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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) INTELLECTUAL PROPERTY: Altera Corporation v. Clear Logic, Inc., 03-17323 (9th Cir. Sept. 15, 2005). This case involves an infringement action by Altera against Clear Logic under the Semiconductor Chip Protection Act of 1984 ("SCPA"). Altera also brought state law claims against Clear Logic for intentionally inducing Altera's customers to breach their software license agreements with Altera and for intentional interference with those contractual relations. A jury found for Altera on all claims and judgment was entered for $30.6 million in damages, $5.4 million in prejudgment interest and $394,791 in costs. The district court also entered an injunction preventing Clear Logic from engaging in those activities against Altera. The USCA affirmed the judgment and the injunction. Concurring, Judge Rymer agreed that the district court's instructions did not constitute reversible error on the record presented for review. As the district court held, the selection, combination and arrangement of electrical components in the "mask work layout design," including the placement, orientation, and interrelationship of grouping so transistors and interconnection lines were protectable. However, Judge Rymer wrote separately for two reasons: first, to emphasize that the USCA's decision did not mean that the SCPA protects chips functionality or provides protection to chips in any way synonymous with the protections provided through patent law; and second to suggest that this is the type of case in which it might have been useful to have a court-appointed, independent expert. Neutral definitions and a common understanding of the underlying technology would have been helpful as background for determining whether the chips should have been compared for substantial similarity only at the transistor level, only at the component level, or at some level in between. Hug (author), Ferguson, and Rymer (concurring), Circuit Judges. D. Heilbron of East Palo Alto, CA, for the appellant; K. Kramer of Palo Alto, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 2) COMMUNICATIONS LAW: Metrophones Telecommunications, Inc. v. Global Crossing Telecommunications, Inc., 04-35287 (9th Cir. Sept. 8, 2005). At issue here was whether a provider of payphone services may sue a long distance carrier to recover compensation that federal regulations, 47 CFR Secs. 64.1300 to 64.1340, obligate the carrier to pay. Greene v. Sprint Communications, 340 F.3d 1047 (9th Cir. 2003), answered "no." But now the circumstances have changed and the FCC has interpreted a provision of the Communications Act not addressed in Greene, 47 USC Sec. 201(b) to allow such actions. The USCA noted that it defers to the FCC's reasonable, authoritative interpretation of that statute. The USCA thus affirmed the district court's decision to allow Metrophones Telecommunications, a payphone service provider, to go forward with its claim under Sec. 201(b) against Global Crossing, a long distance carrier. It also held that the plaintiff may pursue two of its three state law claims, because they were not preempted by 47 USC Sec. 276(c). However, it reversed the district court's decision to allow the plaintiff to pursue claims under 47 USC Sec. 416(c) and under a third state-law theory. Schroeder, Goodwin, and Graber (author), Circuit Judges. D. Waggoner of Seattle, WA, for the defendant; D. Russell of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/) 3) COMMUNICATIONS LAW: Rivas v. Rail Delivery Service,
Inc., 03-55447 (9th Cir. Sept. 8, 2005). These four consolidated appeals involve
cases in which the district court granted a permanent injunction under the Interstate
Commerce Commission Termination Act ("ICCTA"). The district court found
that the defendant motor carriers entered into contracts with the plaintiffs that
did not comply with Truth-in-Leasing regulations promulgated under the Motor Carrier
Act. The plaintiffs appealed the injunction, asserting that it should have required
the defendants' compliance with four additional regulations. The plaintiffs also
appealed the court's denial of attorneys' fees. In addition, plaintiff Renteria
appealed the summary judgment for defendant K&R Transportation on Renteria's
claims based on violations of the California Insurance Code. The USCA held that
the plaintiffs lacked standing because: 1) the regulatory violations for which
they sought injunctive relief caused them no injury, depriving them of Article
III standing; and 2) the ICCTA would have an impermissible retroactive effect
if it conferred standing to bring claims for damages on the basis of contracts
executed before the ICCTA's effective date. The USCA vacated the district court's
judgments and remanded for dismissal of the cases for lack of jurisdiction. Tashima
(author), Fisher, and Tallman, Circuit Judges. S. Glick of Los Angeles,
CA, for the appellants; G. Stefflre of Long Beach, CA, and N. Lerner of Los Angeles,
CA, for the appellees. (Download
the full text of this decision at www.cc9.uscourts.gov/)
5) BANKRUPTCY: In re Cooper Commons, LLC, 03-56818 (9th Cir. Sept. 13, 2005). At issue here was whether a lender to a bankrupt condominium development can effectively specify that post-petition loans it makes can be used only for certain purposes, in this case to finish construction on the condos and pay for services provided by the trustee and the professionals he hires. A law firm excluded by this arrangement objected. The bankruptcy court rejected the firm's arguments and entered a final order approving the proposed financing, finding that the post-petition financing had been negotiated in good faith, at arms'-length, and that the financing arrangement was fair and reasonable. The Bankruptcy Appellate Panel held that the firm had not been denied due process as it received sufficient notice, and it rejected the firm's substantive claims as it had not adequately raised them before the bankruptcy court. The USCA affirmed in part and dismissed in part, finding that the firm received adequate notice of the financing agreement and that its substantive objections to the agreement were moot. O'Scannlain (author) and Wardlaw, Circuit Judges, and Lovell, District Judge. D. Weinstein of Los Angeles, CA, for the appellant; J. Ohlgren of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/) 6) BANKRUPTCY: In re Ybarra, 03-56314
(9th Cir. Sept. 14, 2005). After filing for bankruptcy protection, Ybarra persuaded
a state court to vacate the dismissal of an action she filed against her former
employer Rockwell International prior to filing for bankruptcy. Rockwell had prevailed
and been awarded attorneys' fees and costs by the state court. The bankruptcy
court held that despite Ybarra's discharge in bankruptcy, Rockwell could collect
fees and costs incurred after Ybarra filed for bankrptcy. The Bankruptcy Appellate
Panel reversed, with the majority holding that the entire award was encompassed
in the discharge. Boeing North American, as successor to Rockwell, appealed. The
USCA reversed, holding that the fees and costs incurred post-petition were not
discharged. Wardlaw and Paez (author), Circuit Judges, and Beistline, District
Judge. W. Terry of Los Angeles, CA, for the appellant; N. Ybarra pro se. (Download
the full text of this decision at www.cc9.uscourts.gov/)
8) ENVIRONMENTAL LAW: Fairhurst v. Hagener, 04-35366 (9th Cir. Sept. 8, 2005). Fairhurst appealed the district court's grant of summary judgment for Hagener, director of the Montana Department. of Fish, Wildlife and Parks. The USCA held that a pesticide applied to a river pursuant to an intentional scheme aimed at eliminating pestilent fish species was not a "pollutant" for the purposes of the Clean Water Act and thus not subject to the Act's permit requirements. Thompson, T.G. Nelson, and Wardlaw, Circuit Judges. Per Curiam. A. Joscelyn of Helena, MT, for the appellant. R. Dockter of Helena, MT, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/) 9) ENVIRONMENTAL LAW: Glenbrook Homeowners Assoc. v. Tahoe Regional Planning Agency, 03-17224 (9th Cir. Sept. 21, 2005). These appeals arose from a dispute over a proposed pier on Lake Tahoe. The Ruvo Trust, Edward Fein, and others sought to build the pier on Fein's property. The Glenbrook Preservation Association, Glenbrook Homeowners' Association ("GHOA"), and others op-posed the project. The Ruvo Trust and Fein sought approval for the pier from the Tahoe Regional Planning Agency, a bi-state agency charged with the preservation of the Lake Tahoe region. After public hearings, the TRPA approved the pier subject to certain conditions, including conditions allowing construction of the pier only if an appropriate court determines that: 1) the pier "will not unreasonably interfere with any recreational/access rights GHOA holds in the project area" ("Condition N"); and 2) "as of the date [of the TRPA's final approval of the project] the owners of the Fein parcels do not have a legal right to use the GHOA community pier independent of actions by GHOA" ("Condition O"). Three suits were filed and consolidated in the district court which adopted a magistrate's report and held that: 1) TRPA's approval of the pier was supported by substantial evidence in the administrative record; 2) Condition N was satisfied; and 3) Condition O was not satisfied because the Fein parcels had a right of access to the GHOA pier. The USCA reversed the judgment of the district court that the Fein parcels, pursuant to "various deeds," have a right of access to the GHOA Community Pier. In all other respects, the judgment was affirmed. Schroeder and Canby, Circuit Judges, and Duffy (author), District Judge. R. Zumbrun of Sacramento, CA, for the appellants; J. Marshall of Stateline, NV, for the intervenors.