United States v. Okatan
728 F.3d 111
| 2d Cir. | 2013Background
- Okatan, a US citizen, was convicted on three counts relating to illegally bringing an alien into the US.
- The government used evidence that Okatan requested a lawyer during a border-patrol interrogation prior to his arrest as substantive proof of guilt.
- Okatan was questioned at Champlain, NY; later Uysal (the alien) was arrested in a separate port of entry and luggage belonging to Uysal was found with Okatan.
- CBP and Homeland Security agents surveilled Okatan after he entered the US, followed him, and later arrested him at a rest area where he invoked his right to counsel.
- During trial, the district court had previously suppressed only statements made after Okatan requested a lawyer, but the government referenced the invocation in closing, which Okatan challenged on appeal.
- The Second Circuit vacated and remanded, holding the pre-arrest invocation of the Fifth Amendment cannot be used as substantive evidence in the government’s case in chief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a prearrest invocation of the Fifth Amendment be used as substantive proof? | Okatan argues invocations cannot be used to prove guilt. | US contends such invocations may be used if properly limited or cured by instructions. | No; prearrest invocation cannot be used in the case in chief. |
| Was the error harmless beyond a reasonable doubt? | Okatan asserts the error affected the verdict. | Government argues surrounding evidence sufficed to prove guilt beyond doubt. | No; error was not harmless beyond a reasonable doubt. |
| Did Salinas v. Texas influence whether invocation prearrest could be used in chief? | Salinas clarifies two-step analysis but does not approve prearrest use. | Government relies on Salinas to distinguish timing of invocation. | Salinas clarifies framework; invocation cannot be used in chief. |
Key Cases Cited
- Griffin v. California, 380 U.S. 609 (1965) (prohibition on penalizing silence as evidence of guilt)
- Fare v. Michael C., 442 U.S. 707 (1979) (right to counsel requires interrogation cease)
- Doyle v. Ohio, 426 U.S. 610 (1976) (impeachment with prior silence after Miranda warnings is improper)
- Salinas v. Texas, 133 S. Ct. 2174 (2013) (two-part analysis of prearrest silence; privilege assertion timing)
- Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989) (invocation of Fifth Amendment rights not admissible via evidentiary use)
- Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000) (prearrest invocation cannot be used as substantive evidence)
- Rivera v. United States, 944 F.2d 1563 (11th Cir. 1991) (government may comment on silence prior to arrest and Miranda warnings)
- Grubczak v. United States, 793 F.2d 458 (2d Cir. 1986) (comment on refusal to answer can be improper)