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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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1) BANKRUPTCY / FRAUD DAMAGES: In re First Alliance Mortgage Co., 04-55396 (9th Cir. Dec. 8, 2006). First Alliance Mortgage Company was driven into bankruptcy and subsequent liquidation by well-publicized and justified allegations of fraudulent lending practices. Its demise led to two actions against Lehman Brothers and its subsidiary Lehman Commercial Paper (collectively "Lehman") due to Lehman's activity as a lender to First Alliance and as the underwriter of First Alliance's securitized debt. One was a class action on behalf of First Alliance's borrowers seeking to impose liability for aiding and abetting the fraudulent scheme engaged in by First Alliance. The other, brought by the bankruptcy trustee appointed to liquidate First Alliance, sought to set aside payments Lehman received in the course of it financing relationship with First Alliance and to subordinate Lehman's secured claims in the First Alliance bankruptcy in favor of the claims of First Alliance's unsecured creditors. This group of unsecured creditors was essentially the same as the group of borrowers asserting their claims of fraud against First Alliance. The two actions were tried together and then consolidated on appeal. Following trial, a jury found Lehman liable under California tort law to the class of borrowers for aiding and abetting fraud, and the district court entered judgment accordingly. As to the trustee's action, the district court concluded that Lehman's conduct pursuant to its relationship with First Alliance did not warrant relief under the equitable principles of bankruptcy law. The USCA affirmed these rulings as well as the district court's rejection of several other claims related to these actions. However, the USCA reversed the district court's denial of remitter or new trial as to the jury's damages calculation and remanded for further proceedings based on the proper theory of fraud damages. Pregerson, Clifton (author), and Bybee, Circuit Judges. L. Gabriel of Los Angeles, CA, for the appellant; E. Cabraser of San Francisco, CA, for the plaintiffs; J. Duncan of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) BANKRUPTCY: In re Hawkins, 04-17475 (9th Cir. Dec. 4, 2006). Ohio University appealed a Bankruptcy Appellate Panel ("BAP") judgment discharging Hawkins from a debt resulting from a judgment against her for breach of contract with the university. The BAP held that this debt and the resulting judgment did not meet the criteria for a loan or educational benefit excluded from discharge under 11 USC Sec. 523(a)(8). The USCA adopted the BAP opinion and affirmed its judgment without further comment. Canby, Noonan, and Paez, Circuit Judges. Per Curiam. D. Stevenson of Stockton, CA, for the appellant; L. Cox of Rocklin, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) TAXATION: USA v. Boulware, 05-10752 (9th Cir. Dec. 13, 2006). Following retrial after the USCA reversed his first conviction, Boulware appealed his conviction and sentence for filing a false tax return in violation of 26 USC Sec. 7206(1), tax evasion in violation of 26 USC Sec. 7201, and conspiracy to make a false statement to influence a financial institution in violation of 18 USC Sec. 1014. The USCA found no reversible error and affirmed. Concurring, Judge Thomas wrote separately only to comment that if the USCA were writing on a clean slate, rather than under the controlling precedent of USA v. Miller, 545 F.2d 1204 (9th Cir. 1976), he would adopt the approach of Second Circuit concerning the return to capital defense. See USA v. Bok, 156 F.3d 157 (2d Cir. 1998); USA v. D'Agostino, 145 F.3d 69 (2d Cir. 1998). Rymer (author) and Thomas (concurring), Circuit Judges, and Larson, District Judge. J. Cline of San Francisco, CA, for the appellant; A. Hechtkoph of Washington, DC, for the appellee. (Download the full text of this decision at www.usca-portal.com) 4) TAXATION: Hansen v. CIR, 05-70658 (9th Cir. Dec.
18, 2006). The Hansen appealed a tax court's ruling upholding the CIR's imposition
of a negligence penalty pursuant to IRC Sec. 6662(a) for claiming losses in 1991
from a cattle partnership in which they invested. Hansen claimed error, asserting
that the tax court ignored relevant facts, applied an improper negligence standard,
and in-adequately considered the Hansens' own victimization as members of the
partnership. The USCA affirmed the tax court's decision upholding the negligence
penalty. In light of the numerous warning signals brought home to the Hansens,
the arguments concerning their diligence prior to investing and throughout the
investment fail to demonstrate the tax court committed clear error. Moreover,
Bales v. CIR, T.C. Memo 1989-568, 58 T.C.M. (CCH) 431, and the Hansens'
victimization, while unfortunate, did not constitute sufficient evidence to show
that the tax court's negligence finding constituted clear error. Schroeder, Tallman,
and Bea (author), Circuit Judges. T. Merriam of Seattle, WA, for the petitioner;
AAG E. O'Connor of Washington, DC, for the respondent. (Download
the full text of this decision at www.ce9.uscourts.gov/)
6) FRANCHISE AGREEMENTS / ARBITRATION: Nagrampa v. MailCoups, Inc., 03-15955 (9th Cir. Dec. 4, 2006). At issue here was whether a provision to submit to arbitration in a written franchise agreement is valid and enforceable, therefore requiring the district court to stay proceedings and to refer the disputed franchise agreement to arbitration under the Federal Arbitration Act ("FAA"). In a now-withdrawn opinion, a three-judge panel held that the unconscionability of an arbitration provision contained in a franchise agreement is a question for the arbitrator to decide. Here, however, the plaintiff did not seek invalidation of the franchise agreement as a whole on grounds of unconscionability; instead, she challenged the unconscionability of solely the arbitration provision. It thus was error to hold that consideration of the unconscionability of the arbitration provision was to be determined by the arbitrator. The court reviewed the case en banc to clarify, as the Supreme Court has recently reiterated, that when the crux of the compliant challenges the validity or enforceability of the agreement containing the arbitration provision, then the question of whether the agreement, as a whole, is unconscionable must be referred to the arbitrator. Dissenting in part, Judge Clifton agreed with the majority that the district court properly undertook in this case to decide whether the arbitration provision in question is valid and enforceable within the meaning of the FAA. He also agreed that Nagrampa did not waiver her rights to object to the arbitrability of the dispute. However, he parted company with the majority as to its conclusion that the arbitration provision was unconscionable under California law. He thought the district court had correctly concluded that the arbitration provision was valid and enforceable. Judge O'Scannlain, joined by Kozinski and Tallman in whole, and by Clifton in part, dissented. He thought the court had ignored clear Supreme Court precedent in choosing to entertain Nagrampa's challenge to the validity of the entire franchise contract. He also could not agree with much of the majority's analysis regarding the substantive unconscionability of the arbitration clause. Judge Kozinski, joined by O'Scannlain and Tallman in whole, and by Clifton in part, dissented. He agreed with Judge O'Scannlain that Nagrampa's unconscionability challenge should have been decided by an arbitrator, and that her contract with MailCoups was not substantively unconscionable. He wrote separately to dispute the majority's conclusion that Nagrampa did not waive the right to contest arbitrability after participating in the arbitration proceedings for almost a year, and its finding that the arbitration was procedurally unconscionable. Schroeder, Reinhardt, Kozinski (dissenting), O'Scannlain (dissenting), Thomas, Graber, Wardlaw (author), Fisher, Gould, Tallman, Clifton (dissenting in part), Circuit Judges. K. Gordon of Oakland, CA, for the appellant; G. Plattner of Los Angeles, CA, for the appellee MailCoups, Inc.; J. Warnlof of Walnut Creek, CA, and S. Hufstedler of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) INSURANCE / CONTRACTS: Airborne Freight Corp. v. St. Paul Fire & Marine Insurance Company., 04-35989 (9th Cir. Dec. 26, 2006). Airborne Freight Corporation appealed the district court's grant of summary judgment to Airborne's insurer, St. Paul Fire & Marine Insurance Company, in a breach of contract case. Airborne sought indemnification from St. Paul after it settled lawsuits with National Fulfillment, Inc. ("NFI") and Sur La Table for lost and damaged packages; St. Paul refused, citing the deductible and scope of coverage provisions of the contract. The USCA reversed, finding that there were material facts in dispute as to whether the U.S. Postal Service ("USPS") was a covered agent of Airborne and whether Airborne retained responsibility and liability for packages once they were handed off to the USPS for delivery to the final consignee. Dissenting, Judge Wallace said he would not reach the issue of whether there were material facts in dispute regarding whether USPS was a covered agent of Airborne, or whether Airborne retained