[00:00:20] Speaker 03:
Good morning, Your Honors.

[00:00:21] Speaker 03:
Paul Barr for Mr. Lascano-Neria.

[00:00:24] Speaker 03:
The Miranda advisal in this case was misleading for two reasons.

[00:00:28] Speaker 03:
First, the interrogating agent improperly told Mr. Lascano-Neria that he could not selectively invoke his right to remain silent.

[00:00:36] Speaker 03:
And second, the agent improperly implied that Mr. Lascano-Neria's right to remain silent would only last until his attorney arrived.

[00:00:45] Speaker 03:
These misadvisals, taken together or individually, rendered the Miranda warning

[00:00:50] Speaker 03:
fatally flawed.

[00:00:51] Speaker 03:
This court should reverse a Miranda.

[00:00:54] Speaker 01:
Does the reading of the formal Miranda warning the second time cure the problem?

[00:01:01] Speaker 03:
It does not, Your Honor.

[00:01:02] Speaker 03:
As to either of the misadvisals, starting with the selective invocation, because I think that's the clearest, it's clear on its face that the Miranda warning that was provided from the pre-printed form is completely silent about the right to selectively invoke.

[00:01:18] Speaker 03:
because it's not a right that's expressly required by Miranda.

[00:01:21] Speaker 03:
But once Agent Rivas incorrectly said that selective invocation was not available to Mr. Lascano-Neria,

[00:01:31] Speaker 03:
He made no effort and could not have corrected the error, absent some affirmative statement from Agent Rivas himself saying, you know what, I've misspoken.

[00:01:40] Speaker 03:
Let's start over.

[00:01:41] Speaker 03:
Here's what the law is.

[00:01:43] Speaker 03:
But simply reading the same pre-printed form, which again is silent as to the selective invocation issue, could not cure the issue.

[00:01:51] Speaker 01:
And the pre-printed form is what gave rise to his questions in the first place.

[00:01:55] Speaker 03:
That's correct, Your Honor.

[00:01:57] Speaker 00:
there's a lot of cross talk between the two about this issue and the officer essentially he doesn't say explicitly let me clarify but he says

[00:02:10] Speaker 00:
you know, cuts him off.

[00:02:12] Speaker 00:
Mr. Lascanonera says, ah, that's what, he says, well, that's why it's better, but I'm going to read it to you one more time for you to understand it well.

[00:02:18] Speaker 00:
So it seems like he is saying, look, let me read it again.

[00:02:21] Speaker 00:
Make sure you understand it.

[00:02:23] Speaker 00:
And it's incumbent on Mr. Lascanonera to say, if he didn't understand it, to say, well, I don't understand.

[00:02:29] Speaker 03:
Well, I would disagree a little bit, Your Honor, with respect to who it is incumbent upon.

[00:02:34] Speaker 03:
In this situation, this Court has made clear that when there's confusion that's been injected into the advisable proceedings, it's the onus of the government to clarify.

[00:02:41] Speaker 00:
And the government says, here, that's what I'm going to clarify.

[00:02:44] Speaker 00:
I'm going to read that to you again, and so you understand it.

[00:02:48] Speaker 00:
And I guess if he still didn't understand it, he should have then said, I still don't understand.

[00:02:52] Speaker 00:
But he didn't.

[00:02:52] Speaker 00:
He said, I understood it.

[00:02:54] Speaker 03:
Well, but critically again, simply rereading the same pre-printed form is not going to and could not address Mr. Lascano's concern or question, which is again, can I answer some questions and not other questions?

[00:03:07] Speaker 03:
Agent Rivas tells him, no, you can't do that.

[00:03:11] Speaker 03:
Let me reread the form to you, which again, doesn't answer that question at all.

[00:03:14] Speaker 03:
It's completely silent.

[00:03:15] Speaker 03:
So Mr. Lascano Nerea is left with the only impression that Agent Rivas gave to him, which is that it's all or nothing.

[00:03:22] Speaker 03:
You can't answer some.

[00:03:23] Speaker 03:
and not answer others.

