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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| PUBLISHABLE OPINIONS 1) SECURITIES FRAUD: California State Teachers Retirement System v. AOL Time Warner, 04-55665 (9th Cir. June 30, 2006). In this class action it was alleged that multiple actors engaged in a scheme to commit securities fraud by overstating the reported revenues of Homestore.com, an Internet company. Homestore eventually restated its revenues, resulting in a decrease in revenues of over $170 million and corresponding declines in Homestore's stock value. The district court dismissed the securities claims, relying on Central Bank of Denver v. First Interstate Bank of Denver, 511 US 164 (1994). Affirming and remanding, the USCA held that the plaintiffs should have the opportunity to seek leave to file an amended complaint that may take advantage of the reasoning of the USCA's opinion. On remand, the plaintiffs may argue to the district court that an amendment would not be futile based on the presence of additional relevant facts which it may plead. In addition, the defendants may argue any ground that they assert for denial of any proposed amendment. The district court may then decide in the first instance whether an amended complaint may be filed. Beezer, T.G. Nelson, and Gould (author), Circuit Judges. J. Cotchett of Burlingame, CA, for the plaintiff-appellant; P. Barbur of New York, NY, and D. Tyukody of Los Angeles, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 2) TELECOMMUNICATIONS LAW: Davel Communications v. Qwest Corp., 04-35677 (9th Cir. June 26, 2006). The Federal Telecommunications Act of 1996 largely deregulated the telecommunications industry, but, it continued to regulate certain segments of the industry so as to increase competition overall. For example, to promote more competitive market conditions, it required incumbent local exchange carriers, including Qwest Corporation, to provide access to their telephone lines and services essentially at their cost of providing the service. This case concerns claims by Davel Communications and other payphone service providers (collectively "Davel") that, under the FCC's 1996 and 1997 orders setting standards for rates and services offered by local carriers to payphone service providers, Qwest owes reimbursements for periods in which it failed to file tariffs implementing the new standards or filed tariffs not compliant with the Act and its implementing regulations. The district court found the reimbursement claims barred by the filed-tariff doctrine and dismissed them without prejudice. It also dismissed on statute of limitations grounds Davel's claims that Qwest overcharged it for fraud protection services during the period Qwest overcharged it for fraud protection services during the time Qwest failed to file required fraud protection tariffs with the FCC. The USCA reversed the dismissal of Davel's fraud protection claims with respects to fraud protection payments made pursuant to non-NST-compliant rates within the two-year period prior to the filing of the complaint and remanded for further proceedings on this issue. It also vacated the dismissal without prejudice of Davel's Waiver Order claims and remanded to the district court for it to consider whether a stay or dismissal without prejudice is the appropriate disposition pursuant to the primary jurisdiction doctrine. Gould and Berzon (author), Circuit Judges, and Schwarzer, District Judge. B. Harlow of Seattle, WA, for the plaintiffs-appellants; D. Lobel of McLean, VA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 3) ENVIRONMENTAL LAW: EPIC v. U.S. Forest Service, 04-15931 (9th Cir. June 23, 2006). The Environmental Protection Information Center ("EPIC") appealed the district court's summary judgment for the U.S. Forest Service ("USFS"). EPIC challenged the USFS's failure to prepare an Environmental Impact Statement ("EIS") in connection with the proposed Knob Timber Sale ("the Project") in the Klamath National Forest and further argued that the USFS's Environmental Assessment ("EA") was inadequate. EPIC also maintained that the project violated the National Forest Management Act. While noting that the Project will have some short-term adverse effects on the environment, the USCA said the question was to what degree. Unfortunately, EPIC sought to capitalize on the USFS's "thorough and candid" environmental analysis by seizing on various bits of information and data to claim that there were still substantial questions as to whether the Project may have a significant effect on the environment. The USCA found that the EA provided detailed and adequate consideration of information from a wide rage of sources, and that USFS's conclusion that the adverse effects would not be "significant" within the meaning of National Environmental Policy Act ("NEPA") was not arbitrary and capricious. The USCA thus affirmed the district court's grant of summary judgment on the NEPA claims. In addition, the record did not reveal any specific flaws in the USFS's habitat proxy approach in this case, and the "management indicator species" assessment supported the USFS's conclusion that the project complied with the National Forest Management Act ("NFMA"). The USCA that also affirmed the district court's grant of summary judgment on the NFMA claims. Wallace, Hawkins (author), and Thomas, Circuit Judges. M. Dugan of Eugene, OR, for the appellants; L. Jones of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) COPYRIGHT: Marder v. Lopez, 04-55615 (9th Cir. June 12, 2006). Marder appealed the district court's dismissal, under Fed. R. Civ. Proc. 12(b)(6), of her claims against defendants Jennifer Lopez, Paramount Pictures, and Sony Music Entertainment. According to Marder, the 1983 movie "Flashdance" and a Sony music video for the Lopez song "I'm Glad" were modeled after her life story and career as a nightclub dancer. She asserted a claim against Paramount for a declaration of her rights as co-author of "Flashdance" and a co-owner of the copyright. She also claimed that she was entitled to share in the revenues Paramount allegedly received from Sony for the licensing and exploitation of Flashdance in the video. Finally, she asserted claims against Sony and Lopez based on the Lanham Act, the Copyright Act, and the state law right of publicity and unfair competition. The USCA affirmed the dismissal. Assuming all facts and inferences in favor of Marder, the USCA found it appeared beyond doubt that Marder could prove no set of facts to supports her claims. Marder had signed a general release in 1982 which waived all claims against Paramount arising out of her contributions to the movie. Her claims against Paramount were barred by this release. Her suit against Sony and Lopez was properly dismissed because she could not bring an infringement action if she could not assert a valid copyright interest in Flashdance and she had no evidence of copyright ownership. Pregerson (author), Noonan, and Thomas, Circuit Judges. R. Helfing of Los Angeles, CA, for the plaintiff; D. Fink of Los Angeles, CA, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/) 5) TAXATION: Westpac Pacific Food v. CIR, 02-71041 (9th Cir. June 21, 2006). At issue here was whether cash paid in advance by a wholesaler to a retailer, in exchange for a volume commitment, is "gross income" under 26 USC Sec. 61. In the grocery trade, these are called "advance trade discounts." The Tax Court concluded that the cash discount receive in advance in this case was income. The USCA reversed. Westpac not only had a duty to repay the discounts, it actually did repay them when it did not meet the volume commitments. Westpac did not get any richer when it received its volume discount in the form of cash up front. There was no accession to wealth when Westpac got the cash, just an increase in cash assets offset by an equal liability for the advance trade discounts. Oakes, Kleinfeld (author), and Callahan, Circuit Judges. T. Carlucci of San Francisco, CA, for the appellants; A. Tebbets of Washington, DC, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 6) TAXATION: Polone v. CIR, 04-72672 (9th Cir. June 5, 2006). This appeal presented the question of whether payments received after the effective date of amendments to 26 USC Sec. 104(a)(2) based on a defamation settlement agreement executed prior to the effective date can be excluded from gross income. The USCA held that the amendments apply to payments received after the effective date of the amendment. Farris and Thomas (author), Circuit Judges, and Schiavelli, District Judge. J. Harris of Washington DC, for the appellant; B. Rowan of Washington, DC, for the CIR.