                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-3913
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

LAWRENCE P. PETERS,
                                         Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
          No. 04-CR-17—William C. Griesbach, Judge.
                        ____________
 ARGUED SEPTEMBER 20, 2005—DECIDED JANUARY 27, 2006
                   ____________


  Before CUDAHY, KANNE, and ROVNER, Circuit Judges.
  KANNE, Circuit Judge. Again we find ourselves in the
midst of the fallout from Blakely v. Washington, 542 U.S.
296 (2004), and United States v. Booker, 125 S. Ct. 738
(2005), but this time there is a twist: rather than appealing
his sentence, Lawrence Peters seeks to overturn his
conviction. Post-Blakely and pre-Booker, it was less than
clear whether it was necessary or proper to incorporate into
indictments and jury instructions the United States
Sentencing Guidelines (“the Guidelines”). During this
time period, Peters was indicted, tried, and convicted.
Peters appeals, claiming that it was plain error for the
superceding indictment and jury instructions to include
sentencing matters. Additionally, Peters claims he was
2                                              No. 04-3913

deprived of his right to counsel when a federal agent
continued a custodial interrogation after Peters claims to
have invoked his right to remain silent. For the follow-
ing reasons, we find that his motion to suppress was
properly denied and we affirm Peters’s conviction.


                        I. HISTORY
    A. Robbery
  In the early morning of December 21, 2003, the Hillstop
Convenience Store on the Menominee Indian Reservation
in Keshena, Wisconsin, was robbed by a man wearing a
ski mask and armed with a section of PVC pipe. A Hill-
stop employee was preparing for business and had just
opened the store’s safe when the robber approached the
employee, threatened him with the pipe, and said, “Don’t
move.” The robber removed bags containing cash, coins, and
checks from the safe. With the bags in hand, the robber
pulled telephone wire from the store’s wall and locked the
employee in the office. A short time later, the employee
forced his way out of the office and called the police.


    B. Arrest and Interrogation of Peters
  The investigation led police to suspect Peters, but he
was nowhere to be found. Several days later, on January 7,
2004, FBI Special Agent Gerald Mullen received a tip that
Peters was at home. Mullen relayed the tip to tribal police
and made his way to the tribal police department from
Green Bay. Pursuant to a federal arrest warrant, Peters
was taken into custody at his home by tribal police, includ-
ing Tribal Investigator Edward (Doug) Snow. Upon his
arrest, Peters was transported to the Menominee
tribal police station and booked into the tribal jail. After
booking, Snow presented him with an Advice of Rights
No. 04-3913                                                       3

form, which contained Miranda warnings. Peters signed the
waiver of rights form.
  Peters was then taken to an office for questioning by
Mullen and Snow. Once in the office, Mullen explained the
nature of federal jurisdiction to Peters and read through the
Advice of Rights form one more time. Mullen also explained
that Peters would be going to Green Bay for pretrial
services to determine whether Peters was financially
eligible to have an attorney appointed for him. Mullen then
began to discuss the investigation and to interrogate Peters.
  Initially Peters denied any involvement with the Hill-
stop robbery. Mullen continued interrogating Peters,
informing him of the evidence the FBI had against him.
Peters referred to the earlier conversation about meeting
with pretrial services in Green Bay and added, “I think
I would like to get to that now,” or words to that effect.1
Mullen then confronted Peters with a statement from
Peters’s daughter at which point Peters confessed to the
robbery. Mullen subsequently prepared a written statement
in which Peters admitted to committing the Hill-
stop robbery and detailed Peters’s activities following the
offense. Without asking to see a lawyer, Peters reviewed
and signed the confession.


    C. Indictment and Trial
  On January 13, 2004, Peters was indicted on one count of
willfully taking money from the presence of another by
intimidation within the boundaries of an Indian reserva-


1
   The words Peters actually used are not clear, but there is
no material dispute here. In his brief and at oral argument, the
words Peters claims to have spoken varied, subtly altering the
quotation in his favor by making it more specific, such as, “I would
like to get to the [Green Bay] part now.” For our purposes, the
alternatives have no effect on the outcome of the case.
4                                              No. 04-3913

