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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| PUBLISHABLE OPINIONS 1.COPYRIGHTS: Milne v. Stephen Slesinger, Inc., 04-57189 (9th Cir. Dec. 8, 2005). This copyright action arose from a termination notice sent by appellant Clare Milne to the appellee, seeking to recapture rights to characters created by her grandfather, Alan Alexander Milne, the author of the "Winnie-the-Pooh" children's books. Alan originally granted various rights in those works to the appellee in 1930. In 1983, due to a change in copyright law in 1976, his heirs considered terminating the 1930 grant outright, but instead entered into a new agreement that revoked the original grant and re-issued rights in the works to the appellee. Clare later sought to invalidate the 1983 agreement based on 1998 legislation. But, the 1998 legislation authorized only the termination of copyright agreements executed before 1978. Because the 1983 revocation and re-grant were valid, the USCA affirmed the district court's conclusion that the 1983 agreement was a new contract, effective after January 1, 1978, and that Clare's termination notice was invalid. Wallace, Silverman, and Callahan (author), Circuit Judges. D. Nimmer of Los Angeles, CA, for the plaintiff-appellant; R. Zissu of New York, NY, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 2) TRADEMARKS: Brother Records, Inc. v. Jardine,
04-55096 (9th Cir. Dec. 19, 2005). Brother Records, Inc. ("BRI") is
a California corporation formed by four of the original members of "The Beach
Boys." Jardine was an original member and he is a director and shareholder
of BRI. In a prior federal lawsuit, BRI successfully sued Jardine for trademark
infringement. While that action was pend-ing, Jardine filed suit against BRI and
its shareholders in California Superior Court, alleging breach of fiduciary duty
and related claims. After the California Court of Appeal held that Jardine's suit
was not barred as res judicata under state law, BRI then filed a motion
in the federal district court for an injunction to prevent Jardine from going
forward with his state action. The district court denied BRI's motion, and BRI
appealed. The USCA affirmed because, in the light of the California Court of Appeals'
ruling that res judicata was not a bar to the state action, the district
court's denial of the injunction was not an abuse of discretion. Canby (author),
Fernandez, and Berzon, Circuit Judges. P. Stillman of Cardiff, CA, for the appellant;
L. Noble of Ventura, CA, for the appellee.(Download
the full text of this decision at www.ce9.uscourts.gov/)
4) BANKRUPTCY: In re Salazar, 04-15180
(9th Cir. Dec. 5, 2005). Salazar, the debtor in a Chapter 13 bankruptcy, appealed
a Bankruptcy Appellate Panel decision affirming the bankruptcy court's ruling
that Flores had a priority claim in bankruptcy. The USCA af-firmed. It noted that
perhaps nobody should be credulous enough to give a contractor or a merchant the
whole payment for goods and services up front, rather than some fraction of the
payment. But people do. The USCA said it could be certain that Congress was con-cerned
about consumers who were induced to make deposits. But did that concern end when
a consumer actually deposits the full payment? The USCA could find no reason to
say it did, and Congress's use of the word "deposit" did not compel
a contrary answer. The USCA thus held that "deposit" as used in 11 USC
Sec. 507(a)(6) may include the advance handing over of full payment for consumer
goods or services, and that it did include Flores' payment to Salazar. R. Beezer,
Kozinski, and Fernandez (author), Circuit Judges. C. Burke of Las Vegas,
NV, for the appellant; C. Flores of Las Vegas, NV, pro se for the appellees.(Download
the full text of this decision at www.ce9.uscourts.gov/)
6) BANKRUPTCY: In re Miles, 03-55963 (9th Cir. Dec. 12, 2005). The appellants appealed from a decision of the Bankruptcy Appellate Panel affirming the removal and dismissal of their state law causes of action for damages resulting from the filing of involuntary bankruptcy petitions against their relatives. The USCA held that because 11 USC Sec. 303(i) completely preempts state law tort causes of action for damages predicated on the filing of an involuntary bankruptcy petition, the bankruptcy court had "arising under" jurisdiction over the proceedings, and did not err in denying the appellants' motions to remand. Moreover, because the appellants lacked standing to seek damages under Sec. 303(i), the bankruptcy court properly dismissed their complaints. Concurring, Judge Berzon thought there was removal jurisdiction and saw no reason to expand the doctrine of complete preemption. Kleinfeld, Wardlaw (author), and Berzon (concurrence) Circuit Judges. R. Miles for the appellants; N. Sanders of Irvine, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 7) WATER LAW: Brady v. Abbott Laboratories,
04-15257 (9th Cir. Dec. 29, 2005). This diversity action arose under Arizona law
and stemmed from Abbott Laboratories construction of a basement beneath its facility.
The district court awarded judgment for the plain-tiffs for the illegal removal
of groundwater, causing the water table below their adjacent property to become
permanently suppressed and resulting in the destruction of their orchards. Reversing,
the USCA held that Abbott owed the plaintiffs no duty under the common law doctrine
of reasonable use. Concurring, Judge Farris agreed that Bristor v. Cheatham,
255 P.2d 173 (Ariz. 1953), controlled. But, had the USCA not been bound to follow
the Arizona Supreme Court, he would urge that Arizona's reasonable use doctrine
no longer depend solely upon whether the water use benefits the property from
which it is extracted. Accounting for the amount of water used, considering the
utility of competing water uses, and acknowledging the rights of adjacent water
users seems especially important in an arid, rapidly growing state like Arizona.
Farris (concurring), Tashima (author), and Callahan, Circuit Judges.
