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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-2631
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERMAN CRUZ, JOSE HELI-MEJIA
and DAVID RAMOS,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas

(May 18, 1994)
Before KING and WIENER, Circuit Judges, and DOHERTY,* District
Judge.
PER CURIAM:
Defendants-Appellants David Ramos, Jose Heli-Mejia, and German
Cruz appeal their convictions for conspiracy to possess with intent
to distribute cocaine in violation of 21 U.S.C. зз 841(a)(1),
(b)(1)(A), 846; and aiding and abetting the possession with intent
to distribute cocaine in violation of 21 U.S.C. з 841(a)(1),
*District Judge of the Western District of Louisiana,
sitting by designation.

(b)(1)(A), and 18 U.S.C. з 2. After carefully considering the
facts and legal arguments advanced by counsel in their briefs to
this court and in their oral arguments to this panel, and having
reviewed the record from the district court, we conclude that the
majority of the cited points of error1))while not necessarily
frivolous))lack sufficient factual and legal substance to justify
reversal of Defendants-Appellants' convictions. Whether Cruz's
right to counsel was violated, however, merits more discussion.
We, therefore, confine our factual review and legal analysis in
this opinion to that issue.
I.
FACTS AND PROCEEDINGS
Cruz was arrested by Drug Enforcement Administration (DEA)
agents after an indictment was returned charging him with
complicity in a cocaine conspiracy. Cruz was promptly given
Miranda2 warnings; however, as Cruz was not proficient in English,
the agents employed Cruz's wife as an interpreter. Cruz had no
questions and did not request an attorney. Cruz was taken to
1Cruz, Ramos, and Heli-Mejia all challenge the sufficiency
of the evidence. Cruz challenges the admission of certain
inculpatory statements as violative of his Fifth and Sixth
Amendment rights to counsel. Cruz also challenges the district
court's refusal to declare a mistrial on the basis of testimony
elicited from a government agent on cross-examination. Ramos
challenges the restriction of the scope of his cross-examination.
Heli-Mejia challenges the denial of his requests for disclosure
of evidence held by the government, and the district court's
finding that he was a manager or supervisor of criminal activity
for purposes of the sentencing guidelines. Both Ramos and Heli-
Mejia challenge the admittance of evidence of extraneous acts.
2384 U.S. 436 (1966).
2

another location where several agents had left their vehicles. A
Spanish-speaking officer then repeated the Miranda warnings in
Spanish. Cruz was asked if he understood the warnings and replied
that he did. Cruz was then asked if he had a lawyer. Cruz replied
that he was a "working man" and "couldn't afford an attorney." The
agents then proceeded to conduct a cursory interrogation. Shortly
thereafter, Cruz was transported to the DEA field office and again
was given Miranda warnings in Spanish. Cruz indicated that he
understood his rights, but he did not request counsel. DEA agents
then questioned Cruz for twenty minutes. In response to their
questions, Cruz gave several inculpatory statements to the agents.
Later that day, Cruz was arraigned, at which time he requested
the appointment of counsel. With benefit of counsel, Cruz moved to
suppress his inculpatory statements on the grounds that he had
invoked his right to counsel when he stated that he was a "working
man" and "couldn't afford an attorney." Cruz argued that, as he
had not waived his right to counsel at any time after making those
comments, his statements to the DEA agents should be suppressed as
the product of improper questioning.3 The district court rejected
Cruz's motion, reasoning, in part, that Cruz's comments were not "a
positive affirmation of the right to counsel." At trial, the
government introduced the inculpatory statements into evidence.
The jury convicted Cruz, and he timely filed a notice of appeal.
II.
3Neither party disputes the words spoken by Cruz. The only
dispute is the effect to be given to those words.
3

ANALYSIS
"An accused in custody, `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 he validly waives his earlier request for
the assistance of counsel."4 "If the interrogation continues
without the presence of an attorney and a statement is taken, a
heavy burden rests on the government to demonstrate that the
[accused] knowingly and intelligently waived his privilege against
self-incrimination and his right to retained or appointed
counsel."5 "[A] valid waiver of that right cannot be established
by showing only that [the accused] responded to further police-
initiated custodial interrogation even if [the accused] has been
advised of his rights."6
Cruz contends that he invoked his right to counsel, thus
rendering the fruits of subsequent questioning inadmissible, when
he stated that he was a "working man" and "couldn't afford an
4Smith v. Illinois, 469 U.S. 91, 94-95 (1984) (quoting
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)); accord Miranda
v. Arizona, 384 U.S. 436, 474 (1966); United States v. Cherry,
733 F.2d 1124, 1130 (5th Cir. 1984).
5Miranda, 384 U.S. at 75.
6Edwards, 451 U.S. at 484; see Smith, 469 U.S. at 95 ("This
`rigid' prophylactic rule embodies two distinct inquiries.
First, courts must determine whether the accused actually invoked
his right to counsel. Second, if the accused invoked his right
to counsel, courts may admit his responses to further questioning
only on finding that he (a) initiated further discussions with
the police, and (b) knowingly and intelligently waived the right
he had invoked." (citations omitted)).
4