(Download the full text of this decision at www.ce9.uscourts.gov/) 7) TAXATION: USA v 4,432 Mastercases of Cigarettes, 04-55354 (9th Cir. June 2, 2006). This appeal arose from the search and seizure by the U.S. Customs Service of over 44 million cigarettes, contained in 4,432 mastercases, for nonpayment of California cigarettes taxes. At issue was whether the extent of immunity from state and federal regulatory and taxing power that businesses can expect when they operate in foreign trade zones. The USCA held that an importer of goods destined for domestic consumption is not exempt from state excise taxes and administrative searches by federal Customs officials simply because it stores its merchandise in a foreign trade zone. Hug and Wardlaw (author), Circuit Judges, and Singleton, District Judge. AUSA B. Hoffstadt of Los Angeles, CA, for the appellants; E. Honig of Marina del Rey, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 8) TAXATION: Gorospe v. CIR, 04-73277 (9th Cir. June 21, 2006). This appeal presented the issue of whether the Tax Court has plenary jurisdiction to hear all appeals from collection due process ("CDP") proceedings before the IRS. The USCA reaffirmed the principle that the Tax Court's jurisdiction over appeals from DCP determinations is limited to issues over which the Tax Court would have had jurisdiction to consider the underlying tax liability. Farris, Fernandez, and Thomas (author), Circuit Judges. A. Taylor of Santa Ana, CA, for the appellants; B. Rowan of Washington, DC, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 9) BANKRUPTCY: In re ZiLog, Inc., 04-15787 (9th Cir. June 15, 2006). In June 2001, ZiLog announced that it would close one of its plants, effective December 31, 2001. To retain employees through the plant closure, it offered certain employees one-time retention bonuses. Corning, Robert, and Cleverdon (collective "the women") were among the employees who accepted the offer. In December 2001, ZiLog notified the women that it had rescinded the retention bonus agreement because the women would not, after all, lose their jobs at the end of the year. In January 2002, Corning and Robert learned that three male engineers would receive retention bonuses. However, they claimed that not until "late April or early May, 2002," did they learn that these three male employees had been paid bo-nuses even though they were not laid off. Cleverdon claimed that she did not learn this until mid-June 2002. On February 28, 2002, ZiLog filed for bankruptcy in the Northern District of California and its employees received emails from ZiLog soon thereafter explaining that they would receive proof of claim forms from the bankrupt court. Around this same time, the women received a notice from the bankruptcy court explaining that the deadline for filing proofs of claims that accrued prior to the bankruptcy filing was April 19, 2002. The women did not file proofs of claims prior to the deadline. The bankruptcy court confirmed the ZiLog plan of reorganization on April 30, 2002, and the reorganization became effective on May 13, 2002. The women then filed an action in Idaho state court, alleging contact, tort and statutory claims based on ZiLog's failure to pay the promised retention bonuses. In response to this filing, ZiLog initiated an adversary proceeding in the Northern District of California Bankruptcy Court, and sought to enjoin the Idaho action, arguing that those claims had been discharged in bankruptcy. Subsequently, the women sought to move their untimely contract, tort and statutory claims into the bankruptcy proceedings under the equitable doctrine of excusable neglect. They also requested payment of their sex discrimination claims as post-petition administrative expenses. The bankruptcy court granted summary judgment to ZiLog and held that all of the women's claims were barred by the bankruptcy confirmation order. The USCA reversed 1) the bankruptcy court's grant of summary judgment to ZiLog on the women's sex discrimination claims, 2) the bankruptcy court's discharge of the women's statutory, contract and tort claims, 3) the bankruptcy court's permanent injunction against the women's pursuit of those claims, 4) the bankruptcy court's determination that the women failed to show excusable neglect for not filing those claims on time; and 5) the bankruptcy court's award of sanctions. The USCA then remanded for further proceedings in accord with the USCA's opinion, instructing the bankruptcy court to consider whether costs and attorneys' fees incurred by the women in defending the adversary proceeding, and in the appeal therefrom, should in equity and good conscience be shifted to ZiLog and its lawyers. Kozinski (author) and Silverman, Circuit Judges, and Benitez, District Judge. E. Rossman of Boise, ID, for the defendants-appellants; R. Levin of Los Angeles, CA, for the debtors. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) ENVIRONMENTAL LAW / TERRORISM: San Luis Obispo Mothers for Peace v. PG&E, 03-74628 (9th Cir. June 2, 2006). At issue here was whether the likely environmental consequences of a potential terrorist attack on a nuclear facility must be considered in an environmental review required under the National Environmental Policy Act. The U.S. Nuclear Regulatory Commission ("NRC") maintained that the possibility of a terrorist attack on a nuclear facility is so remote and speculative that the potential consequences of such an attack need not be considered at all in such a review. The San Luis Obispo Mothers for Peace and other groups disagreed and petitioned for review of the NRC's approval of a proposed Interim Spent Fuel Storage Installation. The USCA denied the petition as to the claims under the Atomic Energy Act of 1954 and the Administrative Procedure Act. However, because it held that the NRC's determi-nation that National Environmental Policy Act of 1969 ("NEPA") did not require a consideration of the environmental impact of terrorist attacks did not satisfy the reasonableness review, the USCA held that the Environmental Assessment prepared in reliance on that determination was inadequate and failed to comply with NEPA's mandate. The USCA granted the petition as to that issue and remanded for further proceedings. Reinhardt and Thomas (author), Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge. D. Curran of Washington DC, for the petitioners; C. Mullins of Washington, DC, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/) 11) ENVIRONMENTAL LAW: Center for Biological Diversity v. U.S. Fish & Wildlife Service, 04-55084 (9th Cir. June 5, 2006). At issue here was whether the Endangered Species Act requires the U.S. Fish and Wildlife Service to complete formal designation of critical habitat for an endangered fish species listed over 35 years ago, the unarmored threespine sticklerback. Affirming the district court's grant of summary judgment to the Service and Cemex, a mining company, the USCA held that it was not arbitrary and capricious for the Service to decide not to designate critical habitat for the sticklerback. The Service was not required to ensure compliance with federal and state laws before issuing an Incidental Take Statement to Cemex, and the district court did not abuse its discretion in striking extra-record exhibits offered to establish a new rationale for attacking the Service's decision. Hall, O'Scannlain (author), and Paez, Circuit Judges. J. Buse of Ventura, CA, for the petitioners; A. Mergen of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 12) ENVIRONMENTAL LAW: Kern County Farm Bureau v. Allen, 04-15540 (9th Cir. June 20, 2006). Plaintiffs, the Kern County Farm Bureau, et al., appealed from a district court judgment denying their claims against the U.S. Fish & Wildlife Service ("FWS") for listing the Buena Vista Lakes shrew as an endangered species. It argued that the FWS violated the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA") by failing to provide public review and comment on new studies that became available after the close of the comment period, not basing its listing decision on the best scientific date available, not summarizing the data underlying its decision, and not showing the relationship between the date and its decision. Because the post-comment information was only important, not critical, to the FWS decision, and given the deference owed to agencies in making such scientifically-based decisions, the USCA affirmed the district court's judgment. Wallace, Hawkins (author), and Thomas, Circuit Judges. R. Thornton of Irvine, CA, for the plaintiffs-appellants; M. Sanders of Washington, DC, for the defendants-appellees; M. Kenna of Durango, CO, for the intervenor-defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 13) ENVIRONMENTAL LAW: Forest Guardians v. Johanns, 04-16179 (9th Cir. June 13, 2006). Forest Guardians appealed the district court's determination that the U.S. Forest Service did not violate the Endangered Species Act when it failed to re-initiate consultation on the environmental impact of cattle grazing on a plot of national forest land in Arizona. Forest Guardian maintained that the Service was required to reconsult because it failed to comply with the agreed-upon criteria governing the monitoring of the grazing's impact on