Man: SJC-12936 Commonwealth V Edward Gonzalez.
-: Okay, attorney McMahon.
-: May it please the court Katherine McMahon,
Assistant District Attorney
for the Hampden District for the Commonwealth.
This is a case on further appellate review
of the Commonwealth's appeal of the order suppressing
the defendant's statement,
his custodial statement on May 26 of 2016.
The defendant had been interviewed after being arrested
on a charge of murder for about 20 minutes.
He invoked his right to counsel, the interview suspended.
Because he was charged with murder
he couldn't be booked with regular prisoners
and was held in the Detective Bureau
until the booking officer would give him permission
to be booked downstairs.
-: And that's in the record, right?
-: Yes.
One of the two detectives who had been interviewing him
in the first 20 minute interview, sat with the defendant
in the interview room while they were waiting the order
to take him down to booking.
They did ordinary chit-chat--
-: Can I stop you there with the ordinary chit-chat
which we don't have a video of, of the general talk.
So I had a chance to look at the video
and things are pretty hot at the end of the first interview,
go into the second interview
and it's just the most cursory uh-huh's
to, "yeah I said I wanted to talk again,"
after he got out of the bathroom.
Well, isn't Judge Ferrera just saying,
okay let's look at all the circumstances here.
We have no evidence of what his general talk was,
the nature of all the evidence,
and this just doesn't meet proof beyond a reasonable doubt.
That's what he saying as a factfinder.
I've looked at it all and this just doesn't reach
proof beyond reasonable doubt.
Forget Trombley, that's what he's saying based on
not just the video but the lack of evidence
and everything else that came in after.
-: Look, he didn't look at all the evidence.
He only looked at what Detective Podgurski said
at the beginning of the second part of the interview.
He didn't consider the defendant agreeing
that he had decided on his own to reinterview.
And with Detective Canini brings that up again
in the second part of the interview
and the defendant agrees again.
So the defendant twice corroborated
what Detective Podgurski said.
And we have something about the conversation was
in the interim between the first and the second interview
the defendant asked what happened next
and Detective Canini explained the booking process to him.
He didn't recall the other parts of the chit-chat
but he did specifically recall
that he did explain the booking procedure to the defendant
and the defendant decided that he would be reinterviewed.
-: Well there's a huge inference at the end of the opinion,
Judge Ferrera's opinion.
And I know that the subjective views of Canini
and not to say the least dispose,
but the inference that Judge Ferrera adopts
is that this general talk was, these aren't his words,
the functional equivalent of interrogation
in order to get the defendant, despite his invocation
of the right counsel, to indicate
that he wants to speak again.
That's the inference--
-: On what.
Detective Canini said they didn't talk about the case.
You can't draw an inference the other way
from what he said, there has to be some evidence of it.
And the Torres case, which is cited in my brief,
is on point, the Judge in that case made an inference
that the detective was talking to the defendant
was designed to get the defendant to talk
but there was no facts to support that,
just like here, so one, not only was it wrong
because they're focused on the detective's subjective intent
as opposed to what the defendant perceived.
But two, there were no facts to support it.
And that's the same situation here.
He's drawing inferences from the opposite
of what he is concluding.
-: Miss McMahon is it true that Judge Ferrera found
the police officers to be credible?
-: Yes, he said that Detective Canini
his testimony would be sufficient
if it was a preponderance standard.
So that means that he didn't discredit him,
he never says I disbelieve him.
-: Is the bottom line,
I guess the Appeals Court said this and you'll argue this,
is that the motion Judge seems kind of bothered by
the aggressive question in interview number one
and engages in speculation as to its import
for interview number two.
-: Yes.
He's speculating that if Detective Canini continued
to either act aggressively during that 40 minutes,
or did something else to try to get the defendant
to change his mind.
But the Detective testified contrary that,
and there's no evidence
that there was any kind of overreaching.
-: Justice Gaziano are you done? Sorry.
There are a couple of different things happening
at the same time.
The detective is very angry when the defendant
exercise his right, that's when he slam something down
or something like that, right?
Is that right?
He's aggravated at the end of the,
when the guy exercises his right.
-: The Captain comes to the doorway
and he was the one who is really yelling at the defendant.
He wasn't one of the two questioning detectives.
-: I thought the Spanish speaking officer,
again, if I'm confusing with a different case, let me know.