J. Lemaster of Phoenix, AZ, for the defendant; B. Keogh of Phoenix, AZ, for the
plaintiffs.(Download
the full text of this decision at www.ce9.uscourts.gov/)
9) ENVIRONMENTAL LAW: USA v. Asarco Inc., 04-35052 (9th Cir. Dec. 5, 2005). In 1994, the U.S. and the State of Idaho ("plaintiffs") entered into a consent decree with various mining company, including Hecla and Asarco ("defendants"), requiring the latter to perform certain cleanup actions in exchange for specific liability releases in the contaminated Bunker Hill Superfund Site, a 21 square mile area surrounded by the Coeur d'Alene River Basin. In 2001, the district court modified the consent decree for the site upon finding that the defendants faced unanticipated liability outside the site that made compliance with the decree substantially more onerous. In 1996, the U.S. filed a CERCLA action to recover from the defendants costs incurred in cleaning up contamination in the heavily mined 1500 squire mile Basin. In 2003, after the EPA had completed a remedial investigation and feasibility study and a record of decision ("ROD") for the Basin, the district court reduced the defendants' clean up obligation under the decree by $7 million. The plaintiffs maintained that that the district court abused its discretion when it relied upon extrinsic evidence, rather than the plain terms of the decree, to find that the defendants did not anticipate the EPA's contested action outside the site. Because the decree in fact expressly reserved the United State's authority to take such action, the USCA reversed the district court's modification order. In so doing, it held that in modifying a consent decree under Rule 60(b)(5) of the Federal Rules of Civil Procedure, a court must first interpret the terms and provisions of the decree as it would a contract to determine if the moving party anticipated a significant change in factual conditions, there making modification improper. Ferguson (author), Beezer, and McKeown, Circuit Judges. R. Spritzer of Washington, DC, for the plaintiffs-appellants; DAG C. Fransen of Coeru d'Alene, ID, for the State of Idaho; E. Temkin of Denver, CO, for the defendant-appellee Hecla Mining Company. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) ENVIRONMENTAL LAW: USA v. W.R. Grace & Co., 03-35924 (9th Cir. Dec. 1, 2005). Libby, Montana has been plagued with asbestos-related contamination. In 1999, the EPA was called in to address disturbing health reports regarding asbestos-related contamination. At issue on this appeal was whether, in responding to this threat, the EPA exceeded the bounds of its authority to conduct cleanup activities under CERCLA. The USCA held that it did not. Judge Bea concurred in the result reached by the majority, but wrote separately to emphasize that the USCA should stand ready to review separately the EPA's actions at different locations as a removal site under the "arbitrary and capricious" standard stated in 42 USC Sec. 9613(j)(2). B. Fletcher, McKeown (author), and Bea (concurring), Circuit Judges. C. Landau of Washington, DC, for the defendants-appellants; J. Stahr of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) ENVIRONMENTAL LAW: Ecology Center, Inc. v. Austin, 03-35995 (9th Cir. Dec. 8, 2005). The Ecology Center challenged the U.S. Forest Service's Lolo National Forest Post Burn Project, which was designed in the aftermath of the 2000 wildfires on the Lolo National Forest. It raised a number of procedural and substantive claims under the National Environmental Policy Act and the National Forest Management Act. Finding that the Service's decision to permit logging in critical old-growth forest and post-fire habitats was arbitrary and capricious, the USCA reversed the grant of summary judgment to the Service and remanded. Dissenting, Judge McKeown thought the majority had, in effect, displaced "arbitrary and capricious" review for a more demanding standard. B. Fletcher (author), McKeown (dissenting), and Gould, Circuit Judges. T. Woodbury of Missoula, MT, for the plaintiff-appellant; A. Avila of Washington, DC, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 12) CONSTITUTIONAL LAW / DUE PROCESS: Lee v. Walters, 03-35102 (9th Cir. Dec. 29, 2005). After a series of disputes involving the licensing and financing of New Portland Meadows, a horse racing operation partially owned by Vicki and Darrell Lee, the Lees filed an action in the district court against various members of the Oregon Racing Commission ("ORC"). Their complaint alleged, inter alia, that a provision in the Oregon statute pursuant to which they had been ordered excluded from the track by the ORC violated due process because it was unconstitutionally vague. On summary judgment, the magistrate agreed that the provision was invalid and, on that basis, ruled that the entire stature, Oregon Revised Statutes Sec. 462.080(1), was void for vagueness. Since at trial the Lees did not prevail on any of their damage claims, they appealed the judgment. To resolve some of the claims, the USCA had to determine the va-lidity of the exclusion orders. It vacated the district court's ruling that Sec. 462.080(1) is unconstitutionally vague because, after holding one of its provisions unconstitutional, the court failed to sever that provision as required by Oregon law. On appeal, it was not necessary to decide any constitutional question. The exclusion orders were based upon two separate grounds, one of which was a violation of another provision of the stature-a provision that had not been challenged. The USCA upheld the exclusion orders on the basis of the unchallenged provision and thus did not reach the issue of the constitutionality of the challenged provision. Judge Bybee joined the majority's ruling that the Lees' as-applied challenge failed because the ORC offered alternative grounds for its decision and the constitutionality of at least one of those was not challenged. However, the majority also declined to decide the merits of Lees' facial challenge because it found that the magistrate, having concluded that the "detrimental to the best interest of racing" provision was facially void for vagueness, should have severed the unconstitutional provision to preserve the statute's constitutionality. Judge Bybee thought there was no need to determine whether the magistrate failed to sever: Once the majority concluded that Sec. 462.080(1) was constitutionally applied, it necessarily answered whether the stature is unconstitutional on its face. It is not. Judge Bybee dissented as he thought Circuit jurisprudence required that that the USCA reverse, and not merely vacate, the magistrate's holding that Sec. 462.080(1) is unconstitutional on its face. Hug, Reinhardt (author), and Bybee (dissenting in part), Circuit Judges. K. Clarke of Portland, OR, for the plaintiffs-appellants; H. Myers of Salem, OR, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 13) INSURANCE: Hayward v. Centennial Insurance Co., 03-17378 (9th Cir. Dec. 5, 2005). At issue here was the duty of an insurer to defend the insured against claims under a policy covering advertising injury. While this case was pending before the district court, the California Supreme Court decided Hameid v. National Fire Insurance of Hartford, 71 P.3d 761 (Cal. 2003), which defined the term "advertising injury" to be widespread promotion to the public at large. As a result, the district court granted summary judgment in favor of the insurer because the complaint, which alleged only solicitation, did not trigger a duty to defend. The USCA affirmed on the basis of California law. Beezer (author) and Kozinski, Circuit Judges, and Carney, District Judge. J. Dawson of San Jose, CA, for the plaintiff-appellant; G. Selvin of Oakland, CA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 14) PRODUCTS LIABILITY: Living Designs, Inc.
