 |
| 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) COPYRIGHT: Welles v. Turner Entertainment Co., 05-55742
(9th Cir. May 16, 2007). Beatrice Welles, the daughter of Orson
Wells, filed suit against Turner Entertainment Company and Entertainment
Acquisition Company seeking a declaratory judgment that Beatrice
owns the copyright and home video rights to the motion picture Citizen
Kane, and seeking an accounting of the royalties she claims she
is owed from the profits of the motion picture. The district court
granted summary judgment for the defendants. Finding that there
were triable issues of fact, the USCA vacated the district court's
summary judgment on Beatrice's claim for profit participation and
remanded that claim for further proceedings. Farris and Gould (author),
Circuit Judges, and Duffy, District Judges. S. Brown of San Francisco,
CA, for the plaintiff-appellant; D. Quinto of Las Angeles, CA, for
the defendants-appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
4) TAXATION: Hansen v. Dept. of Treasury, 05-16091
(9th Cir. May 7, 2007). Hansen, on behalf of himself and his son,
appealed the district court's dismissal of his complaint for failure
to state a claim upon which relief can be granted under Federal
Rule Civil Procedure 12(b)(6). His complaint requested: (1) a religious
exemption for social security self-employment tax under 26 USC Sec.
1402(g); (2) a declaration that, as applied to Hansen, portions
of Sec. 1402(g) violate the First Amendment's Free Exercise and
Establishment Clauses; (3) a declaration that he and his son are
not required to have or use a social security number; and (4) a
declaration that "various treasury regulations" are unconstitutional
because they discriminate against Hansen based on his religious
beliefs. Concluding that the district court lacked jurisdiction
over Hansen's statutory and constitutional Sec. 1402(g) claims,
the USCA vacated its Rule 12(b)(6) dismissal of these claims and
remanded with directions to enter an order dismissing the claims
for lack of subject matter jurisdiction. The USCA then affirmed
the dismissal of Hansen's remaining claims. Hawkins (author),
Thomas, and Clifton, Circuit Judges. J. Hansen of Las Vegas, NV,
for the appellants; J. Oppenheimer of Washington, DC, for the appellees.
(Download
the full text of this decision at www.ce9.uscourts.gov/)
6) TAX EVASION: USA v. Kayser, 06-50178 (9th Cir. May 31, 2007). Kayser appealed his conviction for tax evasion in violation of 26 USC Sec. 7201 for the year 2000. He maintained that the district court erred in failing to instruct the jury in accordance with his theory of defense. The USCA reversed and remanded, concluding that the requested instruction, which the district court denied, was supported by law and had sufficient foundation in the evidence. Dissenting, Judge Kozinski thought that in reversing the defendant's conviction, the majority created a defense against criminal tax liability which conflicts with established circuit precedent, and that it does so unnecessarily, as the defendant did not meet his burden to warrant the erroneous instruction. Judge Kozinski thus thought that majority eviscerated the evidentiary standard for proposed jury instructions by forcing a district court to give an instruction only supported by generalities and hypothetical possibilities. Reinhardt, Kozinski (dissenting), and Ikuta (author), Circuit Judges. D. Zugman of San Diego, CA, for the defendant-appellant; USCA B. Castetter of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) BANKRUPTCY: In re Harbin, 04-56799 (9th Cir. Filed April 25, 2007; amended May 8, 2007). Addressing two issues of first impression, the USCA first held that a bankruptcy court considering the feasibility of a plan or reorganization under 11 USC Sec. 1129(a)(11) must evaluate the possible effect of a debtor's ongoing civil case with a potential creditor, whether that litigation is pending at the trial level or on appeal. Second, it held that under limited circumstances, a bankruptcy court may exercise its equitable powers to grant retroactive approval of a post-petition financing transaction pursuant to 11 USC Sec. 364(c)(2). Cudahy (dissenting in part). Graber, and Ikuta (author), Circuit Judges. J. Morrell of San Diego, CA, for the defendant-appellant; L. Isaacson of Los Angeles, CA, for the appellee; D. Zaro of Irvine, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) BANKRUPTCY / TAXATION: Nichols v. Birdsell, 05-15554 (9th Cir. May 9, 2007). This case presented a new issue for the Circuit: whether the debtors' pre-bankruptcy application of their right to tax refunds to post-bankruptcy tax obligations constituted an asset that must be turned over the bankruptcy trustee pursuant to 11 USC Sec. 542. The debtors appealed from the district court's order denying their appeal from the bankruptcy court decision. In the underlying case, the bankruptcy court concluded that the prepetition application of the right to the tax refund was an asset as of the petition date, and that the debtors much therefore deliver to the trustee the value of the property under Sec. 542(a). The USCA agreed and affirmed the district court's order denying the debtors' appeal. Wallace (author), Cudahy, and McKeown, Circuit Judges. M. Fatta of Glendale, AZ, for the plaintiffs-appellants; T. Dake of Phoenix, AZ, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) SECURITIES FRAUD: Betz v. Trainer Wortham & Co., 05-15704 (9th Cir. May 11, 2007). At issue was whether Betz's federal securities fraud claim was barred by the statute of limitations. The USCA held that Betz's claim was not time barred and reversed the district court's summary judgment for the defendants. Once there exists sufficient indicia of fraud to cause a reasonable investor to inquire into whether he or she has been defrauded, the statute of limitations on a claim under Sec. 10(b) of the Securities exchange Act begins running when the investor, in the exercise of reasonable diligence, should have discovered the facts giving rise to his claim. In this case, the USCA could not say that, as a matter of law, a reasonable investor in Betz's position should have discovered the facts giving rise to her claim before July 11, 2001. Moreover, the defendants' express assurances that they would remedy the problems with Betz's account lulled Betz, who was not a sophisticated investor, into inaction and thus tolled the statute of limitations on her securities fraud claim. Noonan, Gould (author), and Rawlinson, Circuit Judges. J. Alioto of San Francisco, CA, for the appellant; S. Brody of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) ENVIRONMENTAL LAW: Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 06-35679 (9th Cir. May 22, 2007). At issue here was whether the issuance of a permit by the U.S. Army Corps of Engineers ("USACE") violates the Clean Water Act ("CWA"). The permit authorized Coeur Alaska, Inc., to discharge process wastewater containing tailings from its gold mine into a lake that is a navigable water of the United States. Coeur Alaska proposes to discharge daily 210,000 gallons of process wastewater containing 1,440 tons of tailings from its mine into Lower Slate Lake. The tailings in the discharge will raise the bottom elevation of the lake by 50 feet. A 90-foot high, 500-foot long dam will be built to contain the discharge and the area of the lake will be increased about three-fold. The USACE maintained that the permit was properly granted under CWA Sec. 404, which relates to the disposal of "fill material," and that it is not subject to the effluent restrictions of CWA Secs. 301 or 306. The plaintiffs maintained that that this mine disposed discharged must comply with the effluent restrictions of Sec. 301 and Sec. 306, and that any permit allowing discharge must be issued by the EPA. The district court held that the issuance of the permit was proper. The USCA reversed and remanded with instructions to vacate the permit. The USACE violated the CWA by issuing a permit to Coeur Alaska for discharges of slurry from the froth-flotation mill at the Kensington Gold Mine. EPA's performance standard for froth-flotation mills, promulgated pursuant to CWA Secs. 301 and 306, prohibits discharges from such operations into the navigable waters of the United States. No exceptions are provided by either the regulation or that statue. Even though the discharge in this case facially qualifies for the permitting scheme under CWA Sec. 404 because it will change the bottom elevation of Lower Slate Lake, it is prohibited by the clearly applicable and specific performance standard. The plain language and structure of the CWA demonstrate that EPA's performance standard gov-erns in this case. Hug (author), Tashima, and Graber, Circuit Judges. T. Waldo of Juneau, AK, for the plaintiffs-appellants; J. Stahr of Washington, DC, for the defendants-appellees; J. Burman of Boise, ID, for the defendants-intervenors-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) FAIR CREDIT REPORTING ACT: Dennis v. Experian Information Solutions, 04-56230 (9th Cir. May 7, 2007). At issue here was whether a credit reporting agency is liable under the Fair Credit Reporting Act when it relies on inaccurate information contained in public records. The USCA also considered the appropriate scope of a reinvestigation of a disputed report under 15 USCA Sec. 1681i. As it was satisfied that the defendant's investigation was sufficiently rigorous, it affirmed. Dissenting in part, Judge Kozinski agreed that it was reasonable for the defendant to rely on the Register entry in compiling its initial report on Dennis's credit history. But once Dennis disputed the accuracy of that record, it was obligated to do more. Kozinski (dissenting), O'Scannlain, and Bybee, Circuit Judges. Per Curiam. L. Dell of Los Angeles, CA, for the appellant; A. Frid of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) INTERNET LAW: Fair Housing Council v. Roommate. Com., LLC, 04-56916 (9th Cir. May 15, 2007). At issue here was the scope of immunity accorded to an online roommate matching service by the Communications Decency Act. ("CDA"), 47 USC Sec. 230(c). Reversing the district court in part and remanding, the USCA held that the CDA does not immunize the service for all of the content on its website and in its email newsletters. It remanded for a determination of whether its non-immune publication and distribution of information violated the 42 USC Sec. 3604(c). It also vacated the dismissal of the state law claims so that the district court could reconsider whether to exercise