                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            June 16, 2010
                                   TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff–Appellee,
                                                             No. 09-2259
 v.                                                (D.C. No. 2:08-CR-02665-RB-1)
                                                              (D. N.M.)
 MICHAEL ANTHONY McCARTHY,

        Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before KELLY, McWILLIAMS, and LUCERO, Circuit Judges.


      Michael Anthony McCarthy appeals the district court’s denial of his motions to

suppress statements that he made during a police interrogation. Because law enforcement

officers continued to question McCarthy after he unequivocally invoked his right to

remain silent, we conclude that the statements must be suppressed. Exercising

jurisdiction under 28 U.S.C. § 1291, we reverse.


      * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
                                             I

      In the early morning hours of August 15, 2008, McCarthy stopped his semitrailer

at a New Mexico Motor Transportation Department inspection station. Officers

inspecting the cargo inside found nearly 300 kilograms of marijuana. McCarthy was

taken into custody and handcuffed to a bench inside the station. Sergeant Robert Barrera,

the investigating officer, then read McCarthy his rights pursuant to Miranda v. Arizona,

384 U.S. 436 (1966).

      Approximately two hours later, Border Operations Task Force Agents William

Chadborn and Corey Watkins arrived at the scene. Barrera informed both agents that

McCarthy had been read his Miranda rights. Watkins and Chadborn awoke a sleeping

McCarthy, led him into an office, and began questioning him. During the interview,

which was recorded, the following exchange took place:

      AGENT CHADBORN: Alright . . . uh . . . Just wanted to let you know that
      . . . uh . . . Did you invoke your rights, or did you tell them that you didn’t
      want to talk to anybody or that you wanted an attorney present or anything
      like that?

      MR. McCARTHY: Unintelligible.

      AGENT CHADBORN: Okay. I, I, I can’t . . . I’m having a hard time
      understanding you.

      MR. McCARTHY: I said, I don’t want any . . . I don’t want nothing to say
      to anyone.

      AGENT CHADBORN: You don’t have anything to say to anybody?

                                             2
       MR. McCARTHY: No.

       AGENT CHADBORN: Okay. Did, did . . . when they read you your rights
       ...

       MR. McCARTHY: What rights?

       AGENT CHADBORN: Did, did they read you your Miranda warnings?

       MR. McCARTHY: What rights do I have?

       AGENT CHADBORN: Okay. We’ll get through that right now.

       Chadborn began to re-read McCarthy his Miranda rights, but was interrupted.

Watkins, Chadborn, and McCarthy then discussed possible consequences of cooperating

and refusing to cooperate with the investigation. When McCarthy attempted to speak

about the details of his case, the agents repeatedly told him they could not discuss these

matters unless McCarthy signed a form waiving his Miranda rights. Around six a.m.,

McCarthy signed this form and proceeded to make incriminating statements.1 He was

then transported to a Drug Enforcement Agency office for further processing.

       A grand jury indicted McCarthy on one count of possession with intent to

distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 841 and 18

U.S.C. § 2, and one count of conspiracy to possess with intent to distribute 100 kilograms


       1
        The facts as described by the dissent would have it appear as if an insignificant
amount of time passed between Chadborn’s initial attempt to re-read McCarthy his
Miranda rights and McCarthy’s signing of the waiver form. In fact over thirty minutes
passed, during which time McCarthy asked the agents at least twice to be put in jail. It is
also worth noting that both Chadborn and Watkins already knew that McCarthy had been
Mirandized before they began questioning him.

                                             3
or more of marijuana in violation of 21 U.S.C. §§ 841 and 846. McCarthy filed three

motions to suppress his statements to law enforcement, arguing that Chadborn and

Watkins violated his Miranda rights.2 The district court denied these motions. Although

it found that “ordinary people and reasonable law enforcement officials would understand

a clear articulation of the phrase ‘I don’t want nothing to say to anyone’ as an invocation

of the right to remain silent,” the court held that McCarthy’s articulation of this phrase

was not clear and his subsequent response, “No,” to the question, “You don’t have

anything to say to anybody?” was “somewhat ambiguous.” As a result, it concluded that

McCarthy did not clearly and unambiguously invoke his right to remain silent and his

post-waiver inculpatory statements were therefore admissible.

       After his motions were denied, McCarthy entered into a plea agreement reserving

the right to appeal the suppression ruling. The court accepted the plea and sentenced

McCarthy to twenty-four months’ imprisonment. McCarthy timely appealed.

                                              II

       In reviewing the denial of a motion to suppress, we view the evidence in the light

most favorable to the government and accept the district court’s factual findings unless

they are clearly erroneous. See United States v. Glover, 104 F.3d 1570, 1576 (10th Cir.

1997). We review legal questions, including the issue of whether a defendant

unambiguously asserted his right to remain silent, de novo. Cf. United States v. March,

       2
           These motions were virtually identical in content.


                                               4
999 F.2d 456, 459 (10th Cir. 1993).