(Download the full text of this decision at www.cc9.uscourts.gov/) 10) EMPLOYMENT DISCRIMINATION: Wood v. GCC Bend, LLC., 04-35073 (9th Cir. Sept. 6, 2005). Wood appealed from a partial summary judgment entered for GCC Bend on Wood's claims of discrimination and retaliation in violation of the Age Discrimination in Employment Act and the Oregon common law of wrongful constructive discharge. The district court granted summary judgment on the Oregon claim and on the statutory claims to the extent they were based on a constructive discharge theory. It denied summary judgment on Wood's ADEA claim and its Oregon counterpart to the extent they were based on a theory that Wood suffered an adverse employment action when reassigned from one position to another. The USCA held that the constructive discharge issue was not immediately appealable. As Wood's Fed. R. Civ. P. 54(b) request had been improvidently granted, the USCA lacked jurisdiction to hear her appeal. It thus could not reach the merits of whether the district court properly granted summary judgment on the common law or ADEA claims, or on the state law counterparts to the extent they were based on a constructive discharge theory. The USCA reversed the Rule 54(b) certification, dismissed the appeal, and remanded for further proceedings. Rymer (author), and Kleinfeld, Circuit Judges, and Weiner, District Judge. S. Hunt of Portland, OR, for the appellant; R. VanCleave of Portland, OR, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 11) EMPLOYMENT DISCRIMINATION: EEOC v. United Parcel
Service, Inc., 03-16855 (9th Cir. Sept. 15, 2005). UPS denied driving
positions to employees who failed to pass UPS's "Vision Protocol," which
requires drivers to have some central vision and some pe-ripheral vision in each
eye. The denied employees maintained that UPS discriminated against them because
of their monocular vision, a disability, in violation of California's Fair Employment
and Housing Act. The USCA held that the employees were sufficiently limited in
the major life activities of seeing and working so as to fall within FEHA's broad
definition of "disability." It thus affirmed, on interlocutory appeal,
the district court's partial summary judgment on the issue of disability in favor
of one group of employees. But, for the other group of employees, who appealed
from the district court's final judgment after a bench trial, the threshold disability
determination was not dispositive. Although these employees likewise were disabled
within the meaning of FEHA, the USCA affirmed the judgment in favor of UPS because
it established that the employees would "endanger the health or safety of
others to a greater extent than if an individual without a disability performed
the job." This satisfied FEHA's safety-of-others defense. Kleinfeld, Hawkins,
and Graber (author), Circuit Judges. A. Asaro of San Francisco, CA, for
the intervenors-appellants; K. Sears of San Francisco, CA, for the defendant-appellee.
(Download the full
text of this decision at www.cc9.uscourts.gov/)
13) HOSTILE WORK ENVIRONMENT: Dominguez-Curry v. Nevada Transportation Dept., 03-16959 (9th Cir. Sept. 14, 2005). The plaintiff sued her employer, the Nevada Department of Transportation, and her supervisor, Stacy, alleging that they subjected her to a hostile work environment and failed to promote her on the basis of her gender, in violation of Tittle VII of the Civil Rights Act of 1964. She appealed the district court's summary judgment in favor of the defendants. The USCA held that the plaintiff had presented ample evidence from which a reasonable trier of fact could conclude that she was subjected to a hostile work environment and that the decision not to promote her was motivated at least in part by her gender. The USCA thus reversed the district court's judgment and remanded for a trial on both of the plaintiff's Title VII claims. Judge Callahan agreed with the majority that the plaintiff had alleged sufficient facts to survive summary judgment on his hostile work environment claim, but thought that the district court had properly granted summary judgment on her failure to promote claim, as even if the USCA accepted that a trier of fact could find that Stacey was biased against women, the plaintiff had not rebutted the defendant's legitimate, nondiscriminatory reason for hiring a man and not promoting the plaintiff. The record, Judge Callahan thought, amply supports the defendant's assertion that the man hired was the best-qualified job applicant. Thomas, Paez (author), and Callahan (dissenting), Circuit Judges. K. McKenna of Reno, NV, for the appellant; B. Sandoval of Las Vegas, NV, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 14) LABOR LAW: Chamber of Commerce v. Lockyer, 03-55166 (9th Cir. Sept. 6, 2005). The National Labor Relations Act, as amended, extends to employees the opportunity to render a free and informed choice about union representation. In so doing, it allows for robust debate of union representation issues by employers and employees alike. At issue here was whether California Assembly Bill 1889, which bars employers from spending state funds on union-related speech, is preempted by the Act. The USCA found that the Bill chills employers from exercising their free speech rights that are explicitly protected by Congress under the Act. It undermines the balance established by Congress as between labor unions and employers, and it interferes with the Act's extension of exclusive jurisdiction to the NLRB for the adoption and enforcement of representation election rules. Dissenting, Judge Fisher thought the majority had erred in failing to recognize the court's responsibility to honor two interests to the extent possible: namely, the ability of states to control the use of their own funds, and the federal government's national labor policy. He thought the majority had given short shrift to California's sovereignty interests through an overbroad application of federal labor preemption doctrine that conflicts with both USCA and Supreme Court precedent, and that the majority's preemption analysis subverts important federalism principles. Beezer (author) and Fisher (dissenting), Circuit Judges, and England, District Judge. DAG S. Ambrose of Sacramento, CA, for the appellants; S. Kronland of San Francisco, CA, for the intervenors; B. Kampas of San Francisco, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/) 15) LABOR LAW: Recon Refractory v. NLRB, 03-73064 (9th Cir. Sept. 13, 2005). To decrease its labor costs, the petitioner reas-signed work previously performed by members of a bricklayers union and protected by the bricklayers' collective bargaining agreement, to employees represented by a technical workers union. The dispute is a work-preservation dispute between the petitioner and the bricklayers, not an inter-union jurisdictional dispute between the bricklayers and the technical workers. Because the petitioner itself precipitated the dispute in an attempt to avoid its obligations to the bricklayers, the USCA denied the petition for review of the National Labor Relations Board's decision quashing notice of hearing under Sec. 10(k) of the National Labor Relations Act. Hall, Wardlaw, and Paez (author), Circuit Judges. S. Atkinson of Cerritos, CA, for the petitioner; H. Rosen of Los Angeles, CA, for the petitioner-intervenor; M. Lieber of Washington, DC, for the respondent; D. Purtell for the respondent-intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/) 16) EMPLOYMENT DISCRIMINATION: Thorman v. American
Seafoods Co., 03-36012 (9th Cir. Sept. 1, 2005). Thorman, on behalf
of a class of similarly situated crew members, appealed the district court's grant
of summary judgment in favor of American Seafoods Company and American Seafoods
Company LLC (in personam defendants) as well as various vessels owned by these
companies (in rem defendants). The district court held that Thorman's claims were
time-barred because the contractual six-month limit on disputes had expired. The
USCA agreed and affirmed the district court's summary judgment order. Concurring,
Judge Ferguson agreed that Thorman's claims were time-barred and that he had neither
proven fraudulent concealment nor established a fiduciary duty on the part of
the defendants. While shipowners such as the defendants may not owe a fiduciary
duty to their seamen to disclose their internal pricing methodologies, Judge Ferguson
noted that they certainly owe a duty to act in good faith and to deal fairly in
performing and enforcing contracts. Ferguson (concurring), Beezer, and
McKeown (author), Circuit Judges. B. Bagshaw of Seattle, WA, for the plaintiffs-appellant;
J. Zulauf of Seattle, WA, for the defendants-appellees. (Download
the full text of this decision at www.cc9.uscourts.gov/)
