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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) SECURITIES: SEC v. JT Wallenbrock & Associates,
04-55100 (9th Cir. Mar. 10, 2006). At issue here was an order entered against
parties to a securities pyramid or Ponzi scheme, requiring the principal and his
two companies, jointly and severally, to disgorge $253.2 million that the distinct
court found to be ill-gotten gains resulting from defrauding numerous investors.
The USCA affirmed the 2) SECURITIES: Powers v. Wells Fargo Bank, 04-56084 (9th Cir. Mar. 3, 2006). Howard v. America Online, 208 F.3d 741 (9th Cir. 2000), held that a federal RICO claim alleging securities fraud, presented in a class action, was barred by 18 USC Sec. 1964(c), which provides that no person may rely upon any conduct that would have been actionable as fraud in the purchase or sale of securities to establish a RICO violation. At issue here was whether Sec. 1964(c) barred private securities fraud claims presented as individual claims rather than in a class action. The USCA held that the preclusive effect of Sec. 1964(c) applies to claims asserted individually as well as to claims presented in a class action. Thompson, T.G. Nelson, and Gould (author), Circuit Judges. J. Schiro of Studio City, CA, for the plaintiffs-appellants; R. Clement of Costa Mesa, CA, J. Sheller of Los Angeles, CA, and D. Goodkin of Santa Monica, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) BANKRUPTCY: In re Sherman, 03-56601 (9th Cir. Mar. 23, 2006). Sherman was the attorney for several defendants in an enforcement action brought by the SEC and in other actions in which those defendants were parties. When he filed a Chapter 7 bankruptcy petition, the SEC moved to dismiss the petition pursuant to 11 USC Sec. 707(a), arguing that there was "cause" for dismissal. Although the bankruptcy court denied the SEC's motion, the district court reversed. The USCA held that the SEC had standing as it had retained a pecuniary interest as a creditor in Sherman's debt, an interest not extinguished by the settlement agreement between Sherman and the Receiver. The USCA also held that the fact that the bankruptcy court granted Sherman a discharge did not render the case moot as the bankruptcy court lacked jurisdiciton to do so. Finally, the USCA held that the bankruptcy court did not err in denying the SEC's mo-tion to dismiss the petition for cause. Other provisions of the Bankruptcy Code address the misconduct that the SEC argued consti-tuted "cause" justifying dismissal. Thus, under In re Padilla, 222 F.3d 1184 (9th Cir. 2000), the petition could not be dismissed for "cause" under 11 USC Sec. 707(a). Thomas and Berzon (author), Circuit Judges, and Mahan, District Judge. A. Greenberg of Encino, CA, for the appellants; G. Prezioso of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) ENVIRONMENTAL LAW: Earth Island Institute v. U.S.
Forest Service, 05-16776 (9th Cir. Mar. 24, 2006). The plaintiffs
appealed the district court's denial of their motion for a preliminary injunction
to stop implementation of two Forest Service post-fire restoration projects in
the El Dorado National Forest. The plaintiffs argued that the Final EIS for both
projects failed to satisfy the National Environmental Policy Act because the Forest
Service used faulty scientific methods in developing its tree mortality guidelines,
and because the Final EISs failed to consider adequately the adverse impacts of
the projects on the California spotted owl. The plaintiffs also argued that the
Final EISs failed to comply with the National Forest Management Act because the
Service did not compile sufficient population data for certain bird Management
Indicator Species ("MIS"). The district court denied the plaintiffs
requests. The USCA reversed, noting that the Service had a substantial financial
interest in the harvesting of timber in the National Forest, and regretted to
say that in this case, as in others cited, it appears to have been more interested
in harvesting timber than in complying with environmental laws. Concurring, Judge
Noonan said there was no doubt that the district court articulated the wrong standard
as to the possibility of harm the plaintiffs must show. He added that there was
also no doubt in his mind that the Service's financial interests required further
investigation and evaluation. Noonan (concurring), Tashima, and W. Fletcher
(author), Circuit Judges. R. Fazio of Cedar Ridge, CA, for the appellants;
R. Spritzer of Washington, DC, for the appellees; C.A. Roussos of Sacramento,
CA, for the intervenor. (Download
the full text of this decision at www.ce9.uscourts.gov/)
6) CONTRACTS / ARBITRATION: Schoenduve Corp. v. Lucent Technologies, Inc., 04-15529 (9th Cir. Mar. 22, 2006). Lucent Technologies appealed the district court's order confirming an arbitration award entered in favor of Schoenduve Corporation. Lucent asked the USCA to vacate or modify the arbitration award claiming that the arbitrator (1) exceeded his authority by ruling on an issue not submitted by the parties, (2) modified or expanded the unambiguous language of the agreement requiring arbitration, and, (3), failed to provide Lucent an opportunity to rebut Schoenduve's claim for commissions under a quasi-contract or estoppel theory. Lucent also asked the USCA to vacated the portion of the arbitrator's decision awarding attorneys' fees to Schoenduve as a manifest disregard of the law. As the arbitrator stayed within the bounds of his authority in applying New York substantive law because the parties had con-tractually agreed to and made a good faith effort to apply California's Civil Code to the award of attorneys' fees, the USCA affirmed. O'Scannlain, Thomas, and Tallman (author), Circuit Judges. J. Riffer of Los Angeles, CA, for the respondent; J. Russo of Palo Alto, CA, for the petitioner.(Download the full text of this decision at www.ce9.uscourts.gov/) 7) ANTITRUST: Reyn's Pasta Bella v. Visa USA, 04-15581 (9th Cir. Mar. 27, 2006). The plaintiffs appealed from the dismissal of their complaint seeking damages and injunctive relief for the defendants' alleged antitrust violations. They claimed that defendants Visa, MasterCard, Bank of America, Wells Fargo Bank, and U.S. Bank fixed prices on credit- and debit-card transactions in violation of Sec. 1 of the Sherman Act. The district court found that the plaintiffs claims were released by the class action settlement in In re Visa Check/Mastermoney Antitrust Litig., 297 F. Supp. 2d 503 (E.D.N.Y. 2003), aff'd sub nom., WalMart Store v. Visa USA, 396 F.3d 96 (2d Cir. 2005). The USCA affirmed. It held that issue preclusion barred the plaintiffs from relitigating the WalMart courts' determination that the plaintiffs' price-fixing claims were properly released. It also held, in the alternative, that the plaintiffs claims were extinguished by the WalMart settlement because the two actions share an identical factual predicate. Since the plaintiffs chose not to file an amended complaint based on acts occurring after the time period covered by the WalMart release, the district court correctly dismissed their action. B. Fletcher, Thompson, and Bea (author), Circuit Judges. J. Kopcke of San Francisco, CA, for the plaintiffs; M.L. Popofsky of San Francisco, CA, and J. Fastow of New York, NY, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/) 8) TAXATION: Johnson v. CIR, 04-72322 (9th Cir. Mar. 38, 2006). Stanley Johnson and his present wife, Constance, appealed a Tax Court's decision finding a deficiency in income tax due from them for the tax year 1997. The gravamen of their argument was that Internal Revenue Code Sec. 71, as amended in 1984 ("the new Sec. 71"), should apply to Stanley's deduction for alimony in the 1997 tax year, rather than the version of Sec. 71 that existed prior to the 1984 amendment ("the old Sec. 71"). The USCA affirmed the decision of the Tax