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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) BANKRUPTCY: In re Doser, 03-35411 (9th Cir. June 17, 2005). The USCA held that when enacting 11 USC Sec. 110, Congress acted within its power under Article I, Sec. 8, Clause 4 of the Constitution. It further held that Sec. 110 is not unconstitutionally vague or overbroad and does not violate the First Amendment. Finally, the USCA affirmed the bankruptcy court's finding that appellant Scott violated Sec. 110 by engaging in deceptive or unfair conduct and by charging excessive fees. However, the USCA declined to express an opinion as to whether Scott engaged in the unauthorized practice of law, whether the unauthorized practice of law itself is a violation of Sec. 110, or whether the unauthorized practice of law constitutes fraudulent, deceptive or unfair conduct under Sec. 110. Alarcon, W. Fletcher, and Rawlinson (author), Circuit Judges. C. Vihon of Western Springs, IL, for the respondent; R.C. Green of Washington, DC, for the Trustee.(Download the full text of this decision at www.ce9.uscourts.gov/) 2) BANKRUPTCY: In re Cossu, 04-16699 (9th Cir. June 3, 2005). Cossu appealed the district court's order affirming the bankruptcy court's determination that Jefferson Pilot Securities had a valid bankruptcy claim again Cossu of approximately $1.1 million and that the debt was nondischargeable under 11 USC Sec. 523(a)(2)(A). The USCA affirmed in part, reversed in part and remanded for further pro-ceedings as the bankruptcy court erred in calculating the amount of the indemnity award on the record before it. Lay, B. Fletcher, and Hawkins (author), Circuit Judges. T. Walsh of Fairfield, CA, for the appellant; G. Khachadourian of Sacramento, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 3) BANKRUPTCY / FRAUD: Muegler v. Bening, 03-15259 (9th Cir. June 24, 2005). Muegler was found guilty in federal district court for committing intentional fraud under Missouri law. A jury awarded creditors Bening and Harre compensatory and punitive damages. Muegler sought to discharge his debt to the creditors via bankruptcy proceedings in Arizona. The creditors filed a complaint, arguing that the debt owed them by Muegler was procured by fraud and thus nondischargeable under 11 USC Sec. 523(a)(2)(A). They also argued that because the elements of fraud under Missouri law were identical to the elements of fraud under Sec. 523(a), Muegler was collaterally estopped from relitigating the issue of fraud in bankruptcy court. The bankruptcy court held that the elements of fraud under Missouri law and Sec. 523(a) were identical, and found that Muegler was collaterally estopped from challenging the fraud ruling in bankruptcy court. The bankruptcy court granted the creditors summary judgment, holding that Muegler could not discharge his debt due to fraud. The district court affirmed. The USCA also affirmed, finding Muegler collaterally estopped from relitigating the issue of fraud in bankruptcy court. Lay (author), B. Fletcher, and Hawkins, Circuit Judges. A. Muegler pro se; D. Waltrip of St. Louis, MO, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) ENVIRONMENTAL LAW: Washington Toxics Coalition v.
EPA, 04-35138 (9th Cir. June 29, 2005). This litigation concerns
the EPA's registration of 54 pesticide active ingredients that the plaintiffs,
environmental coalitions, fear may harm endangered or threatened salmon and steelhead
in the waters of the Pacific Northwest. The plaintiffs maintained that the EPA
violated the Endangered Species Act ("ESA") by failing to consult with
the National Marine Fisheries Service before approving the pesticides. The district
court granted the plaintiffs' requests for injunctive relief, after allowing all
parties to introduce evidence on the effects of the use of the challenged pesticides.
Although the complaint originally disputed registration of hundreds of pesticides,
the district court held that the EPA violated the ESA consultation requirement
with respect to only 54 pesticide active ingredients. The district court ordered
the EPA to initiate and complete consultation regarding the effects of those pesticide
registrations on threatened and endangered salmon and steelhead according to a
schedule set out in the opinion. Because it viewed the procedural violation of
the ESA to have been a substantial violation authorizing extraordinary relief,
the district court also enjoined EPA's authorization of any use of the pesticides
within proscribed distances of salmon-supporting waters in California, Oregon,
and Washington, pending the EPA's fulfillment of its consultation obligations.
The USCA affirmed the district court's orders in their entirety. Schroeder (author),
Browning, and Tashima, Circuit Judges. T. Kim of Washington, DC, for the defendants;
P. Goldman of Seattle, WA, for the plaintiffs. (Download
the full text of this decision at www.ce9.uscourts.gov/)
6) ENVIRONMENTAL LAW: Arc Ecology v. EPA, 04-15031 (9th Cir. June 15, 2005). A decade after the U.S. vacated its Clark and Subic bases in the Philippines, the plaintiffs sought to invoke CERCLA procedures to compel the U.S. to perform a preliminary assessment and cleanup of alleged contamination at those bases. As citizens and residents of the Philippines, the plaintiffs argued that CERCLA applies extraterritorially to afford them relief. The district court dismissed the complaint for failure to state a claim. The USCA affirmed, finding that CERCLA did not allow for the extraterritorial application sought by the plaintiffs. Bright, Tashima, and Callahan (author), Circuit Judges. S. Allen of San Francisco, CA, for the plaintiffs; T. Kim of Washington, DC, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) LABOR LAW: Valles v. Ivy Hill Corp., 03-55440 (9th Cir. June 6, 2005). David Valles and John Breslin sued their employer, the Ivy Hill Corporation, for failing to provide them and other unionized employees with adequate meal and rest breaks in violation of California's Labor Code and wage regulations. Ivy Hill removed the action to federal court on the ground that the meal period claims were "completely preempted" by federal labor law. The district court denied the employees' motion to remand to state court and granted summary judgment in favor of Ivy Hill. Valles and Breslin appealed. The USCA reversed. The right to meal periods applies to signatories of collective bargaining agreements and constitutes a nonnegotiable right under California state law. Because the employees based their meal period claim on the protections afforded them by California state law, without any reference to expectations or duties created by their collective bargaining agreement, their claim was not subject to preemption and the USCA lacked jurisdiction over it. Moreover, because Ivy Hill did not claim preemption with regard to rest periods, the USCA lacked jurisdiction over it as well. Any claim of supplemental jurisdiction would fail as well in light of the USCA's principal holding regarding preemption. The USCA re-manded with instructions to remand to state court. Reinhardt (author), Hall, and Wardlaw, Circuit Judges. H. Rosen of Los Angeles, CA, for the appellant; J. Johnson of Santa Monica, CA, appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 8) LABOR LAW / FIRST AMENDMENT: Overstreet v. United Brotherhood of Carpenters, 03-56135 (9th Cir. June 8, 2005). Overstreet, the NLRB's Regional Director, sought to enjoin trade union members from holding aloft large banners announcing a "labor dispute." The banners were located so that they were visible to customers of businesses dealing with contractors who did not have union contracts. While the banners were displayed, union members distribute handbills explaining the dispute. The USCA concluded that the district court correctly declined to issue the injunction. Applying the Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 455 (9th Cir. 1994), "just and proper" test, Overstreet had not established a fair chance of success on the merits. His legal theory was weak, given the stationary, non-interactive and truthful nature of the bannering activity. In light of the First Amendment concerns presented in this case, the USCA concluded that Overstreet did not show a fair chance of proving that bannering involved prohibited "threaten, coerce, or restrain" language. Dissenting, Judge Kleinfeld thought that Overstreet had a sufficient likelihood of prevailing on the "fraudulent