endangered and threatened species living in the Water Canyon Allotment of the Apache-Sitgreaves National Forest. The USCA agreed that the Service's failure to re-initiate consultation on Water Canyon violated the Act. It thus reversed the district court's judgment. Reinhardt (author), Paez, and Tallman, Circuit Judges. R. Wiygul of Biloxi, Miss., for the plaintiff; AAG T. Sansonetti of Washington, DC, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) INSURANCE / WARSAW CONVENTION: Continental Insurance Co. v. Federal Express Corp., 03-57162 (9th Cir. June 29, 2006). This appeal is from a stipulated judgment of $109,023 in favor of Continental Insurance Company for goods lost in shipment by Federal Express. The USCA had jurisdiction because the parties reserved the right to appeal the district court's rulings on the applicability of the Original Warsaw Convention and its subsequent amending agreements, the Hague Protocol and the Montreal Protocol No. 4. The USCA vacated and remanded. The Montreal Protocol No. 4 brought the Hague Protocol into force in the U.S. on March 4, 1999. The Hague Protocol was in force in both Hong Kong and the U.S. at the time Continental's claims arose, which was March 31 and April 15, 1999, for the first and second shipments of the goods in question, respectively, and the district court erred by applying the Original Warsaw Convention. Because a district court abuses its discretion when it applies incorrect law, the USCA vacated the stipulated judgment, and remanded for further proceedings consistent with the liability provisions of The Hague Protocol. Hug (author), Pregerson, and Clifton, Circuit Judges. R. Taitz of Greenbrae, CA, for the defendant; T. Lord of Costa Mesa, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) FIRST AMENDMENT: Santa Monica Food Not Bombs v. Santa Monica, 03-56621 (9th Cir. June 16, 2006). At issue here was the facial constitutionality of an ordinance enacted by a city to regulate events in its outdoor public spaces. In its principal opinion, the USCA held that the city's events ordinance is, save for a single provision, a content-neutral time, place, and manner restriction that did not violate the First Amendment. One provision of the city's administrative interpretation of the ordinance, however, was not constitutionally sound and could not be enforced. Judge Kleinfeld concurred in the results reached by the majority insofar as it held that the ordinance, as interpreted and enforced through the administrative instructions, were constitutionally permissible, but he dissented in part as he thought dicta in the majority's opinion went beyond what the USCA had to decide. He would affirm the district court judgment in full. As to one issue, the ordinance's hold harmless and insurance provision, Judge Kleinfeld's statement constituted the majority opinion. Judge Wardlaw concurred in Judge Berzon's opinion, except as to Part II.C. In her view, the indemnification provision was content neutral. She joined Judge Kleinfeld in holding that the city's indemnification provision did not violate the First Amendment. Kleinfeld (majority opinion in part; dissenting in part), Wardlaw (concurring), and Berzon (author and dissenting in part), Circuit Judges. C. Sobel of Santa Monica, CA, for the appellants; B. Rosenbaum of Santa Monica, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) HEALTH CARE PROVIDERS: California v. USA, 05-17292 (9th Cir. June 9, 2006). At issue here was whether health care providers are entitled to intervene in a case challenging the constitutionality of a federal appropriations rider enacted to protect their interests. The USCA held that the proposed intervenors have a significant protectable interest at stake in this case that could be impaired by the outcome. They had no other means to protect their interests, and no current party adequately represented them. The USCA thus reversed and remanded with instructions that the proposed intervenors be made parties to the litigation aligned with the defendant. B. Fletcher, Kozinski (author), and Fisher, Circuit Judges. J. Sweeney of Sacramento, CA, and S. Aden of Springfield, VA, for the appel-lants; DAG A. Cordero of Los Angeles, CA, for the plaintiffs-appellee; AUSA A. Flentje of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) PRESCRIIPTION DRUG CLAIMS PROCESSORS: Beeman v. TDI Managed Care Services, 04-56369 (9th Cir. June 2, 2006). The plaintiff Pharmacies brought suit against the defendant Pharmacy Benefit Managers ("PBMs") based on violations of California Civil Code Secs. 2527 and 2528. The district court dismissed the plaintiffs' claims due to lack of "injury in fact" sufficient to confer Article III standing. The USCA reversed and remanded. The plaintiffs had made out a procedural injury: the failure on the part of the PBMs to follow the statutory procedures requiring that they conduct studies and provide them to third parties. The concrete injury, as the plaintiffs alleged, is a lack of information, the denial of which adversely affects the possibility such information will improve reimbursement rates at some futures time. Short of assuming the legislature passed a bill with useless procedural provisions, the USCA said it must conclude that such procedures play some, if not a critical, part in futures third-party payor decision. The procedural injury here threatens a concrete interest of the plaintiffs and was thus sufficient to create "injury in fact" for Article III standing purposes. Schroeder, Bright (author), and Pregerson, Circuit Judges. M. Bowse of Beverly Hills, CA, for the appellants; T. Makris of Sacramento, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 18) CHILD CUSTODY / QUALIFIED IMMUNITY: Brittain v. Campbell, 03-57012 (9th Cir. June 22, 2006). Police officer Campbell took this interlocutory appeal from the district court's denial of his summary judgment motion based upon qualified immunity. He had been summoned to resolve a dispute between a child's unmarried parents, Brittain and Hansen, over visitation rights. They had previously litigated custody of the child in the San Bernardino, California, Superior Court. That action resulted in a custody order awarding Hansen sole legal custody of Matthew. Although Hansen was the sole legal guardian, the Superior Court also awarded visitation rights to Brittain. The USCA reversed. First, by failing to recognize the lesser liberty interest in visitation and the differing nature of this action from a child abuse hearing, the district court applied an erroneous legal standard. The USCA declined to create a new substantive due process right by extending the child abuse precedents into child custody disputes between parents. Second, the USCA held that non-custodial parents with court-ordered visitation rights have a liberty interest in the companionship, care, custody, and management of their children. However, the deprivation of Brittain's liberty interest in custody over Matthew did not rise to the level of a federal constitutional violation. If a deprivation of visitation rights, no matter how slight, can give rise to a substantive due process claim, litigants will not only be able to use substantive due process as a "font of tort law," but also as a tool to transform federal courts into family courts. In this particular custody dispute, the police had been called out to mediate on as many as 40 occasions. The proper venue to litigate at the very least most of these disputes is in state court. This case will not support a substantive due process claim. Brittain's claims also failed because Campbell's interpretation of the visitation order was reasonable. In refusing to accept Brittain's interpretation of the order, Campbell did not violate Brittain's substantive due process rights. Concurring, Judge Silverman thought the majority had made this case much more complicated that it had to be. He thought the USCA should had reversed the denial of qualified immunity to Campbell because the undisputed facts showed that he acted reasonably in interpreting the ambiguous court order and in defusing the domestic dispute to which he had been summoned. It is, Judge Silverman, as simple as that. Wallace (author), Silverman (concurring), and Callahan, Circuit Judges. D. Wagner of San Bernardino, CA, for the defendant-appellant; G. Romain of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 19) CIVIL RIGHTS / MISUSE OF POWER: Anderson v. Warner, 04-15505 (9th Cir. June 26, 2006). In this 42 USC Sec. 1983 suit, Anderson appealed the district court's grant of summary judgment to defendant Warner, as well as defendants Mendocino County Sheriff's Office and County of Mendocino (collectively "the County"). Anderson maintained that Warner, who was employed by the County Sheriff's Department as the jail commander, assaulted him while acting under color of state law following a traffic accident in which both were involved. Warner was out of uniform at the time and driving his private vehicle. Anderson