Court. A 1997 agreement and $400,000 payment settled a dispute over the modification of the alimony provisions of Stanley's 1976 divorce decree. It was not a separate stand-alone agreement. Rather, it was a modification of a divorce decree that came into exis-tence prior to 1984. The law applicable to divorce instruments executed before Dec. 31, 1984, the old Sec. 71, thus applied. Hug, Alar-con (author), and McKeown, Circuit Judges. H. Stern of Las Vegas, NV, for the petitioners; J. Schumann of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 9) ADMINISTRATIVE LAW / FAA: Americopters, LLC v. Federal Aviation Administration, 04-15097 (9th Cir. Mar. 21, 2006). Jan's Helicopter Service and Americopters petitioned for review under 49 USC Sec. 46110, requesting relief from the actions of FAA officials that allegedly had the effect of halting their flight operations. In separately filed appeals based on the same facts, Jan's and Americopters challenged the district court's dismissal of their complaints for lack of jurisdiction under Sec. 46110, which vests in the court of appeals exclusive jurisdiction to review FAA final orders. The USCA dismissed the petitions for lack of jurisdiction as they were untimely filed without reasonable grounds for delay. As for the appeals, with one exception, the district court correctly dismissed the claims for lack of jurisdiciton; it erred in dismissing the constitutional claims for damages based on allegations that the FAA's actions effected a taking of property in violation of the Due Process Clause. Bright, McKeown (author), and Clifton, Circuit Judges. D. Ledger of Hagatna, GU, for the appellants; K. Caplan of San Diego, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 10) LABOR LAW: Healthcare Employees Union, Local 399 v. NLRB, 03-72029 (9th Cir. Mar. 17, 2006). Healthcare Employees Local 399 petitioned the USCA to review a final National Labor Relations Board order dismissing the Union's unfair labor practice charge against St. Vincent Medical Center. In its unfair labor practice charge, the Union alleged that St. Vincent subcontracted out the work of the hospital's respiratory care department on the eve of a union election to prevent employees in that department from voting in the election-in violation of Sec. 8(a)(1) and 8(a)(3) of the National Labor Relations Act. An ALJ ruled that the Union failed to carry its burden of persuasion that anti-union animus was a motivating factor in the Center's subcontracting decision and dismissed the complaint. The Board affirmed that ruling and, in addition, ruled that even if the Union had carried its burden of persuasion, St. Vincent demonstrated that it would have subcontracted out the work of the department in the absence of any union organizing activity. The USCA granted the Union's petition for review and remanded for further proceedings. The Board's conclusions were not supported by substantial evidence in the record. Dissenting, Judge Beezer noted that, although the correct standard for review appeared in the Court's opinion, a different standard was applied in the evaluation of the record made by the ALJ and NLRB. Pregerson (author), Canby, and Beezer (dissenting), Circuit Judges. D. Rosenfeld of Oakland, CA, for the petitioner; M. Jason of Washington, DC, for the respondent; G. Letter of Los Angeles, CA, for the intervenor.(Download the full text of this decision at www.ce9.uscourts.gov/) 11) PENSION PLANS / GARNISHMENT: USA v. Novak, 04-55838 (9th Cir. Mar. 23, 2006). The government appealed a district court's order quashing its writ of garnishment of Novak's benefits under an ERISA pension plan. The district court ruled that the garnishment was prohibited by ERISA's anti-alienation provision, 29 USC Sec. 1056(d)(1). The USCA reversed and remanded, finding that the Mandatory Victims Restitution Act of 1996, 18 USC Sec. 3553A, in conjunction with 18 USC Sec. 3613, constituted a statutory exception to the anti-alienation provision. Dissenting, Judge Fletcher noted that Guidry v. Sheet Metal Workers National Pension Fund, 493 US 365 (1990), and USA v. Jackson, 229 F.3d 1223 (9th Cir. 2000), require Congress to issue a clear statement of its intent to abrogate ERISA, but neither the MVRA nor Sec. 3613 contains such a directive. Goodwin, B. Fletcher (dissenting), and Callahan (author), Circuit Judges. AUSA L. Weidman of Los Angeles, CA, for the appellant; M. Bakst of Encino, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 12) PREGNANCY DISCRIMINATION: Hulteen v. AT&T Corporation, 04-16087 (9th Cir. Mar. 8, 2006). At issue here was whether in making recent retirement benefits determinations, AT&T discriminated, in violation of Title VII, against women who took pregnancy-related leaves before 1979, the year in which the Pregnancy Discrimination Act of 1978 ("PDA"), an amendment to Title VII, became effective. The district court ruled that AT&T's post-PDA benefits determinations violated the PDA and granted the plaintiffs summary judgment on their Title VII claims. But, because the result reached by the district court gave the PDA impermissible retroactive effect under today's controlling law, the USCA reversed. Dissenting, Judge Rymer, like the district court, thought Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), controlled. Trott, Rymer (dissenting), and Plager (author), Circuit Judges. J. Guerra of Washington, DC, for the defendant-appellant; M.S. Murphy of Oakland, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) RACE DISCRIMINATION: Cornwell v. Electra Central
Credit Union, 04-35408 (9th Cir. Mar. 1, 2006). Cornwell appealed the
district court's summary judgment in favor of Electra Central Credit Union and
Jim Sharp, and its dismissal of Cornwell's retaliation and race discrimination
claims brought under 42 USC Sec. 1981, Title VII and Oregon law. Cornwell also
appealed a district court order denying his motion to reopen discovery so that
he could depose an additional witness in opposing summary judgment. The USCA af-firmed
the district court's enforcement of the discovery cutoff. But, on the summary
judgment record as presented to the district court, it affirmed in part and reversed
in part. It remanded the case for trial on the claim that Cornwell's demotion
was the result of intentional discrimination based on race. Concurring, Judge
Bea thought that the evidence of Sharp's immediate reaction to Cornwell's enquiry-an
offer to find Cornwell employment elsewhere-could reasonably be seen as contradictory
to Sharp's assertion that he wanted Cornwell to remain with the company and to
be put in charge of lending. Hence, Judge Bea thought the trier of fact could
view Sharp's business related reason for re-assigning Cornwell as a pretext, and
could consider racial animus as the true motive for Cornwell's reassignment or
demotion. Fisher, Gould (author), and Bea (concurring), Circuit
Judges. C. Crispin of Portland, OR, for the plaintiff; R. Meneghello of Portland,
OR, for the defendants. (Download
the full text of this decision at www.ce9.uscourts.gov/)
