          United States Court of Appeals
                     For the First Circuit


No. 11-2260

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      DAVID OQUENDO-RIVAS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Gustavo A. Gelpí, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
              Torruella and Selya, Circuit Judges.



     Anita Hill-Adames and Anita Hill Law Office, on brief for
appellant.
     John A. Mathews II, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
on brief for appellee.




                         April 18, 2014
           TORRUELLA,   Circuit    Judge.        David   Oquendo-Rivas

("Oquendo") appeals from the denial of his motion to suppress a

series of inculpatory statements.       First, he seeks suppression of

a statement made to his arresting officer, arguing that he was

questioned while in formal custody but prior to the receipt of

Miranda warnings.   Second, he seeks suppression of all statements

made during his formal interrogation, arguing that questioning

resumed impermissibly soon after his initial refusal to make a

statement and continued even after his unambiguous request for

counsel.   None of these theories passes muster.     Consequently, we

affirm the denial of the motion to suppress.

                            I. Background

A. Arrest and Interrogation1

           A shootout at La Tómbola, a bar near Toa Baja, Puerto

Rico, left several patrons dead.        In its aftermath, rumors led

officers from the Puerto Rico Police Department ("PRPD") to a

nearby home, where several men involved in the murders were thought

to be hiding.   Arriving at the residence, officers observed three

men standing in its fenced-in yard.      Startled by the officers, one

man -- later identified as Oquendo –- lifted his shirt to reveal a

firearm in his waistband.   All three men then fled.     One, exiting


1
   We derive the facts, in large part, from testimony given by the
arresting and interrogating officers. This testimony was found
credible by the district court judge and is not seriously contested
by Oquendo on appeal.

                                  -2-
the yard, successfully evaded the ensuing pursuit; he has never

been identified.    The other two, Oquendo and his co-defendant,

Christian Ortiz-Rivera ("Ortiz"), ran up an exterior staircase and

into the home's second-story interior.       The officers gave chase.

          Entering the home's upper level, Officer Rodríguez-Negrón

("Officer Rodríguez") observed Oquendo toss a handgun out of the

window.   Soon after, Officer Rodríguez and Officer Roberto Cruz

grabbed   Oquendo   and   restrained   him   on   the   floor.   While

demobilizing Oquendo, they heard a fellow officer call out from

below, indicating that he had possession of the thrown weapon.

Officer Rodríguez then entered an adjoining bedroom, where he

witnessed Ortiz attempting to hide two more firearms in a laundry

basket.   One of these guns had an obliterated serial number.

Subsequent to detaining both men, but before their formal arrest,

Officer Rodríguez asked if they were licensed to possess firearms.

Oquendo and Ortiz both answered, "no."

          After being placed under formal arrest and verbally read

his Miranda rights,2 Oquendo was taken to the police station in

Bayamón, Puerto Rico for questioning.        There, Officer Rodríguez

provided him with a Spanish-language Miranda waiver form.         This



2
   The arresting officers testified that, after receiving this
verbal warning, Oquendo and Ortiz made several voluntary and
unsolicited statements. Some time during these events, a man also
arrived at the home claiming to be Oquendo and Ortiz's lawyer.
Because the man did not know the names of his clients, or who had
called to request his presence, he was denied access.

                                 -3-
form set forth, in a bullet-point list, the nature of Oquendo's

Miranda rights. Under that bulleted description, the form provided

space for Oquendo to waive his rights by consenting to make a

statement outside the presence of a lawyer, if he so desired.

After reviewing the form, Oquendo indicated that he did not wish to

make a statement.   No questions were asked and, after signing and

dating the form, Officer Rodríguez left the room.

          Approximately twenty minutes later, Agent Julio Torres

("Agent Torres") from the federal     Alcohol, Tobacco, Firearms and

Explosives Bureau ("ATF") entered Oquendo's interrogation room.

Agent Torres handed Oquendo another blank copy of the Spanish-

language Miranda waiver form. After reviewing this duplicate form,

Oquendo wrote next to the portion of the form related to waiver, "I

do not understand this, my lawyer speaks."3       Agent Torres then

verbally read Oquendo his Miranda rights and, upon seeing the note,

asked Oquendo what he did not understand.      In response, Oquendo

indicated that he was willing to speak without a lawyer present,

but that he did not want to answer any questions about the deaths

at La Tómbola. Agreeing to limit the scope of his questions, Agent

Torres had Oquendo circle the portion of the waiver form consenting

to speak without a lawyer.    Both Oquendo and Agent Torres then

signed the form, and questioning began.    During the course of his


3
   Oquendo's note was written in Spanish: "No entiendo eso[,] mi
abogado habla." Neither party disputes the English translation's
accuracy.

