# Reply Brief — Shabaz v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1293%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2010 - **Citation:** 560 U.S. 952 ## Text | vies \ No. 09-686 | F299 2073 In The Supreme Court of the Anited States * SAMUEL SHABAZ, Petitioner, Ws UNITED STATES OF AMERICA, Respondent. + On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit + 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). 6 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1293%3A3. Public record. Not legal advice.