15) TORTS: Oberson v. USDA, 04-35268 (9th Cir. Mar. 20, 2006). Musselman was gravely injured in a snowmobile accident on a National Forest trail. His legal guardian, Oberson, and others brought this action against the U.S. under the Federal Tort Claims Act ("FTCA"), alleging that the Forest Service negligently failed to correct or warn of a dangerous condition on the trail. The U.S. filed a third-party complaint against Leinberger, Kalahar, and Johnson, alleging that their negligence caused Brian's injuries. Default was taken against Johnson. Kalahar settled and was dismissed before trial. Following a bench trial, the district court entered judgment for the plaintiffs, awarding $11,296,800 in damages and apportioning liability 40% to the Forest Service, 50% to Leinberger, and 10% to Musselman. The Service appealed, citing as error the district court's refusal to apply the discretionary function exception of the FTCA and its finding of negligence. The plaintiffs cross-appealed from the liability allocation of 50% to third-party defendants and the method of calculating life expectancy. The USCA affirmed the district court in all respects except that it left for future resolution the determinative question of the appropriate standard of care pending the disposition of its request for certification of three questions of law to the Montana Supreme Court: Does the gross negligence standard of care in the State's snowmobile liability statute, Mont. Code Ann. Sec. 23-2-653 (1996), violate Montana's equal protection clause, Mont. Const. Art. II, Sec. 4? If the snowmobile liability statute's gross negligence standard is unconstitutional, does the recreational use statute's willful or wanton misconduct standard of care, Mont. Code Ann. Sec. 70-16-302(1) (1996), apply in its place? If neither the snowmobile liability statute nor the recreational use statute provide an applicable standard of care, does the ordinary care standard, Mont. Code Ann. Sec. 27-1-701, apply? Gould and Berzon, Circuit Judges, and Schwarzer (author), District Judge. T. Lewis of Great Falls, MT, for the plaintiffs; B. Hubley of Helena, MT, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) JONES ACT / NEGLIGENCE: MacDonald v. Kahikolu Ltd., 04-15979 (9th Cir. Mar. 31, 2006). MacDonald appealed the final judgment entered following a bench trial before a U.S. Magistrate Judge. He sought reversal on the ground that the trial court erred in concluding that the failure of appellee Kahikolu, dba "Frogman Charters," to comply with Coast Guard regulations 46 CFR Ch. 1, Subch. V, Pt. 197, did not establish negligence per se liability under the Jones Act, 46 App. USC Sec. 688. The USCA vacated the judgment and remanded for the limited purpose of having the district court make a finding as to whether Kahikolu's failure to provide an operations manual to the person-in-charge of the Frogman II vessel, as required the Coast Guard's scuba diving regulations, played any part in producing the injury, no matter how slight, to MacDonald. Alarcon (author) and McKeown, Circuit Judges, and Holland, District Judge. H. McPherson of Honolulu, HI, for the plaintiff-appellant; R. Wooton of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) PRIVACY: Oja v. Army Corps of Engineers, 03-35877 (9th Cir. Mar. 14, 2006). Oja sued the Army Corps of Engineers and Robert Flowers (collectively "defendants") under the Privacy Act of 1974, for disclosing Oja's personal information by posting it on the Corps' public website. The district court granted summary judgment for the defendants. The USCA affirmed, holding that the district court properly applied the Privacy Act's statute of limitations to both of Oja's amended complaints. In the course of answering Oja's claims, the USCA held that the single publication rule applied to Privacy Act claims relating to Internet postings. Hug, Berzon, and Bybee (author), Circuit Judges. M. Dugan of Eugene, OR, for the appellants; AUSA J. Sutherland of Eugene, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) FIRST AMENDMENT: Frederick v. Morse,
03-35701 (9th Cir. Mar. 10, 2006). Coco-Cola supported a "Winter Olympics
Torch Relay" in Juneau, Alaska. Students were released from school so they
could watch the event. Frederick, one of the students, unfurled a banner reading
"Bong Hits 4 Jesus." Morse, the school principal, grabbed the banner,
and then suspended Frederick for 10 days. Frederick unsuccessfully appealed the
suspension administratively. He then filed a 42 USC Sec. 1983 action seeking a
declaratory judgment that his First Amendment rights had been violated. He also
sought an injunction to remove any reference to the suspension from his school
records, damages, and other relief. The district court granted summary judgment
for the appellees, on the grounds that no constitutional rights had been violated
and that the appellees qualified immunity in any case. The district court reasoned
that Bethel School District No. 403 v. Fraser, 478 US 675 (1986), governed
Frederick's speech. The USCA disagreed. A school may not, in the absence of concern
about disruption of educational activities, punish and censor non-disruptive,
off-campus speech by students during school-authorized activities because the
speech promotes a social message contrary to the one favored by the school. Hall,
Kleinfeld (author), and Wardlaw, Circuit Judges. D. Mertz of Juneau, AK,
for the appellant; D. Crosby of Juneau, AK for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
20) IMMUNITY: Kohlrautz v. Oilmen Participation Corp., 03-16340 (9th Cir. Mar. 27, 2006). Weber was appointed by a Texas state court as a receiver for the marital estate of Tracy and Franz-Wilhelm Kohlorautz. Weber thereafter participated in a Nevada state court suit brought by Tracy against Oilmen Participation Corporation ("Oilmen"). Oilmen removed the suit to federal district court where it filed what it called a "third-party complaint" against Weber alleging abuse of process. Weber moved for summary judgment based on official immunity as a court-appointed receiver. The district court denied Weber's motion. The USCA held that state rather than federal official immunity law applied to this case, and, based on Nevada choice-of-law rules, held that Nevada, rather than Texas, law applied. Applying Nevada's law of official immunity for court-appointed receivers, the USCA affirmed the district court's denial of summary judgment. D.W. Nelson, W. Fletcher (author), and Fisher, Circuit Judges. T. Thompson of Austin, TX, for the defendant; L. Kasten of Phoenix, AZ, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) STATE ESCHEATMENT: Suever v. Connell, 04-15555 (9th Cir. Mar. 14, 2006). At issue in this class action was the extent to which federal courts are open, via the Eleventh Amendment, to persons claiming that a state has improperly taken their property under a state's escheat system. The class appealed the district court's order granting the motion of appellees Connell, Chivaro, Westly, and DeLeon (collectively, "the Controller") to dismiss the action without leave to amend. The class alleged that, to mitigate the state's mounting debt the Controller improperly seized and retained the class's property under the California Unclaimed Property Law ("UPL"). The district court held that the Eleventh Amendment barred the class's complaint in its entirely because it alleged only that the class was entitled to monetary damages as compensation from state funds for state officials' past constitutional violations and it failed to allege state officials ongoing violation of federal law or to seek relief properly characterized a prospective that would warrant exception to state sovereign immunity under Ex parte Young, 209 US 123 (1908). The USCA concluded that the district court erred because it over-looked that part of what the class requested is the return of its own property permanently taken from it Because the complaint alleged that state officials seized and retained the class's property through ultra vires and unconstitutional acts, the Eleventh Amendment did not bar the class from suing to obtain its property from the Controller. B. Fletcher, Hawkins, and Bea (author), Circuit Judges. W. Palmer of Sacramento, CA, for the plaintiffs-appellants; R. Johansen of San Leandro, CA, for the defendants-appellants.