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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) TAXATION: Charlotte's Office Boutique, Inc. v. CIR, 04-71325 (9th Cir. Oct. 7, 2005). This case concerns an appeal by Charlotte's Office Boutique from the Tax Court's determination that "royalty" payments to Charlotte Odell, one of the Boutique's two shareholders, were wages and that the appellant was liable for employment taxes on those wages as well as penalties. The appeal also raised a challenge to the Tax Court's jurisdiction, which was first raised before the Tax Court by the Commissioner of Internal Revenue and was asserted by both parties on appeal. Following trial in the Tax Court, the Commissioner filed a motion to dismiss, alleging that the Tax Court lacked jurisdiction over three of the four tax years in question. The appellant joined in the motion. The Tax Court, however, denied the motion and rendered judgment in favor of the Commissioner on all the issues framed by the appellant's petition for review. The USCA concluded that the Tax Court properly upheld the Commissioner's determination that the appellant's royalty payments to Odell were wages and upheld the resulting taxes and penalties. The USCA further held, as did the Tax Court, that the Commissioner's admission during the Tax Court proceedings that the appellant treated Odell as an employee for three of the four tax years at issue did not deprive the Tax Court of jurisdiction to review the Commissioners' determination of taxes and penalties for those years. The USCA thus affirmed the Tax Court's judgment. Hug, Paez, and Callahan (author), Circuit Judges. R. Kovacevich of Spokane, WA, for the petitioner; E. O'Connor of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 2) INSURANCE: Reynolds v. Hartford Financial Services, 03-35695 (9th Cir. Oct. 3, 2005). Under the Fair Credit Reporting Act ("FCRA"), insurance companies are required to send adverse action notices to consumers whenever they increase the rates for insurance on the basis of information contained in consumer credit reports. As issue here was does this adverse action notice requirement apply to the rate first charged in an initial policy of insurance? The USCA held that it did. The Act requires that an insurer send the consumer an adverse action notice whenever a higher rate is charged because of credit information it obtains, even if that rate is contained in an initial policy, extension, or renewal of a policy and regardless of whether the insurer had previously charged the consumer a lower rate. Judge Bybee joined the majority except to the extent it held that the defendant insurance companies willfully violated the FCRA. Reinhardt (author), Berzon, and Bybee (dissenting in part), Circuit Judges. S. Larson of Portland, OR, for the appellants; C. Van Gundy of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 3) BANKRUPTCY: Beck v. Pace Intl. Union, 03-15303
(9th Cir. Oct. 24, 2005). In the course of Chapter 11 liquidation proceedings,
debtors Crown Vantage, Inc. and Crown Paper Company (collectively "Crown")
decided to terminate Crown's pension plans through the purchase of an annuity,
rather than by merging the plans into a multi-employer plan sponsored by PACE
International Union. Plan participants and PACE filed an adversary action against
Crown, alleging that Crown's directors breached their fiduciary duties under ERISA
by failing to consider adequately the proposed merger. The bankruptcy court agreed
and issued a preliminary injunction ordering that Crown maintain the plan's residual
assets in an interest-bearing account pending a final decision on the allocation
of the assets. Pursuant to the bankruptcy court's order the parties submitted
a joint plan for the distribution of the residual assets for the benefits of the
plan participants and stipulated that the preliminary injunction ruling could
be treated as a final ruling on the merit under Fed. R. of Civ. Proc. 65(a)(2).
The bankruptcy court approved the plan. Crown argued that it did not breach its
fiduciary duties to plan participants and beneficiaries because merger into a
multi-employer plan is an impermissible means of terminating a pension plan under
ERISA, its implementing regulations, and the terms of the pension plan. PACE cross-appealed
the district court's determination that it lacked standing to pursue an appeal.
The USCA held that under ERISA merger into a multi-employer plan is not a prohibited
means of terminating a pension plan, and that the bankruptcy court did not err
in concluding that Crown beached it fiduciary duties by failing to consider thoroughly
PACE's proposal and discharge its duties "solely in the interest of the participants
and beneficiaries." With respect to PACE's cross-appeal, the USCA vacated
the district court's judgment on that issue with directions to remand to the bankruptcy
court for further proceedings. [See Memo decision #2 below.] Reinhardt,
Paez (author), and Berzon, Circuit Judges. S. Kroft of Los Angeles, CA,
for the appellant; J. Plotz of Oakland, CA, for appellees. (Download
the full text of this decision at www.cc9.uscourts.gov/)
5) BANKRUPTCY: In re Pluma, 04-55107 (9th Cir. Oct. 31, 2005). Without discussion, the USCA affirmed the judgment of the bank-ruptcy court in this case for the reasons stated by the bankruptcy court. It remended for further proceedings. Tashima and Fisher, Circuit Judges, and Shadur, District Judge. B. Mahoney of San Diego, CA, for the appellant; T. Barry of San Diego, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 6) ENVIRONMENTAL LAW: Pacific Coast Federation of Fishermen's Associations v. U.S. Bureau of Reclamation, 03-16718 (9th Cir. Oct. 18, 2005). Eight environmental and fisheries organizations sued the Bureau of Reclamation and the National Marine Fisheries Service ("NMFS") for injunctive and declaratory relief, alleging violation of the Endangered Species Act ("ESA"). The suit concerned the government's efforts to operate an irrigation project in accordance with its responsibilities under the ESA to protect the threatened Southern Oregon / Northern California Coast coho salmon and its habitat. On appeal, the Pacific Coast Federation of Fishermen's Associations and the other plaintiffs maintained that the government's actions were arbitrary and capricious in violation of the ESA. They argue that the government's plan employed a phased approach but did not analyze how the first two phases, encompassing eight years of a ten year plan, would avoid jeopardy to the coho salmon. The appellees maintained that the plan reflected the agency's best judgment in the face of scientific uncertainty and contained sufficient analysis to support the NMFS's conclusion that its proposed action would avoid jeopardy to the coho. The district court struck down parts of the NMFS's original plan, but upheld the eight years of short-term measures that were the sole issue on his appeal. The USCA concluded that the short-term measures were arbitrary and capricious, and remanded to the district court for the issuance of injunctive relief. D.W. Nelson (author), W. Fletcher, and Fisher, Circuit Judges. K. Boyles of Seattle, WA, for the appellant; J. Bryson of Washington, DC, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 7) ENVIRONMENTAL LAW: The Ecology Center v. Castaneda, 04-35936 (9th Cir. Oct. 19, 2005). The Ecology Center and the Lands Council (collectively "Ecology Center") appealed from an order denying their motion for summary judgment on their National Environ-mental Policy Act and National Forest Management Act