United States v. John Wysinger

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