United States v. John Wysinger , 683 F.3d 784 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3894
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN W YSINGER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-CR-30159-MJR—Michael J. Reagan, Judge.
A RGUED S EPTEMBER 8, 2011—D ECIDED JUNE 22, 2012
Before M ANION, R OVNER and T INDER, Circuit Judges.
R OVNER, Circuit Judge. A jury convicted John Wysinger
on one count of conspiracy to distribute and possess
with intent to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 846 and 851; and one count of aiding and
abetting possession with intent to distribute cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 851, and 18
U.S.C. § 2. At trial, the jury twice viewed a video
of Wysinger’s interrogation by an agent of the Drug
2 No. 10-3894
Enforcement Agency (“DEA”). Wysinger challenged the
admission of the video on the grounds that the Miranda
warning was inadequate and misleading, and that the
agent continued to interrogate him after he clearly and
unequivocally invoked his right to counsel. On ap-
peal, he again challenges the admission of the video.
We agree that the video should have been suppressed
and that the error was not harmless. Accordingly,
we vacate Wysinger’s conviction and remand for
further proceedings.
I.
Wysinger came to the attention of the DEA as the result
of an investigation into a drug trafficking operation
between East St. Louis, Illinois, and Chicago. The investiga-
tion began when a confidential informant told the DEA
that Sebastion Robinson, an East St. Louis resident, was
distributing drugs. The DEA began to surveil Robinson’s
residence. On December 15, 2008, agents followed two
vans leaving Robinson’s residence. At the direction of the
DEA, local police officers stopped the vans. One of the
vans was driven by Tryd Wysinger, John Wysinger’s
brother.1 The agents seized approximately $54,000
in cash from a small backpack found in the van. Other
1
For the sake of clarity, we will refer to the defendant as
“Wysinger” and to his brother as “Tryd.” At trial, Wysinger
challenged DEA Special Agent Mike Rehg’s identification of
his voice on various phone calls involving a person named
“John” or “Cool.” When discussing the challenged phone
calls, we will use those names.
No. 10-3894 3
passengers in the van included Rajdel Laurence, a
woman and a child. The adult passengers in the van
claimed ignorance about the ownership of the money
and how it came to be in the van. Within the next ten
days, a person purporting to be John Wysinger left a
telephone message for DEA Special Agent Mike Rehg
regarding the $54,000. Agent Rehg returned the call after
the holidays and recorded the conversation. A person
answering to the name “John” told Agent Rehg that he
placed the money in the van and that none of the occu-
pants knew it was there. He explained that he bor-
rowed $45,000 from his boss and that he and his fiancée
contributed $10,000 more. The money was to be used to
rehab his mother’s house. John identified the other oc-
cupants of the van as his brother (Tryd), his cousin
(Rajdel Laurence), his grandmother and his son. He told
the agent that he did not want them to know that the
money was in the van, and planned to tell his mother to
retrieve the money once the van arrived at her home
in Texas. John and Agent Rehg briefly discussed what
would happen next to the money before the call ended.
After a confidential informant purchased crack cocaine
from Sebastion Robinson in February 2009, law enforce-
ment officials arrested Robinson and searched his home.
The DEA recovered $35,000 in cash, two firearms, and
small amounts of cocaine and marijuana from Robinson’s
home. Robinson subsequently agreed to cooperate with
the DEA in its investigation. Robinson told Agent
Rehg that he obtained cocaine from Wysinger (whom
Robinson knew by the nickname “Cool”) in Chicago, sold
it in the East St. Louis area, and then paid Wysinger
4 No. 10-3894
from the proceeds. Robinson said that he and Keith
Holmes, another East St. Louis dealer, each owed
Wysinger approximately $21,000 and that the money
seized from Robinson’s home belonged to Wysinger.
After providing Robinson with recording equipment,
Agent Rehg asked Robinson to arrange a meeting with
Holmes to deliver $42,000 to Dempsey Ivery, a courier
believed to be working for Wysinger. Law enforce-
ment officers then stopped the car on the way to the
meeting and seized the money.
After these large seizures of cash by police officers,
contact among Wysinger, Robinson, Holmes and other
participants slowed for several months as they be-
came concerned about the apparent investigation. In
May 2009, the group began talking again. Robinson
met with Tryd and determined that Wysinger was ready
to arrange another cocaine delivery to the East St. Louis
area. On May 26, 2009, the DEA asked Robinson to
call Wysinger to see if any cocaine was available. The
DEA recorded the call. Agent Rehg interpreted the
cryptic conversation as Wysinger telling Robinson that
he was trying to obtain some cocaine and would let
Robinson know when he was able to do so. Robinson
confirmed that interpretation in his own testimony at
trial. The next day, Robinson told Agent Rehg that
Wysinger and Tryd had contacted him to report that a
shipment was on its way to East St. Louis and would
be there within hours. After establishing surveillance
at Robinson’s home, officers were able to identify a van
occupied by Tryd and an unidentified woman. Local
officers stopped the van and discovered a kilogram of
No. 10-3894 5
cocaine. Tryd and the woman were taken to the police
station for questioning. Two agents then met with Robin-
son so that any subsequent calls with Wysinger could
be recorded.
The agents recorded three short calls between Robinson
and Wysinger on May 27, each interpreted by Agent
Rehg and Robinson at trial. In the first call, Wysinger
asked if Robinson had received the shipment and Robin-
son said he had not. Wysinger also asked how much
money Robinson would be giving Tryd on delivery and
Robinson indicated $4000. In the second call, Wysinger
asked again (in coded language) if the cocaine had
been delivered and Robinson indicated it had not. Robin-
son then asked if it was in a white van and indicated
that local police had stopped a white van a short
distance from his home. Robinson told Wysinger he
would drive past the scene to see if it was Tryd’s van. In
the third call, the two continued to discuss the traffic
stop of the van.
When agents on the scene saw that the van came from
the direction of Holmes’ house, they decided to see if the
van had first delivered cocaine to Holmes. They found
Holmes standing on the street a half a block from the
van watching the police investigation. After being ar-
rested, Holmes agreed to cooperate with authorities. As
the agents talked to him, Holmes’ phone began ringing.
Holmes indicated that Wysinger was calling and that he
needed to answer. The officers allowed him to answer
the phone and recorded the call. Holmes and Wysinger
spoke about the stop of the van. After the call, Holmes
6 No. 10-3894
consented to a search of his house and police officers
recovered a half kilogram of cocaine that Holmes
admitted had just been delivered by Tryd.
The next morning, agents recorded another phone
call between Holmes and Wysinger. Wysinger sought
Holmes’ advice on lawyers he could hire to represent
Tryd. A few days later, the agents arranged for
Holmes to call Wysinger again, in order to begin to
explain to him that he would not be able to pay for the
half-kilogram of cocaine that had been seized from his
home. Holmes told Wysinger that agents had seized the
cocaine from a house where he stored it. Wysinger
wanted to visit the house himself, and so the agents
allowed Holmes to set up a meeting with Wysinger.
Wysinger met Holmes in a liquor store parking lot and
transferred to Holmes’ truck. The agents later stopped
Holmes’ truck and arrested Wysinger. The agents also
arrested Rajdel Laurence, who was in the vehicle in
which Wysinger had arrived. All were transported to the
East St. Louis police department.