I thought the Spanish speaking officer
who's left in the room is also aggravated
at the end of the first interview.
He's slammed something down or something to that effect
or am I misremembered?
-: I think the defendant tries to say something
and he's like, "no, you asked for a lawyer you can't talk."
He's like harsh like that at the end of the interview.
I don't recall him slamming anything but.
-: Okay, I'll ask that to Miss Elkins.
But then we've got the tape recorder goes off.
The only person left in the room
is the Spanish speaking officer.
The Spanish speaking officer doesn't remember what he says.
So we can't credit what he says in there
because he doesn't remember, except for it's general talk,
whatever that is.
The captain has just come in and given the guy
a screaming at.
All of those, don't they suggest maybe
there's something a little fishy here,
And that the trial Judge, the motion Judge
can take all this into account in deciding whether
this has been proved beyond reasonable doubt,
whether this guy was pressured into you know, talking again.
I mean, it just doesn't seem like a big leap to me
given all of these things happened at the same time.
So I'm not sure there, you know it's a credibility finding
so much as well as a lot of junkier going on.
-: Well, there's a 40 minute break
and you can see the defendant's demeanor
at the end of the first part of the interview,
and the defendant's demeanor at the beginning
of the second interview, he's calm, he's low key,
he's smoking a cigarette.
And he agrees, on his own twice he agrees that he decided
to re-institute the interview.
-: He says uh-huh twice, yeah, right.
-: Very calmly.
-: Yeah, okay.
-: And there's no evidence to the contrary.
-: Attorney McMahon, do you think that when you read
the Judge's memo, as opposed to when you watch the tapes,
you take away a different opinion
about what happened or is that possible?
You know what I mean?
Like if I just read the Judge's decision,
I'm left with an impression, but I watched both tapes.
What impression am I left with?
Is it different?
-: Yes, because I don't think the Judge
took everything into consideration.
He ignores what the defendant does in the second interview.
He claims that it's only Detective Canini
and Detective Canini's testimony which he doesn't discredit,
doesn't rise above the preponderance standard.
But Detective Canini is corroborated twice by the defendant
and we have nothing to contradict that
except for speculation.
-: Do you know, do we have any case law
that specifically identifies how to determine
the difference between a preponderance of the evidence
and reasonable doubt in this context?
-: I don't know, I'm sorry.
-: Thanks.
-: I'd like to ask Justice Cypher's question
in a different way,
'cause I think it's a really important interesting question.
Judge Ferrera on this evidence, I have to agree with you,
could have found that the defendant
reinitiated the conversation beyond a reasonable doubt,
but if you take, and I won't list it now
and I could add to the list,
everything Justice Kafker put into his question
and what Judge Ferrera wrote
at the end of his memorandum and order,
and the amount of times that the defendant had to say
at the end of the first interview, he wanted a lawyer,
that Judge Ferrera could have found proof
beyond a reasonable doubt but he was the trier of fact,
and he didn't.
Why wouldn't we affirm him if that's our analysis?
-: This is a hybrid situation because you've got
the documentary evidence of the two-part video,
as well as what he found from the testimony
at the suppression hearing.
And you can take your own take about what was on the video.
And I don't think Judge Ferrera considered anything
that the defendant said in the second part of the interview
he described what Detective Podgurski said to the defendant
as self-serving, but he didn't acknowledge
that the defendant agreed with Detective Podgurski.
And then again agreed with Detective Canini
about what happened and his demeanor.
And he just didn't wanna get yelled at.
That was what he had said
when he wanted to reinitiate the interview.
Then at the end of the interview, State police Detective
and a Holyoke police officer wanted to speak
to the defendant about a different case.
And he agreed to that as long as he wasn't yelled at.
So it was the 40 minutes,
we've got nothing about harshness at all.
It's just a general conversation
and an explanation of the booking process,
taking the defendant to the bathroom,
giving the defendant a cigarette or cigarettes,
and then his calm demeanor
and the second part of the interview where nobody's yelling.
-: So what you would say is you've got the video
and you have the Judge crediting Detective Canini
and never indicating that he didn't credit Detective Canini.
So how do you not get to proof beyond a reasonable doubt?
-: Mind you there's no evidence contrary
to what Detective Canini said,
it's not like a dispute in the evidence.
There's no opposite evidence.
-: You also got the other factors.
The Captain's just come in screaming at him.