its supplemental jurisdiction in light of its ruling on the federal claims. The USCA denied the service's cross-appeal for attorneys' fees and costs; as the Fair Housing Councils prevailed on some of their arguments, their case is perforce not frivolous. Judge Reinhardt concurred in part and dissented in part. He joined the majority, except for its holding that the CDA immunizes the service from liability with respect to the statements contained in the "Additional Comments" section of users' profiles some of which expressly state the preference of landlords for tenants based on race, religion, gender, sexual orientation, and national origin. He would hold instead that none of the information that the Fair Housing Councils of San Fernando Valley and San Diego challenged satisfies the test for Sec. 230(c) immunity. Judge Ikuta concurred with parts one and three of the majority's opinion, and in its conclusion, but wrote separately to express his disagreement with section two of that decision. Binding circuit precedent, he said, have already addressed the question of when a website operator has jointly created and developed content so as to become an "information content provider." Unless a website operator directly provides "the essential published content," it is not an "information content provider." The result is robust immunity under Sec. 230(c). Reinhardt (dissenting in part), Kozinski (author), and Ikuta (concurring), Circuit Judge. G. Rhoades of Los Angeles, CA, for the appellants; T. Alger of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) PUBLIC UTILITIES: Golden Northwest Aluminum, Inc. v. Public Utility District No. 1 of Cowlitz County, 03-73426 (9th Cir. May 3, 2007). The petitioners sought review of the 2002-06 wholesale power rates set by the Bonneville Power Administration ("BPA") during its WP-02 rate proceeding. Two sets of petitioners maintained that BPA unlawfully inflated the rates charged to public utilities and cooperatives-BPA's "preference" customers. First, the Public Generating Pool and Pacific Northwest Generating Cooperative argued that BPA shifted onto preference customers the costs of supplying power to its direct-service industrial customers. Second, the Western Public Agencies Group, Public Power Council, and Public Utility District No. 1 of Grays Harbor argued that BPA shifted onto preference customers the costs of settling its obligations to its investor-owned utility customers. A third group of petitioners, Confederated Tribes of the Umatilla Indian Reservation and the Yakama Nation, argued that the WP-02 rates are not sufficient to satisfy BPA's fish and wildlife obligations. The USCA held that BPA acted lawfully when it allocated to its preference customers part of the cost of acquiring power to serve its direct-service industrial customers. However, consistent with its decision in Portland General Electric v. BPA, 01-70003 (9th Cir. 2007), the USCA held that BPA acted contrary to law when it allocated to its preference customers part of the cost of the settlement BPA reached with its investor-owned utility customers. It also held that BPA's fish and wildlife costs estimates and, by extension, the rates based on those estimates, were not supported by substantial evidence. It agreed with the Tribes that BPA failed to impose rates designed to recover its true fish and wildlife costs. Reinhardt, W. Fletcher (author), and Bybee, Circuit Judges. S. Seidman of Portland, OR, for the petitioner; R. B. Strong of Spokane, WA, for the intervenor; K. Casad of Portland, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)
15) LABOR CONTRACTS / ARBITRATION: Davis v. O'Melveny & Myers, 04-56039 (9th Cir. May 14, 2007). Davis appealed the district court's order dismissing her action and compelling arbitration under 9 USC Sec. 4 based upon an arbitration agreement with her former employer. On appeal, Davis challenged the enforceability of the arbitration agreement, contending that it is unconscionable under California law. Because the arbitration agreement is unconscionable under California law, the USCA reversed and remanded. McKeown and Berzon, Circuit Judges, and King (author), District Judge. P. Hart of Los Angeles, CA, for the plaintiff-appellant; A. KohSweeney of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) RETIREMENT BENEFITS: Gilliam v. Nevada Power Co., 04-17201 (9th Cir. May 31, 2007). At issue here was whether sev-erance pay should be included as "earnings" for purposes of calculating an employee's retirement benefits. The USCA found it was unpersuaded that the plain meaning of "wages and salary," for purposes of defining "earnings" in the Nevada Power Company ("NPC") Plan, included Gilliam's severance pay: "Wages and salary," as used in the definition of "earnings," includes only payment for services. Gilliam's severance pay was not for services, but for her voluntary termination of employment, confidentiality, non-competition, and waiver of claims against NPC. The USCA thus held that the district court did not err in holding that a plain reading of the NPA Plan's definition of "earnings" could not reasonably be interpreted to include severance pay given to an employee to no longer work, notwithstanding the fact that severance pay may be subject to federal income tax. Brunetti, O'Scannlain (author), and Trott, Circuit Judges. D. Marks of Las Vegas, NV, for the appellant; G. Mikesell of Las Vegas, NV, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) EMPLOYMENT DISCRIMINATION: Noyes v. Kelly Services, 04-17050 (9th Cir. May 29, 2007). At issue in this employment discrimination case was the plaintiff's burden to raise a triable issue of fact as to pretext under the McDonnell Douglas burden-shifting regime in the context of "reverse" religious discrimination. Noyes alleged that a supervisory employee at her former employer, Kelly Services, was a member of a small religious group, and that he repeatedly favored and promoted other members of that group. Noyes claimed that she was passed over for a promotion because she did not adhere to the religious beliefs of the group, and that a group member was promoted instead. She appealed the district court's order granting summary judgment in favor of Kelly Services on her Title VII disparate treatment claim and dismissing her state law claims for lack of subject matter jurisdiction. The USCA reversed the summary judgment as to Noyes' disparate treatment claim because the district court misapplied the applicable standard on summary judgment and because genuine issues of material fact exist as to pretext. It also reversed the dismissal of Noyes' state law claims and remanded with instructions to the district court to consider whether it may exercise diversity or supplemental jurisdiction over those claims. Hug and McKeown (author), Circuit Judge, and Moskowitz, District Judge. M. Jones of Nevada City, NV, for the plaintiff-appellant; T. Paketau of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) ERISA / DISABILITY PENSION PLANS: Opeta v. Northwest Airlines Pension Plan, 04-56719 (9th Cir. May 7, 2007). Opeta appealed the district court's judgment that he is not "totally and permanently" disabled, and thus ineligible for a disability pension benefit under the Northwest Airline Pension Plan for Contract Employees which is administered by Northwest Airlines and regulated by ERISA. At issue was whether the district court, in conducting a de novo review of the Plan's denial of benefits, abused its discretion by admitting evidence extrinsic to the administrative record. The USCA held that because the circumstances did not clearly establish that the evidence was necessary to the district court's review, the district court abused its discretion by admitting the evidence. The USCA reversed the district court's judgment and remanded for a grant of benefits under the Plan. Wallace, McKeown, and Wardlaw (author), Circuit Judges. L. Kantor of Northridge, CA, for the appellant; T. Ackland of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) ERISA / DISABILITY BENEFITS: Blankenship v. Liberty Life Assurance Company of Boston, 05-15977 (9th Cir. May 18, 2007). Liberty Life appealed the district court's award of disability benefits to Blankenship, following a court trial on his ERISA claims. It did not challenge the district court's ruling that Blankenship was entitled to long-term disability benefits, but argued that the disability benefits owed Blankenship should have been reduced by the amount of retirement benefits transferred to his IRA upon his retirement. Liberty also challenged the use of a 10.01% interest rate to calculate prejudgment interest. The USCA affirmed. Because Blankenship had the same type of possession (and control) of the funds once transferred into the Vanguard account that he would have had were the funds left with KPMG, he did not "receive" these funds from the purposes of offset under the Disability Plan. The district court thus properly held that Blankenship's award of disability benefits was not subject to reduction based on the distribution of his retirement benefits under the pension plans. In addition, the district court did not abuse its discretion in awarding prejudgment interest at a rate that exceeded the standard Treasury bill rate. Concurring, Judge Noonan thought that Vanguard did not completely meet the criteria of agency, and thus that Blankenship prevailed. Canby, Noonan (concurring), and Paez (author), Circuit Judges. M. Bonino of San Jose, CA, for the appellant; S. Calkin of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) MEDICAL BENEFITS: Spry v. Thompson, 04-35746 (9th Cir. May 21, 2007). At issue here was what federal Medicaid restric-tions apply to a state program providing medical benefits to persons who are not eligible for Medicaid. The USCA held that the Secretary of Health and Human Services was correct as a matter of law that no waiver is necessary for expansion populations not eligible for Medicaid, to enable the state to exceed the co-payment and premium limitations applicable to these individuals. This flexibility for the state facilitates the goal of demonstration projects, developing new and better way to provide medical assistance to the need, including those who are not eligible for Medicaid. Concurring in the results, Judge Moskowitz wrote separately because he did not agree that the statue in question was unambiguously on the issue of the requirements for expansion population coverage under a demonstration project. He was unable to find the clear statutory mandate for limiting the applicability of Sec. 