18) LAND USE: Thornton v. City of St. Helens, 03-35994 (9th Cir. Sept. 6, 2005). Thornton owns the only auto wrecking yard in St. Helens, Oregon. He maintained that the City unlawfully conditioned approval of his annual applications to renew a state wrecking's certificate on compliance with local land use regulations. Following repeated delays in the processing of his renewal applications, he filed suit in district court. He alleged that the renewal procedures resulted in delays which amounted to a deprivation of property without due process. The district court denied relief, holding that Thornton did not have a property interest in the timely approval of his application. The USCA affirmed. It noted that an adverse judgment in a prior state court action brought by Thornton barred relitigation of the issue of whether the City has discretion to condition approval of renewal applications on compliance with local regulations. Because it had to accept the state court's determination that the City has discretion to deny a renewal application for noncompliance with local regulations, the USCA held that Thornton did not have a property interest in the timely renewal of his wreckers certificate. Goodwin, Tashima, and Clifton (author), Circuit Judges. J. Huffman of St. Helens, OR, for the appellants; C. Reniche-Smith of Portland, OR, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 19) FISHERY MANAGEMENT: Alaska Trojan Partnership v. Gutierrez, 04-35753 (9th Cir. Sept. 22, 2005). Alaska Trojan Partnership challenged the decision of Carlos Gutierrez, in his official capacity as Secretary of Commerce, together with certain government agencies, that denied Alaska Trojan's application for an Aleutian Islands brown king crab endorsement under the license limitations program for the Bering Sea and Aleutian Islands groundfish and crab fisheries. The defendants determined that Alaska Trojan made only two "documented harvests" of brown king crab in the endorsement area during the endorsement qualification period. They thus denied Alaska Trojan the endorsement. The USCA agreed with Alaska Trojan that it had made three "documented harvests" and thus was entitled to an endorsement. It also agreed with Alaska Trojan that the defendant's interpretation of the term "documented harvest" was inconsistent with the plain meaning of that term as defined in the regulations implementing the license limitation program. Goodwin, Brunetti (author), and W. Fletcher, Circuit Judges. M. Stanley of Juneau, AK, for the appellant; J. Kilbourne of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 20) ENERGY / PUBLIC UTILITIES: Bonneville Power Administration v. Federal Energy Regulatory Commission, 02-70262 (9th Cir. Sept. 6, 2005). Following the California energy crisis of 2000 and 2001, in an effort to remedy in part what it termed a "dysfunctional" and "seriously flawed" market, the Federal Energy Regulatory Commission ordered both public and non-public utilities to make refunds. In this appeal, various non-public utilities challenged the refund orders. They took the position that the FERC's refund author-ity extends only to "public utilities" and that the public entities, as government bodies, are not "public utilities" and are expressly exempted from FERC's refund jurisdiction. The USCA concluded that the FERC does not have refund authority over wholesale electric energy sales made by governmental entities and non-public utilities. Thomas, McKeown (author), and Clifton, Circuit Judges. H. Shapiro of Washington, DC, for the petitioner; D. Lane of Washington, DC, for the respondent FERC; D. Swanstrom of Washington, DC, for the intervenor Salt River Project Agricultural Improvement and Power District. (Download the full text of this decision at www.cc9.uscourts.gov/) 21) VEHICLE TOWING: Tillison v. Gregoire, 04-35539 (9th Cir. Sept. 19, 2005). The appellant, West Coast Towing Services ("Tilli-son") challenged Revised Code of Washington Sec. 46.55.080(2), which restricts patrol and non-consensual towing by: 1) requiring a towing company to obtain written authorization from a private property owner before towing a vehicle from the private property, or from a public official before towing a vehicle from public property, without the vehicle owner's permission; 2) requiring the private property owner or the public official be present for the tow; and 3) prohibiting the towing company from serving as an agent for the private property owner or the public official. Tillison maintained that Sec. 46.55.080(2) is preempted by the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"), which governs the prices, routes, or services of motor carriers transporting property (including tow truck operators). Tillison appealed the district court's order granting Washington State's summary judgment motion and dismissing the action. The USCA affirmed. The historic police powers of the State are not superseded by a Federal Act unless that was the clear and manifest purpose of Congress. Section 46.55.080(2) is not preempted by the FAAAA. Pregerson (author), Graber, and Gould, Circuit Judges. T. Hilts of San Diego, CA, for the appellant; AAG D. McDaniel of Olympia, WA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)
23) ADOPTION ASSISTANCE AND CHILD WELFARE ACT: ASW v. Oregon, 03-35950 (9th Cir. Sept. 13, 2005). The plaintiffs, parents of adopted children with special needs who receive adoption assistance payments from the State of Oregon, appealed the district court's dismissal of their class action under 42 USC Sec. 1983, which alleged several violations of their statutory rights under the Adoption Assistance and child Welfare Act of 1980, as well as their right to due process prior to reduction of their adoption assistance pay-ments. The State of Oregon moved to dismiss the action asserting that the plaintiffs failed to state a claim as a matter of law. The district court granted the State's motion. The USCA reversed, concluding that 42 USC Secs. 671(a)(12) and 673(a)(3) create federal rights enforceable through a Sec. 1983 cause of action. Hug, Tashima, and Clifton (author), Circuit Judges. M. Ramiu of San Francisco, CA for the plaintiffs-appellants; AAG D. Leith of Salem, OR, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 24) MEDICAID / NATIVE AMERICAN LAW: Alaska Department of Health and Social Services v. Centers for Medicare and Medicaid Services, 04-74204 (9th Cir. Sept. 12, 2005). The Alaska Dept. of Health and Social Services (the "State") petitioned for review of a final determination by the Administrator for the Centers for Medicare and Medicaid Services disapproving a proposed Medicaid state plan amendment that would alter the rate at which the federal government reimburses the State for expenditures on behalf of patients at Indian tribal health facilities. The Administrator rejected the proposed amendment on two alternative grounds: 1) that it was inconsistent with the statutory requirement of efficiency, economy, and quality of care; and 2) that it failed to comply with a regulation governing payment ceilings. The State challenged the Administrator's decision as arbitrary and capricious under the APA. The USCA concluded that the Administrator's interpretation of the statute and regulation were permissible and denied the petition for review. Goodwin, Brunetti (author), and W. Fletcher, Circuit Judges. C. Miller of Washington, DC, for the petitioner; G. Keating of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/) 25) RULE 11 SANCTIONS: Holgate v. Baldwin, 03-16532 (9th Cir. Sept. 30, 2005). This appeal centered on the appropriateness of Fed. R. Civ. P. 11 sanctions against Levinson, an attorney, for filing a baseless complaint. Levinson, as counsel for the Holgates, filed a compliant in district court alleging civil rights, RICO, and state causes of actions, resulting from the construction and financing of their home. The Holgates borrowed $640,000 from the Community Bank to build the home, but when faced with cost overruns, they borrowed $550,000 more from Newell and Baldwin. After the Holgates defaulted on this loan, Newell and Baldwin foreclosed and completed the construction. The Holgates then sued. Levinson appealed the district court's award of $12,000 in sanctions under Rule 11 to the defendants. He also appealed the denial of sanctions against Baldwin and the Bank. The USCA affirmed the award of sanctions to Baldwin and Newell, but reversed the award to Community Bank. It also affirmed the denial of sanctions to Levinson. D.W. Nelson (author), W. Fletcher, and Fisher, Circuit Judges. A. Bruzas of Las Vegas, NV, for the appellant; G. Warren of Las Vegas, NV, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 26) NATIVE AMERICAN LAW: Lewis v. Norton, 03-17207 (9th Cir. Sept. 13, 2005). The plaintiffs are siblings who brought this action against the U.S. claiming that they are entitled to recognition as members of the Table Mountain Rancheria, a federally-recognized In-dian tribe, and therefore to share in the revenue of that tribe's very successful casino near Fresno, California. Although their father is a recognized member of the tribe, their claim could not survive the double jurisdictional impact of sovereign immunity and lack of federal court jurisdiction to intervene in tribal membership disputes. The USCA thus affirmed the district court's dismissal of the action. Schroeder (author), Pregerson, and Trott, Circuit Judges. B. Leighton of Clovis, CA, for the plaintiffs-appellants; AUSA D. Luther of Sacramento, CA, for the defendant-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 27) NATIVE AMERICAN LAW: Wilbur v. Locke, 03-35911 (9th Cir. Sept. 9, 2005). The plaintiffs sought relief from an anticipated contract between the State of Washington and the Swinomish Indian Tribe regarding the taxation of cigarette sales by Indian retailers. The district court held that the Tax Injunction Act barred the action and dismissed it. The USCA affirmed, but on different grounds. While the district court held that the Tribe was not a necessary