UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff–Appellee,

v.

MICHAEL ANTHONY McCARTHY,

Defendant–Appellant.

No. 09-2259

(D.C. No. 2:08-CR-02665-RB-1)

(D. N.M.)

ORDER AND JUDGMENT*

Before KELLY, McWILLIAMS, and LUCERO, Circuit Judges. 

 

Michael Anthony McCarthy appeals the district court’s denial of his motions to 

suppress statements that he made during a police interrogation. Because law enforcement 

officers continued to question McCarthy after he unequivocally invoked his right to 

remain silent, we conclude that the statements must be suppressed. Exercising 

jurisdiction under 28 U.S.C. § 1291, we reverse. 

 

* This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. This court generally disfavors the 

citation of orders and judgments; nevertheless, an order and judgment may be cited under 

the terms and conditions of 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 16, 2010

Elisabeth A. Shumaker 

Clerk of Court
2 

I

In the early morning hours of August 15, 2008, McCarthy stopped his semitrailer 

at a New Mexico Motor Transportation Department inspection station. Officers 

inspecting the cargo inside found nearly 300 kilograms of marijuana. McCarthy was 

taken into custody and handcuffed to a bench inside the station. Sergeant Robert Barrera, 

the investigating officer, then read McCarthy his rights pursuant to Miranda v. Arizona, 

384 U.S. 436 (1966). 

Approximately two hours later, Border Operations Task Force Agents William 

Chadborn and Corey Watkins arrived at the scene. Barrera informed both agents that 

McCarthy had been read his Miranda rights. Watkins and Chadborn awoke a sleeping 

McCarthy, led him into an office, and began questioning him. During the interview, 

which was recorded, the following exchange took place: 

AGENT CHADBORN: Alright . . . uh . . . Just wanted to let you know that 

. . . uh . . . Did you invoke your rights, or did you tell them that you didn’t 

want to talk to anybody or that you wanted an attorney present or anything 

like that? 

MR. McCARTHY: Unintelligible. 

AGENT CHADBORN: Okay. I, I, I can’t . . . I’m having a hard time 

understanding you. 

MR. McCARTHY: I said, I don’t want any . . . I don’t want nothing to say 

to anyone. 

AGENT CHADBORN: You don’t have anything to say to anybody? 
3 

MR. McCARTHY: No. 

AGENT CHADBORN: Okay. Did, did . . . when they read you your rights 

. . . 

MR. McCARTHY: What rights? 

AGENT CHADBORN: Did, did they read you your Miranda warnings? 

MR. McCARTHY: What rights do I have? 

AGENT CHADBORN: Okay. We’ll get through that right now. 

 Chadborn began to re-read McCarthy his Miranda rights, but was interrupted. 

Watkins, Chadborn, and McCarthy then discussed possible consequences of cooperating 

and refusing to cooperate with the investigation. When McCarthy attempted to speak 

about the details of his case, the agents repeatedly told him they could not discuss these 

matters unless McCarthy signed a form waiving his Miranda rights. Around six a.m., 

McCarthy signed this form and proceeded to make incriminating statements.1 He was 

then transported to a Drug Enforcement Agency office for further processing.

A grand jury indicted McCarthy on one count of possession with intent to 

distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 841 and 18 

U.S.C. § 2, and one count of conspiracy to possess with intent to distribute 100 kilograms 

 1

 The facts as described by the dissent would have it appear as if an insignificant 

amount of time passed between Chadborn’s initial attempt to re-read McCarthy his 

Miranda rights and McCarthy’s signing of the waiver form. In fact over thirty minutes 

passed, during which time McCarthy asked the agents at least twice to be put in jail. It is 

also worth noting that both Chadborn and Watkins already knew that McCarthy had been 

Mirandized before they began questioning him.
4 

or more of marijuana in violation of 21 U.S.C. §§ 841 and 846. McCarthy filed three 

motions to suppress his statements to law enforcement, arguing that Chadborn and 

Watkins violated his Miranda rights.2

 The district court denied these motions. Although 

it found that “ordinary people and reasonable law enforcement officials would understand 

a clear articulation of the phrase ‘I don’t want nothing to say to anyone’ as an invocation 

of the right to remain silent,” the court held that McCarthy’s articulation of this phrase 

was not clear and his subsequent response, “No,” to the question, “You don’t have 

anything to say to anybody?” was “somewhat ambiguous.” As a result, it concluded that 

McCarthy did not clearly and unambiguously invoke his right to remain silent and his 

post-waiver inculpatory statements were therefore admissible.

 After his motions were denied, McCarthy entered into a plea agreement reserving 

the right to appeal the suppression ruling. The court accepted the plea and sentenced 

McCarthy to twenty-four months’ imprisonment. McCarthy timely appealed. 

II 

In reviewing the denial of a motion to suppress, we view the evidence in the light 

most favorable to the government and accept the district court’s factual findings unless 

they are clearly erroneous. See United States v. Glover, 104 F.3d 1570, 1576 (10th Cir. 

