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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) BANKRUPTCY FRAUD: USA v. Milwitt, 05-10344 (9th Cir. Feb. 5, 2007). Milwitt held himself out as an attorney and, in that capacity, "represented" several tenants in disputes with their landlords. He collected fees from each. He then filed Chapter 13 bankruptcy petitions on behalf of several of them, without their authorization or knowledge. These petitions listed the relevant landlords as well as fabricated creditors. In 1999, Milwitt was indicted and convicted for the unauthorized practice of law in California state court. He was released from state custody in February 2002. On March 21, 2002, he was indicted on six counts of bankruptcy fraud in violation of 18 USC Sec. 157, charges based on the bankruptcy petitions he filed on behalf of the tenants. He was convicted of five counts of bankruptcy fraud. He appealed his conviction on the five counts of bankruptcy fraud and his sentence of 24 months imprisonment and three years supervised release. He challenged his conviction on several bases, including sufficiency of the evidence. He claimed that the evidence was insufficient because the government proved that he acted with the intent to defraud the tenants rather than "the intent to defraud a creditor" of the tenants as charged in the indictment. Agreeing that the evidence presented was insufficient to sustain the verdict, the USCA reversed the conviction. Dissenting, Judge Wallace thought that the evidence was sufficient for a reasonable jury to find that Milwitt possessed the requisite fraudulent intent beyond a reasonable doubt, and that was all required to sustain a conviction against a sufficiency of evidence challenge. He also thought the majority had unnecessarily reached the issue of whether intent to defraud an identifiable victim is required, which neither party raised, and that the majority resolved the issue in a manner directly contradicted by Ninth Circuit precedents. Wallace (dissenting), Hawkins, and Thomas (author), Circuit Judges. M. Shepard of San Francisco, CA, for the defendant-appellant; K. Ryan of San Jose, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) BANKRUPTCY: In re Reynoso, 04-17190 (9th Cir. Feb. 27, 2007). This appeal arose from an adversary proceeding initiated by the U.S. Trustee during the bankruptcy proceeding of debtor Reynoso against Henry Ihejirika, d/b/a Frankfort Digital Services, Ltd. and Ziinet.com (collectively, "Frankfort"). The bankruptcy court found that Frankfort, a seller of web-based software used in preparing bankruptcy petitions, acted as a "bankruptcy petition preparer" within the meaning of 11 USC Sec. 110 (2002) and violated the requirements thereof. The bankruptcy court concluded that Frankfort had committed fraudulent, unfair, or deceptive conduct, and had engaged in the unauthorized practice of law. The bankruptcy court's decision, including the relief granted, was affirmed by the BAP. The USCA affirmed. During the relevant time period, Frankford did business under a variety of names. The company is owned and operated by Ihejirika, who is not an attorney. Frankfort's system touted its offering of legal advice and projected an aura of expertise concerning bankruptcy petitions; and, in this context, it offered personalized-albeit automated-counsel. The USCA thus found that because this was the conduct of a non-attorney, it constituted the unauthorized practice of law. B. Fletcher (author) and Berzon, Circuit Judges, and Trager, District Judge. M.J. Hayes of Woodland Hills, CA, for the defendants-appellants; C. Hancock of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) TAXATION: Swartz v. KPMG, LLP, 05-35167
(9th Cir. Feb. 12, 2007). This suit arose out of a failed tax shelter,
which defendants allegedly sold to Swartz, charging over a million
dollars, even though they knew the scheme would be considered unlawful
by the IRA. Against all the defendants, Swartz asserted RICO claims,
claims under the Washington Consumer Protection Act ("WCPA"),
claims for common-law fraud, and for civil conspiracy. He also sought
a judicial declaration of the defendants' liability for interest
and penalties that might have arisen during an IRS audit, incomplete
at the time he filed his lawsuit. Swartz also advanced separate
claims against KPMG and the law firm Sidley Austin Brown & Wood
for breach of contract, breach of fiduciary duty, and professional
malpractice. The district court dismissed all causes of action against
defendants Presidio Advisory Services and Deutsche Bank, concluding
both that Swartz's complaint failed to state any claims upon which
relief could be granted and that it contained insufficient allegations
to establish personal jurisdiction. Swartz sought leave to cure
the substantive and jurisdictional defects in the complaint and
to add alternative securities fraud claims. Believing amendment
would be futile and that the request was procedurally improper,
the district court denied leave to amend. The USCA held that with
the exception of its holding that the allegations in the complaint
ruled out "reasonable reliance" as a matter of law, the
district court did not err in Swartz v. KPMG, 401 F. Supp.
2d 1146 (W.D. Wash. 2004), and adopted its decision in large part.
4) TAX FRAUD: USA v. Vartanian, 05-10581 (9th Cir. Feb. 28, 2007). Vartanian appealed his jury convictions for aiding and abetting the filing of a false tax return, in violation of 18 USC Sec. 2 and 26 USC Sec. 7206(1), and two counts of aiding and abetting the making of false statements on a loan application, in violation of 18 USC Sec. 2 and Sec. 1014. On appeal, he maintained that the district court abused it discretion when it dismissed a juror from service. The USCA affirmed. The district court did not abuse its discretion when it excused the juror under Fed. R. Crim. Proc. 23(b) due to that juror's contact with individuals associated with the case. Wallace, Kleinfeld, and Bybee (author), Circuit Judges. D. Riordan of San Francisco, CA, for the defendant-appellant; AUSA M. Cullers of Fresno, CA, for the plaintiff-appellee. ( (Download the full text of this decision at www.ce9.uscourts.gov/) 5) CONTRACTS: Stephanie-Cardona, LLC v. Smith's Food & Drug Centers, Inc., 05-15360 (9th Cir. Feb. 6, 2007). This appeal and cross-appeal grew out of a contract dispute between Stephanie-Cardona, a real estate development firm, and Smith's Food & Drug Centers, a grocery store operator. Stephanie-Cardona appealed a summary judgment in favor of Smith's and the cross-appeal challenges the denial of Smith's request for attorneys' fees and costs. Because Stephanie-Cardona's notice of appeal was untimely, there was no prior invocation of jurisdiction that could sustain the cross-appeal. The USCA thus dismissed both the appeal and the crossappeal for lack of subject matter jurisdiction; it directed that no party would recover costs. Goodwin (author), Tashima, and W. Fletcher, Circuit Judges. G. Warren of Las Vegas, NV, for the appellant-cross-appellant; J. Kilroy of Denver, CO, for the appellee-cross-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) ENVIRONMENTAL LAW: Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Service, 04-35860 (9th Cir. Feb. 2, 2007). The Fish and Wildlife Service denied a petition to classify western gray squirrels in Washington state as an endangered "distinct population segment" ("DPS") under the Endangered Species Act ("ESA"). Northwest Ecosystems, Center for Biological Diversity, and Tahoma Audubon Society sought review of the Service's decision. The district court entered summary judgment upholding the Service's determination. The USCA affirmed. The DPS Policy is entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Under the Chevron standard, the DPS Policy is a reasonable construction of the ESA. The Service's decision denying the petition was not arbitrary or capricious. Goodwin (author), O'Scannlain, and Fisher, Circuit Judges. B. Plater of San Francisco, CA, for the appellants; M.A. Thurston of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) ENVIRONMENTAL