maintained that the County negligently hired and supervised Warner, and conducted an inadequate investigation into the assault by Warner. The USCA reversed as to Warner and affirmed as to the County. It concluded that when Warner told bystanders that he was a "cop" and ordered them to stay back, he was acting under color of state law. As to the county, the district court had concluded that even if Warner had been acting under state law, Anderson had provided insufficient evidence to connect Warner's actions to any possible inadequate training or supervision. Anderson maintained that the County was aware that Warner had a reputation for violence and aggressive behavior and that it negligently hired him for a position where there was a substantial risk that he would violate the rights of others. In addition, Anderson maintained that the County failed to train Warner adequately in the proper use of his authority and was negligent in its supervision of him. However, Anderson had not shown that the County's asserted deficiencies in hiring, training and supervision, if any, amount to a policy reflecting "deliberate indifference to the rights of persons with whom the police come into contact." City of Canton, 489 U.S. 378, 388 (1989). The USCA thus affirmed the district court's grant of summary judgment to the County. Thomas and W. Fletcher (author), Circuit Judges, and Mahan, District Judge. W. Weiss of San Francisco, CA, for the appellant; D. James and D. Losak of Ukiah, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) TORTS / GOVERNMENT MISCONDUCT AT TRIAL: Ritchie v. USA, 05-16401 (9th Cir. June 26, 2006). At issue here was what inferences a district judge may draw, during a bench trial, in deciding a motion for judgment based on partial findings under Fed. R. Civ. Proc. 52(c). In 1957, Ritchie, then a Deputy U.S. Marshal, attended lunch-time Christmas party at the U.S. Post Office Building in San Francisco. He drank a bourbon and soda, and then returned to his desk. Later, he returned to the party and drank three or four more bourbon and sodas. When he returned to his office, he began to feel paranoid and worthless. He went home early, where he had an unpleasant conversation with his live-in girlfriend. He then went to the Vagabond Bar and drank more. His feelings of restlessness and paranoia continued. He decided to rob another bar so he could buy his unhappy girlfriend a plane ticket home to New York. Ritchie then attempted to rob the Shady Grove Bar but was arrested in the process. He pled guilty to attempted armed robbery, paid a $500 fine and was sentenced to five years probation. Forty-two years later, in 1999, he read an obituary of Sidney Gottlieb, a CIA medical doctor, from which he learned that the CIA had been administering LSD to unwitting subjects in the 1950s as part of a Cold War project to study its effects. Ritchie concluded that the CIA had drugged him as part of a mind-control experiment. He brought a timely suit under the Federal Tort Claims Act against the U.S. and its agents, claiming that his attempted robbery was set in motion when someone surreptitiously slipped LSD into his drinks at the 1957 Christmas party. After denying the government's motion to dismiss and for summary judgment, the district court held a four-day bench trial. Ritchie presented two witnesses: himself and a doctor who testified that LSD was the cause of his attempted robbery. He also relied on the deposition testimony of Ira Feldman, a former agent involved with both the Federal Bureau of Narcotics and the CIA's surreptitious LSD-doping projects, who made a series of incriminating, contradictory and combative statements about his role in the CIA's LSD project. At the close of Ritchie's case, the government moved for judgment as a matter of law, which the district court construed as a motion under Fed. R. of Civ. Proc. 52(c) for judgment based on partial findings in a bench trial. The district court granted the government's motion, finding that Ritchie had not proven that he was administered LSD by an agent of the federal government, or by anyone else, and that he had thus failed to prove that an LSD-induced psychotic disorder caused his attempted robbery of the Shady Grove Bar. The district court rejected Ritchie's arguments that he was entitled to a favorable evidentiary inference because the government destroyed files related to the CIA's drugging activity and that he should be granted preclusive sanctions based on government misconduct during Feldman's deposition. Instead, the district court awarded Ritchie reasonable costs and attorneys' fees incurred in taking Feldman's second deposition. The USCA affirmed. Rule 52(c) expressly authorizes the district judge to resolve disputed issues of fact. In deciding whether to enter judgment on partial findings under Rule 52(c), the district court is not required to draw any inferences in favor of the non-moving party; rather, the district court may make findings in accordance with its own view of the evidence. Although the district court acknowledged that Ritchie's behavior may have been consistent with an LSD-induced psychotic episode, it noted that to take this inference to its logical conclusion would compel it "to find that LSD intoxication is the likely cause of almost any unexplained and superficially inexplicable behavior." The USCA concluded that the district court's finding that Ritchie did not carry his burden of proof was supported by the record. Finally, although Feldman made a number of comments in his depositions suggesting that he was involved in drugging Ritchie, the district court's determination that Ritchie did not prove Feldman's involvement was not clearly erroneous. Feldman, the USCA noted, maybe have been lying to provoke defense counsel, trying to be funny, or simply speaking imprecisely when he made the purported admissions. Richie's lawyers asked no follow-up questions that might have elicited more detail about Feldman's vague assertions. Because Ritchie failed to prove he was drugged by the government (or by anybody else) in 1957, he also failed to establish that the alleged drugging caused his misfortunes. B. Fletcher, Kozinski (author), and Fisher, Circuit Judges. S. Bender of New York, NY, for the plaintiff-appellant; AUSA O. Martikan of San Francisco, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 21) AGRICULTURE: Cactus Corner v. USDA, 04-16003 (9th Cir. June 8, 2006). In 2001, medfly larvae were discovered in fruit imported from Spain, specifically in clementines. The U.S. Dept. of Agriculture promptly halted further imports of clementines from Spain. The USDA then issued a rule that permitted the importation of Spanish clementines to resume, subject to certain conditions aimed at preventing the introduction of medflies into the United States. Domestic fruit growers challenged the rule with this action. Spanish fruit growers intervened in support of the rule, and both sides moved for summary judgment. The district court granted summary judgment to the USDA, sustaining the rule against the domestic growers' challenge. The USCA affirmed. Because APHIS (the USDA's Animal and Plant Health Inspection Service) was not required to define a negligible risk standard under the Plant Protection Act, and because the USDA had articulated a rational connection between the facts found the choices made, the USCA held that the rule was neither arbitrary nor capricious. Rymer, W. Fletcher, and Clifton (author), Circuit Judges. R. Witten of Washington, DC, and J. Kahn of Hanford, CA, for the plaintiffs; P. Keisler of Washington, DC, for the defendants; D. Holzworth of Washington, DC, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) IMMIGRATION: Cisneros-Perez v. Gonzales, 04-71717 (9th Cir. June 26, 2006). The petitioner sought review of a BIA decision affirming a decision of an Immigration Judge ("IJ") finding that he was ineligible for cancellation of removal under 8 USC Sec. 1229b(b)(1). The IJ determined, under the "modified" categorical approach, that the petitioner's 2001 conviction for battery under Cali-fornia Penal Code Sec. 242 was a "crime of domestic violence" within the meaning of 8 USC Sec. 1227(a)(2)(E)(i) and that he was thus ineligible for cancellation of removal under Sec. 1229(b)(1) (C). The USCA held that there was insufficient documentation to establish that the prior conviction was necessarily a crime of domestic violence. It granted the petition for review and remanded to the agency for further proceedings. Judge Callahan agreed that this case did not concern whether the petitioner's conviction was a crime of moral turpitude, and that he has waived the argument that battery is not a crime of violence, and that to determine whether the prior conviction constitutes a crime of domestic violence, the court should use the categorical and modified approach; but, he would find that the record "necessarily" identified the petitioner's wife at the time as the victim of his battery and