(Download the full text of this decision at www.ce9.uscourts.gov/) 22) CAMPAIGN FINANCE LAW: Alaska Right to Life Committee v. Miles, 04-35599 (9th Cir. Mar. 22, 2006). The Alaska Right to Life Committee ("AKRTL") challenged aspects of Alaska's campaign finance law, Alaska Stat. Sec. 15.13.030 et seq. Prior to the 2002 Alaska gubernatorial election, AKRTL was informed by the Alaska Public Offices Commission that if it wished to engage in "electioneering communications" as a "nongroup entity," it would have to comply with registration, reporting, notification, and disclosure-of-identity requirements. AKRTL brought suit in federal district court based on the First Amendment, seeking declaratory and injunctive relief against these requirements. On cross-motions for summary judgment, the district court upheld Alaska campaign finance law. The USCA affirmed, finding that the challenged portions of the law were constitutionally, facially and as applied to AKRTL. Goodwin, Brunetti, and W. Fletcher (author), Circuit Judges. K. Jacobus of Anchorage, AK, for the plaintiff; M. Mitchell of Anchorage, AK, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) CIVIL RIGHTS: Long v. County of Los Angeles, 04-55463 (9th Cir. Mar. 28, 2006). Idlet reported to the Los Angeles County Jail on March 11,2002 to begin a 120-day sentence. He was 71 years old and suffered from congestive heart failure. Over the next 18 days, his condition deteriorated. Although nurses saw him several times in that period, there was no record of a doctor's examination until the morning of March 28, 2002, just hours before he died of cardiac arrest. His wife filed a 42 USC Sec. 1983 action. The district court dis-missed all of the claims against all of the defendants except the County, against whom the wife asserted municipal liability for failing to train adequately jail medical staff and failing to implement necessary medical policies, leading to the denial of adequate medical care and the death of her husband. The district court granted the County summary judgment, finding that, while a triable issue of fact existed as to whether jail medical staff had deprived Idlet of constitutionally adequate medical care, summary judgment was appropriate because, under Monell v. Department of Social Services, 436 US 658 (1978), the wife failed to raise a triable issue as to whether the County had a policy of deliberate indifference to prisoners' medical needs. The USCA held that the wife presented sufficient evidence to create a triable issue regarding the County's liability. It reversed the district court's summary judgment and remanded for further proceedings. Reinhardt and Rawlinson, Circuit Judges, and Wilkin (author), District Judge. R. Berke of Santa Monica, CA, for the plaintiff; M. O'Linn of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) IMMIGRATION: Nadarajah v. Gonzales, 05-56759 (9th Cir. Mar. 17, 2006). Starting at age 17, Nadarajah was repeatedly tortured in Sri Lanka. He fled to the U.S. where he was detained upon arrival. He applied for asylum, withholding of removal, and protection under the Convention Against Torture. The government's arguments were rejected and Nadarajah was awarded relief by an immigration judge. That decision was affirmed by the Board of Immigration Appeals. Still, the government continued to detain Nadarajah, who has now been imprisoned for five years despite having prevailed at every administrative level of review, and who has never been charged with any crime. The USCA granted habeas relief, ordering Nadarajah be released on appropriate conditions during the pendency of any further proceedings. The general detention statutes relied upon by the government did not authorize indefinite detention. Under the analysis prescribed by the Supreme Court, Nadarajah's detention was unreasonable, unjustified, and unlawful. Thomas (author) and Tallman, Circuit Judges, and Fitzgerald, District Judge. R. Natrarajan of Los Angeles, CA, for the appellant; C. Fuller of Washing-ton, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) IMMIGRATION: Fernandez v. Gonzales, 02-72733 (9th Cir. Mar. 2, 2006). Fernandez came to the U.S. without inspection in 1985. She has two American citizen daughters, one 15, the other 12. Her husband is a lawful permanent resident. At her removal hearing in 1998, Fernandez applied for cancellation of removal based on her qualifying relative children. The Immigration Judge denied the appli-cation after determining that she had not shown that her children would be subject to exceptional and extremely unusual hardship should she be removed. On appeal, the Board of Immigration Appeals denied her motion to reopen as insufficient to show prima facie eligibility for cancellation of removal. The USCA dismissed the petition for review in part for lack of jurisdiction and denied it in part. The government argued that the USCA lacked jurisdiction over the non-constitutional component of the petition because the BIA did not rely on a statutory or regulatory provision to deny the motion to reopen. Instead, the BIA held that she had not established a prima facie case of hardship, a discretionary factor that would be unreviewable if it were the basis of a BIA decision on direct appeal. The USCA agreed that that was the relevant distinction. Discretionary decisions are those over which a statute gives the Attorney General pure discretion unguided by legal standards or statutory guidelines. Decisions by the BIA that apply the procedural requirements of 8 CFR Sec. 1003.2(c)(1) are not discretionary under this definition. As it was without jurisdiction to review the BIA's rulings on the merits, concerns the USCA has expressed in prior decisions over its ability to review inadequately reasoned or cursory BIA decision when jurisdiction is present did not apply. B. Fletcher, Gibson, and Berzon (author), Circuit Judges. J. Sanders of Palo Alto, CA, for the petitioners; S. Goad of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Ibarra-Flores v. Gonzales, 04-71554 (9th Cir. Mar. 6, 2006). The Board of Immigration Appeals denied the petitioner's application for cancellation of removal. The USCA granted the petition and remanded. It was reasonable for the petitioner to seek evidence in the INS's possession in an attempt to meet his burden of showing that he met the continuous physical presence re-quirement. Had the INS failed to produce a voluntary departure form for the petitioner after being ordered to do so, that would have been further evidence that the petitioner's continuous physical presence in the U.S. was not interrupted by an administrative voluntary departure. For this reason, the outcome of these proceedings may have been affected if the requested discovery had been ordered. The USCA instructed that upon remand the Immigration Judge shall order the production of all forms referencing the petitioner's departure from the U.S. on March 23, 1996. Goodwin and Clifton, Circuit Judges, and Rhoades (author), District Judge. J. Jasso of Westlake Village, CA, for the petitioner; W. Erb of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) IMMIGRATION: Valencia v. Gonzales, 03-72028 (9th Cir. Mar. 6, 2006). Valencia, a native and citizen of Peru, petitioned for review from an order of the Board of Immigration Appeals summarily affirming the Immigration Judge's order of removal. He had been convicted of felony unlawful sexual intercourse with a person under 18, who was more than three years younger than he, in violation of Cal. Penal C. Sec. 261.5(c). The IJ found Valencia removable for having committed an aggravated felony under 8 USC Sec. 1227(a)(2)(A)(iii), holding that the crime constituted a crime of violence under 8 USC Sec. 1101(a)(43)(F), which defines "a crime of violence" pursuant to 18 USC Sec. 16. The USCA granted the petition and held that a violation of Sec. 261.5(c) did not constitute a crime of violence under 18 USC Sec. 16. O'Scannlain, Cowen, and Bea (author), Circuit Judges. J. Bennet of El Cerrito, CA, for the petitioner; P. Kiesler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) IMMIGRATION: Singh v. Gonzales,
03-71255 (9th Cir. Mar. 10, 2006). Singh petitioned for review of a BIA's decision
denying his application for asylum and withholding of removal under 8 USC Sec.
1231(b)(3)(A) and Art. 3 of the Convention Against Torture ("CAT").