attorney."7 But "[t]he word `attorney' has no talismanic
qualities. A defendant does not invoke his right to counsel any
time the word falls from his lips."8 Viewing Cruz's comments in
context of the officer's question and giving his words their
ordinary meaning, Cruz did not evince "a desire to deal with the
police only though counsel."9
Given the officer's inquiry whether Cruz had a lawyer, his
response could only be construed as a statement of fact))equivalent
to, "No, I don't have an attorney."10 Cruz's response could not
7Cruz had both a Fifth Amendment and Sixth Amendment right
to counsel. The Fifth Amendment right to counsel arises when, as
here, an individual is subject to custodial interrogation.
Edwards, 451 U.S. at 482; Miranda, 384 U.S. at 470; United States
v. Berisha, 925 F.2d 791, 797 (5th Cir. 1991). The Sixth
Amendment right to counsel attaches upon the initiation of
judicial proceedings against an individual. See Michigan v.
Jackson, 475 U.S. 625, 629 (1986); Brewer v. Williams, 430 U.S.
387, 398 (1977). Cruz was under indictment at the time that he
was questioned, so his Sixth Amendment right to counsel had
attached. See Patterson v. Illinois, 487 U.S. 285, 290 (1988).
8United States v. Jardina, 747 F.2d 945, 949 (5th Cir.
1984), cert. denied, 470 U.S. 1058 (1985); accord Thompson v.
Wainwright, 601 F.2d 768, 772 (5th Cir. 1979); Nash v. Estelle,
597 F.2d 513, 519 (5th Cir.) (en banc), cert. denied, 444 U.S.
981 (1979).
9Edwards, 451 U.S. at 484. "[W]hile an accused is not
required to use any magic language to invoke the right to
counsel, we do not ignore the plain meaning of his words in order
to find invocation of the right to counsel." Griffin v. Lynaugh,
823 F.2d 856, 863 n.3 (5th Cir. 1987), cert. denied, 484 U.S.
1079 (1988).
10Cruz contends his comments were made in response to the
Miranda warnings; however, the uncontested testimony at the
suppression hearing establishes that his comments were made in
response to an inquiry whether he had a lawyer. Under cross-
examination, the officer giving the Miranda warnings testified:
"Well, during when I was reading the Miranda warning to him, at
that time I asked him if he had a lawyer, and he answered back
that, no, he didn't have a lawyer." Later the officer clarified
5

reasonably be construed as a request for counsel.11 We are
satisfied that, under the instant circumstances, Cruz did not
evince a desire for counsel; and, as there is no suggestion that
his subsequent statements were involuntary, we conclude that the
district court did not err in denying the motion to suppress on the
basis of Cruz's statement that he was a working man who could not
afford an attorney.
Cruz nevertheless argues in the alternative that his response
was at least an ambiguous or equivocal request for counsel, thereby
limiting further questioning to a clarification of his desires. In
United States v. Cherry12 we reaffirmed the principle that, when an
accused expresses an ambiguous or equivocal request for counsel,
further interrogation is limited to clarification of the accused's
desires.13 Here, though, we find no ambiguity or equivocation in
Cruz's response: He had been asked not if he wanted a lawyer, but
if he had one; and he answered that question in the negative. That
answer can not be stretched to constitute an unresponsive request
this testimony: "I remember him also telling me in Spanish when
I asked him about if he had an attorney or whatever, and he said,
`No.' He said he was just a working man. He couldn't afford an
attorney."
11A different case would have been presented had the officer
asked Cruz whether he wanted a lawyer. Given such a context,
Cruz's response would arguably have been an ambiguous or
equivocal request. However, we are not presented with such
facts.
12733 F.2d 1124 (5th Cir. 1984).
13See id. at 1130-31; accord Thompson v. Wainwright, 601
F.2d 768, 771-72 (5th Cir. 1979); Nash v. Estelle, 597 F.2d 513,
517-18 (5th Cir. 1979) (en banc), cert. denied, 444 U.S. 981
(1979).
6

for counsel, even an ambiguous or equivocal one.
This case is thus unlike prior cases in which we found an
equivocal or ambiguous request for counsel. For example, in
Cherry, the accused stated, "Maybe I should talk to an attorney
before I make a further statement," then added rhetorically, "Why
should I not get an attorney?"14 We found that, as the accused's
statements suggested conflicting desires to talk to an attorney and
to talk to the authorities, his utterances constituted a request,
albeit an equivocal one.15 Unlike the comments in Cherry, though,
Cruz's comments did not suggest a desire for counsel; to the
contrary, they unambiguously and unequivocally stated a matter of
fact. Hence, as Cruz's comments could not be construed as an
ambiguous or equivocal request, subsequent questioning was not
limited to mere clarification of his desires. Denial of the motion
to suppress was not error.
III.
CONCLUSION
Having found no reversible error as to any of the Defendants-
Appellants' assignments of error, their convictions and sentences
are in all respects
AFFIRMED.
14Cherry, 733 F.2d at 1127.
15See id. at 1130. Likewise, in Thompson v. Wainwright, 601
F.2d at 769, and Nash v. Estelle, 597 F.2d at 516-17, the accused
expressed both a desire to talk to authorities and a desire to
talk to an attorney.
7