Reply Brief — Shabaz v. United States

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No. 09-686 | F299 2073

In The

Supreme Court of the Anited States

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SAMUEL SHABAZ,

Petitioner,

Ws

UNITED STATES OF AMERICA,

Respondent.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

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REPLY BRIEF FOR THE PETITIONER

¢

LISA L. THARPE

Counsel of Record

FOLEY & LARDNER LLP

321 North Clark Street,

Suite 2800

Chicago, Illinois 60654-5313

(312) 832-4500

ROBERT C. LEVENTHAL

FOLEY & LARDNER LLP

555 South Flower Street,

Suite 3500

Los Angeles, California

90071-2411

(213) 972-4500

(213) 486-0065

Counsel for Petitioner

Samuel Shabaz

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

I. Mr. Shabaz Did Not Waive on Appeal the

Issue of Whether his Invocation of Counsel

Pee SID sasccvescsnsocprerscsccoccnrcconesnzess 1

Il. The Officers Failed to Clarify Mr. Shabaz’s

Request for Counsel, as Required in the

Second and Ninth Circuits .......................... 3

TABLE OF AUTHORITIES

Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321,

a... conn veendionlduvendayiacevsssholerenns 5

Miranda v. State of Arizona, 384 U.S. 436, 86

S. Ct. 1602, 16 L. Ed. 2d 694 (1966)....................006000

United States v. Plugh, 576 F.3d 135 (2nd Cir.

NT eps is yi cendess Hussan sncererebesaatsavesavueeinetyitesdanedeneneut! 4

PETITIONER’S REPLY BRIEF

This case involves an important question of

federal law that should be settled by this Court.

Respondent's Brief in Opposition confirms that there

is a split among the circuit courts, with the Second

and Ninth Circuits holding that Davis applies only in

post-waiver settings, and the Third, Fourth, Fifth,

Sixth, and Tenth Circuits applying Davis in pre- and

post-waiver settings. Importantly, Respondent does

not deny that only the Second and Ninth Circuits

have examined the issue of whether Davis applies in

both settings. Instead, Respondent relies heavily on

the argument that the Court should simply reject the

Petition outright because Mr. Shabaz did not preserve

this particular issue for appeal. Respondent also

argues, among other things, that Mr. Shabaz would

not be entitled to relief even in the Second and Ninth

Circuits where Davis is applied only in post-waiver

settings.

I. Mr. Shabaz Did Not Waive on Appeal the

Issue of Whether his Invocation of Counsel

Was Unambiguous.

The issue of whether Mr. Shabaz unambiguously

invoked the right to counsel was not raised on appeal

to the Seventh Circuit because there was no finding

by the District Court that his invocation was

ambiguous or in any way unclear. On the contrary,

the District Court adopted the findings of the

Magistrate Judge that Mr. Shabaz had requested an

attorney with the following words: “am I going to be

2

able to get a lawyer?” (Pet. App. 18, 25) At no time did

the Magistrate Judge or the District Court suggest

that these words were ambiguous or otherwise

insufficient to invoke Mr. Shabaz’s right to counsel.

Instead, the District Court found that FBI Agent

Watson responded to Mr. Shabaz’s request for counsel

by directing him to the interview room, thereby

“deferring” his right to counsel, but not denying it.

(Pet. App. 18, 25) Thus, the issue before the District

Court was not whether Mr. Shabaz had invoked his

right to counsel, but whether he later knowingly had

waived his Miranda rights. (App. 20)

The issues raised on appeal were whether the

District Court erred in denying Mr. Shabaz’s motion

to suppress because (1) the agents wrongfully ignored

his request for counsel and (2) Mr. Shabaz did not

knowingly and voluntarily waive his Miranda rights.

(Pet. App. 5) Again, there was no question that Mr.

Shabaz’s request for an attorney was unambiguous.

Rather, it was the Seventh Circuit that re-framed the

“key issue in this case” as “whether Shabaz clearly

invoked his right to counsel.” (Pet. App. 6) The

Seventh Circuit ultimately held that Mr. Shabaz’s

request for counsel was not sufficiently unambiguous

to invoke his right to counsel.’ (Pet. App. 8-9)

' Indeed, the Seventh Circuit’s framing of the issue appears

to contradict the District Court’s holding that there was a valid

request for counsel which was “deferred.” (Pet. App. 18, 20)

Therefore, Mr. Shabaz did not fail to preserve for

appeal the issue of whether the Davis ambiguity rule

should apply to pre- and post-waiver settings because

the issue of whether Mr. Shabaz’s request for counsel]

was unambiguous did not arise until the Seventh

Circuit’s decision. Mr. Shabaz raised the issue at his

earliest opportunity, in his Petition to this Court.