The USCA granted the petition, concluding that the IJ's credibility findings were
not supported by substantial evidence. 29) IMMIGRATION: Ray v. Gonzales, 03-72501 (9th Cir. Mar. 1, 2006). Ray, a native of citizen of India, sought asylum. An Immigration Judge denied his application and the Board of Immigration Appeals affirmed as Ray failed to file a brief on appeal. Ray submitted to the BIA two motions to reopen his case. The BIA denied both on procedural grounds. Ray then petitioned for review of the BIA's decision to deny his second motion to reopen. The USCA granted the petition and remanded with instructions for the BIA to consider the merits of Ray's first motion to reopen. It noted that prior to this appeal Ray had the misfortune to hire two attorneys who provided inadequate legal assistance, and the BIA dismissed Ray's pleadings on procedural grounds, using blatant errors of his prior attorneys to avoid addressing the merits of Ray's complaints against them. Because those attorneys violated Ray's due process rights, the USCA held that the BIA abused its discretion in denying Ray's motions to reopen. B. Fletcher (author), Gibson, and Berzon, Circuit Judges. A. Goncharsky of Tucson, AZ, for the petitioner; K. Cabral of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 30) IMMIGRATION: Sissoko v. Rocha, 02-56751 (9th Cir. Mar. 16, 2006). After Sissoko, an alien who overstayed his visa but applied for legalization, returned from his father's funeral in spring 1997, an immigration officer, Rocha, took him into custody as an "arriving alien" without proper admission documents. Sissoko then spent nearly three months in detention. He and his wife, a U.S. citizen, brought this action, claiming that the detention violated the Fourth Amendment. They sought damages. Rocha appealed the district court's summary adjudication in favor of the Sissokos as to the legality of the detention, and the court's denial of Rocha's motion for summary judgment on qualified immunity grounds. The USCA affirmed the denial of Rocha's motion for summary judgment on the basis of qualified immunity, its grant of summary adjudication to Sissoko on the false arrest claim, and its denial of Rocha's motion for reconsideration. Skopil, Noonan, and Berzon (author), Circuit Judges. P. Keisler of Washington, DC, for the appellants; M. Simone of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) IMMIGRATION: Alvarado v. Gonzales, 03-70165 (9th Cir. Mar. 21, 2006). The petitioner, a native and citizen of Peru, sought asylum and withholding of removal, but an Immigration Judge found him bared from relief because he had "assisted in the persecution" of suspected members of the Shinning Path on account of their political opinion. The USCA held that the IJ properly decided that the pe-titioner "assisted in persecution" and was thus ineligible for asylum and withholding of removal per 8 USC Secs. 1101(a)(42), 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i). Concurring, Judge Leavy agreed that substantial evidence supported the IJ's factual determina-tion that the petitioner persecuted others on account of their political opinion, but thought the USCA should have deferred its discussion regarding deference under Chevron v. Natural Resources Defense Council, 467 US 837 (1984), to a case where the resolution of that issue was necessary to the decision. B. Fletcher, Leavy (concurring), and Berzon (author), Circuit Judges. N. Makada of Burlingame, CA, for the petitioner T. Ragland of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) IMMIGRATION: Canales-Vargas v. Gonzales, 03-71737 (9th Cir. Mar. 21, 2006). An Immigration Judge denied the petitioner's applications for suspension of deportation, asylum, and withholding of deportation. The BIA affirmed without opinion. The USCA granted the petition in part and remanded to the BIA for further proceedings. It found that the petitioner had established a well-founded fear of future persecution and was thus eligible for asylum. However, it denied the petition for review of the IJ's denial of withholding of deportation, as it did not consider the evidence strong enough to meet the higher standard for that relief. It also found that the petitioner failed to meet the "continuous presence" element required for suspension of deportation. Dissenting, Judge Kozinski noted that never before has the Ninth Circuit held that anonymous death threats, without a scintilla of corroborating harassment, compelled a finding that an asylum seeker's fear of persecution is well founded. He could not join the majority in interfering with the ability of the Immigration Judges to do their jobs. Pregerson (author), Kozinski (dissenting), and Hawkins, Circuit Judges. R. Domingo of San Francisco, CA, for the petitioner; V. Lawrence of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 33) MALICIOUS PROSECUTION: Guerrero v. Gates, 02-56017 (9th Cir. Mar. 27, 2006). Guerrero pleaded guilty to two charges of possession of narcotics. Years later, he brought claims under 42 USC Sec. 1983 based on allegations of wrongful arrest, malicious prosecution, and a general conspiracy of "bad behavior" among Los Angeles officials in connection with his arrests, prosecutions, and incarceration. Heck v. Humphrey, 512 US 477 (1994), barred all but one of his claims. The statute of limitations barred half of that one remaining claim. Guerrero also brought claims under RICO. The district court granted the defendants' motion to dismiss under Fed. R. Civ. Proc. 12(b). Guerrero appealed. The USCA affirmed in part and reversed in part the district court's dismissal as to the Sec. 1983 claims, reversed as to his RICO claims, and remanded. Brunetti, T.G. Nelson (author), and Silverman, Circuit Judges. S. Yagman of Venice, CA, for the appellant; J. Bogigian of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 34) AIRPORT SECURITY: USA v. Aukai, 04-10226 (9th Cir. Mar. 17, 2006). At issue here was whether a prospective commercial airline passenger, who presented no identification at check-in, and who voluntarily walked through a metal detector without setting off an alarm, could then avoid a secondary screening search by stating he had decided not to fly and wanted to leave the terminal. The USCA held that such a passenger could not prevent the secondary search as that search comports with the Fourth Amendment's requirement that a search be reasonable where the initial screening is "inconclusive" as defined in USA v. Torbet, 298 F.3d 1087 (9th Cir. 2002). The USCA did not reach the question of whether the same would be true were the secondary screening more intrusive or triggered by the subjective evaluation of the prospective passenger by airline or security personnel rather than more objective criteria such as a screening machine being triggered, random selection, or, as here, the prospective passenger's failure to present identification upon checking in. D.W. Nelson, Callahan, and Bea (author), Circuit Judges. AUSA T. Brady of Honolulu, HI, for the plaintiff; P. Tower of Honolulu, HI, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) SEARCH & SEIZURE: USA v. Williamson,
05-30150 (9th Cir. Mar. 13, 2006). At issue here was whether federal agents and
local police legally seized a home computer and related equipment used in the
international transmission of child pornography. At the time the warrant was drawn,
the USCA had already decided that Subsections (B) and (D) of 18 USC Sec. 2256(8)
(2001), defining "child pornography, were unconstitutionally overbroad. The
district court concluded that there was no Fed. R. Crim. Proc. 41(d) violation
be-cause the officers explained the search to Williamson and took other steps
to mitigate and to limit their intrusion. However, the USCA noted that in light
of USA v. Gantt, 194 F.3d 987 (9th Cir. 1999), such a legal conclusion
was erroneous. While the officers narrowly and reasonably executed the search
warrant, such efforts did not trump Gantt. The USCA concluded that under current
jurisprudence the search violated Rule 41(d) because the agents did not provide
a copy of the warrant at the outset of the search. But the error was a "mere
technical error," and suppression would be appropriate only if Williamson
suffered prejudice or if the violation had been deliberate. But, Williamson conceded
that there was no prejudice. O'Scannlain (author), Kleinfeld, and Graber,
Circuit Judges. L. Roloff of Eugene, OR, for the appellant; AUSA J. Kent of Eugene,