On June 1, 2009, Wysinger was interrogated by Agent
Rehg and Wade Gummersheimer, a Fairview Heights
police officer who worked on a DEA task force. The
video recording of the interrogation was played twice
for the jury during Wysinger’s trial, once during the
government’s case-in-chief, and once during delibera-
tions at the request of the jury. The interrogation took
No. 10-3894 7
place in a small, uncomfortably warm 2 room containing
a rectangular table, three chairs and a wall clock. The
table was small enough that adults sitting on opposite
sides would likely bump knees if they pulled their
chairs up to it. The microphone recording the inter-
rogation is not visible on the video. Agents Rehg and
Gummersheimer entered the room together and a brief
discussion ensued over which cell phone in a plastic
bag belonged to Wysinger. A handcuffed Wysinger,
who was seated alone in the room before the officers
arrived, pointed out his phone without hesitation.
Agent Rehg then briefly took a call on his own cell
phone, and as soon as he hung up, Wysinger said, “Do
I need a lawyer before we start talking?” Video at 12:54;
R. 287, Tr. at 104.3 Agent Rehg replied, “Well, we’re going
2
During a break when the agents were out of the room and
Wysinger was alone, he exclaimed, “Shit! It’s hot in this
motherfucker!” Video at 13:26. Wysinger appeared unaware
that the meeting and the break were being videotaped. In the
opening moments of the video, Officer Gummersheimer can
be seen wiping sweat from his forehead with his shirt
sleeves. Video at 12:54.
3
All citations to the videotaped interrogation are to the time
index displayed on the video, which was Exhibit 21 at trial.
When the video was played for the jury during the trial, the
court reporter attempted to transcribe the conversation, and
we will occasionally cite to the trial transcript as well.
Because of issues with the sound quality, many parts of the
video are difficult to hear, and the trial transcript has many
(continued...)
8 No. 10-3894
to talk about that.” Video at 12:54. He then introduced
himself and Officer Gummersheimer and told Wysinger,
“Make no bones about it. You’re under arrest. I mean,
make no bones about it.” Video at 12:54; R. 287, Tr. at 104.
After a brief interlude where Wysinger complained about
the timing of his arrest, Agent Rehg began to read
Wysinger his Miranda rights from a card that the agent
pulled from his wallet. About half way through the
reading, the agent began to scratch the back of his neck.
When he reached the words, “If you can’t afford a
lawyer, one will be appointed for you before we ask
any questions. Do you understand . . . ,” Agent Rehg
slapped the table loudly, startling Wysinger. Video at
12:55; R. 287, Tr. at 105. The agent said that he had felt
something crawling on his neck. In response to Rehg’s
questions, Wysinger said he had previously been
arrested for “petty shit,” that he did not have a high
school or college education, but that he understood
his rights.
Agent Rehg then began to describe to Wysinger what
the agents already knew about the flow of money and
cocaine between Chicago, East St. Louis and Texas. In
response to Agent Rehg’s comments, Wysinger indicated
3
(...continued)
indications of “inaudible.” With a few careful reviews of the
tape, we have been able to fill in some of the parts that were
inaudible to the court reporter during the trial. In all
relevant respects, our version of the taped interrogation is
fully consistent with the district court’s findings regarding
what was said during the interrogation.
No. 10-3894 9
that he knew the police were watching him and had
stopped people he knew, and he surmised that “Keith,”
presumably Keith Holmes, had been working with the
police. After Agent Rehg told him that one of his
associates lost $20,000 during a police stop in Texas,
Wysinger grew impatient and said, “Get straight to the
point, Mike. I just don’t want to get fucked in the deal.
You know what I’m saying?” Video at 12:58; R. 287, Tr. at
107. Agent Rehg then explained that Wysinger could
cooperate or be charged with conspiracy to distribute
cocaine. After denying personal involvement, Wysinger
then asked if Agent Rehg could help his brother, Tryd.
Agent Rehg indicated that the United States Attorney
might be amenable to helping Tryd in exchange for
Wysinger’s cooperation. Agent Rehg said he could not
make any guarantees, that charges would not be
dropped but that Wysinger could get a sentencing
break for himself and his brother if he cooperated. Al-
though much of what Wysinger said next was garbled,
part of his statement was clear:
There’s a whole lot of motherfuckers in Texas I do
not like. You know what I’m saying? And I tell
motherfuckers, in this game, you don’t fuck with
those people, ‘cause you make enemies. You know
what I’m saying? You always keep the motherfucker
happy if you doing this type of shit, ‘cause the
motherfucker come back to haunt you. You know
what I’m saying?
Video at 13:00; R. 287, Tr. at 109. Agent Rehg then ex-
plained that, if Wysinger wished to cooperate, he
would have to tell the agents what he had been doing,
10 No. 10-3894
that Agent Rehg would then speak to the U.S. Attorney to
determine whether Wysinger would be released that day.
Wysinger again expressed dissatisfaction that his
brother had been arrested and Agent Rehg said that he
could not agree to release Tryd, and that the bond
decision was up to the judge. Wysinger told Agent Rehg
that he needed to arrange the release of his brother more
than he needed to be released himself. The following
exchange then occurred:
Rehg: Well, tell us what has been going on. Maybe
that’s the best way to start.
Wysinger: I mean, do you think I should have a law-
yer? At this point?
Rehg: That is up to you. . . . I read you your rights.
If you want an attorney, by all means, get one. Ok?
Wysinger: I mean, but can I call one now? That’s what
I’m saying.
Rehg: Who you gonna call?
Wysinger: I got a, um, I had a number inside of the
van, inside the green van on a sheet of paper. I had the
attorney’s name.
Gummersheimer: What’s his name? Do you know it?
Wysinger: I can’t think of the name. I just had it wrote
down.
Rehg: Is he local?
Wysinger: Yeah. He’s in Belleville.
Rehg: What’s his name? I might know him.
No. 10-3894 11
Video at 13:03; R. 287, Tr. at 111. This exchange
continued for some time before Agent Rehg asked, “Can
we go look in the van?” Wysinger assented and Agent
Rehg asked, “Is there any dope or money in there?” Video
at 13:04; R. 287, Tr. at 112. That question prompted a
denial and an explanation of why Wysinger was in the
East St. Louis area, namely, to get a lawyer for his
brother and to retrieve a rental van seized by police so
that the van could be returned and stop accumulating
rental charges. Agent Rehg disputed the truth of this
explanation and after a brief diversion, the topic
returned to Wysinger’s request for an attorney:
Rehg: We’ll go out in the van and get that number
if you want an attorney. If you don’t, we can get the
thing going so we know where you are at. It’s up
to you.
Wysinger: I just don’t want to cross no lines, and then,
you know what I’m saying, regret shit. I mean, I want
to work with you. You know what I’m saying?
Gummersheimer: What is the attorney’s phone num-
ber? Do you have any idea?
Video at 13:06; R. 287, Tr. at 113-14. Wysinger again
struggled to remember the number and to describe the
paper in the van containing the number. Agent Rehg then
asked Wysinger if the attorney Wysinger intended to
call was his brother’s lawyer, and told Wysinger that he
was “not going to be allowed to have the same attorney”
12 No. 10-3894
as his brother.4 Video at 13:06; R. 287, Tr. at 114. After
a brief discussion of whether the attorney had already
been retained or paid, Agent Rehg asked, “You want us
to look for it?” and Wysinger said, “Yeah, go get it for
me, Mike. I’m going to call this attorney, get his advice.
I was on my way to see him but I didn’t know how to
get over there.” Video at 13:07; R. 287, Tr. at 115.
Agents Rehg and Gummersheimer left the room and
came back with a paper they retrieved from the van.
Agent Rehg asked, “Do you mind if I call and hand the
phone to you?” and Wysinger replied, “Yeah.” Video at
13:12; R. 287, Tr. at 115. Agent Rehg then used his own
cell phone to call the lawyer. Rather than hand the
phone over, he first engaged the lawyer in conversation
for a few minutes, giving him “background” about
Wysinger’s arrest, and discussing a cocaine conspiracy
involving persons in Texas, Chicago and East St. Louis.
