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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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1) SECURITIES LAW: In re Veritas Software Corp., 05-17393 (9th Cir. July 25, 2007). This case required an interpretation of the notice requirements of the Private Securities Litigation Reform Act of 1995 (PSLRA), when a securities class action is to be settled. The appellant, a member of the class of securities holders, appealed from an order of the district court approving a settlement and plan of allocution, arguing that the notice of proposed settlement sent to the class was inadequate under the PSLRA and raising several substantive objections to the plan of allocation. He also appealed from the district court's order denying his application for attorneys' fees. Because it found that the notice did not comply with the PSLRA requirements, the USCA vacated in part and remanded to the district court for it to issue a notice that complies with the requirements of the PSLRA. Because the application was untimely, the USCA upheld the denial of attorneys' fees for work performed prior to the fee application. O'Scannlain and Ikuta, Circuit Judges, and Sand (author), District Judge. I. S. Rabin of New York, NY, for the movant-appellant; P. Coughlin of San Francisco, CA, for the plaintiffs-appellees. Download the full text of this decision at www.ce9.uscourts.gov/) 2) SECURITIES LAW: U.S. Mortgage, Inc. v. Saxton., 04-17494 (9th Cir. July 13, 2007). The plaintiffs appealed the dismissal of their lawsuit against an individual, Saxton, and Deloitte and Touche LLP, et al., alleging violations of Arizona law by incorporating false financial information into Saxton's regulatory filings on which the plaintiffs relied in making loans and in granting loan-related concessions to Saxton. The defendants remove the lawsuit to federal court under the Securities Litigation Uniform Standards Act of 1998, 15 USC Sec. 78bb (SLUSA), and the district court dismissed the lawsuit for failure to state a claim upon which relief could be granted in conformity with SLUSA. The USCA affirmed the removal and dismissal of the lawsuit. Under the standards announced in Merrill Lynch v. Dabit, 126 S.Ct. 1503 (2006), the lawsuit was clearly covered by SLUSA. It was thus properly removed under SLUSA and the district court properly dismissed the second amended complaint with prejudice. Reinhardt, Bybee, and Smith (author), Circuit Judges. G. Lazar of San Diego, CA, for the appellants; D. Furbush of Menlo Park, CA, for the appellees. Download the full text of this decision at www.ce9.uscourts.gov/) 3) TELECOMMUNICATIONS LAW: In re NOS Communications,
04-17040 (9th Cir. July 10, 2007). This appeal arose from Multidistrict
Litigation. The plaintiffs appealed from the district court's dismissal
of their state law claims, claims under the Federal Communications
Act, 47 USC Sec. 151 et seq., and claims under the Truth-in-Billing
regulations. The USCA affirmed in part, reversed in part, and remanded.
The district court held that the FCA claims were nonjusticiable
pursuant to the filed-rate doctrine. The plaintiffs argued that
the charges, practices, and regulations in the defendants' tariffs
were unjust and/or unreasonable because their terms were not clear
and did not contain explicit explanatory statements regarding the
rates and regulations. However, the USCA found this argument foreclosed
by Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d 1166
(9th Cir. 2002), which held that no one may bring a judicial challenge
to the validity of a filed tariff and that the filed-rate doctrine
precludes courts from deciding whether a tariff is reasonable, reserving
the evaluation of tariffs to the FCC. The USCA also rejected the
plaintiffs' contentions that the filed-rate doctrine is inapplicable
in their case. The USCA held that the plaintiffs' state law claims
were preempted to the extent they attempted to challenge the terms
of the filed-rate doctrine. Moreover, where the measure of damages
required comparing the rates charged under the filed-rate with the
rate that allegedly should have been charged, the state claims were
preempted. However, to the extent that the plaintiffs asserted claims
that neither challenged the rates nor required reference to the
filed-rate for a calculation of damages, the USCA held that the
filed-rate doctrine was inapplicable. Applying this test, the USCA
held that the claims of intentional infliction of emotional distress,
fraud, fraudulent inducement to switch contracts, intentional interference
with contract, and claims under the Washington Consumer Protection
Act and Nevada Consumer Fraud Statute were not preempted by the
filed-rate doctrines. These claims did not necessarily require a
determination of the validity or reasonableness of the tariffs.
To the extent that the state claims plaintiffs could prove damages
without attacking the filed-rate, their claims were not preempted.
The USCA held that the district court improperly dismissed all of
the state law claims. Wallace (author), Kleinfeld, and Bybee,
Circuit Judges. R. Green of San Francisco, CA, for the plaintiffs-appellants;
J. Boyle of Parsippany, NJ, for the defendants-appellees. Download
the full text of this decision at www.ce9.uscourts.gov/)
5) INTERNET LAW: Douglas v. U.S. District Court, 06-75424 (9th Cir. July 18, 2007). Douglas contracted for long distance telephone service with American Online. Talk America subsequently acquired this business from AOL and continued to provide telephone service to AOL's former customers but added new provisions to the service contract. Douglas filed a class action in district court, charging Talk America with violations of the Federal Communications Act, breach of contract and violations of various California consumer protection statutes. Talk America moved to compel arbitration based on the modified contract. The district court granted the motion. Because the Federal Arbitration Act, 9 USC Sec. 16, does not authorize interlocutory appeals of a district court order compelling arbitration, Douglas petitioned for a writ of mandamus. At issue was whether a service provider could change the terms of its service contract by merely posting a revised contract on its website. The USCA granted the petition. Because four of the five factors in Bauman v. U.S. Dist. Court, 557 F.2d 650 (9th Cir. 1977), favor mandamus relief, and only one militated against it, the USCA held that the balance of factors favored issuing the writ. It thus vacated the district court's order compelling arbitration. Kozinski, Gould, and Callahan, Circuit Judges. Per Curiam. J. P. Gignac of Santa Barbara, CA, for the petitioner; P. Donsbach of Irvine, CA, for the real-party-in-interest. Download the full text of this decision at www.ce9.uscourts.gov/) 6) INVERSE CONDEMNATION: Vacation Village v. Clark County, Nevada, 05-16173 (9th Cir. July 23, 2007). Vacation Village, the owner of real property near McCarran International Airport in Las Vegas, NV, brought an inverse condemnation against Clark County alleging that County Ordinances 1221 and 1198, which impose height and use restrictions, constitute takings under the Nevada Constitution. The USCA found that its review of Ordinance 1221 was limited by the Nevada Supreme Court's decision in McCarran International Airport v. Sisolak, 137 P.3d 1110 (Nev. 2006), which, construing Nevada state law, found that Ordinance 1221, as applied to Vacation Village's property, constitutes a taking. The USCA remanded for a calculation of just compensation in light of Sisolak. It affirmed the district court's decision that Ordinance 1198 did not effect a taking of Vacation Village's property. Ferguson, Reinhardt, and Smith (author), Circuit Judges. K. Lenhard of Las Vegas, NV, for the appellant / cross-appellee; P. Ray of Las Vegas, NV, for the appellee / cross-appellant. Download the full text of this decision at www.ce9.uscourts.gov/) 7) ATTORNEY'S FEES / MARITIME LAW: Golden Pisces, Inc. v. Fred Wahl Marine Construction, Inc., 05-35477 (9th Cir. July 24, 2007). Golden Pisces and OneBeacon American Insurance Group appealed the district court order denying their motion for attorneys' fees following their successful suit for breach of contract against Fred Wahl Marine Construction. Under the American Rule, which applies in federal litigation, including maritime litigation, Golden Pisces and OneBeacon are not entitled to attorneys' fees absent statutory authorization, an enforceable contractual provision, or an equitable exception to the rule. Because no statute authorized attorneys' fees for this maritime cause of action, because the parties' contract was void, and because no recognized equitable exception applied, the USCA affirmed the district court's order denying attorneys' fees. The district court correctly interpreted the American Rule and did not abuse its discretion in denying the attorneys' fees. Gould, Paez (author), and Rawlinson, Circuit Judges. D. Moran of Seattle, WA, for appellants; D. Knox of Portland, OR, for the appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 8) ATTORNEY'S FEES: Dunn & Black v. USA,
05-35766 (9th Cir. July 11, 2007). At issue here was whether a law
firm could bring an action against the United States to recover
attorneys' fees from monies its client was awarded as a result of
a settlement with the government, but never received because the
IRS requested that payment be withheld to offset unpaid taxes. The
USCA found that neither 28 USC Sec. 1346(a)(1) nor 28 USC Sec. 2410
operated to waive sovereign immunity in this case. As the district
court lacked jurisdiction over Dunn & Black's action against
the United States, the USCA vacated its summary judgment and remanded
with in-structions to dismiss the case for lack of subject matter
jurisdiction. O'Scannlain (author), Tashima, and Berzon,
Circuit Judges. M. Tucker of Spokane, WA, for the appellant; C.