OR, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
37) PLEA AGREEMENTS: Buckley v. Terhune, 03-55045 (9th Cir. Mar. 17, 2006). In California plea agreements are construed like all other contracts. Here, however, the California courts failed to do so and, as a result, Buckley might have remained in prison for life instead of for the 15 years for which he bargained. The federal district court ruled that the state court's finding that Buckley "well knew" that his sentence for second degree murder was 15 years to life was both contrary to clearly established federal law in violation of 28 USCA Sec. 2254(d)(1) and an unreasonable determination of the facts in violation of Sec. 2254(d)(2). In accordance with the district court's order, Buckley was released. The USCA affirmed that order because, under Sec. 2254(d)(1), the state court's failure to interpret Buckley's plea agreement according to California contract law resulted in a decision that was contrary to clearly established law as set forth in Santobello v. New York, 404 US 257 (1971), and Ricketts v. Adamson, 483 US 1 (1987). Judge Callahan, joined by Judge Tallman, dissented. He said the majority noted the standard of relief set forth in the Antiterrorism and Effective Death Penalty Act, 28 USC Sec. 2254, but then substituted its factual findings for those of the state court. Although the majority professed to grant relief under Sec. 2254(d)(1), holding that the state court's decision involved an unreasonable application of clearly established federal law, Judge Callahan said his reading of its opinion was that it actually, and incorrectly, concludes that the state court's decision was based on an unreasonable determination of fact. Schroeder, Reinhardt (author), Kozinski, McKeown, Wardlaw, Fisher, Paez, Berzon, Tallman, Bybee, and Callahan (dissenting), Circuit Judges. A. Bloom of San Diego, CA, for the petitioner; AAG R. Anderson of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) PEREMPTORY CHALLENGES: Yee v. Duncan, 05-55265 (9th Cir. Mar. 28, 2006). The USCA held that when a criminal defendant has established a prima facie case of gender discrimination in the prosecutor's use of a peremptory challenge during jury selection, and the prosecutor is unable to recall the basis for that challenge, the trial court may not substitute findings of the prosecutor's sincerity and circumstantial evidence indicating a lack of gender-based motive for the prosecutor's failure to offer a gender-neutral explana-tion for the challenge. The USCA thus affirmed the district court judgment conditionally granting a writ of habeas corpus. Kozinski, Trott, and Bea (author), Circuit Judges. B. Lockyer of San Diego, CA, for the respondent; R. Yee pro se. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) ATTORNEY-CLIENT PRIVILEGE: USA v. Griffin, 05-50299 (9th Cir. Mar. 16, 2006). Robert Griffin was indicted in federal district court on one count of conspiracy to conduct and participate in the affairs of the Aryan Brotherhood's prison racketeering enterprise in violation of 18 USC Sec. 1962 and two counts of participating in the crime of murder in aid of that racketeering enterprise in violation of 18 USC Sec. 1959(a)(1). He appealed the district court's order requiring a special master to deliver to the government redacted letters he wrote to Pamela Griffin, who is both his wife and his attorney. The letters were seized during a search of Pamela's residence pursuant to a valid search warrant. A special master redacted those portions of the letters protected by the attorney-client privilege and the work-product doctrine. The district court ordered that the redacted letters be turned over to the prosecution. Robert moved in the district court to prevent the special master from turning over the redacted letters, contending that they were protected marital communications. After the district court denied the motion, Robert brought an interlocutory appeal. The USCA held that it had appellate jurisdiciton under both the collateral order doctrine and the Perlman rule. It then affirmed the order of the district court requiring the special master to deliver the redacted letters and portions of letters from Robert to his wife that are not protected by either the attorney-client privilege or the work-product doctrine. Graber, McKeown, and W. Fletcher (author), Circuit Judges. J. Walsh of Los Angeles, CA, for the appellant; S. Wolfe of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 40) EVIDENCE: USA v. Chen, 05-10108 (9th Cir. Mar. 2, 2006). On interlocutory appeal, the government challenged the district court's decision to suppress statements made by defendant Chen during an interview with the INS agent who was investigating a third party suspected of running an alien smuggling ring. At the time, Chen was in custody in Guam on an administrative deportation warrant. The district court ruled that the INS agent was required to give a Miranda warning before the interview and granted Chen's motion to suppress. The USCA affirmed. It noted that it had not decided whether questioning which would elicit an alien's admission of illegal presence in the U.S. always constitutes "interrogation" for Miranda purposes. But, the INS's questioning of Chen in the circumstances of this case constituted an "interrogation" because the government's interests in Chen's testimony and the U.S. Attorney's practice of pursuing 8 USC Sec. 1325 prosecutions (for misdemeanor illegal entry) combined to create a heightened threat that the defendant might actually face a Sec. 1325 prosecution. Tashima (author) and W. Fletcher, Circuit Judges, and Shea, District Court. K. Heller of Washington, DC, for the plaintiff; FPD J. Gorman of Mongmong, GU, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/) 41) MARITIME DRUG ENFORCEMENT ACT: USA v. Perlaza, 02-50084 (9th Cir. Mar. 14, 2006). The USS De Wert, a Navy frigate, and other U.S. Navy and Coast Guard ships were engaged in maritime surveillance of vessels suspected of drug trafficking off Ecuador, Colombia, and Peru. In September 2000, the De Wert's radar alerted its crew and members of a Coast Guard Law Enforcement Detachment team aboard it to suspicious activity by a speedboat and a Colombian fishing vessel, the Gran Tauro, 20 miles away. The De Wert's helicopter was dispatched to the site of the suspicious activity. Once the speedboat's crew realized that they had been detected, they jettisoned cargo (later determined to be approximately 2,000 kilograms of cocaine) before crashing the speedboat into the stern of the Gran Tauro in an apparent attempt to scuttle the speedboat and destroy evidence of illegal activity. The Navy and Coast Guard suspected that the Gran Tauro served as a logistical support vessel for the speedboat by providing gasoline for the speedboat's run from Colombia to Central Mexico. The five crew members of the speedboat and seven from the Gran Tauro were prosecuted under the Maritime Drug Law Enforcement Act. Two members of the speedboat crew pled guilty, and the remaining ten defendants opted for a jury trial and were convicted on all charges. The USCA reversed the convictions of all ten defendants who opted for trial and directed the district court to dismiss the indictment because the district court erroneously exercised jurisdiction without first requiring the government to allege in the indictment and prove to a jury beyond a reasonable doubt facts necessary to establish jurisdiction. The USCA also held that, even if the district court had jurisdiciton over these defendants, reversal of their convictions would still be required because the government committed prosecutorial misconduct during closing argument which the district court failed to cure. The USCA's reversal was without prejudice to re-indictment and retrial as the government's evidence was sufficient to sustain these defendants' convictions and its improper closing argument did not trigger the Double Jeopardy Clause. B. Fletcher, Pregerson (author), and Brunetti (dissenting in part), Circuit Judges. J. Knight of San Diego, CA, for the defendants; AUSA W. Gallo of San Diego, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/) 42) FRAUD: USA v. Williams, 05-30071 (9th Cir. Mar. 21, 2006). Williams appealed his conviction and sentence for mail and wire fraud and money laundering. He argued that the government improperly charged him under an "intangible rights" theory because that the-ory did not apply to private individuals, and