Agent Rehg told the attorney that Wysinger was the
main target of the investigation. Eventually, he handed
the phone to Wysinger. Agents Rehg and Gummers-
heimer stayed in the room while Wysinger spoke to
the lawyer, sitting no more than a few feet away, able to
hear every word Wysinger said. The video- and audio-
taping continued as Wysinger had a very brief discus-
sion with the lawyer. At one point, Wysinger was ap-
4
Agent Rehg’s advice was incorrect. A lawyer may represent
two clients even if those clients have conflicting interests so
long as both clients consent to the representation and so long
as the lawyer meets the requirements of Rules 1.7 and 1.8 of
the Illinois Rules of Professional Conduct.
No. 10-3894 13
parently on hold with the lawyer and engaged in a brief
conversation with Agent Rehg about their first phone
call, when Wysinger called Agent Rehg to discuss the
seized money shortly before Christmas when Agent Rehg
was on vacation. After completing a very brief conversa-
tion with the lawyer, Wysinger handed the phone back
to Agent Rehg, who continued talking to the attorney
about Wysinger’s possible cooperation.
When Agent Rehg hung up the phone, he told Wysinger
that he would attempt to arrange for Wysinger to get
access to part of the seized funds in order to pay the
attorney if Wysinger was interested in cooperating.
Because the attorney was not able to meet with the
agents until Friday (the interrogation took place on a
Monday), Wysinger would have to drive back to East
St. Louis later that week. Wysinger was irritated by this
turn of events and complained that he did not “need
this headache,” that he had ten children and was tired
and under stress. He told Agent Rehg, “I am wore out.
I’m tired. This is stressful. The economy is fucked up,
you know what I’m saying? What can a black man do
nowadays?” Video at 13:21; R. 287, Tr. at 118. Agent
Rehg told Wysinger that many people were struggling
and had choices to make.
Agent Rehg then decided to give Wysinger “some
advice,” emphasizing that he was not asking questions
because Wysinger had asked for an attorney. Video at
13:21-13:22; R. 287, Tr. at 118. Agent Rehg told Wysinger
that if he was serious about cooperating he should not
talk to anyone in East St. Louis except his lawyer. He
14 No. 10-3894
specifically warned Wysinger, “Don’t be talking to any-
body else, any of the guys that we’re talking to.” Video
at 13:22; R. 287, Tr. at 119. At this reference to persons
who were already cooperating with the police, Wysinger
again showed irritation, and although the first part of
his response was unintelligible, the last part was clear:
“fuck around and hurt somebody.” Video at 13:22;
R. 287, Tr. at 119. Agent Rehg clearly heard this as a
threat to cooperating witnesses and immediately
warned Wysinger that he would be “locked up” if the
agents heard about any such threats. After asking
Wysinger about his prior criminal record, Agent Rehg
again warned him that if he heard “any other bullshit
going on out there” they would arrest Wysinger again.
Video at 13:22-13:23; R. 287, Tr. at 119. Agent Rehg em-
phasized that things are not always as they appear and
that there were many ways the agents obtained the in-
formation that led to Wysinger’s arrest that day. They
again talked about a lawyer Wysinger wished to hire
for his brother, and Wysinger expressed more concern
over his brother’s arrest because Tryd had recently been
released from prison after serving a sixteen-year sen-
tence. He indicated that people were asking where his
brother was and that he was telling them that he was
“on vacation.” Video at 13:23; R. 287, Tr. at 120.
The entire tape was shown to the jury twice,5 once
during the government’s case-in-chief and once during
5
A few short clips were shown to the jury again during the
government’s case-in-chief, immediately after the full video
was played.
No. 10-3894 15
deliberations at the request of the jury. The jury also
requested to hear the tape of the initial call with
Agent Rehg regarding the $54,000 seized from Tryd’s
van in December 2008. During the case-in-chief and
closing arguments, the government repeatedly em-
phasized several of the more incriminating statements
Wysinger made during the interrogation. In addition to
Agent Rehg’s testimony and the videotape of the inter-
rogation, the main evidence against Wysinger consisted
of the testimony of cooperating co-conspirators who
had struck favorable deals with the government in ex-
change for their testimony, and recorded calls with
those co-conspirators. No money or drugs were ever
seized from Wysinger and the police never connected
any of the phones used in the recorded calls to Wysinger.
Instead, Wysinger’s participation in those calls was
established by the testimony of cooperating co-con-
spirators and by Agent Rehg’s identification of
Wysinger’s voice.
Wysinger moved to suppress the videotaped inter-
rogation before trial. He contended that he was not prop-
erly apprised of his Miranda rights, that the agents at-
tempted to divert him from exercising his rights,
that he did not waive those rights, and that questioning
improperly continued after he repeatedly asked for a
lawyer. The district court rejected all of Wysinger’s ar-
guments. The court first found that Agent Rehg clearly
read Wysinger his Miranda rights at the start of the in-
terview. The court held that Wysinger waived those
rights implicitly when he indicated that he understood
his rights and then offered an uncoerced statement.
16 No. 10-3894
Finally, the court concluded that each mention of an
attorney by Wysinger failed to meet the standard for a
clear and unambiguous invocation of the right to an
attorney. As we noted above, the jury viewed the
entire interrogation twice before convicting Wysinger
on both counts charged in the indictment. Wysinger
appeals.
II.
On appeal, Wysinger again challenges the admission
of the videotaped interrogation. He first contends that
the court erred in admitting the video because he
clearly and unambiguously invoked his right to counsel
multiple times. He next argues that the statements he
made to Agent Rehg and Officer Gummersheimer were
obtained as the result of inadequate and misleading
Miranda warnings. Finally, he contends that the court
should not have admitted the portions of the video con-
taining his privileged communications with his lawyer.
In considering a district court’s decision on a motion
to suppress, we review findings of fact for clear error
and questions of law de novo. United States v. Peters,
435 F.3d 746, 750 (7th Cir. 2006).
A.
We begin with Wysinger’s claim that the district court
erred in refusing to suppress the video on the ground
that the agents continued to interrogate him after he
clearly invoked his right to counsel multiple times.
No. 10-3894 17
There are no real disputes regarding the facts. The
parties do not disagree in any material way about
the words that Wysinger spoke when he referenced
his right to an attorney. Instead, they take issue with
the legal effect of those words, and that is a question
of law. Peters, 435 F.3d at 750.
In Miranda, the Supreme Court held that, when an
individual in custody “states that he wants an attorney,
the interrogation must cease until an attorney is pres-
ent.” Miranda v. Arizona, 384 U.S. 436, 474 (1966). The
Supreme Court later clarified:
[W]hen an accused has invoked his right to have
counsel present during custodial interrogation, a
valid waiver of that right cannot be established by
showing only that he responded to further po-
lice-initiated custodial interrogation even if he has
been advised of his rights. We further hold that an
accused, . . . 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 the accused
himself initiates further communication, exchanges,
or conversations with the police.
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). The govern-
ment does not dispute that Wysinger was in custody, the
first part of the Miranda analysis. The rule expressed in
Miranda and Edwards next requires courts to engage in
two distinct inquiries. First, courts must determine
whether the suspect actually invoked his or her right to
counsel. “Second, if the accused invoked his right to
18 No. 10-3894
counsel, courts may admit his responses to further ques-
tioning only on finding that he (a) initiated further dis-
cussions with the police, and (b) knowingly and intelli-
gently waived the right he had invoked.” Smith v.
