the crime scene to determine a timeline to determine language here was in in this military sort of context where mr walker is i think probably going to feel like he has to maybe follow certain directives  here says i think the language mitchell said he uses was unique you know walker needed to go with mitchell to the army station to get some details on the murder or walker language that i think you would normally find in that scenario might be well not the same as we would normally find in a completely civilian setting well your honor this was a crime scene so there was no question he couldn't stay in his house and therefore it was incumbent upon the investigators to take him to some other location to to conduct the investigation they needed to obtain clothing samples for example to determine whether or not some trace evidence would have been found on his clothing because he had been exposed to that crime scene so so yes there certainly concern i understand the court's concern with the language used to summon him but the district court itself concluded that he was not in custody at that point for miranda purposes that the district court sort of arbitrarily drew that line at some later stage in the questioning but i think looking at the broader context here he is someone who's a victim he he voluntarily goes with police he's not he's not told that he's a suspect in fact the investigators testified they did not yet suspect him and i would compare this to the this court's decision in crawford where the defendant actually been held at gunpoint during a parole search and then it was subsequent to that parole search he voluntarily went to the police station and this court concluded that he was not in miranda custody and this nothing even even at all akin to being held at gunpoint as part of  the district court's conclusion that both his pre invocation and post invocation statements are voluntary were involuntary scuse me and now we can see that as to the post invocation statements there was a miranda violation we're only asking for those to be admissible for case that some sort of police coercion is required that a court pointed only to the fact that mr walker was deprived of sleep that he hadn't eaten much and other factors to indicate he might have had a weakened mind but police coercion is necessary it's and with respect to the post invocation statements now the district court did point to some indications of coercion for example in the manner of questioning but we point out in our brief the that there are cases indicating that that those forms of questions are not improper in those cases come from the supreme court and from this court go back i mean but the summons is important in determining whether someone is in custody or voluntary is that correct the summons language it seems like that's what the law says your honor it is it is but i think it's to a fairly slight degree and the reason for that is that you can give a voluntary statement even when you're you're in jail there needs to be some sort of actual police coersion that's making you say something that you wouldn't statements the route finally at the very end indicating that there had actually been threats by his codefendant also jackson i'm talking about the custody analysis yes or i'm apologizing so certainly with respect to the custody analysis under miranda absolutely this court has even a close call that walker's post miranda statements were involuntary that they were coerced of use of police interrogation now the facts for this issue with the respect undisputed there all on the video video speaks powerfully as i told the court is in the record i told the court at the hearing on this and i even referenced it in my brief this is the worst police interrogation misconduct i've seen in thirty four years a criminal practice what did your client say one of the lower was that he said he wanted a lawyer right when he was read miranda rights it was about to believe two minutes after two o'clock there's an afternoon he had been there for how long but even though you got there about nine o'clock in the morning he came home from work he worked a twelve hour shift at tripler hospital he was a medic nurse at triple hospital worked a twelve hour shift came home left work at six got home at six thirty found his wife's body called nine one one you know he notified the authorities ships out he did absolutely he called he called nine one one opened the door  question where was mr walker released to after the interview with agent mitchell and being in the army see id question that station for questioning he didn't leave the station or the c id station until about ten o'clock that  was a place on post on base so he was free to go afterwards yes after that night that night he was at the station for over twelve hours i think from nine o'clock in the morning were lawyer who had been interviewed what about an hour i believe it was about he'd been arrogant for about an hour then they took a lunch break and the lunch break was about an hour and twenty minute lunch break they brought him some food if you watch the video he sits there and he takes a moment in prayer and takes one bite of a hamburger and then he doesn't eat anything but he's in the room for a long time by himself before he was interviewed they took his cell phone they took his clothes they scraped  arrived at the army c i d s so i'm just trying to figure out in this cut against a finding of custody where it shows that he consented to officers taking some of his property and hauling it to search this and that seemed indicated voluntar well he did consent to that he did consent to the search early on he was in the police station so when we're looking at the totality of the factors does that not factor in and had against well that all factors in the totality of circumstances i would  and the statements here although the judge found that the premier around a statement that he was in custody when he was asked about the extramarital questions and if those were not voluntary the judge did say that that was a close call those are not critical to the trial of this case and this is an interlocutory appeal so when this comes down we're going back to trial there's a lot of other evidence about the extramarital affairs he had from both craigslist and facebook and they've got