                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                              December 17, 2012
                                    PUBLISH                  Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellant,
                                                       No. 11-1534
 v.

 MANUEL SANTISTEVAN,

       Defendant - Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. No. 08-CR-00113-WJM-1)


Patricia Davies, Assistant United States Attorney, (and John F. Walsh, United
States Attorney, on the briefs), Denver, Colorado, for Plaintiff - Appellant.

Michael Zwiebel of Springer and Steinberg, P.C., Denver, Colorado, for
Defendant - Appellee.


Before KELLY, SEYMOUR, and TYMKOVICH, Circuit Judges.


KELLY, Circuit Judge.


      The government appeals from an order of the district court granting

Defendant-Appellee Manuel Santistevan’s motion to suppress statements made

after invoking the right to counsel. Mr. Santistevan was indicted on three counts
of interference with commerce by robbery, 18 U.S.C. §§ 1951, 2, and using and

carrying a dangerous weapon during the commission of a violent crime, 18 U.S.C.

§§ 924(c), 2; possession of a firearm by a previously convicted felon, 18 U.S.C. §

922(g)(1); and possession of a short-barreled shotgun, 26 U.S.C. § 5861(d). The

district court held that Mr. Santistevan unambiguously invoked the right to

counsel when he gave an agent of the Federal Bureau of Investigation (“FBI”) a

letter from his attorney indicating that he did not wish to speak without counsel.

Because the agent continued to interrogate Mr. Santistevan, the district court

suppressed the incriminating statements that Mr. Santistevan subsequently made.

We have jurisdiction pursuant to 18 U.S.C. § 3731, and we affirm.



                                    Background

      In the summer of 2007, the FBI was investigating a series of robberies in

the Denver area. Aplt. App. 133–34. Mr. Santistevan became a suspect in these

robberies, and FBI Agent Eicher (“agent”) obtained a warrant for his arrest. Id. at

137. On August 30, 2007, Mr. Santistevan turned himself in on other, unrelated

charges that were pending in Jefferson County, Colorado. Id. at 141–42. The

agent went to the police department to meet with Mr. Santistevan, advised him of

his Miranda rights, and asked if he wanted to speak about the robberies. Id. at

141. Mr. Santistevan declined, and the interview ended. Id.

      Six days later, on September 5, 2007, the agent received a phone call from


                                        -2-
Mr. Santistevan’s girlfriend, Tiffani Bryan. Id. at 142. The agent knew of Ms.

Bryan because he had previously interviewed her about the robberies. Id. Ms.

Bryan told the agent that Mr. Santistevan wanted to speak with him, and asked if

he could meet Mr. Santistevan at the jail that night. Id. at 142–43. The agent

could hear Ms. Bryan speaking to someone else on another phone line, and

believed that this person was Mr. Santistevan. Id. Because it was late at night,

he told Ms. Bryan that he would visit Mr. Santistevan the next morning. Id. at

143.

       The following morning, while traveling to the jail, the agent received a

phone call from Katherine Spengler, a public defender (“attorney”). Id. at

144–45. The attorney advised him that she represented Mr. Santistevan, had

spoken with him that morning, and that he did not wish to speak. Id. The agent

informed the attorney of his conversation with Ms. Bryan the previous night and

indicated that he intended to visit Mr. Santistevan to “ask him directly if he

wanted to make any statements or answer my questions.” Id. at 145. The

attorney responded that she had given Mr. Santistevan a letter to give to the agent

if he went to the jail. Id.

       When the agent arrived at the jail, he told Mr. Santistevan that he had

spoken to an attorney who claimed to represent him and asked if he had a letter.

Id. at 145–46. Mr. Santistevan handed him the following letter:

       9/6/2007


                                         -3-
      Agent Icker [sic]:

      My name is Katherine Spengler. We spoke last week. I have been in
      touch with Sue Fisher from the Federal Public Defender’s Office. At
      this point, Mr. Santistevan does not wish to speak with you without
      counsel. However, he is not foreclosing that option in the future. I
      am sorry you have wasted your time. I do have some questions for
      you. Please contact me at (303) 279-7841, ext. 1375.

      Sincerely,

      Katherine Spengler
      Department of the State Public Defender 1

Id. at 114. The agent read, photocopied, and returned the letter to Mr.

