 |
| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
| |
| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
| |
| PUBLISHABLE OPINIONS 1) TAXATION / ATTORNEY-CLIENT PRIVILEGE: Reiserer v. USA, 05-35615 (9th Cir. Mar. 20, 2007). The Estate of Kenneth Reiserer and the law firm of Reiserer & Agee, LLP (collectively "Reiserer") appealed the denial of their motion to quash an IRS summons issued to the Bank of America. The IRS issued the summons as part of its investigation into whether penalties should be imposed on Reiserer under 26 USC Secs. 6700 and 6701 for promoting an abusive tax shelter. The district court denied the petition. On appeal, Reiserer argued that the district court erred when it held that the penalties under these sections survived Kenneth Reiserer's death, and that the attorney-client privilege did not protect the material requested from the Bank of America. The USCA affirmed. First, there was little to show, let alone the "clearest proof," that the penalties were penal. Second, Reiserer did not object to the production relating to his leasing companies, but maintained that client identity and fee information should be protected from disclosure. However, the USCA noted that it is well settled that there is no privilege between a bank and a depositor. To the extent those documents disclose the identity of Reiserer's clients, the attorney-client privilege does not protect that information. B. Fletcher and McKeown, Circuit Judges, and Schwarzer (author), District Judge. J. Colvin of Seattle, WA, for the appellants; G. Wolfinger of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) TAXATION / THE SELF-RENTAL RULE: Beecher v. CIR, 05-71894 (9th Cir. Mar. 24, 2007). The Tax Court upheld a tax deficiency determination of the Commissioner of Internal Revenue ("CIR"). The appellants challenged the Tax Court's ruling that they could not apply losses from their rental properties to offset rental income derived from leases of office space in their home to lessee corporations which they themselves owned. At issue was: 1) whether Treasury Regulation Sec. 1.469-2(f)(6), as applied to "C" corporations, is arbitrary, capricious, or contrary to IRC Sec. 469; 2) whether Congress's delegation of authority to the Secretary of Treasury to promulgate regulations pursuant to Sec. 469 is unconstitutional; and 3) whether the CIR must show that a taxpayer was motivated to shelter income as a prerequisite to apply Treasury Regulation Sec. 1.469-2(f)(6). The USCA affirmed. The plain text of Sec. 469 does not bear out the taxpayers' strained interpretation that "other passive activity" refers to passive activity that, unlike rental activity, is not otherwise classified in the code. The CIR asked the USCA to adopt an interpretation consistent with the text of the Code: namely, that the provision that provides for "regulations … requiring net income or gain from a limited partnership or other passive activity to be treated as not from a passive activity. The USCA found the CIR's construction of Sec. 469 to be valid. As such the Secretary of the Treasury did not exceed his authority by promulgating the self-rental rule. Gould and Smith, Circuit Judges, and Covello (author), District Judge. E. Simpson of San Francisco, CA, for the petitioners; AUSA E. O'Connor of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 3) TAXATION: Polone v. CIR, 04-72672 (9th Cir. Mar. 12, 2007). At issue on this appeal was 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 concluded that the amendments apply to payments received after the effective date of the amendment, and affirmed the Tax Court. The settlement payments received by Polone after August 1996 were taxable as ordinary income. 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 appelle. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) CORPORATIONS / BANKRUPTCY: Davis v. Yageo Corp., 04-16911 (9th Cir. Mar. 2, 2007). These consolidated cases arose out of a corporate dispute between majority and minority shareholders over the minority shareholder's right to elect two of five directors to the Long Life Noodle Company's board of directors. Plaintiff Dux Capital Management Corporation and its agent, Jerry Davis, alleged that the defendants, Yageo Corporation. and certain of its subsidiaries and employees who controlled the board of directors of the Long Life Noodle Company ("LLNC"), placed the corporation into bankruptcy without considering alternatives that may have yielded greater value for the corporation and its shareholders. The defendants petitioned for bankruptcy to prevent the plaintiffs, who were minority shareholders, from participating in the governance of the corporation. In bankruptcy, the equity of the minority shareholders was wiped out and the assets of the corporation were sold to one of Yageo's subsidiaries, Equity Plus Securities, Ltd., a secured creditor of LLNC. Follow a jury trial, defendants were found liable for breach of fiduciary duty. On appeal, defendants argued that plaintiffs lacked standing to sue as assignees of the corporate claim and that their breach of fiduciary duty claims were preempted by federal bankruptcy law and barred by res judicata. Plaintiffs cross-appealed the district court's damage calculations and its determination that they did not have standing to assert the claims of minority shareholders. The plaintiffs filed a separate appeal of the district court's refusal to entertain their Fed. R. Civ. P. 60(b) motion for post-judgment relief. In a related case, the plaintiffs appealed from the district court's order affirming the bankruptcy court decision in an adversary proceeding against debtor Chen (a founder of LLNC) and the trustee of Chen's bankruptcy estate, E. Lynn Schoenmann. The USCA affirmed the district court on all issues. B. Fletcher (author) and Berzon, Circuit Judges, and Trager, District Judge. R. Meadow of Los Angeles, CA, for defendants; R. Patula of San Francisco, CA, for plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) SECURITIES FRAUD / SENTENCING: USA v. Zolp, 05-50882 (9th Cir. Mar. 13, 2007). Zolp was a major participant in a "pump-and-dump" scheme (i.e. the touting of a stock through false and misleading statements before dumping it). He pled guilty after a federal grand jury indicted him on three counts of securities fraud in violation of 15 USC Secs. 78j(b) and 78ff and 17 CFR Sec. 240.10b-5. His plea agreement stipulated to some sentencing factors, including a base offense level and several adjustments. The agreement did not, however, stipulate actual or intended loss from the fraud or the method of loss calculation under Sentencing Guidelines Sec. 2B1.1. The agreement also required Zolp to cooperate with the government in pursuit of other participants in the scheme, in exchange for which the government agreed to mention any such cooperation at sentencing and to move for a downward departure under Guidelines Sec. 5K1.1. Zolp provided extensive cooperation which resulted in the government apprehending Lampert, the orchestrator of the stock fraud. The government fulfilled its bargain by moving for a six-level downward departure in Zolp's sentence. The district court sentence Zolp to 72 months imprisonment, three years of supervised release, and a $100 special assessment. This