party, the USCA concluded that the State could not adequately represent the interests of the Tribe and thus that the Tribe was a necessary party and that a balance of the four tests in Fed. R. Civ. Proc. 19(b) supported dismissal of the action. Wallace (author), Silverman, and Paez, Circuit Judges. J. Lobsenz of Seattle, WA, for the appellants; AAG D. Hankins of Olympia, WA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/) 28) IMMIGRATION: Jiang v. Gonzales, 03-71837 (9th Cir. Sept. 23, 2005). Jiang sought review of the BIA's summary affirmance of the Immigration Judge's decision to deny his request to renew, during removal proceedings, a previously denied application for adjustment of status under the Chinese Student Protection Act of 1992. The IJ denied the request on the ground that Jiang did not meet the eligibility requirements to renew his application under 8 CFR Sec. 1245.2; the IJ thus, lacked jurisdiction to grant the request. The USCA denied Jiang's petition for review. As an "arriving alien," Jiang was not eligible to renew his application for adjustment of status during removal proceedings. The USCA joined the First and District of Columbia Circuits in rejecting Jiang's argument that he was not an arriving alien because he was inspected and admitted when he entered the U.S. on "transit-without-visa" status in 1989. The USCA also rejected Jiang's contention that he was not an arriving alien because his "deferred enforced departure" status was a special form of lawful status conferred by E.O. 12711. A plain reading of E.O. 12711 requires maintenance of lawful status for People's Republic of China nationals who already have lawful status, but does not confer lawful status in the first instance as Jiang argued. Similarly, the USCA rejected Jiang's claim that 8 CFR Sec. 1245.2(a) is invalid because it violates INA Sec. 245(a). Bright, Tashima, and Callahan (author), Circuit Judges. M. Van Der Hout of San Francisco, 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/) 29) IMMIGRATION: Cabrera-Alvarez v. Gonzales, 04-72487 (9th Cir. Sept. 8, 2005). The petitioner sought cancellation of removal in order to prevent hardship to his two young children, who are U.S. citizens. He argues that the immigration judge, in denying him can-cellation of removal, interpreted the "exceptional and extremely unusual hardship" standard, 8 USC Sec. 1229b(b)(1)(D), in a manner in-consistent with international law and thus in violation of the presumption that Congress intends to legislate in a manner consistent with international law. Specifically, the petitioner argued that the cancellation-of-removal statute must be interpreted consistently with Art. 3(1) of the United Nations Convention on the Rights of the Child which states that in all actions concerning children, the best interests of the child shall be a primary consideration. The USCA denied the petition. Even assuming that the unratified Convention had attained the status of customary international law, the petitioner failed to demonstrate that the agency's interpretation or application of the statute is inconsistent with the Convention. Judge Pregerson dissented. He thought the cancellation of removal statute did not honor the concept of family values and the need to keep families together. Pregerson (dissenting), Graber (author), and Gould, Circuit Judges. R. Pritchett of Bellingham, WA, for the petitioner; A. Poczter of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 30) IMMIGRATION: Bhasin v. Gonzales, 03-73481 (9th Cir. Sept. 1, 2005). Bhasin, a native and citizen of India, petitioned for review of the BIA's denial of her motion to reopen her proceedings following its decision dismissing her appeal of the IJ's denial of applications for asylum and withholding of removal. Because the USCA concluded that Bhasin established prima facie eligibility for withholding of removal through evidence not available at the time of the original hearing, and because the BIA otherwise abused its discretion in denying the motion to reopen, the USCA granted the petition for review and remanded to the BIA with instructions to either grant relief or remand to the IJ for a hearing on the newly presented evidence. The USCA also held that it was error for the BIA to deny the motion as a matter of discretion under the fugitive disentitlement doctrine. Lay, B. Fletcher (author), and Hawkins, Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; V. Lawrence of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 31) IMMIGRATION: Jibril v. Gonzales, 03-72118 (9th Cir. Sept. 19, 2005). The immigration judge held that Jibril was ineligible for asylum and assumed that he could not meet the higher standard necessary to prove entitlement to withholding of removal. The USCA re-manded the withholding issue so the INS could apply the law to the fact in the first instance, accepting Jibril's testimony as credible and paying particular attention to the supporting evidence in the Country Reports concerning the status of the Yibir in Somalia and retaliation against those suspected of collaborating with the Barre regime. Jibril is a member of the Yibir, a disfavored minority without land or power in Somalia. O'Scannlain (author) and Rawlinson, Circuit Judges, and Whaley, District Judge. S. Colon of Houston, TX, for the petitioner; T. Miller of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 32) IMMIGRATION: Martinez-Rosas v. Gonzales, 04-36150 (9th Cir. Sept. 9, 2005). Martinez-Rosas, a native and citizen of Mexico, appealed the district court's order dismissing her 28 USC Sec. 2241 habeas petition, which challenged the order of removal entered by an immigration judge and affirmed by the Board of Immigration appeals. The USCA treated the appeal as a petition for review pursuant to Sec. 106(a) of the REAL ID Act of 2005 and dismissed in part and denied in part. Habeas appeals challenging final removal orders that were pending on the date the Act became effective are to be treated as petitions for review. Thompson, T.G. Nelson, and Wardlaw (author), Circuit Judges. N. Marchi of Seattle, WA, for the petitioner; AUSA W. Beatty of Spokane, WA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 33) IMMIGRATION: USA v. Hovsepian, 99-50041 (9th Cir. Sept. 6, 2005). The USCA heard this case en banc for the second time. The first time, it reversed the district court's decision to administer the oath of citizenship to the appellees because of legal errors in the dis-trict court's consideration of their applications for naturalization. On remand, the government pursued additional discovery and the district court took further evidence and heard argument, again finding that the appellees had established that they possess good moral character, as required by 8 USC Sec. 1427(a)(3). The district court ratified its earlier administration of the oath of allegiance and the swearing in of the appellees as citizens. The government appealed, and the USCA affirmed, finding that the district court's conclusion that the appellees were of good moral character was not clearly erroneous and that the district court committed no legal error in re-analyzing the evidence following the remand. Schroeder, D.W. Nelson, Kleinfeld, Hawkins, Thomas, Graber (author), McKeown, Gould, Paez, Berzon, and Clifton, Circuit Judges. AUSA A. Tabbador of Los Angeles, CA, for the defendants-appellants; B. Litt of Los Angeles, CA for the plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 34) IMMIGRATION: Smolniakova v. Gonzales, 03-71600 (9th Cir. Sept. 7, 2005). The petitioner, a native and citizen of Russia, sought review of a BIA order denying her requests for asylum, withholding of removal, and review of the termination of her conditional permanent resident status. The IJ dismissed the asylum claim based on findings that the petitioner lacked credibility, failed to establish past persecution on account of an enumerated ground, and did not have a well-founded fear of future persecution. The IJ denied the petitioner's request to review the termination of her conditional resident status on the ground that she had not met her "heavy burden" of proving that her 1993 marriage to a U.S. citizen was genuine. The IJ thus found her deportable. The IJ granted her voluntary departure in lieu of removal. The BIA affirmed without opinion. The USCA held that substantial evidence did not support the IJ's adverse credibility finding in the asylum context and that the petitioner was statutorily eligible for asylum. It remanded for an exercise of discretion on the asylum claim and for a review of her claim of withholding of removal. The USCA also reversed and remanded the IJ's denial of the petition for review of the termination of her conditional resident status. The USCA reversed the IJ's holding that because the petitioner conditional resident status was validly terminated, she was deportable. It instructed the BIA to grant the petitioner a new hearing in which she has a full and fair opportunity to establish her credibility in the qualifying marriage context. On remand, the IJ shall also determine whether the government has met its burden of establishing by a preponderance of the evidence that the petitioner did not intend to establish a life together with her husband at the time of their marriage. D.W. Nelson (author), Reinhardt, and Thomas, Circuit Judges. R. Wells of Seattle, WA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/) 35) IMMIGRATION: Bona v. Gonzales, 03-71596
(9th Cir. Sept. 30, 2005). Bona's husband has served 19 years in the U.S. Navy.
