in your honour's may it please the court sarah weinman federal defenders of san diego on behalf of david mason this case is about miranda and it's about what constitutes an adequate  question here is if you listen to the advise of the detective brown gave and you listen to it one time through the way david means that is that adequate is that effective and sufficient under miranda and does it meet a suspect his rights that's all i've got to find here now you're saying that didn't happen here that's absolutely right your honor he did not reasonably convey the rights  understands them so that after that we can talk freely once i'm done with that ok saying we can talk freely as soon as i've read your rights that's inconsistent with a right to silence it's confusing and it requires read the rights to him did he ask them if you understood them he continued time did he not he continually said do you understand all of that including this talk freely comment regardless of how the audio  this court found that the advisor was inadequate and i went and looked at the government's brief in that case and the government's brief in that case specifies that that the defendant there said that he understood his rights and that he wanted to talk to  him clark and i'm happy to give this court the cite to that brief but it's the it's august th two thousand and two answering brief in that case so i think saying one crew shows us that even when a defendant says that they understand all that or cool with all that that doesn't necessarily mean the adviser was adequate and here in addition to this talk freely comment which i believe rendered the right to so islands warning subject to equivocation that's what san juan cruz says if it makes it susceptible to equivocation that is too confusing but in addition to that there is more well i guess if i'm on novo review i'm wondering what difference if the defendant repeatedly states that he understands these right that's not what he said he says he understands what brown is saying well that isn't exactly what he was the house you don't understand what i'm saying was not the question he says do you understand all that are you cool with now you understand  i've said do you understand these rights that's what he's saying he didn't ask do you understand these rights he said you understand all that and i would argue that the understand all that includes he did ask periodical yes after each warning so i would say i think the best analogy here on ars is you know if you ask for directions to a restaurant and you get bad directions you can very well say you understand those directions but that doesn't mean you know where the restaurant is now here what we have is you know brown was was asking these questions he's racing through the warnings he has these long protracted fillers and pauses where he's humming and and drying out these kind of long silence periods and then rushes through the delivery of the warnings themselves and says are you ok with that and brown and mays i said yes yes or and rushes to affirm i don't think that answers the ndermined the clarity of the one and so i would say i would point this court to several things st of all we have the advice all took forty four seconds twenty seconds of that it's given the warnings the rest of the time we have these like long pauses so the warnings come across as kind of this afterthought and if you look at the rate the rate of speech that brown had he's talking up to three hundred and eighty words a minute there are studies that yeah i saw that in your brief and i hadn't listened to the tape so i thought this was going to be like one of those auctioneer's really can't even understand what the person saying and that is not what i heard on the tape i heard i could hear with one exception every single word the person said so why does the speed with which he gave the warning to me because that one exception if i am following your honor correctly it in the right to counsel warning one of the obviously they're all fundamental but that right to counsel warning as miranda says is is one of the most fundamental and important and one of the areas that put that aside i'm sorry i just what is it about the speed with which the person  speaking as long as you can understand the words that they're articulate why does that matter for more and purposes yes your honor though the reason it matters is because what needs to happen here is that the miranda warnings have to be conveyed in a way that conveys their importance and i think when you rush the warnings like that when you race through them when you talk about them as an afterthought zero meant by the way then what you're doing is you're downplaying you're minimizing in your trivializing the import miranda and that's what the case law says you cannot do that's what judy says you can't do the speed with which the warnings were given you think sort of convey that this don't worry about this this is important i think the speed did two things here on our one it reduced the likelihood of comprehension to convey that these were judge minimal minimized trivial rights and for morality to be gotten through and that's what miranda says you can't do you can't have this  that took forty six seconds miranda warnings and i'm very long i wasn't humming or during the speech during any of the breaks which would increase the the length in fact that it did but i don't remember now how much longer draw the line between twenty seconds and forty six seconds i don't know that you necessarily need to define but i think what we can say looking at this and listening to it is your owners have done is to say that in combination this talk freely comment the rate speech the difference between the delivery the speed at which he delivered the warnings compared to these long pauses and gaps in between and coupled with never mention this the fact that brown never asked the th warning he never never told the can i mean i was listening and i know i can say it that fast but i'm just trying to put things in perspective well let's change them to the nd the your client had no mental problem there wasn't any writing here that's for sure not in spanish but said he was comfortably comfortably speaking in english spoke for four hours in english so i just want be clear you were asking about the way for i'm asking about whether there was a comprehension so i mean i'm giving as i started out with my questioning i'm i'm saying this is where i have to give some deference to the district court as to whether he understood or not well and it seems to me those questions are pretty well combined in this particular instance how you want to divide them and i appreciate you do have good for your argument but now we're looking at vid understand it now iow deference to the district court and then i gave you the reasons why i would think that there's nothing in here that would say the district court was wrong that they abused their discretion that they were clearly erroneous