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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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| 1) TRADEMARKS / DISCOVERY: Surfvivor Media v. Survivor Productions, 02-17064 (9th Cir. May 4, 2005). Surfvivor Media and Peter Deptula appealed the grant of summary judgment in favor of Survivor Productions on Surfvivor's federal and state trademark infringement claims. Surfvivor also challenged the magistrate's ruling limiting discovery to allow examination of only certain Survivor goods. Because no material issue of fact was raised reflecting confusion between the marks, the USCA affirmed the entry of summary judgment in favor of Survivor. The USCA also held that the discovery rulings were well within the bounds of the court's discretion. Farris, Noonan, and Rawlinson (author), Circuit Judges. P. Maki of Honolulu, HI, for the plaintiffs-appellants; A. White of Los Angeles, CA, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/) 2) TRADEMARKS: KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 01-56055 (9th Cir. May 19, 2005). This case concerned the term "micro colors" and who has the right to sue it. Lasting Impression I, Inc., owns an incontestable, registered trademark, which consists of the term "micro colors," set in white, within a black box. It is the registration for this composite mark that is the basis of this litigation. KP Permanent Make-Up, Inc. uses the term "micro colors" on its products and brochures. Upon receiving a cease and desist letter from Lasting Impression I, Inc., in January 2000 demanding that KP discontinue its use of the term "micro color," KP brought this action for declaratory relief against the defendants Lasting Impression I, Inc., and its distributor, MCN International, Inc. (hereinafter collectively referred to as "Lasting") KP asserted that Lasting did not have the exclusive right to use the term "micro colors" and that term was generic and incapable of receiving trademark protection. Lasting counterclaimed, alleging that KP's use of the term "micro color" infringed Lasting's incontestable, registered mark. The parties filed cross motions for summary judgment and summary adjudication. The district court concluded that the term "micro colors" was generic, or if not generic, descriptive. It then determined that KP was entitled to continue use of the term "micro colors," in the manner that it had been since 1991, and that Lasting could continue to use its trademarked logo. Lasting appealed. The USCA reversed. On appeal to the Supreme Court, that decision was vacated. On remand, the USCA reversed the district court's grant of summary judgment for KP. With regard to Lasting's motion for summary adjudication, the USCA held that the words "micro colors," as the most salient feature of the trademark, are protected and are not generic. The USCA remanded the case for further proceedings. Hug (author), Brunetti, and O'Scannlain, Circuit Judges. C. Wu of Irvine, CA, for the defendants-appellants; M. Machat of Beverly Hills, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 3) TRADE DRESS INFRINGEMENT: California Scents v. Surco Products, 03-56116 (May 6, 2005). When California Scents filed its complaint it did not demand a jury trial. Defendant Pestco answered, filed counterclaims, and demanded a jury trial "as to all counter-claims." At issue was whether under Fed. R. Civ. Proc. 38, California Scents reasonably relied on Pestco's jury trial demand "as to all counterclaims" so as to preserve California's Scents' right to a jury trial on all the claims pled in its complaint. The USCA concluded that the district court denial of a jury trial on California Scents' claims was error that caused California Scents to suffer prejudice. It reversed and remanded for trial. Pregerson (author) and Canby, Circuit Judges, and Reed, District Judge. S. Brower of Costa Mesa, CA, for the plaintiff-appellant; R. Ejzak of Pittsburgh, Pennsylvania, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/) 4) ANTITRUST: Jack Russell Terrier Network of Northern California
v. American Kennel Club, 02-17264 (9th Cir. May. 17, 2005). At issue here
was whether a complaint alleging that a national dog club's policy of banning
members who register their dogs with an alternative club raises cognizable claims
of group boycott pursuant to the Sherman Act. Also at issue was whether the appellant's
claim of false advertising pursuant to the Lanham Act had been properly dismissed
for lack of standing after trial. The district court granted the Jack Russell
Terrier Club of America's motion to dismiss the appellant's Sherman Act claims.
After a bench trial, the district court held that the appellants lacked standing
to raise a claim under the Lanham Act. The USCA affirmed. D.W. Nelson, Kleinfeld,
and Gould (author), Circuit Judges. M. Misuraca of Newport Beach, CA, for
the plaintiffs-appellants; E. Haas of Oakland, CA, for the defendants-appellees.(Download
the full text of this decision at www.cc9.uscourts.gov/)
6) CONTRACTS: Western States Paving Co. v. Washington State Dept.
of Transportation, 03-35783 (9th Cir. May 9, 2005). At issue here
was whether the Transportation Equity Act for the 21st Century, which authorizes
the use of race- and sex-based preferences in federally funded transportation
contracts, violated equal protection, either on its face or as applied by the
State of Washington. Finding the record devoid of any evidence suggesting that
minorities currently suffer, or have ever suffered, discrimination in the Washington
transportation contracting industry, the USCA held that Washington's application
of TEA-21 conflicts with the guarantees of equal protection because the State's
DBE program is not narrowly tailored to further Congress's remedial objective.
