i guess i'll wait for the attorney i mean because i don't know what's happening like why or what and that's that's the statement you believe is the unequivocal it location what's wrong after that state that isn't the question here not to clarify but to make sure that when he says here's this and i've watched the tape and you know it's less than a forceful it's a sort of forceful statement he says ok i guess i'll wait for the attorney i mean cause i'm like i don't know what's happening like why or not why or what and the agent confronted with that statement says ok so you don't wish to talk to us and you're telling us that that's the violation of miranda yes your honor and i have two responses to that would understand the phrase i guess and an ordinary person knows that i guess is simply a polite perhaps deferential way of making a request so let me let me tell you so the understand my concern what troubles me about your position in this case is you get a statement like that in the agents then behave i think in a rather exemplary fashion decider case law for second they say ok so you don't want to talk to us because there's no i want to talk to you and they say well you can't unless you wave your right to an attorney and he says well can i stop and start they say sure and then they make him saw him the thing before so they don't follow up this with incriminating questions they follow it up with as you say clarification's so that our case will really prevent the agents from asking somebody who makes that story whether or not he really doesn't want to talk to yes your honor i think that the the relevant question is garcia or that the relevant cases garcia versus do you think the agent should have said at that point were done or should they have said are you invoking your miranda rights i think they should have said we're done and i think the most clear evidence here that the agents knew that mr estimate or gomez was invoking his rights was what agent madison said very right after the invocation so he said so you don't wish to speak with us tonight and i think if he had any distance uncertainty about what mr escobedo was thinking he would the agent would have said so do you want to talk to us or do you not but the fact that he assumed the answer to that question so you don't w that given that there was a miranda violation here the agent subjective it's an objective inquiry but we can look at how the agents responded to his indication to show us objectively a reasonable officer would have understood that he was invoking even you cancel what's interesting that i'm sure everybody has a different reaction but if i look at the transcript it seems a little bit equivocal when i looked at the tape it didn't seem equivocal at all and if you take out the words  even the transcript is pretty clear i'll wait for the attorney and then he gives a reason because i don't know what's happening which is the whole point of having an attorney so what do we make of the yes is that meaningful or not meaningful i think that so i agree with your honor that watching the d v d is important because i think reading it on a whole record comes out differently than if you actually watch what happens in person with respect to the i guess i think that applying the ordinary person standard it's simply a polite or deferential way of making a request and the best example i could come up with is if i were to go to a restaurant and there were a menu and i had two options there was chicken and ravioli and i told the waiter i guess i'll have the ravioli there would be no doubt in the waiters mind that i just ordered the ravioli he would put the anything about a lawyer he pivoted and he said so you don't want to you know you don't want to do you don't wish to speak to us tonight which is which is a separate issue he didn't say required to waive his rights plural but of course under miranda he had the right to have an attorney with him and continue with questioning him by conveying to mr estimate that he had to waive both rights in order to proceed with the interrogation that was misleading and this made clear that one of the suspects received two conflicting sets of warnings as mr escobedo did hear the written miranda preprinted form and then the agent's kind of extemporaneous advise all of the onus is another defended to have to sort out that confusion the onus is on the agent to have to clearly explain his right we ask you question about the tape that may be judging graber not if you differently what's our role as appellate judges with respect to the tape are we supposed to decide whether or not the district judge clearly errored in and finding that there wasn't an unequivocal invocation are we supposed to make some sort of did over finding looking at the events that we we think it's unequivocal that the with respect to the words that mr escovedo actually used this court would apply a clear air standard but then with respect to the legal question of whether those words constitute an ambiguous or if on a clinical indication this court would apply de novo review well it's above but that's not the question i asked my question is this we're looking at the tape so let's assume one paper i think this is and this is an equivocal invocation because he said i guess and then i look at the tape what's why roland looking at the tape the district judge looked at look if i found these words one equivocal i wouldn't have to look at the tape so let me just so for second that i think these words are a quick on their face but i want to make sure so now i look at the tape what role does the tape play in my decision i think your honor can consider the tape as if from as if it was first impression without and without regard to whether district georget judge's interpretation of it