hence established beyond a reasonable doubt that his conviction was for a crime of domestic violence. Thompson, Berzon (author), and Callahan (dissenting), Circuit Judges. M. Guajardo of San Francisco, CA, for the petitioner; A. Drucker of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) IMMIGRATION: Morales-Alegria v. Gonzales, 03-73117 (9th Cir. June 6, 2006). The BIA held that the petitioner was removable because he had been convicted of an "aggravated felony" within the meaning of 8 USC Sec. 1101(a)(43)(R). The petitioner maintained that his conviction for forgery under California Penal Code Sec. 476 did not qualify as an "aggravated felony." He argued that 1) a conviction under Sec. 476 is not necessarily "an offense relating to … forgery" because it does not require knowledge of the fictitious nature of the instrument, and 2) the government had not established that he was sentenced to a term of imprisonment of "at least one year" for this forgery offense, as Sec. 1101(a)(43)(R) requires. The USCA denied the petition, holding that a conviction under Sec. 476 does not require knowledge of the fictitious nature of the instrument and thus is not broader than the federal definition of "offense re-lating to … forgery" on that account. The USCA said it lacked jurisdiction to consider the petitioner's second claim relating to the length requirement, because he did not exhaust it before the BIA. Noonan, Kleinfeld, and Berzon (author), Circuit Judges. A. Loiacono of Encino, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 24) IMMIGRATION: Almaghzar v. Gonzales, 04-35863 (9th Cir. June 8, 2006). The petitioner, a native and citizen of Yemen, appealed the district court's denial of his petition for a writ of habeas corpus. The USCA construed the petition as a timely filed petition for review of a BIA decision. The petitioner argued that: 1) the frivolous asylum application bar was erroneously applied to his asylum application; 2) the Immigration Judge ("IJ") incorrectly disregarded testimony that explained discrepancies in his testimony; 3) he was not allowed to present a claim under the Convention Against Torture ("CAT"); 4) his hearing violated his right to due process under the Fifth Amendment; and, 5), the IJ erred in holding that his two prior criminal convictions were particularly serious crimes. The BIA rejected these contentions. The USCA affirmed. Fisher (dissenting in part), Gould (author), and Bea, Circuit Judges. P. Smith of Port-land, OR, for the petitioner; AUSA K. Bauman of Portland, OR, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 25) IMMIGRATION: Ortega-Mendez v. Gonzales, 03-74711 (9th Cir. June 15, 2006). An Immigration Judge ("IJ") determined that the petitioner's 1998 conviction for battery under California Penal Code Sec. 242 was a "crime of domestic violence" within the meaning of 8 USC Sec. 1227(a)(2)(E)(i). As a result, the IJ declared the petitioner ineligible for cancellation of removal under 8 USC Sec. 1229b(b)(1) as an alien who has been convicted of an offense under Sec. 1227(a)(2). The petitioner, a native and citizen of Mexico, sought review of the BIA's decision affirming the IJ. The USCA granted the petition and remanded. For an offense to be a "crime of domestic violence" within the meaning of Sec. 1227(a)(2)(E)(i), it must be, inter alia, a "crime of violence" within the meaning of 18 USC Sec. 16. The government did not argue that the USCA should reach a different result regarding whether the 1998 offense is a "crime of violence" under the modified categorical approach. The USCA thus concluded that the 1998 offense is not a "crime of violence" under the modified categorical approach. It concluded that the 1998 offense is not a "crime of violence" within the meaning of 18 USC Sec. 16 and so is not a "crime of domestic violence" within the meaning of Sec. 1227(a)(2)(E)(i). Thompson, Berzon (author), and Callahan, Circuit Judges. J. Smith of Davis, CA, for the petitioner; A. Drucker of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Maharaj v. Gonzales, 03-71066 (9th Cir. June 9, 2006). Maharaj, a native and citizen of Fiji, petitioned for review of a BIA decision that affirmed an Immigration Judge's decision denying him asylum on the ground that he had "firmly resettled" in Canada after fleeing persecution in Fiji and before arriving in the United States. The USCA concluded that the IJ's determination that the Maharaj had firmly resettled in Canada lacked support. It thus granted the petition and remanded so that the IJ could consider whether evidence that Maharaj had a right to work, receive benefits, and apply for some kind of refugee or asylum status in Canada constituted "an offer of permanent residence, citizenship, or some other type of permanent resettlement." It also remanded to give the IJ an oppor-tunity to make an individualized assessment of the risk to Maharaj of being returned to Fiji in light of changed country conditions. Judge O'Scannlain, joined by Kleinfeld, Rawlinson, and Callahan, agreed that a remand to consider changed circumstances in Fiji was warranted with respect to Maharaj's request for withholding of removal. These judges dissented from the majority with respect to the merits of Maharaj's asylum petition. In their view the IJ properly concluded that Maharaj had firmly resettled in Canada and that the majority's opinion misconstrued the law of resettlement, opened the asylum process to an alien who is not fleeing from persecution, and invited abusive country-shopping. Schroeder, Pregerson, O'Scannlain (dissenting in part), Rymer (author), Kleinfeld, Thomas, Graber, W. Fletcher, Fisher, Gould, Paez, Rawlinson, Clifton, Bybee, and Callahan, Circuit Judges. R. Jobe of San Francisco for the petitioners; A. Igoe of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) IMMIGRATION: Circu v. Gonzales, 02-73420 (9th Cir. June 9, 2006). Based primarily on a fear of future religious persecution in her native Romania, Circu applied for asylum and other relief in the United States. The Immigration Judge held a hearing on the matter where the U.S. State Department's 1997 Romania Country Report on Human Rights Practices and 1997 Profile of Asylum Claims and Country Conditions for Romania were admitted into evidence. Two years after the hearing, however, the IJ, relying on a 1999 Country Report on Human Rights Practices published by the State Department 19 months after the Circu's case was argued and submitted, de-nied Circu's petition. Circu did not receive notice that the IJ intended to take administrative notice of the 1999 Report and was not af-forded an opportunity to respond to its contents before the IJ issued a decision. The BIA summarily denied Circu's appeal, in which she requested an opportunity to counter the 1999 Report. She sought review in the USCA citing Getachew v. INS, 25 F.3d 841, 846 (9th Cir. 1994), which held that due process requires "both notice to the applicant that the administrative notice will be taken and an opportunity to rebut extra-record facts or to show cause why administrative notice should not be taken of those fact." The USCA granted the petition for review because the BIA did not correct the IJ's procedural due process violation and compounded the error by failing to remand the matter to the IJ to afford Circu an opportunity to rebut the 1999 Report. Schroeder, Pregerson, Rymer, Kleinfeld, Thomas, s Silverman, McKeown, Fisher, Berzon, Rawlinson, and Callahan (author), Circuit Judges. J. Sekhon of San Francisco for the petitioners; M. Perry of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 28) IMMIGRATION: Schneider v. Chertoff, 04-55689 (9th Cir. June 7, 2006). The plaintiffs, medical doctors practicing in designated geographical areas where their are medical shortages, sought adjustment to lawful permanent resident status based on their employment. They brought an action against the Secretary of Homeland Security in federal district court for declaratory and injunctive relief, challenging the validity of regulations implementing the Nursing Relief for Disadvantaged Areas Act of 1999. The district court denied the plaintiffs' motion for summary judgment and dismissed the action. The USCA held that the following portions of the Secretary's regulations were in conflict with, and ultra vires to, the Act: 1) the exclusion from the medical practice requirement of shortage-area medical practice that occurs before approval of the immigrant visa petition and national interest waiver; 2) the requirement that doctors who applied for a national interest waiver before Nov. 1, 1998, but whose applications were denied before Nov. 12, 1999, comply with the five-year medical practice requirement; and 3) the requirement that the plaintiffs complete the medical practice requirement within a four or six-year limitations period. The USCA further held that the plaintiffs lacked standing to challenge the portion of the regulations that exclude specialist physicians from obtaining a