Western States' facial challenge failed because Congress identified a compelling
remedial interest when it enacted TEA-21 and the DBE program established by the
USDOT's regulation is, on its face, a narrowly tailored means of achieving that
objective. The USCA thus affirmed summary judgment in favor of the United States,
the Dept. of Transportation, and the Federal Highway Administration. Judge McKay
agreed with the majority's discussion of the facial constitutionality of TEA-21,
but as to its "as-applied" discussion, he thought the majority opinion
splits the circuits without persuasive support for its position. Judge McKay said
he was persuaded by the position taken by both the Sixth and Seventh Circuits,
and thus dissented in part. McKay (dissenting in part), O'Scannlain
(author), and Bea, Circuit Judges. G. Lofland of Yakima, WA, for the appellant;
L. Stark of Washington, DC, for the federal appellees; AAG S. Dietrich of Olympia,
WA, for the state appellee. (Download the full text of this decision
at www.cc9.uscourts.gov/)
8) INSURANCE LAW: Nationwide Mutual Insurance Company v. Liberatore, 04-15744 (9th Cir. May 12, 2005). Nationwide Mutual Insurance Company appealed the district court's summary judgment in this insurance coverage dispute involving the U.S. government. Underlying the coverage dispute was a state tort action arising out of an auto accident. The defendant driver, Liberatore, was insured by Nationwide, and at the time of the accident was an active duty member of the armed services of the United States. Under the terms of the Federal Tort Claims Act, because Liberatore was a federal employee, the federal government would have responsibility for indemnifying him if, at the time of the accident, he were acting within the scope of his employment. The district court determined that Liberatore was not acting within the scope of his employment, leaving Nationwide to indemnify Liberatore for any damages awarded in the underlying action. The USCA affirmed. Noonan, Thompson (author), and Rymer, Circuit Judges. R. Laird of Auburn, CA, for the plaintiff-appellant; AUSA K. Capetan of Fresno, CA, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/) 9) ERISA: Cleghorn v. Blue Shield of California, 03-55528 (9th Cir. May 23, 2005). At issue here is the degree to which ERISA pre-empts state law. Cleghorn is a participant in his employer's ERISA health plan offered by Blue Shield of California. On one occasion he sought and received emergency medical services and Blue Shield denied reimbursement. Cleghorn sued Blue Shield in California state court, asserting state-law causes of action and alleging that Blue Shield had violated an emergency care provision in Sec. 1371.4(c) of the California Health and Safety Code. Blue Shield removed the case to federal court and the district court held that Cleghorn's claims were preempted by ERISA. When Cleghorn declined to amend his compliant to allege an ERISA claim, the district court dismissed his complaint for failure to state a claim. The USCA affirmed the district court's dismissal of Cleghorn's complaint. Pregerson, Canby (author), and Tallman, Circuit Judges. S. Arkin of Newport Beach, CA, for the plaintiff-appellant; G. Pimstone of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 10) ERISA: Gatti v. Reliance Standard Life Insurance Co., 03-15562 (9th Cir. May 31, 2005). Reliance Standard Life Insurance Company appealed the district court's summary judgment in favor of Gatti in her ERISA action for reinstatement of long term disability benefits. The district court reviewed Reliance's decision to terminate Gatti's benefits de novo, because it interpreted an ERISA regulation as placing a temporal limitation on the administrator's discretion and because it found Reliance to have a serious conflict of interest. The district court erred in applying de novo review. The USCA reversed and remanded. Concurring in part and in the judgment, Judge Rymer agreed that the district court's decision had to be reversed because of the intervening reversal of the "treating physician rule" in Black & Decker Disability Plan v. Nord, 538 US 822 (2003). However, she would not go further pending the Supreme Court's decision whether to grant certiorari in Jebian v. Hewlett-Packard, 349 F.3d 1098 (9th Cir. 2003). Rymer (concurring), Tallman (author), and Bea, Circuit Judges. J. Bachrach of Philadelphia, Penn, for the appellant; B. Kirschner of Tucson, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 11) CIVIL SERVICE REFORM ACT: Mahtesian v. Lee, 04-15093 (9th Cir. May 10, 2005). Mahtesian appealed the district court's order of November 14, 2003 dismissing for lack of subject matter jurisdiction his complaint against Benny Lee and Helen Wong. The question presented here was whether the alleged wrongful actions of Lee and Wong fell within the ambit of the Civil Service Reform Act ("CSRA"). Holding that the alleged tortious conduct fell within the CSRA's confines, the USCA affirmed. Noonan (author), Thompson, and Rymer, Circuit Judge. B. Rizzo of Redwood City, CA, for the plaintiff-appellant; C. Coleman of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 12) LABOR ARBITRATION: Ingle v. Circuit City, 04-55927 (9th Cir. May 18, 2005). At issue here is Circuit City's renewed petition to compel arbitration, in which it again asked the district court to compel former employee Ingle to arbitrate her employment-related claims. Ingle v. Circuit City Stores, 328 F.3d 1165 (9th Cir. 2003) ("Ingle I"), held that Circuit City's arbitration agreement with Ingle, which required her to arbitrate any employment-related claims as a condition of employment, was procedurally and substantially unconscionable under California contract law, and thus unenforceable; the USCA thus affirmed the district court's denial of Circuit City's motion to compel arbitration of Ingle's state and federal employment discrimination and harassment claims. The Supreme Court denied Circuit City's petition for a writ of certiorari. Less than a month after the parties returned to the district court to litigate Ingle's