responsibility and liability for packages once they had been handed off to the USPS. Even though ambiguities in deductible clauses are construed in favor of the insured, Judge Wallace thought that under Washington law the deductible in the policy should have been applied on a per-package basis. He would affirm the summary judgment. Wallace (dissenting), Wardlaw (author), and Fisher, Circuit Judges. M. Gossler of Seattle, WA, for the appellant; J. Hayes of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) ADMIRALTY LAW: Huseman v. Icicle Seafoods, Inc., 04-35655 (9th Cir. Dec. 27, 2006). Huseman appealed the district court's decision on summary judgment that his Jones Act and unseaworthiness claims against Icicle Seafoods were time-barred and that his maintenance and cure claim barred by laches. As to the Jones Act and unseaworthiness claims, Huseman did not dispute that his filing was untimely and beyond the three year limitations period. Instead, he argued that he should be allowed to proceed under the theories of equitable tolling or equitable estopple. However, the USCA held that, under the circumstances of this case, Huseman could not establish the requirements for either equitable tolling or equitable estoppel. Huseman had asked the USCA to fashion, under the "wards of the court" doctrine for seaman, a broad fiduciary duty that would require employers, like Icicle Seafoods, to affirmatively disclose and explain federal causes of action, including Jones Act and unseaworthiness claims, to their employees. The USCA said it was mindful of the special remedies and protections reserved for seamen because of the perils of the sea and the hard conditions of their labor; however, it declined to embrace such an unprecedented extension of the "wards of the court" doctrine. As for the maintenance and cure claim, the USCA agreed with Huseman that the district court erred in its laches determination. Huseman filed suit within a month after learning of his potential claim and less than six months after the three year limitation period for the other claims expired. The district court did not, as required by Circuit caselaw, make specific findings of prejudice to support the laches bar and did not balance any prejudice against the short duration of the delay and Huseman's justification. The USCA thus affirmed the district's court's dismissal of Huseman's Jones Act and unseaworthiness claims, and reverse and remanded on his maintenance and cure claims. Dissenting, Judge Reinhardt thought the majority had allowed a maritime employer to exploit the ignorance of an injured seaman and avoid paying him the compensation to which he was entitled under federal law, although for untold years it has been the policy of admiralty law to protect all seamen against this very type of willful exploitation. He thought that in light of the special protections due injured seamen, Huseman has shown that equitable estoppel applied with respect to his Jones Act and unseaworthiness claims. The same factors demonstrated that there was no justification for the district court's application of the doctrine of laches to the maintenance and cure claim. Judge Reinhardt thought that a remand on that issue was unnecessary, and that reversal was required as to all three claims. In reaching the contrary conclusion, Judge Reinhardt thought that the majority had disregarded centuries of maritime jurisprudence and undermined the ward of the court doctrine. Reinhardt (dissenting), McKeown (author), and Clifton, Circuit Judges. E. Dickman of Seattle, WA, for the appellant; P. Sanford of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) MAJOR LEAGUE BASEBALL DRUG TESTING: USA v. Comprehensive Drug Testing, Inc., 05-10067 (9th Cir. Dec. 27, 2006). At issue here was whether the United States may retain evidence it seized from Major League Baseball's drug testing administrator (and enforce an additional subpoena) as part of an ongoing grand jury investigation into illegal steroid use by professional athletes. The USCA concluded that the government's seizures were reasonable under the Fourth Amendment, and that the district court erred in ruling that Fed. R. Crim. P. 41(g) required the return of all property and agent review notes unrelated to the ten expressly named players involved with the Bay Area Lab Cooperative ("Balco") and its alleged distribution of illegal steroids to professional baseball athletes. At the same time, the USCA recognize limits to the government's right to retain evidence seized, even where a broad seizure is reasonable in order to avoid lengthy and intrusive on-site inspection. Fourth Amendment precedents instruct that the gov-ernment may retain single "ledgers" of intermingled evidence, but may not keep separate, unrelated evidence. A magistrate is in the best position to sort through the actual evidence and to determine which files may be kept when aggrieved parties seek relief. Readily separable evidence unrelated to persons named in the search warrants must be returned. The Fed. R. Crim. P. 41(g) cases must be remanded to the District of Nevada and Central District of California to permit such review of the sealed documents by magistrates. With regard to the May 6 subpoenas, which covered the same evidence as the contemporaneous search warrants, the USCA concluded that the order of the Northern District of California quashing the subpoenas was an abuse of discretion. The record, illuminated by case-law, revealed that the subpoenas were not unreasonable and did not constitute harassment. The USCA thus concluded that the orders of the Central District of California, the District of Nevada, and the Northern District of California could not stand. It reversed in part and remanded in part the three cases consolidated in this appeal. Dissenting in part, Judge Thomas said he agreed with the findings and conclusion of the three district judge who rejected the government's position. But, he thought the majority's position removed confidential electronic records from the protections of the Fourth Amendment. O'Scannlain (author), Thomas (dissenting in part) and Tallman, Circuit Judges. AUSA E. Frick of San Francisco, CA, for the appellant; E. Peters of San Francisco, CA, for the movants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) ENVIRONMENTAL LAW: Oregon Natural Resources Council v. BLM, 05-35245 (9th Cir. Dec. 4, 2006). The Oregon Natural Resources Council ("ONRC") challenged the "Mr. Wilson" logging project in the Glendale Resource Area of the Medford Bureau of Land Management ("BLM") District in Oregon, on the ground that the project violated the National Environmental Policy Act of 1969. The specific violation alleged consisted of conducting an insufficient Environmental Analysis ("EA"). ONRC argued that the BLM did not sufficiently consider the cumulative impact of the Mr. Wilson project in conjunction with other past, present, and reason-able foreseeable projects on timber harvest levels and on the northern spotted owl's critical habitat. The district court concluded that because logging operations had been completed the case was moot, and granted the BLM summary judgment. The USCA reversed and remanded, with instructions to the district court to enjoin the remainder of the Mr. Wilson project until the BLM provides a revised EA, including the required hard look at cumulative impacts of the logging already completed on contiguous habitat areas or neighboring habitat areas to be impacted by contemplated future sales. Dissenting, Judge Tashima noted that, as all of the logging and hauling of trees at the project was completed in September 2005, the caselaw is clear that, in these circumstances, no effective relief is available under NEPA. He added that an injunction would not help any public official make decisions because those decisions have already been made-there is no proposed action pending, and requiring the preparation of a new EA would be an exercise of form over substance and could merely rationalize a decision, not only already made, but already carried out. Goodwin (author), Tashima (dissenting), and Graber, Circuit Judges. R. Bloemers of Portland, OR, for the plaintiffs-appellants; M. Gray of Washington, DC, for the Federal defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) ENVIRONMENTAL LAW: California Sportfishing Protection Alliance v. FERC, 05-73064 (9th Cir. Dec. 12, 2006). This case concerns a petition to review a decision of the Federal Energy Regulatory Commission ("FERC") not to initiate formal consulttion with the National Marine Fisheries Service over the operation of the DeSabla-Centerville hydroelectric project operated by Pacific Gas & Electric under a 30-year license issued by FERC in 1980. The petitioners sought the consultation as part of an effort to protect Chinook Salmon, a threatened species. At issue was whether there was any "action authorized, funded, or carried out" by a federal agency, that would have triggered the Endangered Species Act's consultation requirement in 1999. The USCA held that the statutory language, the regulations promulgated pursuant to the statute, and caselaw interpreting them, compel the conclusion that the ESA im-poses no duty to consult about activities conducted by PG&E pursuant to a previously issued, valid license from FERC. It thus denied the petition for review. Schroeder (author), Trott, and Kleinfeld, Circuit Judges. Trent Orr of San