1396o(f) to only mandatory and optional, but not expansion, population within a demonstration project. Kleinfeld (author), and Graber, Circuit Judges, and Moskowitz (concurring), District Judge. A. Klein of Washington, DC, for the appellants; AAG C. Fletcher of Salem, OR, for the cross-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) SOCIAL SECURITY BENEFITS: Massachi v. Astrue, 05-55201 (9th Cir. May 11, 2007). Massachi appealed the district court's grant of summary judgment upholding the Commissioner of Social Security's denial of Supplemental Security Income benefits. The USCA affirmed in part and vacated and remanded in part. At issue for the first time in the circuit was whether, in light of the requirements of Social Security Ruling 00-4p, an ALJ may rely on the testimony of a vocational expert regarding the requirements of a particular job without first inquiring whether that expert's testimony conflicts with the Dictionary of Occupational Titles. Consistent with other circuit that have considered the subject, the USCA held that an ALJ may not. T.G. Nelson (author), Graber, and Ikuta, Circuit Judges. S. Simpson of Northridge, CA, for the appellant; AUSA A. Roth of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) CHILD PROTECTIVE SERVICES / IMMUNITY: Rogers v. County of San Joaquin, 05-16071 (9th Cir. May 29, 2007). The Rogers brought this action under 42 USC Sec. 1983, alleging that the conduct of social worker Charlotta Royal in removing the Rogers children from their home without a warrant violated their Fourth and Fourteenth Amendment rights. Both parties moved for summary judgment, although the Rogers only as to liability. The district court granted Royal's motion on the basis of qualified immunity. Be-cause it held that it was clearly established that the warrantless removal of children is permissible only in cases of exigency, and that it would have been apparent to a reasonable social worker that no exigency existed in this case, the USCA reversed both the grant of summary judgment to Royal and the denial of partial summary judgment to the Rogers. Ferguson, Reinhardt (author), and Smith, Circuit Judges. D. Beauvais of Oakland, CA, for the appellants; D. Cederborg of Stockton, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) HOLOCAUST VICTIMS REDRESS: Orkin v. Taylor, 05-55364 (9th Cir. May 18, 2007). The Orkins, descendants of Jewish art collector Margarete Mauthner, maintained that their ancestor was wrongfully dispossessed of a painting during Hitler's Nazi regime, entitling them to ownership of that painting, which was later purchased by actress Elizabeth Taylor. The USCA concluded that the Holocaust Victims redress Act does not create a private right of action and that the Orkins' state law claims are barred by the statute of limitations. It thus affirmed the judgment of the district court, dismissing the complaint. Canby and Thomas (author), Circuit Judges, and Conlon, District Judge. T. Hamilton of Washington, DC, for the appellants; S. Reiss of New York, NY, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) EDUCATION / ATTORNEYS' FEES: Parent V.S. v. Los Gatos-Saratoga Joint Union High School District, 04-17480 (9th Cir. May 9, 2007). This case presented the issue of when one is a prevailing party under the Individuals with Disabilities Education Act. Because the hearing officer determined that student A.O. was deprived of a free and appropriate public education, and that A.O. was eligible for special education, A.O. was a prevailing party entitled to an award of attorneys' fees. The USCA thus reversed the district court's ruling to the contrary and remanded for an award of attorneys' fees. Schroeder, Farris (dissenting), and Rawlinson (author), Circuit Judges. V. Mulhollen of San Leandro, CA, for the appellant; G. Wedner of Monterey, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) CARRIAGE OF GOODS BY SEA ACT: Starrag v. Maersk, Inc., 04-56771 (9th Cir. May 14, 2007). Plaintiffs appealed a dis-trict court order granting partial summary judgment and applying the $500 per package liability limitation under the Carriage of Goods by Sea Act ("COGSA") to three machines shipped with Maersk, Inc., which were damaged while being transported in a container yard operated by Maersk Pacific Ltd., a terminal operator. Plaintiffs argued that the package limitation did not apply to damage that occurred after Maersk unloaded the machines from their ship, and that application of the limitation conflicted with COGSA and a related statute, the Harter Act. Starrag also claimed that the terms "delivery" in Maersk's Combined Transport Bill of Lading ("CTBL") is ambiguous, and should be read to restrict the package limitation to damage occurring after the machines were loaded onto the ship and before unloaded. The USCA affirmed, holding: (1) Maersk did not need to provide actual notice to the plaintiffs that the CTBL contractually extended the terms of COGSA outside of the "tackle to tackle" period; (2) contractually extending the package limitation does not conflict with the COGSA or the Harter Act; and (3) the district court properly interpreted the term "delivery" in a manner consistent with maritime law and the terms of the short form non-negotiable sea way-bill and the CTBL. Gibson, Fisher, and Callahan (author), Circuit Judge. I. Hands of New Orleans, LA for the appellants; T. Adkinson of Long Beach, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) ,26) STANDING: Taylor v. Westly 05-16763 (9th Cir. May 31, 2007). The USCA reversed an Eleventh Amendment dismissal in an earlier appeal. On remand, the district court denied the plaintiffs' motion for a preliminary injunction. They appealed. The district court's decision was based on alternative grounds: plaintiffs lacked standing to pursue injunctive relief; and even if the plaintiffs had standing, they would not be entitled to such relief. The USCA reversed and remanded. Plaintiffs securities were lost to escheat, thus establishing concrete injury. The likelihood of recurrence was established as the "wrong" plaintiff sought to enjoin was the escheating of property without written notice calculated to be received by the owner, and the State of California has a written policy of doing just that. Plaintiffs thus had standing to pursue a preliminary injunction. They were also entitled to a preliminary injunction. Their likelihood of success on the merits is high and they have shown a possibility of irreparable harm in the absence of a preliminary injunction. Beezer, Kleinfeld, and Hawkins, Circuit Judge. Per Curiam. W. Palmer of Sacramento, CA, for the appellants; R. Johansen of San Leandro, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) JURISDICTION: Holland America Line, Inc. v. Wartsila North America. Inc., 05-35572 (9th Cir. May 7, 2007). In 2002, the Wind Song, a Bahamian cruise ship, was sailing from Papeete, Tahiti, to Huahine, Tahiti when a fire broke out and spread through the ship, destroying it completely. Holland American Cruse Line and Windstar Sail Cruses sought to hold Bureau Veritas S.A., Bureau Veritas North America, Bureau Veritas (Canada), Wartsila Corp., and Wartsila Finland Oy liable for the lose. Before the suit could go forward, the USCA had to determine whether the U.S. District Court for the Western District of Washington could exercise jurisdiction over the parties. The USCA held that the Western District of Washington was not the proper forum; it thus affirmed the district court's dismissal of the Bureau Veritas entities for lack of venue and Wartsila and Wartsila Finland for lack of person jurisdiction. B. Fletcher (dissenting in part), Graber, and McKeown (author), Circuit Judges. F. Brucculeri of Los Angeles, CA, for the plaintiffs-appellants; C. Kende of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) JURISDICTION: Gupta v. Thai Airways Intl., 04-56389 (9th Cir. May 30, 2007). Gupta was scheduled to fly from Bangkok to Los Angeles. When he attempted to board the plane bound for Los Angeles, Thai Airlines employees refused to allow him to board because they determined that his U.S. visa was invalid. Gupta maintained that the employees "subjected him to unwarranted accusations of fraud after [he] presented a valid and current U.S. Visa." He was unable to fly to Los Angeles on this date and claimed that he missed a lucrative business meeting. He filed a complaint in California Superior Court, Los Angeles County, alleging that Thai Airways employees subjected him to unwarranted accusations of fraud regarding his visa that led to professional business losses. The Superior Court held Thai Airways immune from suit in U.S. courts in accordance with 28 USC Sec. 1604. Gupta did not appeal the order dismissing his action. Instead, he filed a complaint in federal district court, alleging identical causes of action as he raised in the state court. The district court held that the prior state judgment did not bar relitigation of the claim in federal court, and that the suit, against Thai Airways, even though it is a foreign state-owned carrier, was properly brought in U.S. federal court. The Warsaw Convention applied, the district court reasoned, because the act of embarking on an international airline flight was sufficient to bring the incident within the ambits of the Convention. Thai Airways appealed from the district court's order denying its motion to dismiss for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1). Thai Airways claimed that the district court erred in refusing to recognize the preclusive effect ("res judicata") of an earlier order dismissing, under the Foreign Sovereign Immunities Act ("FSIA"), and identical action brought by Gupta. That California order of dismissal was not appealed, and was not final. The USCA raised the issue of jurisdiction during oral argument sua sponte and asked the parties to submit briefing as to whether the USCA has jurisdiction to consider the district court's hold that res judicata does not apply in this case. The USCA concluded that it had jurisdiction. It then reversed and remanded with instructions to the district court to vacate its order and dismiss Gupta's suit for lack of jurisdiction. Dissenting, Judge Tashima thought that the majority found appellate jurisdiction only by mistakenly assuming that if any issue decided by the district court is subject to interlocutory appeal, any other issue decided in the same order can be reached on interlocutory appeal. Siler, Tashima (dissenting), and Bea (author), Circuit Judges. M. Priver of Pasadena, CA, for the appellant; L. Lopez of Seattle, WA, for