Suspect’s Request to Call Sister Who Was an Attorney Should Have Ended Interrogation, Sex Offense Conviction Overturned

A jury in federal court found Joseph Mr. Zakhari guilty of trying to coerce a minor into engaging in illegal sexual activity in violation of 18 U.S.C. 2422(b) (Count 1); trying to send an offensive image to a minor in violation of 18 U.S.C. 1470 (Count 2); and trying to create child pornography in violation of 18 U.S.C. 2251 (Count 3). The district court sentenced him to the applicable mandatory minimum term of fifteen years in prison.

On appeal, Mr. Zakhari argued, among other things, that the court erroneously denied his motion to suppress his statement to police as obtained in violation of his right to counsel.

It all started with a profile on a dating website that required participants to be over the age of 18. The profile, which used an image of a female officer when she was in her late teens or early twenties, showed “Dani” was a single, eighteen-year-old female looking for “Friendship, Dating, Chat.” When Mr. Zakhari chatted with Dani, an undercover cop, she claimed to be 15. When he asked, “Are you sure you aren’t 18?” she responded, “Nah, I’m sure. LOL.”

Mr. Zakhari arranged to meet Dani, and the adult female officer in the picture on the profile for Dani showed up. He was promptly arrested and interrogated.

After being read his Miranda warnings, the interrogator asked, “Do you understand what I just told you?” Mr. Zakhari replied, “Yes sir,” and the detective followed up with, “Do you want to talk to me right now?” Mr. Zakhari paused for ten seconds: “I don’t know who to call, I don’t know if I call my dad or my sister. Oh my god.” He was silent for another long pause, and said, “I can answer some questions and then maybe call, I don’t even know what to think anymore, I—I—.” The detective interjected, “Yeah, I understand, listen. It’s been a big day, right?” and assured Mr. Zakhari that he would “help [him] get through this.”

After Mr. Zakhari responded to some basic questions about his name and birth date, the following exchange occurred:

Mr. Zakhari: Can I call my dad?

Detective: Well, you know, I don’t have your phone and I can’t give it to you right now.

Mr. Zakhari: But you said I can stop at any time and call if I wanted to.

Detective: Yeah, well, is your dad an attorney?

Mr. Zakhari: My sister’s an attorney.

Detective: Do you wanna call your sister?

Mr. Zakhari: Yeah, I mean sh—

Detective: If you want to, yes but that’s gonna be the end of us talking.

Mr. Zakhari: Well—

Detective: And that’s not my rule, that’s just the way it is.

Mr. Zakhari: I understand I just don’t know what more you want me to say. I made a huge mistake if you want me to say that.

After this, Mr. Zakhari continued to answer the detective’s questions and made a series of incriminating statements. A few minutes later, Mr. Zakhari said, “Sir, I would like my lawyer at this point.” The detective spoke with Mr. Zakhari for a few more minutes before allowing him to speak with his father.

Once a person communicates his desire to deal with the police only through counsel, the Supreme Court has said, “he is not subject to further interrogation by the authorities until counsel has been made available to him.” Edwards v. Arizona, 451 U.S. 477 (1981). All questioning must cease. This bright-line prohibition prevents investigators from wearing down the accused so as to convince him to incriminate himself notwithstanding his earlier request for counsel’s assistance.

To invoke the right to counsel, the accused must make a statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. If an accused makes a statement concerning the right to counsel that is ambiguous or equivocal or makes no statement, the police are not required to end the interrogation or ask questions to clarify whether the accused wants to invoke his or her Miranda rights. However, a suspect need not speak with the discrimination of an Oxford don nor must he appear unshakeable in his decision or enthusiastic about calling counsel, the Supreme Court has reiterated numerous times.

The district court concluded that Mr. Zakhari was equivocal in invoking his right to counsel because he didn’t clearly say that he wanted a lawyer, only that he wanted to talk to a family member. The court of appeals disagreed, finding that:

He asked to call his dad almost immediately after being told he could call an attorney, not a family member; instantly identified his sister as an attorney when asked if dad was one; and said “Yeah” without hesitation after being asked directly whether he wanted to call her. Further, the detective understood that Mr. Zakhari sought “lawyerly assistance” because he told Mr. Zakhari that questioning would cease if he called his sister. Mr. Zakhari plainly sought counsel within the meaning of Miranda, regardless of his relation to the attorney he wished to contact.

Because the suppression motion should have been granted and the district court did not sufficiently consider the claim of prosecutorial vindictiveness, the Sixth Circuit reversed the denial of the motion to suppress, vacated the conviction, and remanded for a new trial and reconsideration of the motion to dismiss.

See United States v. Zakhari, No. 22-5328, 2023 U.S. App. LEXIS 28047 (6th Cir. Oct. 23, 2023).

Dale Chappell is an expert on federal postconviction relief and the author of hundreds of articles and several books on challenging illegal and wrongful convictions and sentences. He is a former staff writer for Criminal Legal News Magazine and the author of the blog

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