II. The Officers Failed to Clarify Mr. Shabaz’s

Request for Counsel, as Required in the

Second and Ninth Circuits.

Respondent also argues that, even in the Second

and Ninth Circuits, Mr. Shabaz would not have been

entitled to suppression of his inculpatory statements

because the officers were permitted to clarify Mr.

Shabaz’s “ambiguous” request. In making this argu-

ment, Respondent incorrectly cites the rulings of the

courts below as finding that Mr. Shabaz’s statement,

“Am I going to be able to get an attorney?” was

ambiguous. On the contrary, as discussed at length

above, the District Court did not find Mr. Shabaz’s

statement to be ambiguous.

Respondent also argues that the officers here

were only attempting to clarify Mr. Shabaz’s request

for counsel, as permitted in the Second and Ninth

Circuits. While Respondent correctly states the rule

in the Second and Ninth Circuits that the officers

may ask questions to clarify whether the suspect in

fact wishes to invoke his right to counsel, the officers

must limit themselves to “narrow questions only for

the purpose of clarifying the ambiguity.” United

States v. Plugh, 576 F.3d 135, 144 (2nd Cir. 2009).

Here, the officers made no effort to constrain them-

selves to “clarifying the ambiguity.” Indeed, as

Respondent acknowledges in great oversimplification,

following Mr. Shabaz’s request for counsel, the

officers “explained to petitioner why he had been

arrested and outlined the topics they wished to

discuss with him.” (Opposition Bricf at 10) In actu

ality, the officers ignored his request, took him into

an interview room where he was handcuffed, told Mr.

Shabaz why he was under arrest, and told him, “We

know it’s you.” (Pet. App. 43-44) Even Respondent's

simplified rendition demonstrates that the officer’s

statements have nothing to do with clarifying

whether Mr. Shabaz had requested counsel.

Indeed, in the Magistrate Judge’s Report and

Recommendation, which was adopted in full by the

District Court, he took the officers to task for making

no attempt to clarify Mr. Shabaz’s request. While the

Magistrate Judge credited Mr. Shabaz’s testimony

that he stated, “Am I going to be able to get an

"”

attorney?” the Magistrate Judge found the officers’

conduct to be wholly inadequate even if, according to

Agent Watson, Mr. Shabaz had merely made a vague

reference to “attorney” or “counselor” without more:

Now, under Agent Watson’s rendition of this,

[’'m troubled by the proposition that when a

defendant in custody, which Mr. Shabaz

plainly was, pursuant to an arrest warrant

that had been issued, when an agent has a

person in custody and the person makes

reference to an attorney or counsel, that

there is apparently a lack of curiosity or

interest in knowing what the defendant is

referring to and finding out whether that is a

request for counsel.

That is not conduct that is, in my judgment

appropriate for officers or agents to — to do

when they have a person in custody and they

make reference to an attorney or counsel.

(Pet. App. 39-40) (emphasis supplied)

Respondent’s casual suggestion that “surround-

ing circumstances” make it “clear” that Mr. Shabaz

was willing to speak to the police without a lawyer

cannot erase the officers’ utter failure to clarify

Mr. Shabaz’s request, which should have been “scru-

pulously honored.” Michigan v. Mosley, 423 U.S. 96,

104, 96 S. Ct. 321, 46 L.Ed. 313 (1975). As first

stated in Miranda, “a valid waiver will not be pre-

sumed ... simply from the fact that a confession was

in fact eventually obtained.” Miranda v. State of

Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 1629, 16

L. Ed. 2d 694 (1966).

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CONCLUSION

Mr. Shabaz respectfully requests that this

Honorable Court grant the writ of certiorari.

DATED THIS 10TH DAY OF FEBRUARY, 2010.

Respectfully submitted,

LIsA L. THARPE

Counsel of Record

FOLEY & LARDNER LLP

321 North Clark Street,

Suite 2800

Chicago, Iflinois 60654-5313

(312) 832-4500

ROBERT C. LEVENTHAL

FOLEY & LARDNER LLP

555 South Flower Street,

Suite 3500

Los Angeles, California

90071-2411

213) 972-4500

(213) 486-0065

Counsel for Petitioner

Samuel Shabaz