the appellees (Download the full text of this decision at www.ce9.uscourts.gov/) 29) ESTABLISHMENT CLAUSE: Vasquez v. Los Angeles County, 04-56973 (9th Cir. May 15, 2007). Vasquez appealed the district court's dismissal of his 42 USC Sec. 1983 action for failure to state a claim under Fed. R. Civ. Proc. 12(b)(6). He argued that de-fendants violated the Establishment Clause of the First Amendment by removing the image of a cross from the county's official seal, which act, he said, conveyed a state-sponsored message of hostility toward Christians. Holding that defendants did not violate the Establishment Clause, the USCA affirmed the district court's order dismissing Vasquez's complaint with prejudice. Pregerson, Gould, and Clifton (author), Circuit Judge. R. Muise of Ann Arbor, MI, for the appellant; R. Fortner of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) ELECTION LAW: The Association of American Physicians v. Brewer, 05-15630 (9th Cir. May 10, 2007). Brewer, the Secretary of State of the State of Arizona and other officials ("the State") were sued by the Association of American Physicians and Sur-geons and three citizens of Arizona ("the Candidates") who challenged the Arizona Citizens Clean Elections Act. The district court dismissed the complaint for failure to state a cause of action. The USCA dismissed as moot the appeal of the Association and Candidates. The State's acquiescence in the litigation of the appeal did not confer jurisdiction on the USCA where no controversy existed. Noonan (author), Gould, and Rawlinson, Circuit Judges. T. Keller of Tempe, AZ, for the appellants; C. Soland of Phoenix, AZ, for the appellees; D. Goldberg of New York, NY, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) SOVEREIGN IMMUNITY: Aholelei v. Dep't of Public Safety, 06-15086 (9th Cir. May 25, 2007). At issue here was whether Hawaii's Department of Public Safety and ten State officials sued in their official capacities waived sovereign immunity as regards Aholelei's state law claims. The USCA affirmed the district court's grant of summary judgment on sovereign immunity grounds. It held that the defendants did not waive their sovereign immunity by filing a third-party complaint because they had timely asserted immunity prior to filing the third-party complaint and the third-party complaint was a defensive move which was not incompatible with an intent to preserve sovereign immunity. Hug and W. Fletcher, Circuit Judges, and Holland (author), District Judge. S. Unger of San Francisco, CA, for the plaintiff-appellant; DAG K. Guidry of Honolulu, HI, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) CIVIL RIGHTS: Blankenhorn v. City of Orange, 04-55938 (9th Cir. May 8, 2007). In July 2001, police officers from the City of Orange found Blankenhorn at a shopping mall where six months earlier he had been evicted and permanently banned from entering again. The officers arrested him on suspicion of trespass. He was later charged with disturbing the peace, trespass, and three counts of resisting arrest. The prosecutor added a gang-related enhancement charge. After Blankenhorn had spent three months in jail, all charges were dropped and he was released. He then brought his civil rights suit under 42 USC Sec. 1983 for unlawful arrest, excessive force, malicious prosecution, plus California law claims for false imprisonment, negligence, assault and battery, and intentional infliction of emotional distress. Blankenhorn alleged that the police officers did not have probably cause to arrest him and that they used unreasonable force during the arrest by gang-tackling him, punching him, and using hobble restraints. He also sought damages from the City and Chief Romero on theories of municipal and supervisorial liability. The district court granted the defendants' motion for summary judgment on all of Blankenhorn's causes of action. The USCA affirmed in part and reversed in part. It affirmed the district court's summary judgment for the City on Blankenhorn's municipal liability claim, and affirmed the summary judgment for the officers on the unlawful arrest claim. However, it reversed the summary judgment for the officers on the excessive force claim, on the malicious prosecution claim, and on the supervisorial liability claim. It also reversed the summary judgment on all the state law claims, except for the false arrest claim. It then remanded for further proceedings. McKeown and Berzon (dissenting in part), Circuit Judges, and King (author), District Judge. P. Hoffman of Venice, CA, for the appellant; M. Boback of Orange, CA, of Orange, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) NATIVE AMERICAN LAW: USA v. Smiskin, 05-30590 (9th Cir. May 18, 2007). The Right to Travel provision of the Yakama Treaty of 1855 secures to Yakama tribal members the right to travel on the public highways. Applying this treaty provision, the district court dismissed the Government's indictment charging tribal members Kato and Harry Smiskin with violations of the federal Contraband Cigarette Trafficking Act ("CCTA"). At issue was whether the Government's basis for maintaining a CCTA prosecution against the Smiskins-their alleged failure to comply with the State of Washington's requirements that individuals give notice to state officials prior to transporting unstamped cigarettes within the State-violated the Right to Travel provision of the Yakama Treaty. The district court held that the State's prenotification requirement, as applied to Yakama tribal members, did violate the Treaty, and that the unstamped cigarettes that the Smiskins allegedly transported could not be considered contraband within the meaning of the CCTA. Finding no legal basis for the Government's prosecution of the Smiskins under the CCTA, the district court dismissed the indictment. The USCA affirmed, holding that the district court did not err in interpreting and applying the Yakama Treaty to dismiss the indictment. D.W. Nelson, Thompson, and Paez (author), Circuit Judges. AUSA J. Kirk of Yakima, WA, for the appellant; R. Pennell of Yakima, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: Lolong v. Gonzales, 03-72384 (9th Cir. May 7, 2007). Lolong petitioned for review of a decision by the Board of Immigration Appeals ("BIA") denying her application for asylum and granting her voluntary departure. Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir. 2004), held that the USCA lacked jurisdiction to review the BIA's decision in such a case because the BIA lacks the authority to issue to issue final orders of departure, and the Immigration and Naturalization Act conditions the USCA's jurisdiction on the existence of such an order. Until recently, a petitioner in Lolong's position could still seek habeas relief in district court, but in the REAL ID Act of 2005, Congress eliminated such relief. 8 USC Sec. 1252(a)(5). Together with its prior decision, this statutory change left a petitioner in Lolong's position with no opportunity to obtain judicial review of the BIA's disposition of their cases. The USCA reheard this case en banc to revisit its prior jurisprudence because this lack of judicial review raises serious constitutional concerns. Having decided that its prior interpretation of the BIA's power under the INA was overly narrow, the USCA over-ruled Molina-Camacho and determine that it has jurisdiction to review the BIA's decision in such cases. It further concluded that substantial evidence supported the BIA's denial of Lolong's asylum claim. The USCA thus denied the petition for review. Judge Thomas, joined by Pregerson, Fisher, and Paez, concurred with the overruling of Molina-Camacho, but dissented from the majority's denial of the petition for review on the merits. Believing that the BIA had made serious legal errors, he would grant the petition and remand for further consideration pursuant to INS v. Ventura, 537 US 12 (2002). Schroeder, Pregerson, Rymer, Kleinfeld, Hawkins, Thomas (dissenting in part), Silverman, McKeown, Fisher, Gould, Paez, Tallman, Rawlinson, Bybee (author), and Bea, Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; J. Cohn of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) IMMIGRATION: Juarez-Ramos v. Gonzales, 05-72472 (9th Cir. May 8, 2007). The BIA and an Immigration Judge held that an expedited removal order in 1999 interrupted Juarez-Ramos' physical presence in the United States. They held that he thus could not establish the required 10 years of physical presence necessary to be eligible for cancellation of removal under 8 USC Sec. 1229b(b)(1). In his petition for review, he argued that an expedited removal order should not interrupt an alien's continuous physical presence because so little process is involved in issuing such orders. The USCA held that an expedited removal order does interrupt continuous physical presence. It thus denied the petition. T.G. Nelson (author), Graber, and Ikuta, Circuit Judges. L. Hurwitz of San Diego, CA, for the petitioner; E. Miles of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) IMMIGRATION: Gallarde v. INS, 04-56353 (9th Cir. May 11, 2007). For nearly 90 years it has been clearly established that aliens who seek exemption form compulsory military service-the draft-based on alienage will be forever barred from becoming U.S. citizens. At issue here was whether this bar to citizenship applies to an alien who voluntarily enlists in the U.S. military, sought discharge short of completing his enlistment term on the basis of alienage, and was honorably discharged. The USCA held that the bar does not apply. Bright, Tashima, and Bea (author), Circuit Judges. H. Hom of San Diego, CA, for the plaintiff-appellant; AUSA S. Bettwy of San Diego, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) IMMIGRATION: Montes-Lopez v. INS, 05-76297 (9th Cir. May 17, 2007). At issue here was whether the BIA erred in failing to address petitioner's claim that he was denied his right to counsel at proceedings before the Immigration Judge. The USCA held that the BIA erred and remanded for consideration of the petitioner's claim. Goodwin, Thomas, and Bea (author), Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) IMMIGRATION: Saravia-Paguada v. INS, 05-73098 (9th Cir. May 21, 2007). In 1988, the petitioner, a legal permanent resi-dent, was convicted of several felonies in California, for which he served three years and two months in prison. After his release, he conceded deportability but requested discretionary relief under former INS Sec. 212(c). In 1992, while his deportation proceedings were pending, he was again convicted of