LAW: Hale v. Norton, 03-36032 (9th Cir. Feb. 5, 2007; the opinion filed 25, 2006 has been withdrawn). In 2002, the Hales purchased land completely surrounded by the Wrangell-St. Elias National Park and Preserve. They gained access to the property over what once was the McCarthy-Green Butte Road (the "MGB road"). In 1938, the Alaska Road Commission listed the MGB road as "abandoned." All of its bridges had washed away, and the effects of vegetation and erosion had reduced it to little more than a trail. Whatever road-like qualities the route presently has are due to the Hales unpermitted "clearing" activities. The primary use of the trail by the Hales had, until recently, been on horseback. The house on their property burned in 2003. During its rebuilding, the Hales used a bulldozer to bring in supplies over the MGB road without first seeking authorization from the National Park Service ("NPS"). Shortly thereafter, the NPS posted a public notice that no motorized vehicles except snow machines could use the MGB road. The Hales contacted the NPS superintendent to request a permanent permit to traverse the MGB road with a bulldozer and a trailer. He offered to assist the Hales in preparing the necessary applications for a right-of-way permit. But, two months later, the Hales submitted an "emergency" application for a temporary permit, asserting that they needed to transfer supplies before "freezing up." The NPS requested more information about the nature of the proposed bulldozer use. The Hales responded in writing, but did not provide all of the requested information. The NPS informed the Hales that an environmental assessment ("EA") would be required before it could grant a permit. It explained that it did not regard the situation as falling within the emergency exception to the requirements of the National Environmental Policy Act ("NEPA"). In a series of subsequent contacts, the NPS offered to prepare an EA and to make a decision in about nine weeks. However, the Hales still did not provide the information the NPS requested. Instead, they sought an injunction requiring the NPS to provide what they deemed adequate and feasible access to their property, and a declaratory judgment that the NPS was violating their right-of-way over the MGB road by requiring a permit. They also sought a declaratory judgment that issuing a permit for temporary use of the MGB road did not constitute a major federal action subject to the requirements of the NEPA. Finally, they moved for a TRO. The district court refused to issue a TRO and dismissed the case for lack of subject matter jurisdiction, holding that even if the Hales had a valid right-of-way over the MGB road, their use of it was subject to reasonable regulation by the NPS. The Hales had to apply for a permit regardless of any right-of-way they might possess. Since the NPS had not acted on the Hales' permit application, the district court concluded that it lacked jurisdiction as there was no final agency action to review. The USCA affirmed. It held that the district court had jurisdiction to consider the Hales' challenge to the incorporation of NEPA into the Alaska National Interests Lands Conservation Act ("ANILCA") permitting process, and that conducting a NEPA analysis is consistent with the "adequate and feasible access" right of ANILCA. Goodwin, Brunetti, and W. Fletcher (author), Circuit Judges. R. Brooks of Sacramento, CA, for the appellants; M. Sanders of Washington, DC, for the appellees; R. Randal of Anchorage, AK, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) ENVIRONMENTAL LAW: The Lands Council v. Martin, 06-35781 (9th Cir. Feb. 12, 2007). The Lands Council and the Sierra Club appealed the district court's denial of a preliminary injunction to halt the implementation of several U.S. Forest Service postfire logging sales in the Umatilla National Forest. Forestry advocacy organizations and logging companies joined the Forest Service and the Forest Supervisor of the Umatilla National Forest as intervenors. The USCA held that the district court did not abuse its discretion in denying a preliminary injunction on the plaintiffs' claims under the National Environmental Policy Act, but that it did abuse its discretion by applying an erroneous legal standard in denying a preliminary injunction on the plaintiffs' claims under the National Forest Management Act ("NFMA"). The district court made a clear error of law, and the plaintiffs established a very strong likelihood of success on the merits of their NFMA claim. Additionally, the resulting injury-logging of old-growth trees-is a permanent environmental injury. The USCA thus reversed the district court's denial of a preliminary injunction on the NFMA claim and remanded with instructions to grant immediately a preliminary injunction to prohibit the logging of any "live tree" 21 inches in diameter at breast height and currently in the sales area-i.e., any tree of the requisite size that is not yet dead. In accord with the "conservative definition" of a "live tree" given by the Forest Service's own expert, no tree of the requisite size with green needles shall be harvested. Graber (author), Paez, and Bea, Circuit Judges. R. Bloemers of Portland, OR, for the appellants; D. Shilton of Washington, DC, for the appellees; S. Horngren of Portland, OR, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) ENVIRONMENTAL LAW: Oregon Natural Resources Council v. Allen, 05-35830 (9th Cir. Feb. 16, 2007). As a result of the decision in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004), the U.S. Fish and Wildlife Service ("FWS") voluntarily reinitiated consultation with two federal agencies regarding the impact of a portion of a proposed timber harvest on the endangered northern spotted owl. The FWS accordingly withdrew its favorable Biological Opinion ("BiOp") regarding that portion of the timber harvest, but did not withdraw the accompanying Incidental Take Statement ("ITS"), which would authorize the taking of "all" northern spotted owls associated with the full timber harvest. The Oregon Natural Resources Council and several other conservation groups challenged the validity of the ITS. The USCA held that the ITS is invalid because: (1) the withdrawal of a portion of the BiOp leaves the ITS without an underlying factual predicate; (2) the ITS presents a non-numerical measure of take without explaining why no number was provided; and (3) the ITS sets a measure of take that does not allow for reinitiation of consultation. Goodwin, Tashima (author), and Graber, Circuit Judges. K. Boyles of Seattle, WA, for the appellants; R.J. Smith of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) LABOR LAW: Operating Engineers Local Union No. 3 v. Newmont Mining Corp., 04-16917 (9th Cir. Feb. 5, 2007). Newmont Mining appealed the district court's grant of summary judgment in favor of Operating Engineers Local 3 in the Union's action to compel arbitration. Newmont and the Union were parties to a collective bargaining agreement ("CBA"). Newmont terminated Taylor, an employee represented by the Union, for allegedly falsifying a tool request form. Newmont declined to arbitrate the termination on the ground that the parties' CBA expired prior to Taylor's discharge. The district court found that the parties were bound by the expired agreement's arbitration provision because the "key or critical facts" involved in the dispute took place prior to the agreement's expiration. The USCA affirmed, but via a different analysis than that adopted by the district court. The USCA concluded that the parties contracted to arbitrate the significant question of whether Taylor falsified the tool request form, an incident that, if it occurred, took place before the CBA expired. It thus held that the parties' dispute arose under the expired CBA and that the matter had to be submitted to arbitration. Canby (author), Cox, and Paez, Circuit Judges. P. McCue of Denver, CO, for the appellant; D. Rosenfeld of Alameda, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) LABOR LAW: Diaz v. ILWU, 04-56957 (9th Cir. Feb. 2, 2007).