1997). We review legal questions, including the issue of whether a defendant 

unambiguously asserted his right to remain silent, de novo. Cf. United States v. March, 

 2

 These motions were virtually identical in content. 
5 

999 F.2d 456, 459 (10th Cir. 1993). 

Under Miranda, an interrogation must immediately cease when an “individual 

indicates in any manner, at any time prior to or during questioning, that he wishes to 

remain silent.” 384 U.S. at 473-74. 3 Statements elicited by police after a defendant 

invokes this right are inadmissible. See Michigan v. Mosley, 423 U.S. 96, 103-04 

(1975). To come within the ambit of this rule, however, a suspect’s invocation of his 

right to remain silent must be “clear and unambiguous.” United States v. Rambo, 365 

F.3d 906, 910 (10th Cir. 2004).4 

In Rambo, we held that a defendant’s response of “No,” to the question, “Do you 

want to talk to me about this stuff?” constituted a clear and unambiguous invocation of 

his right to remain silent. 365 F.3d at 910. We reasoned that “[t]here is no nuance nor 

context to vary the unequivocal meaning of [the defendant’s] single word, monosyllabic 

response. His response, ‘No,’ could only mean an invocation of his right to remain 

 3

 The government appears to argue that McCarthy was not under interrogation 

when he made his initial statements. Even if this were true, the protections of Miranda

continue to apply because custodial interrogation was undoubtedly imminent. See

Rambo, 365 F.3d at 909 (“For the protections of Miranda to apply, custodial interrogation 

must be imminent or presently occurring.” (citation omitted)). 

4

 The Supreme Court recently reaffirmed this standard in Berghuis v. Thompkins, 

560 U.S. ____, 2010 WL 2160784 (June 1, 2010). Thompkins held that silence does not 

invoke the right to remain silent; instead, a suspect must “unambiguously” invoke his 

Miranda rights. 2010 WL 2160784 at *8. The Court noted that Thompkins “would have 

voiced his right to cut off questioning” had he said “that he wanted to remain silent or 

that he did not want to talk to the police.” Id. at *9 (quotation omitted). Because 

Thompkins merely revivifies our existing precedent, it does not affect our reasoning in 

this case. 
6 

silent.” Id. 

The same is true here. McCarthy told Chadborn that he did not “want nothing to 

say to anyone.” Chadborn then clarified, “You don’t have anything to say to anybody?” 

McCarthy responded, “No.” Like the court in Rambo, we discern no nuance or 

ambiguity in this exchange. In short, no means no. If McCarthy had not already invoked 

his right to remain silent by stating that he did not “want nothing to say to anyone,” he 

clearly and unambiguously did so in response to Chadborn’s subsequent question. 

Because Chadborn and Watkins failed to “scrupulously honor[]” McCarthy’s request to 

cut off questioning, his post-invocation statements must be suppressed. See Mosley, 423 

U.S. at 103.5

The government argues that McCarthy’s response was ambiguous because he was 

difficult to understand. However, McCarthy’s answer, “No,” was plain regardless of his 

heavy accent or tendency to mumble. See Rambo, 365 F.3d at 910 (“Although the 

context and nuances of a request to end questioning can create ambiguity, they cannot 

overcome a clear expression of the desire to remain silent.”). The government also 

contends that McCarthy’s “no” response was ambiguous because Chadborn posed his 

question in the negative. We disagree. A “reasonable police officer in the 

 5

 Because the government does not allege that the agents lawfully reinitiated 

questioning after McCarthy invoked his right to remain silent, we need not apply 

Mosley’s four-factor test. See id. at 104-05; see also United States v. Alexander, 447 

F.3d 1290, 1294 (10th Cir. 1996). 
7 

circumstances” presented could not have misinterpreted McCarthy’s response. See

United States v. Nelson, 450 F.3d 1201, 1212 (10th Cir. 2006). Nor can the government 

rely on McCarthy’s post-invocation conduct. “[A]n accused’s postrequest responses to 

further interrogation may not be used to cast retrospective doubt on the clarity of the 

initial request itself.” Smith v. Illinois, 469 U.S. 91, 100 (1984) (emphasis omitted). 

Because McCarthy clearly invoked his right to remain silent before the agents elicited 

incriminating statements, the district court erred in denying his motions to suppress. 

III

 For the foregoing reasons, we REVERSE the denial of McCarthy’s motions to 

suppress and REMAND for further proceedings. 

 Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge 
 

United States v. McCarthy, 09-2259 

McWILLIAMS, J. dissents. 

 At the outset of my dissent, I would note that when the inspector at the check point 

read the defendant his Miranda rights, the defendant neither invoked nor waived his right 

to remain silent. I also agree that after Agent Chadborn arrived, the defendant said, in 

essence, that he did not want to talk to “anyone about anything,” which is a rather “clear 

and unambiguous” invocation of his Miranda right to remain silent. And that 

immediately thereafter the agent did inquire of the defendant “when they read you your 

rights...,” at which point the defendant interrupted and said “what right” and “what rights 

do I have?” It was in that setting that the agent then proceeded to re-read the defendant 

his Miranda rights, after retrieving the defendant’s glasses from his truck, the defendant 

apparently wanting to read the Miranda rights as the agent read them. Two times during 

the reading, the defendant asked if they could talk about the “details of his case” and the 

agent said they could not. At the conclusion of this re-reading the defendant then signed 

a written waiver of his Miranda rights. Certainly, reading to a detainee his Miranda

rights does not in itself violate his right to remain silent. Accordingly, I would affirm.