was no because this isn't a question of where the district court was making any kind of credibility findings  because the district judge is no better situation than we are to look at the tape but the district judge did look at the tape and made a determination from it so what what difference do we give to that i stand by my position that the district judge good morning your honor is emily kiefer for the united states the district court here properly denied as could be joe's motion to suppress statements and found no miranda violation had occurred so the question for us is whether or not he unequivocally asserted his right to counsel yes and there's there's really only two pieces of evidence on that there's the written there's the written words and there's a videotape yes the question is whether it was both unequivocal and unambiguous ok so my question is what do i do i just look at those two and make my own determination of whether it was unequivocal or invade us and if we were just words i would do that that's  that's you know it's a question of law now that the tape is involved what how does that how does that bear in my appellate review of what the judge found well i would answer you in two parts your honor i think that has before it the evidence that the district court had both written and oral and visual in terms of the tape and this is do novo review as my colleague mentioned however i think it is worth noting the very definition of everything says i want an attorney and then it explains exactly why because i don't understand what's happening to me which is precisely why people need an attorney in this situation so t what what do you just what's wrong with every day example that counsel get if i guess i'll have to check them you know i guess i'll wear the blue sweater today instead of the red sweater  what i have a couple of my own real world examples where i guess would be equivocal or ambiguous it can be but it isn't always and that's the problem and so certainly if you if you were asked to guess  you know what do you think that high temperature will be today and you're not familiar you say well i guess it might be eighty that's a guess that's a speculation but in this context where it may not be and in this context your honor i think it's really important to look at the full tape all of the biographical questioning that occurred between the agent and this defendant but in a case law says it's not and that's the problem nobody is contending that this was violated the fifth amendment because it was coercive the question is whether this is an interrogation that said if i did you right around my miranda should have ended when he said these words even if it was the world's most civil interrogation up to that point so and so let's start if you agree that if we took the words i guess out of his statement it would be an unequivocal i i don't think so your honor and i would like to know if he said i'll wait for the attorney and then said and then explained why i mean like i mean because i'm like i don't know what's happened yeah so if you just said i'll wait for the attorney would that be another qui the three part statement that the defendant made including the statement that i guess one has to look at it in its entirety so you have one of those i mean i'll break it down for you ok doesn't make any difference one way or the other correct i disagree and the reason that exactly why they couldn't there's a separate question and then he said ok yes i guess i guess i'll wait for an attorney because i don't know what's in the sense you're referring to the statement where he says are we going to have the questioning with the attorney here without the attorney yes in that way and then he says ok i'll wait for the attorney so i think that hurts your case doesn't i disagree your honor if you look at the entirety of what preceded this three part statement from the defendant the defendant has already shown himself in the context of being advised of his miranda rights very able to answer unequivocally yes nodding with his body his facial expressions his verbal statements he says yes when it comes down to the question do you wa point that are hard that really concern me when i listened to the to the radio and that is in the transcript this statement of the second sentence of the statement has a question mark at the end but i don't hear a question mark in this in this i don't hear it as a question or an uncertainty i hear him saying i don't know what's happening like why or what i don't hear it as a question and it's an explanation i think of why he wants to wait for the lawyer and i think that's one plausible interpretation of what the defendant said i don't think is the only one that's why go back to my first question it reviewing to then we decide what's plausible not t district judge wright i agree that if it's the only way to interpret what the defendant said no no that's not see that's that's the difficulty i'm having with this case if we engage and do novo review yes of whether this is and i bet you a statement whether it's a question we're statement and we don't give any differences strict judges finding that it was a question i agree with that what i would say though your honor is that to be ambiguous to be unambiguous the statement must be susceptible only one interpretation if the statement is susceptible to two interpretations even if one interpretation is better than the other then that means the statement is ambiguous and through the statement is susceptible to at least two interpretations the agent on the scene the district court below both interpreted it in a way that the defendant was equivocal when he was asking uncertain whether he was asking for counsel and then asking followup questions that's what i'm going