Longshoremen formerly employed through Local 13 alleged that the
union breached its duty of fair representation by failing to transfer
them to another bargaining unit, failing to inquire about available
work, refusing to place them on hiring hall lists, and failing to
address their grievances. They appealed the district court's order
granting Local 13's motion to dismiss with prejudice the Second
Amended Complaint under FRCP 12(b)(6). The USCA reversed the dismissal
of the claim for breach of duty of fair representation and remanded
for further proceedings. Kleinfeld, Gould, and Smith (author),
Circuit Judges. H. Abbott of Los Angeles, CA, for the appellants;
J. Kim of Los Angeles, CA, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
13) LABOR LAW: Adams v. California, 04-56880 (9th Cir. Feb. 13, 2007). Adams appealed the district court's dismissal with prejudice of her complaint against the California Department of Health Services ("CDHS"), certain CDHS employees, and Oaktree Investigations and its employee Corbin. The USCA affirmed. Adams had applied for a food and drug inspector position with CDHS. These inspectors are peace officers and carry firearms, investigate violations, and make arrests. Adams was offered the position, but conditions upon her successful completion of a background investigation, including medical and psychological evaluations. She passed the psychological evaluation, but Dr. Weyers notified her that he had recommended restrictions on her ability to perform activities that required maximal exertion and balance. Adams took a new treadmill stress test and Weyers approved her without limitation for an investigator position. CDHS then withdrew its medical disqualification of Adams and notified her it would resume her selection process. Adams objected to further investigation. CDHS then notified her that it rescinded its conditional offer of employment. The State Personnel Board ("SPB") granted Adams' appealed and advised her that she would be appointed to the position within 120 days unless she was unsuccessful in the balance of the selection process. Adams petitioned the SPB for a rehearing. CDHS filed a response, stating that it withdrew Adams' conditional offer of employment the second time because, during the completion of the investigation process, questions arose regarding Adams' suitability as a peace officer. Adams next filed a complaint in state court, asserting claims for retaliation in violation of 42 USC Sec. 1983, the Americans with Disabilities Act, and the California Fair Employment and Housing Act, denial of due process and civil rights, breach of contract, breach of the implied covenant of good faith and fair dealing, negligence, and declaratory relief. The action was removed to the federal district court where a jury found for the defendants. The USCA found that the district court did not abuse its discretion by dismissing with prejudice Adams' duplicative complaint. Pregerson, Thompson (author), and Tallman, Circuit Judges. B. Duren of Los Angeles, CA, for the appellant; DAG M. Milas of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) SEXUAL DISCRIMINATION: Dukes v. Wal-Mart, Inc., 04-16688 (9th Cir. Feb. 6, 2007). Plaintiffs filed a class action against Wal-Mart alleging sexual discrimination under Title VII of the 1964 Civil Rights Act. The district court certified the class with minor modifications to plaintiffs proposed class. The USCA affirmed, concluding that the district court did not abuse its discretion when it certified the class. The district court acted within its broad discretion in concluding that it would be better to handle this case as a class action instead of clogging the courts with innumerable individual suits litigating the same issue repeatedly. The district court did not abuse its discretion in finding that the plaintiffs met the pleading requirements of Rule 23. Wal-Mart failed to point to any specific management problems that would render a class action impracticable in this case, and the district court has the discretion to modify or decertify the class should it become unmanageable. Although the size of this class action is large, mere size does not render a case unmanageable. The USCA also denied the plaintiffs cross-appeal because the district court did not abuse its discretion when it found that back-pay for promotions may be limited to those plaintiffs for whom proof of qualification and interest exists. Finally, the USCA noted that its findings relate only to class action procedural questions: it neither analyzed nor reached the merits of plaintiffs' allegations of gender discrimination. Judge Kleinfeld dissented. He thought that the certification violated Rule 23 class action certification criteria and deprived Wal-Mart of due process of law. He also thought the certification threatened the rights of women injured by sex discrimination and threatened Wal-Mart's rights. Moreover, he thought that the district court's formula approach to dividing up punitive damages and back-pay meant that women injured by sex discrimination will have to share any recovery with women who were not. And, women who were fired or not promoted for good reasons will take money from Wal-Mart they do not deserve, and get reinstated or promoted as well. Pregerson (author), Kleinfeld (dissenting), and Hawkins, Circuit Judges. T. Boutrous of Los Angeles, CA, for the appellants-cross-appellee; B. Seligman of Berkeley, CA, for the appellees-cross-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) REHABILITATION ACT: Walton v. U.S. Marshals Service, 05-17308 (9th Cir. Feb. 9, 2007). Walton sued the U.S. Marshals Service ("USMS") under the Rehabilitation Act of 1973, alleging that the USMS unlawfully discharged her because of her hearing impairment. She appealed the district court's grant of summary judgment in favor of the USMS, arguing that the district court erred in ruling that she failed to demonstrate a genuine issue of material fact concerning whether she was disabled within the meaning of the Act. The USCA affirmed. Walton could not show that she is disabled within the meaning of the Act. She alleged that she was regarded as substantially limited in the major life activities of (1) hearing, (2) working, and (3) localizing sound. But, the USCA concluded that she failed to raise a genuine issue material fact that the USMS regarded her as disabled with respect to any of these activities. Goodwin, Fisher, and Smith (author), Circuit Judges. E. Benay of San Francisco, CA, for the appellant; E. Fleisig-Greene of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) EQUAL PROTECTION IN EMPLOYMENT: Engquist v. Oregon Dept. of Agriculture, 05-35170 (9th Cir. Feb. 8, 2007). Engquist brought suit alleging violations of federal anti-discrimination law, constitutional law, and state tort law against her former employer, the Oregon Department of Agriculture ("ODA"), John Szczepanski and Joseph Hyatt. A jury found the individual defendants liable for constitutional violations of equal protection and substantive due process, and for intentional interference with contract. It awarded Engquist $170,000 in compensatory damages and $250,000 in punitive damages. Pursuant to Oregon law, $75,000 of the punitive damages were allocated to Oregon's Criminal Injuries Compensation Account ("State Account"). Szczepanski and Hyatt appealed, contending that the constitutional claims were invalid as a matter of law. Engquist cross-appealed, contending that a jury verdict for a co-worker's similar trial in state court should have been given preclusive effect, or that it should have been admitted into evidence. She also challenged the allocation of $75,000 of the punitive damages awarded to her to the State Account. The USCA held that Engquist's equal protection claims were invalid as a matter of law and that there was insufficient evidence to support the substantive due process claim. It thus vacated the damages and attorneys' fees awards and remanded them so the district court could adjust them accordingly. However, the district court did not err in awarding a portion of the punitive damages award to the State Account. The USCA affirmed that portion of the appeal. Finally, the district court did not err in declining to give the state verdict preclusive effect and in excluding the verdict from the evidence. Dissenting, Judge Reinhardt thought that the district court did not err in holding that Engquist's equal protection rights were violated and would affirm the award of general and punitive damages on the basis of that claim. He would also affirm the apportionment of the punitive damages relating to the state law claim. Judge Reinhardt thus would affirm the district court's judgment in its entirety. Reinhardt (dissenting), Tashima (author), and Graber, Circuit Judges. L. Collins of Salem, OR, for the defendants-appellants and cross-appellees; S. Brischetto of Portland, OR, for the plaintiff-appellee and cross-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) EMPLOYMENT