Case o' The Week: Breach to the Third -- Manzo II, Breach, IAC, and "Law of the Case"

How many times does the Ninth have to say that the government needs to keep its promises and stand by its deals?

Three, so far, in 2012 (and its only April!)

United States v. Jose Manzo, (Manzo II) 2012 U.S. App. LEXIS 6838 (Apr. 5, 2012), decision available here.

Players: Big win by ED WA AFPD Matthew Campbell. Decision by Judge Gould.

Facts: Manzo was charged with possession of precursors to manufacture meth, and with distribution of meth. Id. at *2. He went to trial on the manufacturing case and was found guilty; sentencing was continued pending resolution of the distribution case. Id.

Manzo then pleaded guilty pursuant to a plea agreement in the distribution case. Id. In the agreement the government agreed to offense level (OL) 34, and to a three-level reduction for acceptance. Id. at *2-*3.


Sentencing came, and Probation went south: the PSR grouped the two offenses, converted the precursor and meth to the marijuana equivalency as directed by the guidelines, added the marijuana amounts, and came up with offense level 38. Id. at *3. The PSR also refused to give Manzo acceptance, because he had gone to trial on the manufacturing case. Id.

At sentencing, the government abandoned the OL 34 recommendation and endorsed OL 38, and didn’t recommend the acceptance reduction. Id. at *5.

Defense counsel didn’t argue breach. Id.

Manzo – who expected no more than 14 years with his deal – got hammered with 24 at sentencing. Id. In a mem dispo (“Manzo I”) the Ninth upheld the sentence on direct appeal, under plain error review. Id. at *6.

Issue(s):

1. IAC: “Manzo argues that his counsel gave him ineffective assistance of counsel.” Id. at *8.

2. Breach: “Manzo contends that the government breached its plea agreement with respect to the distribution sentence by merely agreeing before the district court that in light of the grouping, a base offense level of 38 was a correct calculation without recommending a base offense level of 34, per the agreement’s terms, and by not recommending a downward departure for Manzo’s acceptance of responsibility.” Id. at *11.

Held:

1. IAC: “We agree with Manzo that his counsel’s failure to anticipate that the offenses would be grouped for sentencing purposes and then advise Mazo to move to withdraw his agreement was constitutionally deficient.” Id. at *9.

2. Breach: “[T]he government had agreed that a base offense level of 34 would apply to Manzo’s sentence and promised to recommend a 3-level downward departure upon Manzo’s acceptance of responsibility. At the sentencing hearing, however, the government did neither and so breached the express terms of the plea agreement.” Id. at *13.

Of Note: The second time was a charm, for Manzo.

  The present case was decided on habeas review. Three years ago, on direct appeal, a different three-judge panel of the Ninth held that the government didn’t breach. See Manzo I, 337 Fed. Appx. 643 (9th Cir. June 1, 2009) (mem.) (Per curiam, Judges Canby, Thompson and Callahan).

In this week’s habeas “Manzo II,” Judge Gould acknowledges the earlier mem dispo, but explains that his panel isn’t bound by that decision – quoting authority that explains that the “law of the case” doctrine doesn’t apply when “the first decision was clearly erroneous.” Manzo II, 2012 U.S. App. LEXIS 6838 at *13 & n.3 (citation omitted).

For appellate folks, footnote three is the most intriguing corner of this interesting case: a welcome tool to distinguish a “conclusory sentence” in a previous panel’s “summary disposition.” Id. at *13-*15 & n.3.

How to Use: “Don’t breach” seems a recent Ninth theme. See recent blogs on breach here. Judge Gould explains – yet again – what the government is to do when its plea agreement contains incorrect guideline calculations. Id. at *16. Turns out it isn’t that hard, to keep a promise: an AUSA is to acknowledge the correct guidelines, but argue for lower guidelines reflected in the negotiated deal. Id. 

With three big Ninth breach decisions in the last four months, there’s certainly plenty of guidance on how to handle the situation . . . .

For Further Reading: Judge Gould, author of Manzo II, replaced Judge Beezer when he went senior in 1996. We’re sad to report that Judge Beezer passed away last week. For a review of some notable criminal-law decisions by Judge Beezer – including the original Carty case – see blog entries here.