sentence included an upward departure under Sec. 2B1.1 for financial loss inflicted by the fraud. The district court did not grant the government's requested departure pursuant to Sec. 5K1.1, but, instead, in consideration of Zolp's cooperation with the government, exercised its discretion under USA v. Booker, 543 US 220 (2005), and reduced his overall sentence by four year. On appeal, Zolp challenged the district court's factual finding that the involved stock was "worthless" after the fraud came to light, and the district court's decision to consider Zolp's cooperation only as part of the larger analysis under 18 USC Sec. 3553(a) and not as part of the court's advisory guidelines calculation. On the first issue, the USCA vacated and remanded. On the second issue, the USCA affirmed. The district court's factual finding that shares of the stock were "worthless" after the fraud came to light was clearly erroneous. Kleinfeld, Fisher, and Smith (author), Circuit Judges. DFPD E. Newman of Los Angeles, CA, for the defendant-appellant; AUSA E. Lindsay of Los Angeles, CA, for the plaintiff-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) TELECOMMUNICATIONS / ZONING: Sprint Telephony v. County of San Diego, 05-56076 (9th Cir. Mar. 13, 2007). Sprint Telephony sought an injunction to prevent San Diego County from enforcing its Wireless Telecommunications Facilities zoning ordinance ("WTO"). The district court granted a permanent injunction, agreeing with Sprint that the WTO's regulation of wireless facility placement violated Sec. 253(a) of the Telecommunications Act of 1996. But it also held that Sec. 253(a) did not create a private right of action and thus denied Sprint's 28 USC Sec. 1983 claim for money damages and attorney's fees. Sprint appealed the denial of its Sec. 1983 claim, and the County cross-appealed seeking reversal of the order granting the permanent injunction. The USCA affirmed. It held that the burdens imposed by the WTO were sufficient to sustain a facial challenge under Sec. 253(a) and that Congress did not intend to permit enforcement of Sec. 253(a) through a Sec. 1983 damages action. Bright (author), Tashima, and Bea, Circuit Judges. D. Pascucci of San Diego, CA, for the plaintiff; T. Bunton of San Diego, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) ENVIRONMENTAL LAW / CERCLA: Department of Toxic Substances Control v. Burlington Northern & Santa Fe Railway Company, 03-17125 (9th Cir. Mar. 16, 2007). The now-defunct Brown and Bryant ("B&B") owned and operated a facility at which toxic chemicals were stored and distributed. Part of the land on which the operation was located was owned by two railroad companies, and some the chemicals were supplied and delivered to the facility by Shell Oil Company. Because toxic chemicals remaining at the facility threatened groundwater and may continue to do so in the future, the U.S. Environmental Protection Agency and California's Department of Toxic Substance Control ("DTSC") spent considerable money to clean up the site and may need to spend more in the future. The two agencies sought to recover these response costs under CERCLA, but the district court held the railroads and Shell liable for only a minor portion of the total cleanup costs. B&B was defunct by that time, and so could not contribute to cleanup costs. Seeking to hold the railroads and Shell jointly and severally liable for the entire judgment, the agencies appealed. Shell cross-appealed, claiming that it was not an "arranger" under CERCLA, Sec. 9607(a)(3), and thus not a party on whom any cleanup liability can be imposed. The USCA reversed the portion of the judgment that declined to impose full joint and several liability on the railroads and Shell and affirm the portion of the judgment that imposed liability on Shell as an arranger. B. Fletcher, Gibson, and Berzon (author), Circuit Judges. A. Avila of Washington, DC, for the appellant EPA; DAG R. Sato of Sacramento, CA, for the California's DTSC; J. Barg of San Francisco, CA, for the railways; M. Johnson of San Francisco, CA, for Shell Oil Company. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) ENVIRONMENTAL LAW: San Francisco Baykeeper v. Cargill Salt Division, 04-17554 (9th Cir. Mar. 8, 2007). San Francisco Baykeeper and Citizens Committee to Complete the Refuge (collectively "Baykeeper") filed this citizen suit under the Clean Water Act ("CWA") against Cargill Salt Division and Cargill, Inc. (collectively "Cargill"). Baykeeper alleged that Cargill discharged pollut-ants into "waters of the United States" without a permit. The body of water into which Cargill allegedly discharged waste is a non-navigable, intrastate pond, not determined to be a "wetland," that collects polluted runoff within Cargill's waste containment facility located near the edge of San Francisco Bay. The district court granted summary judgment in favor of Baykeeper after determining that the Pond qualifies as waters of the United States because it is adjacent to protected waters of the United States-namely, Mowry Slough. Cargill then brought this appeal. Because mere adjacency provides a basis for CWA coverage only when the relevant body of water is a "wetland," and no other reason for CWA coverage of Cargill's Pond was supported by evidence or was properly before the USCA, the USCA reversed the summary judgment. Canby (author), Hawkins, and Gould, Circuit Judges. J. Barg of San Francisco, CA, for the defendants-appellants; D. Purcell of San Francisco, CA for the plaintiffs-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 9) ENVIRONMENTAL LAW / NATIVE AMERICANS: Navajo Nation v.
U.S. Forest Service, 06-15371 (9th Cir. Mar. 12, 2007).
The San Francisco Peaks of the Coconino National Forest in northern
Arizona have long-standing religious significance to Indian tribes
of the American Southwest. The Arizona Snowbowl is a ski area on
Humphrey's Peak, the highest and most religiously significant of
the San Francisco Peaks. After preparing an Environmental Impact
Statement ("EIS") the Forest Service approved a proposed
expansion of the Snowbowl's facilities, one component of which would
enable the Snowbowl to make artificial snow from recycled sewage
effluent. The plaintiffs challenged the Service's approval of the
expansion under the Religious Freedom Restoration Act ("RFRA"),
the National Environmental Protection Act ("NEPA"), and
the National Historic Preservation Act ("NHPA"). Following
a bench trial, the district court held that the proposed expansion
did not violate RFRA and granted the defendants summary judgment
on the plaintiffs' NEPA and NHPA claims. The USCA reversed in part.
It held that the Service's approval of the proposed expansion of
the Snowbowl, including the use of treated sewage effluent to make
artificial snow, violated RFRA. It also held that that the Forest
Service's Final EIS did not fulfill its obligations under NEPA because
it neither reasonably discussed the risks posed by the possibility
of human ingestion of artificial snow made from treated sewage effluent
nor articulated why such discussion was unnecessary. The USCA affirmed
the grant of summary judgment to the appellees on the appellants'
remaining NEPA claims and their NHPA claim. W. Fletcher (author)
and Rawlinson, Circuit Judges, and Henderson, District Judge.