v. E.I. DuPont de Nemours and Co., 02-16947 (9th Cir. Dec. 5, 2005). In
these consolidated cases, the plaintiffs alleged that DuPont fraudulently induced
the settlement of their prior products liability litigation. The USCA reversed
the district court's grant of judgment on the pleadings in favor of DuPont on
the plaintiffs' RICO claims, and also the district court's grant of summary judgment
in favor of DuPont on the plaintiffs' state tort claims. Considering these cases
in the aggregate, the USCA held that the appearance of justice requires reassignment
to a different judge on remand. Thomas (author), Silverman, and Clifton,
Circuit Judges. S. Cox of San Francisco, CA, for the plaintiffs; C. Clay of Atlanta,
GA, for the defendant. (Download
the full text of this decision at www.ce9.uscourts.gov/)
16) TAXATION: Rivera v. Baker West, Inc., 03-17261 (9th Cir. Dec. 13, 2005). Rivera appealed the district court's order dismissing his suit against Baker Concrete Construction, Inc. He maintained that Baker improperly withheld some $15,000 in state and federal employment taxes from a check paid to settle his claim for unlawful workplace discrimination and wrongful termination and thus that the district court erred in dismissing his suit on the basis of the settlement. Rivera's argument was two-fold: First he argued that the set-tlement proceeds paid by Baker were intended to reimburse Rivera for personal physical injuries and therefore should be excluded from his gross income under 26 USC Sec. 104(a)(2). Second, he argued that, even assuming the settlement proceeds represent lost wages, an award of back pay under Title VII is not subject to income tax withholding. The USCA concluded that the district court did not clearly err in finding that the settlement proceeds were not intended to compensate for personal physical injuries, but instead represented lost wages. Because the district court reasonably classified the settlement proceeds as back pay, the district court properly held that Rivera's settlement proceeds were subject to withholding. The USCA thus affirmed the district court's decision granting Baker's motion to dismiss. Tallman, Bybee (author), and Bea, Circuit Judges. W. Howell of Phoenix, AZ, for the plaintiff-appellant; R. Winterscheidt of Phoenix, AZ, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) LABOR LAW: Mpoyo v. Litton Electro-Optical
Systems., 04-15047 (9th Cir. Dec. 5, 2005). Mpoyo appealed the
district court's dismissal on res judicata ground of his Fair Labor Standards
Act and Family and Medical Leave Act claims against his former em-ployer, Litton
Electro-Optical Systems. The USCA affirmed. The instant and prior suits involved
the same claims or causes of action (with the common nucleus of operative facts
determinative), the earlier suit reached a judgment on the merits, and the two
suits involved identical parties or privies. Beezer (author) and Kozinski,
Circuit Judges, and Carney, District Judge. K. Mpoyo pro se; J. Doran of
Phoenix, AZ, for the defendant-appellee.(Download
the full text of this decision at www.ce9.uscourts.gov/)
19) LABOR LAW / ATTORNEYS' FEES: Christensen v. Stevedoring Services of America, 04-35409 (9th Cir. Dec. 7, 2005). Christensen appealed the district court's order dismissing his action against Stevedoring Services of America and Homeport Insurance Company to enforce an award of attorneys' fees and costs pursuant to the Longshore and Harbor Workers' Compensation Act. Because Christensen's appeal of his underlying compensation award was still pending, the district court dismissed Christensen's claim for lack of subject matter jurisdiction. The USCA affirmed. Because Christensen's compensation award was not final, the district court lacked subject matter jurisdiction to entertain his attorney's fees enforcement action. Fisher (author), Gould, and Bea, Circuit Judges. C. Robinowitz of Portland, OR, for the plaintiff-appellant; J. Dudrey of Portland, OR, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 20) AMERICANS WITH DISABILITIES ACT / EMPLOYMENT DISCRIMINATION: Josephs v. Pacific Bell, 03-56412 (9th Cir. Dec. 27, 2005). This appeal concerned issues arising from an employment discrimination action brought against Pacific Bell Telephone Company by a former service technician, Josephs. In 1982, Josephs was arrested and convicted for misdemeanor battery on a peace officer. He was also arrested for attempting to murder a high school friend who was a quadriplegic. He was found not guilty by reason of insanity, spent two and one-half years in a state mental hospital, and was released in 1985. In 1997, he applied for a job with PacBell as a service technician. A service technician performs unsupervised, in-home telephone installations and repairs. Josephs failed to disclose his prior conviction or his stay in the state mental hospital on his application. In April 1998, when PacBell discovered Josephs' deception, it terminated his employment. Josephs sued. After the jury rendered a verdict for Josephs on his claim alleging that PacBell's decision to deny him reinstatement violated the Americans with Disabilities Act of 1990, and the California Fair Employment and Housing Act, the district court entered judgment against PacBell. PacBell appealed on grounds that the district court erred in failing to grant it judgment as a matter of law or a new trial. It also maintained that the district court made two erroneous evidentiary rulings and two errors in jury instructions. The USCA affirmed. Dissenting, Judge Callahan noted that this case requires that PacBell reinstate as a service technician a person it believes may pose a danger to its customers. He dissented because unless it is determined that PacBell's concern that Josephs is dangerous is unreasonable, PacBell should not be required to send him into its customers' homes. Judge Callahan's review of the record revealed to him that as a result of the prejudicial admission of irrelevant evidence and the improper truncation of the jury instructions on mixed motives, the jury did not, and was not asked to, determine whether PacBell's concerns regarding Josephs were reasonable. Judge Callahan thus would vacate the judgment entered on the jury verdict and remand for a new trial. Leavy (author), Graber, and Callahan (dissenting), Circuit Judges. R. Paul of San Diego, CA, for the defendant-appellant; R. Keramati of San Diego, CA for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 21) EMPLOYMENT DISCRIMINATION: Kroske v. US Bank Corp., 04-35187 (9th Cir. Dec. 23, 2005). Kroske appealed the district court's order granting defendant US Bank Corporation's motion for summary judgment and dismissing Kroske's age discrimination claim under the Washington Law Against Discrimination ("WLAD"). Kroske maintained that the district court erroneously concluded that the amount in controversy exceeded $75,000 and thus improperly determined that it had diversity jurisdiction pursuant to 28 USC Sec. 1332(a)(1). Kroske further maintained that the district court erroneously concluded that that the National Bank Act, 12 USC Secs. 21-216d, preempted her age discrimination claims under WLAD. The USCA concluded that diversity jurisdiction was proper and that Kroske's age discrimination claim under WLAD was not preempted. It thus reversed and remanded for further proceedings. Tashima, Paez (author), and Callahan, Circuit Judges. C. Weaver of Spokane, WA, for the plaintiff-appellant; T. Bassett of Spokane, WA, for the defendant-appellant.