       Under Miranda, an interrogation must immediately cease when an “individual

indicates in any manner, at any time prior to or during questioning, that he wishes to

remain silent.” 384 U.S. at 473-74. 3 Statements elicited by police after a defendant

invokes this right are inadmissible. See Michigan v. Mosley, 423 U.S. 96, 103-04

(1975). To come within the ambit of this rule, however, a suspect’s invocation of his

right to remain silent must be “clear and unambiguous.” United States v. Rambo, 365

F.3d 906, 910 (10th Cir. 2004).4

       In Rambo, we held that a defendant’s response of “No,” to the question, “Do you

want to talk to me about this stuff?” constituted a clear and unambiguous invocation of

his right to remain silent. 365 F.3d at 910. We reasoned that “[t]here is no nuance nor

context to vary the unequivocal meaning of [the defendant’s] single word, monosyllabic

response. His response, ‘No,’ could only mean an invocation of his right to remain

       3
        The government appears to argue that McCarthy was not under interrogation
when he made his initial statements. Even if this were true, the protections of Miranda
continue to apply because custodial interrogation was undoubtedly imminent. See
Rambo, 365 F.3d at 909 (“For the protections of Miranda to apply, custodial interrogation
must be imminent or presently occurring.” (citation omitted)).
       4
         The Supreme Court recently reaffirmed this standard in Berghuis v. Thompkins,
560 U.S. ____, 2010 WL 2160784 (June 1, 2010). Thompkins held that silence does not
invoke the right to remain silent; instead, a suspect must “unambiguously” invoke his
Miranda rights. 2010 WL 2160784 at *8. The Court noted that Thompkins “would have
voiced his right to cut off questioning” had he said “that he wanted to remain silent or
that he did not want to talk to the police.” Id. at *9 (quotation omitted). Because
Thompkins merely revivifies our existing precedent, it does not affect our reasoning in
this case.

                                             5
silent.” Id.

       The same is true here. McCarthy told Chadborn that he did not “want nothing to

say to anyone.” Chadborn then clarified, “You don’t have anything to say to anybody?”

McCarthy responded, “No.” Like the court in Rambo, we discern no nuance or

ambiguity in this exchange. In short, no means no. If McCarthy had not already invoked

his right to remain silent by stating that he did not “want nothing to say to anyone,” he

clearly and unambiguously did so in response to Chadborn’s subsequent question.

Because Chadborn and Watkins failed to “scrupulously honor[]” McCarthy’s request to

cut off questioning, his post-invocation statements must be suppressed. See Mosley, 423

U.S. at 103.5

       The government argues that McCarthy’s response was ambiguous because he was

difficult to understand. However, McCarthy’s answer, “No,” was plain regardless of his

heavy accent or tendency to mumble. See Rambo, 365 F.3d at 910 (“Although the

context and nuances of a request to end questioning can create ambiguity, they cannot

overcome a clear expression of the desire to remain silent.”). The government also

contends that McCarthy’s “no” response was ambiguous because Chadborn posed his

question in the negative. We disagree. A “reasonable police officer in the


       5
        Because the government does not allege that the agents lawfully reinitiated
questioning after McCarthy invoked his right to remain silent, we need not apply
Mosley’s four-factor test. See id. at 104-05; see also United States v. Alexander, 447
F.3d 1290, 1294 (10th Cir. 1996).


                                             6
circumstances” presented could not have misinterpreted McCarthy’s response. See

United States v. Nelson, 450 F.3d 1201, 1212 (10th Cir. 2006). Nor can the government

rely on McCarthy’s post-invocation conduct. “[A]n accused’s postrequest responses to

further interrogation may not be used to cast retrospective doubt on the clarity of the

initial request itself.” Smith v. Illinois, 469 U.S. 91, 100 (1984) (emphasis omitted).

Because McCarthy clearly invoked his right to remain silent before the agents elicited

incriminating statements, the district court erred in denying his motions to suppress.

                                            III

       For the foregoing reasons, we REVERSE the denial of McCarthy’s motions to

suppress and REMAND for further proceedings.



                                          Entered for the Court




                                          Carlos F. Lucero
                                          Circuit Judge




                                             7
United States v. McCarthy, 09-2259
McWILLIAMS, J. dissents.

       At the outset of my dissent, I would note that when the inspector at the check point

read the defendant his Miranda rights, the defendant neither invoked nor waived his right

to remain silent. I also agree that after Agent Chadborn arrived, the defendant said, in

essence, that he did not want to talk to “anyone about anything,” which is a rather “clear

and unambiguous” invocation of his Miranda right to remain silent. And that

immediately thereafter the agent did inquire of the defendant “when they read you your

rights...,” at which point the defendant interrupted and said “what right” and “what rights

do I have?” It was in that setting that the agent then proceeded to re-read the defendant

his Miranda rights, after retrieving the defendant’s glasses from his truck, the defendant

apparently wanting to read the Miranda rights as the agent read them. Two times during

the reading, the defendant asked if they could talk about the “details of his case” and the

agent said they could not. At the conclusion of this re-reading the defendant then signed

a written waiver of his Miranda rights. Certainly, reading to a detainee his Miranda

rights does not in itself violate his right to remain silent. Accordingly, I would affirm.