probably four or five witnesses that are going to testify yes mitchell says all you want to lawyer well here's the deal you know i've got to ask the questions but the only thing that happens there is that the prosecution's not going to introduce it in the case of j but using it on basement purposes right right but as a significance of that that is a huge significance that they can use it for impeachment purposes i believe my client will testify i think the government expects him to testify and they can commit these abuses thinking we'll just get it in when the defendant testifies that's no no prevention there what the agent did in this case and again judge i'm always was correct and find it wasn't even a close call there was repeated miranda violations  for a lawyer twice he says you want to lawyer he says i don't want to talk right now the agent just kept bulldozing through then he said i don't want to talk about this anymore the agent kept bulldozing through finally he says can i have my lawyer now he's crying through this whole process and i would urge you to you know to watch the video everything's on their ears and make a statement lation around that can be voluntary any way can you know those are two different take are two different things are some around and compliance and then there's the voluntariness follow an involuntary or coerced statements cannot be used in any way because they're inherently unreliable and that's what judge small way found and that's my position on this my position has always been that those post miranda statements were a product of coercion by the abusive police conduct of agent mitchell he deceived  said we've got your there's a number of factors judge well we found deception we've got your fingerprints on the knife we're going to find your d n a we forensics are going to come back that you did it accused him of murdering his wife he appealed to the religion he said you should confess and save your soul your wife kathy would want you to be saved you should confess and then he played the military card with this commander he says you know i have to talk to your commander about this he's going to want to know what you did your commander would appreciate a confession that he finally he says a confession will be good for you use a confession he said a confession will set you free implying that everything will be fine if he just confesses the government what's your argument regarding being comprised with the extramarital affair how does that in your view but i agree that i agree with the judge that confronting him with those questions i mean he should have been read miranda before those questions well but he wasn't he wasn't be an ass to our being confronted with evidence of the underlying crime which was the murder of his wife i'm just trying to figure out of the court has applied the custodial factor of confrontation in a similar to this situation where it's a different offense well i think that's what she did is she said when he was confronted with i know i'm let's do that already do you have any authority for i've said i agree with the court that that's a close call and i don't believe that that is critical or even really a real issue when we get to trial in this case because there's going to be lots of evidence with respect to that so my concern in this case is the post miranda statements being involuntary in the end is that the there was a video of the interrogation yes and there was a transcript of that which we have and there was also testimony from the officers and from yes the not from walker but from agent agent mitchell and there is a transcript of the testimony if the court has time i would urge you to look at the video that is extremely telling i mean the just the power of the agent's tone of voice doesn't come through in the transcript and the government tries to isolate these factors and say you know deception religion telling your commander that any one of these factors themselves don't create an involuntary statement but it's the cumulative effect of all of those factors combined with the repeated miranda violations and all the cases that they by the defendants in those case but what we've got here is folks miranda and the agent just keeps going forward the government says well his will wasn't overboard because he didn't confess then confess to the murder what they haven't really maybe considered is maybe he's innocent he didn't do it but every time he would give the agent something about his affair with lisa to just make up something just get the agent to stop that's the hallmark of a coerced involuntary statement was or wasn't was not in custody i'm trying to figure out your position on premier and the court found that he was in custody at that point that he was ready extramarital and so i agree with the court however i said that's not critical to this case what's critical to this case for the defendants pelly standpoint is that the post miranda statements are involuntary ok right thank you thank you very much placer classwork i think you just a few brief points on rebuttal first with respect to the the whether the evidence is critical with respect to the pre indications statements and that's that's a call for the government to make the us attorney certified under thirty seven thirty one that this was important and i can i can explain the reasons to the court he said many things after the district court determined that he was in custody such as that he and his wife had the only keys to the house that the key she was going to check in doors that the keys had not actually been stolen at the car break in the previous week there's a lot of information there that the government believes is very important for them to its case in chief that's our call not the defendants but with respect to the issue that he seems to really care about which is the impeachment evidence of the post invocation statements we're not afraid of having the court the court look at the video we think that actually the video supports our view that his statements were voluntary throughout this interview and therefore we think that the court should reverse the district court's decision unless the court has further questions and thank you thank you both her and your presentations here today the case of united states of america versus michael walker is now s