Francisco, CA, for the petitioner; C. Banta of Washington, DC, for the respondent; W. Madden of Washington, DC, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) PUNITIVE DAMAGES: In re The Exxon Valdez, 04-35182 (9th Cir. Dec. 22, 2006). Three times the USCA has looked at the punitive damages imposed in this litigation arising from the 1989 grounding of the oil tanker Exxon Valdez, and the resulting eco-nomic harm to many who earned their livelihood from the resources in the area. The USCA was precluded, as had been the jury, from punishing Exxon for befouling the area because that punishment had already been imposed in separate settled litigation. As In re The Exxon Valdez, 270 F.3d 1215 (9th Cir. 2001), explained, the plaintiffs' punitive damages case was saved from preemption and res judi-cata because the award vindicated only private economic and quasi-economic interests, not the public interest in punishing harm to the environment. The resolution of punitives was delayed because the course of this litigation paralleled that followed by the Supreme Court when, in 1991, it embarked on a series of decisions outlining the relationship of punitives to due process. Intervening Supreme Court decisions caused the USCA to remand the matter twice to the district court for reconsideration of punitives in light of evolving Supreme Court law. The district court's decision, after the last remand for it to consider the impact of State Farm Mutual Auto Ins. Co. v. Campbell, 538 US 408 (2003), is published at In re The Exxon Valdez, 296 F. Supp. 2d 1071 (D. Alaska 2004). It is the subject of this appeal. While the original punitive damages award was $5 billion and in accord with the jury's verdict, the district court reduced it to $4 billion after the first remand. Then, after the second remand, it entered an award of $4.5 billion. The USCA found that the ratio of punitives to actual economic harm resulting from the spill, exceeds by a material factor a ratio that would be appropriate under In re The Exxon Valdez (2001), id., and current controlling Supreme Court analysis. The USCA thus ordered a remittitur of $2 billion, resulting in punitive damages of $2.5 billion. The USCA did so because, in assessing the reprehensibility of Exxon's misconduct, the most important guidepost according to the Supreme Court's opinion in State Farm, there were several mitigating facts-including prompt action taken by Exxon to clean up the oil and compensate the plaintiffs for economic losses. In addition, in considering the relationship between the size of the award and the amount of harm, the USCA held that its earlier punitive damage opinion that the substantial costs that Exxon had already borne in clean up and loss of cargo lessen the need for deterrence in the future. The USCA thus vacated the district court's judgment and remanded with instructions that the district court further reduce the punitive damages award to $2.5 billion. Judge Browning dissented. He thought the punitive damages award was not "grossly excessive" and would affirm. Where an award lies within the bounds of due process, as he thought this one did, the USCA may not substitute a sum it considers more reasonable for one fairly awarded by a jury and properly reviewed by a district court. Schroeder, Browning (dissenting), and Kleinfeld, Circuit Judges. Per Curiam. J. Daum of Los Angeles, CA, for the appellants; D. Tarshes of Anchorage, AK, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) DISCRIMINATI0N / ATTORNEYS' FEES: Carson v. Billings Police Dept., 04-35438 (9th Cir. Dec. 7, 2006). Carson filed a sex discrimination claim against the Billings Police Department and several individuals. She prevailed in state and federal tribunals. After a six day hearing, a state administrative law judge found in her favor and ordered relief, which was increased on appeal. Following the agency's final decision, she filed a 42 USC Sec. 1983 action, which the parties settled except for attorneys' fees. The district court initially denied fees on the ground that Carson was not a "prevailing party" in the federal case, but the USCA reversed and remanded for determination of an appropriate fee award. The case then returned to the USCA with Carson's attorney claiming that the award was inadequate. This time the USCA affirmed. The district court had disallowed 21.5 of counsel's hours as unreasonable, amounting to $3,225 at $150 per hour. The time was spent on a motion to enforce the administrative decision before the defendants' time to seek judicial review had elapsed, and the plaintiff filed it in the wrong venue. A district court may not "uncritically" accept the hours claimed by the prevailing party, even if actually spent on the litigation, but must, in order to award fees based on them, find "that the time actually spent was reasonably necessary. The USCA found that the district court's reasons for disallowing this small portion of the time claimed by the plaintiff's attorney were sufficient and sufficiently explained. Dissenting in part, Judge Graber agreed that the district court did not abuse its discretion in disallowing 21.5 hours, but she dissented from the majority's conclusion that the district court sufficiently explained its determination of the hourly rate, and from its conclusion that there was no evidence of any other applicable rate. Kleinfeld (author) and Graber (dissenting in part), Circuit Judges, and Rafeedie, District Judge. T. Kelly of Emigrant, MT, for the appellant; V. McDonald of Billings, MT, for appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) DISCRIMINATI0N: Doe v. Kamehameha Schools,
04-15044 (9th Cir. Dec. 5, 2006). Doe, a student who has no Hawaiian ancestry,
applied for admission to Kamehameha Schools, a private, non-profit K-12 school
in Hawaii that receives no federal funds. He was denied entry. The Schools were
created through a charitable testamentary trust established by the last direct
descendant of the Ha-waiian monarchy for the education and upbringing of Native
Hawaiians. Doe maintained that he was denied admission because of his race in
violation of 42 USC Sec.1981. The majority of a three-judge panel had held that
the admissions policy constituted unlawful race discrimination. But, rehearing
the matter en banc, the court found no Sec. 1981 violation because the Schools
are a wholly private and its preferential admissions policy is designed to counteract
significant, current educational deficits of Native Hawaiian children in Hawaii,
and because in 1991 Congress clearly intended Sec. 1981 to exist in harmony with
legislation providing specifically for the education of Native Hawaiians, which
Congress has repeatedly identified as necessary. Judge Fletcher, joined by Pregerson,
Reinhardt, Paez, and Rawlinson, concurred, but wrote separately to note a narrower
ground for upholding the admissions policy-namely that "Native Hawaiian"
is not just a racial classification; it is also a political classification. Congress,
he said, has invariably treated "Native Hawaiian" as a political classification
for purposes of providing exclusive educational and other benefits, and has the
power to do so under the special relationship doctrine of Morton v. Mancari,
417 U.S. 535 (1974). He saw nothing in Sec. 1981 to indicate that Congress intended
to impose upon private institutions a more restrictive standard for the provision
of benefits to Native Hawaiians than it has imposed upon itself. Judge Bybee dissented,
joined in whole by Kozinski, O'Scannlain, Tallman, and Callahan, and in part by
Rymer and Kleinfeld. He noted that Runyon v. McCrary, 427 US 160, 168,
179 (1976), held that Sec. 1981 prohibits private, commercially operated, non-sectarian
schools from denying admissions to prospective students because they are not members
of a favored racial group. Under Runyon, discriminating against a private school
applicant solely on the basis of that applicant's race "amounts to a classic
violation of Sec. 1981." He thought that the majority's "novel approach"
to statutory interpretation would "enable courts to rewrite statutes whenever
they want to save a particular program, contract, or enactment." He also
disagree with the Judge Fletcher's suggestion that the special relationship doctrine
saved the Schools racially exclusive admissions policy. Judge Rymer, joined by
Kozinski, O'Scannlain, Tallman, and Callahan, dissented. She noted that Congressional
applause for programs that benefit Native Hawaiians neither connotes approval
of an exclusionary admissions policy based on race preference, nor grafts an exception
onto Sec. 1981. But she also thought that Morton did not save the policy. Schroeder,
Pregerson. Reinhardt, Kozinski (dissenting), O'Scannlain, Rymer (dissenting),
Kleinfeld (dissenting), Graber (author) W. Fletcher (concurring),
Paez, Berzon, Tallman, Rawlinson, Bybee (dissenting), and Callahan, Circuit
Judges. E. Grant of Sacramento, CA, for the appellant; K. Sullivan of Stanford,
CA, and D. Schulmeister of Honolulu, HI, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
16) FALSE CLAIMS ACT: Bly-Magee v. Premo.,
05-55556 (9th Cir. Dec. 13, 2006). Bly-Magee filed this qui tam action in 2001
under the False Claims Act. She accused the California Department of Rehabilitation
("CDR") and its employees of defrauding the federal government by submitting
false claims stemming from an alleged "kickback" scheme with state agencies.