tion, in violation of 18 U.S.C. § 1153(a) and 18 U.S.C.
§ 2111. On February 4, 2004, Peters moved to suppress
the confession on the ground that he signed it after the
agents refused his request for counsel. The matter was
referred to Magistrate Judge Aaron Goodstein for an
evidentiary hearing, during which Peters admitted he had
been arrested many times and that in some of those
instances he had invoked his right to counsel to stop
interrogations. Basing his decision on Peters’s past experi-
ences and the two readings of the Advice of Rights form, the
magistrate judge concluded that Peters understood his
rights and could have stopped the interrogation as he had
done before. The magistrate judge recommended Peters’s
suppression motion be denied. On March 19, 2004, the
district court accepted the magistrate judge’s findings of
fact and conclusions of law, and denied Peters’s motion to
suppress. A jury trial was subsequently set for May 4, 2004.
  At the request of Peters’s counsel, the district court
ordered Peters to undergo a competency examination.
Peters was found competent to stand trial, but his coun-
sel withdrew, which delayed the trial until August 4, 2004,
to afford Peters’s successor counsel an opportunity to
prepare.
  In the interim, Blakely and our United States v. Booker,
375 F.3d 508 (7th Cir. 2004), were decided. As a result, the
government sought a superceding indictment and it was
returned by the grand jury on July 27, 2004. In the
superceding indictment, the robbery charge remained
essentially the same, but three sentencing allegations
were added. The relevant portion of the superceding
indictment read as follows:
             Offense Allegations
                COUNT ONE
                  Robbery
    THE GRAND JURY CHARGES:
                COUNT ONE
No. 04-3913                                                   5

     1. On or about December 21, 2003, in the State and
    Eastern District of Wisconsin,
              LAWRENCE PAUL PETERS,
    a Native American Indian and the defendant herein,
    within the territorial jurisdiction of the United States,
    willfully took money from the presence of another by
    intimidation, specifically, the defendant stole in excess
    of $30,000 in cash and checks from the Hillstop conve-
    nience store after threatening the clerk with a section
    of PVC pipe and locking the clerk in an office.
      All in violation of Title 18, United States Code,
    Sections 1153(a) and 2111.
    [on the next page]     Sentencing Allegations
    1. With respect to Count One of the indictment:
        a. The defendant committed the offense while
        brandishing a dangerous weapon. See U.S.S.G.
        §2B3.1(b)(2)(E).
        b. The defendant physically restrained a person to
        facilitate escape. See U.S.S.G. §2B3.1(b)(4)(B).
        c. The defendant took property valued at more
        than $10,000.00. See U.S.S.G. §2B3.1(b)(7)(B).
  The district court read part of the superceding indictment
to prospective jurors during voir dire. However, after a
verbatim reading of the allegation involving the violation of
18 U.S.C. §§ 1153(a) and 2111, the district court— without
mentioning sentencing—stated that there are “additional
allegations in the indictment, which will be addressed, if
necessary, in the verdict . . . . These are allegations that the
defendant committed the offense while brandishing a
dangerous weapon; that the defendant physically restrained
a person to facilitate his escape; and that the defendant
took property valued at more than ten thousand dollars.”
Before and after reading the indictment, the district court
6                                                No. 04-3913

admonished the prospective jurors that the indictment itself
was not evidence and could not be used to infer guilt.
  After a two-day trial, the district court instructed the jury
as to the robbery charge, and submitted a special verdict
form for each of the sentencing allegations. The court
cautioned that the questions in the special verdict forms
should only be considered if the jury found Peters guilty of
robbery. After posing the questions, the special interrogato-
ries concluded:
      In order to answer any of these questions “yes,” the
    government must prove beyond a reasonable doubt that
    the answer to the question should be “yes”. If
    the evidence does not convince you beyond a reasonable
    doubt that the answer should be “yes”, you must answer
    the question “no.”
  Peters did not object. The jury found Peters guilty of
robbery and answered “yes” to the special interrogatories.
Despite failing to object on either issue, Peters moved for a
new trial, unsuccessfully, arguing that the sentencing
allegations and special verdict questions unfairly prejudiced
him.
  At sentencing, following our decision in Booker, the
district court concluded the Guidelines were advisory and
sentenced Peters to 72 months’ imprisonment followed
by 3 years of supervised release and ordered restitution
in the amount of $18,787.29. Alternatively, the district
court imposed a mandatory sentence of 110 month im-
prisonment pursuant to the Guidelines. The Supreme Court
subsequently affirmed Booker, 125 S. Ct. at 746, which
nullified the 110-month sentence mandated by the Guide-
lines.
  On appeal, Peters seeks to overturn his conviction and
obtain a new trial for two reasons: first, the district
court should have granted his motion to suppress his
confession because he had invoked his right to an attorney;
No. 04-3913                                                  7

and second, the sentencing allegations in the indictment
and jury instructions constituted plain error.