claims. They also sought reversal of an order granting the appellees/defendants' motion to dismiss, and their Rule 60(b)(5) motion to dissolve the injunction the district court previously issued. The Ecology Center maintained that the district court erred in denying the plaintiffs' motion for summary judgment and granting the defendants' motions because Sec. 407 of the Flathead and Kootenai National Forest Rehabilitation Act, on which the district court relied, violates the separation of powers doctrine. The USCA affirmed upon concluding that Sec. 407 of the Flathead and Kootenai National Forest Rehabilitation Act does not violate the separation of powers doctrine. Schroeder, Alarcon (author), and Kleinfeld, Circuit Judges. T. Woodbury of Missoula, MT, for the plaintiffs-appellants; M. Haag of Washington, DC, for the defendants-appellees; J. Weis of Portland, OR, for the defendants-intervenors-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 8) CLEAN WATER ACT: Baccarat Fremont Developers v. U.S. Army Corps of Engineers, 03-16586 (9th Cir. Oct. 14, 2005). Baccarat Fremont Developers ("Baccarat") sought to set aside a determination by the Army Corps of Engineers that under the Clean Water Act ("CWA") it had jurisdiction over 7.66 acres of wetlands located on property owned by Baccarat in Fremont, California. The Corps as-serted jurisdiction based on the fact that the wetlands were adjacent to U.S. waters. Baccarat argued that after the decision in Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers, 531 US 159 (2001), "adjacency" is no longer sufficient to establish the Corps' jurisdiction under the CWA. Baccarat maintained that the Corps failed to show an adequate hydrological or ecological connection between these wetlands and the adjacent U.S. waters. The USCA affirmed the summary judgment for the Corps. D.W. Nelson, W. Fletcher (author), and Fisher, Circuit Judges. R. Moore of San Francisco, CA, for the plaintiff-appellant; T. Kim of Washington, DC, for defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 9) SAFE WATER DRINKING ACT: USA v. Alisal Water Corp.,
02-15907 (9th Cir. Oct. 13, 2005). The appellants and various private water systems
they owned and operated in Monterey County, California, violated various public
health and safety regulations under the federal Safe Drinking Water Act ("SDWA").
They appealed the district court's orders requiring divestiture of all except
the largest water system and imposing financial penalties. The USCA affirmed,
holding that the district court had subject matter jurisdiction over this SDWA
civil enforcement action and did not abuse its discretion or violate the appellants'
due process rights in fashioning the remedy imposed. 10) EDUCATION LAW: Parents Involved in Community Schools v. Seattle School District, No. 1, 01-35450 (9th Cir. Oct. 20, 2005). At issue here was whether the use of an integration tiebreaker in the "open choice," noncompetitive, public high school assignment plan crafted by Seattle School District No. 1 (the "District") violates the federal Equal Protection Clause. Guided by the principles ar-ticulated in Grutter v. Bollinger, 539 US 306 (2003), and Gratz v. Bollinger, 539 US 244 (2003), and the Supreme Court's directive that "context matters when reviewing race-based governmental action under the Equal Protection Clause," the USCA concluded that the District has a compelling interest in securing the educational and social benefits of racial (and ethnic) diversity, and in ameliorating racial isolation or concentration in its high schools by ensuring that its assignments do not simply replicate Seattle's segregated housing patterns. The USCA further held that the District's Plan had been narrowly tailored to meet the District's compelling interests. Concurring, Judge Kozinski wrote separately to state his belief that both the majority and the dissent had attempted to apply exacting standards and that he could not say that either was clearly wrong. He nevertheless found something unreal about both efforts to apply the teachings of prior Supreme Court cases, all decided in very different contexts, to the Plan at issue here. He found neither analysis to be entirely persuasive. Joined by Judges Kleinfeld, Tallman, and Callahan, Judge Bea dissented. He thought that the District was engaged in simple racial balancing forbidden by the Equal Protection Clause. He would instead hold that a School District violates the Equal Protection Clause whenever it excludes a student from a school solely on the basis of race. Schroeder, Pregerson, Kozinski (concurring), Kleinfeld (dissenting), Hawkins, W. Fletcher (concurring), Fisher (author and concurring), Tallman (dissenting), Rawlinson (concurring), Callahan (dissenting), and Bea (dissenting), Circuit Judges. H. Korrell of Seattle, WA, for the plaintiff-counter-defendant-appellant; M. Madden of Seattle, WA, for the defendants-counter-claimants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 11) PROPERTY / EASEMENTS: McFarland v. Norton, 03-35831 (9th Cir. Oct. 11, 2005). At issue here was whether a landowner could prove that he has an easement over a federally-owned road to his property within Glacier National Park in Montana and whether the National Park Service arbitrarily and capriciously denied his request for a special use permit to use the road during the winter time. The USCA found that McFarland brought his action to quiet title well within the 12-statute of limitations. It thus reversed the district court's dismissal of his claim and remanded to the district court for further proceedings consistent with this opinion. McKay, O'Scannlain (author), and Bea, Circuit Judges. A. Roberts of Lakewood, CO, for the appellant; T. Kim of Washington, DC, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 12) PROPERTY / EASEMENTS: Skranak v. Castenada, 04-35053 (9th Cir. Oct. 12, 2005). At issue here was whether the U.S. Forest Service properly denied owners access to their patented mining claims within the Kootenai National Forest in Montana. The USCA held that in refusing to determine whether the owners had easements permitting them access, the Forest Service violated its own regulations. The district court's summary judgment on the APA claim in favor of the Forest Service was inappropriate and had to be reversed. McKay, O'Scannlain (author), and Bea, Circuit Judges. W. Shanahan of Helena, MT, for the appellants; K. Hazard of Washington, DC, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 13) MEDICAID / AMERICANS WITH DISABILITIES ACT: Arc of Washington v. Braddock, 03-35605 (9th Cir. Oct. 14, 2005). At issue here was whether a state violates the Americans with Disabilities Act ("ADA") when it limits the number of people that can participate in a Medicaid waiver program providing disabled persons with alternatives to institutionalization. The USCA held that, in this case, Washington demonstrated that it has a "comprehensive, effectively working plan," and that its commitment to deinstitutionalization is "genuine, comprehensive and reasonable." The State's Home and Community-Based Service waiver program 1) is sizeable, with a cap that has increased substantially over the past two decades; 2) is full; 3) is available to all Medicaid-eligible disabled persons as slots become available, based only on their mental-health needs and positions on the waiting list; 4) has already significantly reduced the size of the state's institutionalized population; and 5) has experienced budget growth in line with, or exceeding, other state agencies. Under such circumstances, forcing the