discrimination and harassment claims, Circuit City filed a renewed petition to compel arbitration. In that petition, Circuit City argued that the ruling of EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742 (9th Cir. 2003) (en banc), implicitly undermined the holding of Ingle I and thus that the district court did not need to comply with Ingle I and could compel Ingle to arbitrate her discrimination and harassment claims agianst Circuit City. The district court disagreed and denied Circuit City's renewed petition to compel arbitration. The USCA affirmed, noting that Circuit City's claim that Luce Forward somehow overruled or undermined Ingle I was not persuasive. Pregerson (author), Thompson, and Wardlaw, Circuit Judge. R. Berry of Sacramento, CA, for the defendant-appellant; M. Crosby of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 13) LABOR LAW: Gieg v. DRR, Inc., 03-35619 (9th Cir. May 18, 2005). In these three consolidated appeals arising under the Fair Labor Standards Act ("FLSA"), the principal question was whether finance and insurance managers of retail automobile dealerships, who are compensated almost exclusively by commission, are entitled to overtime pay for hours worked beyond the standard 40-hour work-week pursuant to Sec. 7(a) of the FLSA, 29 USC Sec. 207(a). Section 207(a) provides that, with certain exceptions, employers in inter-state commerce must pay employees overtime of at least one and one-half times their regular rate of pay for any time worked in excess of 40 hours a week. Section 207(i), however, exempts employers from paying overtime to "any employee of a retail or service establishment" if the employee's regular rate of pay is more than one and one-half times the statutorily prescribed minimum wage and if "more than half his compensation for a representative period (not less than one month) represents commissions on goods or services." The three appeals-two from the District Court of Oregon, and one from the District Court of Washington-raise largely identically issues and arguments, and hence were consolidated for oral arguments. In each case, the District Court, while recognizing that an automobile dealership is a "retail or service establishment," concluded that a finance and insurance manager, who handles financing and insurance aspects of the sale of an automobile, is not engaged in the dealership's retail activity and hence is not an employee for whom the employer can claim exempt status. Accordingly, in all three instances, the District Court granted summary judgment for the plaintiff employees awarding overtime payment. Each dealership has appealed. The USCA affirmed. Trott and Kleinfeld, Circuit Judges, and Pollak (author), District Judge. T. Volpert of Portland, OR, for the defendants-appellants; J. Koch of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 14) TREE-SITTERS: USA v. Wyatt, 04-30316 (9th Cir. May 26,
2005). The defendants appealed their convictions for 1) using, or 15) NATIONAL MARINE FISHERIES: Yakutat, Inc. v. Gutierrez,
03-35400 (9th Cir. May 18, 2005). The National Marine Fisheries Service ("NMFS")
is charged with implementing a licensing program to prevent over-fishing of Pacific
cod in the Bering Sea and Aleutian Islands ("BSAI") ground-fish fishery.
The NMFS decided to limit the number of boats fishing in the BSAI fishery by granting 16) PATROL TOWING: Tillison v. City of San Diego, 03-55939 (9th Cir. May 9, 2005). A towing company challenged California Vehicle Code Sec. 22658(l)(1). This statute provides that when a towing company toes a vehicle from private property without the vehicle owner's permission, the company must obtain written authorization from either the property owner or the property owner's agent. It also requires that the property owner or agent be present for the toe. The district court, in accord with Tocher v. City of Santa Ana, 219 F.3d 1040 (9th Cir. 2000), enjoined enforcement of Sec. 22658(1)(1) as preempted by the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"). The district court held that the provision is outside the statutory exception from preemption for state laws directed at safety concerns, but cause the provision is aimed instead at consumer protection. Recent developments, including the Supreme Court's providing a broader interpretation of the safety exception to the FAAAA and the California legislature's amending Sec. 22658, persuaded the USCA to reconsider Tocher. The USCA thus vacated the injunction entered by the district court and held that Sec. 22658(1)(1) is not preempted by federal law. Schroeder (author), Gould, and Clifton, Circuit Judges. R. Ostrow of San Diego, CA, for the defendants-appellants; M. McGovern of Knoxville, TN, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/) 17) TRUTH IN LENDING ACT: Virachack v. University Ford, 03-55852 (9th Cir. May 20, 2005). The Virachacks appealed the district court's grant of summary judgment to University Ford, a California corporation doing business as Bob Baker Ford, in their action under the Truth In Lending Act. Holding that Bob Baker Ford did not fail to disclose the total finance charge, the USCA affirmed the judg-ment of the district court. Dissenting, Judge Fletcher thought that, contrary to the majority's ruling, a discount or rebate offered to purchasers paying with cash that is not extended to purchasers using credit is a finance charge. She thought that the failure of Bob Baker Ford to disclose the rebate violates the TILA. B. Fletcher (dissenting), Noonan (author), and Paez, Circuit Judges. F. Fox of San Diego, CA, for the plaintiffs-appellants; J. Chilton of San Francisco, for the defendant-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/) 18) FEDERAL ADVISORY COMMITTEE ACT: Manshardt v. Federal Judicial Qualifications Committee, 03-55683 (9th Cir. May 12, 2005). Manshardt appealed the dismissal of his complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a justiciable claim. In his complaint Manshardt alleged that the Federal Judicial Qualifications Committee, a committee formed by private citizen Gerald Parsky and U.S. Senators Feinstein and Boxer to recommend nominees to the President to fill federal district court and U.S. Attorney vacancies in California, had been meeting in private and without a charter in violation of the Federal Advisory Committee Act ("FACA"). The USCA concluded that the Committee is not an advisory committee falling within the scope of FACA, and thus affirmed the district court's dismissal of Manshardt's complaint. Noonan, Thompson (author), and Hawkins, Circuit Judges. P. Manshardt pro se; J. Klapach of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 19) ENERGY LAW: Industrial Customers of Northwest Utilities v. Bonneville