Pett of Washington, DC, for the appellee. Download
the full text of this decision at www.ce9.uscourts.gov/)
10) ENVIRONMENT LAW: The Lands Council v. McNair,
07-35000 (9th Cir. July 2, 2007). The Lands Council and the Wild
West Institute appealed the district court's denial of their motion
for a preliminary injunction to halt the Mission Brush Project under
which the U.S. Forest Service planned to allow the selective logging
of 3,829 acres in the Idaho Panhandle National Forest (IPNF) for
the purpose of restoring portions of the forest to historic conditions.
The appellants alleged that the Project violates the APA, the National
Forest Management Act, the National Environmental Policy Act, 42
USC Sec. 4321 et seq., and Standard 10(b) of the IPNF Forest Plan.
The district court held that the appellants were unlikely to prevail
on their claim, as the balance of hardships favored the Forest Service.
The USCA reversed, finding that the appellants showed a probability
of success on the merits and a possibility of irreparable injury.
Specially concurring, Judge Smith noted that, while Ecology Center
v. Austin, 450 F.3d 1057 (9th Cir. 2005), was binding law and
dictated the outcome here, he thought it was wrongly decided. Judge
Ferguson, joined by Judge Reinhardt also concurred. They did not
think Ecology Center was wrongly decided, and took issue with the
special concurrence that, with no evidence whatsoever, assigns to
the courts of the Ninth Circuit culpability for the status of the
timber industry and impugns the last several decades of the Circuit's
environmental law. Ferguson (author & concurring), Reinhardt,
and Smith (specially concurring ), Circuit Judges. K. Lindholdt
of Spokane, WA, for the appellants; T. Swegle of Washington, DC,
for the appellees; S. Horngren of Portland, OR, for the appellees.
Download
the full text of this decision at www.ce9.uscourts.gov/)
12) FEDERAL TORT CLAIMS ACT: Schoenfeld v. Quamme,
05-55126 (9th Cir. July 2, 2007). Marine Lance Corporal Schoenfeld
lost his leg while a passenger in his roommate's car when it crashed
into a previously damaged, but unrepaired, guardrail on a military
base. The sole issue on appeal was whether the doctrine of Feres
v. USA, 340 US 135 (1950), which immunizes the government from suit
for injuries arising incident to military service, barred Schoenfeld's
claim against the government under the Federal Tort Claims Act.
The district court held that the Feres doctrine barred the action
and dismissed it for lack of subject matter jurisdiction. Reviewing
the matter de novo, with all disputed facts resolved in favor of
the non-moving party, the USCA reversed and remanded for further
proceedings, finding that Schoenfeld's claim was not barred by the
Feres doctrine and that his action against the government could
proceed. The USCA was not persuaded by the government's suggestion
that Schoenfeld was engaged in military activity because he was
taking his uniforms to be laundered. Notwithstanding general regulations
regarding the cleanliness of uniforms, Schoenfeld was not under
orders to wash his uniforms at a specific time or place. That he
opted to launder them in town that day did not convert his weekend
off into a military mission. In any event, the record suggests that
Schoenfeld was bringing both his military and his civilian clothes
to be cleaned. Rymer, Wardlaw (author), and Smith, Circuit
Judges. T. Friedberg of San Diego, CA, for the appellant; R. Greenspan
of San Diego, CA, for the appellee. Download
the full text of this decision at www.ce9.uscourts.gov/)
14) INDIVIDUALS WITH DISABILITIES EDUCATION ACT: Kutasi v. Las Virgenes Unified School Dist., 05-56006 (9th Cir. July 19, 2007). This case involved application of the exhaustion requirement under the Individuals with Disabilities Education Act (IDEA). The USCA reaffirmed the principle that plaintiffs must exhaust administrative remedies before filing a civil lawsuit if they seek relief for injuries that could have redressed to any degree by the IDEA's administrative procedures. The USCA thus affirmed the district court's dismissal without prejudice of the plaintiffs' complaint. Reinhardt, Fisher (author), and Clifton, Circuit Judges. B. Altman of Los Angeles, CA, for the plaintiffs-appellants; C. Woo of Ventura, CA, for the defendant-appellant. Download the full text of this decision at www.ce9.uscourts.gov/) 15) INDIVIDUALS WITH DISABILITIES EDUCATION ACT: R.B. v. Napa Valley Unified School Dist., 05-16404 (9th Cir. July 16, 2007). R.B., a minor, by and through her Guardian Ad Litem, appealed the district court's entry of summary judgment in favor of the Napa Valley Unified School District. The district court had affirmed a decision of a California special education hearing officer (SEHO) that R.B was not entitled to special education protection and services under the Individuals with Disability Education Act (IDEA) and corresponding provision of the California Education Code. Because R.B. did not qualify for special education services, she was ineligible for reimbursement of expenses incurred in placing her at the Intermountain Children's Home and Services, a private school in Helena, Montana. R.B. challenged the SEHO's decision on procedural and substantive grounds. She claimed that her individual education program team should have included her teacher and/or therapist from Intermountain and that this procedural violation, in and of itself, denied her a free appropriate public education. She further claimed that the SEHO and district court erred in finding that she did not have a "serious emotional disturbance" under the criteria of 34 CFR Sec. 300.7(c)(4) (2003) and Cal. Code Regs. Tit. 5 Sec. 3030(i). R.B. maintained that she could not form satisfactory relationships with peers and teachers, manifested inappropriate behavior under normal circumstances, and was pervasively depressed. The USCA affirmed. The School District violated the procedural requirements of the IDEA by not including a special education teacher or provider of the child on the individual education program (IEP) team. After reviewing the record and giving proper deference to the SEHO's thorough and careful findings, the USCA held that R.B. did not qualify as a "child with a disability" because she failed to meet any of the criteria for a "severe emotional disturbance." Because R.B. was substantively ineligible for IDEA relief, the USCA held that the error in the composition of her IEP term was harmless. Hall and O'Scannlain, Circuit Judges, and Gonzales (author), District Judge. G. Crook of Sherman Oaks, CA, for the appellants; S. Jensen of Petaluma, CA, for the appellees.Download the full text of this decision at www.ce9.uscourts.gov/) 16) SOCIAL SECURITY: Orn v. Astrue, 05-16181 (9th Cir. July 16, 2007). Orn applied for Social Security benefits claiming he was unable to work because of disability. He had been diagnosed with asthma, severe chronic obstructive pulmonary disease, diabetes, sleep apnea, and morbid obesity. Following a remand from the Appeals Council, the ALJ agreed that Orn was unable to perform his past work. But after rejecting the opinions of his treating physicians and Orn's own testimony, the ALJ held that the government met its burden to prove that Orn could perform other work in the economy. The Appeals Council and district court affirmed. The USCA held that the ALJ did not give specific, legitimate reasons based on substantial evidence in the record for dismissing the opinions of Orn's treating physicians. It further held that the ALJ erred in discrediting Orn's own testimony. The ALJ's reasons for discrediting Orn's testimony were not "clear and convincing." With Orn's testimony and the opinions of his treating physicians credited, he has established that he is disabled. The USCA thus remanded for a calculation of benefits. Schroeder, Trott, and W. Fletcher (author), Circuit Judges. M. Serpa of Santa Ana, CA, for the appellants; S. Ryan of San Francisco, CA, for the appellee.Download the full text of this decision at www.ce9.uscourts.gov/) 17) SOCIAL SECURITY BENEFITS: Lewis v. Astrue, 04-17414 (9th Cir. July 3, 2007). Lewis appealed from the district court's judgment following an order denying his motion for summary judgment and granting the Commissioner of Social Security's motion for summary judgment. The USCA affirmed. Lewis maintained that the ALJ erred by failing to consider his bursitis at Step 2 of the sequential analysis. However, even assuming that the ALJ erred in neglecting to list the bursitis at Step 2, any error was harmless. The ALJ extensively discussed Lewis's bursitis at Step 4 of the analysis, observing that "the claimant also had left-sided greater trochanteric bursitis." The decision also stated that x-rays showed osteoarthritic changes in Lewis's left knee; that Lewis's straight leg