Legal Case Summary

Good morning. May it please the court. I'm appearing on behalf of Victor Mason and I am Nathan Mammond. I'd like to begin with the fifth amendment issue first. It's undisputed by the government and it's that in its closing argument, it asked the jury to include that Mason was guilty because Mason was not recorded by Trooper Swyker as denying knowledge of 10 kilograms cocaine in his car. The government clearly emits three times in its brief. pages 38, 35 and 33 that its intent in the closing argument was to cause the jury to think about what they would have expected to hear if Mason did not know that there were drugs in his car. And if he was innocent. The government's comments on Mason's failure to speak into nine knowledge which asked the jury to infer guilt based on Mason's post Miranda silence was an impermissible comment on that silence and violated his fifth amendment rights in the principal's support in Doyle versus Ohio. Mason's counsel should have objected and should have raised this issue in his direct appeal and their failure to do so was deficient. It was a rather minor part of the whole case, wasn't it? Your Honor Judge Wolkenstein submitted it wasn't a minor part of the whole case. It occurred at the closing, rebuttal part of the argument, the very last thing that the jury heard from any counsel before retiring to deliberate was this thing. I understand that he had been given Miranda warnings. Yes, yes, Sean. And he was in the back seat of the car with Mr. Govann. Correct. And the two of them started talking. Govann started talking, Your Honor. I think the evidence is undisputed that Govann was one who is really initiating the conversation, making most of the statements in the back of the car. But Mason made some statement. Mason did make some statements. Correct. So, the, how is the conversation between Mr. Govann and Mr. Mason in the back seat of the car, speaking voluntarily after having been given Miranda warning? How is that part of a custodial investigation? In other words, what the Edwards case and others say is, if defendant silent or invokes his right to silence or invokes his right to counsel, as you shouldn't keep pushing on and pressing on. But as I understand it, that wasn't what happened here. It was Govann that initiated the conversation. Not any law enforcement officers. Correct, Your Honor. So the statements, first of all, let me guess explain that we're not challenging that there was anything permissible about commenting the statements that Mason made in the back of the car

. The problem wasn't that the government referenced a statement that Mason made. The government took it too far when it referenced what he did not say. And I don't understand Miranda or Doyle to say that you're only protected from having conversations or having your right to remain silent used against you if you're being asked questions by the law enforcement. It protected us all. But it was all part of an inner China. It was, but the conversation ended that the there was a statement in the record that that tributes to Mason, that's how drugs work. That was the last statement in the prosecution reference that we're not saying that that reference alone was was improper. The prosecution took it too far when they asked the jury to ask about what they did not hear Mason say. And once you start asking about what a defendant did not say, you're also asking, you are seeing, coming on the fact that he remains silent. And Miranda allows you. Miranda is not all or nothing proposition. Miranda says that you can be selectively silent. You can answer some questions, not all. And Doyle protects that selective invocation of Miranda. Never understood Doyle to extend so far as it ran off as it was given Miranda warning. And don't press further with questions. And two suspects initially conversation among themselves in the back of an automobile that the government is prohibited from referencing that. It seems to me you can get it and start splicing it very fine. I'm saying well, no, there was this period of silence somewhere within the conversation. I mean, this can this can split some very it can split some very fine hairs. Judge Wilkinson, I don't believe that there has to be necessarily a break in silence to separate what was said from what was not said to have the indication. For every conversation consists of some periods of silence and some periods of conversation. And you do want to have some discernible rules. Right this splits it. But you're on I think the holding of Doyle, the holding of Miranda and the other courts of appeals have applied Doyle. Have understood that the line is crossed when you're commenting not on what a defendant says or not even using what a defendant says to rebut trial testimony, cross examination, to cross examine defendant. But when you're using what he did not say as evidence of guilt or as proof that this defendant was guilty. And the fact that the government reference any statement that Mason said is fine when they went. But there's another part of this puzzle that you may be overlooking. Had Mason tried himself to use tape statements to use those tape statements to support

. His he's denying any knowledge of cocaine in the trunk of a car. And hadn't he sought to use those tape statement? No, you're right. The government does make a suggestion of that in its brief. But if you actually look at what Mason's counsel argued, Mason's counsel was very careful about referencing what Govans said, and challenging the fact that Govans couldn't be believed. But what I'm saying is Mason is using the tape statements to build his own case. Well, certainly. And the government simply not to use them. I mean, this just doesn't seem to understand how this is a clean, and oil violation with this conversation between the two of them and Mason using the tape statements to his own advantage. Well, I would submit that Mason was not using the tape statements, but I don't think that that fact matters. I can go along with that. But the problem was not in the reference to the statements, even the government reference what was said back and forth. That's not the oil violation. The oil violation is where the government went beyond what was recorded. And told the jury, asked the jury, think about what you should have heard him say. And once you start asking a jury to decide what was not said by the defendant, they could have referenced what he said. They went the step beyond, if you look at J.A. 402, they have a very clear transition. They start their transition, ladies and gentlemen, to bring to the next thought where they said, think about the hypothetical here, ladies and gentlemen, the jury, what would you have expected, Mason, to say if he was innocent? You did not hear that, so therefore you shouldn't have heard a guilt. That is where the oil violation occurred. It's not in the fact that they were referencing statements on the tape. They could reference that appropriate, if it was properly him, that it has as we're not dictating what. No, no, no, no, no, no, no. But my understanding of a classic oil violation is where I question, as I ask, generally by law enforcement. And the defendant refuses, because that goes to the heart of a fifth of them. Law enforcement asks a question. The defendant refuses to respond. And then law enforcement tries to capitalize on the defendant's refusal to respond to their questions. And say, look, if he was not guilty, he would have told us. And that has always seemed to me to be the paradigmatic oil violation