in saying your client knew i appreciate your honors question because i wanted to address the district court's factual findings here just your court made one factual finding here that's a e r one hundred and forty seven it's in a footnote where the court says that it rejects these this contention that brown mumbled and swallowed his words so st of all to the extent that that's a factual finding i think it's contradicted by the record if you look at the rate of speech which the district court never calculated and so that is clearly or oh you don't think then he didn't swallow or mumble well i think and again i appreciate the chris question because even let's let's accept the fact this finding that he didn't mumble or swallow his words you know at the end of the day what we're looking at here is the that's the question words to noble and then i wind them to the nd part and that's why i put all this stuff on there that made me think there's nothing to suggest the district court was clearly erroneous it was fine  writing with regard to the implicit waiver yes the district court clearly erred in finding there was an implied waiver here why because there was no course of conduct that shows that mays knowingly and intelligently waived his rights and i think you have mental problem before going you know did he require be in spanish no he said it could be in english when for four hours in english it was explained thoroughly do you understand he's not a newcomer to the system why do i say then that i shouldn't give deference to what the district court found your honor the reason why is because well some of those facts that you just pointed to are facts that are discussed and considered  get think the thing is that all of the defendants in those cases were shown the miranda form or asked to idle the read back so the writing that all you're after because that's what i thought you were after it's got to be in writing every time to be comprehensible i think in this case as there is no law saying it has been riding every dime that's right your honor because i think you have to look at the totality of the circumstances and again here i think if you look at the way the advisor was given plus the fact that he was asked to read a lot plus the fact that he wasn't asked to initial plus the fact that he was never given the th warning plus the fact that he was never asked to waive plus the fact that unlike all of the suspects in all of the cases the government cites affidavit he didn't testify at the suppression hearing he didn't say that he didn't understand the warnings were we said was that he understood that brown had to say those things before he started asking me questions which is essentially legally correct but when i would struck them what he declared was that he understood that brown had to read these things and i think if you look at what happened here where brown is saying i need to read you this stuff so that we can talk freely and then me as a starts is absolutely no question beyond a reasonable doubt that he committed this murder your client and i don't even think you you you contest that you focus  in on the fact that when your client crossed the border to go from san diego to mexico he had not formed the intent if i'm not accurately describing your reply you'll tell me but they had not actually formed the intent to kill and i think that it the evidence overwhelmingly suggests that he must have if you accept the fact that he he actually committed the murder than the manner in which he went about doing it spending time with the victim and in mexico going back at one thousand and thirty to san diego are where they met in a fairly deserted area and where your client's body was found nearby thrown down i don't know if you would call it a hill but thrown down a hill  and g p s records which oh i'm in the area at that very time and and the benefits that he that he got as a result as a result of the of the committing the murder it was a he was a beneficiary of a three billion dollars will i think he was he was the beneficiary of of a condo that was worth i don't know hundreds of thousands of dollars i don't remember that exactly and the interest level enough if you rely on the questioning for some of your arguments and harmless error for example you rely on a on a question that the that the police officer asked which said that something go wrong to suggest that you rely on it for your later argument to suggest that maybe this was a crime of passion and in the the defense lawyer relied on part of that confession to suggest that what he was that that he he made this trip and by the way after the murder he goes back that that same night the california changes his clothes before he does but that he that he made this trip he wanted the key to the victim's car so he could go steal a stereo equipment which comes right out of the confession i don't want i hate calling it a confession because it was time to respond because i think this is obviously this is very important i know him over time but with all due respect your honor the question here isn't was there sufficient evidence to convict without i didn't say that the question is the question here is did the jury's guilty verdict can we say that it is surely on a treatable unattributable to the statements did the statements have some influence on the jury and there is no question here it is beyond any reasonable doubt that they did the jury after deliberating for a full week asked to hear the entire two and a half hours of statements all over again during their deliberations they rendered a verdict on count one the following day now that's best during deliberations in addition to that we have the way that the government emphasized that it's not unusual juries are very careful and we say that's my experience and this is a murder case and they know what the consequence of the guilty verdict is and asking for his confession  view could easily be construed as the jury wanting to hear his side of the story which as i said it was relied on by the defense counsel and his summation so the jury the jury just wants to be sure in my view that at least that's how it can be read about what it what it was doing before the ford farm we convicted her have a confession beat post and i want to call it a confession because he didn't say he committed the murder but the post arrest statement essentially was his that's all the jury had to know what his side of the story was and they may have wanted to hear it over even giving the jury the benefit of the doubt on that point your honor this we know from filming on tape that a confession is special a confession is especially probative and damaging and that is and that is true even more so in this courthouse exercise extreme caution when the statements can discuss disclose the motive for and the means of the crime and that's the way the government used the statements in this case to talk about the motive for the crime over and over again in their