H. Shanker of Tempe, AZ, for the appellants; R. Dougan of Washington,
DC, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
11) THE FERES DOCTRINE: McConnell v. USA, 05-15025 (9th Cir. Mar. 8, 2007). The sole issue on appeal in this case was whether the Feres doctrine, which prohibits suit against the government for injuries that are incident to military service, barred the ap-pellants' civil suit against the United States for the death of their son, Lt. McConnell, in a waterskiing accident. The USCA determined that under Circuit precedent the facts that Lt. McConnell's use of the boat was a benefit of his status as a service member and that the alleged negligence was subject to military orders and regulations compelled it to affirm the district court's grant of summary judgment to the government. Judge Gould concurred in the majority's opinion which he thought accurately reflected prior Circuit precedent and its application here. However, he was left with the concern that Circuit precedent interpreting the scope of the Feres doctrine create an injustice. He thought the justifications for the doctrine as applied to the death of Lt. Connell were slim, for it is unrealistic for Circuit precedent to suggest that dismissal of the claim here is needed to foster military discipline. In Judge Gould's view, it would be appropriate for an en banc panel to reassess the scope of the Feres doctrine. He also thought the many might welcome the Supreme Court's clarification of the doctrine's application in the case of military-sponsored recreational programs. T.G. Nelson, Gould (concurring), and Callahan (author), Circuit Judges. D. Abney of Mesa, AZ, for the plaintiffs-appellants; AUSA J. Hair of Phoenix, AZ, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) TORTS: Dutra v. USA, 05-36146 (9th Cir. Mar. 5, 2007). The United States appealed the district court's judgment awarding damages in this Federal Torts Claims Act ("FTCA") suit brought by Jose Dutra, by and through his guardian, Commencement Bay Guardianship Services, and Misty Dutra, individually and as mother of Jose ("appellees"), for injuries sustained during Jose's delivery. The United States argued that the district court erred when it refused its request to enter a judgment that provides for the periodic payment of Jose's future economic damages, pursuant to Wash. Rev. Code Sec. 4.56.260. The USCA reversed and remanded. The district court erred in failing to apply Sec. 4.56.260 after the U.S. requested it to do so. The FTCA requires the district court to apply Washington law, under which, in certain personal injury actions for future economic damages, "the court or arbitrator shall, at the request of a party, enter a judgment which provides for the periodic payment … of the future economic damages. Wallace, Wardlaw (author), and Fisher, Circuit Judges. AUSA D. Roberts of Seattle, WA, for the defendant; J. Holman of Seattle, WA, and J. Galbraith of Tacoma, WA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) CLASS ACTIONS / JURISDICTION: McAtee v. Capital One,
F.S.B., 07-55065 (9th Cir. Mar. 16, 2007). McAtee,
a California citizen, filed an amended complaint in California state
court before the effective date of the Class Action Fairness Act
of 2005 ("CAFA"), naming as defendants Capital One, Capital
One Services, and John Doe defendants 1 to 20. After the effective
date of CAFA, McAtee amended her complaint to substitute Capital
One Bank for one of the Doe defendants. Capital One Bank then removed
the action to federal district court based on the supposed authority
of CAFA. Capital One Bank argued that the substitution "commenced"
a civil action within the meaning of CAFA, and that CAFA thus applied
to McAtee's suit and authorized removal. The district court remanded,
holding that McAtee's action commenced upon the filing of the original
complaint. The USCA affirmed. Because the action was commenced before
its effective date, CAFA and its removal provisions did not apply.
Specifically, CAFA's provision amending 28 USC Sec. 1447(d) to allow
appellate review of a district court's remand order did not apply.
In its unamended form as applicable to this appeal, Sec. 1447(d)
provides that the USCA has no jurisdiction to review a district
court's remand order. The USCA thus dismissed Capital One Bank's
appeal for want of jurisdiction. Hug, Brunetti, and W. Fletcher
(author), Circuit Judges. A. Ferrigno of San Clemente, CA,
for the appellee; J. McGuire of Irvine, CA, for the appellants.
(Download
the full text of this decision at www.ce9.uscourts.gov/)
15) CLASS ACTIONS: Lowdermilk v. U.S. Bank National Assoc., 06-36085 (9th Cir. Mar. 2, 2007). At issue here was a matter of first impression: Under the Class Action Fairness Act of 2005 ("CAFA"), when the plaintiff as pled damages less than the jurisdictional amount, what must the defendant prove in order to remove the case to federal court? The USCA held that the party seeking removal must prove with "legal certainty" that the amount in controversy is satisfied, notwithstanding the prayer for relief in the complaint. The USCA concluded that the defendant here failed to meet this burden and thus affirmed the judgment of the district court. Dissenting, Judge Kleinfeld thought the case should be remanded to the district court for it to make the necessary determinations under a preponderance of the evidence standard. The majority had applied the more demanding standard of proof to a legal certainty. But the "legal certainty" or "good faith" test is more applicable where the complaint at issue specifies an amount in controversy lower than the jurisdictional minimum, not where the complaint fails to specify what the amount in controversy is. Thompson, Kleinfeld (dissenting), and Bybee Ikuta (author), Circuit Judges. T. Volpert of Portland, OR, for the petitioners; J. Koch of Portland, OR, for the respon-dents. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) ATTORNEY CLIENT PRIVILEGE: In re Napster, Inc., 06-15886 (9th Cir. Mar. 14, 2007). At issue on this appeal was whether the district court properly ordered the disclosure of privileged attorney-client communications under the crime-fraud exception. The USCA held that in a civil case the district court must allow both the party seeking discovery of the communications and the party asserting the privilege to present evidence relevant to the privilege and the exception, and must weigh that evidence before ordering outright disclosure. The USCA further held that in a civil case, when the district court is asked to order outright disclosure, the burden of proof on the party seeking to vitiate the privilege is preponderance of the evidence. The USCA concluded that the appellees here failed to make the requisite evidentiary showing to support a finding that the crime-fraud exception applies. The USCA thus reversed and remanded for further proceedings consistent with the USCA's opinion. Fernandez, W. Fletcher (author), and Rawlinson, Circuit Judges. R.B. Rich of New York, NY, for the appellants; D. Collins of Los Angeles, CA for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 17) ATTORNEYS' FEES: Welch v. Metropolitan Life Insurance Company, 04-56768 (9th Cir. Mar. 6, 2007). Welch appealed the district court's order awarding her attorneys' fees under 29 USC Sec. 1132(g)(1). She disputed the district court's decisions to award fees at an hourly rate of $250, to apply across-the-board reductions in the number of hours requested because Welch's attorneys block billed and billed in quarter-hour increments, and to disallow time incurred for discrete tasks such as attorney conferences. The USCA affirmed the district court's fee award in most respects but reversed in part, holding that the district court erred in setting Welch's counsel's hourly rate at $250 and in imposing a 20% across-the-board reduction for block billing. It remanded for a new determination of the award. Fisher (author) and Callahan, Circuit Judges, and Collins, District Judge. L. Kantor of Northridge, CA, for the plaintiff; E. McDonough of Los Angeles, CA, the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) CHILD