dissenting:

In United States v. Fouche, 776 F.2d 1398, 1404 (9th Cir.1985) [Fouche I], this court held that when a criminal suspect “makes an equivocal assertion of counsel the police must cease all questions except that they may attempt to clarify the suspect’s desire for counsel.” We concluded that interrogation could continue only if clarification revealed that the suspect did not want counsel. Id. at 1405 . We remanded the case to the district court for additional findings concerning Fouche’s and Agent Alba’s communications in light of this circuit’s newly adopted standard. The district court concluded that Agent Alba sufficiently clarified Fouche’s request for counsel and that the interrogation and confession that followed were legitimate. The majority now affirms. I dissent because the facts of this case do not support the majority’s conclusion under the standard set forth in Fouche I.

The majority concedes that Fouche’s statement that he “might want to talk to a lawyer” constitutes an equivocal request for counsel. Thus, the only question before us is whether Agent Alba sufficiently clarified Fouche’s request before proceeding with the interrogation. I submit that subsequent events instead of clarifying the defendant’s equivocal request for counsel compounded the uncertainty.

After Fouche stated that “he might want to talk to a lawyer,” he left the interrogation room and made a phone call to his wife. When he returned to the room, Agent Alba reread the rights forms and asked Fouche if he understood his rights and wished to waive them. Fouche stated that he did. At this point, it would appear that Agent Alba was attempting to clarify Fouche’s previous equivocal request for counsel. Agent Alba questioned Fouche about his telephone conversation with his wife, and Fouche replied that his wife had told him to do what he thought was best.

The following exchange in the conversation, and the crucial dialogue in determining whether Agent Alba sufficiently clarified Fouche’s request for counsel, occurred *1290 when Fouche asked Agent Alba for legal advice. Agent Alba merely replied that he was not a lawyer and would not give advice. Agent Alba then asked Fouche if he wanted to make a statement, to which Fouche replied that he did, and the interrogation continued.

Fouche’s request for advice from Agent Alba raises two issues. First, at the very least, it creates ambiguity concerning whether or not he wanted an attorney. According to the Fifth Circuit’s ruling in Nash v. Estelle, 597 F.2d 513 (5th Cir.), cert. denied, 444 U.S. 981 , 100 S.Ct. 485 , 62 L.Ed.2d 409 (1979), whose standard we adopted in Fouche I, 776 F.2d at 1404-05 , we must review “the whole event” in our determination of whether the interviewing agent impinged on the suspect’s rights. Nash, 597 F.2d at 518 . The “whole event” here reveals that Agent Alba did not sufficiently clarify Fouche’s request for counsel.

Although Agent Alba previously had read Fouche his rights and Fouche had signed a waiver form, these actions are not dispositive. As the First Circuit stated, and the majority cites, a mere rereading of Miranda rights does not sufficiently clarify a suspect’s equivocal request for counsel. United States v. Porter, 764 F.2d 1, 7 ; see also United States v. Cherry, 733 F.2d 1124, 1132 (5th Cir.1984). Although Agent Alba may have done “more than merely recite words from a card,” as the majority suggests, he did not do enough. The test adopted in this circuit requires that the agent sufficiently clarify whether the suspect desires counsel. Fouche, 776 F.2d at 1404 . Only if the clarification reveals that the suspect does not want counsel may the interrogation continue. Id. at 1405 (citing Thompson v. Wainwright, 601 F.2d 768, 771 (5th Cir.1979)).

A question remains concerning whether a suspect who admits to understanding his rights actually understands those rights when he proceeds to ask the interrogating agent for advice. Nash may not require in every case a “mechanical and talismanic repetition of the word ‘lawyer’ when the Miranda warnings have been given twice.” Maj. Op. at 1289. Here, however, Fouche requested legal advice. In order to sufficiently clarify this request, the agent should have asked Fouche whether he wanted an attorney. Merely stating that he would not provide legal advice and asking Fouche whether he wanted to make a statement was not sufficient.

Second, I believe that Fouche’s request for advice from Agent Alba may constitute a second equivocal request for counsel. The Supreme Court stated in Miranda that a suspect invokes his right to counsel when he “indicates in any manner and at any stage of the process” that he wishes to consult an attorney. 384 U.S. at 444-45, 86 S.Ct. at 1612. Although the Supreme Court has not defined specifically what constitutes a valid assertion of the right to counsel, other courts have found, at the very minimum, an equivocal assertion of counsel where the suspect attempted to contact his attorney by making a phone call in the presence of an agent, United States v. Porter, 764 F.2d 1, 6 (1st Cir.1985); where the suspect stated “[m]aybe I should talk to an attorney before I make a further statement,” and “[w]hy should I not get an attorney?” Cherry, 733 F.2d at 1127 ; where the suspect both asked for appointment of counsel and expressed a desire to make a statement, Thompson v. Wainwright, 601 F.2d 768, 771 ; and where the suspect stated that “maybe it would be good to have a lawyer,” United States v. Prestigiacomo, 504 F.Supp. 681, 683 (E.D.N.Y.1981) (applying a more lenient standard than our own in concluding that the statement was a sufficient request for counsel but also analyzing the statement as an equivocal request for counsel). Similarly, Fouche’s request that Agent Alba give him legal advice constitutes a second equivocal request for counsel.

Even assuming that the majority is unwilling to find a second equivocal request, the defendant’s request for advice reveals that Agent Alba failed to clarify sufficiently the first equivocal request. Further clarification was warranted. It was not forthcoming. Agent Alba’s question that followed, “Do you want to make a statement?” did not clarify the matter. The *1291 agents may not use a statement a suspect makes after an equivocal request for counsel, but before the request is clarified.” Fouche I, 776 F.2d at 1405 . Thus, the statements that followed were inadmissible. I, therefore, respectfully dissent.