LAW: Holcombe v. Hosmer, 05-15151 (9th Cir. Feb. 23, 2007). The Nevada Department of Public Safety terminated Holcombe after charging her with forging two subpoenas related to her husband's administrative appeal of his termination by the Nevada Department of Corrections. Holcombe appealed her termination, and received an administrative hearing where she was represented by counsel, testified, presented evidence, cross-examined witnesses, and successfully excluded some pieces of evidence. During that hearing, she specifically discussed her husband's termination, his appeal, and her efforts to help him appeal his termination. The hearing officer ("ALJ") issued his findings and decision finding just cause for Holcombe's termination. Holcombe appealed to the Second Judicial District Court for the State of Nevada. When it affirmed the ALJ's decision, Holcombe filed an amended complaint in federal district court adding the two defendants. These defendants moved to dismiss under Fed. R. Civ. Proc. 12(b)(6), arguing issue and claim preclusion, as well as failure to state a claim upon which relief could be granted. The district court granted the motion to dismiss, concluding that the state court's final judgment precluded Holcombe's claims under 42 USC Sec. 1983. Applying Nevada law, the district court cited Nevada Revised Statute Sec. 233B.135(3)(a), which authorizes a state district court to remand or affirm the final decision of a state administrative agency if that decision is in violation of constitutional provisions. The district court concluded that, because Holcombe could have raised her First Amendment claim when she appealed the ALJ's decision in state court, her Sec. 1983 claims were precluded under the principles of claim preclusion. The USCA affirmed. Holcombe's allegations concerning her Sec. 1983 claims were based on the same facts as her claims of wrongful termination litigated before the Nevada State Personnel Commission and affirmed by the Nevada state court. Thus, under Nevada law, her Sec. 1983 claims are precluded, and the district court properly dismissed the claims. Tashima and Callahan (author), Circuit Judges, and Schiavelli, District Judge. J. Dickerson of Reno, NV, for the appellant; DAG M. Sandoval of Carson City, NV, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) SSI BENEFITS: Van v. Barnhart, 04-56424 (9th
Cir. Feb. 26, 2007). Van, a successful claimant for Supplemental
Security Income ("SSI") benefits, appealed the district
court's denial of her application for attorneys' fees as time-barred
under the filing provision in the Equal Access to Justice Act, which
requires a party to submit a fee application within 30 days of final
judgment in the action. The district court held that because, following
a remand under sentence six of 42 USC Sec. 405(g), the Commissioner
of Social Security consented to a judgment enforcing the agency's
determination in favor of Van, the judgment became "final and
not appealable" immediately, requiring Van to file her fee
application within 30 days after entry of judgment, rather than
30 days after expiration of the 60-day appeal period provided for
in Fed. R. App. Proc. 4(a)(1)(B). Because Van filed her fee application
62 days after entry of judgment, the district court denied her application
as untimely. The USCA held that successful "sentence six"
claimants may file within 30 days after the 60-day appeal period
in Rule 4(a) has expired. It thus reversed the district court and
remanded with instructions to consider Van's fee application on
the merits. D.W. Nelson, Reinhardt (author), and Bybee, Circuit
Judges. A. Manbeck of San Diego, CA, for the plaintiff-appellant;
J. Walli of San Francisco, CA, for the defendant-appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
20) CLASS ACTIONS: Serrano v. 180 Connect, Inc.,
06-17366 (9th Cir. Feb. 22, 2007). This case presented another unresolved
issue under the Class Action Fairness Act of 2005 ("CAFA").
The defendants, 180 Connect, Ironwood Communications, and Mountain
Center ("the employers") appealed a district court order
remanding a putative class action lawsuit to California state court
under CAFA's "home-state controversy" exception to federal
jurisdiction. The district court held that the employers, the parties
seeking removal, carried the burden to establish the exception.
The USCA disagreed. The structure of the statute and the long-standing
rule on proof of exceptions to removal dictate that the party seeking
remand bears the burden of proof as to any exception under CAFA.
The USCA thus reversed and joined its sister circuits that have
considered the issue. Wallace, Cudahy, and McKeown (author),
Circuit Judges. M. Thierman of Reno, NV, for the appellee; M. Hoffman
of San Francisco, CA, for the appellants. (Download
the full text of this decision at www.ce9.uscourts.gov/)
22) IMMIGRATION: Bravo-Pedroza v. Gonzales, 03-73999 (9th Cir. Feb. 6, 2007). At issue here was whether res judicata barred the Secretary of Homeland Security from initiating a second deportation case on the basis of a charge that he could have brought in the first case, when, due to a change of law that occurred during the course of the first case, he lost the first case. The USCA held that the Secretary is barred and granted the petition for review. Noonan (author) and Clifton, Circuit Judges, and Schiavelli, District Judges. M. Ramirez of San Francisco, CA, for the petitioner; AUSA B. O'Connor of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)
24) IMMIGRATION: Ramadan v. Gonzales, 03-74351 (9th Cir. Feb. 22, 2007; the opinion of Nov. 2, 2005 has been withdrawn). The USCA granted a rehearing in this case to reconsider the scope of its jurisdiction under the Real ID Act, Pub L. No. 109-13 Sec. 106(a) (2005), to review an agency decision under 18 USC Sec. 1158(a). When it first decided this case, it determined that the phrase "questions of law" in Sec. 106 of the Act referred "to a narrow category if issues regarding statutory construction." As a consequence, it concluded that it lacked jurisdiction to review the Immigration Judges ("IJ") determination that petitioner Ramadan failed to show changed circumstances to excuse the late filing of her application for asylum. Upon rehearing, the USCA held that its jurisdiction over "questions of law" as defined in the Act includes not only "pure" issues of statutory interpretation, but also application of law to undisputed facts- "mixed" questions where historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard. By implying a fixed dichotomy between fact and law, the USCA said its first opinion inadvertently failed to consider an important category of cases-those that raise mixed questions of law and facts. The USCA joined the Second Circuit in holding that "questions of law" is broader than just statutory interpretation. The USCA found that its jurisdiction over Ramadan's application for withholding of removal is unaffected by its interpretation of Sec. 106, and with respect to withholding, it continues to find that the record does not compel the conclusion that it is more likely than not that Ramadan would suffer persecution if returned to Egypt. Pregerson, Hawkins, and Thomas, Circuit Judges. Per Curiam. A. Lawrence of San Francisco, CA, for the petitioners; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) IMMIGRATION: Chaidez v. Gonzales, 02-71966 (9th Cir. Feb. 16, 2007). Chaidez entered the U.S. from Mexico in 1988. At issue was whether Chaidez was properly served with an Order to Show Cause ("OSC") in 1994. In a precedential decision applying the statute in effect in 1994, the BIA held that proper service of an OSC occurs when written notice is sent by certified mail to the alien and the certified mail receipt is signed by the alien, counsel of record, or a responsible person at the alien's address. Matter of Grijalva, 21 I.&N. Dec. 27, 32 (BIA 1995) (en banc). Chaidez's sworn declaration states that he did not know the person who signed his OSC's certified mail return receipt and that this person was not authorized to sign on his behalf. In light of this uncontradicted evidence, the government had not satisfied Grijalva's "responsible person at the alien's address" requirements. The USCA concluded that the government did not meet its burden, established under former 8 USC Sec. 1252b(c)(1) and explicated in Grijalva, of demonstrating by clear, unequivocal, and convincing evidence that Chaidez or a responsible person at his address signed the certified mail return receipt for his OSC. Chaidez's deportation order thus is invalid. The Immigration Judge's erroneous determination that Chaidez was ineligible for discretionary relief should be revisited, if necessary, in any future proceedings. B. Fletcher and Berzon (author), Circuit Judges, and Trager, District Judges. D. Foran of Walnut Creek, CA, for the petitioner; A. Mai of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Don v. Gonzales, 03-74431 (9th Cir.
