* District Judge of the Western District of Louisiana,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-2631

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERMAN CRUZ, JOSE HELI-MEJIA and DAVID RAMOS,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Texas

(May 18, 1994)

Before KING and WIENER, Circuit Judges, and DOHERTY, * District Judge.

PER CURIAM:

Defendants-Appellants David Ramos, Jose Heli-Mejia, and German

Cruz appeal their convictions for conspiracy to possess with intent

to distribute cocaine i n violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), 846; and aiding and abetting the possession with intent

to distribute cocaine in viol ation of 21 U.S.C. § 841(a)(1),1 Cruz, Ramos, and Heli-Mejia all challenge the sufficiency

of the evidence. Cruz challenges the admission of certain inculpatory statements as violative of his Fifth and Sixth Amendment rights to counsel. Cruz also challenges the district court's refusal to declare a mistrial on the basis of testimony elicited from a government agent on cross-examination. Ramos challenges the restriction of the scope of his cross-examination. Heli-Mejia challenges the denial of his requests for disclosure of evidence held by the government, and the district court's finding that he was a manager or supervisor of criminal activityfor purposes of the sentencing guidelines. Both Ramos and HeliMejia challenge the admittance of evidence of extraneous acts.

2 384 U.S. 436 (1966).

2 (b)(1)(A), and 18 U.S.C. § 2. After carefully considering the

facts and legal arguments advanced by counsel in their briefs to

t his court and in their oral arguments to this panel, and having

reviewed the record from the district court, we conclude that the

m ajority of the cited points of error 1 )) while not necessa rily

frivolous )) lack sufficient f a ctual and legal substance to justify

reversal of Defendants-Appellants' convictions. Whether Cruz's

right to c ounsel was violated, however, merits more discussion.

We, therefore, confine our factual review and l egal analysis in

this opinion to that issue.

I.

FACTS AND PROCEEDINGS

Cruz was arrested by Drug Enforceme nt Administration (DEA)

agents after an indictment was returned charging him with

complicity in a cocaine conspiracy. Cruz was promptly given

Miranda 2 warnings; however, as Cruz was not proficient in English,

the agents employed Cruz's w ife as an interpreter. Cruz had no

questions and d id not request an attorney. Cruz was taken to3 Neither party disputes the words spoken by Cruz. The only

dispute is the effect to be given to those words.

3 another location where several agents had left their vehicles. A

Spanish-speaking officer then repeated the Miranda warnings in

Spanish. Cruz was asked if he understood the warnings and replied

that he did. Cruz was then asked if he had a lawyer. Cruz replied

that he was a "working man" and "couldn't afford an attorney." The

agents then proceeded to conduct a cursory interrogation. Shortly

thereafter, Cruz was transported to the DEA field office and again

was given Miranda warnings in Spanish. Cruz indicated that he

understood his rights, but he did not request counsel. DEA agents

then questioned Cruz for twenty minutes. In response to their

questions, Cruz gave several inculpatory statements to the agents.

Later that day, Cruz was arraigned, at which time he requested

the appointment of counsel. With benefit of counsel, Cruz moved to

suppress his inculpatory statements on the grounds that he had

invoked his right to counsel when he stated that he was a "working

man" and "couldn't af ford an attorney." Cruz argued that, as he

had not waived his right to counsel at any time after making those

comments, his statements to the DEA agents should be suppressed as

the product of improper questioning. 3 The district court rejected

Cruz's motion, reasoning, in part, that Cruz's comments were not "a

positive affirmation of the right to counsel." At trial, the

government introduced the inculpatory statements into evidence.

The jury convicted Cruz, and he timely filed a notice of appeal.

II.4 Smith v. Illinois , 469 U.S. 91, 94-95 (1984) (quoting

Edwards v. Arizona , 451 U.S. 477, 484-85 (1981)); accord Miranda

v. Arizona , 384 U.S. 436, 474 (1966); United States v. Cherry

, 733 F.2d 1124, 1130 (5th Cir. 1984).

5 Miranda , 384 U.S. at 75.

6 Edwards , 451 U.S. at 484; see Smith , 469 U.S. at 95 ("This `rigid' prophylactic rule embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked." (citations omitted)).

4 ANALYSIS

"An accused in custody, `having expressed his desire to deal

with the police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made

available to him,' unless he validly waives his earlier request for

the assistance of counsel." 4 "If the interrogation continues

without the presence of an attorney and a statement is taken, a

heavy burden rests on the government to demonstrate that the

[accused] knowingly and intelligently waived his privilege against

self-incrimination and his right to retained or app ointed

counsel. " 5 "[A] valid waiver of that right cannot be established

by showing only that [the accuse d] responded to further policeinitiated custodial interrogation even if [the accused] has been

advised of his rights." 6

Cruz contends tha t he invoked his right to counsel, thus

rendering the fruits of subsequent questioning inadmissible, when

he stated that he was a "working man" and "couldn't afford an7 Cruz had both a Fifth Amendment and Sixth Amendment right

to counsel. The Fifth Amendment right to counsel arises when, as here, an individual is subject to custodial interrogation.