raise was "negative" that Lewis had decreased sensation in his left leg; that he was restricted from prolonged standing and walking; and that he could not do repetitive squatting, kneeling, crouching, and crawling. The decision thus reflected that the ALJ considered any limitations posed by the bursitis at Step 4. As such, any error that the ALJ made in failed to include the bursitis at Step 2 was harmless. Wallace (author) and Thomas, Circuit Judges, and Ezra, District Judge. B. Brewer of Sacramento, CA, for the plaintiff-appellant; P. Keisler of San Francisco, CA, for the defendant-appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 18) MEDICAID: Ball v. Rodgers, 04-16963 (9th Cir. July 17, 2007). A certified class of elderly, physically disabled, and develop-mentally disabled Medicaid beneficiaries alleged that Arizona failed to provide them with adequate home- and community-based health care services, thereby violating the federal Medicaid Act. Defendant Rodgers-director of the Arizona Health Care Cost Containment System, the state agency that administers Arizona's Medicaid program-appealed the district court judgment permitting the case to proceed and holding, after a bench trial, that the state was indeed operating its Medicaid program inconsistently with federal requirements. Rodgers also appealed the district court's decision to grant the beneficiaries permanent injunctive relief. The USCA reversed the district court's decision that Arizona violated Sec. 1396a(a)(3)(A), the Medicaid Act's equal access provision, pursuant to Sanchez v. Johnson, 416 F.3d at 1060. It held that Secs. 1396n(c)(2)(C) and (d)(2)(C), the Medicaid Act's free choice provisions, confer upon the Medicaid beneficiaries individual rights that can be enforced under Sec. 1983. However, the USCA remanded to the district court to determine, if appropriate, which statutes and regulations apply to the program. It instructed that, on remand, the district court address whether Arizona's contention that it is not bound to comply with the free choice provisions has been waived: if not, it must decide that issue; make any appropriate findings of fact and conclusion of law with respect to the Medicaid beneficiaries' ADA and Rehabilitation Act claims; and modify the terms of its injunction, if any, to accord with any statutory or regulatory violations found on remand. B. Fletcher and Berzon (author), Circuit Judges, and Trager, District Judge. L. Johnston of Phoenix, AZ, for the appellants; S. Hart of Tucson, AZ, for the appellees.Download the full text of this decision at www.ce9.uscourts.gov/) 19) MEDICARE: Loma Linda University Medical Center, 05-56341 (9th Cir. July 9, 2007). The main problem presented by this appeal by the Secretary of Health and Human Services and Loma Linda University Medical Center, arising from a dispute over reim-bursement under the Medicare program, is one of statutory interpretation. The question was whether the Provider Reimbursement Review Board had jurisdiction over a Medicare provider's appeal of a cost that was allowed under the Medicare regulations, but that the provider failed to include in the cost report submitted to the fiscal intermediary. The USCA conclude that once the Board acquires jurisdiction pursuant to 42 USC Sec. 1395oo(a) over a dissatisfied provider's cost report on appeal from the intermediary's final determination of total reimbursement due for a covered year, it has discretion under Sec. 1395oo(d) to decide whether to order reimbursement of a cost or expense that was incurred within the period for which the cost report was filed, even though that particular expense was not expressly claimed or explicitly considered by the intermediary. The USCA thus affirmed on the Secretary's appeal, as well as on Loma Linda's cross-appeal which raised issues on which federal jurisdiction was lacking. D.W. Nelson, Reinhardt, and Rymer (author), Circuit Judges. S. Lyons of Washington, DC, for the defendant-appellant-appellee; Lloyd of Los Angeles, CA, for the plaintiff-appellee-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) VETERANS AFFAIRS / AGENT ORANGE: Nehmer v. U.S. Dept. of Veterans Affairs, 06-15179 (9th Cir. July 19, 2007). This case involves the government's treatment of veterans who contracted serious ailments as a result of their exposure to Agent Orange in the course of the military's use of that chemical as a defoliant during the Vietnam War. At issue on appeal was whether the district court, in a clarification and enforcement order issued in 2005, reasonably interpreted an earlier court-approved Stipulation and Order (i.e. Consent Decree) that settled a class action brought by Vietnam War veterans. Although the issue on appeal was technical, it was symbolic of the problems that have plagued a significant number of veterans who deserve our utmost case and attention. In 1989, the veterans successfully challenged a VA regulation that imposed an erroneous standard for determining which diseases were associated with dioxin. Congress thereupon enacted new legislation, the Agent Orange Act of 1991, under which veterans who served in Vietnam and later suffered from such a disease received a presumption that their ailment is connected to their exposure to Agent Orange in Vietnam. The dioxin-related diseases are deemed to be "service-connected," and the veterans qualify for disability benefits. The ensuing 1991 Stipulation and Order provides that as soon as the VA issues new determinations designating particular diseases as "service-connected," it must re-adjudicate the claims of veterans suffering from them if their previously filed claims were denied or are still pending, and must then pay them retroactive benefits. In 2003, the VA issued a regulation finding Chronic Lymphocytic Leukemia to be a disease associated with dioxin and thus "service-connected," but the VA did not re-adjudicate the prior claims of Vietnam veterans suffering from that ailment. Nor did it pay them retroactive benefits. The reason it offered for its failure to follow the provisions of the Consent Decree was that in its view the decree did not apply to diseases that it determines to be "service-connected" after September 30, 2002, the original sunset date of the Agent Orange Act of 1991. In 2004, the plaintiff class, disputing this interpretation, filed a motion that that the district court construed as a motion for clarification and enforcement of the decree. In 2005, the district court rejected the VA's interpretation and granted the veterans' motion. Concluding that the district court's construction of the decree was not only reasonable but correct, and that long-suffering veterans are entitled to the benefits at issue, the USCA upheld the district court's interpretation of the Consent Decree and affirmed the December 2005 order granting the veterans' motion for clarification and enforcement, as well as the April 2006 order establishing a procedure for processing the veterans' claims. The USCA added that, while the answer to the legal question on appeal was quite apparent, it found it difficult to comprehend why the Department of Veterans Affairs, having entered into a settlement agreement and agreed to a consent order some 16 years ago, continues to resist its implementation so vigorously, as well as to resist equally vigorously the payment of desperately needed benefits to veterans who fought for their country and suffered grievous injury as a result of our government's own conduct. Reinhardt (author), Noonan, and Smith, Circuit Judges. AAG P. Keisler of Washington, DC, and USA K. Ryan of San Francisco, CA, for the appellant; B. Stichman of Washington, DC, and L. Peterson of Los Angeles, CA, for the appellees. Download the full text of this decision at www.ce9.uscourts.gov/) 21) WITNESSES: USA v. W.R. Grace, 06-30192 (9th Cir. July 12, 2007). This appeal presented two questions: First, whether the government adequately complied with the certification requirements of 18 USC Sec. 3731, which gives the USCA jurisdiction to hear this interlocutory appeal; Second, assuming there is jurisdiction, whether the district court exceeded its authority in issuing pretrial orders that: (1) required the government to submit a pretrial list of witnesses and later precluded the government from using any unlisted witnesses in its case-in-chief; and (2) precluded the government's identified expert witnesses from relying on documents not disclosed prior to a disclosure cutoff date. The USCA held that the government has now satisfied its burden under Sec. 3731 to certify the materiality of the apparently excluded evidence, thereby justifying the USCA's jurisdiction over this interlocutory appeal. The district court exceeded its authority by ordering the government to produce a pretrial list of non-expert witnesses, but acted within