She is a naturalized citizen who arrived in the U.S. in 1991 with her three children
as endangered family members of a serviceman when Mt. Pinatubo erupted in the
Philippines. She was placed in removal proceedings eight years later and denied
the ability to apply for adjustment of status under an INS regulation because
she was paroled into the US at the time of her arrival in 1991. The USCA held,
in agreement with Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), that
the regulation is in conflict with the government statute and is thus invalid.
Under the statute Bona is entitled to apply for adjustment in the removal proceedings.
Hug (author), Ferguson, and Hawkins, Circuit Judges. S. Folinsky of Los
Angeles, CA, for the petitioner; E. Wilson of Washington, DC, for the respondent.
(Download the full
text of this decision at www.cc9.uscourts.gov/)
37) INEFFECTIVE ASSISTANCE: Washington v. Lampert, 04-35381 (9th Cir. Sept. 6, 2005). Washington, a state prisoner convicted of aggravated murder and other offenses, appealed the district court's denial of his habeas petition. He had asserted ineffective assistance of counsel in the negotiation and execution of his sentencing stipulation, which waived his right to appeal in exchange for a stipulated sentence of life imprisonment with the possibility of parole. The USCA affirmed. Washington's waiver of his right to file a habeas petition was enforceable with respect to an ineffective assistance claim that challenged the validity of the waiver itself. Washington pointed to no evidence demonstrating that his agreement to enter into the sentencing stipulation was not voluntary, knowing, or intelligent. Hug, Tashima (author), and Clifton, Circuit Judges. AFPD C. Dahl of Portland, OR, for the petitioner; J. Lloyd of Salem, OR, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/) 38) SEARCH & SEIZURE: USA v. Hernandez, 04-50286 (9th Cir. Sept. 14, 2005). Hernandez appealed from his conditional-plea conviction for the importation of marijuana. He maintained that the border agents conducted an unreasonable search of his vehicle when agents dismantled the interior panels of its doors, revealing the marijuana. Hernandez moved to suppress evidence of the marijuana, contending that the search was unreasonably destructive, and that because the search was unsupported by probable cause, it violated the Fourth Amendment. The USCA held that the initial search of the vehicle, which involved merely pulling back the interior panels of the doors on the vehicle in such a manner that they could be replaced without damage, was not especially destructive or otherwise carried out in an offensive manner. The USCA thus affirmed the conviction. B. Fletcher (author), Rymer, and Fisher, Circuit Judges. AFPD L. Schoenberg of San Diego, CA, for the appellant; AUSA M. Rehe of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 39) SEARCH & SEIZURE: USA v. Flores-Montano, 04-50497 (9th Cir. Sept. 14, 2005). Flores-Montano appealed from the denial of his motion to suppress evidence and the resulting conditional-plea conviction for "illegal importation of merchandise" after border inspectors found 37 kilograms of marijuana in the gas tank of his vehicle during a board search. He maintained that inspectors unlawfully searched his gas tank in violation of 19 USC Sec. 482, which he contends requires some "subjective" or "good faith" suspicion prior to conducting a search. The USCA held that 19 USC Sec. 1581(a), not Sec. 482, authorizes and governs vehicle searches at the border. Because Sec. 1581(a) contains no suspicion requirement, the USCA affirmed the conviction. B. Fletcher, Rymer, and Fisher, Circuit Judges. Per Curiam. B. Coleman of San Diego, CA, for the appellant; AUSA M. Rehe of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 40) SEARCH & SEIZURE: USA v. Chaudhry, 04-50421 (9th Cir. Sept. 14, 2005). Chaudhry appealed from her conditional-plea conviction for the importation of marijuana. She maintained that the border agents conducted an unreasonable search of her vehicle when the agents drilled a 5/16-inch hole in the bed of her pickup truck, revealing a blue plastic material inside the bed of her truck. That discovery led agents to unveil several packages of marijuana located under a false bed of the truck. Chaudhry moved to suppress the evidence, but that motion was denied. The USCA concluded that a single hole with a diameter of 5/16 of an inch does not constitute a property search that is "so destructive as to require a different result." Judge Fletcher concurred but wrote separately to express her distaste for the government's "game-playing" in this case and in two others heard on the same calendar. In each case there was reasonable and articulable suspicion of drug smuggling, but the government wanted confirmation that no suspicion is required for extensive, intrusive searches at the border. This would have an ancillary benefit for the government-it would not have to prove the reliability of its drug sniffing dogs. Also concurring, Judge Fisher also expressed his concern with the government's decision in this and other cases, including USA v. Flores-Montano, 04-50447, and USA v. Hernandez, 04-50286, to eschew reliance on dog alerts or other evidence supporting reasonable suspicion. While joining in the resolution of these three case on their respective merits, given the limited nature and scope of the initial search, he did not endorse or feel bound by the government's litigation strategy. B. Fletcher (author and concurring), Rymer, and Fisher (concurring), Circuit Judges. AFPD C. Scolnick of San Diego, CA, for the appellant; AUSA M Rehe of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)
42) ARRESTS: Burrell v. McIlroy, 02-15114 (9th Cir. Sept. 19, 2005). Burrell, a felon with a lengthy history of arrests, was suspected by Los Vegas police of possessing illegal weapons and drugs. Detective McIlroy applied for a search warrant to search Burrell's apartment at 1750 Karen Avenue, stating that he had obtained current and past information from reliable informants leading him to believe that Burrell was trafficking in drugs and possessed firearms. Detective Rector followed Burrell from 1750 Karen to an apartment at 1500 Karen, where he stopped and detained Burrell before Burrell entered that apartment. Burrell was then transported back to 1750 Karen where he and others officers waited for the search warrant to be issued. The subsequent search yielded a .38 caliber revolver, a shotgun, and 2.73 grams of cocaine. A search of 1500 Karen then yielded two scales commonly used to weigh narcotics for sale, a Mosberg 12 gauge shotgun, a bag of shotgun shells similar to those recovered at 1750 Karen. Burrell was charged and then indicted by a federal grand jury of being a convicted felon in possession of a firearm. He later sued the detectives under 42 USC Sec. 1983 for violating his Fourth Amendment rights. The district court granted the officers' motion for summary judgment, finding that they had probable cause and did not use excessive force in arresting Burrell, and that the searches of the two apartment were reasonable under the Fourth Amendment. The USCA affirmed. It held that, assuming without deciding that the encounter outside 1500 Karen was an arrest and that the police lacked probable cause to arrest Burrell at that time, a reasonable officer in Rector's position would have believed that he had probable cause to arrest Burrell and use force in doing so. Judge Oakes dissented from the majority's holding that Rector was entitled to qualified immunity. Judge Oakes would have held on uncontroverted facts that Burrell established a Fourth Amendment violation by the initial warrantless arrest in the absence of probable cause, which was lacking up until the moment officers discovered a weapon in Burrell's apartment. Judge Oakes would also hold that no reasonable officer in Rector's position could have believed that he could properly arrest Burrell without probable cause, or that a detention, must less an arrest, could otherwise be justified as incident to a search under Michigan v. Summers, 452 US 692 (1981), where a search warrant had not yet been issued. Oakes (dissenting), Kleinfeld, and Callahan (author), Circuit Judges. S. Engel of Washington, DC, for the plaintiff-appellant; P. Angulo of Las Vegas, NV, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 43) EVIDENCE / CIVIL PROCEDURE: McSherry v. City of Long Beach, 03-57064 (9th Cir. Sept. 8, 2005). McSherry brought this action against the City of Long Beach, alleging that it and two of its police