that the absence of a special verdict made it impossible to determine whether the jury found "direct" fraud or "intangible rights" fraud. The USCA held that under 18 USC Secs. 1341 and 1343 the "intangible rights" theory applies to private-sector fraud, at least here where the defendant had a fiduciary duty to the victim. O'Scannlain, Kleinfeld, and Graber (author), Circuit Judges. AFPD R. Iniguez of Portland, OR, for the defendant; AUSA C. Cardani of Eugene, OR, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) FELON IN POSSESSION OF A FIREARM: USA v. Simpson, 04-10363 (9th Cir. Mar. 27, 2006). The U.S. appealed the district court's dismissal of the indictment charging Simpson with being a felon in possession of a firearm, in violation of 18 USC Sec. 922(g)(1). It argued that the district court improperly relied on the underlying facts of Simpson's previous felony conviction, rather than on the "categorical approach," to find that Simpson's conviction did not constitute a "felony involving violence" under Arizona Revised Statute Sec. 13-3101(5)(b) (1989). The USCA held that because Simpson had his civil rights restored and was not classified as a convicted felon under Arizona law, he was not a felon in possession for purposes of Sec. 922(g)(1). Tallman, Bybee, and Bea, Circuit Judges. Per Curiam. AUSA K. Hare of Phoenix, AZ, for the appellant; B. Spencer of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 44) FELON IN POSSESSION OF A FIREARM: USA v. Valerio, 04-10192 (9th Cir. Mar. 28, 2006). At issue here was whether a person has a "conviction" for purposes of the federal felon in possession of a firearm statute under a New Mexico deferred sentence procedure. The USCA noted that the "felon in possession" conviction (but not "the sale of a firearm to a felon" conviction) was troubling here because the defendant was guilty under Circuit and New Mexico law of a crime for possessing a firearm even though the New Mexico's Attorney General's opinion erroneously told him he had a right to do so. However, the result reached was compelled by Ninth Circuit precedent and consistent with precedents of sister circuits: The USCA affirmed except that it granted a remand to the district court for the limited purpose of consideration of the sentencing issues raised by USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). D.W. Nelson, Kleinfeld, and Gould (author), Circuit Judges. AFPD A. Allen of Las Vegas, NV, for the appellant; AUSA B. Quarles of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) THEFT OF GOVERNMENT PROPERTY: USA v. Ligon, 04-10495 (9th Cir. Mar. 21, 2006). The defendants appealed their felony convictions under 18 USC Sec. 641 for theft of government property-Native American petroglyphs from an unmarked site in the mountains near Reno, Nevada. They argued that the government failed to prove that the property had a "value" within the meaning of Sec. 641. The USCA agreed and reversed the convictions. "Archaeological value," as that term is used in 16 USC Secs. 470ee(d) and 470ff(a)(2)(A), and in the regulations promulgated thereunder, does not come within the definition of "value" as that term is used n 18 USC Sec. 641. Because the government introduced no evidence other than "archaeological value" to prove that the defendant stole something of "value" belonging to the government in violation of 641, the district court should have granted the motion for acquittal. Reinhardt, Thomas, and W. Fletcher (author), Circuit Judges. R. Cornell and D. Houstin of Reno, NV, for the appellants; R. Rachow of Reno, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) DOUBLE JEOPARDY: USA v. Ogles, 03-10439
(9th Cir. Mar. 10, 2006). At issue here was whether a judgment of acquittal under
Fed. R. Crim. Proc. 29(a) related to factual guilt or innocence and thus constituted
a "genuine acquittal," the government's appeal of which is barred by
the Double Jeopardy Clause. Ogles, a federally licensed gun dealer in California,
appealed his conviction for willfully selling and transferring physical possession
of a firearm to a non-resident of California. Sitting en banc, the USCA agreed
with the three-judge panel's affirmation of Ogles' conviction on Count One, but
as to Count Two, it held that the acquittal represented a ruling that the evidence
was "legally insufficient to sustain a conviction." The government's
appeal thus was barred by the Double Jeopardy Clause. Dissenting in part, Judge
Reinhardt agreed that the government's appeal on Count Two had to be dismissed
on double jeopardy grounds, but disagreed with the decision to affirm Ogles' conviction
on Count One. Judge Berzon, joined by Judges Pregerson and Fisher, concurred in
the majority's opinion except for Part I. She said she did not see how the court
could reversed the conviction on Count One without reaching its own conclusion
regarding the reach of the statutory provisions underlying that conviction. Given
the difficulty of the statutory interpretation issue, she would not resolve the
matter in an en banc opinion in which the only impetus for addressing it
came from the government's last minute switch of legal position. Absent a resolution
of the statutory issue, she did not think the court could vacate the conviction
on Count One. She thus did not join the majority in Part I, but joined in the
rest of the opinion and in the result. Schroeder, Pregerson, Reinhardt (dissenting
in part), Kleinfeld, Hawkins, Graber, McKeown (author), W. Fletcher,
Fisher, Gould, and Berzon (concurring), Circuit Judges. M. Rotker of Washington,
DC, for the plaintiff; R. Gardiner of Fairfax, Virginia, for the defendant. (Download
the full text of this decision at www.ce9.uscourts.gov/)
48) SELF-DEFENSE: USA v. Biggs, 04-50613 (9th Cir. Mar. 31, 2006). Biggs pleaded guilty to assault with a dangerous weapon in violation of 18 USC Sec. 113(a)(3) and possession of contraband in prison in violation of 18 USC Sec. 1791(a)(2). He was sentenced to 84 months in prison. The guilty plea reserved the right to argue on appeal that the district court erred by precluding Biggs from presenting evidence and arguing to a jury that he was acting in self-defense. The USCA concluded that the district court failed to properly define the elements of a claim of self-defense. Beezer (author), Hall, and Wardlaw, Circuit Judges. DFPD E. Newman of Los Angeles, CA, for the defendant-appellant; AUSA J. Bretteville of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 49) SENTENCING: USA v. Jennings, 04-10343 (9th Cir. Mar. 2, 2006). At issue was whether a defendant who, during a bank robbery, states that he has a gun but makes no reference to his willingness to use it is subject to a two-level enhancement for a "threat of death" pursuant to Guideline Sec. 2B3.1(b)(2)(F). Although it declined to impose a per se rule, the USCA held that under most circumstances, a bank robber's statement that he has a gun is sufficient to instill a fear of death in a reasonable victim and thus warrants the "threat-of-death" enhancement. Concurring, Judge Gibson thought that the majority had clarified the rules applicable to the "I have a gun" utterance. B. Fletcher, Gibson (concurring), and Berzon (author), Circuit Judges. AUSA C. Damm of Las Vegas, NV, for the plaintiff; AFPD J. Carr of Las Vegas, NV, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/) 50) SENTENCING: USA v. Rodriguez-Rodriguez, 05-50202 (9th Cir. Mar. 22, 2006). The defendant plead guilty to illegal reentry following deportation in violation of 8 USC Sec. 1326(a), b(2). The district court sentenced him to 77 months followed by three years su-pervised release. One condition of release required the defendant to report to the probation office for instructions within 72 hours of release from custody or reentry into the United States. The defendant appealed the sentence on the grounds that it was unreasonable under USA v. Booker, 543 US 220 (2005), and that the reporting condition violated his Fifth Amendment right against self-incrimination. Finding the sentence reasonable and that the reporting condition did not violate the Fifth Amendment, the USCA affirmed. Beezer (author), T.G. Nelson, and Gould, Circuit Judges. DFPD K. Young of Los Angeles, CA, for the defendant; AUSA M. Wilner of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 51) SENTENCING: USA v. Mix, 05-10088 (9th Cir. Mar. 30, 2006). Mix was convicted of kidnapping, aggravated sexual abuse, and assault with a deadly weapon on a