 Image of "Breach" from http://www.moviewallpaper.net/wpp/Ryan_Phillippe_in_Breach_Wallpaper_2_1024.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: Ninth's Hurd Mentality - Good decision rejects use of post-Miranda Silence

"You have the right to remain silent. Your silence can and will be used against you at trial."

Count on the California Court of Appeal to rewrite the Miranda warnings and permit a defendant's silence to be used against him at trial as evidence of guilt. Count on Judge Beezer to set 'em straight. Hurd v. Terhune, 2010 WL 3293355 (9th Cir. Aug. 23, 2010), decision available here.

Players: Decision by Judge Beezer, joined by Judges Pregerson and Thompson.

Facts: Hurd’s wife, Bea, sought a divorce. Id. at *1. Bea was upstairs with Hurd when their son heard a shot. Id. Bea came down, crying, and collapsed; at the hospital she died of a single shot to her chest. Id. At his California court trial, Hurd testified that Bea was borrowing his gun and it accidentally went off when he showed her how to operate it. Id. at *2.

He had told the same account to police after being Mirandized. Id. The cops had then asked him to submit to a polygraph; Hurd refused. Id. The cops asked Hurd to demonstrate how the shooting occurred; he refused. Id. Before trial, Hurd moved to suppress his refusals to take a polygraph and to reenact the shooting. Id. After his motion was denied, the D.A. repeatedly referred to Hurd’s refusals as evidence as guilt at trial. Id. Hurd was convicted and sentenced to LWOP; his appeals were denied, as was his federal habeas in district court. Id. at *2.

Issue(s): “We first address Hurd’s argument that the state trial court improperly admitted as evidence his refusal to reenact the shooting in violation of his Fifth Amendment rights as determined by the Supreme Court in Miranda v. Arizona, . . . and Doyle v. Ohio.” Id. at *3.

Held: “Because the California courts’ application of Miranda and Doyle was unreasonable, we reverse the decision of the district court and direct that a writ of habeas corpus issue.” Id. at *1. “The California Court of Appeal’s Miranda and Doyle analysis is incorrect. The Supreme Court has clearly established that, after receiving Miranda warnings, a suspect may invoke his right to silence at any time during questioning and that his silence cannot be used against him at trial, even for impeachment.” Id. at *5. “Contrary to the conclusion of the California Court of Appeal, the right to silence is not an all or nothing proposition. A suspect may remain selectively silent by answering some questions and then refusing to answer others without taking the risk that his silence may be used against him at trial.” Id. at *6.

Of Note: What is “clearly established federal law” for the purpose of AEDPA review? Supreme Court decisions. But what is one to make of a wealth of federal circuit precedent dealing with the same issue presented by a habeas petition? That is “persuasive authority,” explains Judge Beezer. Id. at *6. It is one of the many inanities of AEDPA review that – like Lord Voldemort – circuit authority is the precedent that “must not be named.” Aware of that taboo, Judge Beezer tacks his list of circuit authority on the use of a suspect’s silence after concluding that Supreme Court law controls this habeas issue. Id. (discussing Ninth Circuit and other circuit authority).

How to Use: Hurd is a great opinion on the issue of post-Miranda silence. Judge Beezer carefully distinguishes Supreme Court authority that allows post-Miranda inconsistent statements to be used against a defendant. Id. at *5 (discussing Anderson). He also emphasizes that the protections of Miranda silence can apply to silence to specific questions: the right is not an “all or nothing proposition.” Id. at *6. Finally, he explains that a suspect who answers some questions may not have unambiguously asserted Miranda, but if the suspect later remains silent that silence is not then admissible. Id. at *6. Hurd will be a lead decision on several interesting corners of Miranda law; it is worth a close read.

For Further Reading: A week ago, in Rivera-Corona, Judge Berzon explained how to fire retained counsel and get a P.D.. See blog post here. Is that switch a good idea? That frequent debate is the subject of yet another recent study; Richard Hartley, Holly Miller and Cassia Spohn, Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, discussed (with considerable skepticism) here.


Image of Ernesto Miranda from http://www.dominickrusso.com/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org.