closing arguments in their case in ch statements and confessions in terms of harmless error there is a difference between the saying that i did it and giving him a statement that's exculpatory in terms of in terms of weighing the harmlessness of the jest but here what the government did what the statement showed is that mays lied repeatedly and he didn't just this isn't lying to his doubt about being gay or lying to his girlfriend or you know saying he's a nursing school and he's not he's lying to a law enforcement officer and then for an hour he was lying to everybody about about material aspects of this case including saying that the person he killed was sick and maybe dying he he he there was there was an obstruction of justice in effect count based on based on the fact that he tried to  alibi he was his whole relationship with the victim was a lawyer and the and the government brought that point out in it and he hammered that point home with the statements and he did that over and over again it's not like the other day was overwhelming i mean sent a victim note saying he was in love with him how would we know that he wasn't in love with him of me as a didn't tell brown i wasn't in love with him but though the government right now we're together i'm sorry he wrote notes he wrote on the receipt to the when when i when i believe he got the scooter from the victim on the on the invoice he said i love you and then he wrote him a note a belated birthday note which was which was which which spoke about how sorry he was them and how much he loved him that was all false he wasn't in love with him he was in love with the with what he was getting from him and we know that from the statements and that was the government's narrative at trial and that is why they played these statements over and over and kept brown on the stand to say as they asked around on the stand that he had already lied and they enumerated the number of times he lied like three times he like four times in closing arguments th mind just totally harmless i think your honor if i could just say one last point here is that the there is this kind of sporadic evidence and the government used the statements to tie it all together the statements were the web that brought this evidence together it changed the evidentiary picture it corroborated and it explained the other evidence and the you can see if you read the government's closing for example at seven hundred and forty five in the exercise of record the government points to other evidence and then and then he says the prosecutor says let's see why he did that let's see why he did that and he says what's the defendant's motive in this case and he proves that by playing these statements and he plays the statements twenty three times and closing arguments he plays a statement said over and over and you exactly how to know what his motive was i mean the evidence is just overwhelming the problem with prosecutors is that they don't they have to we have no more to quote have the kitchen sink approach they have to introduce everything and i have to say everything and i don't use any judgment but the basic fact is is that that was all proven by independent evidence and he could have made a summation that was almost identical without any may have please the court daniels upon we have the united states your honor in williams the court made clear that there is a difference between full confessions and statements that are only inculpatory when combined with other evidence as your honor noted the confession in this case was not actually a confession the defendant at no point during this four hour interview and mid to killing mr marron dino in fact he continually shifted his story and eventually arrived on his account of going to steal stereo equipment that his defense attorney that was then able to use as sort of a theme for their defense at trial if you look at the evidentiary value that the united states got out of the post arrest eight meant it was essentially three fold one the fact that this lied repeatedly to the officer over the course of the interview to that he had talked to someone else about creating an alibi and mexico and three that he called mr mayor and you know and lured him out of his hotel room at one o'clock in the morning all three of those evidentiary points were exhaustive lee covered by other evidence independent of the post arrest statement as to the lies to the officer as your honor noted the defendant in this case lied to multiple people about that specific lie that he told to detective brown he called the friends of mr mayor and you know immediately after he was killed told one of them that on the night of the murder that he would back in san diego to visit his sick sister he then called the attorney two days after that as she said whimpering to her and said that he had left mexico and gone back to san diego because of a car accident he lied to the hotel manager when he st arrived back in mexico and said that he had gone back to san diego that night and he didn't understand why the victim had gone out without him he lied at the primary inspection when he came back in that night and said that he had been visiting his family members and he even lied to his best friend your own at a baby shower the day after the murder and told him that he hadn't spoken with mr marin dino in days and he didn't know where he was so with all of that evidence in the record the fact that he also lied when interviewed by detective brown did not materially affect  the outcome of trial so too with alibi certainly by the end when detective brown confronted him with the fact that he had spoken with his fiance and talked about this alibi that exact same evidence came in from the friend from this joe who lived in tijuana who took the stand and testified that the defendant reached out to him and asked him to sort of create an alibi for the night of the murder and say that he was with him and to you want to and finally the fact that he area in mexico in the middle of the night at the time of the murder so in light of all of that evidence whatever additional benefit the united states received from this would not have changed the outcome of trial and would have been harmless beyond a reasonable doubt even if there was violation of miranda in this case as to the substance of the miranda claim this court has made clear that that the press there's no precise warnings given but i have never never heard an agent or an officer give the warnings in the way that you're just using to tech to my guess is yes i mean it it's it certainly raises suspicions as to why he conducted himself in the way that he did i think the defense's theory as to why he spoke so quickly and tried to downplay the significance of the warning seems spot on and i'm i guess i'm troubled by the notion that we're going to give our stamp of approval to the way this agent to minister the warnings this is certainly not the way we want any agent or any law enforcement