Power Administration, 03-71626 (9th Cir. May 24, 2005). This consolidated
appeal presented the question of whether the Bonneville Power Administration ("BPA")
determination to commence a rate hearing to decide whether the BPA should impose
Safety-Net Recovery Adjustment Charges is a final agency decision subject to judicial
review. The USCA concluded that it is not and dismissed the petitions for review
for lack of jurisdiction. D.W. Nelson, Thomas (author), and Ezra, Circuit
Judges. M. Early, M. Davison, D. Peterson, and R. Kindley of Portland, OR, for
the petitioners; R. Roach of Portland, OR, for the respondent BPA; M. Wood of
Portland, OR, for the respondent Pacificorp.(Download the full
text of this decision at www.cc9.uscourts.gov/)
21) CONSTITUTIONAL LAW: Gonzales v. Free Speech Coalition, 04-16172 (9th Cir. May 23, 2005). The government appeals the district court's award of attorneys' fees to the Free Speech Coalition under the Equal Access to Justice Act ("EAJA") because the court held the government was not "substantially justified" in defending the Child Pornography Prevention Act ("CPPA"). The USCA reversed. Multiple objective indicia support the reasonableness of the government's position, including the novelty of the issue involved and the government's string of successes in defending the CPPA against constitutional attack. The USCA held that reasonable minds could differ over the CPPA's constitutionality, especially where four sister circuits, the district court below, one member of the Ninth Circuit panel, and three Ninth Circuit Judges dissenting from the denial of rehearing en banc all determined the CPPA to be constitutional before the Supreme Court ultimately struck two sections as unconstitutional. Lay, B. Fletcher, and Hawkins (author), Circuit Judges. C. Scarborough of Washington, DC, for the defendants-appellees; H. Sirkin of Cincinnati, OH, for the plaintiffs-appellants. (Download the full text of this decision at www.cc9.uscourts.gov/) 22) CIVIL RIGHTS: Blanford v. Sacramento County, 03-17146 (9th Cir. May 6, 2005). Blanford appealed the summary judgment in favor of the defendant law enforcement officers in his 42 USC Sec. 1983 action alleging claims of excessive force and unreasonable seizure in violation of the Fourth Amendment. Blanford was shot and severely injured after he ignored warnings and commands to stop and drop an edged sword that he was carrying and instead tried to enter a house in a residential area. Because Deputies Anderson and Hengel did not exceed constitutional limits on the use of deadly force when they shot Blanford and because, even if their actions did violate Blanford's constitutional rights, a reasonable law enforcement officers in their position at the time would not have known that shooting Blanford was a violation of clearly established law, the deputies are entitled to qualified immunity. The USCA thus affirmed. Noonan (dissenting), Thompson, and Rymer (author), Circuit Judges. S. Katz of Sacramento, CA, for the plaintiff-appellant; T. Cassidy of Sacramento, CA, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/) 23) IMMIGRATION: Zhang v. Gonzales, 01-71623 (9th Cir. May
26, 2005). Zhang, a Chinese citizen, arrived in the U.S. seeking 24) IMMIGRATION: Sagaydak v. Gonzales, 02-74299 (9th Cir. May 4, 2005). In this case the lead petitioner argued that his untimely asylum application was due to extraordinary circumstances, but both the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") failed to address the issue. The USCA held that when the Attorney General fails to make a determination, the USCA has jurisdiction to grant the petition and remand the case so that the agency charged with making the determination can properly do so. The petitioners also argued that they were targeted by their alleged persecutors on account of a protected ground. The IJ disagreed, and the BIA summarily affirmed. The USCA found that substantial evidence did not support the IJ's conclusion that the petitioners were targeted purely for personal punishment or revenge, rather than on the basis of Sagaydak's implied or actual political opinion. It remanded for the BIA to determine whether the petitioners have satisfied the remaining eligibility requirements for asylum and withholding of removal. Dissenting in part, Judge Tashima thought that the majority's reading of 8 USC Sec. 1158(a)(3) impermissibly narrows the plain meaning of "any determination" to exclude some determinations. He thus dissented from the decisions to assume jurisdiction and to review the petitioner's claim that his asylum application is not time-barred Hug, Tashima (dissenting in part), and Paez (author), Circuit Judges. T. Youngjohn of Federal Way, WA, for the petitioner; L. McKay of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/) 25) IMMIGRATION: Oh v. Gonzales, 03-73131 (9th Cir. May 2, 2005). Oh, a native and citizen of South Korea, became a lawful permanent resident when she married a U.S. citizen in 1985. She was divorced in 1989. In 2001, after a six-week stay in Korea, she tried to re-enter the United States. She was detained by immigration officials and admitted she had misdemeanor convictions for prostitution and possession of a controlled substance. She was also arrested on an outstanding warrant for prostitution. The INS charged her with being removable and an Immigration Judge ("IJ") found her removable on January 10, 2003. That decision triggered