                      II. ANALYSIS
  A. Denial of Motion to Suppress Confession
  Peters appeals the district court’s denial of his motion
to suppress his confession, claiming he unambiguously
invoked his right to counsel when he said, “I’d like to get to
that part now.” “In reviewing the district court’s decision on
a motion to suppress, we review questions of law de novo
and questions of fact for clear error.” United States v. Ford,
333 F.3d 839, 843 (7th Cir. 2003). Peters does not contest on
appeal the magistrate judge’s factual findings which were
adopted by the district court; rather, Peters disputes the
legal effect of his words, arguing he did invoke his right to
counsel, a question we review de novo. See id.
  Because Peters already had been advised of his right to
counsel and waived it, Peters’s interrogation was proper
(and his confession admissible) unless he subsequently
advised the agents that he was invoking his right to an
attorney. See Edwards v. Arizona, 451 U.S. 477, 485 (1981);
Davis v. United States, 512 U.S. 452, 458-59 (1994); see
generally Miranda v. Arizona, 384 U.S. 436 (1966). The test
of whether one has invoked the right to counsel is objective,
Davis, 512 U.S. at 458-59 (1987) (citing Connecticut v.
Barrett, 479 U.S. 523, 529 (1987), requiring the suspect
to “articulate his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances
would understand the statement to be a request for an
attorney.” Id. at 459. It is not enough that the suspect
might be invoking the right to counsel; rather, the sus-
pect must do so unambiguously. Id. (citations omitted).
When a suspect makes an ambiguous statement, police
officers need not cease an interrogation, id. at 459-60
(citation omitted), or ask clarifying questions, id. at 461-62.
8                                               No. 04-3913

   Peters’s statement, “I’d like to get to that part now,” by
itself goes nowhere toward invoking the right to counsel.
However, Peters claims that under the circumstances
its meaning is clear. While we agree that Peters’s words
should be viewed in the context in which they were
spoken, as Davis requires, id. at 459, case law in this area
is strict. E.g., id. at 462 (holding “Maybe I should talk
to a lawyer” to be ambiguous); United States v. Brown,
287 F.3d 965, 972-73 (10th Cir. 2002) (holding suspect’s
contradictory answers on Miranda waiver form that he
would answer questions without an attorney and that he
wanted to talk to a lawyer to be ambiguous); United States
v. Zamora, 222 F.3d 756, 766 (10th Cir. 2000) (holding
“I might want to talk to an attorney” to be ambiguous); Diaz
v. Senkowski, 76 F.3d 61, 63-64 (2d Cir. 1996) (holding “Do
you think I need a lawyer?” to be ambiguous); Flamer v.
Delaware, 68 F.3d 710, 725 (3d Cir. 1995) (holding defen-
dant’s request to call someone about possible representation
to be ambiguous); see Simmons v. Bowersox, 235 F.3d 1124,
1131-32 (8th Cir. 2001) (holding denial of involvement in
crime is not assertion of right to remain silent); Burket v.
Angelone, 208 F.3d 172, 200 (4th Cir. 2000) (holding
statements “I just don’t think that I should say anything,”
and “I need somebody that I can talk to” to be ambiguous
rather than assertion of right to remain silent).
  For Peters to clear the bar, he must show a tight fit
between his being informed of the right and his statement
allegedly invoking it, so that under the circumstances he
manifested “the clear implication of a present desire to
consult.” Lord v. Duckworth, 29 F.3d 1216, 1221 (7th Cir.
1994). Peters cites two cases to support his position. In
Smith v. Illinois, the Supreme Court held the words, “Uh,
yeah, I’d like to do that” to be a clear invocation of coun-
sel. 469 U.S. 91, 93, 99-100 (1984). We note, however, that
in Smith, the suspect made this statement during the
reading of the Miranda warnings, immediately following
No. 04-3913                                                  9