officers violated his constitutional rights during an investigation that lead to his conviction for child molestation. As a result, he served nearly 14 years of a 48-year to life sentence before DNA evidence exonerated him and he was ordered released. McSherry appealed the district court's order granting Long Beach's motion for judgment as a matter of law under Fed. R. Civ. Proc. 50. The court granted the defendants' motion on the first day of trial, prior to the presentation of any evidence. The USCA held that the motion was inappropriately granted as a matter of law before any evidence had been presented. It thus reversed and remanded the district court's decision. Farris, D.W. Nelson (author), and Tallman, Circuit Judges. M. Borenstein of Los Angeles, CA, for the appellant; N. Hong of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 44) BATSON VIOLATIONS: USA Esparza-Gonzales, 04-10267 (9th Cir. Sept. 6, 2005). Esparza-Gonzales appealed from his conviction under 8 USC Sec. 1326(a), for being an alien unlawfully present in the U.S. after an earlier removal. He alleged that two Equal Protection violations under Batson v. Kentucky, 476 US 79 (1986), occurred during jury selection and required that his conviction be over-turned. In the alternative, he argued that the district court erred in applying a 16-level sentence enhancement pursuant to U.S. Sentencing Guidelines Sec. 2L1.2(b)(1)(A)(I) to his unlawful reentry conviction based on a prior drug trafficking conviction, which was not presented as evidence to the jury. The USCA held that for purposes of determining whether a prima facie case of a Batson violation has been established, waivers of peremptory strikes in a struck jury system should be treated the same as exercises of peremptory strikes in an alternative system. The USCA thus reversed in part and remanded in part. D.W. Nelson (author), W. Fletcher, and Fisher, Circuit Judges. C. Hahn of Reno, NV, for the appellant; AUSA R. Rachow of Reno, NV, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/) 45) SENTENCING: USA v. Smith, 03-10548 (9th Cir. Sept. 13, 2005). The defendants advised their clients to transfer all of their income and assets-including their businesses, homes, relatives' homes, furniture, jewelry, cars, and even pets-into trusts which purportedly avoided taxes on income streamed into them. The defendants then charged their clients fees to set up and conduct transactions for these trusts, only to later steal their money. The defendants now appealed their convictions and sentences on multiple counts of tax fraud, mail and wire fraud, money laundering, and conspiracy. The USCA affirmed the convictions in all respects but remanded the sentences pursuant to USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). First, the USCA held that the magistrate had authority to arraign defendant Smith. Second, it found that it was not clear or obvious that the three conspiracies charged were multiplicitous, even at the sentencing stage. The defendants failed to show plain error. Third, given that Smith made no factual allegation of actual bias on the part of any grand juror in his case, he has not shown substantial proof of grand jury bias, let alone prejudice. Thus, the district court did not err in denying dismissal of the indictment on this ground. Fourth, there was no evidence that the officers executing either warrant at issue in this case relied upon them in bad faith because they lacked the court seal, and no evidence of deliberate disregard of 28 USC Sec. 1691. Kleinfeld, Hawkins (author), and Graber, Circuit Judges. J. Balaza and V. Haltom of Sacramento, CA, for the appellants; AUSA S. Spangler of Sacramento, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 46) SENTENCING: USA v. Murillo, 04-30508 (9th Cir. Sept. 9, 2005). The USCA held that, notwithstanding Blakely v. Washington, 542 US 296 (2004), in determining whether a Washington state criminal conviction is a crime punishable by a term exceeding one year for purposes of prosecution under 18 USC Sec. 922(g)(1) (felon in possession of a firearm), the maximum sentence for the prior conviction is defined by the state criminal statute, not the maximum sentence in the particular case set by the Washington's sentencing guidelines. Thompson (author), T.G. Nelson, and Wardlaw, Circuit Judges. AUSA K. Bolton 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/) 47) SENTENCING / SUPERVISED RELEASE: USA v. Stephens, 04-50170 (9th Cir. Sept. 2, 2005). Stephens appealed the sentence imposed by the district court upon the revocation of his supervised release. He was on supervised release as part of his sentence, following the entry of a guilty plea to importation of marijuana. At issue was whether the district court improperly delegated its authority to determine the number, frequency, timing, and manner of substance abuse testing and treatment to which Stephens would be subjected during the term of his supervised release. The USCA held that the requirement that Stephens participate in substance abuse treatment, including in-treatment drug testing, was an order of the district court. Thus, there was no improper delegation of Article III judicial authority to the probation department as to whether Stephens would participate. The USCA also held that, as part of a court ordered treatment program, a defendant maybe required to undergo regular drug testing, in addition to the number of tests that are ordered as part of his supervised release. However, the testing condition imposed in this case was an improper delegation of the district court's duty to set the maximum number of non-treatment drug tests to which Stephens would be subjected during the course of his supervised release. The USCA vacated the sentence and remanded. Judge Clifton dissented from that part of the majority's decision holding that a probation officer is not permitted to determine the maximum number of drug tests that may be required of the convicted defendant if the testing is conducted outside of a specified treatment program, even where the sentencing court has explicitly ordered testing and specified a minimum number of tests. Reinhardt and Clifton (dissenting in part), Circuit Judges, and Weiner (author), District Judge. A. Fontier of San Diego, CA, for the defendant; AUSA C. Lam of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/) 48) SENTENCING: USA v. Lewis, 03-30281 (9th Cir. Sept. 1, 2005). The USCA affirmed the conviction and sentence in this case in July of 2004. The Supreme Court granted certiorari and vacated the decision and remanded the case in light of USA v. Booker, 125 S.C. 738 (2005). Because the petitioner did not challenge his sentence on Sixth Amendment grounds in the district court, the USCA granted a limited remand pursuant to USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). Hall (author), Kleinfeld, and Wardlaw, Circuit Judges. T. Ridle of Anchorage, AK, for the appellant; AUSA K. Loeffler of Anchorage, AK, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 49) SENTENCING: USA v. Kelly, 04-30074 (9th Cir. Sept. 6, 2005). The government appealed Kelly's 120-month sentence for possession with intent to distribute over 5 grams of cocaine base. It maintained that the district court erred in finding that Kelly's 1998 Wash-ington state conviction for attempting to elude a police vehicle was not a "crime of violence" under U.S. Sentencing Guideline Sec. 4B1.2(a), and thus not a predicate conviction for the career offender enhancement of Sec. 4B1.1. The USCA agreed that Kelly's conviction for attempting to elude a police vehicle is not a "crime of violence" within the meaning of Sec. 4B1.2(a)(2). Alarcon, W. Fletcher (author), and Rawlinson, Circuit Judges. T. Rice of Spokane, WA, for the appellant; K. Deate of Spokane, WA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 50) SENTENCING: USA v. Dare, 04-30202 (9th Cir. Sept. 23, 2005). Dare appealed his statutory mandatory minimum ten-year sentence imposed pursuant to 18 USC Sec. 924(c) for discharging a firearm during the course of a drug trafficking crime. He maintained that he was sentenced in violation of the Sixth Amendment and that the district court erred in using a preponderance of the evidence standard when it found that he discharged a firearm. The USCA held that Dare's mandatory minimum sentence imposed through judicial fact-finding utilizing a preponderance of the evidence standard did not violate the Sixth Amendment pursuant to Harris v. USA, 536 US 545 (2002). Dissenting, Judge Bea thought that Harris was no longer good law in cases where a defendant