speech" claim, under San Antonio Community Hospital v. Southern California District Council of Carpenters, 125 F.3d 1230 (9th Cir. 1997), so that he should have been granted a preliminary injunction based on the ALJ's findings and decision. Kleinfeld (dissenting), Wardlaw, and Berzon (author), Circuit Judges. R. Oddis of Washington, DC, for the petitioner; G. Selvo of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) ERISA / DISABILITY BENEFITS: Boyd v. Bert Bell / Pete Rozelle NFL Players Retirement Plan, 03-56514 (9th Cir. June 13, 2005). Former professional football player Brent Boyd appealed the denial of degenerative disability benefits under the Bert Bell / Pete Rozelle National Football League Player Retirement Plan. That Plan provides retirement, disability, and other benefits to eligible current and former players. The district court granted the Plan's motion for summary judgment, holding that the Plan's Retirement Board did not abuse its discretion in denying Boyd's claim. The USCA affirmed. Concurring, Judge Wardlaw did not agree with the majority's dictum that an ERISA administrator's exercise of discretion to adjudicate claims is not a mere exercise in expert poll-taking. The majority and Judge Wardlaw agreed that a mere tally of experts is insufficient to demonstrate that an ERISA fiduciary has abused its discretion. Beezer (author), Hall, and Wardlaw (concurring), Circuit Judges. L. Rohlfing of Santa Fe Springs, CA, for the plaintiff; J. McAllister of Washington, DC, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) PRODUCTS LIABILITY: Berg v. Norge Corp., 01-35807 (9th Cir. June 24, 2005). This appeal presented the issue of whether an entity is subject to liability under Alaska Statute Sec. 46.03.822(a)(4) for manufacturing or selling a useful product (in this case dry-cleaning equipment) that, when used as designed and installed by the manufacturer, releases hazardous substances. The federal district court dismissed the second amended complaint without citing any decision of the Alaska Supreme Court. The Alaska Supreme Court accepted the USCA's request for certification for its interpretation of state law and, in response, held that a manufacturer of a useful product can be held liable under AS Sec. 46.03.822(a)(4) if the product was intended to direct a hazardous substance into a city sewer system. The USCA thus vacated and remanded that portion of the district court's judgment regarding the defendant's potential liability under AS Sec. 46.03.822(a)(4). B. Fletcher, Alarcon (author), and Graber, Circuit Judges. M. Flanigan of Anchorage, AK for the plaintiffs-appellants; I.F. Hunsaker of Portland, OR, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) WRONGFUL DEATH: Fields v. Legacy Health System, 03-35386 (9th Cir. June 22, 2005). Acting as personal representative of the estate of his late wife, Laura, George Fields brought an action in the district court for Western Washington for wrongful death against Legacy Health System. His complaint alleged that Legacy negligently caused Laura's death by failing to diagnose her cervical cancer from a Pap smear, and sought damages for their minor child. He filed an identical action in the district court for Oregon. The Oregon court applied Oregon's statutes of limitations and repose to dismiss the case with prejudice. It denied him leave to amend, and denied his motion to certify state constitutional questions to the Oregon Supreme Court. The Washington court then dismissed George's Washington action based on Oregon's statutes of limitations and repose, as well as on collateral estoppel grounds. The USCA affirmed the district courts' choice of Oregon law and rejected George's contentions that the USCA could toll Oregon's wrongful death statute of limitations or apply the Uniform Conflict of Laws-Limitations Act's "escape clause" to permit his Washington suit to go forward. The USCA also held that the Oregon statutes of limitations and repose do not violate the U.S. or Oregon constitutions. Judge Gould concurred but wrote separately to express regret that the USCA has no ability in this diversity case, to reexamine controlling Oregon precedent on the state constitutional remedy issue and to allow the decedent's daughter a remedy. Graber, Gould (author and concurring), and Berzon, Circuit Judges. R. Perey of Seattle, WA, for the plaintiff; L. Hughes of Portland, OR, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) DISCOVERY: Barton v. U.S. District Court, 05-71086 (9th Cir. June 9, 2005). The plaintiffs sued SmithKline Beecham, claiming injury from the company's antidepressant medication, Palix. The plaintiffs did not initiate contact with their lawyers by walking into the law office. Instead, the law firm posted a questionnaire on the internet, seeking information about potential class members for a class action the law firm contemplated. The district court ordered the plaintiffs to produce the plaintiffs' answers to the questionnaire. The Plaintiffs sought, and the USCA granted, a writ of mandamus vacating the district court's production order. A layman seeing the law firm's internet material would likely think he was being solicited as a potential client. In all likelihood, a very high proportion of the questionnaire submitters completed the questionnaire with a view to retention of the law firm, and thus submitted them in the course of an attorney-client relationship. Kleinfeld (author), Hawkins, and Graber, Circuit Judges. R. Brava-Partain of Los Angeles, CA, for the petitioners; J. Miller of San Francisco, CA, for the real-party-in-interest. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) DISCOVERY MISCONDUCT: Freeman v. Lasky, Haas & Cohler, 03-56588 (9th Cir. June 14, 2005). Realtor Freeman subscribes to a regional real-estate Multiple Listing Service ("MLS") run by Sandicor, a corporation owned and managed by various local realtors' associations. Charging that Sandicor's MLS subscription fees were fixed at artificially high levels, Freeman sued Sandicor, the realtors' association, and some of their officers and directors under the Sherman Act. After it came to light that the defendants had wrongfully withheld information in discovery, the district court granted new discovery and sanctioned the defendants. It nonetheless granted their motion for summary judgment. The USCA affirmed in part and reversed in part in Freeman v. San Diego Ass'n of Realtors, 322 F.3d 1133 (9th Cir. 2003). Freeman then brought a new antitrust action against some of the executives, lawyers and law firms of the asso-ciations involved in the first litigation, and against the state realtors' association directly, based on the discovery misconduct that, she claims, involved subornation of perjury and intimidation of witnesses. She argued that, by stretching out the litigation, the discovery misconduct extended Sandicor's price fixing. The district court dismissed the complaint with prejudice, as to the attorneys only, for failure to state a claim, based on the Noerr-Pennington doctrine. It dismissed as to other defendants based on other theories. The USCA noted that Noerr-Pennington immunity is not limited to lawyers: The First Amendment petition right belongs to the defendants in the original case, though their employees, law firms and lawyers, as their agents in that litigation, get to benefit as well. Noerr-Pennington immunity is a sufficient ground to dismiss the complaint as to all defendants. The USCA thus affirmed the district court's ruling as to the non-lawyers defendants on this alternative ground. Kozinski (author), Trott, and Clifton, Circuit Judges. D. Barry of San Francisco, CA, for the plaintiffs; J. Shohet of Los Angeles, CA, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/) 14) CARMACK AMENDMENT / ATTORNEYS' FEES: Campbell v.
Allied Van Lines, 04-15969 (9th Cir. June 7, 2005). This appeal
involved awarding attorneys' fees to shippers who successfully sue carriers of
household goods under the Carmack Amendment. The appellants are moving companies.
They maintained there is no statutory basis to support the district court's award
of an attorneys' fee to shippers who bring a court action without first engaging
in available arbitration. The USCA affirmed. Dissenting, Judge O'Scannlain could
not agree with the majority's interpretation of 49 USC Sec. 14708(d); although
the most literal interpretation, it was not the most natural and reasonable. Beezer
(author), O'Scannlain (dissenting), and Kleinfeld, Circuit Judges.