It's not everyday you get
the Captain of the Police Force screaming.
Does he seem he knows him from some reason as well?
Do they have some prior encounters,
the captain and this guy?
-: There's nothing in the record about a prior encounter.
I think he knows something of the defendant's background.
-: And then I've just looked at the actual, the decision
Canini goes, "F it, call them and turning it off."
Canini can be heard crumpling a paper.
"Stop talking," stated angry.
Canini's not some guy who's just like at a pleasant,
he's not the good cop here, he's left behind.
I mean, I don't know, there's a lot...
The booking process, the police have no explanation
why no one took him to the booking process either.
I don't know,
it just seems like there's a lot going on here.
-: But they do have an explanation.
-: We have a lot of these cases where another police officer
shows up who's friendly with the defendant,
and that the defendant says I'll talk to you,
but suddenly he's changed his mind after talking
to the person who's just angrily gotten mad at him--
-: Well, attorney McMahon you said there is in fact something
but it's not in the Judge's findings, is that right?
But it's in the record,
with regard to why he didn't leave to go to booking.
-: I think Duda and Detective Martucci explained
that homicide defendants are treated differently
than other defendants.
They're not right down to the booking
when there're other defendants there to be booked.
There're books separately, they're held in a cell separately
there's a suicide concern.
So there's not a camera watching them in the cell,
but there's actually a police officer
who watches them constantly.
This defendant was in the Detective Bureau.
He's in an interview room, he had to be watched.
And then the reason why the audio and video was shut off
is because at the end of an interview,
the equipment is shut off.
And that's what happened here, it's nothing sinister.
That's what happens and it was turned back on again
when the defendant decided to continue with the interview.
-: Everybody all set?
-: Okay, attorney Elkins.
-: Chief Justice Budd,
Justices of the court may it please the court.
"I ain't gonna talk."
"Edward now is the time to tell us."
Very shortly thereafter, "can I call my lawyer?"
So he's asking in Spanish.
"So he's asking for a lawyer."
"You want what?"
"My lawyer."
"You want your lawyer?"
"Yeah."
He goes on and as Justice Lowy points out,
goes on, "call my lawyer."
"Okay, he's going to turn this off."
"We're gonna stop interviewing you
"and you'll be booked for murder."
"You're going to be booked for murder."
"All right, call my lawyer."
"You can call your murder, your lawyer later on."
"Can you have them turn off Room A, please?
"Yep. Have them turn it off."
"Because right now," Mr. Gonzales,
Canini, "stop talking you just said, you want a lawyer.
"We can't talk to you."
Before that, "F it, call them and turn it off."
Canini says as he crumpled up the paper
and throws it in the trash.
Cursing and angry they call for the video to be turned off.
Police tell him
that he's going to be booked for murder, but he isn't.
Instead he's left alone in the same interrogation room
with one of the same officers who'd been interrogating him.
And as Judge Ferrera found
based on the totality of the evidence,
he continued to speak with him
with the intent to persuade him to reverse this invocation.
That finding regarding his intent was supported
by ample evidence from the evidentiary hearing.
And ultimately they did have him talking again.
It's been commented on that the Commonwealth suggests
that there's no evidence to the contrary
about what they talked about,
but the fact is is that experienced ranking members
of the Springfield Police made deliberate choices
to not record when they could have,
not preserve evidence that was available
and to assure the simple professional step
of making contemporaneous notes or reports.
So when many months later they're called to testify
about this undocumented gap,
Judge Ferrera found that their inability to offer
the reliable specific testimony meant that they failed
to meet their burden to prove beyond a reasonable doubt
that the interrogation had actually ceased.
And if it had that Mr. Gonzalez had reinitiated it.
And that in the totality of the circumstances
that his subsequent waiver was knowing and voluntary.
Now that was the Commonwealth's burden
beyond a reasonable doubt.
And as soon as Mr. Gonzalez said, "I ain't speaking,"
that was a moment of legal significance
that whether anything changed for Mr. Gonzales or not
in that room, which it did not for the most part,
change something significantly in the legal respect
for the Commonwealth.
Now Judge Ferrera's decision relies most clearly
on a finding that he harbored reasonable doubt,
that Mr. Gonzalez, and this is quoting his--
-: We've never said, in DJ and Bautista we said that
you should record interrogations.
And we have lots of cases where people change their mind.
