NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50196
Plaintiff–Appellee, D.C. No.
3:15-cr-02940-GPC-1
v.
MARCO ALEJANDRO ESCOBEDO- MEMORANDUM*
GOMEZ,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted February 7, 2018
Pasadena, California
Before: GRABER and HURWITZ, Circuit Judges, and KORMAN,** District
Judge.
Marco Escobedo-Gomez was convicted importing heroin in violation of 21
U.S.C. §§ 952 and 960. He argues that the district judge erred in denying his pretrial
motion to suppress statements made during a post-arrest interrogation. We review
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
de novo whether Escobedo unequivocally invoked his right to counsel before making
the statements. United States v. Rodriguez, 518 F.3d 1072, 1076 (9th Cir. 2008).
“Although a suspect need not ‘speak with the discrimination of an Oxford
don,’ he 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.” Davis v. United States, 512 U.S. 452, 459 (1994) (quoting
id. at 476 (Souter, J., concurring); see also Robinson v. Borg, 918 F.2d 1387, 1393
(9th Cir. 1990) (“[A] suspect is required neither to use any magical formulation to
invoke his rights nor to express his desire to obtain counsel with lawyer-like
precision.”). Particularly instructive is Smith v. Illinois, 469 U.S. 91, 93 (1984) (per
curiam). There, the Supreme Court held that the statement “Uh yeah, I’d like to do
that” in response to being advised of his right to counsel was an unequivocal request
for counsel, and Smith’s later responses to questions regarding the request for
counsel could not be used “to cast retrospective doubt on the clarity of the initial
request itself.” Id. at 96–97, 100.
Escobedo’s statement—“But, yeah…Okay. I guess I’ll, I’ll wait for the
attorney. I mean, ’cause I’m like, I don’t know what’s happening, like, why or
what”—was a similarly clear expression of his desire to await counsel, followed by
his reason for making that request. Here, “But yeah…Okay” simply shows that
Escobedo understood that Agent Mattison could not tell him anything more about
2 16-50196
why he had been arrested. Indeed, the parties principally focus their arguments on
the words “I guess.”
The use of the phrase “I guess” is often colloquial filler. See Croft v. Chi.,
R.I. & P. Ry. Co., 109 N.W. 723, 726 (Iowa 1906) (“It is not material that, in
giving his answers, the [juror] used the qualifying word ‘guess’—a word
technically implying doubt. It is manifest from his answers as a whole that the
form of expression used was merely a colloquialism. It was not intended to be
understood in its literal or technical sense.”). Crucially, Escobedo went on: “I’ll
wait for, for the attorney,” explaining that he would do so because “I don’t know
what’s happening, like, why or what.”
Escobedo’s explanation reinforced his request. Cf. Hurd v. Terhune, 619
F.3d 1080, 1089 (9th Cir. 2010) (explaining that a suspect can invoke his right to
silence “through an explanatory refusal”). Indeed, because a request for counsel
halts further questioning, Edwards v. Arizona, 451 U.S. 477, 484–85 (1981), the
agent’s response—“All right, so, you don’t—you don’t wish to speak to us
tonight?”—indicates that he understood exactly what Escobedo was asserting.
Under these particular circumstances, confirmed by our review of the DVD
of the interrogation, we conclude that Escobdo unequivocally invoked his right to
counsel.
REVERSED AND REMANDED.
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