D. Manhart of Phoenix, AZ, for the defendants; G. Good of Tucson, AZ, for the
plaintiff. (Download
the full text of this decision at www.ce9.uscourts.gov/)
16) TRADING WITH IRAN: Bassidji v. Goe, 02-16019 (9th Cir. June 15, 2005). Executive Order 13,059, 62 Fed. Reg. 44,531 (Aug. 21, 1997), prohibits U.S. citizens from investing in and trading with Iran. At issue was whether an American citizen's guarantees of payments that furthered a trade agreement with an Iranian company are covered by the Order and, if so, whether the guarantees are unen-forceable as a result. The USCA held that the guarantees were illegal under the Order and unenforceable. Kozinski, Graber, and Berzon (author), Circuit Judges. L. Lutzker of Burlingame, CA, for the defendant; D. Applegate of San Francisco, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) TERRORISM: USA v. Afshari, 02-50355 (9th Cir. June 17, 2005). At issue here was the constitutionality of an indictment's charged that from 1997 to 2001, in violation of 18 USC Sec. 2339B(a)(1), the defendants knowingly and willfully conspired to provide material support to the Mujahedine Khalq ("MEK"), a designated terrorist organization. According to the indictment, the defendants solicited charitable contributions for the "Community for Human Rights," gave money and credit cards to the MEK, and wired money from the "Committee for Human Rights" to a MEK bank account. They did so after participating in a conference call with an MEK leader, in which they learned that the State Department had designated the MEK a foreign terrorist organization. The MEK leader told the defendants to continue to provide material support despite the designation. The MEK was founded in the 1960's as an Iranian Marxist group seeking to overthrow the regime then ruling Iran. It participated in various terrorist activities against the Iranian regime and against the U.S., including the taking of American embassy personnel as hostages in 1979. After the Iranian regime fell and was replaced by a regime of clerics, rather than Marxists, MEK members fled to France. They later settled in Iraq, along the Iranian border where there they carried out terrorist activities with the support of Saddam Hussein's regime as well as money the defendants sent them. The district court dismissed the indictment on the ground that the terrorist designation statute was unconstitutional. The USCA reversed. It noted the defendants might be right that the MEK developed its practices at a time when the U.S. supported an earlier regime in Iran, and maintained its position while harbored by the Saddam Hussein regime in Iraq, and that the defendants might be right that the MEK might change or has changed, so that its interest in overturning the current regime in Iran coincide with U.S. interests. Nevertheless, the USCA held that was not for it the jury in this case, to say the defendants were right. The analysis of a foreign organization's political program to determine whether it is indeed a terrorist threat to the U.S. is particularly within the expertise of the State Department and the Executive Branch. Nor is it appropriate for a jury to make foreign policy decisions. Leaving the determination of whether a group is a "foreign terrorist organization" to the Executive Branch, coupled with the procedural protections and judicial review afforded by the statute, is both a reasonable and a constitutional way to make such determinations. The Constitution does not forbid Congress from requiring individuals, whether they agree with the Executive Branch determination or not, to refrain from furnishing material assistance to designated terrorist organizations during the period of designation. Kleinfeld (author), Wardlaw, and W. Fletcher, Circuit Judges. D. Letter of Washington, DC, for the appellant; S. Berzon of San Francisco, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 18) AIRPORT SECURITY / SEARCH & SEIZURE: USA v. Marquez, 04-30243 (9th Cir. June 7, 2005). Marquez was randomly selected for secondary security screening at Seattle-Tacoma International Airport and found to be in possession of two kilograms of cocaine. He challenged the denial of his motion to suppress this evidence. He questioned whether an airport screening procedure subjecting passengers to a handheld magnetometer wand scan, in addition to the standard walk-through magnetometer and luggage x-ray scan, is constitutionally reasonable where the passenger is randomly selected for more intrusive screening upon or before entering the Transportation Security Administration security checkpoint. The USCA held that the screening procedure is reasonable under the Fourth Amendment. Canby, Tallman (author), and Rawlinson, Circuit Judges. AFPD T. Lohraff of Seattle, WA, for the defendant; AUSA M. Lang of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) FORFEITURE: USA v. 144,774 Pounds of Blue King
Crab, 03-36006 (9th Cir. June 9, 2005). Crab taken in violation
of Russian fishing regulations is subject to forfeiture under the Lacey Act on
a strict liability basis. At issue here was whether an importer of such crab may
assert an "innocent owner" defense. Under the Civil Asset Forfeiture
Reform Act, 18 USC Sec. 983, the innocent owner defense cannot be asserted when
the property to be forfeited is "contraband or other property that is illegal
to possess." The USCA held that if the crab was imported, received, or acquired
in violation of the Lacey Act, it constitutes property that it is illegal to possess
for the purposes of 18 USC Sec. 983(d)(4) and the claimant may not raise an innocent
owner defense. Wallace, Silverman (author), and Paez, Circuit Judges. J.
Colvin of Seattle, WA, for the claimants; J. McKay of Seattle, WA, for the plaintiff.(Download
the full text of this decision at www.ce9.uscourts.gov/)
21) DISCIPLINARY PROCEEDINGS: Mothershed v. Justices of the Supreme Court, 03-16878 (9th Cir. June 6, 2005). At issue here was whether a disbarred attorney could collaterally attack his state bar disciplinary proceedings in federal court. The attorney had been censured in Arizona for engaging in the unauthorized practice of law; Oklahoma, where the attorney was licensed to practice law, then disbarred him. The attorney responded by filed suit in the District Court for the District of Arizona against the Justices of the Oklahoma Supreme Court, the members of the Oklahoma disciplinary panel, and several Oklahoma Bar Association officials. He also sued their Arizona counterparts. He alleged that the Arizona disciplinary proceedings were invalid because he had not been served with a summons. He maintained that the Oklahoma proceedings were defective because his hearing did not occur between 30 and 60 days after appointment of the trial panel. The district court dismissed the Oklahoma defendants due to the absence of personal jurisdiction. It later dismissed the claims against the Arizona defendants on the ground that Mothershed was improperly seeking review of the Arizona bar disciplinary proceedings in a lower federal court and that subject matter jurisdiction was thus absent under the Rooker-Feldman doctrine. The USCA agreed. Mothershed's claims premised upon the alleged absence of a summons directing him to appear at the Arizona disciplinary hearing were likewise barrred by the Rooker-Feldman doctrine because those claims constituted a particu-larized challenge to the Arizona disciplinary proceedings' results. Goodwin, Beezer, and O'Scannlain (author), Circuit Judges. G. Mothershed of Phoenix, AZ, for the appellant; L. Haacke of Phoenix, AZ, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 22) FIRST AMENDMENT / ABSOLUTE IMMUNITY: Botello v. Gammick, 03-16618 (9th Cir. June 23, 2005). Botello alleged that after he brought to light abuses in the Washoe County District Attorney's sexual assault response program, Washoe District Attorney Gammick and Deputy District Attorney Helzer (the "prosecutors") retaliated against him for his protected First Amendment activity, in violation of 42 USC Sec. 1983, defamed him and subjected him to intentional infliction of emotional distress. Botello brought suit in the district court against Gammick, Helzer and Washoe County. The district court dismissed Botello's first amended complaint on the basis of absolute prosecutorial immunity. The USCA affirmed in part, reversed in part, and remanded, finding that as certain of the prosecutors' acts were not within the scope of their prosecutorial functions and were not closely associated with the judicial process, they were not shielded by absolute immunity. Noonan, Thomas, and Fisher (author), Circuit Judges. D. Vaillancourt of Santa Cruz, CA, for the plaintiff; G. Shannon of Reno, NV, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/) 23) FREE SPEECH: Menotti v. City of Seattle, 02-35971 (9th Cir. June 2, 2005). The USCA here sought the proper balance between the rights of free speech and assembly and a city's need to maintain order and security. At issue was the constitutionality of an emergency order prohibiting access to portions of downtown Seattle during the 1999 WTO conference. The appellants sought damages for the constitutional rights that were allegedly violated by the emergency order. Four of the appellants also filed individual claims in which they alleged that their constitutioal rights were infringed by police officers during the conference. The USCA held that the emergency order was a constitutional time, place, and manner restriction on speech on its face, and affirmed the district court on that issue. But, the USCA also found that there were genuine issues of material fact whether the emergency order was constitutional as applied to certain appellants, and reversed and remanded for trial on that issue. Judge Paez concurred in the majority's holding that the order was content-neutral and served a significant government interest, but did not agree that it was narrowly tailored and left open ample alternate channels of communications. He also disagreed with the majority's determination that the order provided adequate guidance to the police officers assigned to maintain the perimeter of the "No Protest Zone." Gould (author) and Paez (dissenting in part), Circuit Judges, and Silver, District Judge. J. Lobsenz of Seattle, WA, for the appellants; T. Buck of Seattle, WA, for the appel-lees. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) CIVIL RIGHTS: Hearns v. Terhune, 02-56302 (9th Cir. June 30, 2005). Hearns, a Muslim inmate at Calipatria State Prison, filed a pro se complaint alleging violations of his civil rights under 42 USC Sec. 1983, including that prison officials violated his Eighth Amendment right to be free from cruel and unusual punishment when they failed to protect him from being attacked by fellow Muslim inmates. He also claimed that he was subjected to inhumane conditions when he was later placed in protective confinement for nine months in Calipatria's disciplinary segregation unit. The district court sua sponte dismissed his complaint for failing to state a claim, but granted him leave to amend. After Hearns filed his first amended complaint, the officials moved to dismiss that complaint under Fed. Civil Proc. Rule 12(b)(6). The district court granted that motion, found that Hearns' amended complaint failed to state a claim, and dismissed the complaint and the Sec. 1983 action with prejudice. The USCA reversed and remanded. Hearns' pro se amended complaint may not have been artfully drawn, but it did provide the prison officials with fair notice of his claims and the grounds upon which they rested. At a minimum, Hearns alleged facts raised an inference that the prison officials knew of the risk that certain inmates would attack Hearns, yet failed to take reasonable measures to abate it, and also showed that he was exposed to serious health hazards in the disciplinary segregation yard over a nine month period. Hug, Pregerson (author), and Berzon, Circuit Judges. D. Alexander of Los Angeles, CA, for the plaintiff; DAG B. Spiegel of San Francisco, CA, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/) 25) CIVIL RIGHTS: Thomas v. City of Tacoma, 03-35799 (9th Cir. June 8, 2005). Cory Thomas, Abdullah Ali, and Muhammad Alexander appealed the district court's denial of their motions for attorneys' fees pursuant to 42 USC Sec. 1988(b). They had brought a civil rights lawsuit alleging multiple causes of action against the Tacoma Police Department, the City of Tacoma, three City officials, and 22 individually named police officers. The jury returned a verdict for Thomas on his claim against Officer Tennyson for violation of his constitutional right to be free from unlawful seizures. The defendants prevailed on all remaining claims. In its award to Thomas, the jury allocated $15,000 in compensatory damages and $20,000 in punitive damages. Thomas and the defendants, in their respective status as prevailing parties and pursuant to Sec. 1988, agreed to have the district court decide the issue of attorneys' fees. After submission of the briefs and oral argument, the district court denied both parties' request for fees. The USCA reversed the denial of attorneys' fees to Thomas, affirmed the denial of attorneys' fees to the defendants, and remanded for further proceedings, instructing that the parties shall bear their own costs on appeal. McKay (author), O'Scannlain, and Bea, Circuit Judges. L. Howell of Seattle, WA, for the plaintiffs; J. Homan of Tacoma, WA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Sissoko v. Rocha, 02-56751
(9th Cir. June 13, 2005). After Sissoko, an alien who overstayed his visa but
applied for legalization, returned from his father's funeral in the spring of
1997, immigration inspection officer Rocha took him into custody as an "arriving
alien" without proper admission documents. Sissoko spent nearly three months
in detention. Sissoko and his wife, a U.S. citizen, brought this action, claiming
that the detention violated the Fourth Amendment. They sought damages. Rocha appealed
summary adjudication in favor of the Sissokos on the legality of the detention,
and also the denial of Rocha's motion for summary judgment on qualified immunity
grounds. He maintained that under 8 USC Sec. 1252 the courts were closed to the
Sissokos. The USCA disagreed. It found that Sec. 1252 did not prelude jurisdiction
and affirmed the district court's grant of summary adjudication to the Sissokos,
as well as its denial of summary judgment to Rocha on qualified immunity grounds.
The USCA remanded for further proceedings. Skopil, Noonan, and Berzon (author),
Circuit Judges. AAG P. Keisler of Washington, DC, for the defendants; M. Simone
of Los Angeles, CA, for the plaintiffs. (Download
the full text of this decision at www.ce9.uscourts.gov/)
28) IMMIGRATION: USA v. Bello-Bahena, 04-50013 (9th Cir. June 15, 2005). The defendant appealed his conviction and sentence for being a deported alien found in the U.S. in violation of 8 USC Sec. 1326(a). He maintained that 1) the district court erroneously denied his motion for judgment of acquittal because there was insufficient evidence to conclude that he was free from official restraint, 2) the district court erred in rejecting the defendant's proposed jury instruction regarding official restraint, and 3) the district court erred in refusing to dismiss the indictment for failure to allege certain elements of the offense. The USCA reversed and remanded for a new trial. The district court did not err in denying the defendant's motion for acquittal and his motion to dismiss the indictment. Given the state of the evidence, however, it should have given an instruction on official restraint. Pregerson, Tashima, and Paez (author), Circuit Judges. R. Nasser of San Diego, CA, for the defendant; AUSA R. Haines of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) IMMIGRATION: Thomas v. Gonzales, 02-71656 (9th Cir. June 3, 2005). The petitioners, natives and citizens of South Africa, ap-pealed the Board of Immigration Appeals summarily affirming the Immigration Judge's denial of their application for asylum and withholding of removal. The USCA reviewed the case en banc to reconcile an intracircuit conflict as to whether a family may constitute a "particular social group" for purposes of 8 USC Sec. 1101(a)(42)(A). The USCA held that family membership may constitute membership in a particular social group, and thus confer refugee status on a family member who has been persecuted or who has a well-founded fear of future persecution on account of that familial relationship. It also overruled Estrada-Posadas v. INS, 924 F.2d 916 (9th Cir. 1991), and its progeny, to the extent that they held that a family may not constitute a "particular social group." The USCA deferred to the BIA's view of kinship ties as giving rise to social group membership, expressed in In re Acosta, 19 I. & N. Dec. 211 (BIA 1985); and it joined the univocal view of circuits that a family may make up a particular social group. Schroeder, Reinhardt, O'Scannlain, Rymer (dissenting in part), Kleinfeld, Hawkins, Silverman, Graber, Wardlaw (author), Paez, and Bea, Circuit Judges. E. Horwitz of Woodland Hills, CA, for the petitioners; D. Meron of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) IMMIGRATION: Kelava v. Gonzales, 03-73689 (9th Cir. June 7, 2005). Kelava, an anti-communist dissident and Croatian national, sought review of a decision of the Board of Immigration Appeals. The BIA had concluded that Kelava was ineligible for a discretionary waiver of inadmissibility or cancellation of removal for having engaged in terrorist activity. Kelava argued that it is impermissibly retroactive to deny him eligibility for previously available discretionary relief. The USCA rejected Kelava's petition, holding that there is no retroactive effect in applying the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") elimination of Sec. 212(c) relief to Kelava, who had clearly engaged in the requisite terrorist activity prior to IIRIRA's enactment. Kleinfeld, Hawkins (author), and Graber, Circuit Judges. M. Harwin of Tucson, AZ, for the petitioner; A. MacLachlan of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) IMMIGRATION: Castro-Perez v. Gonzales, 03-73444 (9th Cir. June 1, 2005). The petitioner, a citizen of Honduras, sought review of the BIA's summary affirmance, without opinion, of an Immigration Judge's denial of her application for asylum, withholding of re-moval, and relief under the Convention Against Torture ("CAT"). Because the record did not compel a reasonable factfinder to find that the petitioner had established that her alleged persecution (rape by the man she dated in Honduras) is a crime the Honduran government is unable or unwilling to control, the USCA denied her petition for asylum and for withholding of removal. It also denied her claim for relief under CAT, because she had not "specifically and distinctly argued and raised" that issue in her petition to the USCA. Noonan, Thompson (author), and Rymer, Circuit Judges. P. Beech of Fresno, CA, for the petitioner; S. Goad of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) IMMIGRATION: Perez-Enriquez v. Gonzales, 03-70244 (9th Cir. June 14, 2005). The petitioner maintained that he could not be removed as an alien inadmissible at the time of his adjustment of status under 8 USC Sec. 1227(a)(1)(A) because his adjustment of status took place on the date he applied for lawful permanent residence. However, the USCA adopted the Immigration Judge's position, summarily affirmed by the BIA's, that the petitioner's adjustment of status for purposes of Sec. 1227(a)(1)(A) did not occur until his immigration status was adjusted to lawful permanent resident. As the petitioner did not contest that he was inadmissible on that later date, his petition was dismissed. Hall and Callahan (author), Circuit Judges, Bertelsman, District Judge. R. Gibbs of Seattle, WA, for the petitioner; I. Campbell of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) IMMIGRATION: Resendiz v. Kovensky, 03-55136 (9th Cir. June 27, 2005). Resendiz appealed the district court's dismissal of his two habeas petitions-one under 28 USC Sec. 2254, naming the State of California as respondent, and a second under 28 USC Sec. 2241 against the INS. The USCA affirmed. It concluded that: 1) Resendiz was not "in custody pursuant to the judgment of a State court" when he filed his Sec. 2254 petition, and he was not entitled to an exception from the "in custody" requirement; 2) the district court did not err in construing Resendiz's Sec. 2254 petition as a petition against the INS under Sec. 2241 rather than as one for a writ of coram nobis; and 3) the enactment of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act did not change the long standing principle that a petitioner may not collaterally attack his state court conviction in a Sec. 2241 petition against the INS. Schroeder, Pregerson, and Trott (author), Circuit Judges. P. Trevino of Los Angeles, CA, for the petitioner; AUSA F. Travieso of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: Theagene v. Gonzales, 02-71224 (9th Cir. June 15, 2005). Theagene petitioned for review of the BIA's final order of removal, arguing 1) he is a U.S. citizen; 2) the BIA erred in granting a motion to reconsider its own decision that he was eligible for withholding of deportation; 3) the BIA erred in apply an intervening en banc decision to petitioner's case on reconsideration; and 4) the BIA incorrectly applied the holding in that intervening decision. In a memorandum disposition, the USCA found that it lacked jurisdiction over the nationality claim because the claim had not be raised during the administrative proceedings. It also held that the remaining claims lacked merit. Theagene sought a rehearing raising substantial questions regarding the USCA's jurisdiction to hear his nationality claim. The USCA granted the petition and concluded that it had jurisdiction to review Theagene's nationality claim. However, because service in the armed forces is not itself sufficient grounds to claim nationality, and because Theagene's other claims lacked merit, it denied the petition. Kleinfeld (dissenting in part) and Wardlaw, Circuit Judges, and Pogue (author), International Trade Judge. J. Jasso of Los Angeles, CA, for the petitioner; AAG R. McCallum of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 35) ALIEN IN POSSESSION OF FIREARM: USA v. Bravo-Muzquiz, 03-50505 (9th Cir. June 16, 2005). Bravo-Muzquiz was convicted of a violation of 18 USC Sec. 922(g)(5)(A), being an alien illegally in the U.S. and possessing a firearm. Prior to his possession of the firearm, the INS had initiated removal proceedings against him for being illegally in the U.S. and he had been released on an immigration bond. The issue on appeal was whether that release changed his status so that he was no longer an alien illegally in the United States. The district court held that the release did not change his status. The defendant maintained that the district court erred in this determination and that it erred in giving an instruction and denying a judgment of acquittal based on that determination. Bravo-Muzquiz also raised two sentencing issues, contending that the district court erred in failing to grant to downward adjustments. The USCA affirmed the conviction, but remanded for reconsideration of the sentence. Pursuant to U.S.S.G. Sec. 2K2.1(b)(1), the district court applied a two-level enhancement due to the number of firearms Bravo-Muzquiz had purchased over the years. This increased his base offense level from 14 to 16. The district court refused to grant a downward adjustment pursuant to Sec. 2K2.1(b)(2) based on Bravo-Muzquiz' contention that he had purchased the guns solely for sporting purposes. It also refused a two-level downward adjustment for acceptance of responsibility. Because he did not challenge his sentence on Sixth Amendment grounds in the district court, the USCA granted a "limited remand" pursuant to USA v. Ameline, 02-30326 (9th Cir. June 1, 2005). Hug (author), T.G. Nelson, and Wardlaw, Circuit Judges. M. Betancourt of San Diego, CA, for the defendant; AUSA M. Rehe of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) IMMIGRATION: Singh v. Gonzales, 03-72197 (9th Cir. June 24, 2005). Singh, a native and citizen of India, sought review of two BIA orders. The first affirmed an Immigration Judge's denial of Singh's motion to reopen removal proceedings and rescind a removal order which was entered against Singh in absentia. The second order granted Singh's motion for reconsideration of the first decision, but then again denied Singh's request to reopen removal proceedings. The USCA concluded that although the INS satisfied all jurisdictional requirements for Singh's removal proceedings, Singh had shown a failure to receive either the notice to appeal or the address notification requirements. As Singh's motion to reopen should have been granted, the USCA reversed and remanded to the BIA, with instructions to remand to the IJ and to allow Sing to reopen removal proceedings. Lay (author), B. Fletcher, and Hawkins, Circuit Judges. M. Guajardo of San Francisco, CA, for the petitioner; A. MacLachlan of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) IMMIGRATION: USA v. Zavala-Mendez, 03-30321 (9th Cir. June 15, 2005). The alien here was a passenger in a car that crossed into Alaska on the Alaska Highway from the Yukon Territory at night. He had no right to enter the U.S., as he had been deported and the Attorney General had not given him permission to reenter. He gave his true name, and it came up on the border station's computer showing that he had been deported. He was detained and driven to Anchorage, 430 miles away, where his fingerprints could be scanned and compared to the prints in his alien file. The prints matched. He was not indicted for attempting to enter the U.S., but was tried and convicted by a jury for being "found in" the United States. The border station where he presented himself was well within US territory. The district court denied his motion for a judgment of acquittal. His only defense had been legal-that he could not be "found in" the U.S. when all he did after crossing the border was go straight to the border station and present himself for entry. The USCA concluded that he was entitled to have his motion granted. It held that an alien who crosses the border at a designated location and proceeds directly in the manner designated by the government to the borer station where he then presents himself to the authorities has not been "found in" the U.S. for the purposes of 8 USC Sec. 1326(a). Dissenting, Judge Hall thought that by implicitly incorporating an intent element into what is essentially a strict liability crime, the majority's decision undermines a well-established line of Ninth Circuit cases holding that an alien enters the U.S. for the purpose of a "found in" conviction once he sets foot on U.S. soil, unless he has been under constant surveillance from the moment he crosses the border. Hall (dissenting), Kleinfeld (author), and Wardlaw, Circuit Judges. AFD K. McCoy of Anchorage, AK, for the appellant; AUSA J. Farrington of Anchorage, AK, for the appel-lee. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) REENTRY AFTER REMOVAL: USA v. Bahena-Cardenas, 03-50479 (9th Cir. June 13, 2005). Bahena-Cardenas was convicted by a jury of entering the U.S. without permission after being deported following his prison sentence for drug crimes. The USCA affirmed. First, contrary to Bahena-Cardenas' assertions 8 USC Sec. 1326 does not violate the rule of Apprendi v. New Jersey, 530 US 466 (2000), which requires that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Under Sec. 1326 the relevant element was whether Bahena-Cardenas had been ordered deported and the jury fund that fact beyond a reasonable doubt. Second, the fact that there are fewer due process safeguards in a de-portation hearing does not make Sec. 1326 unconstitutional because the Supreme Court has held that deportation hearings must comport with the requirements of due process before they maybe be used to establish conclusively an element of a criminal offense. Reinhardt, Hall (author), and Wardlaw, Circuit Judges. M. Burke of San Diego, CA, for the defendant; AUSA A. Perry of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) ALIEN SMUGGLING: USA v. Munoz, 04-50086
(9th Cir. June 14, 2005). Munoz appealed her convictions under 8 USC Sec. 1324(a)(2)(B)(ii)
and (iii) on two counts of bringing illegal aliens to the U.S. for financial gain,
and two counts of bringing illegal aliens to the U.S. without presentation to