a 30-day deadline for her to file a notice of appeal with the Board of Immigration Appeals ("BIA"). On February 4, Oh's counsel mailed the notice of appeal along with all paperwork and fees by overnight mail to the BIA for delivery by noon, February 5. The carrier, Airborne Express, failed to deliver the package on time. The BIA did not receive it until February 24, 2003. The BIA rejected the appeal as untimely. The BIA ruled that the "date stamp" placed on filings when they are received by the BIA "is controlling in the computation of timely filing," and that "the Board does not have the authority to extend the time in which to file a Notice of Appeal. See 8 CFR Sec. 1003.38(b)." Finally, the BIA stated without elaboration that Oh's case was not appropriate for the exercise of the BIA power in exceptional circumstances sua sponte to reconsider a decision. Oh appealed. Noting that in using an overnight delivery service she was following the very procedure the BIA's own Practice Manual recommended, Oh maintained that the BIA abused its discretion and denied her due process in refusing to consider her reasonable excuse. Because the BIA denied Oh's motion to reconsider on the erroneous assumption that it had no authority to extend the time for appeal, the USCA granted Oh's petition and remanded for the BIA to determine whether her circumstances justify excusing her late filing. D.W. Nelson, W. Fletcher, and Fisher (author), Circuit Judges. A. Park of Santa Clara, CA, for the petitioner; M. Candaux of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/) 26) IMMIGRATION: Ochoa v. Gonzales, 03-72322 (9th Cir. May 16, 2005). Ochoa and his wife are natives and citizens of Colombia. They petitioned for review of a BIA order denying asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Ochoa owned a women's clothing store in Colombia. He borrowed $20,000 from a private lender at 6% interest monthly, 72% interest annually. In addition to lending money, the lender sent retailers to Ochoa. Those retailers would buy clothing from Ochoa on credit and then resell the clothes. The retailers would post-date checks for the clothes and 30 days later Ochoa would cash the checks. Several of the retailers defaulted on their checks. Ochoa never recovered the money. Because the retailers defaulted on their credit, Ochoa could not repay his loan. A loan collector goon then visited Ochoa, followed soon thereafter by a man who offered to help Ochoa repay the loan via a narco-trafficking money laundering scheme. Because of threats to their lives in connection with the repayment of the loan, the petitioners came to the United States. The IJ found the petitioners credible but denied their application for asylum and withholding because he found that they did not prove that their fear of persecution was "on account of" an enumerated basis. Instead, he found that the petitioners were be subject to torture if they returned to Colombia and granted them withholding under CAT. The BIA affirmed the IJ's asylum and withholding decision because it found the persecution the petitioners fear is not on the basis of a protected ground. The BIA reversed the IJ's decision that granted relief under CAT, finding there was not sufficient evidence to show the government's acquiescence in the feared torture. The USCA affirmed in part and reversed in part. There was no record evidence that the narco-traffickers' targeting Ochoa was, at least in part, on the basis of an imputed political opinion. The petitioners' thus failed to prove that their feared persecution was "on account of" a protected ground. However, on the CAT issue the BIA required too much from the petitioners. For relief under CAT a petitioner need only prove that the government is aware of a third party's tortuous activity and does nothing to intervene to prevent it. Lay, B. Fletcher (author), and Hawkins, Circuit Judges. S. Shaiken of San Francisco, CA, for the petitioners; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 27) IMMIGRATION: Valencia v. Gonzales, 03-72028 (9th Cir. May 12, 2005). Valencia, a native and citizen of Peru, petitioned for review of a Board of Immigration Appeals order summarily affirming an 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 Cal. 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 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 denied in part and dismissed in part the petition for review. USA v. Granbois, 376 F.3d 993 (9th Cir. 2004), held that a violation under 18 USC Sec. 2244(a)(3) is categorically a crime of violence under Sentencing Guideline Sec. 4B1.2(a) because it involves the sexual abuse of a minor. The USCA found Granbois controlling in the instant case. Concurring, Judge Bea wrote separately to note his belief that Granbois had been incorrectly decided. O'Scannlain, Cowen, and Bea (author and concurring), Circuit Judges. J. Bennett of El Cerrito, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 28) IMMIGRATION: Lopez-Umanzor v. Gonzales, 03-72014 (9th Cir. May 6, 2005). Lopez-Umanzor petitioned for review of a BIA decision finding her ineligible for cancellation of removal and denying her request for voluntary departure. An Immigration Judge had found her ineligible for relief as there was reason to believe she had been involved in drug trafficking, 8 USC Sec. 1182(a)(2)(C). The IJ disbelieved her testimony to the contrary. On appeal, the BIA rejected Lopez-Umanzor's due process arguments and affirmed the IJ's adverse credibility determination. The USCA granted the petition for review and remanded for a new hearing because the IJ refused to allow Lopez Umanzor to present relevant expert testimony that bore on her credibility, relying instead on his own stereotypical assumptions about domestic violence. Schroeder, Goodwin, and Graber (author), Circuit Judges. M. Kimmel of the Catholic Social Services for the petitioner; J. Grimes of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 29) IMMIGRATION: Lara-Cazares v. Gonzales, 03-71568 (9th Cir. May 23, 2005). Larz-Cazares is a permanent U.S. resident ordered removed by