                                -4-
interrogation, Oquendo made statements indicating that he knew

Ortiz possessed a gun with an obliterated serial number.

B. Motion to Suppress

              Oquendo was indicted for aiding and abetting in the

possession of a firearm with an obliterated serial number, in

violation of 18 U.S.C. §§ 2 and 922(k). Before the district court,

Oquendo argued for the suppression of his spontaneous post-Miranda

statements, on the theory that his purported counsel, having

arrived at the home but lacking even the most basic information

about   his    clients,   was    denied   access.   This   claim   has   been

abandoned on appeal.4           Oquendo also sought suppression of his

statements to Agent Torres, arguing that his written note was an

unambiguous request for counsel, requiring the immediate cessation

of questioning until an attorney was present.

              At trial, the district court judge informed the parties

that he wanted to revisit his prior order denying the motion to

suppress.     He explained that, in issuing the initial order, he had

believed the motion to suppress to focus only on a single issue:

whether Oquendo's purported attorney was wrongly denied access to

his client at the time of arrest.         Upon closer review of the rather

muddled motion, however, he understood it also to allege that Agent

Torres's interrogation violated Oquendo's Miranda rights. In order


4
  Oquendo has also forgone on appeal a rather ill-formed argument
that the ATF had no reason to suspect he had committed a federal
crime, and thus no reason to interrogate him.

                                      -5-
to treat this additional issue, the jury was excused and Agent

Torres was called for questioning.           At the end of this suppression

hearing, the district court judge deemed Agent Torres's testimony

credible and held that Oquendo's written statement was not an

unambiguous request for counsel.             Moreover, the district court

judge   determined    that    Agent       Torres's    decision   to   commence

questioning approximately twenty minutes after Oquendo refused to

make a statement to PRPD officers did not violate Oquendo's right

to remain silent.

             Oquendo appeals from the district court's determination

that Agent Torres's interrogation neither violated his right to

remain silent nor ignored an unambiguous request for counsel.              He

also forwards a new argument, seeking suppression of his initial

admission to Officer Rodríguez that he did not possess a gun

license.     This latter claim is predicated on the theory that

Oquendo, at the time of Officer Rodríguez's question, was in formal

custody but had not been read his Miranda rights.

                                  II. Discussion

             In reviewing a district court's denial of a motion to

suppress, "[w]e view the facts in the light most favorable to the

district court's ruling."          United States v. Camacho, 661 F.3d 718,

723 (1st Cir. 2011) (alteration in original) (quoting United States

v. Soares, 521 F.3d 117, 118 (1st Cir. 2008)). We assess questions

of   fact,     as   well     as     the    district    court's    credibility


                                       -6-
determinations, for clear error.       Id. at 723-24.   These findings

are susceptible to reversal only where we are definitely and firmly

convinced that a mistake has been made.     United States v. Nee, 261

F.3d 79, 84 (1st Cir. 2001).        Questions of law, in contrast,

receive de novo review, as does the district court's application of

law to its findings of fact.   United States v. Werra, 638 F.3d 326,

330 (1st Cir. 2011).

A. Statement to Officer Rodríguez

          Oquendo seeks suppression of his statement to Officer

Rodríguez that he did not hold a license to possess firearms. This

statement was made while at the Toa Baja residence, after Oquendo

was restrained on the floor.   Oquendo asserts that it was elicited

while he was formally in custody, see Berkemer v. McCarty, 468 U.S.

420, 438-39 (1984) (establishing the test to determine whether

detention prior to arrest is custodial), but prior to the receipt

of any Miranda warnings.

          We do not reach the merits of this claim, as it is not

properly before us.    Fed. R. Crim. P. 12(e) (deeming waived any

motion to suppress not made before the district court's motion

deadline); United States v. Santos Batista, 239 F.3d 16, 19 (1st

Cir. 2001) ("Failure to raise suppression arguments before trial

shall constitute waiver thereof." (citation and internal quotation




                                 -7-
marks    omitted)).5       Oquendo's     motion   to   suppress     never   made

reference   to     his   statement   regarding    licensure,      instead   only

seeking the suppression of two other sets of statements, which were

made after formal arrest and during interrogation.               United States

v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) ("[Rule 12(e)'s] waiver

provision applies not only when a defendant has failed altogether

to make a suppression motion but also when, having made one, he has

neglected to include the particular ground that he later seeks to

argue.").