an immigration officers. She argued that the district court erred by giving a
jury instruction that relieved the government of its burden of proving one of
the elements of the financial gain offenses, by denying her motion for acquittal
when the government failed to prove that the aliens found in her car lacked permission
to "come to," as opposed to "enter," the U.S., and by allowing
the government to elicit testimony regarding a border inspector's reasons for
referring Munoz to secondary inspection. The USCA affirmed the denial of Munoz's
motion for acquittal and its challenged evidentiary ruling, but reversed and remanded
for a new trial Munoz's conviction on the two pecuniary gain counts. Tashima (author)
and Wardlaw, Circuit Judges, and Collins, District Judge. S. Hubachek of San
Diego, CA, for the defendant; AUSA L. Spong of San Diego, CA, for the plaintiff.(Download
the full text of this decision at www.ce9.uscourts.gov/)
41) SPEEDY TRIAL ACT / MARITAL COMMUNICA-TIONS PRIVILEGE: USA v. Vo, 03-10699 (9th Cir. June 27, 2005). Vo raised three matters on appeal: 1) that the district court erred by denying his Speedy Trial Act motion to dismiss under 18 USC Sec. 3161, because more than 70 days elapsed between the filing of the government's indictment and Vo's trial; 2) that the district court erred by al-lowing his wife to testify about marital communications in violation of his marital communications privilege; and, 3) that the district court erred in admitting evidence of a 13-year old drug conviction in violation of Fed. Rules Evid. 401, 402, 403, and 404(b). Finding no error, the USCA affirmed the conviction. Vo also submitted a Rule 28(j) letter regarding the upward enhancement of his sentence. But, as he had not challenged his sentence on Sixth Amendment grounds in the district court, the USCA granted a limited remand pursuant to USA v. Ameline, 02-30326 (9th Cir. June 1, 2005). Beezer, Graber, and Bybee (author), Circuit Judges. AFPD P. Wolff of Honolulu, HI for the defendant; AUSA T. Muehleck of Honolulu, HI, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/) 42) FAIR REPRESENTATION IN JURY POOLS: USA v. Nakai, 03-10485 (9th Cir. June 27, 2005). Nakai, a member of the Navajo tribe, appealed his conviction for a series of federal crimes committed on an Indian reservation: premedicated first degree murder; robbery; felony murder-kidnapping; carjacking resulting in death; felony murder-robbery and use of a firearm during the commission of crimes of violence. The USCA affirmed. Following his indictment, Nakai was transferred from Prescott, Arizona, to a larger facility in Phoenix. He maintained that this transfer from the Prescott Division of the District Court to the Phoenix Division deprived him of a fair representation of the community. A fair cross-section of the Prescott community was 16.7% Native American, but only 6.1% of the jurors who reported for jury duty were Native American. This result, Naka argued, resulted in a violation of the Sixth Amendment. The USCA rejected Nakai's contention that Native Americans were systematically excluded from the jury pool. The venire as drawn consisted of 199 persons, 14.1% of whom were Native Americans. The jury commissioner telephoned those in the pool to direct them to Phoenix. She failed to reach 34 because the telephone was not answered or was disconnected or not working, or because there was no telephone. Of the 34 not contacted, 14 were Native Americans. Nakai maintained that their exclusion was systematic because it was asserted by his counsel that "phones are somewhat scarce on the reservation." Counsel added, "I have no statistical evidence or proof of this [but speak] from my own knowledge." The personal knowledge of counsel does not constitute proof of the number of telephone users on the reservation and Nakai'' post-trial efforts to provide evidence came too late. Even if it were to accept Nakai's belated evidence of telephones on the reservation, the USCA noted that occasional discrepancies occurring for "the sake of expediency" do not constitute a prima facie violation of the Sixth Amendment. Reinhardt, Noonan (author), and Fernandez, Circuit Judges. J. Hannah of Phoenix, AZ, for the defendant; AUSA V. Kirby of Phoenix, AZ, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/) 43) PUBLIC AUTHORITY DEFENSE: USA v. Burt, 04-10240 (9th Cir. June 8, 2005). The government's indictment charged Burt with conspiracy to transport illegal aliens and transportation of illegal aliens. Burt requested jury instructions on her public authority defense. The district court refused to give the instruction, and the jury found her guilty on both counts. The USCA reversed and remanded, finding that Burt had presented sufficient evidence to justify the instruction. A defendant is entitled to instructions relating to a defense theory for which there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility. A mere scintilla of evidence supporting a defendant's theory, however, is not sufficient to warrant a defense instruction. Burt argued that a jury with appropriate instructions should decide whether her belief that her conduct was for the sole purpose of gathering information for the agents, was reasonable. The USCA agreed. At trial, Burt testified that Border Patrol agents told her that as long as she was gathering information for them her actions would not be illegal. She added that the agents gave her no instructions on how to conduct herself. Agent Scott testified at the evidentiary hearing the Burt "should not be committing an offense if she's working for me." The USCA concluded that a jury could believe Burt and interpret Scott's statement to mean that if Burt was working for Scott her actions would not be illegal. In addition, Scott destroyed his notes from his interview with Burt, which was the only contemporaneous record of the interview. The Magistrate correctly noted that "when government agents destroy evidence, they place their own credibility in serious jeopardy." The USCA held that although Burt's evidence may not be strong, she presented sufficient evidence to justify jury instructions on her public authority defense. Bright (author), Tashima, and Callahan, Circuit Judges. J. Kaufmann of Tucson, AZ, for the appellants; P. Charlton of Tucson, AZ, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 44) DOUBLE JEOPARDY: USA v. Camacho, 04-10078 (9th Cir. June 24, 2005). Camacho, a federal civilian employee serving as an Air Reserve Technician in the 749th Aircraft Maintenance Squadron at the Travis Air Force Base in California, allegedly stole a home theater system from the Base Exchange. In response, the squadron commander sanctioned him for theft. Nearly one year later, the U.S. Attorney's office filed an information charging Camacho for the same alleged theft, as a misdemeanor violation of 18 USC Sec. 641. Camacho moved to dismiss the information on double jeopardy grounds, arguing that the sanction imposed by his commander constituted punishment barring his subsequent prosecution. The USCA affirmed the denial of Camacho's motion to dismiss. The discipline to which Camacho was subjected is the type of discipline any private employer might have imposed on an employee. It did not rely on the government's sovereign power and was thus outside the scope of double jeopardy concerns. Thomas and Paez (author), Circuit Judges, and Burns, District Judge. M. Fair of Sacramento, CA, for the defendant; S. Spangler of Sacramento, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) SEARCH & SEIZURE: USA v. Sears, 03-15073 (9th Cir. June 20, 2005). At issue in this case was the proper remedy for a search pursuant to a warrant that, due to police error in preparing the document for distribution, contained eight words not reviewed by a mag-istrate. The eight words were "or nearby" (twice) and "but not limited to." It was undisputed that those words expanded the scope of the search and violated the particularity requirement of the Fourth Amendment. Defendant Sears appealed the district court's decision to remedy this Fourth Amendment violation by suppressing only that evidence seized pursuant to the unreviewed portions of the warrant. The USCA affirmed. Because the Fourth Amendment violation was not flagrant, and the invalid portions of the warrant were relatively insignificant, blanket suppression was not required. Dissenting, Judge Kozinski thought that the constitutional deficiency in this case was not, as the majority saw it, an overbroad search warrant. Rather, it was that the police tampered with the warrant after it was authorized by the reviewing judge. As a consequence, the warrant executed and served by the police was a legal nullity. Everything seized under this sham warrant, Judge Kozinski thought, had to be suppressed. Kozinski (dissenting), W. Fletcher (author), and Bybee, Circuit Judges. A. Rosen of San Jose, CA, for the plaintiff; S. Hanlon of San Francisco, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) WIRETAP EVIDENCE: USA v. Gonzales, Inc., 04-10041 (9th Cir. June 22, 2005). The government appealed the district court's order granting in part the defendants' motion to suppress evidence obtained as a result of wiretaps at the Los Angeles headquarters of Gonzalez, Inc., dba Golden State Transportation ("GST"). The USCA considered whether the district court erred 1) by conducting a hearing pursuant to Franks v. Delaware, 438 US 154 (1978); 2) by finding that the wiretap issued for the company headquarters failed to meet the statutory necessity requirement; and 3) by granting standing to Antonio and Francisco Gonzalez to challenge all conversations intercepted under the invalidated wiretap order. The USCA held that each district court ruling was correct and affirmed. D.W. Nelson (author), Kleinfeld, and Gould, Circuit Judges. B. Ferg of Tucson, AZ, for the plaintiff-appellant; W. Kirchner of Tucson, AZ, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) UNLAWFUL HANDLING OF HAZARDOUS MATERIALS: USA v. Barken, 03-50441 (9th Cir. June 27, 2005). Barken appealed his conviction and sentence for unlawful transportation and disposal of hazardous material without a permit in violation of 42 USC Sec. 6928(d)(1) and (d)(2)(A) (codifying the Resource Conservation and Recovery Act). He argued that the district court erred by denying his motion to dismiss the indictment for pre-indictment delay in violation of his due process rights under the Fifth Amendment and under Federal Rule of Criminal Procedure 48(b). He also alleged four sentencing errors. The USCA affirmed Barken's conviction and remanded to the district court to consider the sentencing issues in accordance with USA v. Booker, 125 S.Ct. 738 (2005), and USA v. Ameline, 02-30326 (9th Cir. June 1, 2005). D.W. Nelson, Gibson (author), and Graber, Circuit Judges. L. Sharenow of Los Angeles, CA, for the defendant; AUSA D. Kim of Los Angeles, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/) 48) SEXUAL VIOLENT PREDATORS: Huftile v. Miccio-Fonseca,