State to apply for an increase in its Medicaid waiver program constitues a fundamental alteration not required by the ADA. Concurring, Judge Fernandez said he continues to believe that the ADA must yield to the specific cap provision discussed in the opinion. For that reason, he incorporated here the opinion in The Arc of Washington State Inc. v. Braddock, 403 F.3d 641 (9th Cir. 2005), which he believes says enough to properly resolve this case without placing a higher burden upon the states than the law requires and without being unduly obscurant. Kozinski (author), Fernandez (concurring), and Clifton, Cir-cuit Judges. S. Jones of Seattle, WA, for the plaintiffs-appellants; AAG W. Van Hook of Olympia, WA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 14) CONTRACTS / POTATO LAW: The State of Idaho Potato Commission v. G&T Terminal Packaging, Inc., 04-35229 (9th Cir. Oct. 7, 2005). The Idaho Potato Commission ("IPC") challenged the district court's ruling that a "no-challenge" provision in its certification mark licensing agreement with G&T Terminal Packaging ("G&T") is unenforceable. G&T appealed several damages awards to IPC for breach of contract and violation of the Lanham Act, as well as an award of attorney's fees and costs. The USCA affirmed the district court's ruling that the "no-challenge" provision is unenforceable. It also affirmed the $1 damage award and the $100,000 statutory damages award under the Lanham Act. However, the USCA reversed the $50,000 award for breach of the license agreement as unsupported by the record. It also vacated the award of attorney's fees and costs, and remand those matters to the district court for its reconsideration in light of this opinion. The USCA instructed that each party bear its own costs on appeal. Tashima (author), Paez, and Callahan, Circuit Judges. DAG M. Gilmore of Boise, ID, for the plaintiff-appellant; R. Boardman of Boise, ID, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 15) REMOVAL: Harris v. Bankers Life and Casualty Company, 04-35115 (9th Cir. Oct. 6, 2005). At issue here, raised for the first time in the Ninth Circuit, was whether the jurisdictional facts supporting removal from state to federal court must be apparent from the face of the initial pleading or whether the mere specter of removability triggers a duty of inquiry. I.e., is removability determined by the face of the initial pleading or by the defendant's knowledge, constructive or otherwise, of the requisite jurisdictional facts? The USCA's interpretation of 28 USC Sec. 1446 led it to join sister circuits in holding that the 30-day time period for removal starts to run from defendant's receipt of the initial pleading only when that pleading affirmatively reveals on its face facts necessary for federal court jurisdiction. The USCA affirmed the district court's denial of the motion to remand the case to state court, finding the removal proper and timely. Thompson, McKeown (author), and Gould, Circuit Judges. L. R. Bishop of Billings, MT, for the plaintiff; J. Gordon of Missoula, MT, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/) 16) CLASS ACTION FAIRNESS ACT: Bush v. Cheaptickets, Inc., 05-55995 (9th Cir. Oct. 6, 2005). The question here was when is a class-action suit "commenced" for purposes of the effective date of the Class Action Fairness Act ("CAFA"). The plaintiffs filed suit in state court against various internet-based travel companies (collectively "Cheaptickets"). Cheaptickets removed the case to federal court, but the district court ordered the case remanded to state court. The plaintiffs maintained that removal was not authorized because the suit was filed on the day before CAFA became effective. Cheaptickets maintained that the suit was commenced when it was removed to federal court; and, alternatively, it maintained that the action was not commenced in state court until the defendant received service of process. The USCA rejected both assertions and affirmed the district court's remand of the class action to state court. The plaintiff filed suit in California state court on February 17, 2005. He therefore "commenced" the suit one day before the CAFA was effective. The USCA thus affirmed the order of the district court remanding the suit to state court. Farris, Thompson, and Bybee (author), Circuit Judges. G. Greenberg of Los Angeles, CA, for the defendant-appellant; M. Reese of New York, NY, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 17) INJUNCTIONS: Sandpiper Village Condominium Association v. Louisiana-Pacific Corporation, 03-35058 (9th Cir. Oct. 24, 2005). Lester Building Systems and its affiliate, Lester's of Minnesota, Inc. (collectively "Lester") appealed an order permanently enjoining entry of judgment on a portion of a jury verdict rendered in favor of Lester and against Louisiana-Pacific Corporation ("L-P") in Minnesota state court. The district court exercised its authority under the All Writs Act to partially enjoin entry of the judgment on the ground that the state court award was inconsistent with the settlement reached in a prior nationwide class action involving L-P and over which the court retained jurisdiction. The USCA concluded that the injunction violated the Anti-Injunction Act. That is, the order enjoining the Minnesota court from entering judgment on the $11.2 million in damages awarded to Lester for repair costs violated the Anti-Injunction Act. The USCA thus vacated the injunction. Concurring, Judge Silverman agreed that the Anti-Injunction Act prohibited the injunction entered by the district court, but wrote separately because he did not believe that the USCA should address the merits of L-P's res judicata defense. Dissenting, Judge Reinhardt thought it clear that Lester's state law claims pursued on behalf of and for the benefit of its customers may be enjoined under both exceptions relied upon by the district court, the "relitigation" exception and the "necessary in aid of jurisdiction" exception. The majority's decision not only condoned a double recovery by a sub-group of class members in direct contravention of the settlement agreement, but encouraged similar disruptive litigation in other states. Because the Minnesota verdict clearly included damages covered by the settlement, allowing it to stand would circumvent the settlement agreement and seriously impair its integrity, as well as the federal court's ability to supervise, implement, enforce, construe, and interpret the class action settlement over which it has exclusive jurisdiction. In arriving at the determination that the injunction should issue, Judge Reinhardt thought that the district court had reasonably relied upon the law of the Ninth Circuit and other Circuits and had made underlying findings supported by the evidence and which may not be disturbed by an appellate court. He would affirm. Reinhardt (dissenting), Silverman (concurring), and Clifton (author), Circuit Judges. K. Damsgaard of Portland, OR, for the appellant; M. Simon of Portland, OR, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 18) IMMIGRATION: Membreno v. Gonzales, 03-71214 (9th Cir. Oct. 14, 2005). Membreno petitioned for review of a BIA decision denying her motion to reopen her removal proceedings. The USCA dismissed the petition in part and denied it in part. It found that it lacked jurisdiction to review Membreno's contention that the BIA erred in determining that she committed a crime involving moral turpitude when she violated California Penal Code Sec. 245(a)(2), because the petition was filed almost a year after the issuance of that decision. The BIA properly denied Membreno's motion to reopen because she presented the BIA with no new facts, but only new legal arguments. Schroeder, Pregerson, Reinhardt, Kleinfeld, McKeown, Gould (author), Paez, Tallman, Rawlinson, Bybee, and Bea, Circuit Judges. S. Potts of Las Angeles, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 19) IMMIGRATION: Sotelo v. Gonzales,