Illinois, 469 U.S. 91, 95 (1984) (citing Edwards, 451 U.S. at
485, 486, n. 9).
The question here is whether and when Wysinger
“actually invoked” his right to counsel. “To avoid dif-
ficulties of proof and to provide guidance to officers
conducting interrogations, this is an objective inquiry.”
Davis v. United States, 512 U.S. 452, 458-59 (1994). In order
for the protections of Miranda and Edwards to apply, the
suspect must, at a minimum, make a “statement that
can reasonably be construed to be an expression of a
desire for the assistance of an attorney in dealing with
custodial interrogation by the police.” McNeil v. Wisconsin,
501 U.S. 171, 178 (1991). See also Davis, 512 U.S. at 459
(same). If a suspect makes an equivocal or ambiguous
reference to a lawyer, a reference that a reasonable
officer would interpret as a statement that the suspect
might be invoking the right to counsel, there is no re-
quirement that questioning end. Davis, 512 U.S. at 459.
In determining whether a suspect clearly invoked his
or her right to counsel, we consider the circumstances in
which the statement was made as well as the words
employed. United States v. Shabaz, 579 F.3d 815, 819 (7th
Cir. 2009), cert. denied, 130 S. Ct. 3384 (2010). See also
United States v. Hampton, 675 F.3d 720, 727 (7th Cir. 2012)
(objective inquiry into whether suspect invoked right
to counsel includes review of not only the words the
No. 10-3894 19
suspect used but also the circumstances in which
the statement was made).
[T]he suspect must unambiguously request counsel.
As we have observed, a statement either is such an
assertion of the right to counsel or it is not. . . . Al-
though a suspect need not speak with the discrimina-
tion 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. If the statement fails to meet the
requisite level of clarity, Edwards does not require
that the officers stop questioning the suspect.
Davis, 512 U.S. at 459 (internal quotation marks and
citations omitted).
In Smith, the suspect was told he had the right to
consult with a lawyer and to have a lawyer present
when being questioned. When the officer immediately
followed this part of the Miranda warning by asking, “Do
you understand that?” the suspect replied, “Uh, yeah.
I’d like to do that.” 469 U.S. at 93. Although the
suspect then wavered regarding his desire to have
a lawyer after the officer completed the full Miranda
warning, the Supreme Court held that the later equivoca-
tion could not render ambiguous the earlier clear and
unequivocal invocation of the right to counsel. Smith, 469
U.S. at 95-98. Similarly, in Edwards, the state supreme
court determined that the defendant’s statement, “I want
an attorney before making a deal,” was sufficiently clear
within the context of the interrogation to constitute a
20 No. 10-3894
request for counsel. Edwards, 451 U.S. at 480 n.6. On the
other hand, the statement, “Maybe I should talk to a
lawyer,” is not a clear request for counsel. Davis, 512 U.S.
at 462. See also Shabaz, 579 F.3d at 818-19 (the question
“[A]m I going to be able to get an attorney?” posed before
Miranda warnings is not a clear request to consult with
counsel presently); United States v. Lee, 413 F.3d 622, 626
(7th Cir. 2005) (“Can I have a lawyer?” is an unequivocal
request for an attorney, requiring that police officers
halt the interrogation; “I think I should call my lawyer,”
“Can I talk to a lawyer?” and “I have to get me a
good lawyer, man. Can I make a phone call?” are also all
unequivocal invocations of the right to counsel); United
States v. Lord, 29 F.3d 1216, 1221 (7th Cir. 1994) (the ques-
tion, “I can’t afford a lawyer but is there any way
I can get one?” lacked the clear implication of a
present desire to consult with counsel and thus was not
an unequivocal request for counsel).
Wysinger contends that he first invoked his right
to counsel in the opening moments of the interroga-
tion, when he asked “Do I need a lawyer before we start
talking?” Video at 12:54; R. 287, Tr. at 104. Wysinger
argues that this question indicated an intention to have
a lawyer present at that moment, before the interroga-
tion began. In context, Wysinger asked this question
before receiving a Miranda warning. Agent Rehg re-
sponded, “Well, we’re going to talk about that.” He then
gave a Miranda warning that we will discuss below and
engaged Wysinger in a conversation that meets the def-
No. 10-3894 21
inition of interrogation.6 In this context, a reasonable
officer might not understand Wysinger’s initial refer-
ence to an attorney as an unequivocal request for a
lawyer. True, Wysinger’s question mentioned the
present moment, i.e., “before we start talking.” But
asking “Do I need a lawyer?” is a substantively dif-
ferent question than “Can I have a lawyer?” See Lee,
413 F.3d at 626 (“Can I have a lawyer?” is an unequivocal
request for an attorney). The first question indicates
that the asker is contemplating whether he is in need of
the services of a lawyer; the second question is a direct
request for a lawyer. See also Mueller v. Angelone, 181
F.3d 557, 573-74 (4th Cir. 1999) (question “Do you think
I need an attorney here?” posed to police officer during
interrogation was an ambiguous “query whether
his interrogator thought that counsel might be helpful”
and not “a clear assertion of his right to counsel”); Diaz
v. Senkowski, 76 F.3d 61, 63 (2d Cir. 1996) (question “Do
you think I need a lawyer?” not a clear invocation of
the right to counsel); United States v. Ogbuehi, 18 F.3d 807,
813 (9th Cir. 1994) (a suspect asking if he “should see
a lawyer” has not clearly invoked his right to counsel);
United States v. March, 999 F.2d 456, 460 (10th Cir. 1993)
(defendant’s question “Do you think I need an attor-
6
The Miranda safeguards apply not only to express ques-
tioning but to “any words or actions on the part of the police
(other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v.
Innis, 446 U.S. 291, 300-01 (1980).
22 No. 10-3894
ney?” did not constitute an unequivocal request for an
attorney). Wysinger’s initial question thus was not an
unequivocal request for a lawyer and Agent Rehg was
not required to cease the interrogation at that point. As
we have done before, though, we encourage law enforce-
ment officers to heed the Supreme Court’s suggestion
in Davis that “when a suspect makes an ambiguous or
equivocal statement it will often be good police practice
for the interviewing officers to clarify whether or not
he actually wants an attorney.” Lee, 413 F.3d at 626-27
(quoting Davis, 512 U.S. at 461). That clarification can
aid both the police officers and the reviewing courts.
Lee, 413 F.3d at 626-27. But see Berghuis v. Thompkins, 130
S. Ct. 2250, 2259-60 (2010) (if a suspect makes an ambigu-
ous or equivocal statement concerning counsel, police
are not required to end the interrogation or ask
questions clarifying whether the accused wishes to
invoke his or her Miranda rights).
That first, ambiguous question by Wysinger came at
time index 12:54 in the video. Wysinger’s next reference
to a lawyer occurred at time index 13:03, after approxi-
mately nine minutes of interrogation. At that point,
Agent Rehg opened his notebook, pulled out his pen,
and asked Wysinger to “tell us what has been going on.”
Wysinger then made his second reference to counsel,
saying, “I mean, do you think I should have a lawyer?
At this point?” Video at 13:03; R. 287, Tr. at 111. Agent
Rehg responded that it was up to him, that if he wanted
an attorney, he should get one. Wysinger’s second
question was virtually identical to his initial, ambigu-
ous inquiry. In and of itself, it does not constitute an
No. 10-3894 23
unequivocal request for counsel. As is apparent from
Agent Rehg’s response, he heard Wysinger’s question
as just that, a question seeking the agent’s opinion.