We can't expect the police
to have a camera roll in every time.
So there's an invocation
an inappropriate reaction to that by a police officer
then they appropriately shut the tape off.
So you want us to draw a negative inference
from the fact that they didn't record him thereafter?
-: What I am suggesting is that Judge Ferrera
took a negative inference and that was completely justified
under the circumstance.
-: The real question is whether or not
that inference is warranted
by the evidence or whether it was speculative
as found by the Appeals Court, right?
-: I would agree with that your Honor.
What I would suggest about DJ and Bautista and particularly
is relevant to this case is that
DJ and Bautista is not about whether or not,
it wasn't dicta that they had to record and prescribing
certain circumstances where they had to record,
what DJ and Bautista said is it's about making sure
that the factfinder, in that situation jurors who might be
prone to unconscious biases regarding police testimony
in circumstances where there's a great deal of reason
to note that there, it could be problematic,
understand that they can take a negative inference,
that it is permissible in that situation.
Now Judge Ferrera, of course is the fact finder.
And of course he also understands and understood very well
that he could take a negative inference
in this circumstance.
And that is not speculation.
It wasn't speculation on his part
to take that negative inference because he had--
-: What about when we go, what they do?
When someone reinitiates, the next step is
to put them on tape again and say,
"hey, you wanted to talk to us?"
And that's what they did here, correct?
-: They did, and as Judge Ferrera said, that standing alone
told us nothing about the 40 minute gap
which was what really is the point of inquiry.
I point out two things about there were two very
very brief exchanges that were meant to encompass
this whole 40 minute period or this reinitiation.
One is Detective Podgurski
who does the initial Miranda warning
with of course Canini present.
Now the testimony, if it had just been that video
that the Commonwealth had presented,
which of course bearing the burden
they could've chosen to do that, but clearly seeing
that it was insufficient on its face, they brought in
the officers who were involved to testify.
Now it's not clear on that tape
but what Judge Ferrera learns
in the motion hearing is that Podgurski by his own testimony
was not present for the reinitiation.
He could not under oath say how he knew
about the circumstances of the reinitiation,
what exactly was said.
And in fact testified that he doesn't recall
that anybody had told him.
So when he says on the tape, we took you to the bathroom,
and then we were taking you to booking,
that is one factually inconsistent with Canini's version
of how the reinitiation happened.
And it's not clear what knowledge that's based on.
So Judge Ferrera's finding that that was self-serving
and told us nothing about the facts and circumstances
of the initiation is amply supported by the totality
of the evidence that he heard that he heard.
-: The Commonwealth argument here is pretty straightforward.
First of all, under Commonwealth versus Trombley,
we can look at the end of the first interview, which I have,
and we can look at the beginning of the second interview
and independently think about what that demonstrates to us.
And then we have the factfinder saying
that he credits Canini.
He doesn't indicate any in any part of the testimony
that he doesn't credit him.
And what we have is what the video says and corroboration
from the video.
And we have crediting of Canini and certainly at a minimum
not discrediting Canini.
And the question is, from the Commonwealth's perspective,
isn't that proof beyond a reasonable doubt.
And if it isn't proved beyond a reasonable doubt
well, what exactly are you discrediting?
-: Your honor there doesn't have to be...
First of all, I disagree that any of just Judge Ferrera's
decision to be interpreted to be a wholesale acceptance
of Canini's testimony and crediting it in it's entirety.
The other thing that I would say is that
Canini's testimony in and of itself was vague
and self-serving, and not specific.
So, and to the extent that Canini attempted to try
to convey anything about the general talk that went on
in between that, he tried to characterize it
as not about the case and he tried to convey
that there was not an intent to change the waiver,
that it had nothing to do with that.
And that Judge Ferrera explicitly rejected.
And I think part of the difficulty here is that
it is one thing to say
that a witnesses has testified that a car is blue.
I don't find that credible, the car was yellow,
or I don't believe that they saw it.
In this case, Canini's testimony is an attempt
to characterize the nature of the discussion
and the words that were said in between them
in the context of that 40 minute gap.
The analysis of whether or not
the functional equivalent of interrogation even took place
cannot happen in the absence of the specific,
some fairly specific understanding of what was said.
A conversation doesn't have to be about the case
to be the functional equivalent of interrogation.