. And this does seem to me a bit different from what we have before us here. Well, you know, Doyle itself recognizes in a quote that every post arrest silence is insolently ambiguous because of Miranda. So why defend it doesn't speak? There's ambiguity to it. And any time a government starts referencing what a defendant did not say, you're invoking or you're bringing these fifth amendment concerns. Why, you know, in this case, for example, the, you know, I'm mentioning about the conversation with Govan. And Govan knew he's testifying a trial. He knew he was being taped. Govan admitted that he was saying things in the troopers car because he knew he was being taped. And I don't, I don't understand Doyle or the cases that have followed Doyle to draw a line between saying that because this occurred in a conversation, or lack of a conversation, something that someone didn't say to a, to a co-definite, sitting in the, in the back of a patrol car, that that somehow is not protected by his Miranda warns. Particularly when his co-definite knew that he was, he was being recorded. So I think the whole heart of Doyle is to protect the right remain silent and not to have that used against you in any form because it's unclear why Mason didn't speak. And here the statements that Mason made don't point the, the prostitutes can argue that they show guilt, but they also are consistent with showing innocent behavior as well. And so you can rebuke all that. He could not rebuke it because this was the closing rebuke argument. This is the last thing that Dejore was asked to hear or asked to think about before in which to deliberate. The very last thing was this hypothetical. Think about what you would have heard if, if Mason were, were innocent, what he would have said. There was no opportunity to, by which makes the prejudice even stronger here because, and there was many cases we cite him in a brief talking about, you know, inappropriate evidence, inappropriate comments on evidence in the rebuttal part of the government's closing arguments, particularly prejudicial because there is no opportunity to correct that, no opportunity to, there was a, an extensive trial here and I just go, and it was a state chief witness. He was a state chief witness and he, he testified about the, um, Mason's involvement with the cocaine. I don't know, I think it was 10 kilograms in the, in the trunk. Um, um, didn't this trial really hinge upon Dejore's assessment of, uh, Govans credibility? Well, it, it did, uh, but there was a problem that was a key and that was a problem with this prostitution's statement because Govans had, there was problems with his credibility, even what he said, what he said, whether it proved guilt. And if I may, you know, uh, so reporting with this, uh, Govans comments about Mason being aware of the kilograms in the trunk and whether he had helped to load them in the trunk and, and his general involvement, I, I just thought the case would rise or fall on that assessment of Govans. Well, if I may point out a few, few key facts on that because it did, that was important. It's also important that the government, the, the Govans was central to the government's case, but Govans didn't carry, uh, the weight that the government needed and these are statements that Govans, Govans set at trial that undercut the government's case. And if I may just have a, a, a, pretty little to this, uh, a, a, a, a, a, a, accordance with Collins and Collins is an issue addressed in, in the, um, by the district court here, they had to determine how much of the drugs was a trivial to Mason in order to get this mandatory life sentence. They had to show at least five kilograms were a trivial to Mason individually. Uh, and Govon made that, uh, that, that issue of proof, uh, difficult. Govann admitted that the drugs came from his source as J. 293. Govann put the drugs in the car

. That's J 292. Mason never touched the bag. J 292. And when asked point blank by the government, uh, and the direct examination, whether Mason knew the 10 kilograms of, in the bag, and Govann replied, quote, I don't know if he knew it or not. That's to J 294. And govans stayed repeatedly. He was only assuming that Mason knew what was in the back. How long did this, how long did this trial last for seem to be rehashing a lot of it? How long did this? I believe it lasted, uh, a day and a half, maybe two days, uh, as far as the, the, the, the, uh, penalty phase or the guilt phase of the trial, I believe it was no more than two days. Uh, so all this pointed to a very challenging case, uh, at the very least, a very challenging case for the government to prove that Mason was individual responsible for those five kilograms, which was necessary to get him the life imprisonment. Uh, if, if they did not prove he had five kilograms or was individually responsible for five kilograms, we'd be looking at very different sentencing issue for Mason, uh, a separate from the, the, whether there was enough to prove guilt, uh, of the conspiracy itself. Uh, so we'd submit that, uh, Mason should be, uh, this prejudice Mason and that she regretted relief on his fifth minute claim. And, uh, in the remaining time I have, if I could just turn to the equatection claim very quickly, I'd like to make two points. First is important, remember that this claim was summarily denied by the district court, uh, without an evidentiary hearing. And according to like any appeal of a summary judgment ruling, uh, the facts must be, uh, drawn inferences, reasonable inferences, the facts must be drawn in favor of Mason. And, uh, second, this court did not address this claim, uh, in the direct appeal, although the facts, uh, many of the facts were the same. Uh, in accordance with rent, the direct appeal concern, reason, of the, uh, reason of suspicion for a traffic stop on the fourth minute, this concerns equal protection for subjective motivations are key. Uh, uh, subject of motivations were not considered in the direct appeal. Uh, and for example, uh, the panel majority. But what evidence should this court look to in determining whether there was a reasonable probability of a different outcome under the prejudice prongestrickland? The, the, the evidence I would look to is, I mean, it's a success of emotion to, uh, suppress what would the equal protection, uh, with the equal protection violation right, but it's here on a 2255, is it not correct? And under understrict, strictly and versus washington, we don't, we have to find under the prejudice prong that there was a reasonable probability of a different outcome. Correct. And there's no evidence in the record at all that the Cooper knew the race of the individual when he stopped the car, not a shred. Well, there is, uh, you could start at the point, uh, you know, may I continue? You sure, Matt? Okay, thank you. Uh, at the time he stopped the car, there's no evidence, there's no evidence that he did not know. The evidence is, is, is unknown both ways. Uh, the, but at the time, certainly by the time he extended the stop, extended the stop, past the time necessary, just to issue the window tipped violation ticket. That time, that time, obviously, new, uh, Mason and govans race. In fact, we roughed it in the end. We've, we've, or I realize you say, well, it's a different screen and objective and a subjective test, but the earlier appeal already established that the delay was, was reasonable. Um, and that it was, was constitutional that there was reasonable suspicion on the, uh, uh, uh, our panel heard this earlier appeal and the majority found that was reasonable suspicion to believe the drug activity was. It was a foot and then when the dog alerted on the trunk, there was probable cars to search the trunk