[00:03:24] Speaker 03:
And that's an incorrect statement.

[00:03:25] Speaker 02:
He did say that, but the translation is that, okay, it's better.

[00:03:28] Speaker 02:
It's better.

[00:03:29] Speaker 02:
I'm going to read it to you one more time for you to understand it.

[00:03:32] Speaker 02:
Then he reiterates the advisement, which does explain the circumstances under which you can stop answering questions.

[00:03:41] Speaker 02:
And then the defendant had no more questions after that.

[00:03:46] Speaker 03:
That's true, Your Honor, but again, it doesn't speak to the specific issue about selective invocation.

[00:03:52] Speaker 03:
And this court in Solis said that is a right that people have.

[00:03:54] Speaker 03:
You can control the questioning, you can answer some and not others.

[00:03:58] Speaker 03:
And this court found reversible error when the agents asked questions that exceeded the narrow scope that the defendant in that case had set for what topics he was willing to discuss.

[00:04:09] Speaker 03:
And if it's reversible error to infringe on the right of selective invocation, it must also be reversible error to make an incorrect advisal about that very right.

[00:04:20] Speaker 03:
Otherwise, the right itself is eviscerated.

[00:04:22] Speaker 03:
And that's what happened in this case based on Agent Rivas' response to the questions Mr. Lascano posed to him.

[00:04:31] Speaker 03:
The second issue

[00:04:33] Speaker 03:
stems from Agent Rivas's initial response to Mr. Lascano-Nario's question when he says that Mr. Lascano did not need to answer questions until you have your attorney.

[00:04:48] Speaker 03:
And that was confusing in context and served to undermine the Miranda advice by suggesting again that Mr. Lascano's right to remain silent lasted only until his attorney was present.

[00:05:00] Speaker 03:
This error also was not corrected by the rereading of the advisal.

[00:05:06] Speaker 03:
This court has held that even a correct advisal is not by itself sufficient when viewed in the totality of the exchange between agent and detainee.

[00:05:18] Speaker 03:
correct errors.

[00:05:18] Speaker 03:
So in San Juan Cruz and Tello Rosales, in both cases, there was a correct statement of the law read to the detainee, but the court found reversible error nonetheless because there was some other instruction, some other warning that was given that was in conflict or otherwise was confusing.

[00:05:37] Speaker 03:
So the mere fact that the agent reread this pre-printed form without telling Mr. Lascato-Nerea to disregard the state,

[00:05:46] Speaker 03:
The conversation that had gone on until that point is not sufficient to correct the error.

[00:05:53] Speaker 03:
It's not enough to just simply reread the warning.

[00:05:55] Speaker 03:
The agent has to, at that point, take some affirmative step to clear the decks and start over.

[00:06:00] Speaker 01:
It sounds as though the agent himself doesn't understand Miranda.

[00:06:05] Speaker 01:
I mean, he's given two incorrect answers.

[00:06:09] Speaker 01:
I think, I mean, I don't blame him.

[00:06:11] Speaker 01:
His job is to arrest people and so on and to read the form.

[00:06:14] Speaker 01:
But it sounds to me as though he does not himself understand.

[00:06:18] Speaker 01:
He's given two incorrect answers.

[00:06:20] Speaker 03:
And that may well be the case, Your Honor, and if so, that is an issue with respect to training the government's agents when they're going to be giving these warnings.

[00:06:28] Speaker 03:
But as a starting point, the agent has the form.

[00:06:31] Speaker 03:
If he had just read the form and stuck to the form, you know, and if Ms.

[00:06:35] Speaker 03:
Flescano had said, I understand, and that was the end of the conversation, then we'd obviously be in a much different situation than we are.

[00:06:41] Speaker 03:
Once the agent has to try and start responding to the questions, then it's incumbent upon him to

[00:06:46] Speaker 03:
answer the question correctly, and he failed to do so in this case.

[00:06:49] Speaker 00:
What was, what is it you're alleging that was confusing about speaking with the presence of attorney or thought presence of an attorney?