One can imagine sitting down and
"well, we talked about sports,"
which Canini was specifically asked,
"did you talk about sports?" And he couldn't recall,
but sitting down and saying, "I love the Red Sox
"and I can't imagine going my whole the rest of my life
"and never being able to go to Fenway Park again
"and see the Red Sox."
Well, that's not about the case, but in the right context,
a conversation about anything can be coercive
in the sense that we talk about for Miranda.
-: Sort of a long way to get, I'm not gonna speculate
maybe the conversation wasn't particularly remarkable.
But it's hard to take the evidence that we have
and say that the 45 minute conversation was
the functional equivalent of interrogation,
what we got is question about the booking,
go to the bathroom
and then decide that he wants to talk again.
Well, and then we have a video that corroborates
that he wants to talk again, that's the simplicity.
And just because it's simple doesn't mean it's not right,
straight forward argument to the Commonwealth.
-: I would suggest two things about that.
One is that it is supplanting Judge Ferrera's decision
with a separate finding of it's own,
to find that the interrogation actually did cease
simply because as the Commonwealth has always said
they push stop on the recording.
After that point, it's a black hole of information
a virtual black hole of information.
And Judge Ferrera,
he used while he did not specifically say,
I find that the interrogation continued,
he did note the continuation of conversation.
The interrogation circumstance continued,
if anything, tactics and this was, there's evidence
from the motion hearing on to this effect,
that things like giving cigarettes
and putting people at ease in the context
of their interrogating officers are tactics.
So the interrogation circumstance continued,
continued with the same, you know
he's in there with the same officers who were in with him
the only Spanish speaking officer.
So first of all I would suggest that to adopt
the Commonwealth's position which they argue,
or which they just put out by fiat without any argument
as to why it constitutes cessation.
But to find that the interrogation actually didn't cease
simply because they've pushed stop on the video recorder
is supplanting one of Judge Ferrera's important findings.
-: I understand what your argument is there,
but can I take you, if Judge Lowy's satisfied
to just a different point and that is,
let's assume interrogation stops as, you know, after that
when they press the button and they say, okay
we're not talking whatever,
don't we need evidence that the defendant initiated
the desire to speak to the police again.
-: We do.
-: What is that in this case?
-: Well I would say that that's the Commonwealth's burden.
Well, yes, but you must have a view of the evidence
and you can say it's there, it's not there, right?
-: I would suggest that Canini's testimony,
about that 40 minute period,
as I said, it was vague and nonspecific,
but he did talk about this trip to the restroom
and these booking questions,
he was asked on cross examination
if he recalled exactly what they talked about
during this general conversation that he admitted,
as he said, "we talked, oh yes, we talked."
He was very adamant that they talked throughout.
I think a very specific and a very important point
is that on cross examination, he was asked
if he recalled whether or not there was any pause
or break in this general conversation before Mr.Gonzales
purportedly said,
"I'll talk I just don't wanna be yelled at."
And I would suggest that if this general chit-chat,
if we can't even recall the sequence,
and how long there was pause, it was 40 minutes,
it's a pretty long time to be not taken booking
when you've been told to be taken for booking.
And I would point out that there was evidence specific
to this case to your earlier question Justice Cypher
as to why he specifically wasn't taken.
And I can address more points about that.
But this was a pretty long period of time
to not be taken a booking, but it was not that long
of a period of time to be able to say,
and Detective Canini could not say whether or not
they sat in silence for any period of time.
I think an interesting case to note,
and it's a simple case in some ways too
it's Commonwealth V Leclaire 55 Mass.App.Ct.238.
And what I find significant about that case is that
there's an invocation and the defendant in that case
is left alone with the officer.
But that officer is given specific instructions to not talk.
Compare that to here, where you had experienced officers
who are very interested in motivating the case.
All findings of fact by Justice Ferrera,
and Canini is not instructed how to comport himself.
And he's not instructed to write a report after the fact,
he doesn't object in the initial portion of the recording
when Podgurski gives a different recitation
of how the reinitiation happened.
And he does nothing to preserve his memory of what this is.
And so yes, it was this important in retrospect in hindsight
the import of this 40 minutes perhaps,
but I would suggest for the officers who
were knowledgeable and understood
it was important immediately in retrospect,
as soon as they turn that video back on
they knew this was something that was going to be
the subject of litigation and questioning what happened
during that 40 minutes.
-: Of course, it's a reinitiation isn't it?