national interest waiver. Finally, the USCA held that the regulation creating an alleged "double compliance" system was a permissible construction of the Act and not ultra vires to the Act. Pregerson (author), Noonan, and Thomas, Circuit Judges. C. Shusterman of Los Angeles, CA, for the plaintiffs; AUSA J. Osinoff of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) COMMERCE POWER / FIREARMS: USA v. Stewart, 02-10318 (9th Cir. June 30, 2006). At issue here was whether in light of Gonzales v. Raich, 125 S.Ct. 2195 (2005), Congress can use its commerce power to ban possession of homemade machineguns. The USCA affirmed. It concluded that Congress had a rational basis for concluding that in the aggregate, possession of homemade machineguns could substantially affect interstate commerce in machineguns. To the extent homemade machineguns function like commercial machineguns, it does not matter whether they do so in a unique way; as economic substitutes, they are interchangeable. Homemade guns, even those with a unique design, can enter the interstate market and affect supply and demand. Kozinski (author) and T.G. Nelson, Circuit Judges, and Restani, Court of International Trade Judge. T. Haney of Phoenix, AZ, for the defendant; AUSA J. Ruffennach of Phoenix, AZ, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/) 30) SANCTIONS: Stanley v. Woodford, 04-16255 (9th Cir. June 7, 2006). This case concerns an interlocutory appeal from a sanctions order compelling attorney Leavitt to pay attorneys' fees under 28 USC Sec. 1927 and the district court inherent power. The Magistrate Judge sanctioned Leavitt for violating twice and in bad faith an order barring his further appearances on behalf of a California prisoner in capital habeas proceedings under 28 USC Sec. 2254. District Judge Damrell affirmed, and Leavitt appealed. At issue on appeal was whether, after Cunningham v. Hamilton Country, 527 US 198 (1999), the USCA has appellate jurisdiction to entertain a pre-judgment appeal of an order imposing sanctions on a non-party attorney, no longer representing any party in the underlying case. The USCA found that it lacked jurisdiction to entertain Leavitt's interlocutory appeal and dismissed it. The USCA expressly interpret Cunningham as extending to sanctions under Sec. 1927 and a district court's inherent powers, and overruled prior conflicting cases. Hug (author), Alarcon, and McKeown, Circuit Judges. J. Leavitt of Hayward, CA, for the appellant; AFD T. Schardl of Sacramento, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 31) JUVENILES: USA v. Jose D.L. (Juvenile), 05-50597 (9th Cir. June 30, 2006). Jose appealed the district court's ruling that he is a juvenile delinquent under 18 USC Sec. 5032. In May 2005, 15-year-old Jose was arrested after government agents found cocaine hidden in the vehicle he was driving from Mexico into the United States. The USCA reversed in part and remanded for further proceedings. Because Jose was a minor, the Juvenile Delinquency Act ("JDA"), 18 USC Sec. 5031 et seq., applied. First, the USCA found that violations of the JDA led to Jose's confession. The district court had excluded Jose's statement from evidence at trial, apparently finding that that violations "caused" the confession. The USCA agreed with the district court that the failure to properly notify Jose's parents likely caused his confession because it "needlessly isolated [Jose] in a strange environment and deprived him of support and counsel during the pre-arraignment period." Second, the USCA found that, while the district court believed that the statements were prejudicial and excluded them at trial, it never considered whether Jose's statements were the basis of the indictment itself. When the juvenile information was filed, Jose's statements were the only evidence provided by the government to show that he "knowingly" committed a crime, as required under 21 USC Sec. 960(1). The record was silent as to what other evidence the government could have produced at the time the juvenile information was filed to prove the essential element of knowledge. As the record did not satisfy the USCA, beyond a reasonable doubt, that a violation of the JDA was harmless, the USCA remanded to the district court to determine whether it is clear beyond a reasonable doubt that, at the time the juvenile information was filed, the government's use of Jose's confession to prove the indictment on the element of knowledge was harmless. Judge Alarcon concurred in the majority's holding that the government did not egregiously deprive Jose of is right to due process in delaying to advise him of his Miranda rights and in failing to bring him before a magistrate forthwith. But, he thought the majority failed in its duty to view the evidence in the light most favorable to the prevailing party, and ignored the Circuit's harmless error standard of review for JDA violations and instead fashioned a prejudicial per se standard applicable even to a good faith and harmless failure to comply with the JDA. Bright, Pregerson (author), and Alarcon (dissenting in part), Circuit Judges. M. Betancourt of San Diego, CA, for the defendant; AUSA R. Jones of San Diego, CA, for the plain-tiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) JUVENILES: USA v. Juvenile, 05-30410 (9th Cir. June 22, 2006). At issue here was whether, when deciding a motion to transfer a juvenile to adult status pursuant to 18 USC Sec. 5032 for criminal prosecution, a district court must assume the juvenile committed the crime with which he is charged. The USCA held that the district court may indulge such an assumption but is not required to do so. If the district court chooses to assume guilt, it must confine the assumption to the elements of the offense charged. Tashima and W. Fletcher, Circuit Judges, and Pollak (author), District Circuit Judge. P. Hoovestal of Helena, MT, for the appellant; L. Suek of Billings, MT, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 33) SEX OFFENDERS / PLETHYSMOGRAPH TESTING: USA v. Weber, 05-50191 (9th Cir. June 20, 2006). Penile plethysmograph testing is a procedure that "involves placing a pressure-sensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses. This testing has become routine in the treatment of sexual offenders and is often imposed as a condition of supervised release. At issue here were the procedures that must be followed before a district judge may impose such a requirement on a criminal defendant. The USCA vacated and remanded, holding that the requirement that the defendant submit to plethysmograph testing as part of his sex offender treatment was imposed without the necessary evidentiary record, justification, and findings it held were required. Concurring, Judge Noonan would go beyond the majority's opinion to hold that the procedure is always a violation of the personal dignity of which prisoners are not to be deprived: it violates a prisoner's bodily integrity by affecting his genitals; it violates a prisoner's mental integrity by intruding images into his brain; and, it violates a prisoner's moral integrity by requiring him to masturbate. Canby, Noonan (concurring), and Berzon (author), Circuit Judges. DFPD J. Libby of Los Angeles, CA, for the defendant-appellant; AUSA T. O'Brian of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 34) CONFINMENT OF SEXUALLY VIOLENT PREDATORS: Hydrick
v. Hunter, 03-56712 (9th Cir. June 1, 2006). The plaintiffs-appellees
represent a class of civilly committed persons and those awaiting commitment pursuant
to California's Sexually Violent Predators Act. They maintained that the conditions
of their confinement violate their constitutional rights and request declaratory
and injunctive relief, as well as monetary damages. The defendants moved to dismiss
based largely on qualified immunity, but their motion was summarily denied by
the district court. The USCA affirmed the district court's decision to deny qualified
immunity on the plaintiffs' first, second, sixth, seventh, eighth, ninth, and
tenth causes of action. It reversed and held that the defendants have qualified
immunity from suit on the plaintiffs' Ex Post Facto, Double Jeopardy, and Eighth
Amendment claims. Judge Trott agreed that the plain-tiffs could not seek damages
in this lawsuit against state officials in the official capacities, and that they
could not seek damages from the State either. But, on the record, he thought that
the officials as individuals (not officials) were clearly entitled to qualified
immunity against both suit and damages now, not later. In his view the particulars
and the contours of the alleged constitutional rights upon which the plaintiffs
rely were not so clearly established at the times under scrutiny and at the level
of specificity required such that a reasonable official hired by the state to
cope with lawfully confined sexually violent predators subject to remedial treatment
would have been aware that the conduct alleged violated constitutional bounds.