. Now, um, if, if an officer is acting with objectively reasonable suspicion and, uh, officers acting with what court has found to be objective, probable cars, doesn't that lessen or likelihood substantially or. Successful. Legal protection talent. We are, I understand the, the fourth minute inquiry to not be looking at what the, was in the officer's mind. You could only look at what were the facts on the ground as a reasonable observer would see them and was the officer's actions objectively reasonable based on what someone would, would observe. Here, the question is what were trooper swikers motivations for why he did this action? And for example, a fact that I don't understand the panel to, you've got some time for a rebuttal. Yes, yeah, I think you should revisit this on rebuttal. Thank you, Your Honor. Thank you. Mr. May, we'd be pleased to hear your side of it. Thank you. May, please, the court. I think judge Hudson was exactly right regarding the selective prosecution or selective enforcement claim. There is no evidence that race was known at the time that Mr. Mason was pulled over. Well, didn't the officer say that a lot of people have tenant windows and observation to come from the deep south. A lot of cars from Florida and down that way on I-20 and all those places have a lot of tenant windows admitted that he sort of stops cars based on those who peaked his interest. Is that right? Does the record reflect that? Yes, sir. Well, peaked their interest means that he saw them. No, sir, it says what peaked his interest is that the tent of the windows violated the Georgia statute. No, no, you missed the point. A lot of them violated by observation. He said he stops the ones that peaked his interest. Obviously, there has to be something other than the tent. The tent is the dominant factor that all the distinguishing factors, what peaked his interest. And let's see in a minute. No, sir. And I believe that in your footnote, footnote five of your descent, you comment about how would a trooper even be able to look into the car to see the newspaper on the backseat. I think the very reason why there is tent on the windows is there

. Of course, that comment, you know, text without context, pretext. That's after he's talking to them. That's not a reference in terms of what he could see. He talks about what peaked his interest. Yes, sir. There's nothing in the evidence that it was anything to do with race. Well, that's because we don't have an evidentiary matter as to what about who he stops and how he stops. That's why you have evidentiary hearing. And for example, in terms of the comments he made, they were spooky. What was spooky about them before he stopped them? Well, the spooky, spooky came after a reason suspicion was already established. But is there any evidence that he even knew the race of the occupants of the car when he made the stop? That's not the end of the inquiry to stop. The thing is what he did was for a tented window. He went over and did his little measurements, whatever that was. And then he started asking them, what did you have for breakfast? What did you stay? Where you going? That's the part where he clearly knew they were black then, right? Yes, sir. Well, the question is, why does he take them out of the, as you say, the domain of travel or supposedly tentative windows? And then he needs to know where they had breakfast that they stayed with little boo last night and all those things and go to the next one and try it. And then he gets a different answer to say, aha, there is a conflict in your stores or where you stayed last night. That's the part. It's not just what he knew before he stopped, but what he did after he stopped. When he clearly knew they were black. But there's no evidence that he did that because they were black. I know that because it's not been, that's what ineffective assistance comes from. Because a good lawyer would have been on notice that there are markers in this case that clearly indicate that was a reasonable basis for making inquiry as to whether or raise bit impact his investigation and question. And we need, as they're asking for, an evidentiary hearing so we can get facts. Look at that. So you beg in the question to say, there's no evidence of that point, aren't you? No sir, because the burden is upon the pellum in this case. He must make a showing of that of clear and convincing evidence that not only there was effect, IE, that there were similarly situated people. He has not made that showing. Therefore the district court was appropriate for denying his claim. There is a twofold under all this and Armstrong. Is this a way to people? Yes sir

. Well your evidence, your governments all evidence that a lot of cars have tended windows. That's the whole point. A lot of cars go, the question is, we look at, excuse me, a lot of cars, a lot of cars go through there with tenant window. So the question is, how do you select? How do you cherry pick? And once you pick them out, who do you pick to ask these picky-ywn questions? And then you get a difference. I mean, you know, you could vary where your husband and wife were sleeping the same bed and bending out all together. And one might say, oh, I think I had ham and eggs last week. Now I'm going to say, no, no, I think that was bacon. And so that's a difference in the inquire. Because that's what it really was, wasn't it? Because he asked those questions. And because he got different answers, he said, aha. There's reasonable suspicion there to hold. Then he goes into the car. There's a DMV and deliberately tells them, I'm calling this in but hold it. Don't even give me the information, I'm holding. And that's a key fact in the constitutional assessment. Because we talk about reasonable time. Do you agree that that is manipulation of a very important fact that we use in terms of stops? A reasonable time to do what you need to do about you saying. DMV, call, call this up, don't give it to me. Hold it. No, sir. You don't agree with that. That's a minimum. Isn't it a common practice for a state trooper who is by himself or herself, 40 miles from her back up to radio-winded dispatcher of what he has before he gets out of the car and starts engaging a conversation? Absolutely, especially in this case where we knew that where he suspected and had a reasonable suspicion, which this court has already found that he did, that criminal activity was at foot. He knew that there was criminal activity of foot. There was industrial strength air freshener in the car. So strong that it said it made him give a headache. The two passengers lied. They lied to him. And he knew that criminal activity was at foot. It was a proper for him

. We've had an evidentiary hearing on the suppression motion. And both the district court found, and the court of appeals found that there was reasonable suspicion to stop the car, that the trooper simply did not unconstitutional a delay or extend the traffic stop. And that the search was supported by probable cause. So you have each of these three stages that a court has looked at and found an objective basis for all three of them, for the officer's behavior. And when you look at what an ineffective assistance of counsel claim is all about, I can honestly tell you that 100 out of 100 attorneys would have done just what this attorney did, which was to challenge this conduct on fourth amendment grounds, because some of those challenges succeeded, whereas the Armstrong challenge has never succeeded. And so the attorney was not ineffective in taking the route most likely to bear fruit. That's all he did. You know, then maybe, you know, I just wondered, I just questioned whether ineffective assistance of counsel is the right vehicle to get out the situation, when the attorney did represent his client very effectively on the most obvious constitutional claim before it, and did a good job. It was thoroughly looked into both a trial and on appeal. And, you know, is that, if that's ineffective assistance of counsel, then there are an awful lot of subpar lawyers in this circuit, and I don't believe there are. You're going to argue with you 100%. Doesn't Armstrong require clear evidence as a threshold matter? Clear and convincing evidence is the standard of both prongs, of both prongs of both effect of similarly situated people, and of actual racial animus or bad faith. And in this case, we just don't have that. What about the fact that's common about the way he was conducted himself, he felt, because he was dealing with an old black man. What's that reference? Yes, sir. When it was during the suppression here, and they asked, it was out there on the road. That's when he said it. What did he mean by that? Well, I believe that he was actually older and out of shape as the key. He says that he didn't believe that the two co-definanced with challenge and physically, because they were older, out of shape, and he did use the descriptor of black men. But the older and out of shape. What was important is they were black. I have no idea. They scripted it. That's the point is, you'd have no idea, but then you talk about it, and Judge Wilkinson gave you a scenario you all agree with that. How do you prove these things? One of the some of the markers are the fact that you bring these extraneous things like he introduced race into the case himself, the officer, correct? Why was that important that they were black? Well, as a descriptor, this court has found in Sora, as the descriptor in and of itself is not enough to get in selective enforcement claim. It's not just a descriptor. He said, I stopped two black men. That's not the case. It's not a descriptor. That was important to him