the portion entailing the right to counsel. Id. at 92-93. In
Alvarez v. Gomez, the suspect invoked his right to counsel
by asking, “Can I get an attorney right now, man?”; “You
can have attorney right now?”; and “Well, like right now you
got one?” 185 F.3d 995, 998 (9th Cir. 1999). In Alvarez, the
suspect asked these three questions immediately
after having been read the Miranda warnings and before he
waived his right to remain silent. Id. at 996-98. Considering
the three questions together, the Ninth Circuit held that
Alvarez had unambiguously invoked his right to counsel. Id.
at 998. Under the circumstances of these cases, the suspects
unambiguously invoked their right to counsel.
  To the contrary, the context of Peters’s statement does not
clarify its meaning. Because a significant time period
elapsed between when the Miranda warnings were read
to Peters and when he made the statement, during which
he waived his right to an attorney and the interroga-
tion began, the ambiguity cannot be cured by temporal
proximity to the Miranda warnings’ references to counsel.
Moreover, Peters’s statement referred not directly to a
lawyer, counsel, or an attorney, but merely to pretrial
services in Green Bay, at most an indirect reference. While
Peters might have invoked his right to counsel, he did not
do so unequivocally or unambiguously to satisfy Davis.
Because the officer had no duty to ask Peters to clarify his
ambiguous statement before continuing the interrogation,
his subsequent confession was admissible.


  B. The Use of the Guidelines in the Superceding Indict-
     ment and Jury Instructions
  Because Peters did not object at trial, we review the
inclusion of the sentencing factors in his indictment and the
jury instructions only for plain error. Fed. R. Crim. P. 52(b);
United States v. Paredes, 87 F.3d 921, 924 (7th Cir. 1996)
(citations omitted).
10                                              No. 04-3913

                    1. The Indictment
  Peters argues the district court erred by failing to strike
the sentencing allegations from the superceding indictment,
thereby violating the longstanding separation of powers
prohibition of a federal common law of crimes. See, e.g.,
United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32
(1812); United States v. Coolidge, 14 U.S. (1 Wheat.) 415
(1816). Peters begins by claiming the authority to enact
criminal statutes originates in Congress and, under the
nondelegation doctrine, must remain with Congress. Next,
Peters points out the Guidelines were promulgated by the
United States Sentencing Commission, a body partly
comprised of Article III judges. Hence, Peters concludes, an
indictment citing the Guidelines amounts to a common law
charge originating in the judiciary, rather than in Congress.
The government contends the sentencing allegations are
mere surplusage, which admittedly should have been
stricken under Federal Rule of Criminal Procedure 7(d).
  Peters misses a crucial point: for an indictment to allege
a common law crime, the sentencing factors must be es-
sential to convict the defendant. Otherwise, “[a] part of the
indictment unnecessary to and independent of the allega-
tions of the offense proved may normally be treated as a
useless averment that may be ignored.” United States v.
Quintanilla, 2 F.3d 1469, 1475 (7th Cir. 1993) (quoting
United States v. Miller, 471 U.S. 130, 136 (1985) (quotations
and citation omitted)); United States v. Swanson, 394 F.3d
520, 525-26 (7th Cir. 2005) (citations omitted). “Allegations
in an indictment that are not necessary to establish a
violation of the statute in issue are mere surplusage and
may be disregarded if the remaining allegations are
sufficient to charge a crime.” United States v. Mastrandrea,
942 F.2d 1291, 1293 (8th Cir. 1991); Swanson, 394 F.3d at
525-26 (citations omitted).
No. 04-3913                                                 11

  Under “Count 1,” the superceding indictment alleged that
Peters willfully took money from the presence of another by
intimidation (the essential elements of robbery, see 18
U.S.C. § 2111), and that Peters was an Indian and the
crime was committed on an Indian reservation, establishing
federal jurisdiction, see 18 U.S.C. § 1153(a). The sentencing
allegations—brandishing a weapon, physical restraint to
facilitate escape, and amount in excess
of $10,000—appeared on the following page under a sepa-
rate heading, “Sentencing Allegations,” but not under a
separate count. So Peters was charged with only one crime,
and that charge sufficiently alleged a violation of a federal
statutory crime. See Fed. R. Crim. P. 7(c)(1); 18 U.S.C. §
2111.
  Even if the jury found the government did not prove
beyond a reasonable doubt that Peters brandished a
weapon, restrained another to facilitate escape, or took
more than $10,000, he nevertheless could have been
convicted of one count of robbery if the jury did find beyond
a reasonable doubt that he was an Indian who willfully took
money from the presence of another by intimidation while
on an Indian reservation. Therefore, the sentencing allega-
tions in the superceding indictment amount to mere
surplusage and do not constitute elements of a common law
charge.