03-16734 (9th Cir. June 10, 2005). At issue here was whether the favorable termination
rule of Heck v. Humphrey, 512 US 477 (1994), applies to civil commitments under
California's Sexually Violent Predators Act. The USCA concluded that it did and
affirmed the district court's dismissal of Huftile's Sec. 1983 action for damages
and declaratory relief. However, it reversed the dismissal of Huftile's claim
for prospective injunctive relief under Heck, and remanded for further proceedings
concerning that form of relief. Kozinski, W. Fletcher (author), and Bybee,
Circuit Judges. M. Huftile pro se; M. Altamirano for of Sacramento, CA, for the
defendant. (Download
the full text of this decision at www.ce9.uscourts.gov/)
50) FELON IN POSSESSION OF FIREARMS: USA v. Fay, 04-10401 (9th Cir. June 3, 2005). Fay appealed the district court's denial of his motion to suppress and his consequent conviction for being a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1). The USCA affirmed, finding no violation of the Fourth Amendment in the discovery of Fay's gun. Concurring, Judge Noonan wrote separately to state that it seemed to him that the court had needlessly engaged in drawing fine distinctions. The simple facts were that a householder wanted illegal property out of her home. Fay's expectations had no bearing on the householder's right to get it out. Noonan (author and concurring), Thompson, and Rymer, Circuit Judges. AFPD J. Carr of Las Vegas, NV, for the defendant; AUSA C. Pomerantz of Las Vegas, NV, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/) 51) GUILTY PLEAS: USA v. Davis, 04-50030
(9th Cir. June 9, 2005). At issue here was whether a district court had discretion
to permit a defendant to withdraw his guilty plea prior to sentencing when it
found that defense counsel "grossly mischaracterized" the defen-dant's
possible sentence, but also found that the mischaracterization did not actually
prejudice the defendant as is required to invalidate a plea post-sentence. The
USCA answered "yes." Because the district court did not believe it had
such discretion, it vacated and remanded for reconsideration of the defendant's
motion to withdraw his plea. Judge Callahan dissented. He thought the district
court had correctly applied the prevailing law of the circuit when it required
the defendant to show that he had been prejudiced by his attorney's mischaracterization
of the sentence. He would affirm this portion of the district court's decision.
Graber and Callahan (dissenting), Circuit Judges, and Breyer (author),
District Judge. R. Kravis of Studio City, CA, for the defendant; AUSA R. Cheng
of Los An-geles, CA, for the plaintiff.(Download
the full text of this decision at www.ce9.uscourts.gov/)
53) SENTENCING: USA v. Ameline, 02-30326 (9th Cir. June 1, 2005). USA v. Booker, 125 S.Ct. 738 (2005), struck down the sentencing scheme created by the Sentencing Reform Act of 1984 to the extent the Act mandated the imposition of sentences predicated on facts not found by the jury or admitted by the defendant. To remedy the constitutional infirmity, the Court severed the mandatory portions of the Act, rendering its sentencing provisions, including the Sentencing Guidelines, effectively advisory. Left unresolved by Booker was the question of what relief, if any, is to be afforded a defendant who did not raise a Sixth Amendment challenge prior to sentencing. The USCA reheard this case en banc to address this issue for cases pending on direct review. The USCA held that when faced with an unpreserved Booker error that may have affected a defendant's substantial rights, and the record is insufficiently clear to conduct a complete plain error analysis, a limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the Guidelines were advisory. If the district court responds affirmatively, the error was prejudicial and failure to notice the error would seriously affect the integrity, fairness and public reputation of the proceedings. The original sentence will be vacated by the district court, and the district court will resentence the defendant. If the district court responds in the negative, the original sentence will stand, subject to appellate review for reasonableness. In essence, the USCA adopted the approach of USA v. Crosby, 397 F.3d 103 (2d Cir. 2005). Dissenting in part, Judge Wardlaw, joined by Gould and, in part, by O'Scannlain and Bea, thought that the district court erred by treating the factual statements in the Presentence Report as presumptively accurate and placing the burden on Ameline to disprove them. Judge Wardlaw thus concurred in the majority's decision to vacate Ameline's sentence and to remand his case for a new sentencing hearing pursuant to Fed. R. Crim. Proc. 32. Judge Wardlaw dissented however from the majority opinion because it improperly delegated to the district courts the USCA's discretionary appellate function to conduct plain error review of unpreserved claims of Booker errors. The resulting wholesale remand of hundreds, possibly thousands, of sentencing appeals elevates the court's administrative concerns over the law as pronounced in Booker, and over the interests of individual justice. Schroeder, O'Scannlain (dissenting in part), Hawkins, Thomas, Wardlaw (dissenting in part), W. Fletcher, Fisher, Gould (dissenting in part), Rawlinson (author), Clifton, and Bea (dissenting in part), Circuit Judges. S. Hubacheck of San Diego, CA, for the defendant; M. Dreeben of Washington, DC, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 54) EARLY RELEASE: Paulsen v. Daniels, 03-35337 (9th Cir. June 27, 2005). At issue here was whether the Bureau of Prisons vio-lated the Administrative Procedure Act in adopting an interim regulation pertaining to an early release incentive program for federal prisoners who had successfully completed a substance abuse program. The USCA concluded that the district court corrrectly held that the Bureau violated the APA, and that the petitioners were entitled to relief. Judge Beezer concurred in the majority opinion but wrote separately to note that a tension in Circuit case law exists over the application of the APA to a Bureau of Prison's Program Statement. Beezer (concurring), Thomas (author), and W. Fletcher, Circuit Judges. T. Gannon of Washington, DC, for the respondents; DFPD S. Sady of Portland, OR, for the petitioners.(Download the full text of this decision at www.ce9.uscourts.gov/) 55) HABEAS CORPUS: Mujahid v. Daniels, 03-36038 (9th Cir. June 27, 2005). Mujahid appealed the denial of his 28 USC Sec. 2241 habeas petition, challenging the Bureau of Prisons' interpretation of the maximum good time credit a federal prisoner can receive under 18 USC Sec. 3624(b). Mujahid maintained that the Bureau's interpretation, which allows a prisoner serving a ten-year sentence to earn a maximum of 470 days credit, contradicts the statute's stated allowance of 54 days of credit per year. The USCA affirmed. Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001), established that the phrase "term of imprisonment" in 18 USC Sec. Sec. 3624(b)(1) is ambiguous and that the Bureau's interpretation was reasonable and entitled to deference. Mujahid's position rested on an interpretation of this statute at odds with binding Circuit authority. Beezer (author), Thomas, and W. Fletcher, Circuit Judges. AFPD S. Sady of Portland, OR, for the petitioner; AUSA K. Bauman of Portland, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 56) HABEAS CORPUS: USA v. Sandoval-Lopez, 03-35594 (9th Cir. June 6, 2005). Sandoval-Lopez was caught in Yakima, Washington, with 15 pounds of heroin hidden in the manifold of his pickup truck. He told a man who helped him with the mechanical work, and who turned out to be an undercover informant, that he regularly smuggled heroin in his truck from Mexico, for distribution in Washington and Oregon. Though he was indicted for possession with the intent to distribute this very large quantity of heroin, his lawyer worked out a plea bargain-only seven years to serve for misprison of felony and use of a communication facility to facilitate the distribution of a controlled substance. Through this deal, defense counsel managed to obtain a remarkably favorable agreement to plead to a superseding information with statutory maximums of four and three years respectively, thereby avoiding the risk of a much longer sentence for possession with intent to distribute. Although Sandoval-Lopez had waived his right to appeal, approximately a year later, he alleged in a habeas petition that he had wanted to appeal. His petition urged many defects involving ineffective assistance of counsel, including that his lawyer did not tell him that the evidence was insufficient, did not argue for an aberrant behavior departure, and did not sufficiently advice him that accepting the a guilty plea would lead to deportation. The district court decline to give him an evidentiary hearing because he had not allege specific facts, which if true, would entitle him to relief. The USCA reversed, finding that the district court had to hold an evidentiary hearing to determine whether Sandoval-Lopez really did tell his lawyer to appeal and his lawyer refused though Sandoval-Lopez demanded it. If not, Sandoval-Lopez is entitled to no further relief. If so, then the district court, under controlling circuit authority, had to vacate and reenter the judgment so that Sandoval-Lopez could file a timely notice of appeal. Alternatively, the government may choose not to oppose the petition and let Sandoval-Lopez appeal. It might choose this alternative to free itself from the restraint of the plea bargain, or because getting the appeal dismissed would be less work than an evidentiary hearing. Hall, Kleinfeld (author), and Callahan, Circuit Judges. A. Walstrom of Yakima, WA, for the appellant; AUSA G. Shogren of Yakima, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 57) HABEAS CORPUS: Brambles v. Duncan, 01-55716 (9th Cir. June 17, 2005). Brambles appealed the district court's dismissal of his habeas petition as time-barred under the Antiterrorism and Effective Death Penalty Act. He had filed an earlier petition that was timely, but it included one exhausted and two unexhausted claims. The district court told him that he could either dismiss the unexhausted claims or dismiss the whole petition without prejudice to any right he may have to file a new petition once available state remedies are exhausted as to all claims. It also warned Brambles, who was proceeding pro se, that the recently amended 28 USC Sec. 2244 limits the time period within which a petition may be filed. In fact, the one-year period within which to file a petition had already expired by the time the district court made this ruling. Thus, if Brambles dismissed his petition, his right to seek federal habeas review would be lost unless he could establish equitable tolling. Relying on what the district court told him, and unfamiliar with the consequences of dismissing his timely petition in its entirety, Brambles chose to have the entire petition dismissed without prejudice. He then went back to state court, exhausted his two unexhausted claims, and then returned to federal court where he filed his present petition which included all three claims. The district court dismissed the petition with prejudice, finding it time-barred. The USCA reversed. The Supreme Court then granted certiorari and vacated the USCA's judgment and remanded the case for the USCA to decide it consistent with Pliler v. Ford, 124 S.Ct. 2441 (2004). The USCA rendered a new decision affirming the district court's dismissal. It concluded that while the court failed to inform Brambles of all of the consequences of having his entire petition dismissed, it did not actively mislead him, and no extraordinary circumstances existed beyond his control that would account for his failure to timely file. Thompson (author) and Rawlinson, Circuit Judges, and Schwarzer, District Judge. K. Stern of Woodland Hills, CA, for the petitioner; DAG L. Daniels of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 58) HABEAS CORPUS: Collier v. Bayer, 04-15017 (9th Cir. June 3, 2005). Collier appealed the denial of his habeas petition under 18 USC Sec. 2254 for failing to comply with Nevada's time limits for pursing habeas relief. The USCA reversed the district court's decision and held that this application of Nevada's time limits and tolling provisions was not adequately established prior to his appeal. Because it reversed on this ground, the USCA did not reach the issue of whether Collier had caused or suffered prejudice. Dissenting, Judge Bea thought the majority allowed the petitioner to resurrect an expired right to file a habeas petition attacking a judgment of conviction simply by filing a motion to correct an illegal sentence. That, he thought, was contrary to Nevada law, Loveland v. Hatcher, 231 F.3d 640 (9th Cir. 2000), and Moran v. McDaniel, 80 F.3d 1261 (9th Cir. 1996). B. Fletcher (author), Thomas, and Bea (dissenting), Circuit Judges. F. Forsman of Las Vegas, NV, for the petitioner; B. Sandoval of Reno, NV, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 59) HABEAS CORPUS: Shannon v. Newland, 03-16833 (9th Cir. June 8, 2005). At issue here was whether a California prisoner's ha-beas petition was timely when filed long after the petitioner's conviction but shortly after a decision by the California Supreme Court clarifying the state's criminal law in a way potentially favorable to his federal constitutional claim. Finding that the petition was untimely, the USCA concluded that the district court correctly dismissed it. Beezer, O'Scannlain (author), and Kleinfeld, Circuit Judges. D. Horgan of San Francisco, CA, for the petitioner; J. Haley of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 60) HABEAS CORPUS: Bradley v. Henry, 04-15919 (9th Cir. June 22, 2005). In 1996, Bradley, 18 years old at the time, attempted a car-jacking in the course of which the driver of the car was shot. Bradley was taken into custody and charged with attempted robbery, car-jacking, possession of a short-barreled shotgun, and murder in the first degree, with special circumstances. If convicted, she could have been executed. In fact, the district court sentenced her to 35 years to life in prison. She appealed the district court's judgment denying her habeas petition. Holding that Bradley had been denied due process of law at a critical stage in her criminal trial with harm to her ability to defend herself in a capital case, the USCA reversed the district court's judgment. Judge Ferguson concurred in the majority's opinion but wrote separately to underscore that Bradley was not only deprived of her right to due process because she was excluded from an in camera hearing. She was also deprived of her Sixth Amendment right to select counsel of her choice as a result of that exclusion. Dissenting, Judge Rymer thought the issue here was straightforward: Was the California Court of Appeal's decision contrary to, or an unreasonable application of, clearly established federal law as declared by Lockyer v. Andrade, 538 US 63 (2003), in holding that Bradley was not prejudiced by her absence from a critical proceeding where her attorneys were allowed to withdraw on the ground that they were not getting paid by Bradley's father as they were supposed to be and new counsel was appointed in their stead; or that the trial court's refusal to substitute another retained counsel for appointed counsel on the eve of trial, after more than three years of lawyer-churning, did not offend the Sixth Amendment. In Judge Rymer's view, the court of appeal's decision reasonably applied Supreme Court precedent because Kentucky v. Stincer, 482 US 730 (1987), held that a defendant is not deprived of due process when she is excluded from a hearing that bears no substantial relationship to her opportunity better to defend herself at trial." In addition, Wheat v. USA 486 US 153 (1988), made clear that a defendant is not necessarily denied her right to counsel when she is represented by effective counsel, whether or not that counsel is her preferred counsel. Ferguson (concurring), Noonan (author), and Rymer (dissenting), Circuit Judges. D. Riordan of San Francisco, CA, for the petitioner; DAG M. Beatus of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 61) HABEAS CORPUS: Juan H. v. Allen,
04-15562 (9th Cir. June 2, 2005). Juan H. appealed a district court decision denying
his habeas petition. He argued that his California juvenile delinquency
petition for first-degree murder and attempted first-degree murder was sustained
in violation of Miranda v. Arizona, 384 US 436 (1966), the Fifth Amendment
prohibition on the use of involuntary or coerced statements, and the Fourteenth
Amendment due process right to be convicted by evidence that proves guilt beyond
a reasonable doubt. The USCA reversed and remanded with instructions to grant
the habeas petition. It noted that after resolving all conflicting factual inference
in favor of the prosecution, only speculation supported a conclusion that Juan
H. knew that Merendon planned to murder Ramirez and Magdelano, and that Juan H.
took some action intended to encourage or facilitate Merendon in completing these
killings. The lack of evidence violated the Fourteenth Amendment guarantee that
an accused must go free unless and until the prosecution presents evidence that
proves guilt beyond a reasonable doubt. D.W. Nelson, Kleinfeld, and Gould (author),
Circuit Judges. J. Grossman of Santa Clara, CA, for the petitioner; B. Lockyer
of Sacramento, CA, for the respondent.(Download
the full text of this decision at www.ce9.uscourts.gov/)
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