They know that if someone invokes
and then they give an interview number two,
of course it's gonna be subject to litigation.
So you're drawing an inference it was sinister
because they asked about the reinitiation?
-: Your honor I'm suggesting that that is the basis
of Judge Ferrera negative inference
about their failure to record.
And not just their failure to record,
but to not write reports, to not make contemporariness notes
to not monitor when there was a great deal of evidence
that they could have live monitored,
even if they weren't recording.
And that is the most significant part of evidence
that Judge Ferrera--
-: It all turns on whether or not
the inference he drew was reasonable.
And that's for us to decide, correct?
-: It is for you to decide.
I would suggest that the standard being,
because it's a mix of recorded evidence and live evidence,
it's entitled to de novo.
I see that my time is up, but I just wanna briefly--
-: Before you conclude though,
I'm just trying to a...
'Cause the tricky issue is the credibility issue
on what happened in the general talk.
And I can't figure out what the Judge is saying,
'cause the Judge doesn't...
The Judge kind of says if the Commonwealth argues this,
and if the burden of proof we're only preponderance in,
what do we make of that?
Particularly when it follows the next paragraph
which is sort of very suspicious of Canini,
being displeased,
do we have a fact-finding here that credits or not,
what do we do here on that point?
'Cause this may all turn on whether he found him credible
on the general talk point
but I can't figure out what he's saying.
-: I would suggest two things.
One, I suggest that there isn't a general finding
of credibility for Officer Canini,
as if you look closely and just for our facts,
he always prefaces Canini's with he testified to,
he testified to, he doesn't say one way or the other.
I mean that's just a factual statement
of what he said on the stand.
He doesn't say one way or the other,
whether or not he credits.
-: Is the key sentences on this the ones on eight?
The Commonwealth argues that all that is required
is a credibility assessment.
If the court credits Canini's assertion
that he and Gonzalez did not touch any aspect of this case
during the interim period,
then the Commonwealth has met it's burden.
If the Commonwealth's burden
was a mere prepondency evidence,
Canini's testimony might suffice.
I don't know what that means.
-: Candidly, it's difficult to parse,
I'd suggest two things about that though.
One is that the Judge Ferrera,
it clearly indicates that he understood
that the burden of proof was on the Commonwealth
and it was a high one of prove beyond a reasonable doubt.
-: But is that confusing two different burdens of proof?
We don't have burden of proof on each statement
to be beyond a reasonable doubt, right?
We have only the ultimate burden of proof
is beyond a reasonable doubt.
Whether he reinitiated voluntarily,
but the issue of whether, what they talked about
in that general statement is a preponderance proof isn't it?
Do we fly beyond reasonable doubt
for every single fact found in, you know,
I just don't know we do that.
-: I don't know that we do, what I would suggest though
is that the question of, you know
perhaps if it were not about the case,
if the discussion were not about the case
it would meet by preponderance of the evidence.
If you're looking at the question of whether
or not that's enough to say, if true,
like not about the case, that was more probably then not
the functional equivalent of interrogation.
-: Make me figure out 'cause the next paragraph
the Judge talks about all of Canini's incentives
to restart conversation with the defendant.
So it seems like those two statements
don't give us any clear answer on credibility.
If I look at page eight and page nine,
I don't know whether the Judge found Canini credible
or not credible.
I just can't figure out what he did.
Does he say elsewhere in the opinion
that he finds Canini credible and I missed it?
-: He never says specifically that he finds him credible.
And I think it is stretching the bounds of whatever it was
he was trying to say about the preponderance of the evidence
to stretch that into that finding.
He did very specifically though in kind of a muted form,
find other portions of other officer's testimony,
very specifically not credited,
which the Commonwealth for it' part has said
he's just simply wasn't entitled to find,
which seems like not a proper application of the standard.
If I may just and very briefly.
I would point out that in the interim
while we've been waiting for all argument in this case,
Appeals Court came out with Commonwealth V Davis
98 Mass.App.Ct.604.
It's very analogous case.
And I would suggest properly applies the standard of review
in this kind of case where there's a mix
of recorded and unrecorded portions of evidence.
And I would just suggest it's very difficult
to reconcile a reversal in this case, with that decision.
So unless there's any further questions, I would rest.
-: Okay, thank you counsel.
We'll take a break for five minutes.
-: Thank you. -: Thank you.