Santistevan. Id. at 146. He then initiated the following conversation:

      Agent: You have been advised by an attorney not to talk to me today,
      but it’s totally up to you on whether you want to talk to me or not.
      Do you want to come back to my office and answer questions about
      these robberies?

      Mr. Santistevan: Yes.

      Agent: Are you sure, without a lawyer present?

      Mr. Santistevan: Yes, I want to.

Id. As a result, he brought Mr. Santistevan to the FBI offices. Id.

      Upon arrival, the agent placed Mr. Santistevan in an interview room and

turned on the video recorder. 2 Id. at 148. He first allowed Mr. Santistevan to



      1
         The actual letter was not admitted into evidence at the suppression
hearing. We include the letter as the district court did in its opinion, only
correcting the spelling of attorney Spengler’s name.
      2
          We reviewed the video, but find its contents irrelevant to our analysis.

                                         -4-
spend one hour with Ms. Bryan and his mother. Id. Then, before beginning the

interview, he had Mr. Santistevan review a Miranda rights form. Id. at 150. Mr.

Santistevan read the form out loud, stated that he understood his rights, and

signed the waiver. Id. at 151–52. Over the next three hours, Mr. Santistevan

made incriminating statements with respect to two robberies. Id. at 158.

Thereafter, the government filed an indictment on March 11, 2008, and a

superceding indictment on November 3, 2010. Id. at 3, 14–20.

      On January 26, 2011, Mr. Santistevan filed a motion to suppress statements

made during the interview. Id. at 23–24. The district court held an evidentiary

hearing at which the agent testified. Id. at 130–90. The court ordered

supplemental briefing on new issues that were raised by the evidence. Id. at

12–13. In his supplemental brief, Mr. Santistevan argued that the agent violated

his Miranda rights in three ways: (1) by questioning him after he invoked his right

to silence at the time of his arrest; (2) by questioning him after his attorney told

the agent that he did not wish to speak; and (3) by continuing to question him

after he handed the agent a letter stating that he did not wish to be questioned

without an attorney present. Id. at 101–11. The district court rejected Mr.

Santistevan’s first two arguments, but agreed with the third. Specifically, the

district court found that (1) through his girlfriend, Mr. Santistevan had reinitiated

contact with the agent after previously invoking his right to silence; (2) the

attorney’s phone call to the agent did not invoke Mr. Santistevan’s Miranda


                                         -5-
rights; and (3) Mr. Santistevan unambiguously invoked the right to counsel by

handing the letter to the agent. Id. at 112–29. The court also determined that Mr.

Santistevan was subject to a custodial interrogation when he invoked the right to

counsel, and that the later waiver of his Miranda rights was invalid. Id. at

124–25.



                                     Discussion

      On appeal, the government raises two arguments: (1) Mr. Santistevan did

not unequivocally invoke the right to counsel by handing the letter drafted by his

attorney to the agent; and (2) Mr. Santistevan was not in custody when he handed

the letter to the agent. Aplt. Open. Br. 9–11. On its second point, the

government requests that we remand to the district court to more fully develop the

record. Id. at 11.

      Upon review of an order granting a motion to suppress, we accept the

district court’s factual findings unless clearly erroneous, viewing the evidence in

the light most favorable to the district court. United States v. Cook, 599 F.3d

1208, 1213 (10th Cir. 2010). We review factual findings regarding the words a

defendant used to invoke the right to counsel for clear error. United States v.

Brown, 287 F.3d 965, 971 (10th Cir. 2002). “Whether those words actually

invoked the right to counsel is a legal determination, reviewed de novo.” Id.

(citation and quotation marks omitted).


                                          -6-
      In Edwards v. Arizona, 451 U.S. 477, 484–85 (1981), the Supreme Court

established a bright-line rule that when a suspect has “expressed his desire to deal

with the police only through counsel, [he] is not subject to further interrogation

by the authorities until counsel has been made available,” unless he initiates the

contact. The Court revisited Edwards in Davis v. United States, 512 U.S. 452,

459 (1994), and clarified that a “suspect must unambiguously request counsel.”