(Download the full text of this decision at www.ce9.uscourts.gov/) 22) EMPLOYMENT & ADMINISTRATIVE LAW: Carpenter v. Mineta, 04-71221 (9th Cir. Dec. 29, 2005). The petitioner challenged the Federal Railroad Administration's decision that he was properly denied certification as a locomotive engineer by his railroad employer. The FRA Administrator upheld a prior administrative ruling that held there was no authority under the administrative dispute resolution regulations to order the petitioner retrained and retested or certified as an engineer. The petitioner disagreed and claimed that the FRA erred by failing to reach several of his allegations. Finally, he asserted due process violations resulting from the denial of certification and the length of the administrative review. The USCA denied the petition for review. The petitioner had had the benefit of three levels of administrative review in which he had conducted discovery and presented his claims on the merits but was found to have been correctly denied locomotive engineer certifications. The agency reached a final decision. There was no further relief available. Farris (author), Tashima, and Callahan, Circuit Judges. L. Mann of Bethesda, Maryland, for the petitioner; C. Brennan of Washington, DC, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/) 23) RACE DISCRIMINATION: Lindsey v. SLT Los Angeles, LLC, 03-55824 (9th Cir. Dec. 20, 2005). The plaintiff appealed the district court grant of summary judgment for SLT Los Angeles, et al. The district court concluded that appellant Panache failed to prove that the appellees' actions, which had prevented Panache from hosting its annual Mother's Day Fashion Show in the Grand Ballroom of the Westin Hotel, presented a prima facie case of race discrimination under 42 USC Sec. 1981. The USCA reversed and remanded for trial. Intentional discrimination cases such as this one present precisely the kinds of complex factual questions best addressed by juries. Af-ter examining all of the evidence in the light most favorable to the non-moving party, the USCA determined that the appellant had pre-sented evidence creating genuine issues of fact for each material inquiry in the burden-shifting analysis. The USCA thus reversed the district court's grant of summary judgment and remanded for trial. Pregerson and Canby, Circuit Judges, and Reed (author), District Judge. F. Richland of Beverly Hill, CA, for the plaintiff-appellant; R. Hendricks of Los Angeles, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 24) MEDICAL NEGLIGENCE: Jerden v. Amstutz, 04-35889 (9th Cir. Dec. 9, 2005). In this diversity case, Jerden brought a medical negligence claim against Amstutz, a neurosurgeon who mistakenly diagnosed Jerden as having a brain tumor based partly on Jerden interpretation of magnetic resonance imaging reports. Amstutz conducted invasive and unwarranted brain surgery on Jerden before the correct diagnosis of multiple sclerosis was made. Jerden subsequently appealed from the judgment entered against him after a jury trial resulted in a verdict for Amstutz. He maintained that the district court committed reversible error warranting a new trial. The USCA re-versed and remanded. The case involved multiple medical experts on both sides testifying as to the proper interpretation of the MRI and MRA reports and whether Amstutz's mistaken interpretation of the reports as showing a tumor, rather than demyelination, was a breach of his standard of care. The jury was required to decide which side to believe, assessing credibility of witnesses and determining how much weight to give the view of each. The USCA could not say that it is more probable than not that the jury would have reached the same verdict if Dr. Gross's testimony had not been limited and if Mr. Bowser's testimony had been. The USCA concluded that the errors affected a substantial right of the parties and constituted reversible error warranting a new trial. It thus reversed the district court judgment and remanded for further proceedings consistent with this opinion. Fisher, Gould (author), and Bea, Circuit Judges. M. Annand of Medford, OR, for the plaintiffs-appellants; R. Cowling of Medford, OR, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 25) DISABILITY BENEFITS: Webb v. Barnhart, 04-35445 (9th Cir. Dec. 29, 2005). Webb appealed the district court summary judgment affirmance of the Commissioner of Social Security's final decision denying him disability insurance benefits under Title II of the Social Security Act. On appeal, Webb maintained that the Administrative Law Judge improperly found him to be not disabled at the second step of the five-step evaluative process, and that substantial evidence did not support the ALJ's finding that his impairments were not medically severe. The USCA agreed and reversed. The ALJ found that Webb lacked a medically severe impairment or combination of impairments despite objective medical evidence demonstrating back pain, hypertension, knee pain, hip pain, visual disturbances, memory loss, diverticulitis, lack of sleep, difficulty performing physical tasks and lack of employment from 1991 through 1997. Although the medical record painted an incomplete picture of Webb's overall health during the relevant period, it included evidence of problems suf-ficient to pass the de minimis threshold of step two. In addition, although Webb ultimately carried the burden of establishing his disability, the ALJ had an affirmative duty to supplement Webb's medical record, to the extent is was incomplete, before rejecting Webb's petition at so early a stage in the analysis. Dissenting, Judge Bea thought that a thorough review of Webb's medical records showed substantial evidence to support the ALJ's determination that Webb did not suffer from a severe impairment during the relevant period. Fisher (author), Gould, and Bea (dissenting), Circuit Judges. L. Ziskin of Lake Oswego, OR, for the plaintiff-appellant; D Blume of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Tijani v. Willis, 04-55285 (9th Cir. Dec. 13, 2005). Tijani had been deprived of his liberty by the government for over two years and four months. This deprivation had been inflicted not as the result of any adjudication of crime but as a bureaucratic application of the authority conferred on the Attorney General by 8 USC Sec. 1226(c). Despite the substantial powers that Congress may exercise in regard to aliens, it is constitutionally doubtful that it may authorize imprisonment of this duration for lawfully admitted resident aliens who are subject to removal. The USCA thus remanded to the district court with directions to grant Tijani habeas writ unless the government within 60 days of the USCA's order provides a hearing to Tijani before an Immigration Judge with the power to grant him bail unless the government establishes that he is a flight risk or will be a danger to the community. Judge Tashima concurred in the majority's opinion reversing the denial of habeas relief and requiring the Immigration Court to grant Tijani a bail hearing. However, he noted that the majority's opinion barely alluded to the standards that should govern the conduct of such a hearing, or what facts must be established in order to warrant the grant or denial of release, or who has the burden of proving those facts, and by what standard of proof. Judge Toshima thought the USCA had a duty to give more guidance to the agency and to the court below so that they can carry out their respective mandates. Dissenting, Judge Callahan agreed with the district court's denial of Tijani's habeas petition and, thus, would not remand the case to the district court. But, because the majority had remanded the matter, Judge Callahan explained that it not clear 1) that the detention of an alien pending removal proceedings is necessarily unconstitutional regardless of how long those proceedings take, and 2) that a new hearing pursuant to the panel's decision must result in Tijani's release pending the completion of his removal proceedings. Noonan (author), Tashima (concurring), and Callahan (dissenting), Circuit Judges. S. Hirsch of San Francisco, CA, for the petitioner; AUSA T. Stahl of San Diego, CA, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/) 27) IMMIGRATION: USA v. Leal-Cruz, 04-50519 (9th Cir. Dec. 9, 2005). Leal-Cruz appealed his conviction for attempted illegal reentry into the U.S. after deportation, under 8 USC Sec. 1326. He maintained that the district court erred by instructing the jury that he had the burden of proving his duress defense. The USCA affirmed. It concluded that Leal-Cruz's reason for jumping the international boundary fence did not negate the specific intent element of attempted illegal reentry but rather could only be offered as a legal excuse for committing the offense. The district court thus properly instructed the jury. Wallace, Silverman, and Callahan (author), Circuit Judges. R. Feral of San Diego, CA, for the defendant-appellant; AUSA D. Curnow of San Diego, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 28) IMMIGRATION: Tapia v. Gonzales, 03-74615 (9th Cir. Dec. 6, 2005). Tapia petitioned for review of a decision by the Board of Immigration Appeals affirming without opinion the decision by the immigration judge denying his petition for cancellation of removal. To be eligible for cancellation of removal, a form of relief which permits an alien otherwise subject to being expelled from the U.S. to remain in this country, the alien must prove, among other things, that he has been physically present in the U.S. for a continuous period of the least ten years. A short departure from the U.S., such as a brief return to the alien's native country for family reasons, does not