ABUSE: Preschooler II v. Davis, 04-16891 (9th Cir. Mar. 21, 2007). This case arose from the claimed physical abuse of a four-year old disabled child in a public school setting. The child and his mother filed suit against the state, school district, school board and various school personnel ("Officials") under the Americans with Disabilities Act, the Rehabilitation Act, the Individuals with Disabilities Education Act, and 42 USC Sec. 1983. The plaintiffs claimed abuse ranging from being beaten, slapped, and body slammed to unexplained bruises and shoeless walks from the school bus to the classroom. The district court denied the Officials' motion to dismiss based in part on qualified immunity. On this interlocutory appeal, the Officials properly raised only the issue of qualified immunity for the Sec. 1983 claims. The USCA affirmed in part and reversed and remanded in part. Because certain of the allegations, such as the unexplained bruising and shoeless walks, did not rise to the level of constitutional claims, it reversed the district court's denial of qualified immunity on those claims. It affirmed the district court's denial of qualified immunity on the remaining claims. Tashima and McKeown (author), Circuit Judges, and Ezra, District Judge. M. Ferrario of Las Vegas, NV, for the appellants; N. Pearson of Las Vegas, NV, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) AMERICANS WITH DISABILITIES ACT: Molski v. M.J Cable, Inc., 05-55347 (9th Cir. Mar. 23, 2007). Molski appealed the district court's denial of his motion for a new trial following a jury verdict in favor of M.J. Cable Inc., owner of Cable's Restaurant ("Cable's"). Molski, who is paraplegic, sued Cable's for violations of the Americans with Disabilities Act ("ADA") and California's Unruh Civil Rights Act ("Unruh Act"), alleging that Cable's failed to accommodate the disabled. Although Molski provided uncontradicted evidence that Cable's did not identify and remove architectural barriers, the jury returned a verdict for the restaurant. The district court denied Molski's motion for a new trial, speculating that the jury could have reasonably concluded that because of Molski's record of litigiousness, he was a "business" and not an "individual" entitled to the ADA's protections. The USCA reversed. It found that the record provided no evidence whatsoever for the jury's verdict. The district court thus abused its discretion in denying Molski's motion for a new trial. The USCA thus reversed the district court's denial of the motion, vacated the judgment against Molski, including that for incurred costs, and remanded for a new trial. Ferguson (author), Siler, and Hawkins, Circuit Judges. T. Frankovich of San Francisco, CA, for the plaintiffs; C. Beardsley of Bakersfield, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) EMPLOYMENT DISCRIMINATION: Gambini v. Total Renal Care, Inc., 05-35209 (9th Cir. Mar. 8, 2007). Gambini ap-pealed the district court's denial of her renewed motion, alternatively seeking judgment as a mater of law and a new trial, following a jury verdict for her former employer Total Renal Care, d/b/a DaVita. Gambini originally brought suit in Pierce County Superior Court in Tacoma, Washington, charging that DaVita discriminated against her in violation of the Washington Law Against Discrimination and the Family Medical Leave Act ("FMLA"). DaVita then timely removed the case to the U.S. District Court for the Western District of Washington, where DaVita prevailed at trial. The USCA affirmed as to Gambini's FMLA, but reversed and remanded as to her Washington Law claim. Because the only purported errors ascribed to the verdict on Gambini's FMLA claim related to jury instructions and because the USCA has rejected those challenges, it affirmed as to that claim. But as to Gambini's claim under Washington Law, the error in instructing the jury that it identified here infected the verdict on that claim, requiring a remand for a new trial rather than the entry of judgment in Gambini's favor as a matter of law. Goodwin, and Kozinski, Circuit Judges, and Shadur (author), District Judge. M. Subit of Seattle, WA, for the plaintiff; P. Buchanan or Seattle, WA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) EMPLOYEE BENEFIT PLANS / FRCP 5: Employee Painters' Trust v. Ethan Enterprises, 05-35270 (9th Cir. Mar. 16, 2007). Several trusts that administer employee benefit plans sued for delinquent contributions. Appellants, Ethan Enterprises and two of its officers, failed to participate in much of the litigation, and a default judgment was entered against them for roughly one million dollars. The district court denied Ethan and the individually-named defendants relief from the judgment. The USCA affirmed, albeit for a different reason with respect to each: The company violated the local rule requiring it to be represented by counsel, and it was proper to enter judgment against it. The individually-named defendants failed to answer an amended complaint properly served under Fed. R. Civ. Proc. 5, so default was proper against them. The applicability of Rule 5 in determining proper service of an amended complaint escaped both the parties and the district court. The USCA thus took this opportunity to clarify that an amended complaint can often be served in the same manner as any other pleading if the original complaint is property served and the defendants appeared in the first instance. Rymer, Berzon (author), and Tallman, Circuit Judges. R. Urmston of Seattle, WA, for the appellants; R. Bohrer of Seattle, WA, for the appellees (Download the full text of this decision at www.ce9.uscourts.gov/) 22) WORKERS COMPENSATION: Siaperas v. Montana State Compensation Insurance Fund, 05-35459 (9th Cir. Mar. 27, 2007). Siaperas severely injured her back on August 17, 1996, while working for High Plains Pizza in Dillion, Montana. She filed a workers' compensation claim and was determined to be "permanently totally disabled" pursuant to Sec. 39-71-702, Montana Code. The State of Montana Mutual Insurance Fund ("State Fund"), as the insurer of Siaperas' employer, accepted liability for Siaperas' injury and computed her disability rate to be $369.23 (2/3rds her $506.66 average current earnings ("ACE")). But, after Siaperas' bonuses came to light, the State Fund recognized that her ACE was $759.99 and that her disability rate should have been $506.66. However, Montana law capped workers' compensation benefits at $384 per week; thus the underpayment amounted to $14.77 per week. When Siaperas sought Social Security Disability Insurance benefits ("SSDI"), an ALJ found her to be totally disabled as of February 6, 1997 for purposes of SSDI. The State Fund then reduced her workers compensation benefits by $145.37, an amount equal to 50% of her SSDI. The State Fund then notified Siaperas that she had been overpaid benefits totaling $25,397.59. Subsequently, an adjuster for the State Fund notified her that a recalculation showed her overpayment to be the still higher figure of $28.299.17. Siaperas unsuccessfully contested the State Fund's calculations before the Montana Workers' Compensation Court. She then filed a declaratory judgment action in the U.S. District Court, where the magistrate ruled in favor of the State Fund. The USCA affirmed. The State Fund executed a reverse offset against Siaperas' SSDI. This offset totaled 50% of Siaperas' SSDI, which was authorized by Montana law. Fisher and Tallman, Circuit Judges, and Mills (author), District Judge. R. Kelleher of Butte, MT, for the plaintiff-appellant; C. Adams of Helena, MT, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) LABOR LAW / IMMIGRATION: Incalza v. Fendi North America, Inc., 04-57119 (9th Cir. Mar. 6, 2007). In June 1990, Incalza, a native and citizen of Italy with two years of business education, began working as a sales associate for Fendi in Rome. Ap-proximately six months after his employment started, Fendi offered him a sales position in its New York store. Paola Fendi, the head of the company, assured him that his employment would be secure as long as he continued to perform well. Incalza accepted the offer