The Court explained that “this is an objective inquiry[;]” a suspect “must

articulate his desire to have counsel present sufficiently clearly that a reasonable

police officer in the circumstances would understand the statement to be a request

for an attorney.” Id. Absent this “level of clarity, Edwards does not require that

the officers stop questioning the suspect.” Id. However, when the statement is

clear, all questioning must stop; this bright-line rule “preserve[s] the integrity of

an accused’s choice to communicate with police only through counsel, by

preventing police from badgering a defendant into waiving his previously asserted

Miranda rights.” Maryland v. Shatzer, 130 S. Ct. 1213, 1220 (2010) (citations

and internal quotation marks omitted).

      The district court made two factual findings that are relevant to our inquiry.

First, the court found that the text of the letter “could not be any clearer; it stated

‘Mr. Santistevan does not wish to speak with you without counsel.’” Aplt. App.

126. We agree with the district court, and find this language to be the “level of

clarity” that Davis requires. See Davis, 512 U.S. at 459. Second, the district


                                          -7-
court found that Mr. Santistevan “simply handed the letter” to the agent, and “by

so doing ratified the contents of that letter as his own personal communication to

the [a]gent.” Aplt. App. 127. Reviewing for clear error, we do not believe that

the district court clearly erred in reaching this conclusion. Like the district court,

we find it relevant that Mr. Santistevan did not “dissociate[] himself from the

contents of the letter. . . . [or] volunteer[] that despite the statement in the letter,

he did, in fact, wish to be questioned.” Id. at 126. As a result, we agree that Mr.

Santistevan’s act of handing the letter drafted by his attorney to the agent was an

unambiguous invocation of the right to counsel.

       The government urges us to reach a different conclusion by emphasizing

that (1) Mr. Santistevan only presented the letter to the agent after being asked for

it, and (2) Mr. Santistevan never asserted that he agreed with the contents of the

letter. Aplt. Open. Br. 15. We are not persuaded. First, we find it irrelevant that

the agent asked for the letter. At the suppression hearing, the agent testified that

“[w]hen [he] arrived at the jail . . . . [he] asked if [Mr. Santistevan] had a letter . .

. .” Aplt. App. 145–46. Mr. Santistevan did not forfeit his right to counsel just

because the agent happened to speak first. Second, we do not believe that the

Edwards bright-line rule places an additional burden on the suspect to specifically

clarify that he intends to invoke the right to counsel. Rather, once the suspect

unambiguously invokes the right to counsel—as Mr. Santistevan did here by

giving the letter to the agent—all questioning must stop.


                                           -8-
      We also find the government’s reference to Moran v. Burbine, 475 U.S. 412

(1986), unpersuasive. See Aplt. Reply Br. 4. In Burbine, the Supreme Court

explained that only a defendant, and not an attorney, can invoke a defendant’s

Fifth Amendment rights. 475 U.S. at 433 n.4. However, we do not find Burbine

dispositive because, in this case, the attorney did not just tell the agent that Mr.

Santistevan did not wish to speak. 3 Rather, Mr. Santistevan himself told the agent

that he did not wish to speak when he gave the letter to the agent and adopted its

contents. Again, this clear act invoked Mr. Santistevan’s right to counsel.

      In the alternative, the government argues that, even if Mr. Santistevan

invoked the right to counsel, the invocation was at best equivocal because Mr.

Santistevan had requested to meet with the agent the previous night. 4 Aplt. Open.

Br. 15. In support of this argument, the government cites our decision in Brown,

287 F.3d at 972–73, where we found that a defendant did not unequivocally

invoke the right to counsel when he stated simultaneously that he wanted to

answer questions without a lawyer present, wanted a lawyer, and wanted to talk to



      3
        The district court found that the attorney’s phone call to the agent did not
invoke Mr. Santistevan’s right to counsel. Aplt. App. 120–122. Because we find
that Mr. Santistevan himself invoked the right to counsel, we need not address
this point.
      4
         We note that Ms. Bryan, and not Mr. Santistevan, spoke with the agent.
The district court found that this conversation reinitiated contact for Mr.
Santistevan. Aplt. App. 117–20. Because we find that Mr. Santistevan’s later
act—handing the letter to the agent—invoked the right to counsel, we need not
reach this point and express no opinion on the dissent’s view of it.

                                          -9-
a lawyer. Aplt. Open. Br. 15–16 (emphasis added). Yet, the government’s own

choice of the word “simultaneously” is telling. Unlike the defendant in Brown,

Mr. Santistevan did not simultaneously convey contradictory intentions. Rather,

in giving the letter to the agent, his message was clear—he did not wish to speak

without counsel present. Whatever discrepancy there may have been between Mr.