Feb. 9, 2007). The petitioner, his wife and their minor son, natives
and citizens of Sri Lanka, legally entered the U.S. in 2000 as visitors
and overstayed their allotted time. They conceded that they were
removable, but requested asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT"), based on
alleged persecution by the Liberation Tigers of Tamil Eelam ("Tamil
Tigers"), a terrorist group in Sri Lanka. They also alleged
persecution by the Terrorist Detective Bureau ("TBD"),
a special unit of the Sri Lankan government formed by the army and
police. They petition for review of the decision of the BIA adopting
and affirming the adverse credibility determination of the Immigration
Judge ("IJ") and the concomitant denial of asylum. Because
substantial evidence supported the adverse credibility determination,
the USCA denied the petition. Although a reasonable factfinder could
have found the petitioner credible, no such finding was compelled
by the evidence. Because a reasonable factfinder could have reached
this result, the USCA concluded that it had to uphold the IJ's decision.
Judge Wardlaw dissented. She thought the petitioner had no choice
but to flee Sri Lanka with his wife and baby, leaving behind the
rest of his family and two successful businesses, to escape persecution
by both the TBD and the Tamil Tigers, an extremely powerful and
violent terrorist group. She thought that because the IJ's adverse
credibility determination rested on insufficient and impermissible
grounds, the court must deem the petitioner credible. She would
thus reverse the BIA's adverse credibility determination and remand
to the BIA for a determination of the petitioner's eligibility for
asylum. Wardlaw (dissenting) and Rawlinson (author),
Circuit Judges, and Cebull, District Judges. D. Korenberg of Sherman
Oaks, CA, for the petitioners; E. Radford of Washington, DC, for
the respondent. (Download
the full text of this decision at www.ce9.uscourts.gov/)
28) DOUBLE JEOPARDY / ILLEGAL REENTRY: USA v. Castillo-Basa, 05-50768 (9th Cir. Feb. 26, 2007). This case involved the right of a defendant to be free from repeated prosecutions in which the government retries him until it obtains a verdict. The government was unable to convict Castillo-Basa the first time it tried him, for illegal reentry, in large part because its counsel failed to locate and present a crucial tape recording that was within its possession. To its surprise, the jury acquitted the defendant. Later, after having "found" the tape, the government sought to prosecute Castillo-Basa again, this time for perjury committed in connection with the illegal reentry trial. The central issue at the second trial would be the same as it was at the first: was Castillo-Basa afforded a deportation hearing at which he was present. The USCA reversed and remanded with instructions for the district court to dismiss the perjury indictment. The outcome followed directly from the basic principle of collateral estoppel that are inherent in the Double Jeopardy Clause. The only issue in dispute during Castillo-Basa's trial for illegal reentry was whether he had been brought before an immigration judge and afforded a deportation hearing prior to his deportation. The ultimate question at issue in the second prosecution-for perjury-would have been whether he testified falsely at the previous trial that he had not been present at a deportation hearing. When the jury acquitted him of the illegal reentry offense, it decided, as the government acknowledged, that a deportation hearing had not been held and, thus, that he had not been brought before an immigration judge for such a hearing. Thus, in rendering its verdict, the jury necessarily decided that Castillo-Basa's testimony on the critical question of the deportation hearing was not false. The Double Jeopardy Clause barred the government from trying a second time to attempt to show that Castillo-Basa was afforded the hearing in question and that his testimony to the contrary was untruthful. Judge Trott dissented, believing that collateral estoppel did not bar the government from prosecuting Castillo-Basa because the collateral issue identified in the indictment was not "necessarily decided" since 1) Castillo-Basa's presence at the deportation hearing was not an element of the crime charged or an issue of "ultimate fact," 2) the district court rejected a proposed instruction that would have required the jury to decide whether he was present at the hearing, or not, 3) the district court instructed the jury that it needs to resolve the presence or absence dispute, and 4) a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. Judge Trott thought that "the best one could say for Castillo-Basa on the record is that the jury was not convinced beyond a reasonable doubt that he had been deported, not that they believed his lie about not attending the hearing against a mountain of evidence to the contrary." Reinhardt (author), Trott (dissenting), and Wardlaw, Circuit Judges. M. Burke of San Diego, CA, for the defendant-appellant; AUSA V. Chu of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) CUSTODIAL INTERROGATION: USA v. Hernandez, 05-50920 (9th Cir. Feb. 14, 2007). Hernandez appealed his convictions for possession of methamphetamine with intent to distribute and for importation of more than 50 grams of methamphetamine. He argued that his convictions must be reversed because the district court admitted testimony commenting on his silence during custodial interrogation, in violation of the Fifth Amendment, and because the district court erroneously denied his request for a jury instruction on the lesser included offense of simple possession. He also maintained that his sentence should be vacated because either the mandatory language of 18 USC Sec. 3553(f) renders the safety valve provision invalid after USA v. Booker, 543 US 220 (2005), or Sec. 3553(f)'s requirements are advisory after Booker, and the district court should have applied it in sentencing Hernandez. The USCA affirmed in part and reversed in part. Specifically, the USCA affirmed Hernandez's conviction for importation of more than 50 grams of methamphetamine, and affirmed his sentence of 12 months, which was mandatory for that conviction. However, it reversed Hernandez's conviction for possession of methamphetamine with intent to distribute, and remanded for further proceedings. Pregerson, Gould (author), and Clifton, Circuit Judges. J. Fife of San Diego, CA, for the appellant; AUSA B. Smith of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) HOBBS ACT: USA v. Daane, 05-50282 (9th Cir. Feb. 1, 2007). The appellants were convicted for conspiracy and attempted extortion. Because it concluded that the district court committed no error when it rejected the appellants' proffered "claim of right" instruction, the USCA affirmed the convictions. The proffered instruction was not supported by the law or the facts. D.W. Nelson, Rawlinson (author), and Bea, Circuit Judges. D. MacPherson of Glendale, AZ, for the appellants; AUSA J. Behnke of Riverside, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) EVIDENCE: USA v. Lopez, 06-10062 (9th Cir. Feb. 27, 2007). Lopez appealed his convictions for possession of cocaine with intent to distribute and possession of a firearm in furtherance of a drug trafficking offense. He maintained that insufficient evidence supported his convictions because no