and moved to the United States on an E-1 visa secured with Fendi's assistance. Incalza worked at Fendi's New York store from 1990 until 2000. In August 2000, he was promoted to manager of Fendi's Beverly Hills store. During his tenure in Beverly Hills, he consistently received positive performance reviews. There was considerable evidence, however, that his supervisor, King, did not like him and would have liked to replace him. In mid-2002, French nationals purchased a majority interest in Fendi. Fendi's immigration counsel advised his client that, because the company was now French owned, the two employees, Incalza and Graziani, who held E-1 visas would now need H1-B visas. Fendi then requested that the counsel filed an HI-B petition on behalf of Graziani, but not also Incalza. Graziani was granted an HI-B visa. King, in the presence of the human resources director, fired Incalza on January 20, 20003, telling him, falsely, that nothing could be done to remedy his visa problems. Incalza sued in California Superior Court claiming that he was wrongfully terminated in violation of an implied contract that he would be fired only for good cause, and because of his Italian heritage, in violation of the Fair Employment and Housing Act. Fendi removed the case to federal court on the basis of diversity juris-diction, and moved for summary judgment. It argued that Incalza's claims lacked merit because it was compelled by the Immigration Reform and Control Act of 1986 ("IRCA") to terminate him when it discovered that his E-1 visa was no longer valid. It further argued that California law, to the extent it required a different result, was preempted. The district court denied the motion. At trial, Incalza introduced evidence that 1) Fendi's policy was not to terminate employees without good cause, 2) the custom of the fashion industry was not to terminate employees without good cause, 3) Incalza was employed at Fendi for 13 years, and 4) Fendi management gave Incalza oral assurances of continued employment. The jury found for Incalza on the implied contract claim, but for Fendi on the discrimination claim. It awarded Incalza $1,088,440. The jury was instructed that Fendi could discharge an employee in good faith and for a fair reason, but that it should find for Incalza if it found that the state reason was simply a pretext. Fendi moved for a new trial, and the district court denied the motion. Fendi appeal. On appeal, the issues were whether the IRCA preempts California labor laws, and whether the district court abused its discretion in denying the defendant's motion for a new trial. The USCA held that California law, as applied in this case, was not preempted by IRCA. It further held that the district court did not abuse its discretion in finding that the jury's verdict was supported by sufficient evidence because Incalza met his burden of proving pretext. Reinhardt (author), Brunetti, and Kozinski, Circuit Judges. G. Schaerr of Washington, DC, for the appellant; C. Shegerian of Beverly Hills, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) SOCIAL SECURITY: Parra v. Astrue, 04-57046 (9th Cir. Mar. 23, 2007). In 1996, Congress amended the Social Security Act to preclude an award of disability benefits where drug or alcohol abuse is "a contributing factor material to the Commissioner's determination that the individual is disabled." 42 USC Sec. 423(d)(2)(C). An issue left open by prior Ninth Circuit opinions was which party carries the burden of proof on this substance abuse issue. Consistent with other Circuits that have considered the issue, the USCA held that when evidence exists of a claimant's drug or alcohol abuse, the claimant bears the burden of proving that his substance abuse is not material contributing factor to his disability. Because the claimant here failed to carry that burden, the USCA affirmed the Commissioner's denial of benefits. Hall (author), O'Scannlain, and Callahan, Circuit Judges. A. Koenig of Ventura, CA, for the appel-lant; L. Noteware of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) FOSTER CHILDREN: Katie A. v. Los Angeles County, 06-55559 (9th Cir. Mar. 23, 2007). Defendants, the Director of the California Department of Health Services ("DHS") and the Director of the California Department of Social Services ("DSS"), appealed from the district court's grant of a preliminary injunction ordering them to screen members of a statewide class of foster children and, where medically necessary, provide the children with the forms of mental health care known as "wraparound services and therapeutic foster care." The district court found that "the early and periodic screening, diagnostic, and treatment services" provisions of the Medicaid Act obligate the State of California to provide wraparound services and therapeutic foster care to Medicaid-eligible children under 21, and that the State did not provide these forms of assistance, "as such." The USCA held that the district court abused its discretion by relying on an erroneous legal interpretation of the federal Medicaid statute in granting plaintiffs' motion for a prelimi-nary injunction. It thus reversed the preliminary injunction and remanded for further proceedings. Siler, Tashima (author), and Bea, Circuit Judges. DAG S. Goldsmith of Los Angeles, CA, for the defendants; R. Newman of Los Angeles, CA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Fedunyak v. Gonzales, 04-71914 (9th Cir. Mar. 2, 2007). Fedunyak, a Ukrainian national, petitioned for review of a BIA decision denying asylum and withholding of removal. Although the Immigration Judge found that Fedunyak had suffered sufficient persecution to demonstrate that he would likely be tortured if he was returned to the Ukraine and thus was entitled to relief under the Convention Against Torture, a majority of the BIA panel declined to find that Fedunyak's persecution was an account of his political opinion. Because the record compelled the finding that Fedunyak's protests against official corruption constituted political opinion, the USCA granted the petition for review and remanded for further proceedings. Fedunyak suffered past persecution because of his political opinion and he showed a genuine and well-founded fear of future persecution should he return to the Ukraine. He was thus eligible for asylum and entitled to withholding of removal. The USCA remanded the case to the BIA for the Attorney General to exercise his discretion under 8 USC Sec. 1158(b) as to whether to grant asylum. Gibson, Fisher (author), and Callahan, Circuit Judges. T. Edwards of San Diego, 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/) 27) IMMIGRATION: Malta-Espinoza v. Gonzales, 04-71140 (9th Cir. Mar. 2, 2007). (The memorandum filed on June 30, 2005 has been withdrawn and replaced by the this opinion.) The petitioner, a native and citizen of Mexico and a permanent resident of the United States, sought review of a BIA order holding that his state-law conviction for stalking rendered him removable under 8 USC Sec. 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. Reviewing the matter de novo, the USCA granted the petition for review, reversed the BIA's decision, and remanded for further proceedings. It found that the petitioner's conviction for stalking did not qualify as an aggravated felony and that necessarily invalidated the Immigration Judge's ruling that the petitioner was statutorily ineligible for cancellation of removal. Further proceeding were necessary in that regard. Dissenting, Judge Duffy thought that the majority had essentially decided that courts cannot rely on the words of a defendant's guilty plea to mean exactly what they say-here that, despite a restraining order against him, the petitioner repeatedly followed, harassed and made a credible threat with the intent that his victim be placed in reasonable fear for her safety and the safety of her immediate family. Schroeder and Canby (author), Circuit Judges, and Duffy (dissenting), District Judge. L. Rosenberg of Darnestown, Maryland; W. Erb of Washington, DC, for the respon-dent. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) MEDICAL MARIJUANA: Raich v. Gonzales, 03-15481 (9th Cir. Mar. 14, 2007). Plaintiff-appellant Angel Raich is a seriously ill individual who uses marijuana for medical purposes on the recommendation of her physician. Such use is permitted under California law. The remaining plaintiffs-appellants assisted Raich by growing marijuana for her treatment. The appellants sought declaratory and injunctive relief based on the alleged unconstitutionality of the Controlled Substances Act, and a declaration that medical necessity precludes enforcement of the Act against them. The district court denied the appellants' motion for a preliminary injunction. The USCA heard the matter on remand following the Supreme Court's decision in Gonzales v. Raich, 125 S.Ct. 2195 (2005). The USCA affirmed the district court. It found that Raich had not demonstrated a likelihood of success on the merits of her action for injunctive relief. First, it held that Raich's common law necessity defense is not foreclosed by the Act or by USC v. Oakland Cannabis Buyers' Cooperative, 532 US 483 (2001), but that the necessity defense does not provide a proper basis for injunctive relief. Second, although changes in state law reveal a clear trend towards the protection of medical marijuana use, the USCA held that the asserted right has not yet grained the traction on a national scale to be deemed fundamental. Third, the USCA held that the Act, a valid exercise of Congress's commerce power, does not violate the Tenth Amendment. Finally, the USCA declined to reach Raich's argument that the Act, by its terms, does not prohibit her possession and use of marijuana because this argument was not raised below. Judge Beam dissented from what he termed the USCA's "expansive consideration" of the doctrine of common law necessity as well as from several of its factual findings and legal conclusions. Pregerson (author), Beam (dissenting in part), and Paez, Circuit Judges. R. Raich of Oakland, CA, for the plaintiffs; AUSA M. Quinlivan of Boston, MA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) FEDERAL RULE APPELLANT PRACTICE 4(B): USA v. Sadler, 06-10234 (9th Cir. Mar. 1, 2007). At issue here was the application of Eberhart v. USA, 126 S.Ct. 403 (2005) (per curiam), and Kontrick v. Ryan, 540 US 443 (2004), to FRAP 4(b). Kontrick and Everhart clarified that procedural rules formerly referred to as "mandatory and jurisdictional" may be, instead, "inflexible claim-processing rules," mandatory if invoked by a party but forfeitable if not invoked. The USCA held that Rule 4(b) is not jurisdictional, but is forfeited if not invoked. Here, however, the government properly objected to the untimeliness of the appeal. The USCA thus dismissed. Judge Bright concurred in the result that the defendant's untimely notice of appeal should be dismissed on the government's objection, which was first raised in its opening brief. But Judge Bright would add the caveat that circumstances could arise in a criminal appeal in which a federal court could properly reject the government's Rule 4(b) objection, made to the late filed appeal of a defendant. Bright (concurring), D.W. Nelson, and Berzon (author), Circuit Judges. H. Levitt of Tucson, AZ, for the appellant; AUSA C. Corlett of Tucson, AZ, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 30) FORFEITURE: Synagogue v. USA, 04-56894 (9th Cir. Mar. 6, 2007). As issue was whether 28 USC Sec. 2465(b)(1)(C) requires the government to disgorge interest earned on seized currency where the government returns the currency rather than initiating judicial forfeiture proceedings. The USCA answered "no" and affirmed the district court's judgment. Section 2465(b)(1) provides for the payment of interest only when a claimant substantially prevails in a judicial forfeiture proceeding. Here, the government commenced no judicial forfeiture proceeding but, instead, returned plaintiffs' funds allowing their filing of administrative claims. In such circumstances, they have no statutory right to receive interest under Sec. 2465(b)(1)(C). Cudahy, B. Fletcher, and Graber (author), Circuit Judges. E. Honig of Marina del Rey, CA, for the plaintiffs; AUSA J. Lee of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) SHACKLING PRETRIAL DETAINEES: USA v. Howard, 03-50524 (9th Cir. Mar. 27, 2007). This is an interlocutory appeal by criminal defendants challenging a requirement that pretrial detainees making their first appearance before a magistrate wear leg shackles. The district-wide shackling policy was implemented by the U.S. Marshals Service for the Central District of California after consultation with the magistrates. In each of these 15 consolidated cases, a magistrate denied the Federal Public Defender's motion for the defendant to appear without shackles at the initial appearance. The district court, citing safety concerns, affirmed the magistrates' shackling decision. The USCA affirmed for two reasons: The policy at issue concerns only proceedings conducted without the presence of a jury; and, it was adopted by the magistrates of the court following consultation with the Marshals Service to address legitimate security concerns in the Roybal Courthouse. Schroeder (author), Gould, and Clifton, Circuit Judge. DPD C. Gunn of Los Angeles, CA, for the defendants-appellants; AUSA B. Walker of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) ASSAULT / INTENTIONALLY SPITTING ON ANOTHER: USA v. Lewellyn, 06-30185 (9th Cir. Mar. 7, 2007). Lewellyn appealed his conviction for simple assault under 18 USC Sec. 113(a)(5) for intentionally spitting on a patient while on the grounds of the Veterans Administration Medical Center in Walla Walla, Washington. At issue on appeal was whether intentionally spitting on another person constitutes simple assault within the meaning of the statue. The USCA held that the statute encompasses such conduct under the theory of assault as an attempted batter. It thus affirmed the conviction. B. Fletcher and McKeown (author), Circuit Judges, and Schwarzer, District Judge. A. Rubin of Spokane, WA, for the defendant; AUSA T. Hopkins of Spokane, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) SEARCH & SEIZURE: USA v. Al Nasser, 05-10466 (9th Cir. Mar. 20, 2007). In this case the USCA affirmed the stop and sentencing of Al Nasser, an Iraqi, for smuggling aliens into the United States. Judge Ferguson agreed with the majority concerning the general rule that a "person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained." However, he dissented from the majority's decision that Al Nasser's movement was not so restrained. In his view, the conviction and sentence should be vacated, and the case remanded for the lower court to determine whether the officers had reasonable suspicion based on articulable facts at the time they stopped his vehicle. Ferguson (dissenting), Trott, and Kleinfeld (author), Circuit Judges. J. Park of Phoenix, AZ, for the appellant; AUSA G. Restaino of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) CHILD PORNOGRAPHY: USA v. Kelley, 05-10547 (9th Cir. March 1, 2007). Kelley's home computer was searched for im-ages of child pornography pursuant to a warrant based on information discovered during two unrelated computer searches for child pornography, demonstrating that Kelley had received nine emails with attachments depicting young boys in sexually explicit positions. He moved to suppress evidence obtained in the search after he was indicted for possessing child pornography in violation of 18 USC Sec. 2252A(a)(5)(B), and for receiving child pornography in violation of 18 USC Sec. 2252A(a)(2). Granting the motion, the district court found that probable cause was not established by proof of receipt of emails absent direct evidence about those who had sent them, Kelley's connection with the persons who owned the other computers on which email to his screen name appeared, or Kelley's having reached out in some way for the pornography attached to the transmissions. The government appealed, arguing that the district court improperly applied a bright-line rule for what is required to establish probable cause in a case involving