Santistevan’s intentions the previous night and that morning, this situation is a far

cry from a defendant’s ambiguity within the same sentence. Cf. Valdez v. Ward,

219 F.3d 1222, 1232 (10th Cir. 2000) (on habeas review, finding “Yes, I

understand it a little bit and I sign it because I understand it something about a

lawyer and he want to ask me questions and that’s what I’m looking for a lawyer”

equivocal). We thus conclude that Mr. Santistevan unambiguously invoked the

right to counsel when he gave the letter drafted by his attorney to the agent.

      In so holding, we note that it would be unfair to penalize Mr. Santistevan

for changing his mind about speaking with the agent. It is well settled that a

defendant, who has previously invoked the right to counsel, may change his mind

and speak with police so long as the defendant “(a) initiated further discussions

with the police, and (b) knowingly and intelligently waived the right he had

invoked.” Smith v. Illinois, 469 U.S. 91, 95 (1984) (citing Edwards, 451 U.S. at

485, 486 n.9); see United States v. Johnson, 42 F.3d 1312, 1318 (10th Cir. 1994)

(finding that a defendant waived his Fifth Amendment right to silence after

reinitiating conversation with the police); United States v. Comosona, 848 F.2d


                                        - 10 -
1110, 1113 (10th Cir. 1988) (same). If a defendant can change his mind to speak

with police, it is only fair to allow him to do the opposite.

      The government also challenges the district court’s finding that Mr.

Santistevan was subject to a custodial interrogation. Here, the government asks

that we remand to more fully develop the record. We disagree that a remand is

necessary. Instead, we find that Mr. Santistevan was subject to a custodial

interrogation. The “Miranda-Edwards right to counsel prophylaxis” requires

“both a custodial situation and official interrogation.” United States v. Bautista,

145 F.3d 1140, 1147 (10th Cir. 1998). Like the district court, we find our

decision in United States v. Kelsey, 951 F.2d 1196 (10th Cir. 1991), instructive.

In Kelsey, the defendant, who had just been arrested, requested counsel before the

police began to question him and before he was read his Miranda rights. Id. at

1198. Nonetheless, we found that the defendant was subject to a custodial

interrogation because “the police intended to question [the defendant] at some

point” in the near future. Id. at 1199. Here, Mr. Santistevan, who was also under

arrest and in fact held in custody, knew that the agent was there to ask him

questions. Therefore, interrogation was imminent, Mr. Santistevan could properly

invoke his right to counsel, and to reiterate, he did so in an unequivocal manner

when he handed the letter drafted by his attorney to the agent.

      The dissent suggests that Mr. Santistevan’s act of handing over the letter

while remaining silent, in light of the agent’s questioning, “created an


                                         - 11 -
ambiguity.” According to the dissent, Mr. Santistevan then needed to do

more—or specifically, say more—to invoke his Miranda rights. This “no” means

“maybe” approach is a recipe for ambiguity in every case and places too high a

burden on a defendant to invoke counsel. The suggestion that a defendant must

then explain his effort to invoke counsel at a suppression hearing compounds the

problem. The government has the burden of proof and it is difficult to imagine

competent defense counsel advising a client to testify in such circumstances, even

given possible application of Rule 104(d). All that is required is that a defendant

make an unambiguous request, sufficiently clear that a reasonable police officer

understands it to be a request for counsel. Davis, 512 U.S. at 459. It does not

require that a defendant, once making this invocation, further clarify his

intentions.

      The dissent also warns that our holding instructs law enforcement officers

on how to get around Miranda by teaching them what questions to ask when they

know a defendant has a letter from counsel. We would like to think that law

enforcement officers act in good faith. Here the agent was plainly aware of the

position of counsel and client. Regardless, it is our responsibility to apply the

teachings of the Supreme Court given the facts before us.

      AFFIRMED. The government’s motion to withdraw its prior motion to

correct its reply brief is GRANTED.




                                        - 12 -
United States v. Santistevan, 11-1534

TYMKOVICH, J., dissenting.