[00:06:59] Speaker 00:
What did he say that made it confusing?

[00:07:01] Speaker 00:
Because that's just, the statement there, that's just baked into the standard Miranda warning.

[00:07:06] Speaker 03:
Well, Agent Rebus responds to Mr. Lascano-Neria's question.

[00:07:10] Speaker 03:
This is on page 95 of the ER, the partial transcript.

[00:07:15] Speaker 03:
He says, Mr. Viscano says, in other words, if one question I don't want to answer it, I don't answer it.

[00:07:21] Speaker 03:
And Agent Rivas says, yes.

[00:07:22] Speaker 03:
So you don't want to answer questions.

[00:07:24] Speaker 03:
You don't answer them until you have your attorney.

[00:07:27] Speaker 03:
I think the clear implication of that is you don't have to answer questions until you have your attorney.

[00:07:33] Speaker 03:
But once your attorney is there,

[00:07:35] Speaker 03:
It's going to be time to answer the questions.

[00:07:37] Speaker 00:
And this is- I bet that doesn't say that.

[00:07:39] Speaker 00:
Again, it seems like you're really quibbling with what the Miranda warnings itself.

[00:07:43] Speaker 00:
You're kind of reading in ambiguity that doesn't exist.

[00:07:47] Speaker 03:
Well, I think that once there is some ambiguity, Your Honor, but this court's statement, this court's case law says that the advisal of the rights must be clear and not subject- But like the San Juan cruise, it was a totally different situation.

[00:08:01] Speaker 00:
That was a Miranda warning, and then there was an immigration proceeding where they said,

[00:08:05] Speaker 00:
You have a right to attorney, and the other says you don't have a right to attorney.

[00:08:07] Speaker 00:
There was a clear conflict, but there's no clear conflict here.

[00:08:11] Speaker 03:
There's not a conflict in the same way, Your Honor, but the fact remains that there is still this misleading advisal, and that is sufficient to invalidate the warning.

[00:08:21] Speaker 03:
I see that I'm at two minutes.

[00:08:22] Speaker 03:
I'd like to reserve the rest of my time for rebuttal.

[00:08:34] Speaker 04:
Good morning.

[00:08:35] Speaker 04:
May it please the court, Mark Ray, for the United States.

[00:08:38] Speaker 04:
The first point I want to pick up, defense counsel started his presentation by saying that there's nothing in the warning that was first given that reaches the right of selective invocation.

[00:08:49] Speaker 04:
And the government would strongly disagree with that.

[00:08:52] Speaker 04:
And in fact, at page eight of the reply brief, that's not the story that the defense counsel was saying then.

[00:08:57] Speaker 04:
If your honors look at excerpts of record 94,

[00:09:01] Speaker 04:
I'm going to read the first sentence.

[00:09:04] Speaker 04:
If you decide to answer our questions now without having an attorney present,

[00:09:09] Speaker 04:
You will always, or still, have the right to stop answering whenever you like.

[00:09:15] Speaker 04:
That is the right to selective invocation defined in as clear a terms to a lay person as can be imagined.

[00:09:21] Speaker 01:
I don't have that in front of me, but what are you reading from?

[00:09:23] Speaker 04:
Excerptive Record 94.

[00:09:25] Speaker 01:
This is the... I understand the page number, but who's speaking and who are they addressing and what are they responding to?

[00:09:31] Speaker 04:
Okay, no response.

[00:09:32] Speaker 04:
This is Agent Rivas, his very first reading of the Miranda rights.

[00:09:36] Speaker 01:
So you're just reading the Miranda rights to me?

[00:09:40] Speaker 04:
Well, I'm reading what he said, yes, because the defense claimed when they got up that, oh, the warnings given said nothing about the right to selective invocation.

[00:09:49] Speaker 04:
And I'm saying the sentence, if you decide to answer our questions now, you always have the right to stop answering whenever you like.

[00:09:56] Speaker 04:
That is advising the person of their... I'm sorry, you may not understand my question.