its authority by setting deadlines for the disclosure of expert witnesses the government intended to present its case-in-chief. Before a district court can exclude a witness' testimony for a pretrial disclosure violation-either directly or by precluding the evidentiary basis for the witness' testimony-it must find that the omission was willful and motivated by a desire to obtain a tactical advantage. Concurring, Judge Wallace agreed that the government complied with its certification requirements under Ninth Circuit case law, and agreed with the disposition, but wrote separately because he thought that Circuit cases relating to government certification requirements under Sec. 3731 had been wrongly decided and should be reviewed en banc. Wallace (concurring), Wardlaw, and Fisher (author), Circuit Judges. AAG S. Woolridge of Washington, DC, for the appellant; L. Urgenson of Washington, DC, for the appellees. Download the full text of this decision at www.ce9.uscourts.gov/) 22) IMMIGRATION: Morgan v. Gonzales, 05-74378 (9th Cir. July 26, 2007). The issue on this appeal was whether the United States was estopped from removing an aggravated felon because the government allegedly agreed not to deport him in exchange for his cooperation in a federal drug prosecution. Under the circumstances presented by this case, the USCA denied the petition for a writ of review. Morgan had not alleged a colorable claim for equitable estoppel or a violation of his substantive constitutional rights. His case thus did not warrant transfer to the district court for further fact finding under 28 USC Sec. 2347(b)(3). Although Morgan sought an evidentiary hearing to develop the factual basis for his claim, the arguments he put forth were insufficient to warrant him protection under the state-created danger doctrine even were he to prove everything he alleged. There was thus no genuine issue of material fact and the USCA opted not to transfer the case to the district court for further fact finding. Hawkins, Thomas (author), and Clifton, Circuit Judges. N. Suriel of Phoenix, AZ, for the petitioner; P. Keisler of Washington, DC, for the respondent. Download the full text of this decision at www.ce9.uscourts.gov/) 23) IMMIGRATION: Muradin v. Gonzales, 03-74587 (9th Cir. July 23, 2007). Muradin, a citizen and native of Armenia, petitioned for review of a Board of Immigration Appeals' order removing him to Armenia. The BIA had affirmed the Immigration Judge's denial of Muradin's applications for asylum and withholding of removal but reversed the IJ's decision granting Muradin relief pursuant to Article 3 of the Convention Against Torture (CAT). The USCA affirmed in part and reversed in part. Muradin, who the IJ deemed credible, testified that military officers had severely abused and beaten him. In addition, the U.S. State Department's report on Armenia makes clear that torture of conscripts, prisoners, and deserters is likely. The USCA thus granted Muradin's petition for review and held that substantial evidence supported Muradin's eligibility for CAT relief. It vacated the BIA's order and remanded for further proceedings. Bright (author), Pregerson, and McKeown, Circuit Judges. G. Etmekjian of Glendale, AZ, for the petitioner; T. Holzman of Washington, DC, for the respondent. Download the full text of this decision at www.ce9.uscourts.gov/) 24) IMMIGRATION: Singh v. Gonzales, 04-72701 (9th Cir. July 19, 2007). Singh is a native and citizen of India. After an Immi-gration Judge (IJ) denied his asylum claim, Singh timely appealed the IJ's adverse decision to the Board of Immigration Appeals (BIA). On October 7, 2003, the BIA issued its decision denying Singh's appeal in an order affirming the IJ without an opinion. Singh and his attorney of record swore that they did not receive notice of the decision. The BIA maintained, however, that it sent the decision by regular mail to Singh's counsel and that counsel's correct address appeared on the decision's transmittal cover sheet; the BIA acknowledged that the decision was not sent to Singh himself. The USCA granted the petition for review and remanded for further proceedings. It noted that without the benefit of the BIA's articulated reasoning, it would not decide in the first instance the weight and consequences of Singh's and his counsel's sworn affidavits of non-receipt. It added that on remand the BIA should specifically address what procedures or processes exist to assure that petitioners are notified of the BIA's decision, including assuring that decisions are actually mailed, and how petitioners can inform themselves of the status of pending decisions. Concurring, Judge Block agreed that the BIA's failure to address the affidavits of non-receipt required remand, but wrote separately to express his disagreement with his colleagues' conclusion that the BIA should be allowed to determine, in the first instance, the legal effect of the affidavits. In Judge Block's view, the court owes it to the parties to provide clearer guidance, if for no other reason than to foreclose another petition for review should the BIA mistakenly determine that the affidavits, if authentic, do not overcome the presumption of mailing. Kozinski and Fisher (author), Circuit Judges, and Block (concurring), District Court. I. Lipkin of Fremont, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. Download the full text of this decision at www.ce9.uscourts.gov/) 25) IMMIGRATION: Hadera v. Gonzales, 05-70496 (9th Cir. July 18, 2007). Hadera petitioned for review of a decision of the Board of Immigration Appeals summarily affirming an order of removal. He argued that the Immigration Judge (IJ) erred in designating Ethiopia as his country of removal, although the IJ had determined that Ethiopia was unlikely to accept him as a citizen. He also argued that the IJ erred in denying his applications for protection under the Convention Against Torture and withholding removal under 8 USC Sec. 1231(b)(3)(A). The USCA granted the petition and remanded to the IJ for a redetermination of the country of removal under Sec. 1231(b)(2)(E). Because it held that Ethiopia was not the proper country of removal, it did not reach the remaining issues, each of which presumed Hadera's removal to Ethiopia. Pregerson, Ferguson (author), and Ikuta, Circuit Judges. S. Dortch of Seattle, WA, for the petitioner; E. Marsteller of Washington, DC, for the respondent. Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Abebe v. Gonzales, 05-76201 (9th Cir. July 9, 2007). Abebe sought review of a Board of Immigration Ap-peals' decision finding him ineligible to apply for discretionary relief from removal under former Sec. 212(c) of the Immigration and Nationality Act because the ground of deportability charged by the government-conviction of an "aggravated felony" within the meaning of INA Sec. 101(a)(43)(A), which defines the term to include "sexual abuse of a minor" crimes-lacked a comparable ground of inadmissibility under INA Sec. 212(a). Abebe also challenged the BIA's refusal to review a claim raised in connection with his application for withholding of removal under INA Sec. 241(b). The USCA found no error with respect to the availability of Sec. 212(c) relief and denied the petition on that issue. In a separate memorandum disposition filed concurrently herewith (see memorandum deci-sion #7 below), it remanded to the BIA for an initial determination on the merits of the withholding claim. Concurring, Judge Berzon wrote separately to say she would decide this case differently were she not constrained by Komarenko v. INS, 35 F.3d 432 (9th Cir. 1994). She thought Komarenko was wrongly decided. D.W. Nelson (author), Cowen, and Berzon (concurring), Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; S. Park of Washington, DC, for the respondent. Download the full text of this decision at www.ce9.uscourts.gov/)