possession of child pornography, whereas the totality of the circumstances, which it submits is the proper test, allows the reasonable inference that Kelley wanted to receive the offending emails. The USCA reversed. Since the district court's decision in this case, USA v. Gourde, 440 F.3d 1065, 1071 (9th Cir. 2006) (en banc), made clear that probable cause to search a computer for evidence of child pornography turns on the totality of the circumstances, including reasonable inferences. In this case, there is a reasonable inference from facts set out in the affidavit that Kelley was not an accidental recipient of emails with attachments containing illicit child pornography. As it concluded that it was fairly probable that child pornography Kelley willingly received would be found on his computer, the USCA reversed. Judge Thomas dissented. He said he could well understand the government's motivation, as child pornography is a scourge of our nation. But, he added, every hour, millions of unsolicited and deceptively disguised emails are sent to innocent computer users. Lowering the standards of probable cause to permit government intrusion into private residences based solely on proof of mere transmittal of unsolicited email constitutes an unwarranted erosion of the Fourth Amendment. O'Connor, Assoc. Justice (Ret.), Rymer (author), and Thomas (dissenting), Circuit Judges. AUSA A. Rosen of San Jose, CA, for the plaintiff-appellant; AFPD E. Falk of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) HOBBS ACT: USA v. Boyd, 06-50051 (9th Cir. Mar. 23, 2007). Boyd robbed Cash Plus at gunpoint of $26,000, an act for which he was convicted. He appealed, contending that the government failed to provide two requisite elements of a Hobbs Act conviction: 1) that Cash Plus was engaged in interstate commerce; and 2) that the robbery in any way obstructed, delayed, or affected interstate commerce. The USCA affirmed. The government proved that Cash Plus, although owned by a domestic California corporation, operated a Western Union money transfer business, cashed government checks, and provided ATM services that allowed customers to access bank accounts outside of California. Western Union money transfers generated in the Cash Plus store were cleared electronically through a clearing house in Missouri. The record showed that the robbery caused the Cash Plus store to close early the day of the robbery and left it without funds with which to open the next business day. The district court correctly concluded that the evidence was sufficient to permit any rational trier of fact to find beyond a reasonable doubt that Cash Plus was engaged in interstate commerce. Goodwin, Beezer, and Tallman, Circuit Judges. Per Curiam. M. Khouri of Costa Mesa, CA, for the defendant; AUSA D. Gaffney of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) EVIDENCE: USA v. Lopez, 05-30347 (9th Cir. Mar. 12, 2007). After the district court denied Lopez's pretrial motion to sup-press evidence found in his car, he pled guilty to possessing methamphetamine with intent to distribute in violation of 21 USC Sec. 841(a), but reserved the right to appeal the denial of his motion to suppress. He was sentenced to a term of incarceration of 135 months. On appeal, the USCA held that the police had probable cause to arrest Lopez as an accessory to another crime, and , while in custody, Lopez voluntarily consented to a search of his car. The USCA thus affirmed the district court's denial of the motion to suppress and the resulting conviction and sentence. Concurring, Judge Noonan noted that as Lopez did not offer an explanation of his role, the police could reasonably believe that they had in custody either the gunman himself or another participant in the drug conspiracy the gunman was trying to defend by his desperate assault on the police. Either way, probable cause was present and undiminished at the time that Lopez consented to the search of his car. W. Fletcher and Noonan (concurring), Circuit Judges, and Pollak (author), District Judge. B. Lessley of Eugene, OR, for the appellant; C. Stuckey of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) EVIDENCE / SENTENCING: USA v. Rendon-Duarte, 06-30200 (9th Cir. Mar. 12, 2007). Rendon-Duarte was sentenced to 70 months' imprisonment and 36 months' supervised release after a jury convicted him of one count of being a felon in possession of two firearms in violation of 18 USC Secs. 922(g)(1) and 924(a)(2). On appeal, he challenged the district court's admission of evidence under Fed. R. Evid. 404(b) of two prior incidents of gun possession to prove intent, knowledge and lack of mistake. He also challenged the district court's finding that his prior Alaska state court conviction of Assault in the Third Degree qualifies as a "crime of violence" under the Sentencing Guidelines. The USCA affirmed. Because a conviction under the Alaska statute qualifies clearly as a crime of violence under Section 4B1.2(a)(2), the district court's error did not substantially affect Rendon-Duarte's rights. B. Fletcher and McKeown, Circuit Judges, and Schwarzer (author), District Judge. A. Mendel of Anchorage, AK, for the defendant; AUSA J. Farrington of Anchorage, AK, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)
39) ILLEGAL POSSESSION OF FIREARM / IMMIGRATION: USA v. Latu, 05-10815 (9th Cir. Mar. 19, 2007). Latu entered the United Sates on October 9, 2002, and was required to depart on or before April 8, 2003. He overstayed and married a U.S. citizen. In July 2003, he filed an INS Form 1-485 application for adjustment of status. Under the current immigration statutes, his pending I-485 application did not affect his removability. On May 15, 2004, Maui Police officers discovered Latu in possession of a handgun, which had been manufactured in California and transported in interstate commerce before reaching Hawaii. At the time the weapon was found, the INS had not acted on Latu's application for adjustment of status. Latu was charged with two counts: Count One charged him with possessing a firearm in and affecting interstate commerce while being an alien who was illegally or unlawfully in the U.S., in violation of 18 USC Sec. 922(g)(5)(A). Count Two charged him with possessing the same firearm in and affecting interstate commerce while being an alien who had been admitted to the U.S. under a non-immigrant visa, in violation of 18 USC Sec. 922(g)(5)(B). Latu entered conditional pleas of guilty on both counts, preserving the right to appeal the district court's order denying his motions to dismiss. The USCA found that the district court committed no error when it denied Latu's motions to dismiss Count One, and affirmed Latu's conviction on that count. Latu met the definition of an alien "illegally or unlawfully" in the U.S. as interpreted by the administrative agency charged with enforcing the statute, and because the filing of an application for adjustment of status did not legalize Latu's presence. But, pursuant to the government's confession of error, the USCA reversed Latu's conviction on Court Two and remanded for resentencing. Fernandez, W. Fletcher, and Rawlinson (author), Circuit Judges. AFPD D. Gray of Honolulu, HI, for the appellant; AUSA E. Kubo of Honolulu, HI for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 40) HABEAS CORPUS: Robbins v. Carey, 05-17131 (9th Cir. Mar. 12, 2007). At issue was whether in the absence of a request from an unrepresented petitioner, a district court is required to consider, sua sponte, the option of staying and abeying a petition for a writ of habeas corpus where the petitioner has filed a "mixed" petition consisting of both exhausted and unexhausted claims. The USCA held that such a requirement would conflict with Pliler v. Ford, 542 US 225 (2004), and Rhines v. Weber, 544 US 269 (2005). It thus af-firmed the judgment of the district court. Wallace and Thomas (author), Circuit Judges, and Ezra, District Judge. D. Porter of Sacra-mento, CA, for the petitioner; J. Wolfe of Sacramento, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) HABEAS CORPUS: Barajas v. Wise, 06-15494 (9th Cir. Mar. 23, 