      The question in this appeal is whether Santistevan properly invoked his

right to counsel. The facts are undisputed. Upon arriving at the jail, Agent

Eicher asked, “Do you have a letter in your possession?” In response, Santistevan

handed over a letter written by his attorney. The letter reported the attorney’s

understanding that Santistevan did not want to speak to law enforcement in the

absence of an attorney. But Santistevan said nothing to Agent Eicher regarding

whether his attorney’s letter accurately reflected his own wishes. Agent Eicher

then asked a clarifying question—“You have been advised by an attorney not to

talk to me today, but it’s totally up to you on whether you want to talk to me or

not. Do you want to come back to my office and answer questions about these

robberies?”—and in response Santistevan stated he wanted to speak to authorities.

In my view, Agent Eicher properly respected Santistevan’s constitutional right to

counsel, and Santistevan properly exercised his right to waive counsel and speak

to police. I therefore dissent.

      The majority concludes Santistevan’s failure to speak when handing over

the letter amounted to a clear and unequivocal invocation of the right to counsel.

But I believe the only conclusion we can draw is that Santistevan’s silence,

especially in light of the question Eicher asked, created an ambiguity. In the face

of such ambiguity, a police officer had no duty to cease questioning. At a
minimum, the officer could permissibly ask clarifying questions, as Eicher did.

Santistevan responded to those clarifying questions by knowingly and

intelligently waiving his right to counsel. Accordingly, I would reverse the

district court’s suppression order.

                                          I.

      No one disputes that Santistevan invoked his right to remain silent when

Agent Eicher first arrested Santistevan. In such a situation, “the interrogation

must cease,” Miranda v. Arizona, 384 U.S. 436, 474 (1966)—as it did here—and

the police may not attempt to continue questioning the suspect unless:

      (1) at the time the defendant invoked his right to remain silent, the
      questioning ceased; (2) a substantial interval passed before the
      second interrogation; (3) the defendant was given a fresh set of
      Miranda warnings; and (4) the subject of the second interrogation
      [is] unrelated to the first.

Michigan v. Mosley, 423 U.S. 96, 104–05 (1975).

      But the Mosley test “is inapplicable . . . if the suspect, and not the police,

reinitiates contact and agrees to questioning.” United States v. Alexander, 447

F.3d 1290, 1294 (10th Cir. 2006). This exception traces back to Edwards v.

Arizona, 451 U.S. 477 (1981), where the Supreme Court held that police must

stop questioning a suspect who invokes his Miranda rights unless “the [suspect]

himself initiates further communication, exchanges, or conversations with the




                                        -2-
police.” Id. at 485. 1

       Given that the majority upheld the district court’s suppression order based

on Santistevan’s act of handing his attorney’s letter to Agent Eicher, the majority

does not address the third-party reinitiation question because the result would be

the same (suppression) whether or not the majority disagrees with the district

court’s holding on third-party reinitiation. Maj. Op. at 9 n.4. Because I disagree

with the majority on the significance of Santistevan’s attorney’s letter, I reach the

third-party reinitiation question, and I would affirm the district court in that

respect.

       The circuits that have reviewed the issue agree that Edwards permits a

suspect to reinitiate contact through a third party. The most elaborate discussion

is in Van Hook v. Anderson, 488 F.3d 411 (6th Cir. 2007) (en banc), cert. denied,

552 U.S. 1023 (2007), which held that “[w]hen the police receive information that

a suspect wants to talk; when there is a sufficient basis for believing its validity;

and when the police confirm with the suspect the validity of that information,”

then “the suspect has adequately evinced a willingness and a desire to talk with

them,” id. at 424–25.

       1
        Edwards focused on the right to counsel rather than the right to remain
silent. It also involved a suspect who had waived his rights and then reasserted
them. Nonetheless, we have applied Edwards’s reinitiation exception to
right-to-silence cases, including cases where the suspect had not previously
waived his rights. See Alexander, 447 F.3d at 1294; United States v. Glover, 104
F.3d 1570, 1580–81 (10th Cir. 1997), abrogated on other grounds by Corley v.
United States, 556 U.S. 303 (2009).

                                         -3-
      Other circuits have similarly concluded that Edwards accommodates third-

party reinitiation, or at least (on habeas review) that admitting a confession

obtained through such circumstances is not contrary to clearly established law.

See Owens v. Bowersox, 290 F.3d 960 (8th Cir. 2002), cert. denied, 537 U.S.