rational jury could have found each of the essential elements of the crimes beyond a reasonable doubt. He further argued that the district court plainly erred by failing to provide the meaning of the term "in furtherance" to the jury, and that the district court abused its discretion when it denied his motion to sever his drug-related counts from the other charges. The USCA affirmed. Sufficient evidence supported Lopez's convictions for possession of cocaine with intent to distribute and for possession of a firearm in furtherance of a drug trafficking offense. In addition, the district court's jury instruction, which did not separately define "in furtherance," was proper. Any ambiguity in the instruction as given benefited Lopez. Finally, the district court did not abuse its discretion when it denied Lopez's motion to sever the firearm possession and illegal reentry charges from the drug-related counts. The charges were extensively interrelated and reasonably presented in a consolidated trial in the absence of manifest prejudice to Lopez. T.G. Nelson (author), Gould, and Callahan, Circuit Judges. AFPD A. Traum of Las Vegas, NV, for the defendant-appellant; AUSA C. Brown of Las Vegas, NV, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) SEARCH & SEIZURE: USA v. Mendez, 05-10205 (9th Cir. Feb. 23, 2007; the opinion and dissent of Oct. 30, 2006 have been withdrawn). Mendez was pulled over by two police officers for failure to display a visible license plate or registration tag. He was asked to exit the car, patted down for weapons and told to sit on the curb behind the vehicle while a records check was conducted. In response to questioning about matters unrelated to the purpose of the traffic stop, he told the officers that he was a felon and that there was a gun in the vehicle, at which point they arrested him, searched the car and found the gun. After the district court denied his motion to suppress the evidence, Mendez entered a conditional plea of guilty to being a felon in possession of a firearm, in violation of 18 USC Sec. 922(g)(1). The only issue on appeal was whether the district court erred when it denied the motion to suppress. The USCA ruled that it did not. The officers' questioning of Mendez did not extend the duration of a lawful stop. For this reason, the USCA also held that the expanded questioning need not have been supported by separate reasonable suspicion. Reinhardt (author), Paez, and Tallman, Circuit Judges. J. Sands of Phoenix, AZ, for the defendant-appellant; P. Charlton of Phoenix, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) SENTENCING / DEPORTATION: USA v. Valle-Montalbo, 05-50876 (9th Cir. Feb. 2, 2007). Valle-Montalbo appealed his sentence for illegal re-entry into the United States after deportation in violation of 8 USC Sec. 1326. He challenged an enhancement of his sentence under Guidelines Sec. 2L1.2(b)(1)(A) based on his prior conviction for possessing methamphetamine for sale in violation of California Health & Safety Code Sec. 11378. The USCA concluded that a violation of Sec. 11378 is a "drug trafficking offense" under Sec. 2L1.2(b)(1)(A) and affirmed the sentence. Fisher and Callahan (author), Circuit Judges, and Collins, District Judge. C. Gabrielidis of San Diego, CA, for the appellant; AUSA R. Haines of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) SENTENCING / DEPORTATION: USA v. Cruz-Escoto, 05-50892 (9th Cir. Feb. 23, 2007). Cruz-Escoto appealed his jury conviction and sentence for being a deported alien found in the United States without permission, in violation of 8 USC Sec. 1326. He presented six arguments on appeal: 1) the evidence was insufficient to support the verdict; 2) the district court improperly instructed the jury; 3) the district court violated his Fifth and Sixth Amendment rights by excluding the testimony of an impeachment witness; 4) the introduction of evidence that he twice illegally entered the United Sates violated Fed. R. Evid. 401, 403, and 404(b); 5) the government violated Batson v. Kentucky, 476 US 79 (1986); and 6) the district court impermissibly increased his sentence above the statutory maximum. The USCA affirmed. It noted that the Ninth Circuit has repeatedly upheld statutory maximum increases based on the same recidivism enhancement in this case. Judge Tashima dissented from that part of the majority's decision rejecting Cruz-Escoto's contention that the jury instructions inadequately covered his theory of the defense. He though that the majority had misconstrued Ninth Circuit cases and, consequently, interpreted the doctrine of "official restraint" too narrowly. He also dissented from the judgment. As he thought Cruz-Escoto had been deprived of the opportunity to present his theory of the defense to the jury, he would reversed the judgment of conviction and remand for a new trial. Siler (author), Tashima (dissenting), and Bea, Circuit Judges. M. Hall of San Diego, CA, for the defendant-appellant; AUSA R. Haines of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) SENTENCING / DEPORTATION: USA v. Alvarez-Hernandez, 06-10284 (9th Cir. Feb. 28, 2007). Alvarez-Hernandez appealed his sentence for being an illegal alien found in the U.S. following deportation. In 1991, he had received a five-year suspended sentence, three years probation, and a fine, for the unlawful sale of a controlled substance in violation of Nevada Revised Statute Sec. 453.321. He maintained that the district court's ruling that he had been convicted of a felony drug trafficking offense for which the sentence imposed was 13 months or less, Guidelines Sec. 2L1.2(b)(1)(B), was erroneous applied due to a 2003 amendment to the Guidelines' authoritative commentary. That amendment's effect was a question of first impression for the Ninth Circuit. The parties disagreed over whether the appellant's fully suspended and probated sentence for unlawful sale of a controlled substance constituted "a felony drug trafficking offense for which the sentence imposed was 13 months or less," triggering Sec. 2L1.2(b)(1)(B)'s 12-level enhancement provision. The appellant argued that a fully suspended and probated sentence does not qualify as a "sentence imposed" under Sec. 2L1.2(b)(1)(B). The district court found the appellant's argument unconvincing. Instead, it reasoned that under Sec. 2L1.2(b)(1)(B)'s plain text, any felony drug trafficking sentence of 13 months or less-even if fully suspended and probated-requires a 12-level sentencing enhancement. As the appellant did not dispute that his 1991 Nevada state conviction constituted a felony drug trafficking offense, the district court found the appellant eligible for the 12-level enhancement. Announcing that the Guidelines provided the appropriate sentencing range, the district court then applied that enhancement and sentenced the appellant to 24 months of imprisonment. The USCA held that the district court erred in applying Sec. 2L1.2(b)(1)(B) to the defendant. In amending Sec. 2L1.2(b)(1)'s commentary, the Sentencing Commission was aware of the Ninth's and other Circuit's holding that to qualify as a "sentence of imprisonment," the defendant must have actually served some time in custody. As that misapplication of the Guidelines was not harmless, the USCA vacated the sentence and remanded for resentencing. Kleinfeld and Bybee (author), Circuit Judges, and Whaley, District Judge. AFPD M. Powell of Reno, NV, for