good morning we'd like to welcome judge callahan to her debut on the ninth circuit court of appeals and we will call the cases off the calendar in the or in which they are listed the first is united states versus reading that submitted on the briefs the first case for oral argument is united states versus charlie has way counsel you may begin when you're ready the court i am suit song arguing on behalf of the united states i would like to reserve two minutes for rebuttal this is the child sexual abuse case that originated on the navajo indian reservation the district court erred when it suppressed the defendant's statements as being involuntary personae first there was absolutely no official coercion no physical violence or threat of it and no improper threats or promises second there was no physical torture to support the court's finding that this was involuntary per se voluntary and non custodial yet the defendant was still informed of his miranda rights and executed a consent to polygraph most ask you a couple questions here on the record didn't seem to be very well developed in certain ways and i want to make sure that i'm not missing anything certain inferences that i think if you just report says well it seems reasonable that certain things happened that i couldn't find anything in the record that said what time you got there how long you know how long certain things took just basically that it was it took a there's absolutely nothing to suggest that he drove the defendant there or otherwise transported him well the judge made a number of times and that's one that used it but that's i mean that it was reasonable to make an inference and so that one i'm assuming that you disagree with  what what about what are the findings that you think we would have to be bound by in terms of i think one of the there was a fine mean regarding that the district judge did not because it just doesn't seem mind you call that after you do a polygraph unless there's deceptive results if you want to actually have a meaningful interrogation wouldn't be logical that you would can print someone with the facts well you know hey you want the pol opposed to not credible i mean i guess of the district courts finding was that agent kirk wasn't forthcoming in saying that he hadn't told the defendants the result now in this case that agent never did tell the defendant of the results he may have agent to confront that dependent with the result what's wrong with that well there's nothing wrong with that your honor that's not coercion and that's not been found to be coercion and the precedent of this court and to respond to your question about the factual findings of the government's position that you can take those clearly erroneous facts as true and this statement was still not involuntary under the law the district court's findings were clearly erroneous and without a basis in the government's opinion do not control the issue of voluntary miss and this court need not disturb blows mr kirk into small pieces in terms of credibility and says among other things he answered questions generally invasively uses the word disingenuous and that he makes and he makes finding with respect to the so called confession that mr kirkwood and the mr has words mouth and then we go down here and farther and we he was braced of about whether or not this could have been tape recorded so we could find out what's going on and then he goes on and on and on and he sums all of this up in terms of the technique used by concluding that the technique which is illuminated by the agents refusal to get serious about what really has resulted in an involuntary statement why isn't that sufficient for us to take a look at this and remind ourselves once again we weren't there we don't know what happened but this trial judge was very are you upset with your key witnesses testimony such that he found your key witness testimony not credible well your honor the problem is that the trial court's conclusion is all right with factual errors trial court found him not credible what we have left with respect to the confession there was no challenge to the evidence there was no other evidence presented by the defendant your honor what do we have left without kirk that agent her testimony was it was all of the evidence  other than the documentary evidence that was presented on the issues and isn't it true that the trial court concluded that agent kirk's misbehavior left a gaping hole in your case and you failed to prove that the confession was voluntary because the trial court d even admit that the words sexual contact or whatever it was were used by mr has would before kirk sort of said well here's the way we talk about those things in this business and i would say with all due respect your honor the fact that the defendant chose to use those words when he was alone in a room writing his own state meant just not enough itself so that they were put in it's now for the trial court seems to have concluded that they were the factual matter so you're asking or telling us that we should have to look at that and say well that's clearly erroneous i don't believe there's evidence in hear from the other side just taking the outside on everything during that time has were denied molesting the young girl them one agent concluded the polygraph examinations that he can climb to the house but with a place that has what hasn't why then he presented  words you know putting words in the mouth that i don't see it took place in a conference room there was one officer presentation there appears that the agent explained it's right that he signed two different consent forms that there's no evidence of threats violence or promises and that there's no evidence of any complaint of physical elements now if the if that's the worst case scenario how wouldn't every c the statement itself that's where you see that the will was overboard as the court made the findings the district court made the factual finding that the words were put in mr has words  well they weren't there the two specific words of sexual conduct and sexual contact agent kirk specifically testified that those were his words he used also made statements during some of the examination that  we talked about mr has with statements once i felt comfortable with his statement he felt comfortable with this i asked him if he would write it up and let the district court is its use that it also found just the overall  he denied the allegations to agent kerr he went so far as to say he was going to sue the victim for charges i understand that but aren't you arguing that every case where the person starts out initially by denying something and then admits that that that's necessarily the result of the kind of psychological coercion law enforcement when you're talking about sexual stuff courts will even tell witnesses don't use the street words for this kind of stuff and they lapse into this kind of a polite talk all the time and so this strikes me as the usual fare i mean i prosecuted hundreds of these kinds of cases and in every one move the vocabulary of the witnesses was cleaned up before we got to court and nobody had any problem with that at all and so here all it seems to me is that he's adopted  sort of a cleaned up way of talking about what happened what's the problem that necessarily renders this involuntary again in viewing the totality of the circumstances that is one of the driving that if you take it apart i know it's improper to take but if you look at all the various aspects of somebody drives somebody to the location of questioning why is that exciting it's not and i agree if you look at it and then they advise the guy of his rights and we've been told even miranda tells us that there's nothing wrong with interrogation it forms a vital part of police work you just have to do it right and so here they advised him of his rights and apparently he waived his rights is there a finding here anywhere that he didn't waive his rights now that his rights correct and then the same thing is true with a polygraph advice so i all stages the law enforcement people are doing precisely what the courts have told them they have to do and so then they adopt some kind of vocabulary that cleans up the usual language in these kinds of cases and i just i don't yet know where is the beef as walter mondale said a long time ago well again i agree if you take each individual facts and look at it separately it doesn't amount to much a whole bunch this case as opposed to you right after that polygraph was was given and then that newspaper article which the district court had a problem with because it doesn't show up anywhere except for the testimony the cases seem to suggest it's perfectly appropriate after a polygraph examination or during a regular interrogation to tell somebody hey pal no harm intended but we don't believe a word you're saying you're going to really mess yourself up if you continue with this nonsense and so long as a person is waived his or her rights that seems to be absolutely appropriate isn't it is if that's the difference between that and what happened here because this case the investigator the agent goes a step further and shows this newspaper article and what the court found it to be is basically a threat of perjury charge you think it can't get worse but it can if you commit perjury that you know and he shows them that i might's well that's what i'm true about and that's just the that's that's the way of the world for what he does if he shows them an article that he personally was involved with saying look at not only was this person convicted but i also got a perjury charge on this person as well basically tell him i don't believe your statements and if you don't say what i want you to say this can happen to you but i'll go back to the cases that say it's perfectly appropriate to do that so long as the person has waived his or her rights not the case to say that they do so here we have a police officer that does that and then all of a sudden we turn around and double deck the officer and say well you should have done and in this case i reckon ability is a large part of the law i agree but again with the district court on what the district court looked at was the totality of the circumstances it's not just that one piece he put them all together and i know this court is referred to as a bunch of zeros obviously the well i do think that it's a factual finding the court made that the agent put words in mr has would smile i put a lot of words and rape victims mouse find a prosecutor or a well briefed and well argued sort of medical get you a decision as soon as we can