felony offenses and received a sentence of six years for four months, which reflected in part a three-year recidivist enhancement. He served three years and three months of this sentence. In 2002, the BIA summarily affirmed the Immigration Judge pretermitting of relief under former Sec. 212(c) because, by an intervening act of Congress ("IMMACT"), eligibility for relief was barred for any alien who has been convicted of "one or more aggravated felonies and has served for such felony or felonies" as term of imprisonment of at least five years. The petitioner sought review of the BIA's summary affirmance, claiming that the time served pursuant to the recidivist statute should not have been counted for purposes of the IMMACT bar, and, in the alternative, that applying the IMMACT bar to the 1988 sentence had an impermissibly retroactive effect on the criminal conduct underlying the petitioner's conviction. The USCA denied the petition, holding that application of IMMACT provisions to time served for criminal sentences that stemmed from jury convictions pre-dating both Secs. 511(a) of IMMACT and 306(a)(10) of the Technical Amendments created no impermissibly retroactive effect. The Immigration Judge thus did not erroneously include the three years and two months served for the 1988 convictions in concluding that Sec. 212(c) relief was barred because of IMMACT's rule that aliens who served five years or more for one or more aggravated felony conviction may not gain discretionary waiver of relief from deportation. Gould (author) and Rawlinson, Circuit Judges, and Covello, District Judge. M. Van Der Hout of San Francisco, CA, for the petitioner; AUSA E. Olsen of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) IMMIGRATION: Sandoval-Sandoval v. INS, 06-30370 (9th Cir. May 23, 2007). The defendant was convicted of one count of illegal reentry of a deported alien in violation of 8 USC Sec. 132(a). He raised two issue on appeal: (1), he disputed the district court's order compelling a set of fingerprint exemplars; (2), he challenged the district court's reliance at sentencing on a California "abstract of judgment" as evidence of the length of a prior sentence that he served in state prison. The USCA affirmed. First, USA v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir. 2005) (per curiam), cert. denied, 127 S.Ct 358 (2006), held that the government may compel a defendant to provide fingerprint exemplars for identification purposes even though the police first learned that defendant's identity through an illegally obtained initial set of fingerprints. Second, the district court relied on the abstract of judgment to determine a discrete fact regarding the defendant's prior conviction, namely, the length of sentence imposed. The document unequivocally contained the information needed. That was a permissible use of the abstract. The sentence thus was not erroneous for the reason the defendant argued. Pregerson, Rymer, and Graber, Circuit Judges. Per Curiam. L.S. Selvey of Billings, MT, for the appellant. AUSA M. Lahr of Helena, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) IMMIGRATION: Puga v. Chertoff, 05-16902 (9th Cir. May 24, 2007). Puga, a native and citizen of Mexico, appealed the dis-trict court's dismissal of his habeas petition for lack of jurisdiction under the REAL ID Act. The district court held that the Act designates a petition for review in the appellate courts as the sole means of challenging a final order of removal, and Puga had not shown that remedy inadequate or ineffective. He argued that he suffered ineffective assistance of counsel before and during the removal proceedings in violation of his Fifth Amendment due process rights, and that to the extent Sec. 106(a) of the Act precludes habeas review of his claim, Sec. 106(a) is unconstitutional. The USCA noted that, although Puga raised an important jurisdiction question about the effect of the Act on district court habeas jurisdiction over ineffective assistance of counsel claims brought by alien petitioners, it need not reach that issue. Instead, the USCA affirmed the district court on the grounds that Puga failed to exhaust the administrative remedies available to him, and thus his claim was not properly before the district court. Wallace, D.W. Nelson, and McKeown (author), Circuit Judges. J. Bennett of El Cerrito, CA, for the petitioner; E. Olsen of San Francisco, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) IMMIGRATION: USA v. Dang, 04-17529 (9th Cir. May 24, 2007). This appeal raised the issue of the constitutionality and va-lidity of the Department of Homeland Security's regulation pertaining to assessment of good moral character in naturalization proceedings. The USCA concluded that the regulation passed constitutional muster and is not ultra vires as to its governing statute. The USCA thus affirmed the judgment of the district court. Hawkins, Tashima, and Thomas (author), Circuit Judges. J. Mayo of Sacramento, CA, for the appellant; P. Keisler of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) IMMIGRATION: Landin-Zavala v. Gonzales, 04-70765 (9th Cir. May 25, 2007). The petitioner, a native and citizen of Mex-ico, sought review of a final order denying his application for cancellation of removal under 8 USC Sec. 1229b(b). The order was entered by the BIA on January 23, 2004, affirming the Immigration Judge's decision of September 9, 2002. The petitioner argued that neither his formal order of exclusion nor his voluntary return to Mexico subsequent to apprehension by the U.S. border patrol later that month ended his continuous physical presence in the U.S. for purposes of the cancellation of removal statute. The USCA found the petitioner's arguments to be without merit and denied his petition. Farris and Gould, Circuit Judges, and Duffy (author), District Judge. K. Bove of Escondido, CA, for the petitioner; N. Friedman of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) IMMIGRATION: Kharana v. Gonzales, 04-71335 (9th Cir. May 29, 2007). This case questions the meaning of 8 USC Sec. 1101(a)(43)(M)(i), which defines "aggravated felony" to include an offense involving fraud or deceit in which the loss to the victim(s) exceeds $10,000. At issue was whether a defendant who pleads guilty to fraudulently appropriating more than $10,000 but subsequently makes her victims whole has "paid down" the "loss to the victims" below the statutory threshold so that her offense no longer qualified as an aggravated felony. The USCA said "no" and denied the petition for review. Dissenting, Judge Wallace would not have addressed, in dicta or otherwise, when any restitution occurred. Kharana, he thought, became deportable when she pled guilty to knowingly and fraudulently taking possession of the money. Wallace (concurring), D.W. Nelson (author), and McKeown, Circuit Judges. S. Ahmad of Fremont, CA, for the petitioner; W. Minick of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 44) IMMIGRATION: Covarrubias v. Gonzales, 03-74661 (9th Cir. May 29, 2007). The petitioner sought review of a BIA order dismissing his appeal from the denial of his application for suspension of deportation under 8 USC Sec. 1254(a) (repealed 1996). The BIA agreed with the Immigration Judge and found the petitioner statutorily barred from showing good moral charter because he knowingly encouraged, induced, assisted, abetted or aided his brother in unlawfully entering the U.S. under 8 USC Sec. 1182(a)(6)(E)(i). The USCA could not say that the record compelled a contrary result as substantial evidence supported the BIA's factual finding. It thus denied the petition for review. Dissenting, Judge Pregerson disagreed with the majority's characterization of the facts. He thought the record evidence compelled a result contrary to that reached by the BIA. As the petitioner testified, there was nothing he was able to say or do to prevent his brother's illegal entry. He did not arrange for his brother to enter the country illegally. He did not coordinate with a smuggler or with his brother. He did not execute a step-by-step plan. And, Judge Pregerson noted, there was no evidence that the petitioner knew anything of his brother's plans before his brother called for money. He would thus grant the petition. Pregerson (dissenting), Silverman, and Tallman (author), Circuit Judges. X. Rosas of Pasadena, CA, for the petitioner; J. Cunningham of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)
46) SEARCH & SEIZURE: USA v. Orman, 06-10398 (9th Cir. May 22, 2007). Orman was convicted of unlawful possession of a firearm in violation of 18 USCA Secs. 922(g)(1) and 924(a)(2), pursuant to a conditional guilty plea. His conviction stems from the seizure of a handgun by an off-duty police officer at a Phoenix mall that prohibits patrons from carrying weapons while on the premises. On appeal, he challenged the district court's denial of his motion to suppress the firearm, arguing that he did not consent to the seizure of the gun and that the seizure required reasonable suspicion or probable cause that a crime had been committed. He further argued that neither reasonable suspicion nor probable cause existed and that the search was not justified for officer safety purposes. The USCA held that the officer's initial encounter with Orman was consensual and that the officer lawfully seized the gun for safety purposes. The seizure was not contrary to the Fourth Amendment. The USCA thus affirmed the district court's judgment. Goodwin, D.W. Nelson, and Callahan (author), Circuit Judges. AFPD M. Cisneros of Phoenix, AZ, for the appellants; AUSA M. Lee of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) WIRETAPS: Whitaker v. Garcetti, 05-55629 (9th Cir. May 10, 2007). Eight individual plaintiffs alleged that the defendants, individuals and entities associated with the City and County of Los Angeles, intercepted the plaintiffs' telephone calls after having obtained wiretap authorizations by using falsified warrant applications. They also alleged that the defendants unconstitutionally concealed the existence of the wiretaps by using a "handoff" procedure. They sued the defendants under 42 USC Sec. 1983 for declaratory and monetary relief. The district court granted the plaintiffs summary judgment on the claim for declaratory relief on the handoff procedure, ruling that the procedure violates the Fourth Amendment. It also granted the defendants summary on plaintiffs claims for monetary relief, ruling that Heck v. Humphrey, 512 US 477 (1994), barred the plaintiffs' claim for damages from the alleged warrant falsification and