necessarily interrupt the accrual of an alien's period of physical presence in the U.S., pursuant to an exception for brief absences provided in 8 USC Sec. 1229b(d)(2). An alien who has briefly departed the U.S. for such a reason can still satisfy the ten-year presence prerequisite to qualify for cancellation of removal by including the time spent here before the brief absence. Because Tapia was turned around at the border without entering into a formal agreement with the government whereby the terms and conditions of his departure were clearly specified, and because he was not statutorily barred from immediately reapplying for admission to the U.S., the USCA granted his petition. It did not hold that Tapia had satisfied the requirement of being continuously present in the U.S., but only that the fact that he was turned around at the border when he initially attempted to reenter did not interrupt the continuity of his presence. The USCA thus remanded the matter to the BIA for further proceedings. To be statutorily eligible for cancellation of removal, Tapia must establish the he meets the ten-year physical presence requirement, as well as the other requirements set out in the statute. Goodwin and Clifton (author), Circuit Judges, and Rhoades, District Judge. P. Smith of Eugene, OR, for the petitioner; W. Erb of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 29) IMMIGRATION: Gomes v. Gonzales, 03-73683 (9th Cir. Dec. 6, 2005). The petitioners, natives and citizens of Bangladesh and members of the Catholic faith, sought asylum or withholding of deportation based on their fear of persecution should they be returned to Bangladesh. The Board of Immigration Appeals denied relief and the USCA denied the petition for review. On the record, the petitioners failed to demonstrate that the BIA abused its discretion or otherwise erred in not reconsidering its prior determination that the petitioners failed to establish past persecution. Wallace, Silverman, and Callahan (author), Circuit Judges. G. Sarin of Los Angeles, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) IMMIGRATION: Cuevas-Gaspar v. Gonzales, 03-73562 (9th Cir. Dec. 7, 2005). Cuevas-Gaspar, an alien with legal permanent resident status, petitions for review of the BIA's conclusion that Cuevas was removable. Cuevas was convicted for being an accomplice to residential burglary under Washington law. He asserted that the BIA erred in concluding that he was removable because his conviction constituted a crime of moral turpitude. Cuevas also asserted that his presence in the U.S., as an unemancipated minor residing with his lawfully-admitted mother, should count toward the requirement under INA Sec. 240A(a)(2), that he had resided in the U.S. continuously for seven years "after having been admitted in any status." The USCA granted the petition and remanded to the BIA for further proceedings. Dissenting, Judge Fernandez noted that the majority's concern for aliens who have been here for a long time, even residential burglars, led it to find a path that may allow Cuevas an opportunity to stay in the U.S., even though Congress has shown more concern for his victims than for him and has provided that our society need not abide such as he. Judge Fernandez added that "It is not for us to listen to the susurrant promptings of our own convictions rather than the stentorial proclamations of the legislature." Fernandez (dissenting), Tashima (author), and Gould, Circuit Judges. S. Rottman of Granger, WA, for the petitioner; B. Beier of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 31) IMMIGRATION: Yeghiazaryan v. Gonzales, 03-72159 (9th Cir. Dec. 14, 2005). The petitioner challenged the BIA's denial of his motion for reconsideration of the BIA's earlier denial of his motion to reopen. He had sought reopening of BIA's decision dismissing his appeal from the denial by an Immigration Judge of his asylum application and of the withholding of removal. Because the BIA's denial of the motion to reconsider was an abuse of discretion and a violation of due process, the USCA granted the petition for review and remanded for the substantive consideration of his motion to reopen. Kleinfeld and Fisher, Circuit Judges, and Shadur (author), District Judge. A. Hoffman of Los Angeles, CA, for the petitioner-appellant; AAG P. Keisler of Washington, DC, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) IMMIGRATION: Valencia v. Gonzales, 03-72028 (9th Cir. Dec. 12, 2005). Valencia, a native and citizen of Peru, petitioned for review of the BIA's order summarily affirming the Immigration Judge's order of removal. Valencia had been convicted of felony unlawful sexual intercourse with a person under 18, who was more than three years younger than he, in violation of California Penal Code Sec. 261.5(c). The IJ found Valencia removable for having committed an aggravated felony under 8 USC Sec. 1227(a)(2)(A)(iii), holding that the crime constituted a crime of violence under 8 USC Sec. 1101(a)(43)(F), which defines a crime of violence pursuant to 18 USC Sec. 16. The USCA granted the petition for review and held that CPC Sec. 261.5(c) is not a crime of violence under 18 USC Sec. 16. O'Scannlain, Cowen, and Bea (author), Circuit Judges. J. Bennett of El Cerrito, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. The opinion filed on May 12, 2005 has been withdrawn.(Download the full text of this decision at www.ce9.uscourts.gov/) 33) IMMIGRATION: USA v. Gonzales, 03-50414 (9th Cir. Dec. 1, 2005). Gonzales appealed his conviction following a conditional guilty plea to being a deported alien found in the U.S. without permission, in violation of 8 USC Sec. 1326. Gonzales maintained that the district court should have granted his motion to dismiss the indictment because it was based on prior deportations that violated his due process rights. Gonzales argued that the deportations impermissibly applied 8 USC Sec. 1228(b)(5) retroactively, thus depriving him of the ability to seek discretionary relief from deportation under 8 USC Sec. 1182(h). Gonzales further argued that his waiver of judicial re-view was invalid and that he suffered prejudice because he would have asserted plausible grounds for relief from deportation. The USCA affirmed. Because Gonzales validly waived the right to appeal the deportation orders underlying his indictment for violation of Sec. 1326, he cannot collaterally attack the validity of those underlying deportations. Pregerson, Tashima (author), and Paez, Circuit Judges. DFPD F. Dordi of Los Angeles, CA, for the defendant-appellant; AUSA E. Silber of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: USA v. Hernandez-Hernandez,
02-30429 (9th Cir. Dec. 16, 2005). Hernandez appealed his sentence following
a guilty plea conviction for illegal reentry in violation of 8 USC Sec. 1326.
He challenged his 16-level enhancement for reentry after deportation pursuant
to a "crime of violence," contending that 1) the enhancement violates
Apprendi v. New Jersey, 530 US 466 (2000), because the government did not
charge him with being an aggravated felon, and 2) his prior felony convictions
did not qualify as "crimes of violence" under Sentencing Guideline Sec.
2L1.2(b)(1)(a)(ii). He also challenged a one-point criminal history score increase
for a misdemeanor conviction for threats to do harm, contending that this prior
conviction should have been excluded under Guideline Sec. 4A1.2(c)(1). The USCA
earlier affirmed Hernandez's conviction and sentence but the Supreme Court vacated