But Wysinger’s very next sentence clarified the
request and removed all doubt as to his meaning. After
Agent Rehg told him, “If you want an attorney, by
all means, get one,” Wysinger responded, “I mean, but
can I call one now? That’s what I’m saying.” Video at
13:03; R. 287, Tr. at 111. That response to Agent Rehg’s
statement, in context, was an unequivocal request for
counsel that no reasonable officer could interpret other-
wise. The government asserts that this question could
have been asked to determine whether Wysinger would
still be eligible for cooperation if he called an attorney. But
that is a strained and unnatural reading of Wysinger’s
question. Agent Rehg had just flipped open his notebook
and asked directly (for the first time) for Wysinger to
tell the officers “what has been going on.” Wysinger
asked if the agent thought he should have a lawyer at
that point, and when the agent told him it was up
to him, he asked to “call one now.” In context, the gov-
ernment’s suggested meaning makes no sense.
The interrogation should have immediately ceased at
that point. Instead, Agent Rehg continued to make state-
ments and ask questions that a reasonable officer would
know were likely to elicit incriminating responses. For
example, within seconds, Agent Rehg asked if there was
“any dope or money” in Wysinger’s van. And in the
ensuing minutes, Agent Rehg challenged the truth of
Wysinger’s explanation for why he was in the East
24 No. 10-3894
St. Louis area, reminded Wysinger that the police had
intercepted phones calls, and told Wysinger that he
was familiar with other persons in Wysinger’s circle.
The court should have excluded everything on the
video from the invocation of the right to counsel at
time index 13:03 through the end of the interrogation
at 13:26 on the grounds that the additional twenty-
three minutes of interrogation violated Miranda and its
progeny.7
B.
Our conclusion that the court should have sup-
pressed any interrogation that occurred after Wysinger
invoked his right to counsel at time index 13:03 does not
address the first nine minutes of the video, which
Wysinger also sought to exclude. We therefore must
consider Wysinger’s alternate argument that the entire
video should have been suppressed because his state-
ments were obtained as the result of an inadequate and
misleading Miranda warning. In particular, Wysinger
complains that the Miranda warning misled him into
believing that his right to counsel applied only to “ques-
tioning” and that Agent Rehg then engaged in a course
of conduct designed to divert Wysinger away from in-
7
Although the agents later allowed Wysinger to call an
attorney, an isolated consultation with an attorney who is not
physically present is inadequate under Edwards and its
progeny to protect a suspect’s rights. See Minnick v. Mississippi,
498 U.S. 146, 154 (1990).
No. 10-3894 25
voking his rights by implying that questioning had not
yet begun. We will first address the adequacy of the
Miranda warning Agent Rehg delivered, and we will
then turn to whether Wysinger was misled and diverted
by the warning and the agents’ course of conduct.
1.
The government contends that Wysinger waived his
challenge to the adequacy of the Miranda warning by
not preserving the issue below. But Wysinger did in
fact raise this argument in his pretrial motion to
suppress in the district court, and the court addressed it
on the merits. R. 101 (Motion to Suppress Video and
Taped Statements). In that motion, he complained that,
after he requested a lawyer, the DEA agents “proceed[ed]
to direct the conversation away from the defendant’s
request for a lawyer” and continued the interrogation.
He also asserted that he “was not properly advised of
his rights to consult a lawyer and to have a lawyer
present [with] him during the interrogation.” Wysinger
raised the issue a second time in his post-trial motion
for judgment of acquittal, where he asserted that
Agent Rehg repeatedly attempted to misdirect him re-
garding his Miranda rights. R. 182 (Memorandum of
Law in Support of Motion for Judgment of Acquittal
Notwithstanding the Jury’s Verdict or in the Alternative
for a New Trial). Because the district court was alerted
to the issue and had an opportunity to rule on the merits,
the claim is therefore adequately preserved. United
States v. Van Eyl, 468 F.3d 428 (7th Cir. 2006).
26 No. 10-3894
We begin with the words of the Miranda warning, and
the context in which those words were delivered. Almost
as soon as the agents entered the interrogation room,
Wysinger asked whether he needed a lawyer. Agent Rehg
side-stepped the question and then told Wysinger that
he was under arrest. The agent then delivered the fol-
lowing warning to Wysinger, which he appeared to
be reading from a card he extracted from his wallet:
Before we ask any questions, you must understand
you have a right to remain silent. Anything you say
can be used against you in court. You have a right
to talk to a lawyer for advice before we ask any ques-
tions or have one—have an attorney with you during
questioning. If you can’t afford a lawyer, one will be
appointed for you before we ask any questions. Do you
understand—
Video at 12:55; R. 287, Tr. at 105.8 At that point, Agent
Rehg, who had been scratching his neck while reading
8
This transcription is based on several careful reviews of the
tape, as well as the court reporter’s rendition of the tape as
it was played during the trial. In this part of the tape, Agent
Rehg spoke so softly that it is difficult to hear what he is
saying. The court reporter, for example, omitted from the
official transcript the words, “you must understand you have
a right to remain silent.” As transcribed in court, there are
thus significant omissions in the warning. Because we have
the benefit of the tape itself, and because the district court
based its ruling on the tape itself, we will rely on the tape.
In all relevant respects, our transcription is consistent with
the district court’s findings of fact.
No. 10-3894 27
the warning, slapped the table loudly, causing Wysinger
to move back quickly from the table and exclaim,
“Damn!” After explaining that he was killing an insect,
Agent Rehg picked up the card again and asked Wysinger
if he had ever been arrested. Wysinger replied, “Petty
shit.” Agent Rehg then asked him, “You understand your
rights, though?” and Wysinger replied, “Yeah.” Agent
Rehg then asked Wysinger if he had a high school or
college education, and Wysinger shook his head nega-
tively and said, “None of that.” Agent Rehg repeated,
“But you understand, right?” and Wysinger again said,
“Yeah.” Video at 12:55; R. 287, Tr. at 105.
In Miranda, the Supreme Court set forth the basic
warnings required to preserve a suspect’s Fifth Amend-
ment rights:
At the outset, if a person in custody is to be sub-
jected to interrogation, he must first be informed in
clear and unequivocal terms that he has the right to
remain silent. . . . The warning of the right to
remain silent must be accompanied by the explana-
tion that anything said can and will be used against
the individual in court. . . . [A]n individual held for
interrogation must be clearly informed that he has
the right to consult with a lawyer and to have the
lawyer with him during interrogation[.] . . . In order
fully to apprise a person interrogated of the extent
of his rights under this system then, it is necessary
to warn him not only that he has the right to consult
with an attorney, but also that if he is indigent a
lawyer will be appointed to represent him.
28 No. 10-3894
Miranda, 384 U.S. at 467-73. The Court also provided
a handy summary of the now-familiar warnings, as well
as the consequences of failing to deliver the warnings:
To summarize, we hold that when an individual is
taken into custody or otherwise deprived of his free-
dom by the authorities in any significant way and
is subjected to questioning, . . . [h]e must be warned
prior to any questioning that he has the right to
remain silent, that anything he says can be used
against him in a court of law, that he has the right
to the presence of an attorney, and that if he cannot
afford an attorney one will be appointed for him
prior to any questioning if he so desires. Oppor-
tunity to exercise these rights must be afforded to
him throughout the interrogation. After such
warnings have been given, and such opportunity
afforded him, the individual may knowingly and
intelligently waive these rights and agree to answer
questions or make a statement. But unless and until
such warnings and waiver are demonstrated by the
prosecution at trial, no evidence obtained as a result
of interrogation can be used against him.
Miranda, 384 U.S. at 478-79.
Agent Rehg veered slightly from the standard warning
language in a few respects. A potentially serious misstate-
ment of the Miranda warning occurred when Agent Rehg
told Wysinger that he had the “right to talk to a lawyer
for advice before we ask any questions or have
one—have an attorney with you during questioning.”