the appellant; AUSA R. Ranchow of Reno, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) SENTENCING / DEPORTATION: USA v. Flores-Sanchez, 06-10026 (9th Cir. Feb. 15, 2007). Sanchez appealed his conviction and sentence for illegal reentry after deportation in violation of 8 USC Sec. 1326. He assigned error to: (1) denial of his motion to dismiss the indictments; (2) commencement of the trial one day after his first appearance on the superseding indictment; (3) use of his prior convictions for sentence enhancement purposes; and (4) alleged consideration of incorrect information at the sentencing phase. The USCA affirmed. The sufficiency of the indictment is no longer a viable challenge in his case. There was no violation of the Speedy Trial Act, nor were the sentencing judge's findings of Sanchez's prior convictions erroneous. Finally, the district court's misstatement at sentencing did not amount to a due process violation. Goodwin (author), Tashima, and A. Fletcher, District Judge. A. Baggot of Apache Junction, AZ, for the defendant-appellant; AUSA E. Hurley of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)
38) SENTENCING: USA v. Mejia-Pimental, 05-30604 (9th Cir. Feb. 26 2007). This case provided the occasion to explore the parameters of the statutory "safety valve," which grants relief from certain mandatory minimum sentences when five criteria are met. The Ninth Circuit has previously decided that the fifth criteria, which requires a defendant to truthfully provide all his knowledge about the crime to the government before sentencing, is aimed at a defendant who have made a "good-faith effort" to cooperate with the government. However, the Ninth Circuit has never defined precisely what "good faith" means in this context. The USCA now held that to show "good faith," a defendant need only show what the statutory language directs: that by the time of sentencing, he has "truthfully provided to the Government all information and evidence [he] has concerning the offense or offenses." 18 USC Sec. 3553(f)(5). The district court had construed "good faith" too broadly in determining that Mejia-Pimental was ineligible for relief. Because it thus erred in its application of the safety valve and then sentenced Mejia-Pimental with reference to a mandatory minimum term, the USCA vacated the sentence and remanded for resentencing. D.W. Nelson, Thompson, and Paez (author), Circuit Judges. P. Juergens of Seattle, WA, for the defendant-appellant; AUSA D. Hill of Tacoma, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) SUPERVISED RELEASE: USA v. Ross, 06-30204 (9th Cir. Feb. 8, 2007). Ross was administratively separated from the U.S. Army by summary court-martial after being caught trying to mail a submachine gun from Iraq to his father's home in Spokane. Military Police also found a cache of white supremacist paraphernalia and several weapons hidden behind ceiling tiles in Ross's military quarters. After his discharge, a Spokane Sheriff's deputy saw Ross passing out flyers produced by the National Alliance, a neo-Nazi/white supremacist organization that advocates race hatred, anti-Semitism, and the overthrow of the U.S. government. The National Alliance also owns a company that distributes "white power" music CDs and a video game called "Ethnic Cleansing." Ross visited a website which functions as an online community for white supremacists and has a chatroom where he had discussions about weapons, one of which Ross eventually bought for a person Ross knew to be a convicted felon who could not lawfully posses a firearm. This felon was also a confidential informant. The transaction led to the charge of making a false statement regarding the acquisition of a firearm on which Ross entered a guilty plea. Based on the paraphernalia uncovered during the military investigation, Ross's distribution of National Alliance literature, and his use of the while supremacist website, the Presentence Report recommended a special condition of supervised release that Ross refrain from associating with known neo-Nazi/white supremacist members and affiliates and from possessing neoNazi/white supremacist paraphernalia. The district court was also of the view that Ross's release should be conditioned on his not being involved in white supremacy groups such as the National Alliance and Aryan Nations. The USCA affirmed. It found that the condition was neither too broad nor too uncertain, and should any difficulty arise on the margin, Ross could always seek clarification from the court. The USCA thus concluded that the condition as imposed and as construed was reasonably related to Ross's rehabilitation and to the protection of the public. Ross appealed a supervised release condition imposed following his conviction for violating 18 USC Sec. 924(a)(1)(A), making a false statement or representation regarding the acquisition of a firearm. Rymer (author), Berzon, and Tallman, Circuit Judges. K. Moran of Spokane, WA, for the appellant; AUSA G. Jacobs of Spokane, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) SUPERVISED RELEASE: USA v. Sales, 06-50219 (9th Cir. Feb. 9, 2007). Following his arrest and indictment, Sales pled guilty to scanning and recording digital images of U.S. currency in violation of 18 USC Sec. 474 and creating counterfeit currency in violation of 18 USC Sec. 471. He was sentenced to an eight-month term of imprisonment, to be followed by four years of supervised release. He appealed several conditions of the supervised release. The USCA affirmed in part, vacated in part, and reversed. Condition 5 required that Sales seek and obtain approval from his probation officer before using any computer or computer-related device, internet-service provider, or computer or internet account-such as a screen user name or email account. However, the USCA found that the breadth of this condition was not reasonably related to the nature and circumstances of Sales' counterfeiting offense or his history and characteristics. He used a scanner, computer, and printer to counterfeit currency; his unlawful activity did not utilize any other devices, and in no way involved or relied upon the internet, electronic bulletin boards, or other networks. Condition 6 permitted the probation officer to determine whether Sales continued to misuse his computer and peripheral equipment to create, store, and/or print counterfeit currency. Sales argued that condition 6 goes far beyond what is necessary and the USCA agreed: further tailoring and clarification of condition 6 are required. Finally, the government required Sales to submit "all billing records, including telephone, cable, internet, satellite, and the like, as requested by the Probation Officer." However, at no time had the probation office or government articulated any justification for this requirement, and none was apparent. B. Fletcher (author), Fernandez, and Graber, Circuit Judges. DFPD J. Ginstling of Los Angeles, CA, for the appellant; AUSA E. Silber of Los Angeles, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) HABEAS CORPUS: Edwards v. LaMarque, 04-55752 (9th Cir. Feb. 1, 2007). Edwards was convicted of murder in state court and sentence to life in prison without possibility of parole. The district court granted his Sec. 2254 habeas petition, finding that his trial attorney had mistakenly caused Edwards to waive his marital privilege and that this constituted prejudicial