. Why was that important that they were black? You don't know, do you? No, sir. That's what the subjective inquiry is necessary for. For example, there's been a hopper on the fact that the prior case dealt with the Fourth Amendment standard. That's not preclusive. You could have a racial animus and still have a very objective Fourth Amendment based on the stock you can come up with it, right? That's what Rin tells us, yes sir. Absolutely. That's not despositive. The question is, things like this, which I agree with you, Councilor, you're quite an... I don't know what he meant by that either. But the issue... But the issue that we're looking through this selective enforcement claim is through the... Through the winds of a 2255. The burden is upon him to show that it would have been despositive. There's a reasonable probability the outcome would have been different. And... The question is, if you take that testimony as a whole, was it ineffective on the part of the attorney to look at the testimony, that particular testimony as a whole, and say this officer was simply expressing a concern about being shot, that the question was whether someone was going to come at him physically and have a rustling match or... Well, they were going to pull a gun on it. And so, the..

. You look at the passage, and if you take it as a whole, the trooper was... It wasn't ineffective for a lawyer to look at that and think, this probably is not going to succeed because this trooper is expressing a concern about being killed. Absolutely. That was absolutely nothing about being shot. There was absolutely no evidence in the record. I've seen it take many times. This officer was more than comfortable talking about he interviewed the one, while the other one was basically just by himself, than he interviewed the other, he did nothing that indicate he was fearful of any of those people. Nothing. Respect. I'm sorry. Is that correct? Did he... I disagree with that. What do you disagree about? I'm not talking about the pinnacle. I'm talking about what I can see from my own eyes. Tell me about the video. What did the video show? And that's what I'm telling you. The transcript from the video on JoinPinix525, as he's talking to officer kitchen who's coming up, he tells officer kitchen, all right, just be ready. This is about to be on. Get ready for it. Just pull up the easy. But there is something here. And this court has constantly said that firearms and drug traff... And that these guys were lying to him. He knew that there was something there that this court has already found that he had reasons to suspicion to believe that criminal activity was a foot. And he was trying to protect himself because... When he first called kitchen, what have they done for probable cause that they didn't think that these people had drug? When he first called kitchen, what had they done? When he first called kitchens, the overwhelming smell of the air freshener. Judge, people have air freshener in their car? Not for a bottle. That's not what we had. What the evidence shows is that there were commercial blocks of air freshener, at least two of them placed under the seat. He testified that they were so powerful that they would give a person in the car a headache to even sit in that car. So... That's what I didn't hear that last time. That he testified that they were so powerful that they would have given any passenger in the car a headache. And that's to cover the smell of drugs. Cocaine is a very pungent smelling drug. Between that, the Govans demeanor, the no luggage in the interior, a single key. No luggage in the interior. I don't drive around with luggage in my back seat either. Well, I guess I'm a black man with no luggage. I get stopped too. No, sir. What's the point you don't have luggage in your back seat? Well, this is one of the things that he believed established a reasonable suspicion, which this court has already found there was a reasonable suspicion that criminal activity was a foot. But again, we're looking at this through the prism of an ineffective assistance of counter-claim. And if a lawyer can say, the Armstrong challenge is going to be very difficult because what I have here before me is an officer who has some reasonable belief that drug traffic is occurring. He's concerned about his personal safety and wants to call back up, which officers often do in a situation which they are fearful might get out of control. He wants to call back up both to protect himself. And also, I suspect to calm a situation down and prevent further difficulties from occurring. Another question is, is it ineffective for a lawyer not to bring an Armstrong challenge given that situation, but to pursue the fourth and then a claim? That's the point. That's the question. Absolutely

. And he was trying to protect himself because... When he first called kitchen, what have they done for probable cause that they didn't think that these people had drug? When he first called kitchen, what had they done? When he first called kitchens, the overwhelming smell of the air freshener. Judge, people have air freshener in their car? Not for a bottle. That's not what we had. What the evidence shows is that there were commercial blocks of air freshener, at least two of them placed under the seat. He testified that they were so powerful that they would give a person in the car a headache to even sit in that car. So... That's what I didn't hear that last time. That he testified that they were so powerful that they would have given any passenger in the car a headache. And that's to cover the smell of drugs. Cocaine is a very pungent smelling drug. Between that, the Govans demeanor, the no luggage in the interior, a single key. No luggage in the interior. I don't drive around with luggage in my back seat either. Well, I guess I'm a black man with no luggage. I get stopped too. No, sir. What's the point you don't have luggage in your back seat? Well, this is one of the things that he believed established a reasonable suspicion, which this court has already found there was a reasonable suspicion that criminal activity was a foot. But again, we're looking at this through the prism of an ineffective assistance of counter-claim. And if a lawyer can say, the Armstrong challenge is going to be very difficult because what I have here before me is an officer who has some reasonable belief that drug traffic is occurring. He's concerned about his personal safety and wants to call back up, which officers often do in a situation which they are fearful might get out of control. He wants to call back up both to protect himself. And also, I suspect to calm a situation down and prevent further difficulties from occurring. Another question is, is it ineffective for a lawyer not to bring an Armstrong challenge given that situation, but to pursue the fourth and then a claim? That's the point. That's the question. Absolutely. It's not ineffective. Moreover, she also did not have any evidence of similarly situated people. Armstrong has the two prongs that he must meet both by clearing comments and evidence. There is no evidence of any similarly situated person. So she's not even entitled, was not even entitled for discovery motion at that time because that's what Alvis tells us. Alvis tells us that there at least must be some evidence that there is both, that there is selective enforcement. There is none here. There's absolutely no evidence in the joint appendix or the record to establish selective enforcement. I mean, to establish that the effect prong of Armstrong. There's no evidence in this record that he called kitchen for backup. He called kitchen because kitchen had the dog. He stated in his testimony that he called him for backup. But he normally works with a partner. That partner was not there. So he called a person. Didn't kitchen have the dog? He did. And then he said, listen, I'm finishing up with somebody that said, look, bring the dog. He needed the dog because he said, I'm getting in that car. Didn't he say that? That's not what he said. I know the record pretty well. And he said, I'm getting in that car. He didn't say that? Yes, sir. Didn't he explain during trial that he made two requests? First of all, he requested backup because the new kitchen was on the road. Kitchen is a motor vehicle inspector. He's not a trooper. But he needed the help when somebody there. And then he later said, make sure to get up here with that dog. Yes, sir. That's a separate request. Two separate requests