2007). In August 1998, a Fresno County, California, Superior Court jury convicted the petitioner of conspiring to sell, possessing, transporting, and offering to sell heroin based on the testimony of an undercover informant. She was sentenced to three years in state prison. Her direct appeals failed, as did her state habeas petition. In February 2006, a federal district court granted her habeas petition, holding that the state trial court's refusal to order production of an informant's current and former addresses violated the Confrontation Clause. On appeal, the USCA concluded that clearly established federal law requires the prosecution to provide reasons specific to the case in litigation if it declines to disclose the names and addresses of key witnesses. In this case, the testimony of the informant represented the only evidence against the petitioner, and the state provided no reason specific to the case why it should not disclose the information. In accepting the state's arguments, the state court applied a standard that was objectively unreasonable. The USCA thus affirmed the grant of relief. Bright (author), D.W. Nelson, and Berzon, Circuit Judges. AAG R. Anderson of Sacramento, CA, for the appellant; J. Weisberg of Berkeley, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) HABEAS CORPUS: Summers v. Schriro, 05-16650 (9th Cir. Mar. 13, 2007). In this petition for federal habeas corpus brought under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the USCA held that an "of-right proceeding," available under Arizona Rule of Criminal Procedure 32 to criminal defendants who plead guilty, is a form of "direct review" within the meaning of 28 USC Sec. 2244(d)(1)(A). Because a Rule 32 of-right proceeding is a form of direct review, AEDPA's one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or until the expiration of the time for seeking such proceeding or review. The USCA thus reversed and remanded to the district court for further proceedings. W. Fletcher (author) and Rawlinson, Circuit Judges, and Selna, District Judge. D. Davis of Tucson, AZ, for the petitioner; S. Rollison of Tucson, AZ, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/)
44) HABEAS CORPUS: Irons v. Carey, 05-15275 (9th Cir. Mar. 6, 2007). The state appealed the district court's grant of habeas corpus to Irons. The district court granted relief after finding that there was insufficient evidence in the record to support the California Board of Prison Term's decision to deem Irons ineligible for parole in 2001. On appeal, the state argued that the district court erred in concluding that the Board's 2001 decision was not supported by "some evidence," and that the district court failed to afford the California state court decision upholding the Board's unsuitability determination the proper degree of deference required under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") The USCA reversed in light of In re Dannenberg, 34 Cal. 4th 1061 (Cal. 2005), and Sass v. California Board of Prison Terms, 461 F.3d 1123 (9th Cir. 2006), both decided after the district court issued its or-der in this case. Concurring, Judge Noonan noted that the proper resolution of this case involves the clash of two constitutional principles: First, Congress has the power to determine the jurisdiction of all federal courts; and, second, Congress does not have the power to determine how a federal court shall decide a case. The separation of these functions is part of our democratic system of government, Judge Noonan said. But, the AEDPA denies the judge the use of circuit precedent, denies development of Supreme Court and circuit precedent, denies the deference due the penumbra and emanations of precedent, and even denies the courts the power to follow the law as now determined by the Supreme Court-the precedent to be applied must have been in existence at the earlier moment when a state decision occurred. A more blinkered concept of law cannot be imagined, Judge Noonan thought. The development of doctrine is despised. That despisal is a direct legislative interference in the independency of the judiciary. He noted that it could be said that using Supreme Court decisions issued later than the relevant state court determination is a ban on the retroactivity of such decisions; and the Supreme Court has more than once announced constitutional decisions that are good for the future but cannot be read back into the past. However, for the Supreme Court to choose not to make its decisions retroactive is not the same as Congress choosing to do it. The later action is an interference with a prerogative that goes with wise judging. Whether to judge only for the future is for the judge to decide. Judge Reinhardt joined Noonan's concurrence. He added that, having granted the courts the authority to review state convictions under habeas powers, it seemed inconsistent with the fundamental obligations of judges to require them, except in unusual or exceptional circumstances, to rule for the state regardless of whether that violates the Constitution. Judge Fernandez also concurred, but wrote separately because he was not satisfied that there was no reason to continue to hold Irons in prison other than the circumstances of his callously senseless murder of another person for trivial reasons. While his answer to whether he still had the rage that led him to kill someone can easily be read in an innocuous manner, it need not be, and the Commission could interpret it to mean he might. In any case, Judge Fernandez saw nothing wrong with being very cautious about releasing a person from prison and onto society when he has committed the kind of crime that Irons committed and as flagitiously as he did it. Judge Fernandez also wished to point out that, while two members of this panel have decried that fact that the Circuit (and, probably, the Supreme Court) have deemed the AEDPA to be constitutional, the USCA is not attacking itself: rather, Judge Fernandez said his two colleagues merely wish to express their strongly-held views about the strictures of the AEDPA, without creating a conflict in the law of the Ninth Circuit. Reinhardt (author and concurring), Noonan (concurring), and Fernandez (concurring), Circuit Judges. AAG R Anderson of Sacrament, CA, for the respondent; AFD A. McClintock of Sacramento, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/) MEMORANDA
1) ATTORNEYS' FEES: In re Ventro Corporation Securities Litigation,
05-15849 (9th Cir. Mar. 26, 2007) (unpublished).
Brunetti, W. Fletcher, and Bea, Circuit Judges. 2) CONTRACTS / FRAUD / BUSINESS TORTS: Riverbank Oil Co.
v. Tosco Oil Corp., 05-15908 (9th Cir. Mar. 26, 2007) (unpublished).
Hug, W. Fletcher, and Bea, Circuit Judges. 3) BANKRUPTCY: In re Lambert, 05-55109 (9th Cir.
Mar. 22, 2007) (unpublished). Ferguson, Siler, and Hawkins,
Circuit Judges. 4) BANKRUPTCY / ATTORNEYS' FEES: In re Slatkin, 05-55382
(9th Cir. Mar. 19, 2007) (unpublished). Ferguson, Graber
and Ikuta, Circuit Judges. 5) TAXATION / FIFTH AMENDMENT: Major v. CIR, 06-72196
(9th Cir. Mar. 16, 2007) (unpublished). Kozinski, Leavy,
and Bybee, Circuit Judges. 6) MALICIOUS PROSECUTION / ANTITRUST / PATENT INFRINGEMENT:
Hydranautics v. FilmTec Corporation, 06-55182 (9th
Cir. Mar. 16, 2007) (unpublished). Fernandez, T.G. Nelson,
and Graber, Circuit Judges. 8) CONTRACTS / TORTS: Johnson Industrial Sales, Inc. v. Strema
Sales Corporation, 04-56257 (9th Cir. Mar. 16, 2007) (un-published).
Cudahy, Graber, and Ikuta Circuit Judges. Defense Lawyers Dismayed by 9th Circuit Ruling on Willful Ignorance Writing for a 10-judge majority, Kozinski said trial judges should
have broad discretion in instructing a jury that a defendant's willful
ignorance amounted to knowledge of criminal activity.
|
| Readers of 9th Circuit Update can receive online access to the full texts of Ninth Circuit published decisions on the same day such decisions are announed by the Court. Decisions are usually online by 10:00 a.m. Docket Sheets are also online, but Memoranda Decisions are not. This service can be reached at: www.ce9.uscourts.gov/ © 2000 - 2007. 9th Circuit Online. All rights reserved. |