Given the unsettle nature of the law in this area, Judge Trott thought that a
reasonable official could certainly have believed otherwise. Schroeder, Pregerson
(author), and Trott (dissenting in part), Circuit Judges. DAG R. Murphy
of Los Angeles, CA, for the defendants-appellants; K. Davis of Los Angeles, CA,
for the plaintiffs-appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
36) EVIDENCE: USA v. Staffeldt, 05-10243 (9th Cir. June 26, 2006). The government appealed an order of the district court granting a motion to suppress evidence obtained by means of a wiretap of two cell phones belonging to defendant Staffeldt. The district court found that the wiretap application was "facially insufficient," one of the three grounds for suppressing evidence under the statute governing the authorization of wiretaps, Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The application, which sought an order to wiretap Staffeldt's phones, included as an exhibit a memorandum of authorization for the Department of Justice that purportedly showed that the request to submit the application to wiretap Staffeldt had been approved by a properly authorized DoJ offi-cial, as required by the Act. Unfortunately, the memorandum of authorization did no such thing. Instead, it pertained to an entirely unrelated wiretap. It authorized the submission of an application for a wiretap of a different person, with a different phone number, ad-dress, cell phone issuer, and mobile subscriber identity number, than those belonging to Staffeldt or any of the defendants in this case. In fact, it referred to an entirely different criminal investigation in a different state. Most important, the memorandum of authorization did not, directly or indirectly, refer to Staffeldt or his codefendants in any regard. Despite this flagrant and obvious error on the fact of the application, the government maintained that the evidence should not be excluded because, it contends, the error was a minor one not warranting suppression. The USCA disagreed. The facial insufficiency in this case made it impossible for a judge to conclude from the face of the application that it had been authorized by the DoJ, let alone by a duly empowered DoJ official. Reinhardt (author), Noonan, and Hawkins, Circuit Judges. AUSA P. Charlton of Phoenix, AZ, for the appellant; C. Morgan of Scottsdale, AZ, for the ap-pellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) EVIDENCE: USA v. Jernigan, 05-10086 (9th Cir. June 26, 2006). Jernigan appealed the district court's denial of her motion for a new trial. A jury had convicted her of robbing a bank on Sept. 20, 2000. Later she learned that someone with similar physical characteristics had robbed nearby banks in November of 2000 and December of 2001. Based on this information, she moved for a new trial, asserting 1) that the government violated her due process rights under Brady v. Maryland, 373 US 83 (1963), by failing to disclose information prior to trial that was relevant to her defense, and 2) new evidence discovered after trial that, when combined with the undisclosed pre-trial evidence, mandated a new trial pursuant Fed. R. Crim. Proc. 33. The USCA affirmed the district court's denial of the motion for a new trial. Upon examined the photographs of Jernigan and the other robber, as well as a video of the Sept. 20, 2000 bank robbery, it concurred with the district court that the two people were about the same size and had the same general physical makeup, but they did not look alike. The USCA thus concluded that the evidence of the December 2001 bank robber, as well as the previously undisclosed evidence of the November 2000 bank robberies, did not satisfy the fifth requirement for a successful Rule 33 new trial motion; a new trial would probably not result in Jernigan's acquittal if the newly discovered and previously undisclosed evidence were produced. The district court thus did not abuse its discretion by concluding that Jernigan was not entitled to a new trial under Rule 33. Judge Fletcher concurred in the majority's holding regarding Rule 33, but dissented from its Brady ruling. B. Fletcher (dissenting in part), Thompson (author), and Bea, Circuit Judges. J. Hannah 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/) 38) EVIDENCE: USA v. Faulkner, 05-10405 (9th
Cir. June 13, 2006). Faulkner appealed the district court's denial of his motion
to suppress evidence. He had been cited for driving while his license was suspended
and driving while in possession of an open container of alcohol. During a stop
at an information station operated by the Bureau of Land Management located on
federal land in California, Chief Ranger Ruth observed an open container of beer
in Faulkner's car. Ruth then learned that Faulkner's driver's license was suspended.