. It's not ineffective. Moreover, she also did not have any evidence of similarly situated people. Armstrong has the two prongs that he must meet both by clearing comments and evidence. There is no evidence of any similarly situated person. So she's not even entitled, was not even entitled for discovery motion at that time because that's what Alvis tells us. Alvis tells us that there at least must be some evidence that there is both, that there is selective enforcement. There is none here. There's absolutely no evidence in the joint appendix or the record to establish selective enforcement. I mean, to establish that the effect prong of Armstrong. There's no evidence in this record that he called kitchen for backup. He called kitchen because kitchen had the dog. He stated in his testimony that he called him for backup. But he normally works with a partner. That partner was not there. So he called a person. Didn't kitchen have the dog? He did. And then he said, listen, I'm finishing up with somebody that said, look, bring the dog. He needed the dog because he said, I'm getting in that car. Didn't he say that? That's not what he said. I know the record pretty well. And he said, I'm getting in that car. He didn't say that? Yes, sir. Didn't he explain during trial that he made two requests? First of all, he requested backup because the new kitchen was on the road. Kitchen is a motor vehicle inspector. He's not a trooper. But he needed the help when somebody there. And then he later said, make sure to get up here with that dog. Yes, sir. That's a separate request. Two separate requests. And they show the difference between that he was fearful officer safety. And then he also had a reason to suspicion that criminal acts have he was a foot. The problem is that these cases are very difficult. And that's what the situation is. It's not accused in the office. Everybody's talking about the officer. It's about inquiry in terms of these cases. I'm strong. It is difficult. But you can never go any further. All you say is that well, you can't prove it. Most people don't raise their hand up and say, oh, yeah, this is why I stopped someone. It takes some inquiring. The question is, you talk about counsel. I did practice law and criminal defense for a long time. You got a person facing life in prison. And you don't make it inquiry like this in cases like this. No, sir. And I was a criminal defense attorney for five years as well. And I have no idea when she should have stood up and said we have an issue. At what point should she have stood up? This court tells us in Rome that we look at through the perspective of the trial attorney. This is not looking back with in the vacuum of hindsight. Or a plan where a balanced counsel can pull out three sentences and over 540 pages. I mean, the point is with respect to my fine colleagues point about inquiry, it isn't as if this activity was swept under the rug. There was intense inquiry. The lawyer raised a Fourth Amendment claim and challenged the officers actions at every step. There was an evidentiary hearing held. An appellate court went through the arguments, had a good colloquy. The appellate court aired the issue into tail. And you know, it wasn't as if counsel just went to sleep on the sidelines

. And they show the difference between that he was fearful officer safety. And then he also had a reason to suspicion that criminal acts have he was a foot. The problem is that these cases are very difficult. And that's what the situation is. It's not accused in the office. Everybody's talking about the officer. It's about inquiry in terms of these cases. I'm strong. It is difficult. But you can never go any further. All you say is that well, you can't prove it. Most people don't raise their hand up and say, oh, yeah, this is why I stopped someone. It takes some inquiring. The question is, you talk about counsel. I did practice law and criminal defense for a long time. You got a person facing life in prison. And you don't make it inquiry like this in cases like this. No, sir. And I was a criminal defense attorney for five years as well. And I have no idea when she should have stood up and said we have an issue. At what point should she have stood up? This court tells us in Rome that we look at through the perspective of the trial attorney. This is not looking back with in the vacuum of hindsight. Or a plan where a balanced counsel can pull out three sentences and over 540 pages. I mean, the point is with respect to my fine colleagues point about inquiry, it isn't as if this activity was swept under the rug. There was intense inquiry. The lawyer raised a Fourth Amendment claim and challenged the officers actions at every step. There was an evidentiary hearing held. An appellate court went through the arguments, had a good colloquy. The appellate court aired the issue into tail. And you know, it wasn't as if counsel just went to sleep on the sidelines. He pushed it or she pushed it. And there was inquiry. And it was pressed. In the case, the case also went to trial. And we're not talking about glossing over behavior or not inquiring into what happened here. This incident was examined in my new detail. That's absolutely correct. As well as an inquiry that Judge Gregory that you're asking for does not establish Strickland. Strickland must, it's his burden to show that there is a reasonable probability, but for councils in effectiveness that there have been a different outcome. The very fact that he's requesting additional discovery shows that he can't meet that burden. He did not put forward any similar situated people. And I have one minute to go. If I can address the dull violation briefly, I'd like to, unless you'll have additional questions on the selective enforcement. Judge, do you have additional questions? I would ask you to look at what was said during closing arguments. What the AUSA said, what first, what Mr. Mason's attorney says is listen to the words ladies and gentlemen. She implored the jury to look at the conversation. And reply, the AUSA says, do you really think that's how the conversation would have gone? The conversation is what he was talking about. He was juxtaposing with what the conversation that did occur. That's how drugs go with how a conversation would have gone if Mr. Mason had not met. The problem is that conversation is informed by Miranda Wright. It might be, that might be the case. If they were sitting around on the, whatever, just sitting around talking in general. But it wouldn't have to be informed by those constitutional rights that were just read in terms of what you would say. And then to say, oh yeah, what would your conversation be if you had, but that's a different matter. Suppose he said, well, suppose he had said, do you have a stick of gum? And that's all he said, you would say then. Well, when you have said something different, you would have asked for a stick of gum. Maybe he's, otherwise you're punishing him for being smart. No, sir