The district court dismissed her Second Amended Complaint, without leave to amend.
It held that Bly-Magee failed to overcome the Act's jurisdictional bar that precludes
private actions based on public disclosure of allegations unless the relator who
is bring the action is an original source of the information. 31 USC Sec. 3730(e)(4)(A).
Bly-Magee appealed. The USCA reversed the dismissal of those portions of the complaint
alleging the making of false claims after June 30, 1999, and remanded for further
proceedings regarding those allegations. It noted that the complaint's allegations
of false claims made after June 30, 1999 were exceedingly general, and that the
remand did not foreclose the district court from further action to clarify the
complaint and to ensure that false claims made after this date are indeed subjects
of the complaint. The USCA expressed no opinion regarding the sufficiency of the
allegations under Fed. R. Civ. P. 9(b)-a question not reached by the district
court. Canby (author), Noonan, and Berzon, Circuit Judges. J. Deems of
Sherman Oaks, CA, for the appellant; DAG K. Lake of Los Angeles, CA, for the appellee.
(Download the full
text of this decision at www.ce9.uscourts.gov/)
18) CONSTITUTIONAL LAW: ACLU v. Lomax., 04-17033 (9th Cir. Dec. 8, 2006). In anticipation of the 2004 General Election, plaintiffs (collectively "the Committee") circulated a petition to place the Regulation of Marijuana Initiative, a constitutional initiative, on the ballot. Heller, Nevada's Secretary of State, determined that it did not qualify for the ballot because the petition failed to garner the requisite number of valid signatures. Thousands of signature were disqualified because they did not satisfy two "non-signature" requirements, as contained in the Dual Affidavit and Deemed Registered rules. The Secretary determined that the initiative petition failed to comply with two signature rules-the Statewide Rule, which requires that at least 10% of Nevada's eligible voters sign the petition, and the 13 Counties Rule, which requires that the initiative proponents obtain signatures from at least 10% of the eligible voters in at least 13 of the 17 Nevada counties. The Committee challenged the 13 Counties, Dual Affidavit, and Deemed Registered rules in district court, and moved for a preliminary injunction against the enforcement of these requirements. The Committee alleged that the 13 Counties Rule violates the Equal Protection Clause of the Fourteenth Amendment because it treats more favorably the votes of residents of sparsely populated counties than the votes of densely populated counties, thereby diluting the votes of the latter. The court granted permanent injunctive relief with respect to the 13 Counties and Dual Affidavit rules. The Secretary argued that the district court erred in enjoining enforcement of the 13 Counties Rule because the court did not undertake the requisite strict scrutiny review, the rule survives this exacting review, and the case on which the district court primarily relied does not control the present case. The 2004 General Election passed and the Committee's initiative did not appear on the ballot. The USCA considered two issues: standing and mootness. First, it held that the Committee had standing to bring its constitutional challenges in federal court. Although the initiative failed to meet the Statewide Rule, which the Committee did not challenge, it would have done so had the Committee prevailed on its three challenges. The Committee's injury was thus redressable when the Committee filed suit. Second, the USCA found that this case fit within the "capable of repetition, yet evading review" exception to the mootness doctrine. The challenged action was too short in duration to enable full litigation on the merits, and there was a reasonable expectation that the Committee will again be subject to the challenged 13 Counties Rules. Finally, the USCA considered whether the 13 Counties Rule passed muster under strict scrutiny review. The USCA agreed that the 13 Counties Rule is unconstitutional. It violates the equal protection tenet of "one person, one vote," and is not narrowly tailored. It is indistinguishable from similar rule struck down in Idaho Coalition United for Bears v. Cenarrussa, 342 F.3d 1073 (9th Cir. 2003). The USCA thus affirmed the district court's grant of a permanent injunction. Hug, Kleinfeld, and Paez (author), Circuit Judges. B. Sandoval of Carson City, NV, for the appellant; A. Lichtenstein of Las Vegas, NV, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) ADMINISTRATIVE LAW / AVIATION: Tu v. National Transportation
Safety Board, 04-76454 (9th Cir. Dec. 14, 2006). At issue here was whether
an agency could effect notice of its ruling, so as to start the running of time
in which to appeal, by certified mail, when it has reason to know that certified
mail would not reach the petitioner but first class main would. The Federal Aviation
Administration ("FAA") had suspended Tu's pilot license for 120 days
for "buzzing" (flying below proscribed minimum safe altitudes) on two
flights over Mount Rushmore National Memorial and Crazy Horse Mountain. In his
petition for review, Tu argued that the FAA denied him due process by failing
to provide him adequate notice of the orders suspending his license, thereby denying
him the opportunity timely appeal the FAA's ruling to the National Transportation
Safety Board ("NTSB"). The USCA held that the FAA de-nied Tu due process
when it failed to provide him with notice reasonably calculated, under the circumstances,
to notify him that his license had been suspended so that he could timely exercise
his right to appeal to the NTSB. Schroeder, Kleinfeld, and Bea (author),
Circuit Judges. C.E. Adams of Gig Harbor, WA, for the petitioner; J. Barry of
Washington, DC, for the respondents. (Download
the full text of this decision at www.ce9.uscourts.gov/)
21) ENERGY LAW: Public Utilities Commission of California v. Pacific Gas and Electric Co., 03-74207 (9th Cir. Dec. 19, 2006). As in Public Utility District No. 1 v. FERC ("PUD"), 03-73511 (9th Cir. Dec. 19, 2006), the petitioners-there the California Public Utilities Commission ("PUC") and the California Electric Oversight Board ("CEOB") (collectively "Public Utilities Commission")-challenge the statutory validity of electric power rates in certain wholesale power contracts. Again as in PUD, that challenged hinged on whether the Federal Energy Regulatory Commission ("FERC") correctly applied the Mobile-Sierra "public interest" doctrine or whether in doing so it failed to meet its statutory obligation to provide "just and reasonable review. In PUD, the USCA explained that Mobile-Sierra represents a presumption "that private parties to a wholesale electric power contract have negotiated a 'just and reasonable' contract over a designated period of time, lawful under the FPA throughout that period." That presumption, however, "can be rebutted by establishing that the contract adversely affects the public interest." The USCA held that to establish the Mobile-Sierra presumption, "three prerequisites are necessary: (1) the contract by its own terms must not preclude the limited Mobile-Sierra review; (2) the regulatory scheme in which the contracts are formed must provide FERC with an opportunity for effective, timely review of the contracted rates; and (3) where, as here, FERC is relying on a market-based rate setting system to produce just and reasonable rates, this review must permit consideration of all factors relevant to the propriety of the contract's formation." In PUD, the USCA found two of these prerequisites lacking and remanded to the FERC for it to consider the propriety of applying the Mobile-Sierra mode of review to the contracts at issue. It held, in the alternative, that even if Mobile-Sierra properly applied FERC's "finding that the challenged contracts do not affect the public interest was based on a substantively erroneous mode of analysis." Applying PUD to the challenged contracts, the USCA granted the petition to review and remanded to the agency to apply the modes of review outlines in PUD. Brown-ing, Pregerson, and Berzon (author), Circuit Judges. W. Kayatta of San Francisco, CA, for the petitioners; D. Lane of Washington, DC, for the respondent; R. Bress of New York, NY, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) CIVIL PROCEDURE: S.J. v. Issaquah School District
No. 411, 05-35183 (9th Cir. Dec. 11, 2006). S.J., a juvenile, appealed
the district court's dismissal of his claims under the Individuals with Disabilities
Education Act ("IDEA") against the Issaquah School District and its
Superintendent and Director of Special Education (collectively "Issaquah").