            Our court has previously suggested that unpreserved

suppression arguments may be merely forfeited rather than waived,

engendering plain-error review.           United States v. Nuñez, 19 F.3d

719, 723 n.10 (1st Cir. 1994); see also United States v. Pérez-

González, 445 F.3d 39, 44 (1st Cir. 2006).                   Recent precedent,

however, shows a strong inclination against plain-error review.

United    States    v.   Lyons,   740   F.3d   702,    720   (1st   Cir.    2014)

(reasoning that recent precedent strongly favors a finding of

waiver); United States v. Crooker, 688 F.3d 1, 9-10 (1st Cir. 2012)

(refusing to review an untimely suppression argument for plain

error).    We have emphasized that, by its express terms, Rule 12(e)



5
   In 2002, amendments to Rule 12 incorporated the content of what
was then Rule 12(f) into the current Rule 12(e).      The Advisory
Committee made clear that this alteration effected "no change in
the current law regarding waivers of motions or defenses." Fed. R.
Crim. P. 12 advisory committee notes on the 2002 amendments. Pre-
amendment case law, therefore, continues to guide our reasoning.

                                        -8-
calls for waiver, and we have noted that ignoring this mandate

would be "manifestly unfair" to the prosecution.     United States v.

Walker, 665 F.3d 212, 228 (1st Cir. 2011).       We see no grounds on

which to treat Oquendo's claim differently.

            Neither can Oquendo find refuge in Rule 12(e)'s "good

cause" exception, which allows the court to grant relief from

waiver for a showing of good cause.     Fed. R. Crim. P. 12(e).   Like

the appellant in Lyons, Oquendo "has not addressed the waiver issue

at all, let alone explained why he has good cause to seek relief

from it."   Lyons, 740 F.3d at 720.    It is not the job of this court

to build good cause from naught, and Oquendo has failed even to

hint at why his claim should be excused from Rule 12(e)'s express

strictures.     Consequently, we find that Oquendo has waived his

argument for suppression of this statement.

B. Statements to Agent Torres

              Oquendo seeks suppression of his statements to Agent

Torres on two grounds: (1) a violation of his right to remain

silent based on the quick resumption of questioning after he

initially refused to make a statement, and (2) a violation of his

right to counsel based on continued questioning after what Oquendo

argues was an unambiguous request for an attorney.

            1. Right to Remain Silent

            Unlike an unambiguous request for counsel, after which

questioning must invariably cease until a lawyer is provided, an


                                 -9-
invocation of the right to remain silent does not automatically bar

the resumption of questioning at a later time.     See United States

v. Andrade, 135 F.3d 104, 107 (1st Cir. 1998).           Rather, in

determining the appropriateness of renewed questioning, our inquiry

focuses on whether the suspect's "right to cut off questioning" was

at all times "scrupulously honored."    Michigan v. Mosley, 423 U.S.

96, 103-04 (1975).     After an initial invocation of the right to

remain silent, four factors are relevant to determining whether the

resumption of questioning is permissible: (1) whether a reasonable

period of time passed prior to the resumption, (2) whether the same

officer resumed questioning, (3) whether the suspect received

refreshed Miranda warnings, and (4) whether questioning concerned

the same alleged crime.    United States v. Lugo Guerrero, 524 F.3d

5, 12 (1st Cir. 2008) (citing Mosley, 423 U.S. at 104-06).   Beyond

assessing these factors, however, our ultimate review must account

for the "totality of the circumstances," with an eye to determining

whether the suspect retained the ability to choose whether and when

to speak.    Id. (quoting United States v. Thongsophaporn, 503 F.3d

51, 57 (1st Cir. 2007)).

            Oquendo hangs his hat on the first Mosley factor, arguing

that twenty minutes is too short a passage of time to make the

resumption of questioning reasonable.     And indeed, Agent Torres's

timing gives us pause.      While Mosley did not purport to set a

floor, we note that twenty minutes is some six-times shorter than


                                 -10-
the time period found reasonable therein.    Mosley, 423 U.S. at 104

(stating that "more than two hours" passed between interrogations);

Andrade, 135 F.3d at 106 (same).        It would be both unwise and

unworkable, however, to try and demarcate a one-time-fits-all limit

for assessing reasonableness, which at its worst might only send

interrogating officers running for their stopwatches.         Such a

reading of Mosley has been previously rejected by our court, see

United States v. Barone, 968 F.2d 1378, 1383 (1st Cir. 1992), and

we reaffirm that logic now.