28) IMMIGRATION / REENTRY AFTER DEPORTATION: USA v. Diaz-Luevano, 05-50129 (9th Cir. July 18, 2007). Diaz-Luevano appealed his convictions and sentence for illegal reentry in violation of 8 USC Sec. 1326. The USCA affirmed. It clarified that its holding in Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc), does not overrule USA v. Luna-Madellago, 315 F.3d 1224 (9th Cir. 2003). Prior physical removal remains one of the bases for sentence enhancement under Sec. 1326 and Sentencing Guideline Sec. 2L1.2. Sentence enhancement based on reinstated removal after a crime of violence is not contrary to the statement in Morales-Izquierdo that "the reinstatement order imposes no civil or criminal penalties." 486 F.3d at 498. The district court thus correctly enhanced the appellant's sentence. Kozinski, Trott, and Bea, Circuit Judges. Per Curiam. M. Dersey 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/) 29) IMMIGRATION / REENTRY AFTER DEPORTATION: USA v. Ruiz-Chairez, 05-10226 (9th Cir. July 6, 2007). Ruiz-Chairez appealed his 54 month sentence imposed for being convicted of being found in the United States after having been deported under 8 USC Sec. 1326. Because he had previously been convicted of both a crime of violence and a drug trafficking offense, the government sought and obtained a 16 level enhancement authorized by Guideline Sec. 2L1.2(b)(1)(A), which relates to illegal reentry sentences. Ruiz maintained that his sentence violated his equal protection rights because he received a 16 level enhancement when the same priors would give rise to a lesser enhancement for those convicted of other felonies. The USCA affirmed the 16 level enhancement. The Sentencing Commission did not act arbitrarily in treating a felon like Ruiz, who was convicted of being found in the United States after having been deported, more severely than a felon who is convicted of a different crime. Schroeder (author) and Trott, Circuit Judges, and Moskowitz, District Judge. AFPD L. Vinnard of San Jose, CA, for the defendant-appellant; AUSA E. Frick of San Francisco, CA, for the plaintiff-appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 30) IMMIGRATION / ALIEN SMUGGLING: USA v. Jenkins, 06-50049 (9th Cir. July 17, 2007). Jenkins was apprehended twice for attempting to cross the U.S.-Mexico border while driving a vehicle containing undocumented aliens. Both times, she stated that she had been paid to drive a car across the border. She was not charged with any crime. Three months later, she was apprehended while attempting to cross the border in a vehicle containing marijuana. She stated that she had been paid to drive that car too, which she thought contained illegal aliens. She was charged with importation of marijuana. At trial, she testified that she believed third vehicle contained illegal aliens because she had been paid on two previous occasions to smuggle aliens. While the jury was deliberating, the government filed alien smuggling charges against her in connection with her first two border apprehensions. The district court dismissed the indictment, finding that the prosecution's conduct created the appearance of vindictive prosecution because the alien smuggling charges were brought only after Jenkins exercised her right to testify in her own defense. The USCA affirmed. It conclude that, because the government could have prosecuted Jenkins for alien smuggling well before she presented her defense at the marijuana smuggling trial, the timing of the charges created the appearance of vindictiveness. The government's assertion that its case against Jenkins was much strong after her in-court admission did not suffice to dispel the appearance of vindictiveness. Judge Conlon concurred in the majority's statement of jurisdiction, as well as in its conclusion that de novo was the appropriate stand of review. However, he dissented from the majority's conclusion that the alien smuggling indictment had been properly dismissed. The prosecutor explained that the quality of the alien smuggling evidence against Jenkins became significantly stronger with her in-court confession. That confession provided an intervening circumstance justifying the alien smuggling charges. Judge Conlon thus thought that any appearance of vindictiveness had been adequately rebutted. Canby (author) and Thomas, Circuit Judges, and Conlon (dissenting), District Judge. AUSA B. Castetter of San Diego, CA, for the appellant; M. Molina of San Diego, CA, for the appellee.Download the full text of this decision at www.ce9.uscourts.gov/) 31) BORDER SEARCHES & TERRORISM: USA v. Abbouchi, 05-50962 (9th Cir. July 13, 2007). At issue on this appeal was the contours of a customs official's border search authority at a regional sorting hub for express consignment services like those offered by UPS. The USCA held that customs inspections at UPS's regional sorting hubs like the one at Louisville, Kentucky, take place at the functional equivalent of a border. The search of Abbouchi's UPS package at the Louisville UPS was the last practicable opportunity for Customs officers to conduct an inspection before the package departed from the United States for Lebanon. The Customs officers thus did not need reasonable suspicion to open and inspect the contents of his randomly selected package intended for overseas delivery. Inside the package, officers found fraudulent immigration documents, including social security cards, permanent resident alien cards, and an "identification booklet" written in Arabic. The officers forwarded the package to the Immigration and Customs Enforcement office in Louisville for further investigation. When interviewed, Abbouchi signed a Miranda waiver and admitted to mailing a UPS package to Lebanon. He claimed that the package contained "his military booklet" and some other personal documents. Initially, he denied that he knowingly sent the social security and permanent residency cards. Further investigation produced evidence that he had on other occasions sent to Lebanon fraudulent document that a recipient could have used to enter the United States illegally. A grand jury charged Abbouchi with four counts of transferring false identification documents in violation of 18 USC Sec. 1028(a)(2), and one count of making a false statement, in violation of 18 USC Sec. 1001. Before trial, Abbouchi moved to suppress all evidence derived from the search of his package. The district court denied the motion and subsequently found Abbouchi guilty on four counts of transferring false identification documents. It then sentenced him to 16 months imprisonment followed by three years of supervised release. Among other conditions, the supervised release required Abbouchi to report to his probation officer within 72 hours of reentering the United States and required him to "answer truthfully all inquiries by the probation officer. Abbouchi appealed. The USCA agreed that the Customs officers did not need reasonable suspicion to open and inspect the contents of this randomly selected package intended for overseas delivery. It also held that there was sufficient evidence to establish that the social security cards were "identification documents" within the meaning of 18 USC Sec. 1028(a)(2). Pregerson (author), Gould, and Clifton, Circuit Judges. AFPD G. Ivens of Los Angeles, CA, for the appellant; AUSA D. Fuchs of Los Angeles, CA, for the appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 32) SEARCHES: USA v. Diaz-Castaneda, 06-30047 (9th Cir. July 18, 2007). Diaz-Castaneda was a passenger in a truck stopped by a police officer. When asked for his identification, he handed over his driver's license and Oregon identification card. The officer then check Diaz-Castaneda by radio dispatch. At issue on appeal was whether a license plate check by a law enforcement officer that reveals information about a person's car ownership, driver status and criminal record constitutes a search under the Fourth Amendment. The USCA agreed with all other courts that have considered the issue that it does not. Because there was no Fourth Amendment violation, the USCA did not reach the issue of whether Diaz-Castaneda's identity should be suppressed. The USCA thus affirmed the district court's denial of Diaz-Castaneda's motion to suppress. Goodwin, Fisher (author), and Smith, Circuit Judges. L. Graser of Portland, OR, for the defendant-appellant; AUSA B. Sheldahl of Portland, OR, for the plaintiff-appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 33) SEARCHES: Edgerly v. City and County of San Francisco, 05-15080 (9th Cir. July 17, 2007). Police Officers Goff and Cone-frey arrested Edgerly for trespassing within the gated area of the Martin Luther King / Marcus Garvey Housing Cooperative. The Officers transported Edgerly to the police station, where they searched him for contraband. When the search did not reveal any contraband, Sergeant Schiff, the duty supervisor, authorized the Officers to issue Edgerly a citation for trespass and release him. Edgerly was not prosecuted for trespass or any other offense. He subsequently filed this 42 USC Sec. 1983 action against the Officers and the City and County of San Francisco, alleging that the Officers unlawfully arrested and searched him in violation of the Fourth Amendment, and that Schiff and the City were liable for the Officers' unconstitutional actions. He also assertion various state tort claims against the officers. In ruling on the parties' motions for summary judgment, the district court dismissed Edgerly's Sec. 1983 claims against the City and all claims against Schiff, but found that there were genuine issues of material fact with regard to Edgerly's constitutional and state law claims against the Officers and state law claims against the City, and thus allowed those claims to