officer to to give someone a random or you know your honor and i don't think we're asking you to give the stamp of approval to this manner of questioning certainly he could have done a better job and could have used an actual formal way of reform and done this in a different manner but i think ultimately the legal question as to whether this his voluntary statement should have been suppressed goes down to essentially to two questions was the substance of what he said to mr mays sufficient and then secondly whether on a clear air standard whether mr mays actually knowingly involuntary only waived his rights and however your honour's feel about the matter that the the way that the detective read these rights if you look at what he actually said the st three track exactly the language from the miranda decision and the  one was in a more informal and casual tone but it certainly expressed the fundamental idea that anything i can go ahead and use later on in court proceedings against you if i need to the supreme court has held and duckworth and florida versus powell in california be price act that sort of courts need not parse the language of these miranda warnings like they're considering a will or determining the scope of an easement the question is whether that statement even if it was cloak will was sufficient to inform him of the rights and i think if you look at what was actually said the court got it right when it denied his suppression motion and found that that was sufficient to ion that's my question yes i believe i thought it might be that he didn't swallow or mumbled the warnings but effectively conveyed the right is that also five i think in the context of the overall finding that this was a knowing and voluntary waiver all of that is subject to clear air review you know as the supreme court held in andersen versus bessemer county even when the court is reviewing documentary evidence or hard evidence that separate from what actually occurred in the courtroom the clear air standard still plays an important role in that it sort of gives a definitive answer at the trial stage as the court held in anderson that that trial should be the main event and not a tryout for the road in other words that the parties can rely on this court's finding that this was a knowing and voluntary waiver use that finding shape their trial around it put the evidence and and know that there is going to be a deference  to the district court's finding and it's not going to be essentially a jump ball again when the when it comes back up on appeal so i think certainly on that footnote and on the broader finding of knowing and voluntary this court should apply well as long as that knowing and voluntary finding is at least plausible in light of the record as a whole we were cases say about circumstances the circumstances we have here where the agent does not ask the person are you and for what happens sure i think the cases are younger and this court explicitly held that there doesn't need to be an explicit waiver at the end of the advise wells that was sort of the original and then there's a couple cases afterwards cruz and cara bay where the court established five or six factors that the court should consider when determining whether a waiver was knowing involuntary in this case most of those factors other than the lack of a written weighed in favor of the court's ultimate finding in this case that it was knowing involuntary as you're on a noted the defendant had no mental issues he was a high school graduate who was clearly had the mental capabilities to maintain this dual life and orchestrate this murder there was no issues with the language and volved he indicated that he understood the rights in fact every time the detective read him his rights he immediately followed up with do you understand all that and the defendant responded either yes or yes or so the record is clear that he actually understood the rights and as your honor knows the final point is that he was experience with the criminal justice system he had been tried and convicted of prostitution just a few years before he had also recently been charged and pled guilty to a battery on his fiance so that in combination with and then the final argument is that the initial statement by the officer that essentially that we can talk freely afterwards this was nothing like the sort of direct contradictory advice that this court has found problematic in san juan cruz for instance cases where an agent read from a sort of civil immigration set of rights specifically inform the defendant your right is to have an attorney but you have to pay for it yourself and then immediately changed over and read the different right from miranda without any explanation here the detective was sort of speaking in the rd person at the outset when you turn the recorder on and it's not clear that that we can talk freely afterwards  certainly plausible for the court to conclude that that would not this or a to the other clear express statements of rights that immediately follow so have some time on the clock but i'm happy to answer any questions that the court has about this or any other issues ok thank you counsel thank you let's put two minutes on the clock for a little burden on the suspect and that's what happened here with respect to the talk freely it's set at a minimum it's it makes the the warning that anything can be used against you susceptible to equivocation and and as your honor pointed out the coupled with that we have this overall downplaying and trivialization of the miranda rights and and i think this is not what we want to tell law enforcement officers all over the country is ok this is not  more probative and more damaging to a defendant his own statements are than any other kind of piecemeal evidence the prosecution may point to and here not only did the prosecution use the lies that  mesa told the detective during over the course of these four hours he used the prosecution use that to say that lying is tantamount to guilt it's tantamount to a full confession he continued to say over and over three times four times five times the prosecution spells out for the jury he wasn't there that night only eventually to admit that that was a lie and the government argued the government argued in closing argument at seven hundred and seventy one dollars seventy seven cents this middle of the night crossing as you recall from the tape recorder interview  detective brown this is the big one he wanted to hide the fact that he was in mexico crossing number two and saying he wanted to hide that that's essentially saying that he's guilty so it's and it's at least the next step to a full confession and with a guard  to that there was also a full confession with regard to the obstruction of justice count and foreman on tape tells us that where there's a full confession this court should almost never hold that it's harmless beyond any reasonable doubt to iranian flea admits statements ok thank you