03-74083 (9th Cir. Oct. 21, 2005). The petitioners challenged the BIA's denial
of their motion to reopen deportation proceedings. They filed their motion an
attempt to avail themselves of the class action settlement approved in Barahona-Gomez
v. Ashcroft, 243 F. Supp. 2d 1029 (N.D. Cal. 2002), which permits eligible
immigrant to apply for suspension of depor-tation under the law as it existed
prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
as amended. The record indicated that the petitioners were not Barahona-Gomez
class members and thus not entitled to this relief. The BIA did not err in denying
their motion to reopen. Farris (author), Thompson, and Bybee, Circuit Judges.
M. Hilts of San Diego, CA, for the petitioners; S. Nardone of Washington, DC,
for the respondent. (Download
the full text of this decision at www.cc9.uscourts.gov/)
21) IMMIGRATION: USA v. Resendiz-Ponce, 04-10302 (9th Cir. Oct. 11, 2005). The defendant, a native and citizen of Mexico, challenged his conviction and sentence for attempting to reenter the U.S. after having been previously deported subsequent to committing an aggravated felony, pursuant to 8 USC Secs. 1326(a) and (b)(2). The USCA held that failure to allege any specific overt act that is a substantial step toward entry is a fatal defect in an indictment for attempted entry following deportation under 8 USC Sec. 1326. It thus reversed the judgment and directed the district court to dismiss the indictment without prejudice to reindictment. Judge Reavley concurred because of Circuit precedent, but noted that he failed to see any other reason for this holding. An indictment, he noted, is constitutionally sufficient if it clearly informs the defendant of the precise offense of which he is accused so that he may prepare his defense and so that a judgment thereon will safeguard him from a subsequent prosecution for the same offense. Goodwin (author), Reavley (concurring), and Rawlinson, Circuit Judges. A. Baggot of Apache Junction, AZ, for the defendant-appellant; AUSA R. Logan of Phoenix, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 22) IMMIGRATION: USA v. Vidal, 04-50185 (9th Cir. Oct. 24, 2005). Vidal appealed his sentence for being a deported alien found in the U.S. in violation of 8 USC Sec. 1326. He challenged an eight-level enhancement to his sentence resulting from the district court's conclusion that his conviction for the unlawful taking of a vehicle in violation of California Vehicle Code Sec. 10851(a) constitutes an aggravated felony under Sentencing Guideline Sec. 2L1.2(b)(1)(C). He also maintained that Blakely v. Washington, 124 S.Ct. 2531 (2004), precluded resort to the modified categorical approach to determine whether the defendant was previously convicted of conduct that would constitute an aggravated felony under federal law. Finally, in a Fed. R. App. P. 28(j) letter, Vidal asked for his sentence to be vacated and remanded for reconsideration in light of USA v. Booker, 125 S.Ct. 738 (2005). The USCA concluded that Vidal was convicted of an aggravated felony and that Blakely does not undermine Taylor v. USA, 494 US 575 (1990), or the USCA's own authority embracing the modified categorical approach. The district court thus did not err in applying it. Nevertheless, the USCA remanded for further proceedings in light of Booker and USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). Judge Browning concurred in part and dissented in part. He dissented from the majority's holdings that California Vehicle Code Sec. 10851(a) categorically qualifies as an aggravated felony "theft offense" for sentencing, and that Vidal's conviction in fact qualifies under the modified categorical approach as a predicate conviction for sentence enhancement in this case. He would reverse the district court's imposition and the enhancement, vacate Vidal's sentence, and remand for resentencing. Browning (dissenting in part), Magill, and Rymer (author), Circuit Judges. S. Shetty of San Diego, CA, for the defendant-appellant; AUSA M. Rehe of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 23) FINANCIAL SUPPORT OF TERRORISTS: USA v. Afshari, 02-50355 (9th Cir. Oct. 20, 2005). At issue here was the constitutionality of a statute prohibiting financial support to organizations designated as "terrorist." The defendants were charged with knowingly and willfully conspiring to provide material support to the Mujahedin-e Khalq ("MEK"), a designated terrorist organization, in violation of 18 USC Sec. 2339B(a)(1). According to the indictment, the defendants solicited charitable contributions at the Los Angeles International Airport for the "Committee 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 in Turkey. They did all of this after participating in a conference call with an MEK leader, in which they learned that the U.S. State Department had designated the MEK as a foreign terrorist organization. The MEK leader told them to continue to provide material support despite the designation. The defendants sought to dismiss the indictment. The district court dismissed the indictment on the ground that the statute was unconstitutional. The USCA reversed. The district court thought the statute was a facially unconstitutional restriction on judicial review of the terrorist designation for Congress to assign such review exclusively to the D.C. Circuit. The USCA disagreed. The congressional restriction did not interfere with the opportunity for judicial review, as the MEK's extensive litigation history demonstrated. Moreover, the scheme avoided the criminalizing material support for a designed terrorist organization in some circuit but not others, as varying decisions in the different circuits might. Finally, the USCA concluded that 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. Juries could not make reliable determinations without extensive foreign policy education and the disclosure of classified materials. 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.cc9.uscourts.gov/) 24) PLEA AGREEMENTS: USA v. Brown, 03-10479 (9th Cir. Oct. 4, 2005). Pursuant to a plea agreement, Brown pled guilty to 44 counts of fraud related crimes. He maintained that the government breached that agreement. He also attacked his sentence on Booker grounds and claimed that the district court abused its discretion in denying his motion, prior to sentencing, for a continuance to obtain substitute counsel. The USCA concluded that there was no breach of the plea agreement. Brown's other claims thus were precluded by the plea agreement in which he waived his right to appeal. B. Fletcher and Berzon, Circuit Judges, and Houston, District Judge. Per Curiam. D. Frick of Sacramento, CA, for the defendant-appellant; AUSA T. Flynn of Sacramento, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 25) INVOLUNTARY MEDICATION: USA v. Rivera-Guerrero, 04-50493 (9th Cir. Oct. 19, 2005). This appeal involves questions relating to the involuntary medication of a defendant awaiting trial in federal court. After being arrested and charged with illegal entry, the defendant was found incompetent to stand trial. Following his commitment to a Federal Medical Center ("FMC") pursuant to an order dated November 4, 2003, FMC doctors requested