not knowing intelligent or voluntary no miranda requires a full understanding of those rights and this includes being clearly informed that he has a right to consult with an attorney and to have that attorney present with him during interrogation was informed of those rights at the beginning of the interrogation which is on d v d recording and but within the first three minutes of that interrogation mr agent  that i may have an attorney that's what it says and agent and on this responded yes you can have an attorney but now is when we can speak with you and is and that's a true statement because he had just ten seconds earlier handed in the waiver right so i watched the video in where he signs the waiver and he signs the waiver and then after he signs the waiver he says complete correct right that is like he needs to sign all of the little things says yes then he says do you understand he says yes he says now you're understanding them yes now he's already him signed waiver in handed the waiver back to the agent right but the waiver itself in that form the signature on it isn't enough to say it was knowing invalid waiver colloquy about his rights it's first read to him in spanish given in the form he reads through the form then they talk about how to sign it they have a brief little colloquy about the date is the twenty seventh is it the twenty ninth then he signs it then he asks if he's signing a correctly for three minutes they're going back and forth about signing the form he's read it even after that he sits in reads it again right i mean for folks who looked at marinda videos one having the video is obviously invaluable to their having a three minute colloquy about the way you're not saying yes because he didn't make any statements that were incriminating until after all of that happened and so in order for the government to prove a valid miranda way for the government has to prove that he was warned that he understood those warnings and then he gave an statement and the government can't meet that burden in this case because the warnings and under the totality of the circumstances were incorrect there is conflicting information about whether he could have an attorney present during interrogation or whether that was just the time for the agents to argument that he was not knowingly in voluntarily signing a waiver form when he signed the waiver form right by when or should you say earlier to my question was the knowing in the non knowing in nonvoluntary nature of this comes from the question after he signed it after he read it a second time and after he handed it back to the agent that's where it suddenly becomes unknowing and on volunteer involuntary so i am not agreeing that the signature was knowing invalid voluntary waiver of the miranda rights because he was instructed to sign this form and he did so without reading it in the video and it's only and that's after asking do you understand do you understand your miranda rights is different than do you wave them and that's what the signature on the for indicating but the waiver itself says he's doing the waiving right the waiver says i'm waving my miranda rights and it says at the top or that's the name of the form the whole reason to read it and sign it is because you're waving right but still signing that form has to be knowing involuntary and putting that all on the seconds in which he was handed the form to sign after the agent said do you understand that i need your signature on this form that does not under the totality of some consensus make a knowing and voluntary waiver especially when coupled with his actions immediately after that were to read the form that's what he did immediately after he signed it per the agent's instructions mr spends fifteen seconds trying rights arise prior to the waiver but i'm not familiar and i'm wondering if you have a case where something that is voluntary is waived becomes involuntary unknowing waiver by circumstances after the signature on the form so under burgas miranda the waiver doesn't happen until he talks and that doesn't happen until after he was instructed that now is the time we get to talk with you and so all of the circumstances leading up to that are part of this understanding of the windsor and then whether there is an uncoerced statement at the at the end of that when we speak with you and i believe that's the more significant part of this interaction between mr officer of the and the agent was the agents in complete and correct explanation of of those rights and then to follow that up by agent hernandez talking about the importance of speaking to to them right then because there would have been an opportunity to clarify mr agent hernandez's statement on during that time but instead  misinterpreted right and i believe that was clearly erroneous saying that wasn't a question certainly egypt hernandez understood it to be a question because he responded to that question with an answer and incorrect answer that incorrectly explained  s miranda rights is it your position that your client did not say the word the say at the end of his sentence whether it's a sentence or a question you know i believe he did he did say that word ok and that means it says yeah right says he's asked a question that the form says i get an attorney right and so that that's we're all in the same page that there's a there seems to be an error in the under five transcript and the district court found as a matter of fact s is correct about it so he says it's as i can have a lawyer i'm sorry i can have a lawyer it says which of course is true to form does say that and it's also true that we can speak to you now because you literally just signed a waiver and i mean there's nothing incorrect about the statement that the officer made right there is something incorrect because it certainly implies if not explicitly states that we get to speak with you now absent anything else and i understand your position to be that he had just signed a waiver but signing a waiver and gets not telling every butler is not enough there you have to look at the entire interaction and you have a twenty three year old mexican citizen who has never had any sort of criminal experience who is in this interrogation room with the agents and and he says he understands and they ask can you speak with you are you ok with that he says i am ok they tell him si form he signs the form and then you know maybe it took him a minute to think now i need to really understand what's going on and he takes the time to read that form and that was after he signed the waiver so i would argue that taking the time to be the form after you signed it indicates you did not understand what you were signing before you had actually read it i thought it was roger and it was written in spanish but not the waiver part he did not read it before he signed it he signed it then read it with a i mean the handed it to him he looked at it i mean i watched the video just like you did your thing he didn't read it but if it he read it it was very short it was not like the fifteen seconds he spent reading it after he signed a waiver if you read it he reads very faint right and given how long it took him to even sign his name on that form i would you know think that that indicates that he didn't fully read that form before sign of course the district court found that it's no involuntary right so you have a huge burden on appeal because you have to show that the finding of fact in the way that the district court understood the video is clearly erroneous so i disagree with that standard of proof i believe it is a mixed question  confusing and the fifth circuit found that that was not knowing waiver of it and then of course the briefs rely