As the IDEA had no statute of limitations at the time, the district court applied
Washington's Administrative Procedure Act, which provides that a petition for
review must be filed and served within 30 days of service of the final order by
a state administrative agency. As S.J. had conceded that he had not attempted
to serve Issaquah until after the 30-day period, the district court held that
it lacked jurisdiction. The USCA previously held that Fed. R. Civ. Proc. 3 controls
when an action which arises under federal law is "commenced" for purposes
of tolling the statute of limitations borrowed from state law. Federal procedural
rules thereafter govern the action, at least when there is a federal rule to apply.
But, here there is, because Fed. R. Civ. Proc. 4(m) provides a time limit for
service of process (120 days). The USCA thus held that a federal court borrowing
a state's time period for filing suit brought under federal law should not also
borrow the state's time limits for serving the complaint. As S.J.'s IDEA action
was timely commenced for purposes of tolling the borrowed statute of limitations
when it was filed within 30 days, the USCA reversed. Alarcon, Rymer (author)
and Berzon, Circuit Judges. J. Cohen of Shoreline, WA, for the appellant;
R. Mitchell of Seattle, WA, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
24) NATIVE AMERICAN LAW: USA v. State of Oregon v. Confederated Tribes of the Colville Indian Reservation, 03-35773 (9th Cir. Dec. 4, 2006). At issue here was whether res judicata foreclosed the Confederated Tribes of the Colville Indian Reservation ("Colville") from asserting the claim of the Wenatchi Constituent Tribe ("Wenatchi") to fishing rights at the Wenatshapam Fishery on Icicle Creek, a tributary to the Columbia River. The Yakama Nation sought and obtained an injunction preventing members of the Wenatchi Tribe from fishing at that location. In granting the injunction, the district court found that Colville's earlier failed effort to intervene in litigation over off-reservation fishing rights in the area served to bar Colville from asserting the alleged rights as a defense to the injunction. The USCA held that the requisite identity of claim between the earlier intervention attempt and the present injunction hearing did not exist and, consequently that res judicata did not apply. The USCA thus reversed and remanded to the district court for a hearing on the merits. Hug (author), Berzon, and Bybee, Circuit Judges. H. Sachse of Washington, DC, for the appellants; AAG F. Woods of Olympia, WA, and H. Arnett of Bend, OR, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/)
26) IMMIGRATION: Valencia-Alvarez v. Gonzales, 05-70275 (9th Cir. Dec. 6, 2006). The petitioner, a native and citizen of Mexico, sought relief from BIA's rulings that he was removable for having been convicted of a controlled substance offense and ineligible for cancellation of removal because his continuous presence in the U.S. "stopped" at the time he committed the offense. On appeal, he argued that the respondent was barred by res judicata from asserting additional charges after the BIA held that the underlying convic-tion was not an aggravated felony. He also argued that 8 USC Sec. 1229b(d)(1), which "stops" an alien's accrual of continuous pres-ence in the United States at the time he commits a crime, may not be applied retroactively to his 1996 offense. The USCA rejected the first argument because the BIA's 2002 decision was not a final judgment rendered on the merits in a separate action. It rejected the second argument because the retroactive application of the "committed an offense" provision to the petitioner does not impair any right he possessed when he committed the offense, or when the Illegal Immigration Reform and Immigration Responsibility act of 1996 was enacted. The USCA thus denied the petition for review. Thompson, Tashima, and Callahan (author), Circuit Judges. B. Funk of Seat-tle, WA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.usca-portal.com) 27) IMMIGRATION: Ochoa-Amaya v. Gonzales, 05-74693 (9th Cir. Dec. 29, 2006). Ochoa-Amaya sought judicial review of a final order of the Board of Immigration Appeals ("BIA") denying his motion to reopen to allow consideration of his application for adjustment of status pursuant to 8 USC Sec. 1255(i). The BIA rejected the motion because it determined that Ochoa-Amaya did not qualify as a child under the Child Status Protection Act ("CSPA"), Pub. L No. 107-208, 116 Stat. 927 (2002), and thus could not show statutory eligibility for adjustment of status. The USCA agreed with the BIA's interpretation of the relevant language of the CSPA, and denied Ochoa-Amaya's petition. The BIA correctly understood the CSPA to protect children from "aging out" while their petitions are pending before the INS, but the CSPA does not address the time during which a visa is made available through the Department of State. Beezer, O'Scannlain, and Trott (author), Circuit Judges. S. Shaiken of San Francisco, CA, for the petitioner; A. Poczter of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) IMMIGRATION: Rafaelano v. Wilson, 05-35025 (9th Cir. Dec. 20, 2006). When Congress passed the REAL ID Act of 2005, it provided that the Act's provisions would be effective immediately and would apply retroactively to cases then pending in the courts. Among the provisions made immediately applicable was the elimination of district court habeas corpus jurisdiction under 28 USC Sec. 2241 for claims by aliens seeking to avoid deportation or removal from the United States. Review of such orders was placed exclusively in the courts of appeals, by way of petitions for review. The Ninth Circuit has concluded that habeas petitions on appeal from district court decisions that were pending before it when the REAL ID Act was enacted would be treated as timely-filed petitions for review from the Board of Immigration Appeals ("BIA"). The instant case presented a variation of this situation. The petitioner alleged that the government sought to expel her from the United States without a valid order of deportation. The BIA had never reviewed her case because neither the petitioner nor the government appealed to the BIA the immigration judge's 1995 order that granted her volun-tary departure on the condition that if she did not voluntarily depart within a year, she would be deported. The petitioner presented her current claim to the district court in a habeas petition, which the district court denied. The petitioner appealed. The USCA treated the appeal as if it were a petition for review timely filed directly in the USCA. Because the district court's habeas jurisdiction was eliminated by the Real ID Act, the USCA found that it was precluded from relying upon the record developed by the district court. As a result, the USCA had no record from which it could determine whether the 1995 order converted into a deportation order. That, the USCA said, appeared to be a factual decision properly assigned to the executive agency in the first instance. The USCA thus granted the petition for review and transferred the matter to the BIA to determine whether the 1995 order became an effective order of deportation. Dissenting, Judge Rawlinson did not agree that the procedural conundrum presented by this case could be solved by transferring the petition to the BIA, and he thought the majority lacked the authority to transfer the petition. Rawlinson (dissenting) and Clifton (author), Circuit Judges, and Marshall, District Judges. R. Pauw of Seattle, WA, for the petitioner; AUSA C. Pickrell of Seattle, WA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) IMMIGRATION: Serrano v. Gonzales, 04-75579 (9th Cir. Dec. 5, 2006). Serrano entered the United States without inspection by an immigration officer in 1989. On March 29, 2001, he filed an application for asylum. That application was referred to an immigration court on May 24, 2001. That court issued a notice to appear charging Serrano with being subject to removal under INA Sec. 212(a)(6)(A)(i). Serrano's counsel admitted that his client was removable and applied for cancellation of removal under INA Sec. 240A(b)(1). The immigration judge found Serrano removable and denied his application for cancellation of removal. The IJ then granted Serrano's application for voluntary removal and gave him 60 days to leave the country. Serrano appealed. The Board of Immigration Appeals affirmed and gave Serrano 30 days from its May 20, 2004 order to voluntarily depart. Serrano failed to depart and on August 18, 2004 moved to reopen his removal proceedings. He stated that he had remained in the country because his wife was pregnant and gave birth to a child with medical problems. He argued that these facts "fulfill the exceptional circumstance for failure to report for voluntary departure. He also argued that he had received ineffective assistance of counsel. Finally, he asked the court to create an "exceptional circumstance" tolling exception to the voluntary departure statute. 