that the district court issue another order permitting him to be involuntarily medicated with antipsychotic drugs for the purpose of restoring his competency so that he could stand trial. The court ordered that a hearing be held. When the hearing began, the magistrate decided that it would be held pursuant to Sell v. USA, 539 US 166 (2003), rather than Washington v. Harper, 494 US 210 (1990). After the government witnesses, two FMC doctors, testified, defendant's counsel requested a continuance so that she could prepare her rebuttal. The district court denied the request and issued an order permitting involuntary medication. On October 4, 2004, that order was reaffirmed by the district court upon remand. The USCA reversed the district court's denial of the continuance, vacated the involuntary medication order, and remanded with instructions that in light of intervening events the district court obtain a report on the defendant's present mental condition and proceed in accordance with the second and third sentences of 18 USC Sec. 4241(d). In so doing, the USCA instructed that the district court shall treat the "reasonable period of time" for which the Attorney General may maintain him in custody under that subsection as having expired and that the order of commitment to the FMC shall be of no further force and effect. Reinhardt (author) and Clifton, Circuit Judges, and Weiner, District Judge. Z. Lopez 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.cc9.uscourts.gov/) 26) DOUBLE JEOPARDY: USA v. Jose, 04-10202 (9th Cir. Oct. 19, 2005). The defendants appealed the district court's denial of their joint motion to dismiss their indictments on double jeopardy grounds. They were convicted of felony murder and three predicate felonies. The counts were charged under one indictment and prosecuted in one trial. On direct appeal, the USCA reversed the felony murder convictions, reversed defendant Miguel's conviction for use of a firearm during a crime of violence, affirmed all other convictions, and remanded to the district court for further proceedings. On remand, Miguel moved for dismissal of the indictment on double jeopardy grounds, claiming that his final convictions on the lesser included predicate felonies barred retrial of the greater felony murder charge. Defendant Jose joined in the motion. The USCA affirmed the district court's denial of the defendant's motion to dismiss. This case raised a purely legal question about the reach and proper application of the Double Jeopardy Clause: Does the reversal of a conviction on a greater offense, coupled with a final conviction on a lesser included offense, preclude retrial of the greater offense when the offenses were charged in the same indictment and tried together in the same original trial? The USCA held that it does not. D.W. Nelson (author), Callahan, and Bea, Circuit Judges. AFPD P. Wolff and B. Edwards of Honolulu, HI, for the defendants; AUSA R. Johnson of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/) 27) SEXUALLY VIOLENT PREDATORS: Carty v. Nelson, 03-56766 (9th Cir. Oct. 17, 2005). In 1991, California prisoner Carty pled guilty to seven counts of Committing a Lewd and Lascivious Act Upon a Child Under the Age of 14, in violation of California Penal Code Sec. 288(a). He was sentenced to state prison for a term of 16 years. Eight years later, a day before he was to be released on parole, the San Diego County District Attorney filed a civil commitment petition against him pursuant to California's Sexually Violent Predators Act ("SVP Act"). In June 1999, a civil commitment hearing was conducted in San Diego Superior Court to determine whether Carty was a SVP who required civil commitment for a period of two years. After the hearing, Carty was classified as an SVP likely to engage in sexually violent criminal behavior against others, and ordered civilly committed in Atascadero State Hospital. In 2001, the San Diego County District Attorney successfully petitioned for Carty's re-commitment to a second two-year term. In 2003, while serving his second term, Carty filed a pro se habeas petition under 28 USC Sec. 2254 in federal district court challenging his initial June 1999 civil commitment. He maintained that his Sixth Amendment right to confront witnesses and his Fourteenth Amendment due process rights were violated at the June 1999 commitment hearing because the superior court relied on inadmissible hearsay consisting of victim statements contained in Carty's probation report. In 2003, while review of his federal habeas petition was pending in district court, the San Diego County District Attorney initiated another civil commitment proceeding in state court to recommit Carty for a third term. This time the District Attorney was unsuccessful in re-committing Carty. In October 2003, a jury found that he should no longer be civilly committed under the SVP Act. He was thus ordered immediately released from civil commitment. Shortly before his release, the district court denied his habeas petition with prejudice. Carty appealed. The USCA deemed the controversy live, reached the merits, and affirmed. Pregerson (author), Fisher, and Bybee, Circuit Judges. M. Brown of San Francisco, CA, for the petitioner; DAG B. Weinreb of San Diego, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 28) RIGHT TO COUNSEL: Plumlee v. Del Papa, 04-15101 (9th Cir. Oct. 18, 2005). Plumlee, convicted of murder and armed robbery in Nevada state court in 1992, appealed the denial of his habeas petition, claiming that his right to counsel was violated by the trial judge's denial of his pre-trial motion to substitute counsel on the basis of an irreconcilable conflict. At the time he moved the trial court to appoint alternative counsel, Plumlee reasonably and in good faith believed that members of the public defender's office were leaking information about his case to another suspect in the case and to the district attorney. The resulting distrust that arose between Plumlee and his appointed attorney was such that the attorney himself likened his representation of Plumlee to no representation at all. The judge declined to appoint new counsel. Under the unusual circumstances of this case, the USCA reversed, holding that the judge abused his discretion and that the Nevada Supreme Court's contrary conclusion involved an unreasonable application of clearly established federal law. Judge Bea dissented. He thought that in bypassing clear restraints enacted by Congress in the AEDPA and in fashioning a new rule raising a defendant's suspicions and personal pique to constitutional dimensions, the majority ordered Plumlee's release 13 years after he was imprisoned-for two terms of life without the possibility of parole-for robbery and murder. Were that not enough, the majority's "irreconcilable conflict" rule augured innumerable problems for public defenders and trial courts; if allowed to stand, Judge Bea thought it would generate volumes of litigation for both direct and collateral appeals for years to come. Judge Bea noted that under the majority's decision, the Nevada courts may retry Plumlee and seek a new conviction, but after 13 years, memories fade, evidence grows cold, and witnesses disappear. B. Fletcher (author), Thomas, and Bea (dissenting), Circuit Judges. AFPD J. Carr of Las Vegas, NV, for the petitioner; DAG V. Schulze of Las Vegas, NV, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 29) DEFENSE ATTORNEY TESTIMONY / GRAND JURIES: USA v. Bergeson, 04-35312 (9th Cir. Oct. 13, 2005). The Assistant Federal Public Defender's client, the intervenor-appellee