1035 (2002); United States v. Michaud, 268 F.3d 728 (9th Cir. 2001), cert.

denied, 537 U.S. 867 (2002); United States v. Gonzalez, 183 F.3d 1315 (11th Cir.

1999), cert. denied, 528 U.S. 1144 (2000), abrogated on other grounds as

recognized in United States v. Diaz, 248 F.3d 1065 (11th Cir. 2001).

      Relying on the logic of these decisions, the district court concluded that

third-party reinitiation in Santistevan’s case was appropriate. I agree with this

conclusion. In particular, I would hold that third-party reinitiation raises no

Miranda problems in the circumstances here. Given that Eicher was not working

with Santistevan’s girlfriend to obtain Santistevan’s consent to questioning, and

that Eicher received sufficiently reliable information through the girlfriend that

Santistevan wished to talk, Eicher appropriately returned to the jail with the intent

to resume questioning.

      Before moving to the primary question here, I also would affirm the district

court’s conclusion that the suspect must personally invoke his right to counsel in

these circumstances. See, e.g., United States v. Muick, 167 F.3d 1162, 1166 (7th

Cir. 1999) (holding that “the [suspect’s] attorney’s letter and phone call [to police

stating that his client would not talk without a lawyer] were insufficient to invoke


                                         -4-
the Miranda right to counsel. Only [the suspect] could invoke his Miranda right

to counsel.” (citations omitted)); State v. Hanson, 401 N.W.2d 771, 778 (Wis.

1987) (holding that a letter written from the suspect’s attorney to police

instructing them not to talk with the suspect without the attorney present did not

suffice to invoke the suspect’s Miranda rights: “no one but the accused can make

the decision to make a statement to the police or to ask for the assistance of

counsel in making his decision”). 2 In particular, Santistevan’s attorney could not

invoke his right to counsel as she spoke with Agent Eicher over the phone.

      Although attorneys generally speak for their clients, they do not necessarily

do so in this context, and for sound reasons. Our justice system has no interest in

establishing unnecessary barriers to cooperation with and confession to the police.

See, e.g., Minnick v. Mississippi, 498 U.S. 146, 155 (1990) (“Both waiver of

rights and admission of guilt are consistent with the affirmation of individual

responsibility that is a principle of the criminal justice system.”). We can safely

assume, however, that if attorneys may speak for their clients on the question of

whether to invoke Fifth Amendment rights, lawyers will—out of understandable

      2
        A few cases are to the contrary, but they are not persuasive. See United
States v. Johnson, 752 F.2d 206, 211 n.3 (6th Cir. 1985) (“Although that privilege
is personal to the client, it can be invoked on the client’s behalf by the attorney.”
(citations omitted)); Bigby v. INS, 21 F.3d 1059, 1063 (11th Cir. 1994) (“on the
particular facts of this case—i.e., when an attorney invokes the Fifth Amendment
on his client’s behalf, the questioning party does not contemporaneously
challenge the manner in which the privilege was raised, and all present including
the presiding judge assume the privilege has been invoked—the invocation of the
privilege is effective”).

                                         -5-
caution—nearly always invoke those rights. This would unnecessarily frustrate

the police’s legitimate desire to seek cooperation.

      Exceptions might exist for suspects who are somehow incapable of

communicating their desire for counsel, but that is not this case. Santistevan had

no incapacity that prevented him from communicating his desire for an attorney

directly to Eicher. Exceptions might also exist where everyone involved simply

understands that the attorney is reporting the client’s decision to invoke his right

to counsel rather than making the decision for the client. Cf. Brewer v. Williams,

430 U.S. 387, 404 (1977) (upholding district court’s conclusion that suspect had

not waived his Sixth Amendment right to counsel given his constant interaction

with his attorneys and their subsequent insistence to the police that they should

not question the suspect); Bigby, 21 F.3d at 1063 (upholding attorney-invoked

right to silence where “the questioning party [did] not contemporaneously

challenge the manner in which the privilege was raised, and all present including

the presiding judge assume[d] the privilege ha[d] been invoked”).

      But the distinction between reporting a client’s decision and invoking on

the client’s behalf creates the potential for ambiguity from the police’s

perspective. The Supreme Court over the last twenty years has consistently

chosen not to place the burden of ambiguity on the police. See, e.g., Berghuis v.