Taken literally, Agent Rehg told Wysinger that he could
talk to an attorney before questioning or during ques-
No. 10-3894 29
tioning. In fact, Wysinger had a right to consult an
attorney both before and during questioning. Perhaps
because they advise suspects of their rights so often,
officers sometimes become lax with the wording of the
warning and risk a misstatement of the law. Agent Rehg’s
wallet card is not part of the record on appeal and so we
do not know if the card is incorrect or if Agent Rehg
simply misspoke when he changed the “and” to an “or.”
The district court, which considered the same video and
transcript that we are analyzing, also found that Agent
Rehg told Wysinger that “he had a right to talk to a
layer [sic] for advice before questioning or to have an
attorney present during questioning[.]” R. 151, at 10
(emphasis added). The court found that this warning
was adequate under Miranda.
We review the district court’s findings of fact for
clear error, but there is no dispute here regarding the
actual words that Agent Rehg spoke when he read
Wysinger his rights. See Peters, 435 F.3d at 750-51. The
legal effect of those words, though, is a question of law
that we review de novo, and it is the legal sufficiency of
the warning that is at issue here. Peters, 435 F.3d at 751.
The Supreme Court has repeatedly declined to dictate
the particular words in which the Miranda information
must be conveyed. See Florida v. Powell, 130 S. Ct. 1195, 1204
(2010) (noting that, although the four warnings Miranda
requires are invariable, the Court has never dictated the
words in which the essential information must be con-
veyed); Duckworth v. Eagan, 492 U.S. 195, 202 (1989) (com-
menting that the Court has never required that Miranda
warnings be given in the exact form described in that
decision); California v. Prysock, 453 U.S. 355, 359-60 (1981)
30 No. 10-3894
(remarking that Miranda itself indicated that no
talismanic incantation was required to satisfy its stric-
tures). However, the words the officer employs must
reasonably convey to a suspect his rights as required
by Miranda. Powell, 130 S. Ct. at 1204-05 (the relevant
inquiry is whether the warnings reasonably conveyed
to a suspect his rights as required by Miranda; the
words used must be sufficiently comprehensive and com-
prehensible when given a commonsense reading); Duck-
worth, 492 U.S. at 202 (a fully effective equivalent of
the warnings listed in Miranda is sufficient); Prysock,
453 U.S. at 359-60 (the Miranda warnings or their
equivalent will suffice).
The wording of Agent Rehg’s warning may have been
inadequate by this standard. The agent’s divergence
from the familiar script would put a suspect to a false
choice between talking to a lawyer before questioning or
having a lawyer present during questioning, when
Miranda clearly requires that a suspect be advised that
he has the right to an attorney both before and during
questioning. In Powell, the officer delivering the Miranda
warning told the suspect that he had “the right to talk to
a lawyer before answering any of our questions,” and
that he had “the right to use any of these rights at any
time you want during this interview.” 9 130 S. Ct. at 1200.
The Court found the warning sufficient:
9
There was no dispute in Powell regarding whether the officer
adequately conveyed the other Miranda warnings. The only
issue was whether the warning was sufficient to convey the
right to the presence of counsel before and during interrogation.
No. 10-3894 31
The first statement communicated that Powell could
consult with a lawyer before answering any par-
ticular question, and the second statement con-
firmed that he could exercise that right while the
interrogation was underway. In combination, the
two warnings reasonably conveyed Powell’s right to
have an attorney present, not only at the outset
of interrogation, but at all times.
Powell, 130 S. Ct. at 1205. Unlike the warning in Powell,
Agent Rehg’s statement of Miranda rights did not rea-
sonably convey the right to have an attorney present
“not only at the outset of interrogation, but at all times.” Id.
In Duckworth, the warning given to the suspect
included the admonition, “You have a right to talk to a
lawyer for advice before we ask you any questions, and
to have him with you during questioning.” 492 U.S. at
198. But after advising the suspect that he had the right
to an attorney even if he could not afford to hire one,
the police officer also told him, “We have no way of
giving you a lawyer, but one will be appointed for you, if
you wish, if and when you go to court.” Id. The Court
found that this language did not mislead the suspect
into believing that he did not have the right to a lawyer
unless charges were filed and he went to court. Rather,
it accurately described the process for obtaining ap-
pointed counsel in that jurisdiction. Miranda itself
did not require the police to provide the lawyer or have
a station house lawyer present at all times to advise
arrestees. Duckworth, 492 U.S. at 203-04. The Court
noted that Miranda required only that the police not
32 No. 10-3894
question a suspect unless he waives his right to counsel.
Id. The Court asserted that reviewing courts “need not
examine Miranda warnings as if construing a will or
defining the terms of an easement.” Duckworth, 492 U.S.
at 203 (quoting Prysock, 453 U.S. at 361). Instead, a re-
viewing court should consider whether the warnings
reasonably conveyed to the suspect his rights as
required by Miranda. Duckworth, 492 U.S. at 203.
Similarly, in Prysock, the Court found that the warnings
given were adequate even though not given in the usual
order:
It is clear that the police in this case fully conveyed to
respondent his rights as required by Miranda. He
was told of his right to have a lawyer present prior
to and during interrogation, and his right to have a
lawyer appointed at no cost if he could not afford
one. These warnings conveyed to respondent his
right to have a lawyer appointed if he could not
afford one prior to and during interrogation.
Prysock, 453 U.S. at 361. But Wysinger was not informed
“of his right to have a lawyer present prior to and during
interrogation.” Id. Although there is no particular
language that must be used to convey the warnings, and
although we are not to construe the words of the
warning as if reading the terms of a will or an easement,
the difference between an “and” and an “or,” depending
on the context, may cause a serious misunderstanding
of one of the core Miranda rights. See Missouri v. Seibert,
542 U.S. 600, 611 (2004) (plurality) (“[j]ust as no
talismanic incantation is required to satisfy [Miranda’s]
No. 10-3894 33
strictures, . . . it would be absurd to think that mere
recitation of the litany suffices to satisfy Miranda in every
conceivable circumstance”) (internal quotation marks
and citations omitted).
A person given a choice between having a lawyer
with him before questioning or during questioning
might wait until it is clear that questioning has begun
before invoking his right to counsel. As we noted above,
the Miranda safeguards apply not only to express ques-
tioning but also to “any words or actions on the part of
the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably
likely to elicit an incriminating response from the sus-
pect.” Innis, 446 U.S. at 300-01. Although judges and
lawyers know that interrogation encompasses more
than direct questioning, the average citizen may be un-
aware that Miranda’s protection extends to these addi-
tional tactics. A correctly worded Miranda warning
avoids this confusion by alerting the suspect that he or
she has an immediate right to an attorney and also a
right to have an attorney present during questioning. See
Berghuis, 130 S. Ct. at 2260 (full comprehension of the
rights to remain silent and to request an attorney are
sufficient to dispel whatever coercion is inherent in
the interrogation process). But an incorrectly worded
Miranda warning, one that suggests that Miranda rights
apply only to direct questioning or to the time before
direct questioning, followed by diversionary tactics that
redirect the suspect away from asserting those rights,
frustrates the purpose of the Miranda protections. See
Seibert, 542 U.S. at 621-22 (noting that the Miranda rule
34 No. 10-3894
would be frustrated if police were allowed to undermine
its meaning and effect by using a technique that creates
too high a risk that a post-warning statement would
be obtained when a suspect was deprived of the “knowl-
edge essential to his ability to understand the nature of
his rights and the consequences of abandoning them.”)