. He pushed it or she pushed it. And there was inquiry. And it was pressed. In the case, the case also went to trial. And we're not talking about glossing over behavior or not inquiring into what happened here. This incident was examined in my new detail. That's absolutely correct. As well as an inquiry that Judge Gregory that you're asking for does not establish Strickland. Strickland must, it's his burden to show that there is a reasonable probability, but for councils in effectiveness that there have been a different outcome. The very fact that he's requesting additional discovery shows that he can't meet that burden. He did not put forward any similar situated people. And I have one minute to go. If I can address the dull violation briefly, I'd like to, unless you'll have additional questions on the selective enforcement. Judge, do you have additional questions? I would ask you to look at what was said during closing arguments. What the AUSA said, what first, what Mr. Mason's attorney says is listen to the words ladies and gentlemen. She implored the jury to look at the conversation. And reply, the AUSA says, do you really think that's how the conversation would have gone? The conversation is what he was talking about. He was juxtaposing with what the conversation that did occur. That's how drugs go with how a conversation would have gone if Mr. Mason had not met. The problem is that conversation is informed by Miranda Wright. It might be, that might be the case. If they were sitting around on the, whatever, just sitting around talking in general. But it wouldn't have to be informed by those constitutional rights that were just read in terms of what you would say. And then to say, oh yeah, what would your conversation be if you had, but that's a different matter. Suppose he said, well, suppose he had said, do you have a stick of gum? And that's all he said, you would say then. Well, when you have said something different, you would have asked for a stick of gum. Maybe he's, otherwise you're punishing him for being smart. No, sir. You're not? No, sir. And this court in Rhodes and Wright have said that Miranda does not protect spontaneous statements. This is a conversation between two co-definitions in the back of the court. And the defense attorney implored the jury to look at the conversation. It is proper for the government to respond moreover. But that's different though. You're right. They could look at what he said and examine it and take it for evidence. The problem is you pointing them to the gap. Look at what he did not say and examine that and say he's guilty because he remains silent or did not make a consistent comment about what was said to him. Not just saying in his conversation he admitted that that's fair game. You're right. But going further, what you said point to having been informed about it's important that you have a right to be silent about anything related to this stop and this arrest. And then you say, well, his conversation was different and it's different because he's guilty. Maybe it's different because he's been given his constitutional rights. And what you're doing, it's different than ball, but in a sense it boils down to the door on me, Doyle. But is the same essence, isn't it? No, sir, it's not. Why not? Because this was not done in custodial interrogation. What we have is two co-definitions in the back seat of the court. They're talking about how they got stopped, why they got stopped, and then as the cocaine is being piled in the front of the court, over $300,000 with the cocaine is being put on the court, Mr. Mason says that's how drugs work. It is a comment not upon silence. It's a comment upon the conversation. I'll be having to answer any other questions, but I see that I'm out. This is the railroad island versus in this, in this that Miranda's, Miranda applies to police initiated interrogation designed to elicit incriminating responses. Absolutely, and this was not police initiated. What was the recording for? What was that purpose? Why did not I? Judge, do you have some more questions? No. We thank you, and we'd like to hear from Mr. Mammond and Robotten. Thank you, Your Honor

. You're not? No, sir. And this court in Rhodes and Wright have said that Miranda does not protect spontaneous statements. This is a conversation between two co-definitions in the back of the court. And the defense attorney implored the jury to look at the conversation. It is proper for the government to respond moreover. But that's different though. You're right. They could look at what he said and examine it and take it for evidence. The problem is you pointing them to the gap. Look at what he did not say and examine that and say he's guilty because he remains silent or did not make a consistent comment about what was said to him. Not just saying in his conversation he admitted that that's fair game. You're right. But going further, what you said point to having been informed about it's important that you have a right to be silent about anything related to this stop and this arrest. And then you say, well, his conversation was different and it's different because he's guilty. Maybe it's different because he's been given his constitutional rights. And what you're doing, it's different than ball, but in a sense it boils down to the door on me, Doyle. But is the same essence, isn't it? No, sir, it's not. Why not? Because this was not done in custodial interrogation. What we have is two co-definitions in the back seat of the court. They're talking about how they got stopped, why they got stopped, and then as the cocaine is being piled in the front of the court, over $300,000 with the cocaine is being put on the court, Mr. Mason says that's how drugs work. It is a comment not upon silence. It's a comment upon the conversation. I'll be having to answer any other questions, but I see that I'm out. This is the railroad island versus in this, in this that Miranda's, Miranda applies to police initiated interrogation designed to elicit incriminating responses. Absolutely, and this was not police initiated. What was the recording for? What was that purpose? Why did not I? Judge, do you have some more questions? No. We thank you, and we'd like to hear from Mr. Mammond and Robotten. Thank you, Your Honor. The council has been extolled to a great deal of how great they did a job. Tell us why you're here in terms of, you'll agree to the council, a great job, admirable job. Well, Your Honor, if I, addressing the arms strong challenge or what it would take to raise an arms strong challenge, first of all, my front on the side mentioned that there's no evidence of similar, or similar, situated people who have not been stopped. I don't think if you, we cite case from the second circuit, the point out that when there's direct evidence of race, that takes the place of trying to find that, you know, this is a selective enforcement of, you know, only 90% of African Americans are being stopped versus 10% of white. So we have direct evidence of race when, when Troopers White could said, the reason I called dispatch was because these are older black men, I feared that we'd be shooting it out. So we have that direct evidence. The second thing, I don't think the council was obliged to interpret it that way. I don't see how council could have been ineffective by looking at that conversation as a whole and saying my concern was that they were going to pull a gun on me. And that was the, that's the reason that offices asked the back up. It's, it is a, the council could feel that it was a very difficult and perhaps even frightening thing to be alone on the side of an interstate highway by yourself. And, and run the risk of having a gun pulled on you and perhaps used on you. And so he's the, the lawyer in this case could reasonably assume that he was asking for back up simply in an effort to assure his physical safety. It's what offices do all the time. And the lawyer could take that conversation as a whole. And I think there's a difficulty in trying to pick this strand or that strand. When you take it as a whole, isn't this an example of an officer who accord his found reasonably suspected drug activity of purring and called a back up? In order to try to calm a situation and keep it from spinning out of control. To the detriment of everyone involved. You honor, certainly an officer can call for backup out of concern for safety. We're not arguing with that premise. It certainly happens. But I would submit that the question here is that what happened here? And if you watched the video as Judge Gregory mentioned, I'm sure your owners have watched as well. You watched the video. Is there anything that Trooper Swiker did that indicates he was fearful or acting as someone who wanted to make sure he was protected? He separated them. He'd never asked if they had weapons when they, when he first stopped them. He separated them left one in the car, one in the back. If he was fearful, truly he could have been fearful. He says I felt like they're very heavy gun. We were probably fixing to shoot it out. And then you would have had, because they were bleeding. If, if, if, had that happened, we all know and deplore the kind of difficulties that arise when, when, when offices act too precipitously with results to their firearms