[00:10:02] Speaker 01:
I don't have page 94.

[00:10:03] Speaker 01:
Is this testimony in court?

[00:10:05] Speaker 01:
I mean, what are you reading from when Reva says that?

[00:10:09] Speaker 04:
This is the transcription.

[00:10:10] Speaker 04:
This was provided in court.

[00:10:12] Speaker 04:
I mean, this is excerpt of record.

[00:10:13] Speaker 04:
So, you know, this is not something I'm making up.

[00:10:16] Speaker 04:
This is actually in the record, so... We're talking about cross purpose.

[00:10:19] Speaker 01:
Of course you're not making it up.

[00:10:20] Speaker 01:
I'm trying to understand the context in which that's said, because I don't have page 94 in front of me.

[00:10:24] Speaker 04:
This is at the beginning, before questions are answered, when the agents obligated to give Miranda warnings, this is, you know, you have the right to remain silent, you have the right to an attorney if you can't afford one, this is the standard litany of rights.

[00:10:39] Speaker 00:
So you're reading the transcript between the agent and defendant, is it?

[00:10:44] Speaker 00:
Correct.

[00:10:44] Speaker 00:
OK.

[00:10:45] Speaker 02:
I'm looking at ER 94, and it doesn't say what you're saying it says.

[00:10:50] Speaker 02:
Am I looking at the wrong thing?

[00:10:51] Speaker 02:
ER 94.

[00:10:52] Speaker 02:
Correct.

[00:10:53] Speaker 02:
You have the right to remain silent.

[00:10:55] Speaker 02:
Anything you say can be used against you in a court of law or in any administrative immigration proceedings.

[00:11:00] Speaker 02:
You have the right to speak with an attorney.

[00:11:02] Speaker 02:
That's what you're looking at?

[00:11:03] Speaker 04:
And in the very next sentence, Your Honor, if you decide to answer our questions now without an attorney, you will always have the right to stop answering whenever you like.

[00:11:15] Speaker 04:
That is the definition of the right of selective invocation.

[00:11:19] Speaker 04:
And then the next sentence is, you also have the right to stop answering whenever you like until you are able to speak with an attorney.

[00:11:27] Speaker 04:
And significantly, at page eight of the reply brief... So he reads that to the defendant.

[00:11:32] Speaker 02:
Correct.

[00:11:32] Speaker 02:
The defendant asks questions, well, can I basically selectively answer?

[00:11:37] Speaker 02:
Correct.

[00:11:37] Speaker 02:
And then he says, well, no, no, no, you can't.

[00:11:41] Speaker 02:
So was that affirmatively misleading him or do you read that as you just confusing enough so that a rereading of the Miranda rights cures that more to the latter.

[00:11:52] Speaker 04:
But I disagree with the first part of your premise, your honor.

[00:11:55] Speaker 04:
He doesn't say you can't.

[00:11:56] Speaker 04:
If anything, you know,

[00:11:58] Speaker 04:
He says, you don't want to answer questions, you don't answer them, and then there's overlapping voices until you have your attorney.

[00:12:04] Speaker 04:
That is almost verbatim.

[00:12:07] Speaker 01:
Yeah, but that's not what's addressing Judge Winn's question.

[00:12:10] Speaker 01:
We're not talking about can you answer some questions and not others.

[00:12:13] Speaker 01:
That comes next, where he says, this is Lascano.

[00:12:23] Speaker 01:
I do answer, maybe the next time I don't.

[00:12:26] Speaker 02:
agent no is that that can't that can't be chosen well in other words he's contradicting what he just read on the form but I don't know you know when you look at this there's so much talking back and forth and it is very muddled and you know it is muddled but I think that it's fair to say why isn't it fair to look at the record as okay now I'm confused what if I want to answer one question but then I choose to answer another question can I do that no no

[00:12:56] Speaker 02:
That can't be, that can't be selected.

[00:12:58] Speaker 02:
So you can't have that option, essentially.

[00:13:00] Speaker 02:
Isn't that the fairest reading of what's going on here?