that judgment and 35) IMMIGRATION: Gu v. Gonzales, 02-74417 (9th Cir. Dec. 1, 2005). Gu, a native and citizen of China, petitioned for review of a BIA decision which affirmed the Immigration Judge's denial of Gu's application for asylum. In view of its highly deferential review of the decision of the BIA, the USCA affirmed. A reasonable factfinder would not be compelled to conclude that Gu either suffered past per-secution or had a well-founded fear of persecution. Dissenting, Judge Pregerson thought that Gu had established past persecution on account of his Christian religious practices and was eligible for asylum under 8 USC Sec. 1101(a)(42)(A). Pregerson (dissenting), Beezer (author), and Tallman, Circuit Judges. J. Porta of Los Angeles, CA, for the petitioner; D. McClain of Washington, DC, for the respon-dent. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) IMMIGRATION: Abebe v. Gonzales, 02-72390 (9th Cir. Dec. 30, 2005). Mengistu and his wife Abebe, natives and citizens of Ethiopia, petitioned for review of a final order of the Board of Immigration Appeals denying their application for asylum and withholding of removal. The BIA adopted the decision of the Immigration Judge, who concluded that the petitioners had not shown a well-founded fear of persecution. The petitioners argued that if their family were returned to Ethiopia, their nine-year-old daughter would be subjected to female genital mutilation ("FGM") and Mengistu would be persecuted because of his political activities. The USCA held that the IJ's determination concerning the petitioners' FGM argument was not supported by substantial evidence. FGM constitutes persecution sufficient to support an asylum claim. The record did not support the conclusion reached by the IJ and adopted by the BIA-namely that the risk that the petitioners' daughter would be subjected to FGM is too small to establish a well-founded fear of persecution. Substantial evidence did support the rejection of the petitioners' political persecution argument, however. Based upon the FGM ground, the USCA granted the petition for review and remanded for further proceedings. Judge Tallman, joined by Kozinski, Rymer, Bybee, and Callahan, dissenting in part. Judge Tallman noted that the petitioners failed to adequately raise the FGM issue in their appeal to the BIA and it remains administratively unexhausted. He would thus dismiss the petition for lack of subject matter jurisdiction. Schroeder, Kozinski, Rymer, Thomas, W. Fletcher, Paez, Berzon, Tallman (dissenting in part), Clifton (author), Bybee, and Callahan, Circuit Judges. P. Hornik of Portland, OR, for the petitioners. AAG P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 37) IMMIGRATION: Masnauskas v. Gonzales, 03-72021 (9th Cir. Dec. 30, 2005). The petitioner, a native and citizen of Lithuania, petitioned for review of a decision of the Board of Immigration Appeals summarily affirming the decision of the Immigration Judge. The IJ denied the petitioner's application for derivative adjustment of status and for suspension of deportation under the Nicaraguan Adjustment and Central American Relief Act ("NACARA"). The petitioner challenged NACARA on equal protection grounds, arguing that she should be eligible for derivative adjustment of status even though she is not a national of Nicaragua or Cuba. The USCA rejected the equal protection challenge and denied the petition for review. The nationality-based classification in NACARA Sec. 202(d) was rationally related to legitimate foreign policy concerns that Congress had when it enacted NACARA. Tashima (author) and Fisher, Circuit Judges, and Shadur, District Judge. M. Hernandez of Los Angeles, CA, for the petitioner; E. Molina of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 38) CIVIL CONTEMPT: In re Grand Jury Investigation, 2003R01576, 05-17136 (9th Cir. Dec. 8, 2005). John Doe appealed the district court's order holding him in civil contempt pursuant to 28 USC Sec. 1826. The USCA reviewed for abuse of discretion and affirmed. It held that Doe was in contempt of court for refusing to comply with the grand jury subpoena dated June 22, 2005. It added that Doe could purge himself of contempt by answering the questions posed to him by the government before the grand jury on September 21, 2005. Goodwin, W. Fletcher, and Fisher, Circuit Judges. Per Curiam. R. Hao of San Francisco, CA, for the appellant; E. Becker of San Francisco, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 39) NATIVE AMERICAN LAW / CRIMINAL JURISDICTION:
Means v. Navajo Nation, 01-17489 (9th Cir. Dec. 13, 2005). This
case concerns whether an Indian tribe can exercise criminal jurisdiction over
a person who is not a member of the tribe, but who is an enrolled member of another
Indian tribe. The USCA concluded that the Navajo Nation is empowered under the
1990 Amendments to the Indian Civil Rights Act to prosecute and punish Indians
for crimes even though they are not members of the tribe. Kleinfeld (author)
and Rawlinson, Circuit Judges, and Quackenbush, District Judge. J. Trebon of Flagstaff,
AZ, for the appellant; D. Brown of Window Rock, AZ, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
41) PAROLE-RELATED SEARCHES: Motley v. Parks, 02-56648 (9th Cir. Dec. 30, 2005). The USCA took this case en banc to clarify issues surrounding parole-related searches. It held that before conducting a warrantless search pursuant to a properly imposed parole condition, law enforcement officers must have probable cause to believe that the parolee resides at the house to be searched. In this case, they did. However, the USCA did not decide whether law enforcement officers also need particularized suspicion of wrong-going before conducting such a search as, while this appeal was pending, the Supreme Court granted certiorari on that issue. The USCA said it was sufficient for it to conclude that, at the time the officers searched parolee Jamerson's home, it was not clearly established that any suspicion of wrong-doing on the parolee's part was needed. Judge Reinhardt disagreed with respect to the majority's holding that probable cause existed for the officers to believe that Jamerson lived in his girlfriend's house. Contrary to the majority, he would hold that the officers did not have probably cause to believe that Jamerson currently resided there and thus would reverse the district court's ruling that the officers were entitled to qualified immunity. Schroeder, B. Fletcher, Pregerson, Reinhardt (dissenting), Kozinski, Kleinfeld, Silverman (author), Graber, McKeown, Paez, and Bybee, Circuit Judges. S. Yagman of Venice Beach, CA, for the plaintiffs-appellants; R. Delgadillo of Los Angeles, CA, for the defendants; AUSA L. Weidman of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) BORDER SEARCHES: USA v. Sahanaja, 04-50504 (9th Cir. Dec. 8, 2005). Sahanaja appealed his conviction for importing gammabutyrolactone ("GBL") in violation of 21 USC Sec. 952(a) and possessing GBL in violation 21 USC Sec. 841(a)(1). The conviction followed a conditional guilty plea pursuant to which Sahanaja reserved his right to appeal the district court's denial of his motion to suppress evidence arising from a warrantless search of a package mailed to his residence from Canada. Sahanaja also appealed his sentence, claiming that the district court erroneously applied the Sentencing Guidelines as mandatory rather than advisory. The USCA affirmed the conviction, concluding that the search of the package was lawful under the extended border search doctrine. However, it vacated the sentence and remanded for a new sentencing hearing under USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). Graber and W. Fletcher, Circuit Judges, and Fogel (author), District Judge. M. Bednarski of Pasadena, CA, for the defendant-appellant; AUSA S. Clymer of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) CRIMINAL PROCEDURE: USA v. Monzon, 03-30497 (9th Cir. Dec. 7, 2005). Monzon appealed his conviction for possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 USC Sec. 924(c). He maintained that the district court accepted his guilty plea in violation of Fed. R. Crim. Proc. 11 and that the error affected his substantial rights. The USCA reversed, finding that the district court's Rule 11 error affected Monzon's substantial rights because there is a reasonable probability that, absent the error, Monzon would not have pleaded guilty to the Sec. 924(c) charge. The USCA thus reversed and remanded for further proceedings the judgment of conviction on Count 21. Moreover, because the sentencing court should "be free to consider any matters relevant to sentenc-ing," the USCA vacated the sentence as to Court 20 and remanded that count for resentencing. Dissenting, Judge Callahan thought that to obtain a reversal of conviction, Monzon had to show a reasonable probability that but for the district court's Rule 11 error, he would not have pled guilty to Count 21. Based on his prior equivocation in accepting the plea agreement and the absence of evidence to support the "in furtherance" element of Count 21, the majority held that it is reasonably probable that Monzon would have gone to trial on Count 21 and, thus found reversible error. However, Judge Callahan disagreed with the majority's premises and conclusion and would not find reversible error. Moreover, even if there were reversible error, the appropriate remedy would be to place the parties in the same position they were in before entering the original plea agreement. Thus Monzon should have been allowed to withdraw his plea in its entirety and either proceed to trial on all three counts or attempt to negotiate a new plea agreement with the government. The majority's remedy effectively dismantles the plea agreement. Tashima (author), Paez, and Callahan (dissenting), Circuit Judges. C. Floit of Seattle, WA, for the defendant; AUSA D. Whalley of Seattle, WA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/) 44) ARMED CAREER CRIMINAL ACT: USA v. Ladwig, 04-30393 (9th Cir. Dec. 27, 2005). A felony conviction for making a harassing telephone call under Washington state law, RCW Sec. 9.61.230(3)(b) (2002), is a "violent felony" and thus a predicate offense under the Armed Career Criminal Act. Gould (author) and Berzon, Circuit Judges, and Schwarzer, District Judge. C. Hunt of Spokane, WA, for the defendant; AUSA S. Lister of Spokane, WA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/) 45) JURY WAIVERS: USA v. Bailon-Santana, 04-50079 (9th Cir. Dec. 6, 2005). At issue here was whether an attorney's representation that he translated a jury waiver form for his non-English speaking client obviated the need for an in-court waiver colloquy. The USCA reversed and remanded, finding the jury trial waiver unenforceable. Dissenting, Judge Rawlinson said he was not persuaded that USA v. Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997), compelled a finding that the jury trial waiver in the present case is unenforceable. Canby, Kozinski (author), and Rawlinson (dissenting), Circuit Judges. M. Garey of Santa Ana, CA, for the defendant-appellant; AUSA N. Spiegel of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 46) JURY VERDICTS: Ferrizz v. Giurbino, 03-56137 (9th Cir. Dec. 23, 2005). Ferrizz appealed the district court's denial of his habeas petition. He maintained that his state convictions violated due process because the jury's guilty verdicts on two counts-burglary and grand theft of lost property-were factually inconsistent. The USCA held that the California Court of Appeal's decision upholding both verdicts was not contrary to, or an unreasonable application of, clearly established Federal law, as determined by the U.S. Supreme Court. The USCA thus affirmed the district court's judgment. Pregerson, Canby (author), and Beezer, Circuit Judges. K. Stern of Woodland Hills, CA, for the petitioner; DAG T. Weiner of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) IMPARTIAL JURIES: Fields v. Brown, 00-99005 (9th Cir. Dec. 8, 2005). This case returned to the USCA following a remand for an evidentiary hearing to determine whether a juror dishonestly responded to questions on voir dire and was impartial in light of conver-sations that the juror had with his wife during the course of the petitioner's trial. The district court found that the juror did not intentionally mislead the trial court on voir dire, and that the juror had no discussions with his wife during the trial about its subject matter that affected his ability to be fair and impartial. Concluding that these findings were not clearly erroneous and largely controlled the petitioner's claim of ineffective assistance of counsel during the guilt phase as well, the USCA affirmed the denial of the writ as to the conviction. However, the USCA had now to resolve penalty phase issues which it had reserved decision. The district court granted a writ on account of extrinsic material received by the jury, but the USCA concluded that Fields failed to show prejudicial constitutional error in this respect or with regard to his counsel's performance. The USCA thus reversed this part of the judgment. Kozinski, Rymer (author), and Silverman, Circuit Judges. D. Olson of Sherman Oaks, CA, for the petitioner; AAG R. Anderson of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 48) JURY PROCEEDINGS: USA v. -Southwell, 04-30521 (9th Cir. Dec. 30, 2005). At issue here was whether the district court's failure to answer the jury's question during deliberations was an abuse of discretion and, if so, whether the defendant was prejudiced thereby. To answer this question, the USCA had to decide whether a jury must unanimously reject an affirmative defense before it can find a defendant guilty. The necessary, extent and character of additional jury instructions are matters within the sound discretion of the trial court. That discretion is abused, however, when the court fails to answer a jury's question on a matter that is not fairly resolved by the court's instructions. Because it is not always possible, when instructing the jury, to anticipate every question that might arise during deliberations, the court has the responsibility to eliminate confusion when a jury asks for clarification of a particular issue. The district court here failed to do so. However, although the court's instructions were not a model of clarity, they did not misstate the law. Rather, they were unclear as to what the jury should do in the very situation outlined in the jury's questions-if the jurors unanimously concluded that the defendant committed each element of the offense, but did not agree unanimously that the defendant was sane or insane. The error here was particularly serious because it concerned the burden of proof. Southwell had a right under the Constitution to a unanimous jury verdict. The USCA thus reversed the judgment of conviction and remanded for a new trial. Alarcon, Kozinski (author), and Kleinfeld, Circuit Judges. K. Deater of Spokane, WA, for the defendant; AUSA T. Rice of Spokane, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 49) SENTENCING: USA v. Albino, 05-10146 (9th Cir. Dec. 15, 2005). Albino appealed a ten-year sentence imposed by the district court following his guilty plea to growing 2,349 marijuana plants. He maintained that 21 USC Sec. 841(b)(1)(A)(vii), which classifies 1000 or more marijuana plants, regardless of weight, as equal to 1000 or more kilograms of marijuana for purposes of the ten-year mandatory minimum sentence, violates the Fifth and Eighth Amendments. The USCA affirmed. Because Albino received the minimum sentence under the statute, combined with the broad deference afforded Congress to set criminal penalties, Albino's sentence did not violate the Eighth Amendment. Brunetti, Kozinski, and Silverman, Circuit Judges. Per Curiam. AFD P. Byrne of Honolulu, HI, for the appellant; AUSA T. Muehleck of Honolulu, HI, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 50) SENTENCING: USA v. Menyweather, 03-50496 (9th Cir. Dec. 16, 2005). For the third time, the U.S. appealed the sentence imposed upon Menyweather's conviction by guilty plea to one count of mail fraud, in violation of 18 USC Secs. 1341 and 1346. The government objects to the district court's eight-level downward departure for mental and emotional condition, diminished capacity and extraordinary family circumstances, a departure the district court reimposed twice after remands from the USCA. While this third appeal was pending, the Supreme Court decided USA v. Booker, 125 S.Ct. 738 (2005), altering significantly the legal context in which the USCA must decide this appeal. Before Booker, the USCA reviewed de novo whether a departure was proper under the constraints set forth in the Sentencing Guidelines. Now, the USCA reviews the district court's sentence for "reasonableness." Also, whereas the district court was previously required to sentence according to the Guidelines, the Guidelines are now effectively advisory. The district court did not have the benefit of Booker and sentenced the defendant under the assumption that the Guidelines were mandatory. The USCA concluded that the district court did not abuse its discretion by downwardly departing from the Guidelines. Moreover, even if it strayed from the departure authority available under the Guidelines, any error was harmless in view of the sentencing factors listed in 18 USC Sec. 3553(a) (which the district court can now consider under Booker) and in view of the USCA belief that the court would impose the same sentence again, having steadfastly maintained its position in the face of two opportunities to revise its sentence. Finally, the USCA concluded that the resulting sentence was reasonable. The USCA thus affirmed. Kleinfeld (dissenting), Hawkins, and Graber (author), Circuit Judges. N. Marsh of Washington, DC, for the plaintiff-appellant; DFPD E. Newman of Los Angeles, CA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 51) SENTENCING: USA v. Speelman,
04-30067 (9th Cir. Dec. 16, 2005). Speelman appealed the district court's sentencing
decision. He maintained that the district court erred in enhancing his sentence
based on criminal conduct alleging in a charge dismissed pursuant to his plea
bargain. He also maintained that the district curt violated the Double Jeopardy