receives a sentence, based on facts found by a judge other than a prior conviction, that is higher than the maximum sentence the judge could have imposed based solely on facts either admitted by the defendant or found by a jury beyond a reasonable doubt. O'Scannlain, Leavy (author), and Bea (dissenting), Circuit Judges. M. Donahoe of Helena, MT, for the appellant; AUSA P. Stewart of Helena, MT, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 51) SENTENCING: USA v. Kortgaard, 03-10421 (9th Cir. Sept. 21, 2005). Kortgaard appealed his conviction and sentence on marijuana charges. The USCA held that upward departure under Guideline Sec. 4A1.3 involve factual findings beyond the fact of a prior conviction. Because Kortgaard's sentence was increased under Sec. 4A1.3 and exceeded the maximum authorized sentence based solely on the jury's verdict under the then-mandatory Guidelines, the USCA vacated the sentence and remanded for resentencing in light of USA v. Booker, 125 S.Ct 738 (2005). Brunetti (author), Graber, and Bybee, Circuit Judges. D. Klein of Honolulu, HI, for the appellant; AUSA M. Kawahara of Honolulu, HI, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 52) SENTENCING: USA v. Cruz, 03-35873 (9th Cir. Sept. 16, 2005). USA v. Booker, 125 S.Ct 738 (2005), does not apply retroactively to convictions that became final prior to its publication. Goodwin, Brunetti, and W. Fletcher, Circuit Judges. Per Curiam. M. Ahearn of Anchorage, AK, for the defendant-appellant; AUSA R. Pomery of Anchorage, AK, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/) 53) DEATH PENALTY: Earp v. Stokes, 03-99005 (9th Cir. Sept. 8, 2005). Earp is on death row after having been convicted in Los Angeles County of the 1988 rape and murder of an 18-month-old girl. The jury convicted Earl of first-degree murder and found three death-qualifying special circumstances: rape, sodomy, and lewd and lascivious conduct on a child under the age of fourteen. In the penalty phase, the jury recommended that Earp be put to death. The California Superior Court imposed that sentence. All reviewing courts upheld Earp's conviction and death sentence on direct appeal, and summarily denied his state habeas petition on the merits without affording Earp an evidentiary hearing on any of his claims. The U.S. Supreme Court denied certiorari. Earp then filed a habeas petition in federal district court, raising 19 constitutional claims. The district court denied the petition on all claims. The USCA affirmed the district court on 7 of the claims raised on appeal, and vacated and remanded for an evidentiary hearing on the two remaining claims. Specifically, the USCA held that Earp had alleged facts which, if true, may entitle him to relief on his prosecutorial misconduct and ineffective assistance of counsel claims. Because he has never been afforded an evidentiary hearing on these claims, the USCA remanded to the district court for such a hearing. It also held that the state court determination that counsel was not laboring under a conflict of interest was neither contrary to, nor an unreasonable application of, established federal law because the Supreme Court has expressly limited its conflict jurisprudence to cases involving multiple, concurrent representation. The USCA thus affirmed the summary judgment in part, reversed in part, and remanded for the evidentiary proceedings. Farris, D.W. Nelson, and Tallman (author), Circuit Judges. R. Gerstein of Santa Monica, CA, for the petitioner; DAG J. Bilderback of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 54) HABEAS CORPUS: Williams v. Bodo, 04-15465 (9th Cir. Sept. 7, 2005). Williams appealed the district court's denial of her habeas petition. The district court held that the Nevada Supreme Court's rejection of her double jeopardy claim neither contravened nor un-reasonably applied clearly established federal law, as determined by the U.S. Supreme Court. At issue was Williams' asserted simultaneous conviction and acquittal, under two separate theories, for violating the single offense of "Driving Under the Influence of Intoxicating Liquor or Controlled or Prohibited Substance" under Nev. Rev. Stat. Sec. 484.3795(1). Williams argued that because she was charged under two subsections of the statute and the trial court treated the alternate bases of criminal liability as separate offenses by having the jury return verdict on each theory, her acquittal under one theory barred conviction under the other. The USCA found this argument to be without merit and affirmed the district court's denial of the petition. D.W. Nelson (author), W. Fletcher, and Fisher, Cir-cuit Judges. J. Watkins of Las Vegas, NV, for the petitioner; B. Sandoval of Las Vegas, NV, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/) 55) HABEAS CORPUS: Jackson v. Roe, 02-56210 (9th Cir. Sept. 23, 2005). Jackson filed a "mixed" 28 USC Sec. 2254 habeas petition. The district court refused to stay proceedings so that he could exhaust an unexhausted claim, which was at that time pending before the California Supreme Court. However, Rhines v. Weber, 125 S.Ct. 1528 (2005), holds that a federal court must, in limited circumstances, stay a mixed petition to allow a petitioner to present an unexhausted claim to a state court for review. Under Rhines, a district court's decision to grant or deny a stay is reviewed for abuse of discretion. Because the district court in this case failed to apply the standards regarding staying a mixed habeas petition enunciated in Rhines-understandably, as Jackson's petition was dismissed almost three years prior to the decision in Rhines-the USCA vacated and remanded to allow the district court the opportunity to do so. Reinhardt, Kozinski, and Berzon (author), Circuit Judges. G. Fusilier of Carlsbad, CA, for the petitioner; AAG R. Anderson of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 56) HABEAS CORPUS: Osborne v. District Attorney's Office, 04-35126 (9th Cir. Sept. 8, 2005). Osborne, an Alaska prisoner, ap-pealed the district court's dismissal of his action, brought under 42 USC Sec. 1983, to compel the State to release certain biological evi-dence used to convict him in 1994 of kidnapping and sexual assault. He maintained his innocence and hoped to subject the evidence, at his expense, to more sophisticated DNA analysis than was available at the time of his trial. He alleged that by refusing him post-conviction access to the evidence, the State violated his constitutioal rights. Without reaching the question of whether there exists a constitutional right of post-conviction access to DNA evidence, the district court dismissed Osborne's action for failure to state a claim. It ruled that because Osborne sought to "set the stage" for an attack on his underlying conviction, his Sec. 1983 action was barred by Heck v. Humphrey, 512 US 477 (1994), and thus a habeas petition was his sole remedy. On appeal, Osborne maintained that the district court applied a more restrictive standard than that enunciated in Heck, and submitted that success on the merits of his Sec. 1983 claim would not "necessarily imply" the invalidity of his state court conviction. The USCA agreed, reversed the district court's judgment, and remanded for further proceedings. Goodwin, Brunetti (author), and W. Fletcher, Circuit Judges. R. Bundy of Anchorage, AK, for the appellant; AAG N. Simel of Anchorage, AK, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/) 57) HABEAS CORPUS: Barker v. Fleming, 04-35911 (9th Cir. Sept. 8, 2005). This habeas petition addresses whether the prosecution in a robbery case suppressed evidence in violation of Brady v. Maryland, 373 US 83 (1963). In analyzing this issue, the Washington Supreme Court failed to consider the cumulative effect of the undisclosed evidence. Its decision thus was contrary to clearly established Supreme Court precedent. Even so, the USCA held upon de novo review that the witness, who would have been impeached by the suppressed evidence, was so severely discredited and not so critical to the prosecution's case that there is no reasonable probability that the withheld evidence would have affected the outcome. Hug, Thompson, and McKeown (author), Circuit Judges. J. McMurtrie of Seattle, WA, for the appellant; AAG G. Rosen of Olympia, WA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 58) HABEAS CORPUS: Sims v. Brown, 03-99007 (9th Cir. Sept. 21, 2005). Sims was convicted of the first degree murder of a Dom-ino's Pizza employee who delivered a pizza to Sims and his girlfriend at their motel room, and the attempted murder of two other Domino's