US v. Manon

Filing 920100623

Opinion

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var WPFootnote1 = ' The government responded to this motion, as it had to the\
prior one, by arguing that it was untimely under Fed. R. Crim. P.\
33(b)(2). The district court agreed that the motion appeared to be\
too late, but nonetheless chose to deny it on the merits. The\
parties have not argued about timeliness on appeal, and we\
therefore do not consider that issue.\
'

var WPFootnote2 = ' Manon argues for the first time on appeal that Garrity\
should have called an expert to testify about eyewitness\
identifications, including cross-racial issues. That belated claim\
is waived, and we do not consider it. United States v. Carl, 593\
F.3d 115, 124 (1st Cir. 2010). Manon did raise his ethnic\
background in the December 2007 document specifying the grounds for\
his motion to vacate his convictions, however, complaining that\
Garrity "presented no special voir dire regarding Mr. Manon\'s\
ethnic background and/or the jurors\' attitudes toward Hispanics." \
Wiberg also questioned Garrity on that topic at the evidentiary\
hearing. Garrity explained that, based on his successful\
experience with other Hispanic clients charged with drug offenses,\
he did not consider Manon\'s ethnicity relevant. Manon does not\
discuss voir dire on appeal.\
'

var WPFootnote3 = ' One exception is the question whether a presumed prejudice\
standard applies in the circumstances of this case. See infra\
Section B. That mixed question is subject to de novo review. \
United States v. Theodore, 468 F.3d 52, 56 (1st Cir. 2006)\
'

var WPFootnote4 = ' Under Federal Rule of Criminal Procedure 35(b)(1), a court\
may reduce a defendant\'s sentence if the government files a motion\
within one year after sentencing stating that the defendant had\
"provided substantial assistance in investigating or prosecuting\
another person." \
'

var WPFootnote5 = ' The motion states, in part:\
\
              Mr. Manon insists that he expected that his counsel would\
call witnesses at trial, but that Mr. Garrity failed to\
do so, without his informed consent or permission. Mr.\
Manon further submits that those witnesses, including,\
but not limited to the individuals identified on the\
witness list submitted by his trial counsel (namely,\
Alicia Lopez and Tito Geraldy-Santiago), could have and\
would have provided exculpatory testimony on his behalf.\
'

var WPFootnote6 = ' Wiberg stated at the evidentiary hearing that the pleadings\
referred to López, rather than Martinez, because López was the\
listed witness who was available at the trial for testimony. As\
noted above, however, Manon testified that Martinez also was\
present at the second day of trial.\
              Manon did mention Martinez in a handwritten letter to the\
district court filed on December 19, 2006. In the letter, he\
complained that "I don\'t know what is happening in this case" and\
asked that Garrity be replaced with Wiberg, explaining "I don\'t\
like that man at all what he is doing in this case." The reference\
to Martinez did not relate to the trial, however, but was contained\
in his account of an incident in which he claimed the police\
stopped and searched her car for drugs when she was driving with\
her son\'s girlfriend.\
'

var WPFootnote7 = ' Garrity testified that, initially, Manon admitted selling\
the drugs but "couldn\'t understand that being a conduit could make\
him as culpable as someone who owned the drugs." Over time, he\
challenged the drug amounts, telling Garrity that he knew they were\
less than the government reported because he was involved in the\
dealing. Later, he told Garrity that he had not sold drugs and, in\
fact, had directed his son (presumably referring to Geraldy) to\
send the agent away when he came by their home looking to buy some.\
'

var WPFootnote8 = ' The district court had little regard for the truthfulness of\
Manon\'s testimony at the evidentiary hearing, stating that it had\
"no doubt that he provided . . . knowingly false statements about\
the material matters that he testified about."\
'

var WPFootnote9 = ' Non-suggestive procedures are meant, inter alia, to\
eliminate the risk that an eyewitness to a crime will describe the\
defendant\'s physical appearance or identify the defendant as the\
person who committed the crime based on factors other than the\
witness\'s knowledge – for example, because the witness sees the\
defendant at the defense table. Among other reasons for denying\
Garrity\'s request for a screen, the district court noted that\
Walichiewicz had seen Manon in the cellblock where both of them had\
been held that morning and, as Garrity acknowledged, Medina\
apparently had had an extended association with Manon. The court\
in effect concluded that, given the two witnesses\' prior\
familiarity with Manon, his location at the defense table was not\
impermissibly suggestive.\
'

var WPFootnote10 = ' Although Garrity undoubtedly made a tactical misjudgment in\
seeking a non-suggestive identification procedure for Medina and\
Walichiewicz, that request played no role in the case.\
'

var WPFootnote11 = ' McCabe testified that the photos displayed the physical\
characteristics he associated with the person from whom he bought\
the drugs: "[t]he distinct marks running from his nose along his\
cheek line," droopy earlobes and brown eyes. \
'

var WPFootnote12 = ' The letter asked if Medina would be willing to speak with\
Garrity or his investigator and explained that he was making the\
request because he had seen reports "indicat[ing] that you may have\
been present or have some knowledge of the acts alleged against Mr.\
Manon."\
'

var WPFootnote13 = ' The government did go forward with a Rule 35(b) motion\
recommending a reduced sentence for Medina. See United States v.\
Roa-Medina, No. 08-2490, 2010 WL 2181556, at *1 (1st Cir. June 2,\
2010).\
'

var WPFootnote14 = ' Although Rule 404(b) bars admission of evidence of other\
crimes or acts to prove "the character of a person in order to show\
action in conformity therewith," it allows such evidence to prove,\
inter alia, identity. Fed. R. Evid. 404(b).\
'

var WPFootnote15 = ' Appellant\'s reliance on Crawford v. Washington, 541 U.S. 36\
(2004), in support of his hearsay claim is misplaced. In Crawford,\
the Supreme Court held that the Confrontation Clause bars admission\
of testimonial hearsay in a criminal case unless the declarant is\
unavailable and the defendant had a prior opportunity for cross-examination. United States v. Cruz-Diaz, 550 F.3d 169, 176 (1st\
Cir. 2008). Kish\'s statement is plainly not testimonial. See,\
e.g., United States v. Earle, 488 F.3d 537, 543 (1st Cir. 2007)\
(describing categories of testimonial statements); United States v.\
Malpica-García, 489 F.3d 393, 397 (1st Cir. 2007) (same). The\
Crawford argument is similarly inapplicable to the admission of\
Medina\'s letter, even were it to be considered testimonial. See,\
e.g., United States v. Cabrera-Rivera, 583 F.3d 26, 33 (1st Cir.\
2009) (stating that testimonial out-of-court statements may be\
admitted where the declarant testifies at trial). \
'

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