in this case, was indicted on drug charges involving the distribution of Ecstasy. The government subpoenaed the attorney to testify against her client before a grand jury, and she successfully moved to quash the subpoena in the district court. The government appeal, and the USCA affirmed. The USCA said it was not suggesting that a subpoena of a lawyer to testify against her client before a grand jury would always be unreasonable or oppressive. However, circumstances such as the risk of imminent physical harm to others, the magnitude of the case, the scarcity of evidence, and matters that bear on reasonableness, can legitimately be weighed along with the potential harm from enforcing the subpoena. In this case, the district court's exercise of its discretion to quash the subpoena was eminently reasonable. Ferguson, Trott, and Kleinfeld (author), Circuit Judges. S. Oestreicher of Washington, DC, for the appellant; FPD S. Wax of Portland, OR, for the appellee; M. Blackman of Portland, OR, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/) 30) EVIDENCE: USA v. Allen, 04-50205 (9th Cir. Oct. 18, 2005). A jury convicted Allen of conspiracy to commit armed bank robbery, armed bank robbery, and using, carrying, or possessing a firearm during a crime of violence. On appeal, Allen argued that there was in-sufficient evidence to support his firearm conviction, that the admission of a co-conspirator's statement violated his Sixth Amendment right of confrontation, that a government witness's allusion to Allen's previous incarceration warranted a mistrial, that the district court failed to appreciate that it had discretion to depart downward on Allen's sentence based on a tragic person history and the disproportionate impact of a prior conviction, and that the enhancement used judge-found facts in violation of the Sixth Amendment. The USCA affirmed the convictions, but ordered a remand for resentencing pursuant to USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), and USA v. Sanders, 421 F.3d 1044 (9th Cir. 2005). Canby, Kozinski, and Rawlinson (author), Circuit Judges. P. Bronson of Encino, CA, for the defendant-appellant; AUSA D. Kim of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 31) EVIDENCE: USA v. Heredia, 03-10585 (9th Cir. Oct. 24, 2005). Heredia was convicted of knowingly possessing contraband with intent to distribute, after the district court instructed that the "knowingly" element is satisfied if Heredia was deliberately ignorant. At issue on appeal was whether the evidence was sufficient to warrant this "deliberate ignorance" jury instruction. See USA v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc). After the jury returned a guilty verdict, Heredia moved for a new trial on the grounds that the evidence did not warrant a Jewell instruction. The district court denied the motion. Heredia appealed. The USCA held that the government did not provide sufficient evidence to warrant the instruction. It thus reversed the district court's denial of Heredia's motion for a new trial, and remanded. Dissenting, Judge Kozinski thought that, if ever a Jewell instruction were proper, it would be here and that this was a stronger case than Jewell itself, and stronger than any of the Circuit's other "deliberate ignorance" cases because here the defendant admitted that her suspicions were aroused and eventually matured into a belief that there may be drugs in the car. The jury could easily have found that the defendant suspected the drugs were there and should have discovered them before trying to run the law enforcement checkpoint. Kozinski (dissenting), W. Fletcher, and Bybee (author), Circuit Judges. W. Kay of Tucson, AZ, for the appellant; AUSA N. Leonardo of Tucson, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 32) EVIDENCE / SENTENCING: USA v. Jensen, 04-30094 (9th Cir. Oct. 6, 2005). Jensen was convicted for possession of metham-phetamine with intent to distribute and sentenced to life imprisonment without parole under 21 USC Secs. 841(b)(1)(A) and 851(a)(1). On appeal, he maintained that the district court erred in denying his motion under Fed. R. Crim. P. 12(b)(3) to suppress evidence seized from his vehicle and residence on the grounds that his arrest and the seizure of his vehicle were executed without probably cause and, thus seized in violation of the Fourth Amendment. He also appealed his sentence on the ground that the sentencing scheme under which he was sentenced, Secs. 841(b)(1)(A) and 851(a)(1), is unconstitutional insofar as it violates: 1) the constitutional separation of powers and non-delegation doctrines; 2) his due process rights; and 3) the Eighth Amendment's prohibition on cruel and unusual punishment. The USCA affirmed the conviction and sentence. O'Scannlain, McKeown, and Bea (author), Circuit Judges. B. Tipp of Missoula, MT, for the defendant; AUSA J. Thaggard of Great Falls, MT, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/) 33) SEARCH & SEIZURE: USA v. Collins, 04-50065 (9th Cir. Oct. 28, 2005). Collins was indicted with five others and charged with conspiracy to retain and deliver, and retaining and delivering, stolen U.S. Treasury checks. He moved to suppress evidence found in a search following his warrantless arrest. The district court concluded that the arrest violated the Fourth Amendment because the agents did not have probable cause to believe that Collins was participating in the stolen check ring. The district court thus suppressed the fruit of the arrest. The USCA affirmed. It agreed with the district judge that, with the evidence stripped bare by the uncontested adverse credibility ruling, there was insufficient evidence of probable cause to support the arrest. Pregerson, Canby (author), and Beezer, Circuit Judges. AUSA F. Rowley of Los Angeles, CA, for the plaintiff; S. Chahin of LaCanada, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/) 34) FINGERPRINT EVIDENCE / SUPERVISED RELEASE: USA
v. Ortiz-Hernandez, 03-30355 (9th Cir. Oct. 27, 2005). The government
charged Ortiz-Hernandez with illegally reentering the U.S. in violation of 8 USC
Secs. 1326(a) and (b)(2). It also charged him with violating the terms of his
supervised release from a prior federal drug conviction. The two proceedings were
consolidated in district court. The district court then suppressed fingerprint
evidence in both the criminal case and the supervised release proceeding. It also
denied the government's motion to compel new fingerprint exemplars in the criminal
case. The government appealed both the suppression orders and the denial of its
motion to compel fingerprint exemplars. In the criminal case, the USCA affirmed
the suppression order but reversed the denial of the government's request to compel
another set of exemplars. It held that the police took exemplars of Ortiz-Hernandez's
fingerprints for "investigatory purposes," in violation of the Fourth
Amendment. In the supervised release case, the USCA dismissed the appeal based
on USA v. Vargas-Amaya, 389 F.3d 901 (9th Cir. 2004). Dissenting, Judge
Fletcher thought the majority took a wrong turn when, after suppressing the fingerprint
exemplars, it compelled the production of a second set of exemplars. The compelled
exemplars (unlike the suppressed exemplars) could be introduced at trial. Judge
Fletcher thought that the majority thus allowed the government to accomplish with
the second exemplars precisely what it held the government could not accomplish
with the first. Reavley, W. Fletcher (dissenting), and Tallman, Circuit
Judges. Per Curiam. K. Robinson of Portland, OR, for the appellant; P.