error entitling Edwards to relief for ineffective assistance of counsel. A divided Ninth Circuit panel affirmed. On rehearing the matter en banc, the USCA reversed. It found that the California Court of Appeal was not objectively unreasonable in determining that Edwards' counsel made a reasonable, tactical decision to ask the questions that led to Edwards' waiver of the spousal privilege. Judge Graber concurred in the result but not with all of the majority's reasoning. Dissenting, Judge Fisher, joined by Judges Fletcher, Pregerson, Paez, and Rawlinson, and in part by Judge Graber, thought that Edwards' counsel mistakenly waived his marital privilege, misunderstood the law, and did not make a "tactical" decision; the trial transcript made it clear that the attorney did not comprehend the basic legal underpinnings of the law of privilege and waiver and waived Edwards' rights in error. Schroeder, B. Fletcher, Pregerson, Kozinski, Rymer, Kleinfeld, Hawkins (author), Graber (concurring), Fisher (dissenting), Paez, Tallman, Rawlinson, Clifton, Bybee, and Bea, Circuit Judges. DAG D. Cook of Los Angeles, CA, for the respondent; S. Lubliner of Petaluma, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) HABEAS CORPUS: Nguyen v. Garcia, 05-56596 (9th Cir. Feb. 9, 2007). Wainwright v. Greenfield, 474 US 284, (1986), held that prosecution evidence that the defendant maintained silence after his arrest, offered to show he wasn't all that crazy, and used to rebut defendant's insanity defense in the guilty phase of trial, constituted a violation of due process. At issue here was whether federal law prohibits the prosecutor's mention that the defendant requested counsel to show he was able to cooperate in his own defense-not at the guilt phase of trial but during a hearing to determine whether he was mentally competent to stand trial. The USCA concluded that the state court's decision finding Wainwright inapplicable to a state court competency hearing is not "contrary to" clearly established federal law and thus affirmed the denial of the applicant's petition for a writ of habeas corpus. Siler, Tashima, and Bea (author), Circuit Judges. A. Bloom of San Diego, CA, for the petitioner; G. Schons of San Diego, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) HABEAS CORPUS: Thorson v. Palmer, 02-17359 (9th Cir. Feb. 15, 2007). Thorson appealed the district court's dismissal of his federal habeas petition, brought under 28 USC Sec. 2254, as time-barred. Reviewing de novo, the USCA affirmed. It concluded that because the California Supreme Court denied Thorson's state habeas petition as untimely, Thorson was not entitled to tolling while his untimely petition was pending in state court. Without that tolling, Thorson's federal habeas corpus petition fell outside the one-year limitation period for a state petitioner filing a federal habeas petition. Canby (author), Noonan, and Paez, Circuit Judges. R. Dangler of Sacramento, CA, for the petitioner; DAG C. Chatman of Sacramento, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 44) PRISONERS' RIGHTS: Phillips v. Hust, 04-36021 (9th Cir. Feb. 13, 2007). At issue here was whether the arbitrary denial by prison officials of access to items the prison routinely makes available to inmates for the preparation of legal documents constitutes a denial of an inmates' right of access to the courts where it results in the loss of a legal claim. The USCA held that it does. Judge O'Scannlain dissented from the majority's holding that prison librarian's refusal to allow an inmate access to the prison's comb-binding machine hindered his ability to file his petition for certiorari timely in the Supreme Court. He also dissented from the majority's holding that the librarian is not entitled to qualified immunity. Browning (author), D.W. Nelson, and O'Scannlain (dissenting), Circuit Judges. H. Myers of Salem, OR, for the appellant; F. Phillips pro se. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) PAROLE SEARCHES: USA v. Lopez, 05-50616 (9th Cir. Feb. 5, 2007). Lopez appealed his guilty-plea conviction for possession with intent to distribute methamphetamine. He argued that his conviction should be overturned because his federal prosecution was initiated in retaliation for his refusal to cooperate with FBI investigators, and because the police seized the incriminating metham-phetamine during an unconstitutional parole search. The USCA affirmed. The record showed that there was no legal error. First, the district court properly denied Lopez's motion to dismiss his indictment on the grounds of vindictive prosecution. Second, under Samson v. California, 126 S.Ct. 2193 (2006), because the California parole-search statute governed Lopez's parole, and Lopez signed a Notice and Conditions of Parole submitting himself and his residence to a warrantless, suspicionless search, neither the protective sweep nor the parole search in question violated the Fourth Amendment. Pregerson, Gould (author), and Clifton, Circuit Judges. R. Rome of Van Nuys, CA, for the defendant-appellant; AUSA J. Behnke of Riverside, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) VICTIM RESTITUTION: USA v. Novak, 04-55838 (9th Cir. Feb. 22, 2007). At issue here was whether-and if so, under what circumstances-a criminal defendant's retirement benefits are available as a source of funds to compensate crime victims. The USCA concluded that criminal restitution orders can be enforced by garnishing retirement funds, but with the funds only payable when the defendant has a current, unilateral right to receive payments under the terms of the retirement plan. Judge Fletcher, joined by Pregerson, Reinhardt, Thomas, and Rawlinson, dissented. Judge Fletcher thought the majority was mistaken in holding that the Mandatory Victim Restitution Act ("MVRA"), codified in relevant part at 18 USC Sec. 3613, abrogates ERISA's strict prohibition on alienation of pension benefits. Congress, he thought, did not act with the requisite level of clarity when it adopted the MVRA. The relevant statutory text makes no reference whatsoever to ERISA, or to possible tax consequences of an abrogation of its anti-alienation provision. Moreover, he thought that the legislative history indicated that Congress did not intend to allow criminal restitution orders to abrogate the anti-alienation provision. Schroeder, Pregerson, Reinhardt, Kleinfeld, Hawkins, Thomas, Silverman, McKeown, Wardlaw, W. Fletcher (dissenting), Paez, Berzon (author), Rawlinson, Clifton, and Bybee, Circuit Judges. AUSA B. Whittlesey of Los Angeles, CA, for the plaintiff-appellant; M. Bakst of Encino, CA, for the defendant-appellee. (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
2) TRADEMARKS: M2 Software, Inc. v. Viacom, Inc.,
04-56794 (9th Cir. Feb. 28, 2007) (unpublished). Gibson,
Fisher, and Callahan, Circuit Judges. 3) SECURITIES: Tumelson Family Ltd. Partnership v. World
Financial News Network, 05-35813 (9th Cir. Feb. 28, 2007)
(unpublished). Graber, Paez, and Bea, Circuit Judges. 4) BANKRUPTCY: In re Sanowski, 05-35116 (9th Cir.
Feb. 28, 2007) (unpublished). Beezer, Fernandez, and McKeown,
Circuit Judges. 5) FORFEITURE / UNLICENSED BROADCASTING / FIRST AMENDMENT: USA
v. Any and All Radio Station Transmission Equipment, 05-15880
(9th Cir. Feb. 28, 2007) (unpublished). B. Fletcher, Clifton,
and Ikuta, Circuit Judges. |
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