. The council has been extolled to a great deal of how great they did a job. Tell us why you're here in terms of, you'll agree to the council, a great job, admirable job. Well, Your Honor, if I, addressing the arms strong challenge or what it would take to raise an arms strong challenge, first of all, my front on the side mentioned that there's no evidence of similar, or similar, situated people who have not been stopped. I don't think if you, we cite case from the second circuit, the point out that when there's direct evidence of race, that takes the place of trying to find that, you know, this is a selective enforcement of, you know, only 90% of African Americans are being stopped versus 10% of white. So we have direct evidence of race when, when Troopers White could said, the reason I called dispatch was because these are older black men, I feared that we'd be shooting it out. So we have that direct evidence. The second thing, I don't think the council was obliged to interpret it that way. I don't see how council could have been ineffective by looking at that conversation as a whole and saying my concern was that they were going to pull a gun on me. And that was the, that's the reason that offices asked the back up. It's, it is a, the council could feel that it was a very difficult and perhaps even frightening thing to be alone on the side of an interstate highway by yourself. And, and run the risk of having a gun pulled on you and perhaps used on you. And so he's the, the lawyer in this case could reasonably assume that he was asking for back up simply in an effort to assure his physical safety. It's what offices do all the time. And the lawyer could take that conversation as a whole. And I think there's a difficulty in trying to pick this strand or that strand. When you take it as a whole, isn't this an example of an officer who accord his found reasonably suspected drug activity of purring and called a back up? In order to try to calm a situation and keep it from spinning out of control. To the detriment of everyone involved. You honor, certainly an officer can call for backup out of concern for safety. We're not arguing with that premise. It certainly happens. But I would submit that the question here is that what happened here? And if you watched the video as Judge Gregory mentioned, I'm sure your owners have watched as well. You watched the video. Is there anything that Trooper Swiker did that indicates he was fearful or acting as someone who wanted to make sure he was protected? He separated them. He'd never asked if they had weapons when they, when he first stopped them. He separated them left one in the car, one in the back. If he was fearful, truly he could have been fearful. He says I felt like they're very heavy gun. We were probably fixing to shoot it out. And then you would have had, because they were bleeding. If, if, if, had that happened, we all know and deplore the kind of difficulties that arise when, when, when offices act too precipitously with results to their firearms. And what I think this statement is saying is, I want to forstall that. I want to prevent that. I don't want another situation of where somebody, where an officer draws a gun on a suspect unjustifiably. It happens too often where police use offices, where police use firearms unjustifiably. And this officer, I think, was trying to prevent that very thing. But you know, there are several things are inconsistent with him trying to prevent that. I accept that that is a proper motive and that could have, could have been a proper motive. But why would he have separated them? Why would he have completed the traffic stop? He completed the window tent violation before Trooper Swiker arrived. If he was really fearful, I don't know what his fears were. But if he truly was fearful of his safety, he could have waited for Trooper, Trooper, Kitchens to arrive before he actually did the stop. He took a lot of steps that were inconsistent with his later and this is certainly officer safety is important. But we should also remember, this is what he said after the stop, why he justified the stop afterwards. And so I think that is important to remember the perspective of someone who's justifying the stop and there's certainly no better way to justify a stop. I will submit, there's no better way to justify a stop than or waiting for backup and safety because that is such an important concern. But your entire argument is based upon total speculation. There's no evidence to record to support that theory. You honor, we know that he said the reason he called for backup was because they're older black men. That's our argument for backup and explain to the dispatcher what he had, which is what any Trooper would do, what he not. Certainly, but why did he say hold it? He said, I'm going to, why did he say hold it? If he was concerned for safety, he should have run it. Do these people, it seems legitimate that if he was concerned about his safety, let me figure out if these people have outstanding warrants for violent crime because I'm not getting out of the car again until my backup arrives. He didn't do that. He said it was important. Would that be more important to advise the dispatcher who you have and case something happens to you and another officer has got to respond? Isn't that more important than sitting there in the car for a three or four minutes while the dispatcher runs a check? Certainly, I'm not saying that those are inconsistent. I mean, he said it doesn't make sense why he said hold them. He could have said, here's two names of what you have to run it. All of Judge Hudson's question. Isn't an officer obliged to describe a situation? Well, he is. We're not disputing that there was anything inappropriate about him calling dispatcher. I think that was entirely right. The question is why did he say that the calls of dispatcher isn't an officer obliged to describe to the dispatcher or to a backup situation so that the simply as a matter when the backup arrives or the dispatcher is communicating with other members of the police force, they will know exactly what, you know, a little bit about what they're confronting