to say th the agent didn't understand it when his direct his direct next question after the defendant said i'll wait for my attorney because i don't sense that because i don't know what's happening or what the agent says alright you don't you know wish to speak to us tonight he quite clearly understood that the guy was asking for an attorney otherwise he wouldn't have said so you don't wish to speak to us tonight and when he said that he and everything that follows there isn't the word attorney certain that was what the defendant wanted to do so my real world example of how i guess is ambiguous so for example even if you run the gamut of important questions to less important questions your spouse or partner asks you do you want to buy this house i guess i'll wait till we have money so you don't want to buy the house now it's a natural follow up colloquially we would understand that such a followup question would be appropriate in order to you know verify the wish to speak to us and the guy volunteers no i wish i want to talk to you the agent should've at that point it seems he said look let me go through this again let me give you the miranda warnings all again because you give me confusing answers and what that agent did  what the agent did here off script he was very careful in following this preprinted for when when we went off the preprinted form the agent colloquially says said to the defendant essentially this is what i'm trying to get an answer to the question with oh it's ok for the agent to be understood colloquially but not for the defendant that's really what you're telling us no your honor and i think that if the agent had done exactly what was done for example in the case of duckworth me even if the agent had said ok let's slow down you have the right to an attorney you have the right to remain silent and if the agent had said what was said in duckworth which was i have no way of providing you as an indigent defendant an attorney but one will be appointed to you if and when you go to court period do you wish to continue and speak with us there's no doubt that under the supreme court's precedent and duckworth b e in that what they age and did there would have been proper and what they do think that's totally different from what happened here  was an equivocation about whether he wanted to do that and when the agent then he's trying to return to the initial question he posed which is do you wish to speak with us without an attorney present with you and when he said that you wish to speak with us without an attorney present that wasn't the all right you know you don't wish to speak to us tonight and say without an attorney and this guy i mean like to waive your rights in the plural format and that the defendant understands that being asked that question he knows that his rights don't rise and fall together in fact this defendant pointed back to one of the rights that he retained and that particular right that he retained included the right to stop questioning at any time and the right to start questioning for purposes of consulting an attorney so he understood you have well exceeded your time and i think we understand you should thank you thank you you have a little bit of rebuttal time so i want to give the court some examples of similar indications that have been held to be clear i have three that i think are similar to mr a could be those use of the word i guess the first is  from a luna versus lemark which is actually a case that the government cited but the indication that was found to be clear was quote well it sounds pause the way it's going it sounds like i need a lawyer pause and i need help and this court held that that was a clear indication of the right to counsel similarly in smith vs and all this court held the following was clear at this point i think maybe you're looking at me as a suspect and i should talk to a lawyer are you looking at me as a suspect and then this court held the following was clear you know i'm scared now i think i should call an attorney so i if all of those indications are clear i don't think the i guess that mr escobedo use is any different in kind in terms of clarity the other point that i would point out is that when agent madison after mr escovedo invoked he said so you don't want to speak with us tonight and mr escobedo goes no i'll talk to you guys like and if you watch the video he kind of trails off and then he starts to look at the miranda form because i think what's problematic for you this has to be has to be unequivocal at the beginning because i don't find any difficulty in the subsequent advise if this was an if this was equivocal if i may answer the question i agree  that the main question is whether his invocation is equivocal but i think that the agent saying you have to waive your rights is problematic because perhaps the agency you know practical policy is we're not going to talk to someone once a lawyer out because we're just not going to  miranda requires the option of proceeding with interrogation already titled the defendant to be interrogated with a lawyer present it only entitles him to have a lawyer if the government wants to interrogate him so the government can surely take the position that with our suspect that they just caught with twenty pounds of heroin in his car we'd like to talk to you now you don't have to talk to us you want to get a lawyer we may not want to talk to you at all that's perfectly ok your client doesn't have a constitutional right to be interrogated that's not going to happen very often i know for guys the catch with twenty pounds of her went in their car i could see the agent saying look if you want to talk to us now that's fine but we've got you dead to rights and you want to order go get a lawyer we'll see you in court