that the defendants were entitled to qualified immunity on the plaintiffs' claim for damages from the handoff procedure. The USCA held that plaintiff Whitaker's claim alleging that the wiretap that intercepted his telephone call was obtained using a falsified warrant application may proceed against individual defendants, and the City and County of Los Angeles. T.G. Nelson, Graber (author), and Ikuta, Circuit Judges. A. Turner of Los Angeles, CA, for the defendants-appellants; P. DeMassa of San Diego, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 48) EVIDENCE: USA v. Esquivel-Ortega, 05-30355 (9th Cir. May 8, 2007). The defendant challenged the sufficiency of the evi-dence to support his conviction for conspiracy to distribute cocaine and heroin, and possession of cocaine with intent to distribute, in violation of 21 USC Secs. 841 and 846. The USCA concluded that the evidence was insufficient to sustain the convictions and reversed. The government presented no evidence that established the defendant's knowledge or possession of the cocaine and no evidence of his participation in the conspiracy. O'Scannlain, Tashima (author), and Berzon, Circuit Judges. W. Broberg of Seattle, WA, for the defendant-appellant; AUSA J. Otake of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 49) EVIDENCE: USA v. Hoang, 05-10669 (9th Cir. May 14, 2007). Hoang entered a conditional guilty plea to federal narcotics charges after methamphetamine was found in a package sent to him via FedEx. A narcotics detection dog alerted to the package while it was in transit, and it was then diverted while a search warrant was obtained. The search revealed the presence of drugs, and a controlled delivery to Hoang resulted in his arrest. Before entering his plea, Hoang moved to suppress evidence of the methamphetamine, asserting that the detention and search of the package violated the Fourth Amendment. He maintained that the district court erred by refusing to conduct an evidentiary hearing and by denying the motion to suppress. Because under USA v. England, 971 F.2d 419 (9th Cir. 1992, a temporary diversion of a package that does not affect its regularly scheduled delivery does not violate the Fourth Amendment, the USCA affirmed the district court. Trott, Wardlaw (author), and W. Fletcher, Circuit Judges. P. Wolff of Honolulu, HI, for the appellant; AUSA B. Sameshima of Honolulu, HI, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 50) RIGHT TO COUNSEL: USA v. Lenihan, 06-30488 (9th Cir. May 30, 2007). Lenihan appealed his conviction for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence, pursuant to 18 USC Sec. 922(g)(9), on the ground that his guilty plea to the predicate misdemeanor was accepted in violation of the Sixth Amendment right to counsel. His plea was uncounseled and he argued that his right to counsel was not knowingly and intelligently waived because he was not told of the dangers and disadvantages of self-representation. The USCA had previously extended the Sixth Amendment "knowing and intelligent" standard to misdemeanors in USA v. Akins, 276 F.3d 1141, 1147 (9th Cir. 2002), and invalidated Sec. 922(g)(9) convictions of defendants who pled guilty to the underlying crime without being informed of those dangers and disadvantages before waiving the right to counsel. Since then, however, Iowa v. Tovar, 541 US 77, (2004), held that the Sixth Amendment does not require such a rigorous warning for waiver of counsel at the pretrial stages of a criminal proceeding. Apply Tovar, the USCA held that Lenihan failed to show that he did not knowingly and intelligently waive his right to counsel in the domestic violence proceeding, thus his attack on that conviction could not prevail. He also maintained that his conviction could not be used because he was not advised of the possibility that he could be prosecuted for carrying a firearm, but this, the USCA found, was a collateral consequence of the conviction that does not implicate the constitutionality of his waiver. The USCA thus affirmed. Pregerson, Rymer, and Graber, Circuit Judges. Per Curiam. M. Meyer of Great Falls, MT, for the appellant; AUSA J. Thaggard of Great Falls, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 51) PYRAMID SCHEMES: USA v. Sine, 05-10575 (9th Cir. May 1, 2007). Sine, a lawyer, helped run a pyramid scheme that de-frauded victims of more than two million dollars. His role in the scheme was to reassure individuals that they were lending money to a legitimate real estate investor and that millions of dollars of legitimate collateral protected them in case of default. Once the scheme started to unravel and it became clear that the collateral was worthless, Sine began to weave a "good faith" defense to his actions, claiming that it was as much of a surprise to him as to anybody that the collateral was illusory. To give credence to this story, he filed a number of lawsuits that purported to be seeking recovery of the value of the collateral. Ultimately, these suits just added to his troubles: An Ohio federal district court rejected his factual claims, enjoined his recovery efforts, held him in contempt, and denounced on the record his "chicanery, mendacity, deceit, and pretense." This appeal arose from the criminal prosecution of Sine and his co-defendant Panthaky, the mastermind of the fraud scheme, commenced in a California federal district court after the scheme unraveled. During cross-examination of defense witnesses-including Sine, who testified in his own defense-the government repeatedly referred to the factfinding and derogatory character assessments of the Ohio court. By doing so, the government created a substantial risk that the jury would pay undue and unwarranted attention to the strongly adverse assessment of a figure, the Ohio judge, who never ap-peared in the courtroom but who the jury likely assumed had both authority and expertise with regard to determining the true course of events and to making credibility determinations. Such use of the judge's statements was highly improper. It both unfairly prejudiced Sine and introduced impermissible hearsay into the trial. Sine did not, however, object during the trial to the use of the judge's observations. The government presented such strong admissible evidence of his guilt that, even without considering the Ohio court's decision, the USCA could not find plain error warranting reversal. It thus affirmed. B. Fletcher and Berzon (author), Circuit Judges, and Trager, District Judge. R. Cline of Salt Lake City, UT, for the appellant; AUSA J. Vincent of Sacramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 52) FRAUD / RICO: Odom v. Mircosoft Corp., 04-35468 (9th Cir. May 4, 2007). Putative class action plaintiffs appealed from the dismissal of their suit under Fed. R. Civ. Proc. 12(b)(6) for failure to allege an "associated in fact enterprise" under RICO and, in the alternative, under Fed. R. of Civ. Proc. 9(6) for failure to plead wire fraud with particularity. The district court dismissed with prejudice and without leave to amend. The USCA held that the plaintiffs had sufficiently alleged the existence of an associated-in-fact enterprise under 18 USC Secs. 1961(4) and 1962(c). It further held that the plaintiffs alleged wire fraud with sufficient particularity to satisfy Rule 9(b). It thus reversed the district court's decision and remanded for further proceedings consistent with this opinion. Judge Silverman, joined by Rymer, Tallman, Rawlinson, and Bea, concurred in the result. He did not see how Odom's complaint successfully plead an "enterprise" within the RICO statute. He also thought the district court should have granted Odom leave to amend his complaint. Judge Bybee, join by Reinhardt, found it "outlandish" that what Judge Silverman correctly describes as a "marketing contract" between Microsoft and Best Buy could subject them to a private RICO action. Schroeder, Reinhardt, O'Scannlain, Rymer, Hawkins, Thomas, Silverman (concurring), W. Fletcher (author), Fisher, Paez, Berzon, Tallman, Rawlinson, Bybee (concurring), and Bea, Circuit Judges. B. Terrell of Seattle, WA, for the appellant; C. Sweedler of Philadelphia, PA, and S. Schwartz of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 53) FRAUD: Blue Cross v. Rubin, 05-56261 (9th Cir. May 25, 2007). This case arose from a scheme allegedly entered into by the defendants to fraudulently bill Blue Cross and Blue Shield for unnecessary medical services. The plaintiffs alleged that the defendants and their associates enticed individuals into undergoing unnecessary treatments at the defendant medical clinics by offering cash payment and beach vacations. The plaintiffs alleged that they were billed for the unnecessary procedures and, as a result paid millions of dollars to the defendants. The events leading to this appeal began when a number of defendants requested stays of the civil proceeding on the basis that discovery in the civil suit implicated their Fifth Amendment rights. The district court granted these stays. It subsequently granted stays to most of the other individuals defendants and to corporate defendants who argued that they would be prejudiced if required to defend against the civil suit without discovery against the individual defendants who had received stay. However, the precise duration of the stays was hard to determine, as the district court granted the motions without mentioning duration. Blue Cross argued that the district court abused its discretion in granted the stays. Following the majority position among the Circuits that lengthy and indefinite stays place a plaintiff effectively out of court. Such an indefinite delay amounts to a refusal to proceed to a disposition on the merits. Reinhardt (author) and Bybee, Circuit Judges, and Burns, District Judge. H. Veisz of New York, NY, for the appellant; P. Morris and M. Clinnin of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 54) JUVENILE DELINQUENCY ACT: USA v. C.M., 05-50585 (9th Cir. May 8, 2007). Title 18 USC Sec. 5033 of the Juvenile Delinquency Act prescribes the process due to a juvenile who is placed in federal custody. The arresting officer must immediately advise the juvenile of his or her rights; immediately advise the juvenile's parents, guardian, or custodian of the juvenile's rights; comply with any request by the juvenile to speak with his parents or a parental surrogate; and bring the juvenile before a magistrate "forthwith." None of these requirements were met in this case-C.M. was not advised of his rights until six hours after his arrest; neither his parents, nor any individual