United States v. John Wysinger, 2012 U.S. App. LEXIS 12768

Wysinger was convicted on conspiracy to distribute cocaine and aiding/abetting distribution; trial included a video of a DEA interrogation.
Wysinger challenged the video on Miranda rights adequacy and invocation of right to counsel; he argued interrogation continued after his requests for counsel.
The district court denied suppression; the jury later viewed the full interrogation video.
Interrogation occurred June 1, 2009, after prior large cash and drug seizures involving Wysinger and associates.
Court held the video should have been suppressed; the error was not harmless, vacating the conviction and remanding for proceedings.
The opinion analyzes whether the invocation of the right to counsel was clear and whether Miranda warnings were adequate and non-misleading.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Wysinger clearly invoke the right to counsel during interrogation?	Wysinger clearly invoked counsel multiple times.	Wysinger’s invocations were ambiguous; not unequivocal.	Invocation was clear at 13:03; interrogation after that point should have been ceased.
Was the Miranda warning adequate and not misleading?	Warning misled/diverted from invoking rights; not adequate.	Warnings were substantially adequate or curable.	Warning was inadequate/misleading; first nine minutes excluded.
Should interrogation after invocation be excluded, and thus entire video excluded?	All interrogation tainted; exclusion warranted.	Partial admission could be salvaged; some segments may stand.	All video including pre-invocation and post-invocation portions should be excluded; entire video inadmissible.
Was the admission of attorney communications via phone proper under the Sixth Amendment?	Privileged communications with attorney were improperly admitted.	Waived or harmless given other evidence.	No need to resolve due to Miranda-based exclusion; issue mooted.
Was any error harmless beyond a reasonable doubt?	Evidence overwhelmingly supported guilt.	Conflicted/cooperating witnesses undermined reliability.	Error not harmless; likely affected the outcome; conviction vacated.

Miranda v. Arizona, 384 U.S. 436 (1966) (require Miranda warnings and waiver to admissibility; right to counsel must be present)
Edwards v. Arizona, 451 U.S. 477 (1981) (unambiguous invocation of right to counsel requires interrogation to cease)
Davis v. United States, 512 U.S. 452 (1994) (equivocal references to counsel do not force cessation; clarifying questions encouraged)
Smith v. Illinois, 469 U.S. 91 (1984) (ambiguous references may be clarified; later equivocation does not erase earlier invocation)
Peters, 435 F.3d 746 (7th Cir. 2006) (fact-finding reviewed for clear error; law de novo on suppression)
Innis, 446 U.S. 291 (1980) (definition of interrogation includes other words likely to elicit response)
Duckworth v. Eagan, 492 U.S. 195 (1989) (warnings sufficient if convey rights; not limited to exact words)
Prysock, 453 U.S. 355 (1981) (adequacy of warnings evaluated textually; not strict form)
Missouri v. Seibert, 542 U.S. 600 (2004) (warning and strategy cannot undermine Miranda protections)
Lee, United States v. Lee, 413 F.3d 622 (7th Cir. 2005) (unequivocal conveyance of right to counsel; explicit requests must halt questioning)
Powell, 130 S. Ct. 1195 (2010) (accurate warnings convey right to attorney before and during interrogation)