Thompkins, 130 S. Ct. 2250, 2260 (2010) (holding that a suspect “who wants to

invoke his or her right to remain silent [must] do so unambiguously”); Davis v.


                                         -6-
United States, 512 U.S. 452, 459 (1994) (holding that Edwards does not require

the police to cease questioning unless “the suspect . . . unambiguously request[s]

counsel”).

      At a minimum, then, if there exists a distinction between reporting a

suspect’s decision and invoking on the suspect’s behalf, the police should be

permitted to ask the suspect directly whether the lawyer accurately reported the

suspect’s decision. This is what Eicher did when he eventually arrived at the jail

and inquired regarding Santistevan’s intentions.

      Accordingly, no matter how we look at Santistevan’s situation, his

attorney’s phone call to Eicher as Eicher drove to the jail did not invoke his Fifth

Amendment right to counsel.

                                         II.

      Turning to whether Santistevan’s act of handing his lawyer’s letter to

Eicher at the jail invoked his right to counsel, I agree we start with Davis v.

United States.

      In Davis, the Supreme Court announced that equivocal or ambiguous

invocations of the right to counsel do not trigger the Edwards rule. Rather, the

suspect must “articulate his desire to have counsel present sufficiently clearly that

a reasonable police officer in the circumstances would understand the statement to

be a request for an attorney.” 512 U.S. at 459. “But if a suspect makes a

reference to an attorney that is ambiguous or equivocal in that a reasonable


                                         -7-
officer in light of the circumstances would have understood only that the suspect

might be invoking the right to counsel,” the police may continue questioning. Id.

(emphasis in original).

      Thus, the question here is whether Santistevan unambiguously requested

counsel. “When reviewing an invocation of the right to counsel, specifically, we

review for clear error the district court’s factual findings concerning the words a

defendant used in invoking the right to counsel. Whether those words actually

invoked the right to counsel is a legal determination, reviewed de novo.” United

States v. Zamora, 222 F.3d 756, 765 (10th Cir. 2000) (internal quotation marks

omitted).

      It bears repeating here the entire portion of Agent Eicher’s testimony on

which the district court based its conclusion that Santistevan had unambiguously

requested counsel:

            Q.     So after speaking to [Santistevan’s defense attorney on
      the way to the jail], you proceeded to the jail?

             A.      That’s correct, I did.

             Q.      Okay. And then did you speak with Mr. Santistevan?

            A.     I did. When I arrived at the jail I advised Mr.
      Santistevan that I had talked to an attorney that claimed to be
      representing him. And I asked if he had a letter in his possession.
      And he did, and he handed me the letter. I read the letter. I made a
      photocopy at that point, gave the letter back to Mr. Santistevan.

            Then I asked Mr. Santistevan, I said: You have been advised
      by an attorney not to talk to me today, but it’s totally up to you on


                                          -8-
      whether you want to talk to me or not. Do you want to come back to
      my office and answer questions about these robberies?

             And he said, Yes, he did.

             And I said: Are you sure, without a lawyer present?

             And he said: Yes, I want to.

             So then we transported him back to [Eicher’s office].

App. 145–46.

      Santistevan could have testified to his own side of the story without

waiving his Fifth Amendment rights. See Fed. R. Evid. 104(d) (“By testifying on

a preliminary question, a defendant in a criminal case does not become subject to

cross-examination on other issues in the case.”); cf. Simmons v. United States,

390 U.S. 377, 394 (1968) (“when a defendant testifies in support of a motion to

suppress evidence on Fourth Amendment grounds, his testimony may not

thereafter be admitted against him at trial on the issue of guilt unless he makes no

objection”). But Santistevan put on no evidence of any kind at the suppression

hearing. Accordingly, this testimony from Eicher is the sum total of evidence

from which to conclude whether Santistevan invoked his right to counsel. 3

      The district court reasoned as follows to conclude that Santistevan’s act of

handing his attorney’s letter to Eicher unambiguously invoked the right to

counsel:

      3
        I would remand to the district court for further development of the record
on the question of whether a custodial interrogation took place at this time.