who could act in loco parentis, were notified of C.M.'s rights; C.M.'s repeated requests to speak with a representative of his consulate went unheeded; and C.M was locked in a holding cell for nearly 10 hours before being brought before a magistrate. The USCA found that the government violated every requirement of Sec. 5033, and that the violations were not harmless. As a result of the government's illegal conduct, C.M.'s confession, which should have been suppressed, was used to support the information initiating his prosecution. Because of the government's misconduct constituted prejudicial error, the USCA reversed. B. Fletcher, Ferguson (author), and Callahan (dissenting) Circuit Judges. M. Villasenor-Grant of San Diego, CA, for the appellant; AUSA C. Alexander of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 55) CHILD PORNOGRAPHY: USA v. Meiners, 06-30389 (9th Cir. May 21, 2007). Meiners operated a child pornography file server, on which he advertised child pornography images for distribution in exchange for other child pornography mages to be sent to him. In 2004, Meiners advertised and distributed child pornography to several FBI agents, a New York State detective and an officer with the German National Police. U.S. Immigration and Customs agents identified Meiners as the operator of the server and executed a warrant at his residence in Billings, MT. During the search, agents seized computer equipment containing 10,000-12,000 pornographic images, some of which depicted children engaged in sado-masochistic activity, bondage, and sexual intercourse. Meiners agreed to plead guilty to four counts of advertisement of child pornography in violation of 18 USC Sec. 2251(d), four counts of distribution of child pornography in violation of Sec. 2252A(a)(2), and one count of possession of child pornography in violation of Sec. 2252A(a)(5)(B). The district court sentenced Meiners to 15 years in prison, comprised of 180 months on each advertisement count, 121 months on each distribution count and 120 months on the possession count, with all terms to be served concurrently. On appeal, Meiners challenged his sentence under the Eighth Amendment's prohibition against cruel and unusual punishment. Because a 15-year sentence was not grossly disproportionate to the gravity of Meiners' offense, the USCA affirmed. Kozinski and Fisher, Circuit Judges, and Guilford, District Judge. Per Curiam. M. Werner of Billings, MT, for the appellant; W. Mercer of Billions, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 56) OVERSEAS CHILD SEXUAL EXPLOITATION / RESTITUTION: USA v. Doe, 05-50474 (9th Cir. May 29, 2007). At issue here was whether restitution could be awarded to the overseas child victims of sexual exploitation crimes committed by an American citizen while he was traveling outside the United States. The USCA vacated the conditions of supervised release and ordered a remand to the district court with instructions that the district court provide advance notice of any non-standard conditions it deems appropriate. Doe should be given a chance to challenge their applicability to his case. The USCA also affirmed the order of restitution. Hall, O'Scannlain (author), and Callahan, Circuit Judges. DFPD J. Libby of Los Angeles, CA, for the defendant-appellant; AUSA R. Goswami of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 57) INTERNET / SEXUAL PREDATORS: USA v. Curtin, 04-10632 (9th Cir. May 24, 2007). As the result of a sting designed to apprehend sexual predators searching for juveniles on the Internet, Curtin was convicted by a jury of the felony crimes of (1) traveling across state lines with intent to engage in a sexual act with a minor, in violation of 18 USC Sec. 2423(b), and (2) using an interstate facility to attempt to persuade a minor to engage in sexual acts, in violation of 18 USC Sec. 2422(b). To prove that Curtin harbored the specific subjective intent these crimes required, the government used lewd stories describing sexual acts between adults and children in Curtin's possession when arrested. Relying on Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998) (as amended), a divided USCA panel reversed Curtin's conviction on the ground that the district court erred in admitting in evidence the sexually explicit materials in his possession for the limited purpose of shedding light on Curtin's intent with respect to his conduct and behavior toward the object of his travel across state lines. Guided by Shymanovitz, the panel held that "possession of lawful reading material is simply not the type of conduct contemplated by Rule 404(b)" of the Federal Rules of Evidence. The USCA subsequently took the case en banc to revisit the panel's decision, and to reexamine Shymanovitz's categorical exclusion as a matter of law of reading materials from the varieties of evidence that might otherwise all within the reach of Rule 404(a). Because of a serious flaw in the manner in which the trial court reviewed Curtin's stores pursuant to Rule of Evidence 403, the USCA reversed and remanded for a new trial. It found that the district court did not abuse its discretion in concluding that the stories in Curtin's possession at the time of his arrest contained relevant evidence pursuant to Rule 4040(b) insofar as they related to sexual acts between adults and minors. This evidence had probative value with respect to the intent element of the specific intent crime for which he was prosecuted. The district court properly required the prosecution to demonstrate the evidence's connection to the crime with which Curtin was charged. Having found the evidence relevant to show intent, the district court's remaining responsibility was carefully to limit the evidence to avoid a violation of Rule 403, i.e., to ensure that the evidence's potentially prejudicial effect did not substantially outweigh it probative value. Here, the court's discretion was not properly exercised. Judge Kleinfeld, joined by Pregerson, Kozinski, Thomas, and Berzon, concurred in the reversal of Curtin's conviction. He agreed with the majority that a trial judge must examine evidence in order to weigh it probative value against the poten-tial for unfair prejudice, but disagreed about whether the stories in question were relevant and admissible to show intent. Concurring, Judge McKeown, joined by Pregerson, Kozinski, Thomas, and Berzon, noted that all 15 judges on the en banc panel agreed on the reason to remand: the district judge did not real all of the pornographic stories admitted into evidence to weigh their probative value against the potential for unfair prejudice. Schroeder, Wallace, Pregerson, Kozinski, Trott (author), Rymer, Kleinfeld (concurring), Thomas, Silverman, Graber, McKeown (concurring), Wardlaw (concurring), Berzon, Bybee, and Callahan, Circuit Judges. C. Potter of Las Vegas, NV, for the appellant; AUSA N. Koppe of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 58) SENTENCING: USA v. Bibler, 06-30375 (9th Cir. May 4, 2007). Bibler appealed her 80-month sentence, arguing that the district court erred in failing to apply the safety value exception, 18 USC Sec. 3553(f), when sentencing her. Even assuming that the district court's failure to apply Sec. 3553(f) was error, Bibler waived her right to appeal the sentence imposed by the district court. The USCA thus dismissed her appeal. B. Fletcher (author), O'Scannlain, and Tashima, Circuit Judges. E.J. Lord of Great Falls, MT, for the defendant-appellant; AUSA J. Thaggard of Great Falls, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 59) SENTENCING: USA v. Ray, 06-30466 (9th Cir. May 3, 2007). Ray appealed her sentence upon revocation of her supervised release on the ground that USA v. Booker, 543 US 220 (2005), established the maximum term of imprisonment, for purposes of deter-mining the maximum term of imprisonment post-revocation, as the high end of the applicable Sentencing Guidelines range, and that her sentence exceeded that maximum. She pled guilty to bank embezzlement in violation of 18 USC Sec. 656 and was sentenced, pre-Booker, to a term of imprisonment followed by supervised release. Ray twice violated the conditions of her supervised release, and was sentenced to imprisonment for these violations for a total of 15 months. If Ray's assertion is correct, her second revocation sentence, of six months, would exceed the applicable maximum-using the high end of the Guidelines range prescribed at the time of her original sentencing as the statutory maximum to define the applicable maximum term of revocation imprisonment-and she would be entitled to reveal. The USCA affirmed. It held in prior cases that Booker has no effect on the revocation of supervised release. Ray presented no reason to depart from these cases. B. Fletcher, O'Scannlain, and Tashima (author), Circuit Judges. AFPD J. Rhodes of Missoula, MT, for the appellant; AUSA T. Racicot of Missoula, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 60) SENTENCING: USA v. Hollis, 05-30611 (9th Cir. May 7, 2007). Hollis was sentenced to 240 months' imprisonment after a jury convicted him of distribution of cocaine base and maintaining drug-involved premises in violation of 21 USC Secs. 841(a)(1) & (b)(1)(A) and 21 USC Secs. 856(a)(1) & (b), respectively. He challenged his conviction and sentence, contending that the evidence of his sales to a government informant prior to the charged sale should not have been admitted, that evidence seized from his apartment should have been suppressed, that evidence that he used two apartments to manufacture crack was insufficient to sustain his conviction on those counts, that he was improperly sentence under Sec. 841(b)(1)(A) for distribution of cocaine base, and that his sentence was improperly based on the fact of his prior conviction. The USCA found these contentions to be meritless and affirmed. B. Fletcher and McKeown, Circuit Judges, and Schwarzer (author), District Judge. M. Robinson of Cincinnati, OH, for the appellant; AUSA J. Farrington of Anchorage, AK, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 61) SENTENCING: USA v. Fifield, 06-30171 (9th Cir. May 7, 2007). On his first appeal, Fifield was granted a limited remand pur-suant to USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). On remand, the district court declined to revisit Fifield's sentence. He again appealed, arguing that the district court erred by failing to request his views regarding a appropriate sentence under the advisory guidelines regime before making its decision. The USCA again remanded. The district court made its decision without