employees. He was sentenced to death. The California Supreme Court affirmed. After his state habeas petition was denied, Sims filed a federal habeas petition which, following an evidentiary hearing, the district court denied. The USCA affirmed. Neither the individual claims nor the cumulative effect of any constitutional errors prejudiced Sims. Judge Fletcher concurred in the majority's disposition of Sims's guilt-phase claims, but dissented from the denial of habeas relief with respect to his death sentence. B. Fletcher (dissenting in part), Rymer (author), and Fisher, Circuit Judges. T. Morrison of Ithaca, NY, for the petitioner; DAG D. Glassman of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 59) HABEAS CORPUS: Menendez v. Terhune, 03-55863 (9th Cir. Sept. 7, 2005). The petitioners, Lyle and Erik Menendez, appealed the district court's denial of their habeas petitions. The USCA affirmed, rejecting the petitioners' five contentions on appeal: 1) that the admission of a tape-recorded session between the petitioners and their therapists violated their constitutional due process rights as elaborated in Ake v. Oklahoma, 470 US 68 (1985); 2) that the trial court's decision not to instruct the jury on "imperfect self-defense" violated the petitioners' right to due process; 3) that the exclusion of certain evidence violated the petitioners' due process rights in that the trial court required that they first lay a foundation, which could only be done if they testified; 4) that the exclusion of certain lay and expert testimony violated the petitioners' due process rights and Sixth Amendment right to present a defense; and 5) that Lyle's due process rights were violated when the prosecutor commented on the lack of evidence regarding abuse and the lack of experts, both of which the prosecutor had successfully moved to exclude. Kozinski, Trott (author), and Clifton, Circuit Judges. C. Gardner of San Francisco, CA, and L. Gibbs of Berkeley, CA, for the petitioners; DAG K. Byrne of Los Angeles, CA, for the respondents.(Download the full text of this decision at www.cc9.uscourts.gov/) 60) PRISONERS' RIGHTS: Brown v. Valoff, 03-16502 (9th Cir. Sept. 6, 2005). As issue here was the application of the Prisoner Litigation Reform Act's exhaustion requirement to circumstances in which an inmate has filed a grievance with a prison grievance system and, having received some relief before the final level of review, does not pursue his grievance further. The district courts certified interlocutory appellate review for these consolidated cases. The USCA concluded that plaintiff Brown adequately exhausted the available grievance process but that plaintiff Hall did not. Hall did not await the completion of the staff misconduct investigation before filing his complaint in district court. For that reason, as well as because his grievance and federal court complaint both addressed issues separate from the excessive force staff complaint as to which a full investigation was conducted, the defendant met his burden of demonstrating that Hall did not exhaust "such administrative remedies as are available." The USCA thus reversed the district court's decision as to Hall. Judge Reinhardt concurred as to Hall and dissented as to Brown. He thought that neither Brown nor Hall exhausted all of the administrative relief available through the California Department of Corrections grievance process and because Booth v. Churner, 532 US 731 (2001), requires that in such circumstances their complaints be dismissed. Reinhardt (dissenting in part), Thompson, and Berzon (author), and Clifton, Circuit Judges. DAG D. Carrasco of Sacramento, CA, and DAG B. Sutliffe of San Francisco, CA, for the defendants-appellants; P. Brown pro se; T. Riordan of Sacramento, CA, for defendant-appellant Hall. (Download the full text of this decision at www.cc9.uscourts.gov/) MEMORANDA
3) BANKRUPTCY:
In re Upland Partners, 04-17170 (9th Cir. Sept. 2, 2005) (unpublished).
Wallace, Thomas, and W. Fletcher, Circuit Judges. 4) BANKRUPTCY: In re Upland Partners, 04-17205
(9th Cir. Sept. 2, 2005) (unpublished). Wallace, Thomas, and W. Fletcher,
Circuit Judges. 6)
RELIGIOUS DISCRIMINATION: Shymatta v. Microsoft Corporation, 04-55206
(9th Cir. Sept. 27, 2005) (unpublished). Reinhardt, Rymer, and Hawkins,
Circuit Judges. 7)
PROPERTY / TAKINGS: Venture Group Ventures, Inc. v. California, 03-57004
(9th Cir. Sept. 16, 2005) (unpublished). Farris, D.W. Nelson, and Tallman,
Circuit Judges. 8) FRANCHISE LAW: Adees Corporation
v. Avis Rent A Car Systems, Inc., 03-57227 (9th Cir. Sept. 16,
2005) (unpublished). Silverman and Callahan, Circuit Judges, and Duffy,
District Judge. 9) HABEAS CORPUS: Earp v. Stokes,
03-99005 (9th Cir. Sept. 8, 2005). Earp, on death row after being convicted in
Los Angeles County of the rape and murder of an 18-month-old girl, appealed the
dismissal of his habeas petition. The USCA considered and rejected Earp's claims
that the prosecutor committed misconduct by commenting on Earp's silence, misstating
the burden of proof, and stating his personal opinion of Earp's guilt, and Earp's
claim that the cumulative effect of this alleged misconduct violated his right
to due process. The USCA also upheld the district court's decision not to grant
evidentiary hearings on Earp's claims that his counsel was ineffective for failing
to articulate a consistent defense, and for improperly eliciting testimony from
he defense investigator. Because Earp did not fail to develop the claims for which
he requested an evidentiary hearing in state court, he was entitled to a hearing
if he established that he did not receive a full and fair opportunity to develop
the facts of his claim in state court and if he has alleged facts that, if proven,
would entitle him to habeas relief. Williams v. Woodford, 384 F.3d 567,
586 (9th Cir. 2004). The USCA affirmed the district court's conclusion that the
state court's rejection of Earp's prosecutorial misconduct claims was neither
contrary to nor an unreasonable application of established federal precedent.
The crux of Earp's prosecutorial misconduct argument was that the prosecutor violated
Doyle v. Ohio, 426 US 610 (1976), by impermissibly commenting on Earp's
silence. The state court found that any Doyle error was harmless because Earp
was thoroughly discredited without the challenged statement. The state court's
decision was not contrary to clearly established federal law because it recognized
Chapman v. California, 386 US 18 (1967), as controlling the harmless error
determination. The decision was not an unreasonable application of Chapman because
it was not objectively unreasonable for the court to conclude from the record
before it that any Doyle error was harmless beyond a reasonable doubt. Earp's
counsel failed to object at trial to the portion of the prosecutor's closing argument
that Earp now claims misstated the burden of proof. Typically, such a violation
of California's simultaneous objection rule circumscribes habeas relief to those
situations where the defendant demonstrates cause and actual prejudice. However,
the USCA considered Earp's claim because the state court did not "clearly
and expressly rely" on California's simultaneous objection rule in denying
Earp's claims, but instead decided the constitutional claim on its merits. The
prosecutor's argument that "there is no reasonable doubt in this case at
all unless you believe that Rick is telling the truth" did not "so infect
the trial with unfairness as to make the resulting conviction a denial of due
process," Donnelly v. DeChristoforo, 416 US 637, 642 (1974). The portion
of the prosecutor's argument that Earp protests followed the prosecutor's observation
that Earp was the only witness who testified that there was a third party in the
house when the child was killed. Because Earp relied on a third-party defense,
his defense hinged on the jury finding reasonably doubt from Earp's testimony.
Thus, in context, the prosecutor's argument was a fair comment on the evidence.
Moreover, any possible confusion was alleviated by the jury instruction which
clearly delineated the burden of proof. The state court's decision that the prosecutor's
statement did not constitute a due process violation was neither contrary to nor
an unreasonable application of established federal precedent. Farris, D.W. Nelson,
and Tallman (author), Circuit Judges. R. Gerstein of Santa Monica, CA,
for the petitioner; DAG J. Bilderback Rehe of San Diego, CA, for the appellee.
(Download the full
text of this decision at www.cc9.uscourts.gov/)
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