proceed to trial. Following the presentation of all evidence, the district court granted the defendants' motion for judgment as a matter of law under Fed. R. Civ. Proc. 50(a) and dismissed Edgerly's remaining claims. It also awarded attorneys' fees to Edgerly and his attorney under Fed. R. Civ. Proc. 11(b). On Edgerly's arrest claims, the USCA held as a matter of law that the Officers did not have probable cause to arrest Edgerly for trespass in violation of then-Sec. 602(l), now Sec. 602(m), of the California Penal Code, or any other criminal statue identified by the Officers and City. It also held that the Officers were not entitled to qualified immunity for the arrest. Edgerly was thus entitled to judgment as a matter of law on the arrest claims and the USCA reversed and remanded for a determination of damages. On Edgerly's search claims, the USCA held that, viewing the evidence in the light most favorable to Edgerly, a reasonable jury could find that the Officers subjected him to an unreasonable search in violation of the Fourth Amendment. It also held that the Officers were not entitled to qualified immunity for the search. The USCA thus reversed and remanded the search claims for further proceedings. Finally, as to Edgerly's other claims, the USCA reversed the Rule 50(a) ruling dismissing his additional state law claims against the Officers and the City, as well as the grant of summary judgment dismissing his Sec. 1983 Monell claims against the City. However, it affirmed the grant of summary judgment to Schiff, the award of attorneys' fees to Schiff under 42 USC Sec. 1988, and the award of sanctions against Edgerly and his counsel. Canby, Noonan, and Paez (author), Circuit Judges. G. Haynes of San Francisco, CA, for the appellant; D. Herrera of San Francisco, CA, for the appellees. Download the full text of this decision at www.ce9.uscourts.gov/) 34) RIGHT TO COUNSEL: USA v. Forrester, 05-50410 (9th Cir. July 6, 2007). Forrester and Alba were charged with offenses re-lating to the operation of a large Ecstasy-manufacturing laboratory. They were convicted on all counts following a jury trial. They appealed their convictions and sentences. On appeal, the USCA reversed Forrester's conviction and sentence because his waiver of the right to counsel was not knowing and intelligent. As requested by the parties, and for the reason set forth in the concurrently filed memorandum disposition, the USCA vacated Alba's conviction and sentence for conspiracy to manufacture and distribute Ecstasy. It also held that the government's monitoring of Alba's email and Internet activity was not a search for Fourth Amendment purposes and that, whether or not the monitoring came within the scope of the then-applicable pen register statute, Alba was not entitle to the suppression of evidence obtained through the monitoring. The USCA thus affirmed Alba's other convictions and sentences, meaning that his prison term remained 360 months while his supervised release term was reduced from six to five years. Fisher (author), Clifton, and Smith, Circuit Judges. M. Crowley of San Diego, CA, for the appellants; AUSA T. Robinson of San Diego, CA, for the appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 35) RIGHT TO APPEAL: USA v. Castillo, 05-30401 (9th Cir. July 25, 2007). The USCA granted en banc review in this case to resolve a question to which it has given inconsistent answers: Does it have jurisdiction to hear an appeal where the defendant had entered a guilty plea in which he waived his right to appeal? Castillo pled guilty to one count of being an illegal alien in possession of a firearm in violation of 18 USC Sec. 922(g)(5). Notwithstanding his guilty plea, he appealed his conviction. The government failed to raise the plea or his plea agreement as a bar to this appeal and instead responded to Castillo's arguments on the merits. A divided panel dismissed the appeal for lack of jurisdiction. On en banc review, the USCA held that a valid guilty plea does not deprive the court of jurisdiction and that to the extent prior Circuit decisions suggest otherwise, they are overruled. The USCA remanded to the panel for further proceedings. Dissenting, Judge Callahan noted that the precise issue in this case was whether the court has jurisdiction over pre-plea constitutional claims following a conviction pursuant to an unconditional guilty plea. He thought the answer was "no" for, by entering an unconditional guilty plea whereby a defendant admits his factual guilt, he removes the issue of guilt from his case, rendering moot any pre-plea challenges that do not implicate the validity of the admission itself. The appellate court thus lacks Article III jurisdiction over pre-plea constitutional claims because of the absence of a case or controversy. Schroeder, Pregerson, Reinhardt, Rymer, Thomas, Graber, Wardlaw, W. Fletcher, Fisher, Gould, Paez, Berzon, Bybee (author), Callahan (dissenting), and Smith, Circuit Judges. D. Porter of Sacramento, CA, for the defendant-appellant; J. Bolton of Spokane, WA, for the plaintiff-appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 36) FALSE STATEMENT LIABILITY: USA v. Horvath, 06-30447 (9th Cir. July 10, 2007. Any person who knowingly and will-fully makes a materially false statement to the federal government is subject to criminal liability under 18 USC Sec. 1001(a). However, congress chose to exempt from criminal liability false statements submitted to a judge by a party to a judicial proceeding. 18 USC Sec. 1001(b). At issue here was whether the Sec. 1001(b) exception for statements submitted by a party to a judge encompasses false state-ments submitted to the judge in a pre-sentence report (PSR), when the defendant in a criminal proceeding made the false statement to the probation officer during the defendant's presentence interview, rather than to the judge directly. The USCA held that when, but only when, the probation officer is required by law to include such a statement in the PSR and to submit the PSR to the judge, the statement falls within the exception in Sec. 1001(b). The USCA thus reversed the district court's denial of the defendant's motion to dismiss the indictment. Dissenting, Judge Rymer noted that Sec. 1001(b) literally immunizes submissions by a party or that party's counsel "to a judge or magistrate." She thought that "to a judge" meant "to a judge." Pregerson, Rymer (dissenting), and Graber (author), Circuit Judges. D. Wilson of Kalispell, MT, for the defendant-appellant; AUSA J. Van de Wetering of Missoula, MT, for the plaintiff-appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 37) EVIDENCE: USA v. Shea, 06-10450 (9th Cir. July 11, 2007). Shea challenged his conviction for intentionally causing damage to a "protected computer" without authorization, in violation of 18 USC Sec. 1030(a)(5)(A)(i). He argued that the government presented insufficient evidence to convict, and specifically that it presented no evidence that he committed a criminal act on the date alleged in the indictment. The USCA disagreed. It held that the evidence was sufficient to support Shea's conviction, that any variance between the date in the indictment and the date of Shea's acts was immaterial, and that the district court's refusal to appoint new counsel was appropriate. The USCA thus affirmed the conviction. Hall (author), O'Scannlain, and Ikuta, Circuit Judges. A. Pirelli of San Rafael, CA, for the appellant; AUSA A. Rosen of San Jose, CA, for the appellee.Download the full text of this decision at www.ce9.uscourts.gov/) 38) EVIDENCE: USA v. Jernigan, 05-10086 (9th Cir. July 9, 2007). Jernigan was arrested on November 10, 2000, for allegedly robbing three banks. After she was placed in custody and awaiting trial, two more area banks were robbed by a woman whose descrip-tion bore an uncanny physical resemblance to hers: both women were roughly five feet tall, Hispanic, and had acne or pock-marked complexions. Although the prosecution knew that other nearby banks had been robbed by a diminutive, Hispanic female with poor skin after Jernigan's arrest, it failed to relay this information to the defense. Proceeding without knowledge of the second alleged bank robber, Jernigan's counsel argued at trial simply that his client was misidentified. However, the jury was not persuaded and Jernigan was convicted of bank robbery. While in prison, Jernigan learned that a woman with a similar description had been arrested for robbing several banks in the area. She moved for a new trial asserting that (1) the government violated her due process rights under Brady v. Maryland, 373 US 83 (1963), by failing to disclose before trial material, exculpatory evidence known to the government, and alter-natively that (2) evidence discovered after trial required that she receive a new trial pursuant to Fed. R. Crim. Proc. 