soliciting the views of the parties. That was error. Concurring specially, Judge O'Scannlain wrote separately to express his concern that USA v. Montgomery, 462 F.3d 1067 (9th Cir. 2006), transforms the role of the judge in a way that Ameline does not require. Judge Tashima, joined by Berzon, filed a separate concurrence to express his disagreement with O'Scannlain's criticism of Montgomey's interpretation of an Ameline remand, which, he thought, imposed no more than that notice and an opportunity be heard be given.. O'Scannlain (concurring), Tashima (author and concurring), and Berzon, Circuit Judges. AFPD J. Rhodes of Missoula, MT, for the appellant; AUSA E. Wolff of Billings, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 62) SENTENCING: USA v. Simtob, 06-30120 (9th Cir. May 11, 2007). Simtob raised three issues on appeal from the district court's sentence following revocation of his supervised release: first, whether, in light of USA v. Miqbel, 444 F.3d 1173 (9th Cir. 2006), the sentence imposed following revocation of his supervised release was reasonable; second, whether the district court abused its discretion when it failed to conduct an inquiry of a juror concerning a complaint that he was "eyeballing" the juror and that the juror felt threatened; and, third, the reasonableness of the sentence imposed. Because the district court rendered the decision to revoke Simtob's supervised release without the benefit of Miqbel, the USCA vacated the revocation sentence and remanded for reconsideration in light of our directive set forth in Miqbel, and clarified in the instant case. It also vacated Simtob's conviction and remanded for the district court to determine whether Simtob's alleged misconduct toward the juror resulted in a biased jury. Because it vacated Simtob's conviction, it also vacated his sentence for that conviction, rendering Simtob's challenge to the reasonableness of his sentence moot. Fisher and Tallman, Circuit Judges, and Ezra (author), District Judge. A. Gallagher of Great Falls, MT, for the appellant; AUSA C. Rostad of Great Falls, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 63) SENTENCING: USA v. Gomez-Mendez, 05-50729 (9th Cir. May 14, 2007). At issue here was whether the defendant's prior California conviction for unlawful sexual intercourse with a minor qualified as a "crime of violence" under the federal Sentencing Guidelines. The USCA affirmed the district court's ruling that the prior conviction for unlawful sexual intercourse by a person at least 21 years old with a minor under 16 years old under Cal. Penal Code Sec. 261.5(d) qualified as a "crime of violence" under Guideline Sec. 2L1.2(b)(1) (A)(ii). It further held that the district court did not err in increasing the sentence under 18 USC Sec. 1326(b)(2). However, it remanded to the district court to determine whether the government improperly refused to move under Guideline Sec. 3E1.1(b) for a one-level reduction for timely acceptance of responsibility was for an unconstitutional motive. Kozinski, O'Scannlain (author), and Bybee, Circuit Judge. B. Coleman of San Diego, CA, for the appellant; AUSA J. Breen of San Diego, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 64) SENTENCING: USA v. Carson, 06-30387 (9th Cir. May 15, 2007). At issue here was whether a conviction under Washington's second-degree assault statute is a "crime of violence" for the purposes of the Sentencing Guidelines career offender enhancement pro-vision, Sec. 4B1.1. The USCA affirmed. Carson made no showing that the state courts applied Wash. Rev. Code Sec. 9A.36.021(1)(f) to him, or anybody else, in circumstances where bodily injury was unlikely to occur. Given that his prior conviction for second-degree assault was for a categorical crime of violence, the district court did not err in determining that Carson was eligible for a career offender enhancement. Kozinski, Fisher, and Tallman, Circuit Judges. Per Curiam. R. Ness of Port Orchard, WA, for the appellant; J. McKay of Tacoma, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 65) EARLY RELEASE: Serrato v. Clark, 06-15167 (9th
Cir. May 9, 2007). At issue here was whether the Federal Bureau
of Pris-ons ("BOP") improperly terminated its early-release
correctional program. Known as "boot camp," the program
was established to provide a regimented schedule with strict discipline
and physical training for inmates and aimed to reduce recidivism
and control prison populations and costs. Upon successful completion
of the program, inmates were eligible for a sentence reduction of
up to six months. In 2004, citing budgetary constraints and a study
which showed the program ineffective to reduce recidivism, BOP terminated
the program. Before it was terminated, Serrato was convicted of
possession of methamphetamine with intent to distribute. At sentencing,
the judge recommended that she be placed in the boot camp program.
BOP informed the judge that Serrato's initial sentence was too long
for her to be placed directly in the program, so the judge reduced
her sentence to make her eligible. She reported to prison but was
informed that the program had been terminated. Faced with the prospect
of losing the six-month sentence reduction, she filed a habeas petition,
claiming that BOP's decision to terminate the program violated the
Administrative Procedure Act, the separation of powers, the prohibition
on Ex Post Facto punishment, and Circuit holdings on retroactive
agency action. The district court denied the petition. The USCA
affirmed. BOP's decision had been committed to its discretion by
law, and did not require notice and comment. Its termination of
the program did not violate sentencing statutes, the Sentencing
Guidelines, or the separation of powers. Moreover, Serrato suffered
no harm cognizable under the Ex Post Facto Clause or the Circuit
retroactivity doctrine. Farris, Clifton, and Bea (author),
Circuit Judges. S. Sady of Portland, OR, for the appellant; A. Cheng
of of San Francisco, CA, for the appellee (Download
the full text of this decision at www.ce9.uscourts.gov/)
67) HABEAS CORPUS: Lambright v. Schriro, 04-99010 (9th Cir. May 11, 2007). In this pre-AEDPA habeas appeal, the issue was whether defense counsel's performance during the sentencing phase of a capital trial was so deficient as to violate the defendant's right to counsel under the Sixth Amendment. Lambright and his co-defendant Smith were convicted of first degree murder, kidnapping, and sexual assault. Lambright was sentenced to death. When his conviction and sentence were affirmed by the Arizona courts on direct appeal and in state post-conviction proceedings, he filed a habeas petition in federal district court. It denied the petition, and Lambright appealed. In 1999, the USCA reversed his conviction on the ground that the use of dual juries for a single trial of both Lambright and Smith violated due process. An en banc panel then reheard the case, reversed, and affirmed the denial of habeas relief with respect to the dual jury issue. After the case was returned to the panel for resolution of Lambright's remaining claims, the USCA rejected all of his contentions with the exception of penalty phase ineffective assistance of counsel. The USCA remanded it to the district court for an evidentiary hearing. After that hearing, the district court ruled that Lambright's trial counsel had not provided deficient representation, and further ruled that even if the performance was deficient, Lambright was not prejudiced. However, because it found that trial counsel's performance was both deficient and prejudicial, the USCA reversed and remanded for issuance of a habeas writ and new sentencing proceedings. The district court erred in concluding that Lambright did not receive ineffective assistance of counsel at the penalty phase of his trial and further erred in holding that, even if he did, he suffered no prejudice as a result. Concurring, Judge Ferguson wrote separately to focus on the district court's erroneous rejection of Lambright's Post Traumatic Stress Disorder claim. Ferguson (concurring), Reinhardt, and Thompson, Circuit Judges. Per Curiam. J. Sands of Tucson, AZ, for the petitioner; T. Goddard of Phoenix, AZ, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 68) HABEAS CORPUS: Foote v. Del Papa, 06-15094 (9th Cir. May 22, 2007). Foote appealed a district court's judgment denying his habeas petition. Reviewing de novo, the USCA affirmed. Neither Cuyler v. Sullivan, 446 U.S. 335 (1980), Anders v. California, 386 U.S. 738 (1967), Entsminger v. Iowa, 386 U.S. 748 (1967), nor USA v. Cronic, 466 U.S. 648 (1984), stand for the proposition that a criminal defendant states a Sixth Amendment claim by alleging either an irreconcilable conflict with his appointed counsel or that counsel had a conflict of interest based on the petitioner's dismissed lawsuit against the public defender's office and appointed pre-trial counsel. The Nevada Supreme Court's rejection of the conflict of interest claim was neither contrary to, nor an unreasonable application of, established federal law. Wallace (author) and Thomas, Circuit Judges, and Ezra, District Judge. AFPD P. Turner of Las Vegas, NA, for the petitioner; DAG D. Neidert of Reno, NV, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 69) HABEAS CORPUS: Pulido v. Chrones, 05-15916 (9th Cir. May 30, 2007). Pulido was convicted for the robbery of a gas station in California. He argued that the California Supreme Court wrongly affirmed his conviction. The USCA reversed, citing the "absolute certainty" standard of Lara v. Ryan, 455 F.3d 1080 (9th Cir. 2006). Judge O'Scannlain agreed that Lara compelled the USCA to affirm the district court's grant of habeas relief, but wrote separately because he thought the USCA's instructional error jurisprudence should be reviewed, preferably by the USCA sitting en banc, or if not, by the Supreme Court. Judge Thomas also concurred. Although he agreed with the majority opinion that Lara required the USCA to treat the instructional error at issue here as a structural error. He wrote separately to emphasize that the result the majority reached would be the right result even under a harmless error standard and also to express his disagreement with the conclusion of O'Scannlain that Lara should be overruled. Goodwin, O'Scannlain (concurring), and Thomas (concurring), Circuit Judges. Per Curiam. DAG J. Friedlander of San Francisco, CA, for the respondent; J. O'Connell of San Francisco, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/) |
| 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. |