Edwards , 451 U.S. at 482; Miranda , 384 U.S. at 470; United States

v. Berisha , 925 F.2d 791, 797 (5th Cir. 1991). The Sixth Amendment right to counsel attaches upon the initiation of judicial proceedings against an individual. See Michigan v.

Jackson , 475 U.S. 625, 629 (1986); Brewer v. Williams , 430 U.S. 387, 398 (1977). Cruz was under indictment at the time that he was questioned, so his Sixth Amendment right to counsel had

attached. See Patterson v. Illinois , 487 U.S. 285, 290 (1988).

8 United States v. Jardina , 747 F.2d 945, 949 (5th Cir.
1984), cert. denied , 470 U.S. 1058 (1985); accord Thompson v. Wainwright , 601 F.2d 768, 772 (5th Cir. 1979); Nash v. Estelle

, 597 F.2d 513, 519 (5th Cir.) (en banc), cert. denied , 444 U.S.
981 (1979).

9 Edwards , 451 U.S. at 484. "[W]hile an accused is not required to use any magic language to invoke the right to counsel, we do not ignore the plain meaning of his words in order to find invocation of the right to counsel." Griffin v. Lynaugh

, 823 F.2d 856, 863 n.3 (5th Cir. 1987), cert. denied , 484 U.S.
1079 (1988).

10 Cruz contends his comments were made in response to the

Miranda warnings; however, the uncontested testimony at the suppression hearing establishes that his comments were made inresponse to an inquiry whether he had a lawyer. Under crossexamination, the officer giving the Miranda warnings testified: "Well, during when I was reading the Miranda warning to him, at that time I asked him if he had a lawyer, and he answered back that, no, he didn't have a lawyer." Later the officer clarified

5 attorn ey. " 7 But "[t]he word `attorney' has no talismanic

qualities. A defendant does not invoke his right to counsel any

t ime the word falls from his lips." 8 Viewing Cruz's comments in

context of the officer's question and giving his words their

ordinary meaning, Cruz did not evince "a desire to deal with the

police only though counsel." 9

Given the offic er's inquiry whether Cruz had a lawyer, his

response could only be construed as a statement of fact )) equivalent

to, "No, I don't have an attorney." 1 0 Cruz's response could notthis testimony: "I remember him also telling me in Spanish when

I asked him about if he had an attorney or whatever, and he said, `No.' He said he was just a working man. He couldn't afford an

attorney."

11 A different case would have been presented had the officer

asked Cruz whether he wanted a lawyer. Given such a context, Cruz's response would arguably have been an ambiguous or equivocal request. However, we are not presented with such

facts.

12 733 F.2d 1124 (5th Cir. 1984).

13 See id. at 1130-31; accord Thompson v. Wainwright , 601 F.2d 768, 771-72 (5th Cir. 1979); Nash v. Estelle , 597 F.2d 513, 517-18 (5th Cir. 1979) (en banc), cert. denied , 444 U.S. 981
(1979).

6 reasonably be construed as a request for co unsel. 1 1 We are

satisfied that, under the instant circumstances, Cruz did not

e vince a desire for counsel; and, as there is no suggestion that

his subsequent statements were involu ntary, we conclude that the

district court did not err in denying the motion to suppress on the

basis of Cruz's statement that he was a working man who could not

afford an attorney.

Cruz nevertheless argues in the alternative that his response

was at least an ambiguous or equivocal request for counsel, thereby

limiting further questioning to a clarification of his desires. In

United States v. Cherry 12 we reaffirmed the principle that, when an

accus ed expresses an ambiguous or equivocal request for counsel,

further interrogation is limited to clarification of the accused's

desires. 13 Here, though, we find no ambiguity or equivocation in

Cruz's response: He had been asked not if he w anted a lawyer, but

if he had one; and he answered that question in the negative. That

answer can not be stretched to constitute an unresponsive request14 Cherry , 733 F.2d at 1127.

15 See id. at 1130. Likewise, in Thompson v. Wainwright , 601 F.2d at 769, and Nash v. Estelle , 597 F.2d at 516-17, the accused expressed both a desire to talk to authorities and a desire to talk to an attorney.

7 for counsel, even an ambiguous or equivocal one.

This case is thus unlike prior cases in which we found an

equivocal or ambiguous request for counsel. For example, in

Cherry

, the accused stated, "Maybe I should talk to an attorney

before I make a further statement," then added rhetorically, "Why

should I not get an attorney?" 14 We found that, as the accused's

statements suggested conflicting desires to talk to an attorney and

to talk to the authorities, his utterances constituted a request,

albeit an equivocal one. 15 Unlike the comments in C herry , though,

Cruz's comments did not suggest a desire for counsel; to the

contrary, they unambiguously and unequivocally stated a matter of

fact. Hence, as Cruz's comments could not be construed as an

ambiguous or equivocal request, sub sequent questioning was not

limited to mere clarification of his desires. Denial of the motion

to suppress was not error.

III.

CONCLUSION

Having found no reversible error as to any of the DefendantsAppellants' assignments of error, their convictions and sentences

are in all respects

AFFIRMED.