United States v. Okatan

• Decision Date: 26 August 2013
• Docket Number: Docket No. 12–1563–cr.
• Parties: UNITED STATES of America, Appellee, v. Tayfun OKATAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

728 F.3d 111

UNITED STATES of America, Appellee,

v.Tayfun OKATAN, Defendant–Appellant.

Docket No. 12–1563–cr.

United States Court of Appeals, Second Circuit.

Argued: March 4, 2013.

Decided: Aug. 26, 2013.

Lawrence Elmen, FitzGerald Morris Baker Firth PC, Glens Falls, New York, for Defendant–Appellant.

Rajit Dosanjh, Assistant United States Attorney (Edward P. Grogan, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, New York.

Before: LYNCH, LOHIER, and CARNEY, Circuit Judges.

GERARD E. LYNCH, Circuit Judge:

Following a jury trial in the United States District Court for the Northern District of New York (Mae A. D'Agostino, J.), defendant-appellant Tayfun Okatan was convicted of three counts relating to illegally bringing an alien into the United States. On appeal, Okatan raises a number of arguments, most of which we reject in a separate summary order filed along with this opinion. This opinion addresses Okatan's challenge to the government's use of evidence that Okatan asked to speak to a lawyer when a border patrol agent initiated an interview prior to his arrest. We conclude that use of this evidence in the government's case in chief violated Okatan's rights under the Fifth Amendment. Because we further conclude that the error was not harmless beyond a reasonable doubt, we VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

BACKGROUND

I. Factual Background

“Because [Okatan] appeals from a judgment of conviction entered after a jury trial, the following facts are drawn from the trial evidence and described in the light most favorable to the government.” United States v. Wilson, 709 F.3d 84, 85 (2d Cir.2013), cert. denied, ––– U.S. ––––, 133 S.Ct. 2876, –––L.Ed.2d –––– (2013).

In the early hours of October 13, 2010, Okatan, a United States citizen, attempted to enter the United States from Canada at the Lewiston Bridge port of entry near Buffalo, New York. Okatan had a passenger in his car, Munir Uysal, a German citizen. Uysal was denied entry based on records indicating that he had previously overstayed a visa to the United States. Customs and Border Protection (“CBP”) officer Nghia Truong told Okatan that he was free to enter the country alone, but Okatan declined, explaining that he would drive Uysal to the Toronto airport to fly home. Truong warned Okatan against attempting to bring Uysal back into the United States, and Okatan drove back into Canada.

The following morning, Okatan again attempted to enter the United States, this time alone, at the Champlain, New York port of entry. He was questioned by CBP officer Patrick Curran. Okatan told Curran that he had intended to visit his mother and sister in Canada, and that he had hoped to give his mother some money, but that she had been in Florida. Okatan emptied his pockets at Curran's direction, producing an envelope containing over $5,000 in U.S. dollars plus some euros. Okatan was then interviewed by both Curran and officer Jason Sweet. A check of Okatan's license plate number had alerted the officers to Okatan's attempt to enter the United States with Uysal the preceding day. When asked, Okatan told the officers that he and Uysal had met in 2009 and belonged to the same congregation in Virginia. Uysal had flown to Toronto from Germany, and Okatan had met him at the airport in order to drive him to Virginia Beach. Okatan said that after Uysal had been denied entry at the Lewiston Bridge port of entry, the two men spent the night at a hotel in Ontario. The following morning, they drove into Quebec, where they argued at a rest stop. According to Okatan, Uysal wanted him to drive into the United States with Uysal in the trunk. When Okatan refused, Uysal walked off, and, when he did not come back, Okatan returned to the United States alone. After the interview, Sweet told Okatan that he would have to inspect his car and asked whether there was anything in the car that did not belong to him. Okatan said Uysal'sluggage was in the trunk and agreed to leave it with border patrol.

Okatan then entered the United States. At CBP's request, Homeland Security Investigations agent Kevin Walczak followed Okatan's car south from Rouses Point, New York, for approximately 25 minutes and into Vermont, where he decided that Okatan was likely traveling home to Massachusetts. Later that day, however, Walczak again saw Okatan's car in the vicinity of Rouses Point. He followed the car briefly until Okatan abruptly pulled over to the side of the road, forcing Walczak to drive past him. Walczak changed cars and caught up with Okatan, this time following him south until Okatan had left Walczak's usual area of responsibility. At that point, Walkczak abandoned his surveillance, but CBP officers continued to follow Okatan.