Papak of Portland, OR, for the appellee. (Download
the full text of this decision at www.cc9.uscourts.gov/)
36) HABEAS CORPUS: Moormann v. Schriro, 00-99015 (9th Cir. Oct. 13, 2005). Moormann was convicted of the first degree murder and sentenced to death in 1985. This appeal addressed the district court's denial of his first federal habeas petition. He had filed two earlier unsuccessful state petitions for collateral relief after losing a direct appeal from the conviction and sentence in state court. Although it affirmed the district court's dismissal of most of the claims, the USCA found that some of the federal claims were never properly litigated in state court, but were handled by counsel with a conflict of interest. Moormann thus presented claims of ineffective assistance of appellate counsel that appear colorable on the record. The USCA vacated and remanded for further proceedings on these claims. Schroeder (author), Trott, and Rawlinson, Circuit Judges. D. Young of Tucson, AZ, for the petitioner; J. Todd of Phoenix, AZ, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 37) HABEAS CORPUS: Merced v. McGrath, 04-15560 (9th Cir. Oct. 18, 2005). Merced, a California state prisoner, appealed the district court's denial of his habeas petition. He maintained that the trial court violated his constitutional rights when it excused a prospective juror based on his belief in exercising the power of jury nullification. The USCA affirmed the district court's denial of the habeas petition as the trial judge reasonably had a definite impression that the prospective juror's views "would prevent or substantially impair the performance of is duties as a juror in accordance with his instructions and oath. D.W. Nelson (author), W. Fletcher, and Fisher, Circuit Judges. P. Brooks of Berkeley, CA, for the petitioner; AAG G. Engler of San Francisco, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 38) HABEAS CORPUS: Bonner v. Carey, 02-56022 (9th Cir. Oct. 6, 2005). Bonner appealed the district court's dismissal of his habeas petition. The USCA vacated and remanded for further proceedings upon concluding that the California Superior Court denied Bon-ner's petition as untimely when it said he could have raised the petition's claims in an earlier petition and that there was "no reason stated for any delay in this regard." Under Pace v. DiGuglielmo, 125 S.Ct. 1807 (2005), this meant that Bonner's petition was never "properly filed" for purposes of the tolling provision of the AEDPA. Bonner thus was not entitled to statutory tolling for the period from April 24, 1996, when the one-year statutory period began to run, to September 24, 1998, when he filed his federal petition. Regardless of whether the district court misled Bonner concerning his options as to how to proceed with his "mixed" petition, the statute of limitations barred his petition unless he can show that he is entitled to equitable tolling. Kozinski and T.G. Nelson (author), Circuit Judges, and Restani, Court of Intl. Trade Judge. J. Whatley of Santa Barbara, CA, for the appellant; DAG T. Cochrane of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 39) HABEAS CORPUS: Musladin v. Lamarque, 03-16653 (9th Cir. Oct. 21, 2005). At issue here was whether at his murder trial the defendant's constitutional rights violated when spectators were permitted to wear buttons depicting the deceased? The USCA held that under established Supreme Court law such a practice interfered with the right to a fair trial by an impartial jury free from outside influences. Dissenting, Judge Thompson thought that a further statement of the facts was appropriate. Mathew and Pam, were married but separated at the time of the crimes of which Mathew was convicted. Pam was living at her mother's house with her brother Michael Albaugh, her fiancé Tom Studer, and Garrick, her then three-year old son by Mathew. On the day of the shooting, Mathew went to the house to pick up Garrick for a scheduled visitation. The prosecutor presented evidence that an argument ensured between Pam and Mathew in the driveway, during which Mathew pushed Pam to the ground and reached for a gun. Albaugh, standing in the driveway, yelled, "He's got a gun." Mathew fired at Pam and Studer, hitting Studer in the back of the shoulder. Studer fell to the ground and attempted to crawl underneath a truck in the garage. Mathew entered the garage and fired a second show which ricocheted into Studer's head, killing him. Mathew admitted shooting at Studer and killing him, but claimed perfect and imperfect self-defense. He testified that he believed that Albaugh was carrying a machete and Studer a gun, and that he fired both shots out of fear for his life. Judge Thompson disagreed with the majority reliance upon Norris v. Risley, 918 F.2d 828 (9th Cir. 1990), and the application in this case of the rule of Estelle v. Williams, 452 US 501 (1976). In Williams, the Court determined it to have been a violation of the right to a fair trial for the state to have compelled the defendant to wear prison clothing during his trial. The Court held that the prison clothing impaired the defendant's presumption of innocence. Here, the state court permitted relatives of the deceased to wear buttons in the courtroom. The buttons disclosed only the victim's picture. Norris was a case involving three women who wore buttons in the courtroom during the defendant's trial for rape, but that case was not controlling here. Those buttons were two and one-half inches in diameter and bore the words "Women Against Rape." The Norris court stated that "the buttons' message, which implied that Norris raped