also on the eleventh circuit case of heart where the agent statement out on tuesday won't hurt you the eleventh circuit held was contradictory to the advisable and right that any statement you make ten be held against you and so in those cases the incriminating statements were excluded properly  the government focuses on us some fifth circuit cases do not osa and i believe so far be cockrell where there were statements by the agents that the defendants tried to say linked the right to some future point in time and the fifth circuit did not think that that up interest explanation of the right was contradictory to the right that's different than here we get to talk to you  now also those defendants had criminal experience it was not their first time in the justices some again taking the totality of the circumstances and they had been instructed i think both four times what their miranda rights were and in one case had actually  already given some waivers and and so that wasn't sufficient in those but that's different than our situation here young not criminally experienced individual living in who comes into a paso and is read his rights and then essentially an read them by the agents statement that he could have an attorney but now is when we get to talk with you and a right to maternity before you answer questions you have a right to an attorney during the interrogation and if you choose to answer any questions now you have the right to stop the interrogation  attorney after he reads them those rights on that d v d you can see them kind of leans in a little closer to the appellate and he's holding the form and he repeats that last statement and he makes it clear again if you choose to answer any questions now you so have the right to consult an attorney and do you understand and the appellant said yes so the agent gives him the form and ask him to sign and as he does that the other agent in the room says do you understand your rights we have a few questions for you is that ok and appellate responds yes i am ok and reading it and in fifteen seconds judge you referred to as quickly but the waiver is literally one sentence you know i understand these rights and i am willing to talk and answer questions without a lawyer that's what the waiver says you could read that in fifteen seconds and then he gives it to the agent and all he's handing the form back and nodding his head the agent says do you understand for the third time and he  i wanted to point out that i felt like it was twisted a little bit sometimes in her brief babble was said that the question to answer was yes she may have an attorney but right now is when we can speak with you he did not say that the agents get to speak with you now without an attorney present or that you get an attorney later in her brief i think on page seven applying for if she says that he was explained that he could have an attorney later on and that the agency said that they could speak with him without an attorney that is not what he said to be what he implied that the statement was you may have an attorney right now as we can speak with you and again there's no returning in the world right there's just the three of them so if he asked for an attorney the question is going to end that they can't talk to them until those attorney shows up so i don't think that that statement is incorrect or misleading well but i want the whole statement because he began his statement with the word yes you may have an attorney which is correct but then he says but right now it's when we can speak with you and you don't think that's at least misleading i don't think it's misleading in the sense that it contradicts the miranda warnings to make it invalid the waiver and the court's a just so we're going to get you to agree with me that when he says yes it sounds just like he's answering a question he says yes you may have an attorney and again i will not concede that obviously because the the difficult it was and i do think reasonable minds can differ on that i i am not i would not say it absolutely was a question but again i'm not sure really matters because if it was a question i think he did answer and he didn't answer in a way that directly contradicted his miranda rights and i do want to point out the day look it was a case it's very similar to defending argue that although he received problem render warnings the officers additional comments were confusing and the court said we can't accept the proposition that would have us ignore the acar warnings to focus only on the remark that appointing an attorney would take some time that's what was said there they said the effect of the mower and explanations were such that the defendant knew what he was giving up that reasoning is a political pull here that one repeated that after the repeated warnings that one statement is how would i get a lawyer how long would it take the agent says an appointed lawyer could take them could take months this court found that was misleading in fact it was deceptive the agent knew it was going to take m read to him fully in spanish he read the rights to himself he signed the waiver form the way reform said i am willing to answer questions without the presence of a lawyer his decision to answer th agent's questions was uncoerced he knew it could be repressed a lawyer at any time and as the court also found in its ruling he agreed to talk to the agents the totality of the circumstances dictate in this case that the waiver was valid case law supports it and i don't think there are any findings that the court made that can't get much clearer than that one and that an attorney is available during interrogation if you're asked that of course mr all rather was never asked that and so far this court found that that statement by the agent w deceptive and was deceptive but not to the point of invalidating the waiver in doing so and acknowledge that a deceptive comment by the agent that deprive someone of essential knowledge of those miranda rights would invalidate the raver waiver and that is what we have here because of the sequence of events and the agent's comments and answer to mr of one of those question about whether the rights meant to have an attorney if that's right you said yes right now is when we can speak with you and that certainly implies if not makes clear that they could talk to him regardless right there certainly excluding those statements here would serve the purpose of exclusionary role which is to make sure that the long foresman officers are following the law and and properly advise ing of people of miranda rights and knowingly make those waivers and and that did not happen here and so exclusion of that evidence is appropriate because even though the agent read him his rights he then unwritten those rights and those contradictory instructions didn't clearly inform mr over of his right to counsel interrogation and under these circumstances the government can't bear its burden and we ask that this court vacate and remove and with instructions to a district court to disregard that evidence or the stipulated facts at trial based solely on the confession there were other facts in the stipulation but the district court did not indicate in any ways any way that the other facts would have supported the guilt beyond a reasonable doubt and i don't believe  of the circumstantial evidence was that he had what was a car mechanic from waters going to a passer to buy a car pulled apart and couldn't name what car parts he was going to buy and then they found the drugs in the hidden compartment in the vehicle that he was driving on and so the district court relied on the statements that he made after this interaction with agents in order to find him