Criminal Case Can’t Look at Demand for Lawyer

(CN) - Prosecutors cannot use a defendant's request for a lawyer as evidence of guilt, the 2nd Circuit ruled, scoffing at the blatant Fifth Amendment violation.

Tayfun Okatan's brush with law enforcement occurred when he had tried to enter the United States from Canada with German citizen Munir Uysal on Oct. 13, 2010. The pair was stopped at the Lewiston Bridge port of entry near Buffalo, N.Y., and after Uysal was ultimately denied entry because he had overstayed a previous visa to the United States.

Okatan, a U.S. citizen, arrived alone at another port of entry in upstate New York the next morning, but officers there learned of the previous day's events by checking Okatan's license plate number.

Under questioning, Okatan said he had left Uysal behind after an argument at a rest stop. The officers ultimately allowed Okatan to proceed across the border, but they secretly followed his vehicle throughout the day, observing him enter Vermont only to return to the New York border town sometime later.

In the meantime, the owner of a nearby convenience store in New York had called Border Patrol because a man who turned out to be Uysal walked over there and waited two to three hours for a ride that never materialized.

One of the agents who arrested Uysal brought the German back to the border patrol station and then drove to a rest stop near the convenience store where Uysal had been waiting. There he watched as Okatan drove past a rest area on one side of the highway, make a U-turn and then enter the rest stop on the other side.

Okatan claimed he had needed to use the restroom, but the officer continued to question him, asking if he was there to pick someone up, and warning him that lying to a federal officer was a crime.

At that point, Okatan said he wanted a lawyer.

A grand jury charged Tayfun Okatan in 2011 with attempting to bring someone he knew to be an unauthorized alien into the United States.

During his trial that year, Okatan moved to suppress statements he made to the officer at the rest area. Citing the landmark decision Miranda v. Arizona, a federal judge in Albany, N.Y., granted that motion with respect only to Okatan's request for a lawyer at the Beekmantown Rest Area.

While testifying in the trial, however, the agent who had questioned Okatan mentioned the request for a lawyer. Okatan's attorney then moved for a mistrial, but the court refused.

At close of evidence, the attorney requested the court structure the charge to ensure the jury did not draw any negative inferences from the fact Okatan requested counsel while being questioned at the rest stop. Again the court denied the request, this time on the grounds Okatan's right to remain silent had already been addressed before the jury.

The issue surfaced again at closing arguments, however, when a prosecutor repeatedly alluded to Okatan's request for a lawyer, saying up to that moment he had been "very chatty, was sweet and courteous, very friendly, when distancing himself from Uysal ... and now it's stage fright."

Later the lawyer called this the "kind of conduct" of "someone who's been caught."

Jurors convicted Okatan on all three counts, and the defendant was sentenced in 2012 to time served and five months home detention.

A three-judge panel of the 2nd Circuit concluded Monday, however, that the evidence violated Okatan's rights under the Fifth Amendment.

"In order for the privilege to be given full effect, individuals must not be forced to choose between making potentially incriminating statements and being penalized for refusing to make them," Judge Gerald Lynch wrote for the Manhattan-based court.

The panel also took of note of a Supreme Court ruling earlier this year, in which it drew a distinction between a defendant's asserting his Fifth Amendment rights to protect himself against self-incrimination, and his merely remaining silent.

That decision had left unanswered whether the prosecution may use a defendant's assertion of his Fifth Amendment rights as part its case, the appellate panel found.

While Okatan did not use the words "Fifth Amendment" or "privilege against self-incrimination," the panel concluded that "a request for a lawyer in response to law enforcement questioning suffices to put an officer on notice that the individual means to invoke the privilege."

Precedent holds this true even when an individual is not in custody, given the "unique role the lawyer plays in the adversary system of criminal justice in this country."

The Supreme Court has said a prosecutor may not comment on a defendant's failure to testify at trial, as such comment would be "a penalty imposed by courts for exercising a constitutional privilege," Lynch wrote

"The same logic governs our decision today," he added. "Use of a defendant's invocation of the privilege imposes the same cost no matter the context in which that invocation is made. ... The Fifth Amendment guaranteed Okatan a right to react to the question without incriminating himself, and he successfully invoked that right. As the First Circuit has observed, allowing a jury to infer guilt from a pre-arrest invocation of the privilege 'ignores the teaching that the protection of the Fifth Amendment is not limited to those in custody or charged with a crime.'"

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