At issue was whether this brief stop of Faulkner at the "checkpoint"
gave rise to a valid seizure under the Fourth Amendment. The USCA concluded that
it was and affirmed. The primary purpose of the information station was not to
advance the general interest in crime control, and the gravity of the public concerns
served by the seizure and the degree to which the seizure advanced the public
interest outweighed the minimal interference with individual liberty. Faulkner's
Fourth Amendment rights had not been violated. Con-curring, Judge Reinhardt agreed
with the majority's ultimate conclusion that the stop was constitutional, but
not because he thought it was a reasonable seizure: he did not think it was a
seizure at all. Reinhardt (concurring), Paez, and Tallman (author),
Circuit Judges. AFPD M. Lizarraga of Fresno, CA, for the defendant-appellant;
AUSA S. Boone of Fresno, CA, for the plaintiff-appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
40) SENTENCING: USA v. Rios, 05-50000 (9th Cir. June 2, 2006). Rios maintained that the evidence produced at trial was insufficient to convict him of possession of a firearm in further of a drug trafficking crime under 18 USC Sec. 924(c)(1)(A). The USCA agreed, noting that were it to subscribe to the government's theory that the facts were sufficient, it would render possession in furtherance and mere possession nearly indistinguishable. Any person involved in a drug conspiracy who happens to have a weapon at home, for whatever purpose, could be convicted under Sec. 924(c)(1)(A). McKeown and Berzon (author), Circuit Judges, and King, District Judge. J. Whatley of Santa Barbara, CA, for the defendant; AUSA A. Russi of Los Angeles, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/) 41) SENTENCING: USA v. Staten, 05-30055 (9th Cir. June 7, 2006). Upon concluding the requisite review of the post-Booker application of the Sentencing Guidelines in this case, the USCA held that the district court failed properly to take account of the appropriate factors when applying the Guideline Sec. 2D1.1(b)(5)(B) enhancement for creating a substantial risk to human life or the environment. The USCA thus vacated the sentence imposed on Staten and remanded for resentencing. Gould and Berzon (author), Circuit Judges, and Schwarzer, District Judge. J. Lord of Great Falls, MT, for the defendant; AUSA J. Thaggard of Great Falls, MT, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) SENTENCING: USA v. Evans-Martinez, 05-10280 (9th Cir. June 1, 2006). The defendant was sentenced to 15 imprisonment after pleading guilty to the sexual abuse of a minor, sexual exploitation of minors and witness tampering. He timely appealed his sentence on the ground that the district court failed to provide adequate notice of its intent to sentence him above the term suggested by the Guidelines. Federal R. Crim. P. 32(h) requires a district court to provide notice of the potential it will sentence outside the Guidelines range. At issue was whether this requirement survived USA v. Booker, 543 U.S. 220 (2005). The USCA held that it did, vacated the sentence, and remanded for resentencing as the district court failed to provide the notice. Beezer (author) and Fisher, Circuit Judges, and Timlin, District Judge. FPD P. Wolff of Honolulu, HI, for the defendant; AUSA E. Kubo of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) SUPERVISED RELEASE: USA v. Delamora, 05-50589 (9th Cir. June 22, 2006). The USCA held that a defendant's term of supervised release is tolled from the time he absconds from supervision until the time he is found by federal authorities. The district court thus had jurisdiction to conduct revocation proceedings because a sworn petition to revoke had been filed before the term of super-vised release, as tolled, had expired. Lay, Silverman (author), and Wardlaw, Circuit Judges. AUSA T. O'Brien of Los Angeles, CA, for the appellant; DFPD D. Chen of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 44) HABEAS CORPUS: Mendoza v. Carey, 04-56733 (9th Cir. June 7, 2006). Mendoza, a state prisoner, appealed a district court judgment dismissing as untimely his habeas petition. The USCA held that because Mendoza alleged that he lacked English language ability, was denied access to Spanish-language legal materials, and could not procure the assistance of a translator during the running of the AEDPA limitations period, he alleged facts that, if true, may entitle him to equitable tolling. Mendoza had not been granted an evidentiary hearing in which his factual allegations could be established; nor had the State been provided an opportunity to rebut his allegations. The USCA thus reversed and remanded to the district court for an appropriate development of the record. Judge Kleinfeld dissented. Mendoza had accepted a plea bargain and been sentenced in state court to 14 years for assault with a firearm. He main-tained in his federal habeas petition that his sentence was illegal. Judge Kleinfeld thought the case involved, not the merits, but the lateness of Mendoza's petition and he had not shown a barrier to access to Spanish-language legal materials to himself that would, if true, entitle him to tolling. Kleinfeld (dissenting), Tashima (author), and Fisher, Circuit Judges. S. Lathrop of Rolling Hills Estates, CA, for the petitioner; DAG K. Borjon of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) HABEAS CORPUS: Little v. Crawford, 05-15364 (9th Cir. June 8, 2006). Little, a Nevada state prisoner, appealed the district court's denial of his habeas petition under 28 USC Sec. 2254. He challenged his plea to two counts of sexual assault on a minor under 14 years of age. He maintained that: 1) he suffered ineffective assistance of counsel; 2) he was impaired by medications when he en-tered his plea and his counsel failed to investigate and inform the court of the same; 3) his plea was not knowing and voluntary; 4) he was denied counsel at a contested hearing in juvenile court; and 5) the Nevada Supreme Court violated his equal protection rights by failing to apply its existing case law to him. The district court found claim 1) procedurally barred from review, and denied the remaining claims on the merits. It certified claim 5) for appeal but denied Certificate of Appealability as to the remaining claims. The USCA affirmed. Because reasonable jurists would not find the district court's assessment of Little's uncertified claims debatable or wrong, the USCA declined to expand the Certificate of Appealability as to those claims. As for Little's equal protection claim, the USCA found that the state court's denial of that claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Kozinski and Silverman, Circuit Judges, and Benitez (author), District Judge. AFPD J. Lambrose of Los Vegas, NV, for the peti-tioner; DAG V. Schulze of Las Vegas, NV, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) PRISONER LAWSUITS: Vaden v. Summerhill, 05-15650 (9th Cir. June 6, 2006). A California state prisoner sent a complaint to the district court before exhausting his administrative remedies within the state prison system. He did, however, exhaust those remedies by the time the district court granted him permission to file his complaint in forma pauperis under 28 USC Sec. 1915. The district court concluded that the prisoner satisfied the Prison Litigation Reform Act of 1995 ("PLRA"). However, the USCA held that the PLRA requires that a prison exhaust administrative remedies before submitting any papers to the federal courts. Because the prisoner had not met that requirement, the USCA dismissed his action without prejudice. Rymer, W. Fletcher, and Clifton (author), Circuit Judges. B. Lockyer of Sacramento, CA, for the defendants; E. Vaden of Susanville, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/) MEMORANDA
1) EXPERT TESTIMONY / ATTORNEYS' FEES: Kilian v. Equity
Residential Properties Trust, 04-16723 (9th Cir. June 30, 2006) (unpublished).
Goodwin, O'Scannlain, and Thomas, Circuit Judges. 2) FRAUD UPON THE COURT: Dubin
v. Real, 04-15418 (9th Cir. June 29, 2006) (unpublished). B. Fletcher,
Pregerson, and Hall, Circuit Judges. 3) FIRST AMENDMENT / SLANDER:
Felton v. Griffin, 04-16666 (9th Cir. June 26, 2006) (unpublished).
Rymer and T.G. Nelson, Circuit Judges, and King, District Judge. 4) EMPLOYMENT DISCRIMINATION: Nouri
v. Boeing Co., 04-35572 (9th Cir. June 30, 2006) (unpublished).
Ferguson and Callahan, Circuit Judges, and Bolton, District Judge. 5) PROPERTY: Slezak v. Fairbanks
Capital Corp., 04-17507 (9th Cir. June 20, 2006) (unpublished).
Wallace, Kleinfeld, an Berzon, Circuit Judges. 6)
IMMIGRATION: Moreno v. Bureau of Citizenship and Immigration Services,
04-16549 (9th Cir. June 22, 2006) (unpublished). Schroeder and Graber,
Circuit Judges, and Duffy, District Judge. 7)
IMMIGRATION: Ahmed v. Gonzales, 04-73567 (9th Cir. June 19,
2006) (unpublished). Rymer and T.G. Nelson, Circuit Judges, and King, District
Judge. 8) CONTRACTS: Leisure
Time Entertainment v. Cal Vista Intl. 04-56690 (9th Cir. June 22, 2006)
(unpublished). Reinhardt, Trott, and Wardlaw, Circuit Judges.
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