[00:13:03] Speaker 02:
I still think it's ambiguous.

[00:13:04] Speaker 02:
But then the agents are like, well, wait a minute.

[00:13:06] Speaker 02:
Let me read it to you again.

[00:13:08] Speaker 02:
Exactly.

[00:13:08] Speaker 02:
It's better to basically go with the written advisement.

[00:13:12] Speaker 04:
And that is our position.

[00:13:14] Speaker 04:
You know, even in the Supreme Court Senate, in Oregon versus Elstad,

[00:13:17] Speaker 04:
These are still police officers at heart.

[00:13:19] Speaker 04:
They're ill-equipped to pinch-hit for counsel.

[00:13:22] Speaker 04:
Every police officer across this country gets training.

[00:13:25] Speaker 04:
When it comes to Miranda, don't ad-lib, don't riff.

[00:13:29] Speaker 04:
The courts have said, if you follow a verbatim reading, that's the safest thing to do.

[00:13:33] Speaker 01:
Sounds as though we violated your training then.

[00:13:35] Speaker 04:
Well, I don't think so, Your Honor, because... No, wait a minute.

[00:13:38] Speaker 01:
You just told me that they're trained not to answer questions, not to ad lib.

[00:13:42] Speaker 01:
Well, that's exactly what he's doing.

[00:13:44] Speaker 04:
Well, not on the warnings themselves, because as the defense points out, once a defendant has confusion, it is our obligation to clarify.

[00:13:52] Speaker 04:
We're not saying that that's... We're not shirking that duty, because that's the only way we can prove a knowing and intelligent waiver.

[00:13:59] Speaker 04:
But my point is, the law doesn't say that there's only one specific way

[00:14:04] Speaker 04:
to clarify.

[00:14:06] Speaker 04:
And here, this is only 30-second exchange, and I think what the officer does in the end is exactly the right thing.

[00:14:12] Speaker 01:
Let me pose it this way.

[00:14:14] Speaker 01:
There's going to be something buried in what I say that you're not going to want to admit to, so I'm not forcing you to do that.

[00:14:19] Speaker 01:
But as I'm tempted to read the exchange between the two readings,

[00:14:27] Speaker 01:
I read it as saying, first, you don't have to answer any questions until your attorney gets here, with the implication that once the attorney gets here, you have to answer questions.

[00:14:36] Speaker 01:
And I also read it as saying, no, you can't choose that, meaning once you start answering, you can't stop.

[00:14:43] Speaker 01:
So, agent has said that.

[00:14:47] Speaker 01:
Is that cured then?

[00:14:50] Speaker 01:
You said two things that are wrong.

[00:14:52] Speaker 01:
Is that cured then by reading the form that gave rise to the questions in the first place?

[00:14:58] Speaker 04:
Assuming your factual predicates, we do believe it is cured.

[00:15:04] Speaker 01:
The form is read.

[00:15:06] Speaker 01:
He has the questions after the form is read.

[00:15:09] Speaker 01:
The questions are answered.

[00:15:10] Speaker 01:
And now the same form that gave rise to the questions is read again.

[00:15:13] Speaker 01:
How does that correct the answers that he got?

[00:15:17] Speaker 04:
And then you leave out the next step.

[00:15:19] Speaker 04:
What happens?

[00:15:19] Speaker 04:
The record is clear.

[00:15:21] Speaker 04:
that there are no further questions.

[00:15:23] Speaker 04:
The defense, the agent himself testified that as soon as he re-read it, he didn't seem to be under confusion.

[00:15:29] Speaker 04:
Defense counsel, as an officer of the court, made a judicial admission below that there were no other questions asked about the right to remain silent.

[00:15:37] Speaker 01:
But why is that not consistent with, well, he read me the form, he answered my questions as to what the form meant, and he read me the form again, but of course I'm informed by his answers to what that meant.

[00:15:49] Speaker 04:
Well, my response to that would be, Your Honor, if somebody reads me something and I say, boy, I don't get this, and then they say, I'm going to reread it to you again, and I don't then say, boy, I don't get this, that's a way to infer that they understand.