an IJ on the ground that he had been convicted of a "crime of violence" within the meaning of 18 USC Sec. 16. His crime, as defined by the State of California, was gross vehicular manslaughter while intoxicated. The BIA affirmed the removal order, and Lara-Cazares petitioned for review. The USCA granted his petition and reversed, concluding that, under the principles announced in Leocal v. Ashcroft, 125 S.Ct. 377 (2004), the crime of which Lara-Cazares was convicted does not qualify as a "crime of violence." Hence, he is not removable by reason of having committed an aggravated felony. Pregerson, Canby (author), and Beezer, Circuit Judges. J. Montag of San Diego, CA, for the petitioner; J. Paisner of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 30) IMMIGRATION: Oropeza-Wong v. Gonzales, 03-71446 (9th Cir. May 10, 2005). Oropeza-Wong, a Mexican national, petitioned for review of a BIA decision which 1) denied him a statutory waiver of the joint filing requirement for removal of the conditional basis of his permanent resident status on the ground that the entered into his marriage to a U.S. citizen in bad faith, 2) ordered him removed on the basis of marriage fraud, and 3) denied his request for voluntary departure. Oropeza-Wong maintained that he is entitled to have the conditional basis of his permanent resident status lifted because, although the marriage was dissolved within two years, he entered into it in good faith. He offered no separate argument with respect to the order of removal, but asserted that it was an abuse of discretion to deny him voluntary departure. The government maintained that the USCA lacked jurisdiction to entertain Oropeza-Wong's claims. The USCA concluded that while it lacked jurisdiction over Oropeza-Wong's voluntary departure claim, it had jurisdiction over his challenge to the order of removal and to his underlying claim that, because his marriage was entered into in good faith, he is entitled to a statutory waiver that would result in his receiving permanent resident status. However, the USCA further concluded that the BIA's rejection of that underlying claim was supported by substantial evidence. The USCA thus dismissed the petition in part and deny it in part. D.W. Nelson (author), Reinhardt, and Thomas, Circuit Judges. A. Ojeda-Casimiro of Seattle, WA, for the petitioner; S. Houser of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 31) IMMIGRATION: Guzman-Andrade v. Gonzales, 03-70765 (9th Cir. May 19, 2005). Guzman-Andrade petitioned for review of a BIA final removal order. He sought review of a decision of the Legalization Appeals Unit ("LAU") affirming the INS's denial of his applica-tion for adjustment of status to that of a permanent resident under a legalization program established by the Immigration Reform and Control Act of 1986 ("IRCA), 8 USC Sec. 1255a. This appeal raised an issue of first impression for this Circuit: do aliens denied temporary or permanent resident status by the INS under the Sec. 1255a legalization program retain the right to judicial review of that denial after the 1996 amendments to IRCA by Sec. 308(g)(2)(B) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)? The USCA concluded that it continues to have jurisdiction, when reviewing the final removal order of an alien who would have been placed in deportation proceedings prior to passage of IIRIRA, to review the denial of a Sec. 1255a legalization application. In addition, the USCA concluded that the LAU abused its discretion when it affirmed the denial of Guzman-Andrade's application for permanent resident status. The USCA thus granted the petition for review. Concurring, Judge Berzon agreed with every sentence of the majority opinion except for one. The statutory structure is peculiar, as it allows judicial review of the LAU legalization decision only on petition for review of a BIA decision. As this is such a petition, Judge Berzon had a hard time seeing how the USCA can "remand" to the LAU, as the case did not come to the USCA from the LAU. Nor can the USCA remand to the BIA with instructions to remand to the LAU, for the former has no authority over the latter. Judge Berzon would simply decide that Guzman-Andrade's legalization application was erroneously denied, and that further proceedings before the LAU are therefore warranted. B. Fletcher, Leavy (author), and Berzon (concurring), Circuit Judges. R. Green of San Francisco, CA, for the petitioner; A. Nicastro of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/) 32) GRAND JURY INSTRUCTIONS: USA v. Navarro-Vargas, 02-50663 (9th Cir. May 23, 2005). At issue here was whether the model grand jury instruction recommended by the Judicial Conference of the United States violates the Fifth Amendment by undermining the independence of the grand jury. The appellants maintained that their indictments should be dismissed because in using the model instruction the district court misinstructed the grand jury in its constitutional role because the model instruction do not contain a nullification instruction. The USCA determined that the instruction does not violate the Constitution. In reaching this result, it observed that the weight of U.S. history favored instructing the grand jury "to follow the law without judging its wisdom," adding that "the prospect of a grand jury here and there deciding for itself that a law lacked 'wisdom' is an invitation to lawlessness and something less than the equal protection of the laws." The USCA thus affirmed the district courts' denial of the appellants' motions to dismiss their indictments. Judge Hawkins, joined by Judges Pregerson, Wardlaw, Fletcher, and Berzon, dissented. He characterized the majority's opinion as holding that a constitutionally created institution, designed precisely to filter prosecutorial desire through citizen judgment, must give way to the unbridled exercise of prosecutorial discretion. Judge Hawkins thought that the majority reached this conclusion by relying principally upon British history and the use of the grand jury in England prior to King George III. However, he