Said Farzad v. Snohomish County Superior Ct. ( 2019 )

FILED
NOT FOR PUBLICATION
MAY 03 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAID FARZAD, No. 18-35465
Petitioner-Appellee, D.C. No. 2:17-cv-01805-MJP
v.
MEMORANDUM*
SNOHOMISH COUNTY SUPERIOR
COURT; MARK ROE, Snohomish
County Prosecuting Attorney,
Respondents-Appellants.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted April 12, 2019
Seattle, Washington
Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.
The State of Washington, as the real party in interest, appeals the district
court’s grant of Said Farzad’s habeas petition under 28 U.S.C. § 2241. The district
court determined that the State had violated Farzad’s double jeopardy rights by
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
recharging him with Felony Telephone Harassment on retrial. We have
jurisdiction under 28 U.S.C. § 2253(a) and we affirm. We review de novo a
district court’s decision granting a petition for a writ of habeas corpus filed
pursuant to § 2241. Wilson v. Belleque, 554 F.3d 816, 828 (9th Cir. 2009).
Because the parties are familiar with the facts, we do not recite them here.
The double jeopardy clause bars retrial on a greater charge “after an acquittal
[that is] implied by a conviction on a lesser included offense when the jury was
given a full opportunity to return a verdict on the greater charge.” Price v.
Georgia, 398 U.S. 323, 329 (1970). In Brazzel v. Washington, 491 F.3d 976 (9th
Cir. 2007), we applied this rule to Washington’s “cannot agree” instruction. We
held that absent other evidence of “irreconcilable disagreement,” the jury’s
conviction on a lesser offense without writing “not guilty” on the greater offense is
treated as an implied acquittal, rather than a hung jury. Id. at 982, 984. Although
Brazzel reviewed a petition brought under 28 U.S.C. § 2254, its holding was not
dependent on AEDPA’s standard of review. See id. at 981.
As in Brazzel, the jury here was given a “cannot agree” instruction. It then
convicted on the lesser misdemeanor charge without indicating a ruling on the
greater charge. The jury deliberated for one day and made no comments on the
felony charge—its only signal of deadlock was the failure to write “not guilty” on
2
Verdict Form A. In Brazzel, we squarely determined that this alone failed to show
“irreconcilable disagreement” such that there is “manifest necessity permitting a
retrial.” Id. at 982, 985. We reach the same result here on de novo review.
To the extent the implied acquiescence doctrine is relevant to this analysis,
Farzad did not acquiesce in a retrial on the greater offense of Felony Telephone
Harassment. A defense attorney is under no obligation to request polling of the
jury or to accept a trial judge’s invitation to do so. The State was free to request
polling as to Count I in an attempt to show deadlock and the “manifest necessity”
of a mistrial, but it declined to do so. Absent a showing of “irreconcilable
disagreement,” the jury’s silence was an implied acquittal and the double jeopardy
bar applies. See id. at 982.
AFFIRMED.1
1
We DENY the State’s motion (Dkt 38) to vacate the district court’s order
and to remand with instruction to dismiss the case based on the fugitive
disentitlement doctrine. The fugitive disentitlement doctrine is “wholly irrelevant”
where, as here, “the defendant has had his conviction nullified and the government
seeks review.” United States v. Sharpe, 470 U.S. 675, 681 n.2 (1985).
3