                                         -9-
      The Court finds that, by handing attorney Spangler’s letter to Agent
      Eicher, Defendant affirmatively and unequivocally invoked his right
      to counsel. Defendant could have declined to present Agent Eicher
      the letter or could have told the Agent that he dissociated himself
      from the contents of the letter. Defendant also could have
      volunteered that despite the statement in the letter, he did, in fact,
      wish to be questioned. However, Defendant did none of those
      things. He simply handed the letter—which clearly stated that he did
      not wish to speak with Agent Eicher without his attorney present—to
      Agent Eicher, and by so doing ratified the contents of that letter as
      his own personal communication to the Agent.

App. __ -__ [District Court ECF #172 at 15-16].

      The district court based its conclusion entirely on what Santistevan could

have said but did not when he handed the letter to Eicher. For multiple reasons,

this is insufficient to conclude that Santistevan invoked his right to counsel.

First, the district court’s analysis loses track of the overarching question: whether

Santistevan “articulate[d] his desire to have counsel present sufficiently clearly

that a reasonable police officer in the circumstances would understand the

statement to be a request for an attorney,” rather than “mak[ing] a reference to an

attorney that is ambiguous or equivocal in that a reasonable officer in light of the

circumstances would have understood only that the suspect might be invoking the

right to counsel.” Davis, 512 U.S. at 459 (emphasis in original). When placed in

the light of this standard, the district court’s analysis necessarily implies that a

reasonable police officer under the circumstances would have taken Santistevan’s

silence as unequivocal or unambiguous because of what Santistevan might have

said at that point.


                                         - 10 -
      But silence cuts in many directions. Santistevan indeed could have

“dissociated himself from the contents of the letter,” App. at 126, and he also

could have endorsed its contents; he “could have volunteered that despite the

statement in the letter, he did, in fact, wish to be questioned,” Id., and he could

have volunteered that his attorney’s words accurately reflected his current wishes.

But he “did none of those things. He simply handed the letter . . . .” Id.

      It is difficult to see how that amounts to an unambiguous assertion of the

right to counsel. It is especially difficult to see how a reasonable police officer is

supposed to know that the inference to be drawn from the suspect’s failure to

disapprove the letter (ratification) somehow unequivocally overpowers any

inference to be drawn from the suspect’s failure to endorse the letter

(disagreement).

      At best, then, under the facts here the act of handing over the letter and

remaining silent created competing inferences—the very definition of an

ambiguous situation. The ambiguity is deepened in the context of Agent Eicher’s

uncontested account about the reason why Santistevan handed Eicher the letter.

Santistevan did not hand over the letter in response to a question regarding

whether he wanted counsel. Rather, said Eicher, “When I arrived at the jail I

advised Mr. Santistevan that I had talked to an attorney that claimed to be

representing him. And I asked if he had a letter in his possession. And he did,

and he handed me the letter.” App. 145–46. I disagree with the district court’s


                                         - 11 -
conclusion that handing over a letter in response to a request to see the letter is

the unequivocal invocation Davis requires.

      The majority avoids the effect of Eicher’s first question by characterizing it

as an “irrelevant” question of happenstance: “Mr. Santistevan did not forfeit his

right to counsel just because the agent happened to speak first.” Maj. Op. at 8.

But imagine if Eicher’s first words had instead been, “Do you want a lawyer

before you talk to me?” I doubt the majority would cast aside those words as

irrelevant to the question of equivocation.

      Our task is to decide whether Santistevan’s conduct—which in this case

turned out to be the act of handing over a letter while remaining silent—sufficed

to invoke his right to counsel. Surely the question to which a suspect’s conduct

responded is relevant to that task.

      Given these circumstances, under the majority’s approach, the takeaway is

this: law enforcement officers who learn about a letter from an attorney should

first secure the suspect’s Miranda waiver before asking to see the letter—or better

yet, not ask for the letter at all, thus preventing the supposedly unambiguous act

of handing over a letter from ever happening. Accordingly, in upholding

Santistevan’s Fifth Amendment rights here, the majority opinion implicitly

demonstrates how law enforcement officers in similar situations can easily get

around those rights.




                                         - 12 -
      But returning to the central question here—whether Santistevan

unambiguously invoked his right to counsel—the answer is no. A reasonable

officer could question whether the act of handing over the letter in response to a

request to see the letter is meant to invoke the right to counsel. Thus, under the

Davis and Edwards standards, Eicher had no duty to cease questioning.

Accordingly, I would reverse the suppression order.




                                        - 13 -