33. The district court denied her motion in January 2005, and Jernigan appealed. After a Ninth Circuit panel affirmed, the court voted to rehear the case en banc. Sitting en banc, the USCA disagreed with both the original panel and the district court and held that the suppressed evidence was material to Jernigan's guilt. It thus reversed and remanded for a new trial. Dissenting, Judge Bea noted that, notwithstanding the witness statements, the district court found the non-disclosed photographs taken from the surveillance video of the November 28, 2000 bank robbery established that Jernigan and the other robber were "markedly different" in appearance and "do not look alike, whatever similarities may be in their complexions or Hispanic appearance." In addition, the district court found that "someone having looked at them under these circumstances would have been able to make such a determination." Judge Bea thought that these finding were not clearly erroneous. Moreover, the district judge, who had the benefit of observing Jernigan during the course of her four-day trial, was in a better position than the USCA to determine whether Jernigan resembled the other robber. Judge Bea would thus defer to the district court judge's factual findings, conduct a de novo review of Brady materiality based on the district judge's findings, and affirm. Schroeder, B. Fletcher (author), Pregerson, Kozinski, O'Scannlain, Rymer, Silverman, McKeown, Fisher, Gould, Berzon, Bybee, Callahan, Bea (dissenting), and Ikuta, Circuit Judges. T. Hoidal of Phoenix, AZ, for the defendant-appellant; AUSA M. Morrissey of Phoenix, AZ, for the plaintiff-appellee.Download the full text of this decision at www.ce9.uscourts.gov/) 39) EVIDENCE / EX POST FACTO CLAUSE: Schroeder v. Tilton, 06-15391 (9th Cir. July 3, 2007). At issue here was whether a state trial court violated the Ex Post Facto Clause by admitting evidence of prior sexual misconduct under California Evidence Code Sec. 1108. Carmell v. Texas, explained that some, but not all, rules of evidence have an impermissible retroactive effect if used in criminal trial where the conduct at issue took place before the rule of evidence was adopted. 529 US 513, 530-33, 544-52 (2000). The issue was thus whether the California court unreasonably applied Supreme Court law in holding that Sec. 1108 falls outside the scope of Carmell. The USCA held that because Sec. 1108 did not affect the quantum of evidence sufficient to convict Schroeder, the state did not violate his right to be free from retroactive punishment when it allowed Sec. 1108 evidence to be presented at his trial. The decision of the California courts thus was neither contrary to nor an unreasonable application of clearly established Supreme Court law under Carmell. Wallace, Cudahy, and McKeown (author), Circuit Judges. C. Gardner of Oakland, CA, for the appellant; G. Engler of San Francisco, CA, for the appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 40) JUVENILE DELINQUENCY: USA v. Juvenile Male, 06-30587 (9th Cir. July 5, 2007). In February 2005, the defendant was charged with "engaging in an act of juvenile delinquency by committing second degree murder." He was 15 years and 11 months old at the time of the incident, and was 18 years and 7 months old when proceedings commenced. In May 2005, the government moved to have the proceedings transferred to adult criminal prosecution pursuant to the Federal Juvenile Delinquency Act. The government also filed a motion for observation and study, requesting that the defendant be committed to the custody of the Attorney General for a psychological examination, pursuant to 18 USC Sec. 5037(e), to assisted the court in determining whether he should be transferred to adult status. The district court granted the latter motion and ordered the defendant to undergo an evaluation in accordance with the factors listed in Sec. 5032. The defendant then was transferred to the Dakota Horizons Youth Center on June 10, 2005. Upon completion of the evaluation, a report was filed with the district court detailing the experts' observations and conclusions. In December 2005, following receipt of the report, the district court heard the motion to transfer. The government presented the testimony of an FBI agent who had investigated the case. On December 15, 2005, the district court granted the government's motion to transfer the case. The defense filed a notice of interlocutory appeal. In August 2006, the USCA remanded, finding that the district court had improperly held that it had to assume, for purposes of a transfer determination, that the juvenile committed the offense charged in the information. On remand, the district court exercised its discretion to assume that the defendant committed the offense. The court then "readopted and restate" its original findings of fact, as well as its original conclusions of law, save the statement that the assumption of the defendant's guilty was mandatory. The defendant appealed from that amended decision. The USCA held that a district court abuses its discretion when it fails to make a finding required by Sec. 5032 or when the findings it does make are clearly erroneous. Concluding that the district court made findings that were clearly erroneous, the USCA vacated the district court's ruling and remanded for further proceedings. B. Fletcher and Pregerson, Circuit Judges, and Selna, District Judge. Per Curiam. AFPD D. Ness of Great Falls, MT, for the appellant; AUSA C. Rostad of Great Falls, MT, for the appellee.Download the full text of this decision at www.ce9.uscourts.gov/) 41) SENTENCING / SPEEDY TRIAL RIGHTS: USA v. Sperow, 05-30483 (9th Cir. July 26, 2007). Sperow appealed his convic-tion for possession of marijuana with intent to distribute, asserting that the post-indictment delay in his arrest amounted to a violation of his Sixth Amendment right to a speedy trial. He also appealed an enhancement of his sentence, arguing that it was improperly based on a prior conviction not proven to the jury or admitted by the defendant, and that the government did not give him proper notice of its intent to seek such an enhancement. The USCA affirmed Sperow's conviction. However, it agreed that the government fatally compromised its notice of an proposed sentence enhancement. It thus vacated Sperow's sentence and remanded for resenting without the enhancement. Dissenting, Judge O'Scannlain would affirm the district court's determination that the government's 21 USC Sec. 851 notice satisfied the statutory requirements. He though the government had given Sperow "fair notice of which prior conviction the government had in mind for seeking a sentence enhancement" and it did not withdraw that notice. Ferguson, O'Scannlain (dissenting), and Fisher (author), Circuit Judges. D. Weinberg of San Francisco, CA, for the defendant-appellant; AUSA J. Haub of Portland, OR, for the plaintiff-appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 42) SENTENCING / TAX FRAUD: USA v. Ensign, 06-10447 (9th Cir. July 5, 2007). Defendant-Appellant Ensign appealed her conviction on four counts of willful failure to file tax returns, and Appellant Stilley sought review of the district court's refusal to allow him to proceed pro hac vice as Ensign's attorney. The USCA held that the district court acted within its discretion in declining to allow Stilley to represent Ensign pro hac vice and that Stilley lacked standing to appeal the district court's orders. Specifically, the district court's orders declining to allow Stilley to represent Ensign pro hac vice did not violate Ensign's right to counsel under the Sixth Amendment, and because the orders did not clearly and intentionally sanction Stilley, he lacked standing to appeal in his own right. The USCA thus affirmed Ensign's conviction and dismissed Stilley's appeal. Goodwin, D.W. Nelson, and Callahan (author), Circuit Judges. O. Stilley of Fort Smith, AZ, for the defendant-appellant; AUSA M. Determine of Washington, DC, for the plaintiff-appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 43) SENTENCING: USA v. Jimison, 06-30417 (9th Cir. July 16, 2007). At issue here was when a defendant can be subject to a sen-tencing enhancement under Sentencing Guidelines Sec. 2K2.1(b)(5) (2005), for possession of a firearm in connection with an offense that he never commits. Jimison had pled guilty to felony possession of firearms. The district court enhanced his sentence under Sec. 2k2.1(b)(5), finding that he had possessed stolen guns "with the intent of fighting it out with law enforcement if he were caught." The USCA reversed and remanded. Soon after arriving at the house of an acquaintance, Bill Hecker, Jimison called the owner of the guns, apologized to the owner for taking his guns, and made arrangements to return them. He also safely locked