[00:16:03] Speaker 01:
But that's not what happened.

[00:16:05] Speaker 01:
The form was read.

[00:16:06] Speaker 01:
He had questions.

[00:16:07] Speaker 01:
He was given two answers that are incorrect.

[00:16:10] Speaker 01:
And then the form is read again.

[00:16:12] Speaker 04:
And then he has no questions.

[00:16:14] Speaker 04:
The thing I'm trying to say is that ought to be given some importance.

[00:16:17] Speaker 01:
But he didn't ask for the form to be read again.

[00:16:20] Speaker 01:
He was read the form.

[00:16:22] Speaker 01:
Right.

[00:16:22] Speaker 01:
He was given two incorrect answers.

[00:16:24] Speaker 01:
He didn't say, please read the form again.

[00:16:26] Speaker 01:
The agent says, I'm going to read you the form again.

[00:16:29] Speaker 01:
The very form that gave rise to the questions that had been incorrectly answered in two respects.

[00:16:35] Speaker 04:
But the form, there's no debate that the form is correct.

[00:16:39] Speaker 04:
Page 8 of the reply brief, my own opponent, in fact he has beautiful language that he says, together those two sentences that I read to you properly informed the defendant of his ability to control completely the timing and extent.

[00:16:52] Speaker 04:
Critically the two warnings did not in any way imply that defendant would be required to answer questions at any point All I'm saying is if Miranda is the sacrosanct text After just a 30 second exchange for the officer to say I'm gonna read it I'm not diverting and then for the defendant not to have any questions for the officers undisputed testimony

[00:17:16] Speaker 04:
If I go to a Vegas booking thing and I say, you know what, I want to place a bet on the Lakers, but I don't understand the odds.

[00:17:24] Speaker 04:
And then they explain it to me, and I don't have a question, and I give them my money, I think it's a fair inference to say, that gentleman understands now.

[00:17:31] Speaker 01:
Well, I didn't have any question because you already answered them.

[00:17:34] Speaker 01:
And then you read the same form, but you've already explained to me what the form means, so why should I have any more questions?

[00:17:39] Speaker 01:
You answered them.

[00:17:41] Speaker 04:
The form is correct.

[00:17:42] Speaker 04:
The defendant doesn't dispute that.

[00:17:44] Speaker 04:
After the second time the form is read, I mean, why do we assume that the defendant would just fall over?

[00:17:51] Speaker 04:
He had enough presence of mind to ask a question.

[00:17:53] Speaker 04:
He gets the rereading the second time.

[00:17:56] Speaker 02:
Well, I mean, I think what's helpful to the government is that the agent not only reread the form, which directly pinpointed or directly responsive to what

[00:18:07] Speaker 02:
the defendant was concerned about, but he also said, look, look, it's better that I read the form.

[00:18:12] Speaker 02:
That basically will tell you or give you a better understanding of the case.

[00:18:17] Speaker 02:
I couldn't agree.

[00:18:18] Speaker 02:
I think that fact is helpful to the government's cure argument.

[00:18:21] Speaker 00:
To follow up on that, so for a rereading of the Miranda to cure any potential confusion, does the government have to at least in some way alert to the person, I'm clarifying,

[00:18:33] Speaker 04:
If you want to assume so, they are here.

[00:18:35] Speaker 04:
I mean, I certainly think, you know, if we put ourselves in the shoes of the defendant, it would be helpful to have that.

[00:18:40] Speaker 04:
So when the agent does say, listen, I want you to understand this well, I'm going to reread it, and then, you know, he sets forth, again, page A to the reply brief, the last two sentences of that first paragraph.

[00:18:52] Speaker 04:
flowing language approving of this exact use of Miranda.

[00:18:55] Speaker 04:
And the last thing I'll say, I see my time is up.

[00:18:58] Speaker 04:
Never an affidavit filed by the defendant below ever claiming to have been misled by anything here.

[00:19:03] Speaker 04:
So without your honor, the government would submit.

