NOT FOR PUBLICATION FILED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.

3 16-50196