the complaining witness, constituted a continuing reminder that various spectators believed Norris's guilt before it was proven, eroding the presumption of innocence." Here the buttons were three to four inches in diameter and except for the deceased victim's picture, there was nothing else on them. They conveyed no message. Reinhardt (author), Thompson (dissenting), and Berzon, Circuit Judges. AFPD B. Portman of San Francisco, CA, for the petitioner; AAG R. Anderson of San Francisco, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 40) HABEAS CORPUS: Summerlin v. Schriro, 98-99002 (9th Cir. Oct. 17, 2005). At issue here was whether the petitioner received ineffective assistance of counsel at the penalty phase of his capital murder trial. The USCA concluded that he did and reversed the district court's denial of the writ of habeas corpus as to the penalty phase and remanded with instructions to grant the writ as to the sentence unless the State begins resentencing proceedings within a reasonable time to be determined by the district court. Judge O'Scannlain concurred in that portion of the opinion which held that counsel's failure to investigate mitigating evidence constituted constitutionally deficient performance. However, he dissented from the court's conclusion that the State court's affirmance of the death penalty violated constitutional standards. He agreed with the district court's determination that Summerlin failed to demonstrate a reasonable probability that, but for counsel's constitutionally deficient performance, he would have received a lesser sentence. Because he would also affirm the district court's on two issues the USCA did not reach, Judge O'Scannlain would affirm the judgment of the district court denying the habeas petition. He also dissented from the court's conclusion that counsel's failure to "contact or interview" the prosecution's rebuttal witnesses constituted constitutionally deficient performance. Because this portion of the court's opinion approves the type of "per se" rule regarding attorney's performance precluded by Strickland v. Washington, 466 US 668 (1984), he also dissented from that portion the opinion. Schroeder, Pregerson, Reinhardt, O'Scannlain (dissenting in part), Hawkins, Thomas (author), McKeown, Wardlaw, W. Fletcher, Fisher, and Rawlinson, Circuit Judges. K. Murray of Phoenix, AZ, for the petitioner; J. Pressley of Phoenix, AZ, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 41) HABEAS CORPUS: USA v. LaFromboise, 03-35853 (9th Cir. Oct. 26, 2005). LaFromboise appealed a district court's order denying habeas motion. He challenged his conviction and sentence on several grounds, including ineffective assistance, prosecutorial mis-conduct, misjoinder of charges, and improper application of the sentencing guidelines. The district court did not reach the merits of the collateral attack, but instead denied the motion as untimely under the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996. However, because the district court's judgment in the underlying criminal proceedings was not yet final, the USCA vacated the denial of the habeas motion and remanded with directions to dismiss the motion without prejudice. Judge Callahan thought that because LaFromboise's conviction and sentence became final on September 1, 1997, and his Sec. 2255 motion was filed more than one year after June 15, 1998, his motion was untimely. She would affirm the denial of the motion as time barred. Tashima, Paez (author), and Callahan (dissenting), Circuit Judges. W. Holton of Helena, MT, for the appellant; W. Mercer of Billings, MT, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) MEMORANDA
3) BANKRUPTCY / RULE 60(b):
In re Thurmann, 04-15626 (9th Cir. Oct. 21, 2005) (unpublished).
Wallace, Trott, and Rymer, Circuit Judges. 4) BANKRUPTCY: In re Desert Land,
LLC, 04-16005 (9th Cir. Oct. 25, 2005) (unpublished). Reinhardt
and Thomas, Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge. 5) BANKRUPTCY: In re ETM Entertainment Network,
Inc, 03-55500 (9th Cir. Oct. 3, 2005) (unpublished). Farris, Fernandez,
and Bybee, Circuit Judges. 6)
BANKRUPTCY: In re Burgess, 05-55128 (9th Cir. Oct. 25, 2005) (unpublished).
Hall, T.G. Nelson, and Tallman, Circuit Judges. 7)
TAXATION / "INNOCENT SPOUSE" RULES: Feldman v. CIR, 03-74792
(9th Cir. Oct. 28, 2005) (unpublished). Pregerson, Clifton, and Bybee,
Circuit Judges. 8) AMERICANS WITH DISABILITIES ACT: Murphy
v. Bridger Bowl, 04-35273 (9th Cir. Oct. 5, 2005) (unpublished).
Hug, Paez, and Callahan (concurring), Circuit Judges. 10) AMERICANS WITH DISABILITIES ACT: Brisbon
v. Corkill, 04-15082 (9th Cir. Oct. 24, 2005) (unpublished). Reinhardt
and Thomas, Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge. 11) EMPLOYMENT DISCRIMINATION: Parker v. SITEL
Corp., 04-35927 (9th Cir. Oct. 18, 2005) (unpublished). Hall, T.G.
Nelson, and Tallman, Circuit Judges. 12) IMMIGRATION: Al-Omaisi v. Gonzales, 04-75028
(9th Cir. Oct. 18, 2005) (unpublished). Hall, T.G. Nelson, and Tallman,
Circuit Judges. 13)
IMMIGRATION: Aghabobian v. Gonzales, 04-71916 (9th Cir. Oct.
19, 2005) (unpublished). Hall, T.G. Nelson, and Tallman, Circuit Judges. 14) IMMIGRATION:
Warsameh v. Gonzales, 03-71930 (9th Cir. Oct. 14, 2005) (unpublished).
Schroeder, Pregerson, and Trott, Circuit Judges. 15)
IMMIGRATION: Zadoorian v. Gonzales, 02-74007 (9th Cir. Oct. 21, 2005)
(unpublished). T.G. Nelson, Wardlaw, and Tallman, Circuit Judges. 16) IMMIGRATION: Massetti v. Gonzales, 04-73597
(9th Cir. Oct. 3, 2005) (unpublished). Graber, McKeown, and W. Fletcher,
Circuit Judges. |
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