August 24, 2019

Tenth Circuit: Defendant Invoked His Right to Counsel by Handing His Attorney’s Letter to FBI Agent Stating He Did Not Wish to Speak

The Tenth Circuit issued its opinion in United States v. Santistevan on Monday, December 17, 2012.

In 2007, Mr. Santistevan was in jail. Late one night, his girlfriend called FBI agent Eicher (“agent”) and told him Mr. Santistevan wanted to speak with him about recent Denver robberies. The next morning, on his way to the jail, the agent received a call from Katherine Spengler, a public defender (“attorney”).  The attorney advised him that she represented Mr. Santistevan, had spoken with him that morning, and that he did not wish to speak. The agent informed the attorney of his conversation with Mr. Santistevan’s girlfriend the previous night and indicated that he intended to visit Mr. Santistevan to ask him directly if he wanted to make any statements or answer questions. The attorney responded that she had given Mr. Santistevan a letter to give to the agent if he went to the jail.

When the agent arrived at the jail, Mr. Santistevan handed him the letter stating that he did not wish to speak with the agent without counsel. The agent then told Mr. Santistevan is was up to him whether he wanted to talk with the agent. Mr. Santistevan eventually went with the agent to the FBI offices and made incriminating statements about two robberies. He was indicted, and Mr. Santistevan filed a motion to suppress the statements made during the interview.

The district court found that Mr. Santistevan unambiguously invoked his right to counsel by handing the letter to the agent. The court also determined that Mr. Santistevan was subject to a custodial interrogation when he invoked the right to counsel. The government appealed.

Pursuant to Edwards v. Arizona, 451 U.S. 477, 484–85 (1981), the Tenth Circuit agreed with the district court that Mr. Santistevan’s act of handing the letter drafted by his attorney to the agent was an unambiguous invocation of the right to counsel. Once a suspect unambiguously invokes the right to counsel—as Mr. Santistevan did here by giving the letter to the agent—all questioning must stop.

Pursuant to United States v. Kelsey, 951 F.2d 1196 (10th Cir. 1991), because Mr. Santisteven knew the agent intended to question him at some point in the near future, he was subject to custodial interrogation, and he could therefore properly invoke his right to counsel.


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