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Case o' The Week: Ninth Provides Valuable Herring-Aid, Song Ja Cha

Judge Beezer authors a good case on what constitutes an unreasonable delay of execution of a search warrant. United States v. Song Ja Cha, __ F.3d __, 2010 WL 775238 (9th Cir. Mar. 9, 2010), decision available here.

Cha is a great case, however, on Herring and its application (or rather, on when this unfortunate new Supreme Court rule doesn't apply).

Players: Decision by Judge Beezer.

Facts: Guam police investigated the “Blue House Lounge” on reports that the owners had refused to return an employee’s passport. Id. at *1. Suspecting prostitution, the police arrested one owner, Ms. Cha, and “seized” the place. Id. at *2. Mr. Cha returned home (attached to the Blue House Lounge) but was denied entrance by the police – even to get his diabetes medicine. Id. at *2. The police worked on a warrant, searched around for a magistrate, and finally got around to executing the warrant 26 hours later. Id. at *2-*3. The Chas were charged with sex trafficking and prostitution-related crimes. Id. at *1.

Issue(s): “The magistrate judge concluded that, although the police had probable cause to seize these premises while they obtained a warrant, the warrantless seizure was unreasonably long in violation of the Fourth Amendment of the U.S. Constitution. The district court agreed . . . and the United States brought an interlocutory appeal . . . .” Id. at *1.

Held: “We conclude that the seizure of the Cha residence, which lasted a minimum of 26.5 hours, was constitutionally unreasonable and that suppression of the evidence was warranted. We therefore affirm.” Id.

Of Note: The core holding of Song Ja Cha balancing test for unreasonable length of seizures clearly favors the defense. is good, but not surprising: the Supreme’s McArthur balancing test clearly favors the defense. See id. at *3. Of greater interest is the Court’s rejection of Herring – Chief Justice Robert's regrettable new rule tolerating “negligent” police conduct that results in Fourth Amendment violations. Id. at *7.

The Ninth explains that Herring “only applies to isolated police negligence,” and here the conduct of the Guam police was “deliberate, culpable, and systematic.” Id. Judge Beezer emphasizes that the case involves a mistake of law, not a mistake of fact: mistakes of law are exactly what suppression is meant to deter. Id. at *7-*8. He also finds that the cops’ reckless conduct precludes application of the Herring rule. Id. at *8. Finally, the Court chides the government on its request for remand to develop facts for the Herring analysis, despite a controlling Ninth Circuit case on the issue: “Herring does not require this Circuit to reanalyze and re-balance each category of cases to which it has applied the exclusionary rule over the past decades.” Id. at *9.

The Herring analysis in Song Ja Cha joins Gonzalez, 578 F.3d 1130 (9th Cir. 2009) in the line of great Ninth Circuit decisions limiting the expansion of the dangerous Herring decision into Fourth Amendment jurisprudence.

How to Use: Song Ja Cha reminds us of a great rule for “seizure delay” cases – it isn’t relevant “whether the evidence is the ‘product’ or ‘fruit’ of the unconstitutional delay.” Id. at *6. For example, in this case the Court agrees with the government that the evidence suppressed isn’t fruit of the poisonous tree, because the evidence seized wasn’t the “fruit” of the unlawful seizure. Id. at *5. The defense still wins, though, because “Although not excludable as fruit of the poisonous tree, the evidence must be suppressed as a direct result of the constitutional violation.” Id. at *6. Not the most intuitive of distinctions. Here’s the gist: for suppression, it doesn’t matter that the government didn’t gain any advantage from the unconstitutionally-delayed seizure. If there is a unconstitutional seizure due to delay, the defense gets to skip the poisonous tree analysis and go straight to suppression. Id. at *5.

For Further Reading: When Herring came out, one commentator described it as “one of the most important rulings in that field in the last quarter century.” See Scotusblog article here. That could be right – Herring is a developing into a hot fight in the Ninth. The government has filed a p.f.r. in the Gonzalez case mentioned above, and the Court has asked (unfortunately) asked for responsive briefing.

Image of the Blueback Herring from http://pond.dnr.cornell.edu/nyfish/clupeidae/blueback.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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