8 USC Sec. 1229c. The USCA denied the petition in part and dismissed it in part. Serrano failed to assert a valid due process ineffective assistance of counsel claim in that he failed to show prejudice and a plausible grounds for relief. It declined to hear Serrano's "exceptional circumstance" equitable tolling exception argument as it had not be raised below and thus was not properly before the USCA. Graber (author), McKeown, and Tallman, Circuit Judges. F. Sprouls of San Francisco, CA, for the petitioner; D. Dauenheimer of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) IMMIGRATION: Family, Inc. v. U.S. Citizenship and Immigration Service, 05-35310 (9th Cir. Dec. 4, 2006). Tae Jung Oh entered the United States as a temporary non-immigrant visitor in 1995. In 1996 his immigration status was changed to "temporary non-immigrant E2 treaty investor," which was extended to November 1, 2005. Oh is the president of Family, Inc., a corporation that owns a dry cleaning operation that employs Oh, his wife, three pressers, and a cashier. In January 2003, the corporation filed a Form I-140 petition on Oh's behalf, seeking his reclassification as a "multinational manager" under the Immigration and Nationality Act. After making findings with respect to Oh's duties, and requesting and receiving further evidence of the role Oh plays in the business opera-tions, the USCIS determined that Oh did not carry his burden of proving that he is acting in a managerial capacity within the meaning of the statute. In particular, the agency determined that in light of all the evidence submitted, including the business's small size, Oh was likely to "be involved in the performance of routine operations activities of the business" rather than in managing the business. Oh sought judicial review of the agency's decision, and the district court granted the government summary judgment. The USCA affirmed. Oh's sole assignment of error was that the USCIS exclusively and improperly relied on Family's small size to determine that his duties do not come within the statutory meaning of managerial capacity. The USCA found that Oh was correct to the extent that he maintained that Family's small size, alone, cannot justify the USCIS' finding that he is not operating in a managerial capacity. See 8 USC Sec. 1101(a)(44)(A)(ii) (allowing for supervision of other supervisory employees or management of an essential organizational function to satisfy one element of establishing managerial duties). However, Oh's broader argument was precluded by the plain language of the agency's denial of the petition. Having considered all the evidence before it, the agency found, as a fact, that Oh was likely to be involved with performing ordinary operational activities rather than engaging primarily in managerial duties. The record did not compel a contrary conclusion. The agency's finding that Oh was not engaged primarily in managerial duties was supported by substantial evidence and its denial of the petition was neither arbitrary or capricious, nor an abuse of discretion. The USCA thus concluded that the district court's entry of summary judgment for the government was not error. Goodwin (author) and Kozinski, Circuit Judges, and Shadur, District Judge. M. Piston of Troy, MI, for the appellants; AUSA C. Pickrell of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) CRIMINAL PROCEDURE: USA v. Lee, 05-10478 (9th Cir. Dec. 27, 2006). Lee owned an operated a garment factory in American Samoa, an unincorporated territory of the United States. He recruited individuals from Vietnam, China, and American Samoa to work at his factory. Once workers arrived in American Samoa, Lee controlled most aspects of their lives, including when and whether they could leave the factory compound, eat, and be paid. Lee's actions included incidents of imprisonment, starvation of workers, and deportation threats. In addition, factory supervisors and guards physically abused workers. At issue here was whether a person arrested in American Samoa for allegedly committing federal crimes in American Samoa maybe be tried and convicted in the U.S. District Court for Hawaii. Lee was convicted of extortion, money laundering, conspiring to violate the civil rights of others, and holding workers in involuntary servitude. He argued that his conviction and sentence were void because the District Court lacked jurisdiction and because the District of Hawaii was an improper venue. The USCA disagreed. It held that the District Court had jurisdiction and that the District of Hawaii was proper venue, pursuant to 18 USC Sec. 3231 and Sec. 3238, respectively. Trott (author), Wardlaw, and W. Fletcher, Circuit Judges. E. Partington of Honolulu, HI, for the defendants-appellants; L. Stark of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)
33) INDICTMENTS: USA v. Nobriga, 04-10169 (9th Cir. Dec. 29, 2006). Nobriga appealed the district court's denial of his motion to dismiss an indictment charging him with violating 18 USC Sec. 922(g)(9) by possessing a firearm after having been convicted of a "misdemeanor crime of domestic violence," as defined by 18 USC Sec. 921(a)(33)(A)(ii). The USCA reversed the district court's denial of Nobriga's motion to dismiss. Because nothing in the record established that Nobriga acted with anything other than reckless-ness, his motion to dismiss the indictment should have been granted. Crimes that involve the reckless, as opposed to the intentional, use of force cannot be considered crimes of violence. Fernandez-Ruiz v. Gonzales, 03-74533, slip op. 17851, 17868 (9th Cir. Oct. 26, 2006); although Fernandez-Ruiz so holds in the context of 18 USC Sec. 16(a), the USCA concluded that it logically extends to the interpretation of Sec. 921(a)(33)(A)(ii). Pregerson, Wardlaw, and Berzon, Circuit Judges. Per Curiam. D. Dotson of Kapolei, HI, for the defendant-appellant; AUSA W. Porter of Honolulu, HI, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) SEARCH & SEIZURE: USA v. Luong, 05-50090 (9th Cir. Dec. 12, 2006). The government appealed the district court's order suppressing evidence seized from Luong's residence and storage locker. The district court held that the government did not have prob-able cause to search the residence, and that suppression of the fruits of this search was appropriate because the "good faith exception to the exclusionary rule did not apply. On appeal, the government conceded that the search was not supported by probable cause but maintained that the warrant contained sufficient indicia of probable cause to render the officers' reliance on the warrant objectively reasonable. The USCA agreed with the district court that the warrant was so lacking in indicial of probable cause that a reasonably well-trained officer could not have relied on it in good faith. It thus affirmed the suppression order. Dissenting, Judge Callahan noted that the good faith exception to the exclusionary rule is designed to save unconstitutionally obtained evidence from suppression when suppression would not deter police misconduct. Here, the police officer acted objectively reasonably by relying on the superior court judge's probable cause determination. Penalizing her for the superior court's error would not deter Fourth Amendment violations. B. Fletcher, Ferguson (author), and Callahan (dissenting), Circuit Judges. AUSA M. Umhofer of Los Angeles, CA, for the plaintiff-appellant; S. Frye of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) DRUG CONSPIRACY: USA v. Sandoval-Mendoza, 