30 F.3d 1420

JOHNSON, Senior Circuit Judge,
dissenting:
I respectfully dissent. In my opinion, the record demonstrates that Coleman unequivocally invoked his right to remain silent, pursuant to the Fifth and Fourteenth Amendments of the Constitution.
According to the majority, Coleman’s statement that “he did not want to do what he [the public defender] said not to do” was an equivocal indication of Coleman’s desire to remain silent. The majority premises this conclusion on the declaration of Coleman’s counsel at oral argument that, at the time Coleman made his statement, he had not been told that the public defender did not want him to answer questions. Instead, counsel stated that Coleman had been told only that a public defender had called. Relying on counsel’s declaration, the majority reasons that Coleman’s statement cannot be interpreted to mean “because the public defender says not to talk, I do not want to talk.” Rather, it finds that Coleman’s statement was equivocal because (1) he did not know that the public defender had told the detectives to stop questioning him, (2) he answered “I don’t know” when asked by detective Valente if he wanted a public defender, and (3) a reasonable officer would not have interpreted Coleman’s statement to be a request to cut off questioning. I disagree with all three predicates.
The majority’s reliance on the declaration of Coleman’s counsel is misplaced. Statements and arguments of counsel are not evidence. United States v. Camejo, 929 F.2d 610, 617 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 228, 116 L.Ed.2d 185 (1991); United States v. Smith, 918 F.2d 1551, 1562 (11th Cir.1990); United States v. Rojas, 731 F.2d 707, 710 (11th Cir.1984). Moreover, the declaration of Coleman’s counsel is completely disproved by the record. As noted, detective Rigney’s and detective Valente’s taped interrogation of Coleman was interrupted by a knock on the interrogation room door. [Suppression Hearing Transcript at 55]. After learning that the public defender was on the phone, and that she did not want the detectives speaking with Coleman, [Id. at 55], detective Valente stated on the tape:
Okay, we just received a telephone call from the public defender’s office that requested us to cease any further interview at this time. So at this time we’ll be concluding this tape.
[Interrogation Transcript at 7]. Later, when the detectives asked Coleman if he wanted to speak with them, he answered, “Well, that one guy says I shouldn’t.” [Interrogation Transcript at 12], As Coleman is referring to the public defender, the record indisputably demonstrates that Coleman was told that the public defender did not want him speaking to the police.
Furthermore, the declaration of Coleman’s counsel is directly contradicted by both his and the government’s briefs on appeal, as well as by the Magistrate Judge’s Report and Recommendation, adopted by the district court. For example, in his brief on appeal, Coleman’s counsel states, ‘With the tape recorder still running, Valente tells the boy [Coleman] that his public defender has just called and demanded the detectives to stop asking further questions.” Appellant’s Br. at 6. In its brief, the government states, “These officers [detectives Rigney and Va-lente] explained to appellant [Coleman] that a public defender had called requesting that the officers not question him.” Appellee’s Br. at 4. Similarly, the Magistrate Judge, in her Report and Recommendation, stated, “The detectives told petitioner [Coleman] that they had received a telephone call asking that they not speak with him.” Report and Recommendation at 7. Thus, contrary to the majority’s assertions, the detectives told Coleman more than the simple fact that his public defender telephoned. As made clear by the record, the detectives also told Coleman that the public defender had asked them to stop interviewing him. In light of the above, I have no doubt that Coleman was aware of the public defender’s desire that he not speak with the detectives.
Given Coleman’s awareness, I also have no doubt that his statement was unequivocal. The record reveals that shortly after notifying Coleman of the public defender’s wishes, the detectives resumed the taped interrogation. The following exchange then occurred:
Valente: “And what you’re saying, or what you’re about to say you’re going to do of your own free will; is that correct?”
Coleman: ‘Tes. Unless, what about that one guy, though?”
Valente: “What guy?”
Coleman: “The guy — ”
Rigney: “Public defender.”
Coleman: Weah.”
Valente: “Okay.”
Rigney: “I explained to him what the public defender was — ”
Valente: “Okay. Tony, do you feel that you want to have a public defender?”
Coleman: “7 don’t know. But if he said to stop it I don’t want to do what he said not to do.”
[Interrogation Transcript at 9-10] (emphasis added).
The majority’s second rationale for finding Coleman’s statement equivocal is the fact that Coleman answered “I don’t know” when asked if he wanted a public defender. While it is true that Coleman may not have known if he wanted a public defender, he showed no such uncertainty when immediately thereafter, he stated, “But if he said to stop it I don’t want to do what he said not to do.” In common usage, the word “but” qualifies and limits preceding language. For example, according to Webster’s, the word “but” typically means “except” and “except that.” Webster’s Third New International Dictionary Unabridged 303 (1976). Additionally, Webster’s notes that “however” may be defined as “in spite of that: on the other hand: but.” Id. at 1097. Substituting any of these terms for “but,” Coleman’s response to the question of whether he wanted a public defender should be interpreted as “I don’t know. [Except that] if [the public defender] said to stop it I don’t want to do what he said not to do.” Because Coleman knew the public defender had requested that the detectives cease questioning him, his statement must mean “because the public defender says you shouldn’t talk to me, I don’t want to talk to you.” The fact that prior to making this statement he said “I don’t know” is of no consequence. The “I don’t know” was in answer to the question of whether he wanted a public defender and was clarified by the use of “but” in Coleman’s very next phrase, such that Coleman was saying that while he did not know if he wanted a public defender, he knew that he did not want to speak with the police.
Finally, the majority claims that “a reasonable officer would not have interpreted Coleman’s statement to be a request to cut off questioning.” I believe this conclusion is untenable. The record shows that the detectives knew that the public defender did not want Coleman to speak with them. It further shows that the detectives told Coleman that the public defender’s office had asked them to stop interviewing him. Under these circumstances, a “reasonable” officer hearing Coleman’s statement could only believe that Coleman did not want to speak with them. In light of the above, I would reverse the district court’s dismissal of Coleman’s habeas petition.
. Coleman mistakenly thought the public defender was male.
. Based on Coleman's counsel’s declaration that Coleman had been told only that the public defender called, the majority finds, in a footnote, that Coleman interpreted detective Valente’s statement to mean that the public defender had called and asked only that the interrogation cease while she was on the phone. I cannot agree with the majority's interpretation.
As shown, counsel's declaration is wholly unsupported by the record and runs contrary to both his and the government’s statement of facts in their briefs on appeal. Accordingly, unlike the majority, I place no credence in the declaration of Coleman's counsel at oral argument. I also believe that a second critical flaw exists in the majority's reasoning. If Coleman interpreted the public defender’s statement to be limited to the time she was on the phone, there would be no reason for him to bring up her statement once the phone call ended and interrogation resumed. That Coleman’s response to the resumption of interrogation was that he did not "want to do what he [the public defender] said not to do” and "that one guy [the public defender] says I shouldn't” demonstrates that Coleman knew that the public defender wanted the interrogation to cease entirely.
. Although it may have been preferable had Coleman’s response to the question of whether he wanted a public defender been, "I don’t know. But, I know I don’t want to speak with you because the public defender doesn’t want me to,” Coleman need not speak like an Oxford don to invoke his constitutional rights. Davis, - U.S. at -, 114 S.Ct. at 2355. In fact, I believe that Coleman, a fifteen-year-old boy, cannot be expected to speak with the clarity of an average adult.

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