                      2. The Voir Dire
  Peters argues that even if the sentencing allegations
are surplusage, their inclusion in the superceding indict-
ment prejudiced him because the indictment was read to
prospective jurors during voir dire. We disagree. Surplusage
should not be stricken unless “it is clear that the allegations
are not relevant to the charge and are inflammatory and
prejudicial.” United States v. Rezaq, 134 F.3d 1121, 1134
(D.C. Cir. 1998) (quotations omitted); accord United States
12                                               No. 04-3913

v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990); United States
v. Anderson, 579 F.2d 455, 457 n.2 (8th Cir. 1978); see
United States v. Marshall, 985 F.2d 901, 905-06 (7th Cir.
1993) (citations omitted). While not essential elements, the
sentencing allegations nevertheless were relevant to the
statutory crime alleged; hence, they did not lead to the
admission of any evidence which could have prejudiced the
jury’s finding Peters guilty of robbery. First, whether Peters
brandished a weapon was relevant to proving intimidation.
Second, whether Peters used physical restraint to facilitate
escape was relevant both to intimidation and the presence
of another. Third, whether Peters took more than $10,000
was relevant to proving whether Peters took any money at
all.
  Additionally, we do not think the wording of the sentenc-
ing allegations, e.g.,“brandished” and “physical restraint,”
was so clearly inflammatory as to warrant overturning
Peters’s conviction. Indeed, at oral argument, Peters
conceded that he would not object at trial to testimony
containing similar words. We also note the district court
instructed during voir dire that the indictment was not
evidence, which weighs against finding plain error, see
Marshall, 985 F.2d at 906 (citation omitted), and, after
reading the robbery charge, prefaced the sentencing
allegations by cautioning, “there are additional allegations
in the indictment, which will be addressed, if necessary, in
the verdict.” Thus, the surplusage in the superceding
indictment did not lead the jury to convict Peters where
otherwise it would not, and we find no plain error in the
superceding indictment.


                 3. The Jury Instructions
  Peters seeks to overturn his conviction claiming the jury
instructions that make references to sentencing matters
deprived him of due process. However, no objections were
No. 04-3913                                               13

made to these instructions at trial. “Our plain error re-
view is particularly light-handed in the context of jury
instructions. It is the rare case in which an improper
instruction will justify reversal of a criminal conviction
when no objection has been made in trial court.” United
States v. Griffin, 84 F.3d 912, 925 (7th Cir. 1996) (quota-
tions omitted). “[T]he error [must] be of such a great
magnitude that it probably changed the outcome of the
trial.” United States v. Moore, 115 F.3d 1348, 1362 (7th Cir.
1997) (quotations omitted). This determination requires us
to view the submitted instructions “in light of the facts of
the case and the evidence presented.” United States v.
Garcia, 897 F.2d 1413, 1422 (7th Cir. 1990) (citation
omitted). By defining “lurid” terms that are not elements of
the robbery offense, Peters argues, the instructions preju-
diced him by sensationalizing the nature of the offense at
the time when the trial judge’s words carry their greatest
weight with the jury. Additionally, Peters contends this
enabled the prosecution to intertwine in its closing argu-
ment the prejudicial sentencing allegations with the
question of guilt. The prejudice to Peters was so great, he
claims, the district court should have bifurcated the trial.
  But Peters cannot show how the jury’s exposure to the
sentencing factors probably changed the outcome of his
trial. As with the superceding indictment, we think the
words of which Peters complains fail to approach the level
of hyperbole necessary to overturn a conviction. Simply put,
“brandished,” “dangerous weapon,” and “serious
bodily injury” are not lurid in their own right such that
a jury could be irrevocably tainted by its mere exposure
to them. These words commonly appear in other criminal
statutes, and, as parts of substantive offenses, properly
would be included in jury instructions. See, e.g., 18 U.S.C.
§§ 113(a)(3), (a)(6), (b)(2), 924(c), 1365, 2113(d).
  Moreover, Peters’s argument that he was particularly
susceptible to prejudice when the district court read the
14                                               No. 04-3913

jury instructions did not address the effect of admonish-
ments in the instructions. After delineating the essential
elements of robbery, stating the standard of proof necessary
for a guilty verdict, and supplying definitions of the robbery
elements, the instructions continued, “[i]f you find the
defendant guilty of robbery, as charged in the indictment,
you must also answer each of the following questions yes or
no.” Only then did the instructions reference the sentencing
allegations, in the form of special interrogatories and
accompanied with legal definitions. By providing legal
definitions for these phrases, the district court mitigated
any potential prejudice to Peters by directing the jury to
ground its verdict in the law rather than emotion. Peters
did not show that the jury probably confused the sentencing
factors with the issue of his guilt, and we do not find plain
error.




                   III. CONCLUSION
  For the foregoing reasons, the district court’s denial of
Peters’s motion to suppress his confession was proper
and Peters’s conviction is AFFIRMED.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-27-06