04-10118 (9th Cir. Dec. 27, 2006). This drug conspiracy case presented to issues. The first was whether the district court erred in ordering defense counsel not to talk to his client during an overnight recess. The second was whether the district court abused its discretion in excluding expert testimony about the defendant's subnormal intelligence. The USCA reversed. First, it held that trial courts may prohibit all communications between a defendant and his lawyer during a brief recess before or during cross-examination, but may not restrict communications during an overnight recess. Second, without the medical expert opinion testimony, the real issue in dispute was hidden from the jury. It could not determine whether the government's informants induced a vulnerable and suggestible man to break the law. The informants did not testify, so the jury could not evaluate the pressure they put on the defendant. It also could not evaluate the merits of the defendant's suggestibility, because the medical expert opinion testimony concerning the possibility his brain tumor or limited mental capacity made him susceptible to inducement was excluded. All the jury had was proof that the defendant sold drugs, wiretap recordings in which he sounded like an experienced drug dealer, and a couple of lay witnesses testifying that he was addled by a brain tumor. The USCA thus concluded that the defendant is entitled to present his case to a jury and, for that, he deserves a new trial. Goodwin, O'Scannlain, and Kleinfeld (author), Circuit Judges. M. Zilversmit of San Francisco, CA, for the appellant; AUSA E. Frick of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) SENTENCING: USA v. Cardenas-Juarez, 05-30250 (9th Cir. Dec. 8, 2006). The defendant plead guilty to possession with in-tent to distribute cocaine in violation of 21 USC Sec. 841(a)(1). The district court concluded that USA v. Booker, 543 US 220 (2005), rendered the statutory "safety valve" of 18 USC Sec. 3553(f) advisory and thus "trumped" by the mandatory minimum set fourth in 21 USC Sec. 841. It sentenced the defendant to the mandatory minimum of 60 months in federal prison. On appeal, he argued that the district court should have applied the safety valve to relieve him from the statutory minimum. The USCA found that the district court had incorrectly interpreted Booker as precluding the application of the Sec. 3553(f) safety valve. It thus vacated the sentence and remanded for resentencing. D.W. Nelson, Thompson (author), and Paez, Circuit Judges. A. Gallagher of Great Falls, MT, for the appellant; AUSA W. Mercer of Billings, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) SENTENCING: Carrington v. USA, 05-36143 (9th Cir. Dec. 13, 2006). In both cases consolidated here, the district court ex-pressed its dissatisfaction with the Sentencing Guidelines on the record during the sentencing hearing, at a time when the constitutionality of the Guidelines was accepted. In addition, post-Booker, the district court implored the USCA to recall its mandate in these two cases so that it could sentence Carrington and Tillitz to a just and proper sentence. Believing that these cases presented extraordinary circumstances, the USCA recalled its mandate and remanded for re-sentencing. Judge Callahan dissented. He thought the majority had misread the factual record, departed from controlling precedent and the positions taken by sisters circuits, and proposed a premise on which any defendant sentenced under the pre-Booker Guidelines may seek to be re-sentenced. Pregerson (author), Noonan, and Callahan (dissenting in part), Circuit Judges. AFPD R. Leonard of Tacoma, WA, for petitioner Tillitz; C. Elewski of Tumwater, WA, for appellant Carrington; AUSA H. Brunner of Seattle, WA, for the respondent-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 38) SENTENCING / JUVENILES: USA v. Juvenile Male, 06-30270 (9th Cir. Dec. 14, 2006). The district court adjudged the defendant a juvenile delinquent because he committed an act that if committed by an adult would have constituted Aggravated Sexual Abuse of a Child under 18 USC Sec. 2241(c). The district court initially sentence him to a term of probation extending to his 21st birthday. When the defendant then violated the terms of his probation, it revoked his probation and re-sentenced him "pursuant to the Sentencing Reform Act of 1984" to a term of official detention extending to his 21st birthday-a term of 38 months. The USCA vacated the sentence and remanded for re-sentencing under the Federal Juvenile Delinquency Act ("FJDA"). The FJDA governs juvenile sentencing in federal court on initial dispositions, and the USCA agreed with other Circuits that the FJDA also applies to a juvenile's re-sentencing after revocation of probation. See USA v. Sealed Appellant, 123 F.3d 232, 234 (5th Cir. 1997) ("We are not persuaded that a court is authorized to rely on adult sentencing provisions to sentence a juvenile after that juvenile's probation has been revoked."). Goodwin, Fisher, and Smith (author), Circuit Judges. AFD S. Babcock of Billings, MT, for the defendant-appellant; AUSA M. Hurd of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) SENTENCING: USA v. Combs, 05-30486 (9th Cir. Dec. 18, 2006). At issue here were two questions left unanswered by USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc): First, by what standard does the USCA review a district court's determination that a defendant's sentence would not have been materially different, had it known that the Guidelines were advisory rather than mandatory? Second, may a defendant raise new claims of error during the course of an Ameline remand. The USCA concluded that Ameline allows for appeal of the re-imposed sentence and instructs the USCA to review that sentence for "reasonableness" in the sense that the district judge properly understood the full scope of his discretion in the post-Booker world. A more demanding inquiry would turn every Ameline remand into a full-blown resentencing, and thus would be contrary to Ameline's central holding that defendants whose sentences are being reviewed for plain error are entitled only to a limited remand. The record in this case disclosed that the judge understood his post-Booker authority to impose a non-Guidelines sentence and that his ultimate determination was not infected by ignorance or a misapprehension of the law. As to whether the district court had authority to consider the defendant's new claims, the USCA noted that the defendant appeared before the district court on a limited remand-a remand designed to answer a single question: Whether the district judge would have given the defendant a materially different sentence under an advisory Guidelines system. This limited remand gave the district judge no authority to re-sentence the defendant unless he first answered the question posed to him in the affirmative. Once the judge answered the question in the negative, his task was complete. Limited remand procedures left no room for the district judge to consider new objections to the original sentence-objections the defendant could have raised the first time around, but failed to do so. Because the district judge failed to modify his original sentence in light of these new objections, he acted precisely as Ameline contemplates. The USCA thus affirmed. Dissenting, Judge Berzon thought the majority's interpretation of the word "reasonableness" not only defied its common usage in the English language, but ran contrary to what the Ninth Circuit decided, sitting en banc, in Ameline. Because the Circuit's intention in Ameline was to give all defendants, even those like Combs in the instant case, the same reasonableness review the Circuit conducts on post-Booker sentences-an intention borne out by language used repeatedly in Ameline itself-Judge Berzon disagreed with the majority's conclusion that Combs was entitled only to the most anemic of appellate reviews-an inquiry solely into "whether the district judge properly understood the full scope of his discretion in a post-Booker world." Moreover, because the district judge in the instant case failed even that test-using language when reimposing Combs' sentence that indicates he failed to appreciate the nature of his post-Booker