Navajo Reservation. He appealed the district court's sentencing decision, contending that the imposition of a life sentence was unreasonable and inconsistent with the requirements of 18 USC Sec. 3553(a). He also asserted that the district court's application of USA v. Booker, 543 US 220 (2005), violated his rights under the Fifth and Sixth Amendments The USCA affirmed, finding the sentence reasonable, and the application of Booker not violative of Mix's Due Process rights. The district court also did not violate the Sixth Amendment by failing to submit sentence enhancement factors to the jury. Alarcon (author) and McKeown, Circuit Judges, and Holland, District Judge. T. McMath of Phoenix, AZ, for the defendant; AUSA L. Boone of Phoenix, AZ, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 52) INEFFECTIVE ASSISTANCE: Landrigan v. Schriro, 00-99011 (9th Cir. Mar. 8, 2006). At issue here was whether the petitioner received ineffective assistance in the penalty phase of his capital murder case. The USCA held that he raised a colorable claim that his counsel's performance fell below the objective standard of reasonableness required by Strickland v. Washington, 466 US 668 (1984), and that he was prejudiced by that performance. It remanded for an evidentiary hearing on the petitioner's claims. Dissenting, Judge Bea agreed with the majority that counsel's limited investigation of the petitioner's background fell below the standards of professional representation prevailing in 1990, but he would not remand for an evidentiary hearing as the petitioner failed to allege facts which, if proven, would show prejudice. Schroeder, Pregerson, Reinhardt, Kozinski, Hawkins (author), Wardlaw, W. Fletcher, Berzon, Clifton, Callahan, and Bea (dissenting), Circuit Judges. AFPD D. Baich of Phoenix, AZ, for the petitioner; AAG J. Beene of Phoenix, AZ, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 53) DEATH PENALTY: Clark v. Brown, 02-99007 (9th Cir. Mar. 17, 2006). Clark, a California death row inmate, appealed the district court's denial of his habeas petition asserting several constitutional errors related to his sentence. The USCA found two due process violations. First, the trial court's failure to give a felony-murder special circumstance jury instruction based on People v. Green, 27 Cal. 3d 1 (1980), violated Clark's due process right to present a complete defense. Second, the California Supreme Court's retroactive application of a new interpretation of Green and of the felony-murder special circumstance statute, on direct review, violated Clark's due process right to fair warning that his conduct made him death-eligible. However, the USCA found these violations harmless and that its rulings did not affect Clark's conviction for first-degree murder, his convictions for attempted second degree murder, or his conviction for arson. D.W. Nelson, W. Fletcher (author), and Fisher, Circuit Judges. M. Stratton of Los Angeles, CA, for the petitioner; P. Hamanaka of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 54) DEATH PENALTY: Williams v. Stewart, 01-99015 (9th Cir. Mar. 28, 2006). A jury convicted Williams on Feb. 10, 1984, of first degree murder and armed burglary in the first degree for breaking into a home, burglarizing it, and killing a witness. He was sentenced to death for murder plus an aggravated term of 14 years for the burglary. The Arizona Supreme Court affirmed and denied Williams post-conviction relief. The USCA affirmed the conviction and sentence. The district court ruled that Williams' claim that execution by lethal injection violated the Eighth Amendment was procedurally defaulted. Williams conceded that the claim had not been presented to the Arizona courts, but he argued that he could not have raised the claim in the state proceedings because the facts supporting the claim had not yet been discovered. He based that claim on an affidavit of a Dr. Griest, who reviewed an autopsy report of James Clark, who had been executed in 1993 by lethal injection. Griest stated that in Arizona lethal injection is administered in a way that causes extreme suffering and torture. Williams also relied upon a statement from a Dr. Brunner who thought that Clark and John Brewer, who was also executed in Arizona by lethal injection in 1993, likely experienced suffering and torture. The district court found that Williams provided no reasons why he could not have discovered these facts before filing his supplemental petition for post-conviction relief to the Arizona courts on Jan. 26, 1994. The USCA agreed. Williams failed to explain why he did not seek evidence between the time when Arizona introduced lethal injection as a mode of execution in late 1992 and when he filed in 1994 his supplemental petition for post-conviction relief in the Arizona court. Schroeder, Rymer, and Gould, Circuit Judges. Per Curiam. J. Hall of Tucson, AZ, for the petitioner; T. Goddard of Phoenix, AZ, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 55) HABEAS CORPUS / EVIDENCE: Jensen v. Pliler, 04-55840 (9th Cir. Mar. 9, 2006). Jensen appealed the district court's denial of his habeas petition challenging his conviction for two counts of first degree murder and two counts of conspiracy to commit murder. During his state trial, attorney Rash was permitted to testify to out-of-court statements made to him by an unavailable declarant Taylor. Taylor made the statement to Rash, his attorney, when Taylor was in jail under arrest for murder. After Taylor was released, he was killed. Jensen argued that admitting Taylor's statements into evidence at trial violated his Confrontation Clause rights as set forth in Crawford v. Washington, 541 US 36 (2004). The USCA affirmed. Taylor's statements to his attorney were not "testimonial" under Crawford, and were properly admitted into evidence at Jensen's trial. Thompson (author), T.G. Nelson, and Gould, Circuit Judges. D. Zugman of San Diego, CA, for the petitioner; DAG S. Taylor of San Diego, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 56) PRISONERS' RIGHTS: Jett v. Penner, 04-15882 (9th Cir. Mar. 9, 2006). Jett fractured his thumb while in prison. He brought this action against prison doctors Penner and Peterson, and Warden Pliler, alleging that they had been deliberately indifferent to his medical needs in violation of the Eighth Amendment and violated Cal. Govt. C. Sec. 845.6 by failing to ensure that he timely saw an orthopedist to set his fracture as directed by the initial physician's aftercare instructions. Jett appealed a district court order adopting the magistrate's findings and recommendation to grant the defendants summary judgment. The USCA found that the district court erred because 1) Jett provided sufficient evidence to show the existence of a genuine issue of material fact as to whether Penner's failure to see Jett prior to Dec. 24, 2001 was deliberate indifference; 2) Jett provided sufficient evidence to show the existence of a triable issue of fact as to whether Penner's post-Dec. 24, 2001, conduct was deliberately indifferent to Jett's need to have his thumb set; 3) Jett presented sufficient evidence to establish the existence of a genuine issue of material fact as to whether Peterson and Pliler were deliberately indifferent to Jett's condition as Jett was entitled to an inference that they received the letters he sent via prison mail advising of his need to see an orthopedist; and 4) Jett stated a cause of action under Sec. 845.6 as it requires medical care to be summoned for an inmate in need of immediate medical care to have a fracture set. Tashima and W. Fletcher, Circuit Judges, and Shea (author), District Judge. F. Riebl of San Francisco, CA, for the appellant; DAG C. Woodbridge of Sacramento, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) MEMORANDA Unpublished decisions may not be cited to or by the courts of this circuit except when relevant under the Doctrine of Law of the Case, Res Judicata, or Collateral Estoppel. Rule 36-3 3)
SECURITIES FRAUD: Miller v. CFTC, 04-73914 (9th Cir. Mar. 22, 2006)
(unpublished). Reinhardt (dissenting), Noonan, and Hawkins, Circuit
Judges. 4) INSURANCE: Giannetti v. The Burlington
Insurance Co., 04-55344 (9th Cir. Mar. 7, 2006) (unpublished).
Hug and Wardlaw, Circuit Judges, and Suko, District Judge. 6) IMMIGRATION:
Bellouzi v. Gonzales, 03-74348 (9th Cir. Mar. 23, 2006) (unpublished).
Rymer, W. Fletcher, and Clifton, Circuit Judges.
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