                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 10 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



KAVEH KAMYAB,                                    No. 09-56160

               Petitioner - Appellant,           D.C. No. 2:08-cv-05557-GAF-
                                                 FMO
  v.

DOMINGO URIBE, Jr., Warden,                      MEMORANDUM *

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                             Submitted January 7, 2013 **
                                Pasadena, California

Before:        KOZINSKI, Chief Judge, McKEOWN and M. SMITH, Circuit
               Judges.


       1. A criminal defendant is entitled to an instruction on an affirmative

defense, but only if he presents sufficient evidence to support that defense. See



          *
             This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                                page 2

Matthews v. United States, 485 U.S. 58, 63 (1988); Bradley v. Duncan, 315 F.3d

1091, 1098–99 (9th Cir. 2002). To be entitled to an instruction on duress

regarding the threats to his family, Kamyab had to show sufficient evidence that he

had a reasonable belief that the threats against them were both immediate and

imminent at the time the crime was committed. People v. Coffman, 96 P.3d 30,

105 (Cal. 2004). The California Court of Appeal concluded, not unreasonably, that

Kamyab “was not faced with the choice of the imminent death of his family or

executing the requested crime.” People v. Kamyab, No. B187608, 2007 WL

1492257, at *6 (Cal. Ct. App. May 23, 2007). Indeed, “[t]he threats to [Kamyab’s]

family and [his] involvement in the crimes began several weeks before the crimes

took place.” Id. Kamyab “had ample time to formulate a reasonable and viable

course of conduct.” Id. He was therefore not entitled to a duress instruction on

account of the threats to his family. See Coffman, 96 P.3d at 105–06.


      2. Officers must cease custodial interrogation when the suspect

“unambiguously request[s] counsel.” Davis v. United States, 512 U.S. 452, 459

(1994) (emphasis added). The California Court of Appeal concluded that

Kamyab’s question about calling his attorney was equivocal. Kamyab, 2007 WL

1492257, at *8. The Court of Appeal noted that a “reasonable understanding of
                                                                             page 3

[Kamyab’s] question is that he wanted to make sure that he could call a lawyer if

he was going to jail at that moment.” Id. That conclusion was not an unreasonable

application of Supreme Court precedent. See United States v. Younger, 398 F.3d

1179, 1187 (9th Cir. 2005).


      AFFIRMED.