noted that the presence of the grand jury in our constitutional system is a uniquely American institution, born out of concern for unchecked government power and the experience of American colonists that led them to separate themselves from the very history the majority em-braces. Judge Hawkins would reverse the convictions, dismiss the indictments, and allow the government to represent evidence to a grand jury properly instructed as to its independent role. Schroeder, Pregerson, Hawkins (dissenting), Silverman, Wardlaw, W. Fletcher, Berzon, Rawlinson, Clifton, Bybee (author), and Bea, Circuit Judges. M. Winter and S. Hubachek of San Diego, CA, for the defendants-appellants; P. O'Toole of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 33) WARRANTLESS ENTRY: USA v. Martinez, 04-30098 (9th Cir. May 16, 2005). At issue on this appeal was whether a domestic disturbance constitutes an emergency sufficient to justify a warrantless entry into a home. Under the circumstances presented by this case, the USCA concluded that it did, and affirmed the district court's denial of a suppression motion. The officer entered the site of the domestic disturbance and, in the process of ascertaining what had occurred, observed weapons in plain view. The officer was entitled to make inquires about the weapons under the New York v. Quarles, 467 US 649 (1984), public safety exception to Miranda. The District court correctly denied the motion to suppress the few statements made by the defendant at the scene prior to receiving a Miranda warning. Hawkins, Thomas (author), and McKeown, Circuit Judges. L. Griffard of Boise, ID, for the appellant; AUSA K. Maloney of Boise, ID, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/) 34) WARRANTLESS ARREST: USA v. Quaempts, 03-30471 (9th Cir. May 31, 2005). The government appealed the district court's order granting the defendant's motion to suppress statements he made immediately following his arrest for sexual assault. The district court held that the police required a warrant before arresting Quaempts in his home. The USCA affirmed. The government maintained that when Quaempts opened the door of his trailer home to the police, he waived any expectation of privacy in his home. It relied on USA v. Vaneaton, 49 F.3d 1423 (9th Cir. 1995), which held that an individual who opens the door to police officers, and stands on the threshold of his home, may be arrested without a warrant to enter the home, because the threshold of the home is a public place. However, Quaempts' trailer home was so small that he could open the front door while lying in his bed, as he was when the police knocked. The USCA concluded that by reaching over and opening the door, he did not waive the expectation of privacy expressly guaranteed by the Fourth Amendment to all persons to be secure in their houses. At issue was the admissibility of Quaempts' statements, made after his warrantless arrest while he was still inside his trailer. Specifically, the issue was whether by knowingly opening the door to the police, while remaining in bed, he waived any expectation of privacy in his house. The USCA held that to extend Vaneaton beyond the threshold into the interior of the home would do violence to the principles laid down in Payton that establish a zone of privacy inside the physical dimensions of one's home. Payton v. New York, 445 US 573 (1980). It does not matter that the officers did not actually enter the house to make the arrest. Schroeder (author), Tashima, and Bybee, Circuit Judges. AUSA R. Ellis of Yakima, WA, for the plaintiff-appellant; R. Pennell of Yakima, WA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 35) THREATS / FIRST AMENDMENT: USA v. Cassel, 03-10683 (9th Cir. May 24, 2005). At issue here was whether the First Amendment permits the government to punish a threat without proving that it was made with the intent to threaten the victim. Cassel was charged and convicted on two counts of interfering with a federal land sale under 18 USC Sec. 1860 and one count of witness tampering under 18 USC Sec. 1512(c) in connection with comments he made to prospective purchasers of land adjacent to his in the Mojave Desert in California. He maintained that Sec. 1860 is facially unconstitutional, both because it punishes constitutionally protected speech and because it is unconstitutionally vague. He also maintained that the trial court erroneously instructed the jury and improperly denied his request for new counsel. The USCA held that, although Cassel's facial challenge to Sec. 1860 failed, his conviction was based on jury instructions that inadequately described the elements of the crime. The USCA thus vacated the district court's judgment and remanded for a new trial. O'Scannlain (author), Cowen, and Bea, Circuit Judges. J. Levie of Fresno, CA, for the appellant; AUSA J. Conklin of Fresno, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 36) FIREARM VIOLATIONS: USA v. Nobriga, 04-10169 (9th
Cir. May 20, 2005). Nobriga appealed the district court's denial of his motion
to dismiss the indictment charging him with violating 18 USC Sec. 922(g)(9) by
possessing a firearm after having been previously convicted of a misdemeanor crime
of domestic violence, as defined by 18 USC Sec. 921(a)(33)(A)(ii). Nobriga also
maintained that his sentence violated the Sixth Amendment in light of USA v. Booker,
125 S.Ct. 738 (2005). The USCA reversed the denial of Nobriga's motion to dismiss
and thus did not reach Nobriga's appeal of his sentence. Because the relationship
between Nobriga and the victim of his Hawaii Abuse of a Family or Household Member
conviction (she was a former girlfriend) did not fall within any of the four categories
prescribed by Sec. 921(a)(33)(A)(ii), the government failed to establish that
Nobriga had previously been convicted of a "misdemeanor crime of domestic
violence." His motion should have been granted. Wardlaw and Berzon, Circuit
Judges, and Fitzgerald, District Judge. Per Curiam. D. Dotson of Kapolei, HI,
for the defendant-appellant; AUSA W Porter of Honolulu, HI, for the plaintiff-appellee.