sentencing authority-Judge Berzon would vacate Combs' sentence and remand to the district court so that it may properly comply with procedures set forth in Ameline. Kozinski (author), Berzon (dissenting), and Tallman, Circuit Judges. L. Wells of Anchorage, AK, for the appellant; AUSA J. Farrington of Anchorage, AK, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) SENTENCING / PROBATION: USA v. Peters, 06-50508 (9th Cir. Dec. 12, 2006). Peters consumed a number of alcoholic beverages before boarding a flight during which he became increasingly obnoxious and ended up assaulting a fellow passenger. The district court sentenced him to a two-year term of probation, during the first six months of which he was required to serve weekend jail time, abstain from drinking alcohol, and complete any drug treatment program ordered by the U. S. Probation Office. Subsequently, he was arrested again, this time with a blood alcohol level of .263 percent. He then also vanished from a residential drug treatment center at which he had been ordered to reside. The district court revoked his probation and sentenced him to four months in custody, with credit for time served as a result of his first arrest. Peters appealed the district court's judgment revoking his probation, sentencing him to four months' imprisonment, and granting him credit for time served between his arrest for probation violation and sentencing. The USCA affirmed the judgment as amended. The district court lacked authority under 18 USC Sec. 3585(b) to grant Peters credit for the time he had served after his arrest. It thus did not exceed its authority in refusing to give Peters credit for the weekend days he spent in custody as a condition of his probation. Thus amended, the USCA affirmed the judgment and sentence. B. Fletcher, Cudahy, and Graber, Circuit Judges. Per Curiam. C. Tayback of Los Angeles, CA, for the appellant; USCA T. O'Brien for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) SENTENCING: USA v. Luong, 01-10468 (9th
Cir. Dec. 26, 2006). The defendants appealed their convictions and sentences for
crimes relating to their involvement in a criminal enterprise that engaged in
robberies of computer companies and in heroin trafficking. One issue of statutory
interpretation was address on appeal. The statute authorizes a judge, upon proper
showing, to authorize "inter-ception of … electronic communications
within the territorial jurisdiction of the court in which the judge is sitting."
18 USC Sec. 2518(3). At issue was whether this statute authorized the district
court in the Northern District of California to authorize interception of communications
to and from Luong's mobile phone when that phone and its area code were located
outside of the court's territorial jurisdiction but the government's listening
post was located within it. The USCA, joining several other Circuits, held that
the district court had jurisdiction because the intercepted communications were
first heard by the government within the court's district. Canby (author),
Thompson, and Hawkins, Circuit Judges. W. Osterhoudt of San Francisco, CA, for
the defendants-appellants; N. Goodman of Washington, DC, for the plaintiff-appellee.
(Download the full
text of this decision at www.ce9.uscourts.gov/)
43) SENTENCING: USA v. Gomez, 06-30288 (9th Cir. Dec. 28, 2006). Gomez appealed his 60-month sentence for conspiracy to distribute 500 grams or more of a mixture containing a detectable amount of cocaine. The mandatory minimum sentence for that offense is 60 months' imprisonment. Gomez did not qualify for the statutory "safety valve" that would have lifted the mandatory-minimum sentence, because he had three criminal history points and the statute disqualifies defendants having more than one. On appeal, Gomez argued that his disqualification from the safety valve constitutes cruel and unusual punishment under the Eighth Amendment The USCA affirmed. The safety valve in 18 USC Sec. 3553(f) does not violate the Eighth Amendment by limiting its benefit to defendants who have no more than one criminal history point. B. Fletcher, Graber (author), and McKeown, Circuit Judges. G. Trejo of Yakama, WA, for the defendant-appellant; AUSA R. Smoot of Spokane, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 44) SENTENCING: USA v. Baldrich, 05-50676 (9th Cir. Dec. 27, 2006). Baldrich pleaded guilty to five counts of bank robbery and one count of attempted bank robbery in violation of 18 USC Sec. 2113(a). At sentencing, the district court denied his request for disclosure of the federal probation officer's confidential sentencing recommendation as allowed by Rule 32(e)(3) of the Federal Rules of Criminal Procedure. The district court also rejected Baldrich's argument that he was entitled to a reduction in his offense level under U.S. Sentencing Guideline Sec. 3E1.1(b). On appeal, Baldrich first argued that the district court violated his right to due process at sentencing by denying his motion to disclose the probation officer's confidential sentencing recommendation. He also argued that Rule 32(e)(3) is unconstitutional to the extent it allows the court to withhold the recommendation. Second, Baldrich argued that the district court's denial of his motion to reduce his offense level under Guideline Sec. 3E1.1(b) violated his constitutional rights to proceed to trial and to effective assistance of counsel. The USCA rejected Baldrich's first argument because the district court's compliance with Rule 32's requirement to disclose factual information relied on in sentencing satisfies the defendants due process rights. USA v. Gonzales, 765 F.2d 1393, 1398-99 (9th Cir. 1985). The USCA also rejected Baldrich's second argument because the incentive provided by Sec. 3E1.1(b) to plead guilty in a timely manner did not violate Baldrich's constitutional rights. USA v. Espinoza-Cano, 456 F.3d 1126, 1137-38 (9th Cir. 2006). Tashima, Bea, and Ikuta (author), Circuit Judges. DFPD D. Chen of Los Angeles, CA, for the appellant; AUSA T. O'Brien of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) SENTENCING: USA v. Benz, 06-10167 (9th
Cir. Dec. 28, 2006). Benz appealed his guilty plea conviction and the sentence
im-posed for his driving on a suspended license in violation of the Assimilative
Crimes Act ("ACA"), 18 USC Sec. 13, and Sec. 14601 of the California
Vehicle Code. He maintained that the district court erred in rejecting his contention
that California's provision on work furlough, Sec. 4024 of the California Penal
Code, was assimilated under the ACA and thus that the court had discretion to
impose an alternative sentence from the mandatory minimum ten-day prison term
required under Sec. 14601.2. He also maintained that the district court erred
in affirming the magistrate judge's sentence despite his failure to inform Benz
of the mandatory minimum, in violation of Federal Rules of Criminal Procedure
11(b)(1)(I). The USCA held that the district court correctly determined that the
magistrate judge did not have discretion to impose an alternative sentence under
the ACA. However, the district court erred in affirming the conviction in light
of the violation of Federal Rule of Criminal Procedure 11(b)(1)(I). The failure
to inform Benz of the mandatory minimum seriously affected the fairness, integrity,
or public reputation of the judicial proceedings because, the USCA noted, as it
could not know whether the defendant would have pled differently had he been informed
of the mandatory minimum sentence as required under Rule 11. The Rule 11 violation
was plain error. However, the USCA affirmed the district court's holding that
the magistrate judge lacked discretion to impose an alternative "like punishment"
under the ACA for violations of Sec. 1401 of the California Vehicle Code. The
USCA thus reversed the conviction and remanded to the district court. Bright,
D.W. Nelson (author), and Berzon, Circuit Judges. A. McClintock of Sacramento,
CA, for the appellant; AUSA S. Spangler of Sacramento, CA, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/) MEMORANDA
2) COPYRIGHTS / DAMAGES: Sogecable,
SA v. NDS Group PLC, 04-56990 (9th Cir. Dec. 13, 2006) (unpublished).
B. Fletcher, Fernandez, and Graber, Circuit Judges.
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