[00:19:06] Speaker 02:
Thank you.

[00:19:14] Speaker 03:
Just responding briefly to that last point made by the government, there's no need for an affidavit in this case.

[00:19:19] Speaker 03:
The court is looking at the

[00:19:22] Speaker 03:
the advisor itself on its face in context, there's nothing required about a subjective understanding from Mr. Lascano-Neria.

[00:19:29] Speaker 03:
The court is looking at the objective reality of the warning given in the context of the exchange between Agent Rivas and Mr. Lascano-Neria.

[00:19:40] Speaker 03:
And I disagree that rereading the Miranda warning addresses the specific issue about selective invocation, because selective invocation is not start-stop, it's

[00:19:50] Speaker 03:
I'll answer this question.

[00:19:51] Speaker 03:
I'm not going to answer that question.

[00:19:53] Speaker 03:
I will answer this question.

[00:19:54] Speaker 03:
It's not an on or off, start or go.

[00:19:57] Speaker 03:
I'll do some of each.

[00:19:59] Speaker 03:
And that is a right, again, that this court has said a detainee has and that was specifically denied by Agent Rivas in this case.

[00:20:08] Speaker 03:
And I disagree that there's any confusion about what's happening here.

[00:20:13] Speaker 03:
Mr. Lascano-Neria from the get-go says, I have one question.

[00:20:17] Speaker 03:
If one question, I don't want to answer it, I don't answer it.

[00:20:20] Speaker 03:
And then he goes on to say, for example, you guys asked me, I don't know.

[00:20:26] Speaker 03:
Hey, this is like this or like that.

[00:20:28] Speaker 03:
And I do answer it.

[00:20:29] Speaker 03:
And maybe the next time I don't.

[00:20:31] Speaker 03:
And Agent Riva says, that cannot be chosen or selected.

[00:20:35] Speaker 03:
And there's nothing in the Miranda advisable.

[00:20:37] Speaker 02:
Well, and then the defendant goes, well, that's my area of confusion.

[00:20:41] Speaker 02:
The agent said, OK, it's better to go with the form.

[00:20:44] Speaker 02:
I'm going to read it to you one more time so that you know exactly what your rights are.

[00:20:49] Speaker 02:
And in the reading, it says you can stop answering the questions at any time, whenever you like.

[00:20:56] Speaker 02:
You also have the right to stop answering whenever you like until you're able to speak with an attorney.

[00:21:02] Speaker 02:
I mean, the agent certainly could have been a lot clearer.

[00:21:05] Speaker 02:
But after rereading that, after specifically telling the defendant, you can stop answering at any time, even if you talk to us now, you can still stop answering at any time.

[00:21:15] Speaker 02:
And then you also have a right after you consult with an attorney to stop answering at any time.

[00:21:19] Speaker 02:
And there's no more questions and then a waiver.

[00:21:21] Speaker 02:
So you would think that in this kind of exchange that the defendant had with the agent, if there was confusion, you would think that he would raise that confusion again.

[00:21:31] Speaker 03:
May I respond, Your Honor?

[00:21:32] Speaker 03:
I see I'm out of time.

[00:21:34] Speaker 03:
My response to that, Your Honor, is that, again, in the cases of San Juan Cruz and Botello Rosales, we have situations where there is a correct Miranda advisal.

[00:21:43] Speaker 03:
There's a waiver obtained from the defendant in that case.

[00:21:46] Speaker 03:
They give statements.

[00:21:48] Speaker 03:
And nonetheless, this court found that the advisal itself was insufficient, notwithstanding the advisal, notwithstanding the lack of any questions from the defendant, notwithstanding the fact that there was this correct advisal because there was this confusing, conflicting, or incorrect statement of the law that was in addition to the correct advisal.

[00:22:11] Speaker 02:
Thank you.

[00:22:11] Speaker 02:
All right.

[00:22:11] Speaker 02:
Thank you very much, counsel, both sides for your very helpful arguments this morning.

[00:22:16] Speaker 02:
The matter is submitted.