Meanwhile, also on October 14, 2010, Uysal walked into a convenience store in Mooers, New York—another port of entry not far from the one in Champlain—and waited for two or three hours. Noting that Uysal did not have a car, and considering how long he had been waiting, the owner of the store became suspicious and called border patrol. Agent Jerry Boucher and another agent responded to the call. They questioned Uysal, searched his pockets, and arrested him, transporting him to the Champlain border patrol station.

After leaving the station, Boucher drove to the Beekmantown rest area, the rest area closest to the convenience store at which Uysal had been arrested. As Boucher approached the rest area from the north on Interstate 87, he saw Okatan's car, which he recognized based on descriptions that he previously had heard at the border patrol station, driving in the opposite direction. Okatan passed a rest area on the northbound side of the road, directly across from the Beekmantown rest area, made a U-turn, and entered the Beekmantown rest area on the southbound side of the road. Boucher followed Okatan into the parking lot. Before Okatan could exit his car, Boucher activated his vehicle's lights and used its P.A. system to tell Okatan to remain inside his car.

Boucher walked over to Okatan's car, identified himself as a border patrol agent and asked Okatan if he was a United States citizen. Okatan said that he was and handed over his passport. Boucher then asked why Okatan had passed the rest area on the east side of the highway and made a U-turn to enter the Beekmantown rest area. Okatan replied that he had to use the bathroom. Boucher warned Okatan that lying to a federal officer is a criminal act and asked whether he was there to pick someone up. Okatan said that he wanted a lawyer. At that point, Boucher placed Okatan under arrest and transported him to the Champlain border patrol station. According to Boucher, when Okatan and Uysal saw each other at the station, Uysal's face lit up and he looked like he was about to wave, but Okatan looked at the ground. Okatan and his car were searched, and $5,748 in U.S. dollars and $1,500 in euros were found.

II. Procedural History

Okatan was indicted on June 1, 2011, and charged with bringing and attempting to bring an alien into the United States in violation of 8 U.S.C. § 1324(a)(2)(B)(iii), attempting to transport an alien within the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), and encouraging and inducing an alien to enter the United States illegally in violation of 8 U.S.C. § 1324(a)(1)(A)(iv). Before trial, he moved to suppress statements he made to Boucher at the Beekmantown rest area. The district court granted the motion on November 2, 2011, but only with respect to “the statements [Okatan] made to Agent Boucher after he asked for a lawyer at the Beekmantown Rest Area on the basis they were obtained in violation of Miranda.”

Agent Boucher testified during Okatan's three-day jury trial and, on direct examination, described his interaction with Okatan in the Beekmantown rest area. Boucher explained that after Okatan told him he needed to use the bathroom,

I then again asked him why would you come to this rest area? And he said something about the bathroom again, at which point I said to him something along the lines of, “It's against the law to lie to a federal agent, so don't lie to me. Why would you go past the northbound rest area, turn around and come back to this rest area?” And [I] may have said something like, “You are not here to pick anybody up or anything?” And he put his hands down and said he wanted a lawyer.

At that point, Okatan's attorney requested a mistrial because Okatan's “exercise[ of] his Constitutional right to remain silent is not a statement that's admissible and should not have come in for the jury.” The judge denied the motion, explaining that she had already ruled that any statements made after Okatan requested a lawyer could not come in, and that Okatan's “voluntary statement[ ]” that he wanted a lawyer was not excluded pursuant to that ruling.

At the close of evidence, Okatan's attorney requested “that the Court structure a charge to ensure that the jury is not drawing any negative—any inference from [Boucher's testimony] that the defendant asked for counsel at that point, which was his Constitutional right.” The court denied the request on the basis that it had explained to the jury in a preliminary charge that “the defendant has a Constitutional right to remain silent.”

In its closing argument, the government recounted Okatan's interaction with Boucher, highlighting Okatan's request for a lawyer. The government reminded the jury that, after Boucher approached Okatan in the Beekmantown rest area,

Mr. Okatan identified himself, he's a naturalized citizen. What are you doing here? I have to go to the bathroom. You just drove past a rest area, you have to go to the bathroom. Are you here to pick somebody up? Have to go to the bathroom. So, crime to lie to a federal officer and then no more. No more...