Clause by applying an upward adjustment based on the age of the victim. The government
argued that the USCA could not consider the merits of Speelman's contentions because
he waived his right to file a direct appeal in his plea agreement. The USCA rejected
the government's contention that Speelman expressly waived his right to file a
direct appeal. It affirmed the district court's sentencing decision, however,
as it concluded that the district court did not err in its interpretation of the
Sentencing Guidelines. It remanded pursuant to USA v. Ameline, 409 F.3d
1023 (9th Cir. 2005) (en banc) because the court imposed its sentence before
the Supreme Court instructed that the Guidelines were not mandatory. Schroeder,
Alarcon (author), and Kleinfeld, Circuit Judges. B. Arndorfer of Billings,
MT, for the defendant; AUSA M. Hurd of Billings, MT, for the plaintiff. (Download
the full text of this decision at www.ce9.uscourts.gov/)
53) SENTENCING: USA v. Pacheco-Navarette, 04-10396 (9th Cir. Dec. 23, 2005). The defendants appealed their convictions and sentences following their guilty pleas to being an alien in possession of a firearn in violation of 18 USC Secs. 922(g)(5) and 924(a)(2). They argued that their appeal waivers were invalid. They knowingly and voluntarily entered guilty pleas pursuant to plea agreements they negotiated to avoid prosecution for more serious offenses. In exchange for the government's forbearance, they agreed to serve the maximum sentence allowed). The USCA thus lacked jurisdiciton to hear their claims. D.W. Nelson (author), Rawlinson, and Bea, Circuit Judges. M. Gordon of Phoenix, AZ, for the defendant; AUSA M. Lee of Phoenix, AZ, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 54) DEATH PENALTY / JURORS: Brown. v. Lambert, 04-35998 (9th Cir. Dec. 8, 2005). Brown confessed to the rape and murder of two women, one in California, the second in Washington. After pleading guilty in California and receiving a sentence of life imprisonment, a jury in Washington convicted him of aggravated first-degree murder and sentenced him to death. After, he exhausted his direct appeals and state habeas proceedings, he filed a habeas petition in federal court, raising a number of constitutional claims regarding his trial and sentencing. The district court denied his petition after an evidentiary hearing, and Brown appeal three issues relating to his death sentence. The USCA reversed in part and remanded. First, it found that Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir. 1987) (the Washington death penalty statute does not fail to adequately guide jury discretion with respect to anything) necessarily precluded Brown's claim. Second, excusing a juror for cause was directly contrary to U.S. Supreme Court precedent, as was the Washington Supreme Court's decision to uphold the juror strike on direct appeal. It was not necessary for Brown to prove that he was prejudiced by the juror's exclusion: Prejudice is presumed. Finally, Brown claimed ineffective assistance during the sentencing phase. The USCA noted that were it not granting habeas relief with respect to Brown's sentence, this claim would merit significant attention. Should the state choose to seek the death penalty again on remand, however, Brown will have a new opportunity to receive effective assistance of counsel. Reinhardt, Kozinski (author), and Berzon, Circuit Judges. S. Elliott of Seattle, WA, for the petitioner; AAG J. Samson of Olympia, WA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 55) HABEAS CORPUS: Edwards v. Lamarque, 04-55752 (9th Cir. Dec. 12, 2005). Edwards was convicted of murder in state court. He filed a federal habeas petition alleging, among other things ineffective assistance of counsel. The district court granted the petition, finding that trial counsel's actions leading to Edwards' waiver of his marital privilege constituted ineffective assistance of counsel and prejudiced Edwards. The USCA affirmed. The attorney's acts were not tactical but simply incompetence; alternatively, if tactical, they were objectively unreasonable; and there is a reasonable probability that but for the attorneys' ineffective assistance, Edwards would have received a different verdict. Dissenting, Judge Rymer said she parted company with the majority because in her view the state courts did not make an unreasonable determination of the facts in light of the record before them when they found that Edwards' attorney at his first trial, made a tactical decision in asking Edwards questions on the stand that waived the marital communications privilege. Judge Rymer also did not think the state courts applied Strickland v. Washington, 466 US 668 (1984), unreasonably in concluding that this was not an unreasonable strategy for the attorney to pursue, given the substantial amount of circumstantial evidence implicating Edwards that had already been presented, an implicit confession by Edwards to the victim's cousin that he was the murderer, Edwards's unexplained flight with his wife two days after the murder, and the attorney's reasonable belief, in light of the state of California law at the time, that he could elicit testimony from Edwards about his conversations with his wife on the night after the murder without opening the door to his wife's version of their conversation on the night of the murder. Judge Rymer thus disagreed with the district court's decision granting Edwards' habeas petition. B. Fletcher, P. Rymer (dissenting), and Fisher (author), Circuit Judges. DAG D. Cook of Los Angeles, CA, for the respondent-appellant; S. Lubliner of Petaluma, CA, for the petitioner-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 56) HABEAS CORPUS: Espinoza-Matthews v. California, 04-56805 (9th Cir. Dec. 28, 2005). Espinoza-Matthews appealed the district court's determination that his petition for a writ of habeas corpus was barred by the one-year statute of limitations set out in 28 USC Sec. 2244(d). He argued that the statute of limitations governing his habeas petition 1) should be equitably tolled because he was de-nied access to his legal materials while housed in Administrative Segregation and because of his mental health problems and 2) should be statutorily tolled because of the deprivation of legal materials. The USCA reversed the district court's determination that the petition was untimely and remanded for further consideration. The USCA held that Espinoza-Matthews was entitled to equitable tolling. Because statutory tolling would necessarily rest on a constitutional ground, one that need not be addressed to arrive at its equitable tolling decision, the USCA refrained from deciding whether the same destination could be reached by the application of statutory tolling principles. Tashima and Fisher, Circuit Judges, and Shadur (author), District Judge. FPD M. Stratton of Los Angeles, CA, for the petitioner; AAG R. Anderson of San Diego, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 57) PRISONER LITIGATION: Panaro v. City of North Las Vegas, 04-15750 (9th Cir. Dec. 20, 2005). At issue here was whether a prisoner may constructively exhaust his administrative remedies under the Prison Litigation Reform Act ("PLRA") by participating in an internal affairs investigation when the prisoners has not taken advantage of an internal grievance procedure. The USCA held that participating in an internal affairs investigation is not sufficient to satisfy the exhaustion requirement of the PLRA. Noonan, Rymer, and Gould (author), Circuit Judges. C. Potter of Las Vegas, NV, for the plaintiff-appellant; T. Bice of Las Vegas, NV, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 58) PAROLE: Burnett v. Lampert,
04-35305 (9th Cir. Dec. 27, 2005). The Oregon Board of Parole and Post-Prison
Supervision twice deferred Burnett's scheduled parole release date. Burnett maintained
that the Board's deferrals were unconstitutional and directly MEMORANDA
2) TAXATION / ANTI-INJUNCTION
ACT Collier v. Pruett, 04-35571 (9th Cir. Dec. 21, 2005)
(unpublished). Goodwin, W. Fletcher, and Fisher, Circuit Judges. 3) BANKRUPTCY: In re Schultz,
04-55346 (9th Cir. Dec. 27, 2005) (unpublished). B. Fletcher, Silverman,
and Paez, Circuit Judges. 4) BANKRUPTCY FRAUD:
USA v. Edwards, 04-30451 (9th Cir. Dec. 20, 2005) (unpublished).
Schroeder, Alarcon, and Kleinfeld (dissenting), Circuit Judges. 5) IMMIGRATION: Welde v. Gonzales,
04-70133 (9th Cir. Dec. 19, 2005) (unpublished). B. Fletcher, Thompson,
and Bea, Circuit Judges. 6)
IMMIGRATION: Abdille v. Gonzales, 03-71871 (9th Cir. Dec. 20, 2005)
(unpublished). Hall, O'Scannlain, and Paez, Circuit Judges.
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