(Kennedy, J., concurring in the judgment) (quoting
Moran v. Burbine, 475 U.S. 412, 423-24 (1986)).
2.
Perhaps this error in wording alone would not be
enough to necessitate the exclusion of the entire video-
taped interrogation if it was otherwise clear that
Wysinger properly understood his rights in the context
in which they were given. But Wysinger contends that
the warning appeared to condition his rights on the
beginning of “questioning” and the agents then implied
that questioning had not yet begun. According to
Wysinger, the agents repeatedly attempted to divert his
attention from asserting his rights. The diversion began,
according to Wysinger, one minute into the interrogation,
when he asked Agent Rehg, “Do I need a lawyer before we
start talking?” and Agent Rehg replied, “Well, we’re going
to talk about that.” But the agent did not answer
Wysinger’s question until he asked it a second time
approximately nine minutes later. Instead of answering
Wysinger’s first question, Agent Rehg read Wysinger his
rights as we detailed above. Near the conclusion of the
ambiguously phrased warning, Agent Rehg slammed the
table loudly, startling Wysinger and further diverting him
No. 10-3894 35
from the question he had just asked regarding his need for
a lawyer. After determining that Wysinger had been
arrested previously only for petty crimes and lacked a
high school or college education, Agent Rehg then re-
peatedly implied that questioning had not yet begun.
He first told Wysinger:
You know, listen, we’re going to cut to the chase, and
we’re going to lay it out for you a little bit. It’s going to
be up to you what you want to do. . . . I’m gonna
tell you what the story is. You listen for a minute.
Video at 12:55-12:56; R. 287, Tr. at 105-06. This implied
that Wysinger could decide whether to exercise his
rights after Agent Rehg “la[id] it out for” him and told
him “what the story is,” and that, in the meantime, he
should “listen for a minute.” The time to invoke his
rights, in other words, had not yet arrived. The “story”
consisted of Agent Rehg telling Wysinger that the DEA
had been watching him since the prior year, that they
had seized drugs from his brother and both drugs and
cash from some of his associates, and had intercepted
a number of phone calls involving Wysinger, his brother
and others. Not surprisingly, this provocative speech
prompted some incriminating responses from Wysinger,
as the speech was undoubtedly designed to do. See
Miranda, 384 U.S. at 450 (describing the interrogation
tactics of displaying an air of confidence in the suspect’s
guilt and appearing to be interested only in confirming
certain details); Innis, 446 U.S. at 299 (noting that tactics
such as positing the guilt of the suspect, minimizing
the moral seriousness of the offense, and casting blame
36 No. 10-3894
on the victim or society, in a custodial setting, amount
to interrogation as effective as express questioning).
Agent Rehg then told Wysinger that “basically there
are two choices here.” Interestingly, neither of them
involved invoking his right to remain silent or his right
to have counsel present. Instead, Agent Rehg told
Wysinger:
If you totally—if you didn’t want to talk with us,
down the road most likely you’re going to be charged
with conspiracy to distribute cocaine. Conspiracy is
a tough charge.
Video at 12:59; R. 287, Tr. at 108. After a response from
Wysinger, Agent Rehg presented the other choice, co-
operation, framed as whether Wysinger wanted to “help
[him]self.” Wysinger was far more interested in helping
his brother but Agent Rehg clearly told him the
charges against his brother would not be dismissed. After
Wysinger made arguably the most incriminating state-
ment of the interrogation,1 0 Agent Rehg again told him
10
That statement was: “There’s a whole lot of motherfuckers
in Texas I do not like. . . . And I tell motherfuckers, in this
game, you don’t fuck with those people, ‘cause you make
enemies. You know what I’m saying? You always keep the
motherfucker happy if you doing this type of shit ‘cause the
motherfucker come back to haunt you. You know what I’m
saying?” Video at 13:00. The government made repeated
references to this statement throughout trial and closing
arguments. The government argued to the jury that the
(continued...)
No. 10-3894 37
he was going to explain “how this works.” Video at 13:00;
R. 287, Tr. at 109. The agent then described the process
of cooperation. Wysinger again tried to strike a deal to
benefit his brother, but Agent Rehg made it clear that
Tryd Wysinger’s fate was in the hands of the United
States Attorney and the judge assigned to the case.
At that point, Agent Rehg finally indicated that the
“questioning” part of the meeting was commencing,
stating, “Well, tell us what has been going on. Maybe that’s
the best way to start.” Video at 13:03; R. 287, Tr. at 111.
By indicating that this was “the best way to start,”
Agent Rehg confirmed that this was the beginning of
questioning, implying that the first nine minutes of
the meeting did not constitute interrogation. This im-
plication, of course, was contrary to the broad definition
of interrogation adopted by the Supreme Court, which
includes any words that the police should know are
likely to elicit an incriminating response. Innis, 446 U.S. at
300-01. For the first time since the interrogation began,
Agent Rehg flipped open his notebook and pulled out
a pen. At this, Wysinger seemed to recognize that “ques-
tioning” was starting and he then clearly invoked his
right to a lawyer as we concluded above.
Although we have already determined that the court
should have excluded the video from that point
forward, we will recount the continued pattern of diver-
10
(...continued)
“game” to which Wysinger referred is the “drug business.”
R. 290, Tr. at 23.
38 No. 10-3894
sion because it relates to and supports Wysinger’s claim
of misleading Miranda warnings. Rather than respond
to Wysinger’s direct and immediate question of whether
he could call an attorney at that instant, Agent Rehg
again diverted Wysinger: he asked questions about the
lawyer, gave some incorrect “advice” about whether
Wysinger could use the same lawyer that his brother was
using, and continued the interrogation for twenty-
three more minutes. See Lee, 413 F.3d at 627 (expressing
concern over police tactics of attempting to persuade
suspect who had just invoked his right to counsel to
give up his asserted right). During this time, Wysinger
struggled to remember the name and phone number of
the attorney, made a few more incriminating state-
ments, asked the agents if they could retrieve the
lawyer’s phone number from his van, and finally
repeated yet again his desire to call the lawyer, asking
the agent to get the number for him so that he could
“call this attorney, get his advice.” Video at 13:07; R. 287,
Tr. at 114.
Agent Rehg himself testified at trial that when Wysinger
said he did not want to cross any lines and then regret
it, he understood that Wysinger did not wish to speak
without an attorney:
He wanted to work with us, he wanted to cooperate.
He just didn’t want to tell us about his drug dealings
at that time until he had an attorney with us. He
didn’t want to cross the line, as he said, until he
had an attorney.
R. 287, Tr. at 125. Agent Rehg was interpreting a state-
ment Wysinger made at time index 13:06, one minute
No. 10-3894 39
before Wysinger said, “I’m going to call this attorney,
get his advice,” and some twenty minutes before the end
of the video. Agent Rehg thus conceded that he under-
stood that Wysinger had invoked his right to counsel no
later than time index 13:06. If there was any doubt
about the agent’s use of tactics intended to divert
Wysinger from asserting his rights, Agent Rehg’s con-
tinuation of interrogation after that moment demon-
strated the strategy from the beginning. See Smith,
469 U.S. at 98 (the Edwards bright-line rule—that
all questioning must stop after an accused requests
counsel—prevents the police, through badgering or over-
reaching, whether explicit or subtle, whether deliberate
or unintentional, from wearing down the accused and
persuading him to incriminate himself notwithstanding
his earlier request for counsel).