(Download the full text of this decision at www.cc9.uscourts.gov/)
38) FIREARM VIOLATIONS / PROSECUTORIAL MISCONDUCT: USA v. Weatherspoon, 03-10551 (9th Cir. May 6, 2005). Weatherspoon appealed his conviction on one count of felon-in-possession of a firearm. Finding that prosecutorial misconduct during the closing arguments affected the jury's fair consideration of the evidence in the record, the USCA remanded for a new trial. Prosecutorial statements that vouch for the credibility of witnesses and that encourage the jury to act based on considerations other than the particularized facts of the case pose a danger to the defendant's right to a fair trial. Because that danger was not effectively mitigated by curative instructions, the prosecutorial misconduct here "affected the jury's ability to consider the totality of the evidence fairly. Dissenting in part, Judge Trott thought the majority had extended the concept of vouching far beyond its core due process concerns and bluntly misinterpreted it in many cases to cover arguments directed only to the impact and meaning of the evidence. The vouching analysis in the instant case, he said, proved his point. Trott (dissenting in part), and McKeown, Circuit Judges, and Shadur (author), Circuit Judges. AFPD J. Carr of Las Vegas, NV, for the appellant; AUSA D. La Hood of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 39) DRUG OFFENSES / EVIDENCE: USA v. Houston, 04-30216 (9th Cir. May 9, 2005). Houston was convicted of distributing methadone to Trina Bradford which resulted in Bradford's death. Houston challenged the sufficient of the evidence supporting her convic-tion, and particularly protested being held responsible for a death she claims was an unforeseeable suicide. The USCA concluded that the plane language of the statute establishes that although cause-in-fact must be proven, foreseeability is not an element of the crime, and that sufficient evidence supported the jury's verdict as to the remaining elements. The USCA thus had jurisdiction over this federal crime and affirmed. Gould, Tallman (author), and Rawlinson, Circuit Judges. AFD D. Ness of Great Falls, MT, for the defendant-appellant; AUSA J. Thaggard of Great Falls, MT, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 40) SENTENCING / JURISDICTION: USA v. Arevalo, 02-50289 (9th
Cir. May 26, 2005). Arevalo again attempted to appeal his sentence and conviction
on two counts of conspiracy to distribute a controlled substance, 21 USC Sec.
846, and one count of RICO 41) SENTENCING: USA v. Cardenas, 03-10009 (9th Cir. May 4,
2005). Cardenas appealed the mandatory minimum sentence he 42) SENTENCING: USA v. Kimbrew, 04-10193 (9th Cir. May 11, 2005). Kimbrew appealed his conviction and sentence for conspiracy to commit money laundering. In an issue of first impression for the Ninth Circuit, the USCA had to decide whether the sentencing enhancement for being in the business of receiving and selling stolen property can apply to a defendant who sells only property that he himself has obtained by fraud. The USCA agreed with the overwhelming majority of circuits that it cannot. Kimbrew's conviction did not violate the Double Jeopardy Clause because the two conspiracy counts each required proof of a fact the other did not. The USCA thus affirmed Kimbrew's conviction, but vacated his sentence and remanded for resentencing. The district court erred by enhancing Kimbrew's sentence for "receiving and selling stolen property" because Kimbrew was not dealing in property stolen by others. Lay, B. Fletcher, and Hawkins (author), Circuit Judges. M. Severo of Los Angeles, CA, for the defendant-appellant; AUSA J. Nedrow of San Jose, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 43) INEFFECTIVE ASSISTANCE: USA v. Kwan, 03-50315 (9th Cir. May 12, 2005). Kwan appealed the district court's dismissal of his petition for writ of error coram nobis. Kwan's petition collaterally attacked his conviction by guilty plea and his sentence on the ground of ineffective assistance of counsel. Finding that Kwan's counsel was constitutionally ineffective in affirmatively misleading him as to the immigration consequences of his conviction, and that Kwan had satisfied all of the requirements for coram nobis relief, the USCA reversed. It remanded to the district court with instructions to grant the writ, vacate Kwan's sentence, and impose a sentence of one day less than one year. B. Fletcher (author), Noonan, and Paez, Circuit Judges. D. Ross of Beverly Hills, CA, for the defendant-appellant; AUSA J. Owens of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 44) HABEAS CORPUS: Cassett v. Stewart, 03-16573 (9th Cir. May 3, 2005). Cassett appealed from the district court's dismissal with prejudice of his petition for a writ of habeas corpus under 28 USC Sec. 2254. On a previous appeal, the USCA remanded to the district court with directions to dismiss the petition because Cassett failed to exhaust his federal due process claim in the Arizona state courts. On remand, the district court dismissed Cassett's habeas petition with prejudice because it concluded that "the Court of Appeals failed to note that Petitioner's claims have been procedurally defaulted in the state courts and are technically exhausted." The district court held in the alternative that even if Cassett's claim is not exhausted, dismissal with prejudice is appropriate under 28 USC Sec. 2254(b)(2) because the district court had determined that the claim was without merit. Accordingly the district court denied Cassett's petition both as procedurally defaulted and on the merits. On a second appeal, Cassett argued that the district court exceeded the scope of the USCA's mandate by reaching the issue of procedural default and dismissing his habeas petition with prejudice. Cassett also argued that even if the district court did not violate the USCA's mandate, his claim was not procedurally defaulted because he never "knowingly, voluntarily, and intelligently" waived his right to raise it. Moreover, Cassett asserted that even if his claim were procedurally defaulted, he had demonstrated cause and prejudice excusing the default. Additionally, Cassett argued that the district court erred by alternatively denying his petition on the merits under 28 USC Sec. 2254(b)(2) because it was not "perfectly clear" that he failed to raise a colorable federal claim. Finally, Cassett maintained that the district court should stay the proceedings and hold his exhausted petition in abeyance while he attempts to exhaust his unexhausted federal due process claim in state court. The USCA reversed a |