. And what I think this statement is saying is, I want to forstall that. I want to prevent that. I don't want another situation of where somebody, where an officer draws a gun on a suspect unjustifiably. It happens too often where police use offices, where police use firearms unjustifiably. And this officer, I think, was trying to prevent that very thing. But you know, there are several things are inconsistent with him trying to prevent that. I accept that that is a proper motive and that could have, could have been a proper motive. But why would he have separated them? Why would he have completed the traffic stop? He completed the window tent violation before Trooper Swiker arrived. If he was really fearful, I don't know what his fears were. But if he truly was fearful of his safety, he could have waited for Trooper, Trooper, Kitchens to arrive before he actually did the stop. He took a lot of steps that were inconsistent with his later and this is certainly officer safety is important. But we should also remember, this is what he said after the stop, why he justified the stop afterwards. And so I think that is important to remember the perspective of someone who's justifying the stop and there's certainly no better way to justify a stop. I will submit, there's no better way to justify a stop than or waiting for backup and safety because that is such an important concern. But your entire argument is based upon total speculation. There's no evidence to record to support that theory. You honor, we know that he said the reason he called for backup was because they're older black men. That's our argument for backup and explain to the dispatcher what he had, which is what any Trooper would do, what he not. Certainly, but why did he say hold it? He said, I'm going to, why did he say hold it? If he was concerned for safety, he should have run it. Do these people, it seems legitimate that if he was concerned about his safety, let me figure out if these people have outstanding warrants for violent crime because I'm not getting out of the car again until my backup arrives. He didn't do that. He said it was important. Would that be more important to advise the dispatcher who you have and case something happens to you and another officer has got to respond? Isn't that more important than sitting there in the car for a three or four minutes while the dispatcher runs a check? Certainly, I'm not saying that those are inconsistent. I mean, he said it doesn't make sense why he said hold them. He could have said, here's two names of what you have to run it. All of Judge Hudson's question. Isn't an officer obliged to describe a situation? Well, he is. We're not disputing that there was anything inappropriate about him calling dispatcher. I think that was entirely right. The question is why did he say that the calls of dispatcher isn't an officer obliged to describe to the dispatcher or to a backup situation so that the simply as a matter when the backup arrives or the dispatcher is communicating with other members of the police force, they will know exactly what, you know, a little bit about what they're confronting. He doesn't have a whole lot of time, but if we get into the situation of where an accurate description of a roadside stop and potential confrontation is impermissible and it was ineffective of a lawyer not to raise it. I think that has significant consequences. I think I understand the direction of your question if I may. I know I'm over time. I hope if I may respond. You certainly, Matt. Certainly the officer could have said, I don't know that we would be disputing if the officer described Mason and Govann, described their height, described that they were black. I don't think that would be an issue. He did not do that in his call to dispatch. The description of the reason he called dispatcher of them being order black men didn't occur until suppression hearing when he was explaining why he called dispatcher. That's not going to stand either. He wasn't calling in a situation. He didn't mention they were black to kitchen. Certainly, it would have been fine for him to, I think, entirely appropriate and probably great police practice for him to call dispatch. Here's the info on these guys. Run it. Find out if these people, two people have outstanding warrants for rest. If they've been involved in an violent crime elsewhere, if there are any bullows looking for these people, that's all relative information. If you are really concerned about your safety and want to know who these people are, but if you're not concerned about your safety, but you want to extend the stop and you don't want to hear that there is no information on these people, you say, hold it. I can just say that these are very difficult situations on all sides. The whole thing we're trying to achieve is some reasonable enforcement of traffic safety laws and drug laws. At the same time, avoid the kind of confrontations in shooting and unjustified use of weapons that we all deplore. It seemed to me this officer was trying to thread that line and prevent something really impulsive or drastic on his part from occurring. When you add the additional element, was the attorney wrong in going after the officer? He should have gone after the officer. The officer's conduct should have been challenged. But again, 100 out of 100 attorneys would have pursued the fourth amendment route and the Armstrong route rather than the Armstrong route. Now you say, well, it's not one rather than the other, but the reason we pay lawyers is because we have them select the claims that are most probable and that are most likely to succeed. They're not expected to bring every claim under the sun. And the officer brought the claim and brought it effectively. And there's no challenge to his argument on the fourth amendment claim

. He doesn't have a whole lot of time, but if we get into the situation of where an accurate description of a roadside stop and potential confrontation is impermissible and it was ineffective of a lawyer not to raise it. I think that has significant consequences. I think I understand the direction of your question if I may. I know I'm over time. I hope if I may respond. You certainly, Matt. Certainly the officer could have said, I don't know that we would be disputing if the officer described Mason and Govann, described their height, described that they were black. I don't think that would be an issue. He did not do that in his call to dispatch. The description of the reason he called dispatcher of them being order black men didn't occur until suppression hearing when he was explaining why he called dispatcher. That's not going to stand either. He wasn't calling in a situation. He didn't mention they were black to kitchen. Certainly, it would have been fine for him to, I think, entirely appropriate and probably great police practice for him to call dispatch. Here's the info on these guys. Run it. Find out if these people, two people have outstanding warrants for rest. If they've been involved in an violent crime elsewhere, if there are any bullows looking for these people, that's all relative information. If you are really concerned about your safety and want to know who these people are, but if you're not concerned about your safety, but you want to extend the stop and you don't want to hear that there is no information on these people, you say, hold it. I can just say that these are very difficult situations on all sides. The whole thing we're trying to achieve is some reasonable enforcement of traffic safety laws and drug laws. At the same time, avoid the kind of confrontations in shooting and unjustified use of weapons that we all deplore. It seemed to me this officer was trying to thread that line and prevent something really impulsive or drastic on his part from occurring. When you add the additional element, was the attorney wrong in going after the officer? He should have gone after the officer. The officer's conduct should have been challenged. But again, 100 out of 100 attorneys would have pursued the fourth amendment route and the Armstrong route rather than the Armstrong route. Now you say, well, it's not one rather than the other, but the reason we pay lawyers is because we have them select the claims that are most probable and that are most likely to succeed. They're not expected to bring every claim under the sun. And the officer brought the claim and brought it effectively. And there's no challenge to his argument on the fourth amendment claim. There's no ineffectiveness challenge to his performance on the fourth amendment claim. In fact, the lawyer didn't even really challenge the stop. Really wasn't the challenge really just whether or not the dog was a proper dog. You know, I'm not nearly as familiar with the the director peel as I'm sure you are. I think that there was a challenge to the reason most of the stop and then the extension of the stop. I understood the new challenges involved. But to judge Wilkinson's point. So, if I may close, I guess with this stuff. I think this is the reason why we have. I have a challenge to the stop on the 10th. Oh, that was correct. Correct. Correct. Correct. If I may close with this thought that I think this is the reason why we have evidentiary hearings. There's a question of what is council reasonable. He may have been, you know, she may have had a reason for not doing something. That would have been brought out in an evidentiary hearing. What did Trooper swichered mean when he said the reason he stopped these two individuals or called for dispatch. That could be addressed in evidentiary hearing. And there's a lot of questions that could be addressed in evidentiary hearing. And the issue is, you know, arms-wrong challenges are very difficult. But it should be, should it be impossible that these challenges could be brought or raised. And I think the evidentiary hearing is critical for a full and proper hearing of these facts. All right. Well, I want to thank you, Mr. Maman, for your your court appointed. Yes, sir. I think you did a wonderful job. And we really appreciate the vigor with which you brought your argument and represented your client

. We'd like to come down and greet all of you and then recess and have a reconstitutive panel. Thank you. Thank you, Mr. Maman