Updated at: 08/26/2013 4:05 PM
By LARRY NEUMEISTER
(AP) NEW YORK - Prosecutors cannot use a defendant’s request for a lawyer as evidence of guilt, a federal appeals court ruled Monday as it ordered a new trial for a man convicted of trying to sneak an alien into the United States.
In ordering a new trial for the man, Tayfun Okatan, the 2nd U.S. Circuit Court of Appeals in Manhattan used a recent Supreme Court decision to guide it in an area of law that the nation’s highest court has not yet fully defined.
Okatan, a U.S. citizen, was convicted in Albany, N.Y., of three charges relating to illegally bringing an alien into the United States. He had tried to enter the country with a German citizen, Munir Uysal, in 2010 in upstate New York but was denied because records indicated Uysal had overstayed a previous visa to the United States.
The following day, Okatan entered the U.S. and was followed by authorities suspicious about his claims of leaving Uysal behind. They found him at a rest stop near another port of entry, where he was unaware that Uysal had been arrested trying to enter the country again.
Okatan was asked by a border patrol agent if he was there to pick someone up and was warned that lying to a federal officer was a criminal act, according to the recounting of the episode by Circuit Judge Gerald E. Lynch. At that point, Okatan asked for a lawyer.
A prosecutor at Okatan’s trial alluded to that request for a lawyer when he said Okatan had engaged in the "kind of conduct that someone who’s been caught," the appeals court said. He was sentenced last year to time served in prison and five months home detention.
"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," the appeals court said.
The 2nd Circuit said a Supreme Court ruling this year made a distinction in Fifth Amendment rights to protect oneself against self-incrimination when it made clear that a defendant has greater protection when he asks for a lawyer rather than merely remaining silent.
"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," the court said.
The 2nd Circuit noted that the Supreme Court has said a prosecutor may not comment on a defendant’s failure to testify at trial because such comment would be "a penalty imposed by courts for exercising a constitutional privilege."
"The same logic governs our decision today," the appeals court said. "The Fifth Amendment guaranteed Okatan a right to react to the question without incriminating himself, and he successfully invoked that right."
John Duncan, a prosecutor’s spokesman, said the government was reviewing the decision but had no further comment.
(Copyright 2013 by The Associated Press. All Rights Reserved.)