In sum, after Wysinger asked in the first minute of the
interrogation if he should call a lawyer, Agent Rehg first
told Wysinger that they were “going to talk about that,”
and then read a potentially misleading version of his
rights, one that put Wysinger to the false choice of
talking to a lawyer before questioning or having a
lawyer with him during questioning. Rather than cor-
recting this error, the agent then magnified the mistake
by repeatedly implying that “questioning” had not yet
begun. The agent then narrowed Wysinger’s options
even further, telling him he had two choices, namely
cooperating or being charged with conspiracy. The
agent failed to mention that Wysinger had two
other options: to remain silent, or to consult a lawyer im-
mediately and to have one with him during the inter-
40 No. 10-3894
rogation. When it was obvious to Wysinger that “ques-
tioning” had begun, he immediately invoked his right
to counsel.
Even after Agent Rehg clearly recognized that Wysinger
had asked for a lawyer, and after the agent permitted
Wysinger to call an attorney, he continued to interrogate
Wysinger and continued to compound the misimpres-
sion he created by emphasizing “questioning” as the
trigger for Miranda protections:
The deal is this. If we decide to release you today,
and again, I am not asking you questions. You want an
attorney. Let me just give you some advice. If you have
any hopes of cooperating, you need to leave it alone
down here. Only person you can talk to down here
is your attorney. Don’t be talking to anybody else,
any of the guys that we’re talking to.
Video at 13:21; R. 287, Tr. at 118-19 (emphasis added). The
agent thus continued to draw a distinction between
“questioning” and “advice,” both of which qualify as
interrogation under well-established standards when
the “advice” is likely to elicit an incriminating response.
Wysinger, who had already shown agitation at the
mention of cooperating witnesses, predictably reacted to
this new reference, and threatened to “hurt somebody,” a
threat that the government played up during the trial as
evidence of Wysinger’s involvement in the conspiracy.
Agent Rehg’s ensuing tactics, which may have been
perfectly acceptable in the context of a proper warning,
exacerbated the misimpression created by the botched
warning.
No. 10-3894 41
“[T]he prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates” the
use of the Miranda safeguards. Miranda, 384 U.S. at 444.
See also Brown v. Illinois, 422 U.S. 590, 604 (1975)
(the burden of showing admissibility rests on the pros-
ecution). The government failed to meet its burden of
demonstrating that proper Miranda warnings were
given. Because the warning Agent Rehg gave applied
only to “questioning,” because it erroneously suggested
that Wysinger had to choose between having a lawyer
present before questioning or during questioning, and
because the agents used various tactics to confuse
Wysinger regarding the start of “questioning” and
divert him from exercising his rights, we agree that the
warning was inadequate and misleading. The district
court, therefore, should have excluded the first nine
minutes of the videotaped interrogation. Combined with
our prior conclusion that everything after Wysinger
invoked his right to counsel should have been ex-
cluded, this leads to our conclusion that the entire video-
taped interrogation was inadmissible.
C.
The government contends that, if there was any error
in admitting the video, the error was harmless. An
error is harmless if it “does not affect substantial rights.”
Fed. R. Crim. P. 52(a). “To be harmless, an error must
have no affect [sic] on the outcome of the trial.” Lee, 413
42 No. 10-3894
F.3d at 627. The government asserts that, even absent the
video, the evidence at trial establishing Wysinger’s
guilt was “overwhelming.” The government cites the
testimony of the three cooperating co-conspirators,
Montez Douglas, Keith Holmes and Sebastion Robinson.
The government also points to the money and drugs
seized from others in the conspiracy, including the
$54,000 that Wysinger claimed as his own in his post-
holiday call with Agent Rehg. The government also
argues that Wysinger never confessed to being a drug
dealer on the video, lessening any prejudicial effect.
We cannot agree that the other evidence was overwhelm-
ing. The vast majority of the evidence against Wysinger
came from cooperating co-conspirators who each had
strong motives to lie and to cast blame away from them-
selves. Both Holmes and Robinson, for example, had
been caught with drugs and/or large amounts of cash.
Unlike the witnesses against him, Wysinger was not
personally found in possession of drugs or large
amounts of cash. And Wysinger was never tied to the
cell phone used to make the calls that the government
asserted connected him to drugs or money. True, someone
claiming to be Wysinger called Agent Rehg to claim
ownership of the $54,000 seized from Tryd’s van. But
without the video, the only evidence connecting
Wysinger to that call is Agent Rehg’s voice identification
of Wysinger. That recorded call was clearly important
to the jury, as it was one of two pieces of evidence that
the jury requested to review during deliberations.
Moreover, the government’s claim that the prejudicial
effect of the video was diminished because Wysinger
No. 10-3894 43
did not admit to being a drug dealer is belied by the
government’s use of the video at trial, and by its ob-
vious importance to the jury. See Innis, 446 U.S. at 301
n.5 (defining “incriminating response” as “any re-
sponse—whether inculpatory or exculpatory—that the
prosecution may seek to introduce at trial”) (emphasis
in original); Miranda, 384 U.S. at 476-77 (“No distinc-
tion can be drawn between statements which are
direct confessions and statements which amount to ‘ad-
missions’ of part or all of an offense. The privilege
against self-incrimination protects the individual from
being compelled to incriminate himself in any manner;
it does not distinguish degrees of incrimination.”). At
trial, the government first showed the video once in its
entirety and then displayed two segments of the video
again during Agent Rehg’s testimony. In particular, the
government replayed the part of the video where
Wysinger said, “There’s a whole lot of motherfuckers
in Texas I do not like. . . . And I tell motherfuckers, in
this game, you don’t fuck with those people, ‘cause
you make enemies. You know what I’m saying? You
always keep the motherfucker happy if you doing this
type of shit ‘cause the motherfucker come back to
haunt you.” Agent Rehg explained that he understood
Wysinger to mean that he might be willing to cooperate
against certain individuals in Texas he did not like, and
that the “game” in Wysinger’s statement is the “drug
game.” R. 287, Tr. at 124. In total, the government
managed to refer to this statement no fewer than six
times during the trial, and the jury was exposed to it
a seventh time when the video was replayed during
44 No. 10-3894
deliberations. In addition to showing the statement to
the jury twice during Agent Rehg’s testimony, Agent
Rehg paraphrased the statement, and the government
mentioned it once during closing argument and twice
more during rebuttal.
The government also replayed Wysinger’s statement
indicating he was considering cooperating:
I just don’t want to cross no lines, and then, you
know what I’m saying, regret shit. I mean, I want to
work with you. You know what I’m saying?
Video at 13:06; R. 287, Tr. at 113 and 125. Agent Rehg
explained that he understood Wysinger to mean that he
wanted to cooperate but did not want to discuss his drug
dealing until he had an attorney present. R. 287, Tr. at 125.
In addition to two playings during trial and one during
deliberations, the government mentioned Wysinger’s
reference to possible cooperation during closing argu-
ments as well. Given the prominence the government
gave to these and other statements from the interroga-
tion at trial, and given that the jury itself accorded
special importance to the video, the error in admitting
the video likely affected the outcome of the trial and
thus was not harmless.
D.
Wysinger also argues that admitting the portions of
the video during which Wysinger spoke to his attorney
on the phone violated a Sixth Amendment right to
private and confidential communication with his attor-
No. 10-3894 45
ney. The government contends that Wysinger waived
this claim by not raising it below. Because we have
already ruled that this portion of the video should
have been excluded because Wysinger had clearly
invoked his right to counsel under Miranda, we need
not address either the claim of waiver or the merits of
the issue.
III.
For the reasons stated above, we vacate Wysinger’s
conviction and remand for proceedings consistent with
this opinion. Any retrial may not include any part of
the video in the government’s case-in-chief. We thank
Wysinger’s appointed counsel for their vigorous ad-
vocacy on his behalf.
V ACATED AND R EMANDED.
6-22-12