            Rather, our analysis must account for the totality of the

circumstances and must give appropriate attention to Mosley's other

enumerated factors.    Here, assessing the facts in their entirety,

it is clear that Oquendo's right to cut off questioning was not

impinged.     Agent Torres, not Officer Rodríguez, conducted the

second interrogation.      Prior to commencing questioning, Agent

Torres also provided Oquendo -- both verbally and in writing --

with a restatement of his Miranda rights.    Moreover, the record is

devoid of any indication that Agent Torres intimidated, threatened,

or otherwise pressured Oquendo into offering a statement.        Cf.

Barone, 968 F.2d at 1384 ("[O]fficers repeatedly spoke to Barone

for the purpose of changing his mind, failed to provide new Miranda

warnings, applied pressure by emphasizing the danger he would face

in Boston if he did not cooperate, and took advantage of a long

delay in arraignment.").     Indeed, when Oquendo agreed to make a


                                 -11-
statement but asked that the scope of questioning be limited, it is

uncontested that Agent Torres fully abided by those boundaries.

            In sum, these facts support a finding that Oquendo

retained control over his ability to choose whether or not to

speak.     Therefore, we find no violation of his right to remain

silent. Nonetheless, this holding should not be read in any way to

imply our acceptance of police practices that give suspects only a

momentary respite after their refusal to make a statement.

Although the broader context here makes clear that Oquendo's right

to   cut    off   questioning         was   appropriately    preserved,     that

determination is fact dependent. Accordingly, our holding does not

eliminate the very real possibility that, in another case, serious

concerns may well arise when questioning resumes only twenty

minutes after an initial invocation of the right to remain silent.

            2. Right to Counsel

            Immediately after a suspect has invoked the right to

counsel, all questioning must cease until such counsel is provided.

Edwards v. Arizona, 451 U.S. 477, 485 (1981).                This request for

counsel must be clear and unambiguous. Davis v. United States, 512

U.S. 452, 459 (1994).           Where a request, marred by ambiguity or

equivocation, suggests only "that the suspect might be invoking the

right to counsel, our precedents do not require the cessation of

questioning."      Id.    Our test is objective, requiring that the

statement    be   such   that    "a    reasonable   police   officer   in   the


                                        -12-
circumstances would understand the statement to be a request for an

attorney."     Id.; Obershaw v. Lanman, 453 F.3d 56, 64 (1st Cir.

2006).

             Oquendo argues that his statement -- "I do not understand

this, my lawyer speaks" -- was "tantamount" to an invocation of the

right to counsel.         In concert with his earlier refusal to make a

statement, he continues, this request was "certainly unambiguous."

Finding the meaning and intent of Oquendo's statement to be less

than clear, we disagree.        By its express terms, "my lawyer speaks"

does not unequivocally demand assistance, request the lawyer's

presence, or otherwise clearly indicate an unwillingness to make a

statement absent presence of an attorney.            Cf. Obershaw, 453 F.3d

at 64-65 (concluding that the question "can I talk to a lawyer

first?" was an "inquir[y as to] whether [the suspect] could talk to

a lawyer" not an "assert[ion] that he in fact wanted to do so").

             Moreover, "when a suspect makes an ambiguous or equivocal

statement     it   will    often   be     good   police   practice   for   the

interviewing officers to clarify whether or not he actually wants

an attorney."      Davis, 512 U.S. at 461; see also Nom v. Spencer, 337

F.3d 112, 118 & n.5 (1st Cir. 2003).              In response to Oquendo's

statement that he did not understand, Agent Torres did not "ignore

his answer and forge ahead with questions." James v. Marshall, 322

F.3d 103, 109 (1st Cir. 2003).            Rather, Agent Torres asked what

Oquendo did not understand.        He then asked whether Oquendo was, in


                                        -13-
fact, willing to speak without a lawyer.      Oquendo answered in the

affirmative.    Only then did Agent Torres begin his interrogation.

Highly analogous facts have been characterized by our court as

"precisely the kind of 'good police practice' described . . . in

Davis."   Id.

           We need press no further; Oquendo did not invoke his

right to counsel in a manner sufficiently unambiguous and direct as

to require the cessation of questioning.      Agent Torres, confronted

with an ambiguous statement, sought clarification and continued

questioning only after Oquendo made clear that he was willing to

proceed without an attorney. This was not a violation of Oquendo's

right to counsel.

                            III. Conclusion

           Oquendo's motion to suppress was correctly denied; that

decision is now affirmed.

           Affirmed.




                                 -14-