the guns in the trunk of the car and departed, leaving the car and guns at Hecker's house. Under these circumstances, there was insufficient evidence to conclude that Jimison formed a firm intent to have a shootout with law enforcement. The USCA thus concluded that the district court erred in applying the Guidelines to the facts of this case and vacated Jimison's sentence. Kozinski (author) and Fisher, Circuit Judges, and Guilford, District Judge. AFPD D. Merchant of Billings, MT, for the defendant-appellant; AUSA E. Wolff of Billings, MT, for the plaintiff-appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 44) SENTENCING: USA v. Gonzalez, 05-10543 (9th Cir. July 3, 2007). Gonzales became hysterical on a flight from Las Vegas, Nevada, to Ontario, California. He demanded that the plane land, made statements about a bomb, and, according to a flight attendant, said, "I'm blowing the plane up." The crew and passengers subdued him and he was eventually was handcuffed and the plane was diverted back to Las Vegas. He pled guilty to interference with a flight crew member in violation of 49 USC Sec. 46504. To violate Sec. 46504, a defendant's conduct of "assaulting or intimidating a flight crew member or flight attendant" must interfere with the performance of the duties of the member or attendant or lessen the ability of the member or attendant to perform those duties. The Presentence Investigation Report recommended a nine-point base offense level enhancement under Sentencing Guideline Sec. 2A5.2(a)(2) on the ground that Gonzalez recklessly endangered the safety of the aircraft. The district court imposed a 27-month sentence and required him to be supervised for three years, and to pay a $100 special assessment. The district court did not apple a two-level enhancement for obstruction of justice and gave Gonzales the benefit of a two-level downward adjustment for acceptance of responsibility. It also specified that the offense level was 16, meaning that it had applied the nine-level enhancement. Gonzalez appealed the district court's decision to impose a nine-level enhancement for reckless endangerment of the aircraft. The USCA affirmed. It was not persuaded by Gonzalez's argument that the enhancement was inapplicable. His conduct was a threat not only to crew and passengers but to the aircraft. Dissenting, Judge Tashima thought that, even reading the sentencing record and all of the materials available to the district court at sentencing in the light most favorable to upholding the sentence, the record did not come close to establishing that Gonzalez posed any threat to the aircraft. Tashima (dissenting) and McKeown (author), Circuit Judges, and Ezra, District Judge. D. Bogden of Las Vegas, NV, for the defendant-appellant; F. Forsman of Las Vegas, NV, for the plaintiff-appellee. Download the full text of this decision at www.ce9.uscourts.gov/) 45) HABEAS CORPUS: Hemmerle v. Schriro, 06-16601 (9th Cir. July 19, 2007). At issue here was whether a federal petition for a writ of habeas corpus was properly dismissed as time-barred because filed outside the Antiterrorism and Effective Death Penalty Act's one-year statute of limitations. The USCA found that the matter was determined by the Arizona Supreme Court on February 20, 2003, when that court denied review. There was nothing left for it to do and it thus returned the recorded to the appeals court. A later March 19, 2003, letter from the clerk of the court of appeals was not a mandate, but instead the performance of a ministerial function of returning the record to the trial court. The USCA concluded that after the February 20, 2003, denial by the Arizona Supreme Court, nothing remained "pending" for purposes of 28 USC Sec. 2244(d)(2). The statute of limitations set for in Sec. 2244(d)(1) thus began running on that date. Hall, O'Scannlain (author), and Ikuta, Circuit Judges. M. Bernays of Phoenix, AZ, for the petitioner; AAG A. Amman of Phoenix, AZ, for the respondent. Download the full text of this decision at www.ce9.uscourts.gov/) 46) HABEAS CORPUS: Winzer v. Hall, 06-55327 (9th Cir. July 23, 2007). Winzer appealed the district court's denial of his habeas petition brought under 28 USC Sec. 2254. He was convicted by a Los Angeles County jury on two counts of making a terrorist threat by saying "I'll smoke you and your daughter" while appearing to indicate that he had a gun in the waistband of his pants. The statement and gesture were proved at trial through the testimony of a police officer, who interviewed the two victims at their home more than 5 ½ hours after Winzer left it. Based on the officer's testimony about the victims' demeanor, and despite the trial court's exclusion of their 911 call as "one of the calmest" it had ever heard, the California courts held that the victims' statements to the officer were spontaneous and thus exceptions to hearsay. The mother did not appear at trial. The daughter did not recall Winzer making the threat and did not see the gesture. Winzer maintained that his Sixth Amendment right to confrontation was violated. The USCA held that clearly established federal law mandated reversal. It remanded the case with instructions to issue the writ and require that state court either to grant a new trial or dismiss the charge of making a terrorist threat. Kozinski and Trott, Circuit Judges, and Molloy (author), District Judge. C. Lysaght of Santa Monica, CA, for the petitioner; AAG M. Graves for the respondent.Download the full text of this decision at www.ce9.uscourts.gov/) 47) HABEAS CORPUS: Tanner v. McDaniel, 06-15405 (9th Cir. July 13, 2007). Tanner appealed the district court's denial of his 28 USC Sec. 2254 habeas petition. He argued that the district court erred in rejecting his claims that he had received ineffective assistance of counsel in his state criminal proceedings, that his guilty plea was not knowing and voluntary, and that the district court should have granted his request for an evidentiary hearing. The district court issued a certificate of Appealability these three issues. The USCA affirmed, holding that Roe v. Flores-Ortega, 528 US 470 (2000), in describing defense counsel's duty to consult with the client when there is reason to believe that a rational defendant in the client's position would wish to appeal, did not establish new constitutional law. Under Flores-Ortega Tanner had not shown that his counsel was deficient in failing to consult with him regarding an appeal. Moreover, the USCA concluded that Tanner's plea was voluntary and knowing, and that he was not entitled to an evidentiary hearing on either his ineffectiveness claim or his challenge to his guilty plea. The district court thus correctly denied Tanner's habeas petition. Noonan, Tashima (author), and Callahan Circuit Judges. AFPD J. Carr of Las Vegas, NV, for the petitioner; DAG R. Wieland of Reno, NV, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 48) HABEAS CORPUS: Crater v. Galaza, 05-17027 (9th Cir. July 9, 2007). At issue here was whether the Anti-terrorism and Ef-fective Death Penalty Act is unconstitutional. This time the challenge was make by another habeas corpus petitioner convicted of murder in a California state court. The USCA affirmed. Crater's survey-based evidence, suggesting that many community residents believed that Crater and Robinson, committed the crime did not justify a presumption that the jury members ultimately selected shared such preconceptions or were prejudiced by news accounts. The USCA was not persuaded to doubt the state court's determination of impartiality in a jury winnowed by peremptory and for-cause challenges, including removals based on news exposure. Brunetti, O'Scannlain (author), and Trott, Circuit Judges. V. Haltom of Sacramento, CA, for the petitioner; B. Means of Sacramento, CA, for the respondent. (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: Polar Bear Productions, Inc. v. Timex Corporation,
05-35811 (9th Cir. July 31, 2007) (unpublished). O'Scannlain,
Tashima, and Berzon, Circuit Judges. 3) UNFAIR COMPETITION / TRADE SECRETS / ATTORNEYS' FEES: Cornwell
v. Belton, 05-56457 (9th Cir. July 25, 2007) (unpublished).
Trott, Tashima, and Rawlinson, Circuit Judges. 4) BANKRUPTCY: In re State Line Hotel, 05-15906 (9th
Cir. July 5, 2007) (unpublished). Hall and O'Scannlain, Circuit
Judges, and Gonzalez, District Judge. 5) BANKRUPTCY: In re White Mountain Communities Hospital,
Inc., 06-15682 (9th Cir. July 9, 2007) (unpublished).
Farris, Boochever, and Leavy, Circuit Judges. 6) BANKRUPTCY: In re Eugene Van Orden, 04-35894 (9th
Cir. July 11, 2007) (unpublished). Pregerson, Ferguson, and
Ikuta, Circuit Judges. 8) IMMIGRATION: Maafi v. Gonzales, 04-71336
(9th Cir. July 17, 2007) (unpublished). Silverman, W. Fletcher,
and Clifton, Cir-cuit Judges.
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