concurring.
I join Judge Ruiz’s opinion, and write only to emphasize what for me is the decisive *869factor requiring reversal. Our task is to apply Michigan v. Mosley’s test of whether the police “scrupulously honored” appellant’s assertion of his right to remain silent. That test, of course, does not mean what it says, for if the police truly had to be scrupulous— punctiliously exact — in heeding the defendant’s refusal to talk, their required behavior would be indistinguishable from what Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), requires when the defendant has asserted the right to have counsel present. Instead, as applied uniformly by the courts of appeals, the Mosley standard permits further interaction between the police and the suspect and evaluates it case-by-case by applying multiple factors gleaned from the Mosley decision, none of which alone is decisive. Given this totality of the circumstances test1 so very different from Edwards’ bright-line prophylactic rule, it is not surprising that Mosley analysis “can produce opposite results in cases that are similar in some respects,” Charles v. Smith, 894 F.2d 718, 726 (5th Cir.1990), and can divide reasonable minds.
But, notwithstanding this malleability, if the phrase “scrupulously honored” is to have any rigor it means that we must resolve all doubts about whether the police respected the defendant’s assertion of his right to silence against the government. In this case, that means that on the close question of whether Detective Treadwell “interrogated” appellant in the cellblock area by invoking their common religious affiliation and obtaining his assent to later conversation (while not directly mentioning nor asking him about the crime), the balance must tip to an afSrmative answer. (I agree that, under our decisions, whether or not there has been “interrogation” under Innis is ultimately a legal question for this court to decide). Even so, affir-manee would be proper were only a single fact different in this case. Had the detectives, on returning to the station and escorting appellant to the homicide office, immediately re-advised him of his Miranda rights, the preceding eight-hour period during which they left him by himself unquestioned would have neutralized Treadwell’s cellblock interrogation for purposes of Mosley analysis. But, as Judge Ruiz explains, that did not happen. Instead the police immediately asked him to relate “[w]hat happened” and he began talking about what obviously was the crime. Only then, after a lapse of a half hour or more, did they obtain a waiver before taking his formal statement. This pre-warn-ing interrogation, on top of Treadwell’s earlier invocation of their religious bond, yields the critical mass of police conduct2 that violated Mosley’s command. As Judge Ruiz’s opinion is consistent with this analysis, I join it.
Separate opinion by Associate Judge KING.
KING, Associate Judge:I write separately, not because I disagree with my colleagues’ analysis, but because I am not convinced that the record before us is sufficiently complete to permit the ultimate conclusion reached by them. The majority is of the view that the government had an opportunity to make the necessary record and since it did not do so, it is bound by any deficiencies that resulted. While I agree that the government had the burden of showing that it “scrupulously honored” Stewart’s exercise of his right not to give a statement, it did all that it was required to do under the ground rules applicable as the issue was framed in the trial court. See Michigan v. *870Mosley, 423 U.S. 96, 100, 96 S.Ct. 321, 324-25, 46 L.Ed.2d 313 (1975). In this court, however, the issue has been framed differently, and the majority’s decision is based upon a factor that was not considered to be at issue during the hearing on the motion.
Briefly, the testimony revealed that Stewart was arrested in his home just before noon and taken to the homicide office where he was read his Miranda3 rights by Detective Young using police form PD 47. Stewart answered “yes,” in writing, to all four questions on that form including the one indicating that he was willing to answer questions without having an attorney present. He then signed and dated the form. He orally told Detective Young, however, that he did not wish to make a statement and no questions concerning the offense were asked of him. Detective Young did ask routine biographical questions that Stewart answered. At about 3:30 p.m., Stewart was taken to the cellblock where the encounter with Detective Treadwell took place as recounted by Judge Ruiz in her opinion. Thereafter the detectives became involved in another case; they did not return their attention to Stewart until much later in the evening when he was brought to the homicide office where, at about 11:45 p.m., he gave the statement which is in controversy.
In seeking suppression of this statement the defense theory has been a moving target. One ground was advanced in the written motion to suppress, a second was litigated in the hearing on the motion in the trial court, and a third surfaced, for the first time, during oral argument in this court. For example, when defense counsel filed the motion to suppress, he was under the impression that the written statement had been taken immediately after the PD 47 form was executed. The ground for suppression, as expressed in the written motion, was that Stewart, eighteen years old at the time with no prior contact with the criminal justice system, and having just been forcibly removed from his home, was so shaken that he did not make a knowing and intelligent waiver of his rights. Although the defense presented two witnesses in support of that theory, it was not pressed because Detective Young’s testimony revealed what really occurred: after signing the completed PD 47 indicating otherwise, Stewart told Young he did not wish to talk; Stewart later had the conversation with Treadwell in the cellblock; and, the written statement was actually taken much later in the evening.
With this new information, the focus of the hearing then became what occurred during the course of Stewart’s conversation with Treadwell. Treadwell, who had not been scheduled to testify because he knew less than Detective Young did concerning the issue raised in the written motion, was then called to give his version of the events in the cellblock. The defense position was that Treadwell’s conversation with Stewart was itself an interrogation that violated the “scrupulously honored” edict. The trial court ruled otherwise, however. Throughout the discussion of this issue by counsel and the court it was assumed that, after the cellblock encounter, Stewart initiated the reopening of discussion of the case with the detectives. It was never contended that the failure to give “fresh warnings” had any bearing on the admissibility of the confession, and no questions were asked of either officer in that regard. Indeed, the defense did not raise that point in either its motion for reconsideration to the trial court or in its brief in this court. The question of “fresh warnings,” however, did arise, for the first time, during oral argument in this court. The majority now holds that because the government did not demonstrate that “fresh warnings” were given, it has failed to establish that the police “scrupulously honored” Stewart’s exercise of his right to remain silent.
I do not at this stage reach the same result my colleagues do because of the defect in the record. I suspect, however, reading between the lines, that the government will not be able to establish either that “fresh warnings” were given, or that Stewart, in some fashion and of his own volition, made it clear that he had changed his mind and now wished to talk about the circumstances of the offense. See, e.g., Oregon v. Elstad, 470 U.S. 298, 310-11, 105 S.Ct. 1285, 1293-94, 84 L.Ed.2d 222 *871(1985). Under the circumstances presented here, however, if the government is able to make either showing, it should be given the opportunity to do so. Therefore, I would reverse and remand, essentially for the reasons set forth by Judge Ruiz and Judge Farrell; however, reversal would be conditioned upon the trial court allowing the government to present whatever relevant evidence it may have bearing on this point.
. “[T]he Mosley Court envisioned a case-by-case approach involving an inquiry into all of the relevant facts_” United States v. Dell'Aria, 811 F.Supp. 837, 842 (E.D.N.Y.1993).
. As the decisions make clear, under Mosley "the central focus ... is the conduct of the law enforcement authorities” rather than the voluntariness of the Miranda waiver or confession. Dell’Aria, supra, 811 F.Supp. at 842; see also United States v. Barone, 968 F.2d 1378, 1384 (1st Cir.1992).
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).