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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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1) SECURITIES: SEC v. Ross, 05-35541
(9th Cir. Oct. 15, 2007). Bustos and 16 other intervenors-defendants
(collectively "Bus-tos") appealed the District Court's order
requiring them to disgorge commissions received through the sale of
interests in pay phones being offered by Alpha Telcom and related
companies (collectively "Alpha"). The disgorgement order
issued in a summary proceeding ancillary to an enforcement action
brought by the SEC against Alpha and its owner, Rubera, alleged securities
law violations arising from the sale of these interests. Bustos challenged
the disgorgement order on several grounds, including lack of personal
jurisdiction, improper venue, insufficiency of service of process,
and due process violations arising from the District Court's use of
summary proceedings. Bustos also appealed the calculation of the amount
of disgorgement. The USCA vacated and remanded. It held that the District
Court lacked in personam jurisdiction over Bustos and, thus, erred
when it entered its order against him. D.W. Nelson, Kleinfeld, and
Bybee (author), Circuit Judges. E. Bustos pro se of San Antonio,
TX, as the intervenor-appellant; D. Zaro of Los Angeles, CA, for the
receiver; C. Paik of Washington, DC, for the appellee.(Download
the full text of this decision at www.ce9.uscourts.gov/)
2) BANKRUPTCY / TAXATION: Ellett v. Stanislaus, 05-16677
(9th Cir. Oct. 29, 2007). Ellett appealed from a District Court's
order affirming a Bankruptcy Court decision denying his requests
for a declaratory judgment that pre-petition taxes owed to the Cali-fornia
Franchise Tax Board (FTB) be discharged, an injunction enjoining
the Executive Director of the FTB from making further efforts to
collect the taxes, and attorneys' fees and costs. At issue was whether
the debtor's failure to provide an accurate social security number
to a creditor in the notice mailed to that creditor informing it
of the first meeting convened under 11 USC Sec. 341(a) placed that
creditor on sufficient notice to protect its rights in a Chapter
13 Bankruptcy proceeding in light of the fact that the mailing otherwise
contained the debtor's correct name and address. The USCA held that
the claim for payment of pre-petition taxes was not discharged because
the FTB did not receive adequate notice of Ellett's Chapter 13 action.
Alarcon (author), Thompson, and Tallman, Circuit Judges.
R. Kole of Antioch, CA, for the appellant; K. Whiten of San Francisco,
CA, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
4) BANKRUPTCY: In re El Toro Materials, 05-56164
(9th Cir. Oct. 1, 2007). The bankruptcy estate of El Toro Materials
sought a cap on damages resulting from the termination of a lease
of real property, 11 USC Sec. 502(b)(6), to limit its liability
for leaving a million tons of wet clay, mining equipment and other
materials on Saddleback Community Church's property after rejecting
the lease. Saddleback brought an adversary proceeding claming $23
million in damages for removal costs under theories of waste, nuisance,
trespass and breach of contract. The Bankruptcy Court held that
Saddleback's recovery would not be limited by the Sec. 502(b)(6)
cap. The Bankruptcy Appellate Panel reversed, holding that damages
would be capped. The USCA reversed and remanded for a ruling on
the merits of Saddleback's claim. Saddleback's argument that Sec.
502(b)(6) does not cap its claim for damages was properly raised;
it did not waive its argument by failing to question the breadth
of the Sec. 502(b)(6) cap in its cross-appeal from the Bankruptcy
Court to the BAP, as the ruling of the Bankruptcy Court on this
issue was entirely favorable to Saddleback and Saddleback had no
reason to challenge it. Friedman, Kozinski (author), and
Gould Circuit Judges. R. Braun of Costa Mesa, CA, for the appellant;
R. Van Wert of Costa Mesa, CA, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
6) TRADEMARKS: Rhoades v. Avon Products, 05-56047
(9th Cir. Oct. 15, 2007). At issue in this trademark declaratory
relief action, was whether the District Court properly dismissed
the plaintiffs' case for lack of subject matter jurisdiction. They
had sought a declaration that several of their trademarks did not
infringe on the defendant's registered marks. The jurisdictional
issue turned on whether they alleged a constitutionally sufficient
case or controversy in their First Amended Complaint (FAC). The
USCA also had to decide whether related proceedings pending before
the Trademark Trial and Appeal Board (TTAB) provided an appropriate
basis for the District Court to invoke the doctrine of primary jurisdiction
in order to dismiss the plaintiffs' action and, if not, whether
the Court property exercised its discretion under 28 USC Sec. 2201
when it declined to assert jurisdiction. The USCA held that the
allegations in the FAC alleged a true case or controversy that established
subject matter jurisdiction. It also held that, although the TTAB
provides a forum to address trademark registration issues, the availability
of such a forum did not justify the application of the doctrine
of primary jurisdiction as a basis for dismissing the plaintiffs
federal court action. The plaintiffs thus were not required to wait
for the completion of TTAB proceedings before seeking declaratory
relief in federal court. In addition, under the circumstances of
this case, the District Court abused its discretion in declining
to assert jurisdiction over the plaintiffs' request for declaratory
relief. Finally, because of the firmly expressed views of the district
judge, the USCA direct that, on remand, the case be reassigned to
a new judge. Noonan, Kleinfeld, and Paez (author), Circuit
Judges. S. Freund of Los Angeles, CA, for the appellants; M. Graham
of New York, NY, for the appel-lee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
8) ENVIRONMENTAL LAW: Friends of Pinto Creek v. EPA, 05-70785 (9th Cir. Oct. 4, 2007). At issue here was whether the EPA properly issued a National Pollution Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA) to Car-lota Copper Company. The permit allowed mining-related discharges of copper into Arizona's Pinto Creek, a waterbody already in excess of water quality standards for copper. Because the issuance of the NPDES to Carlota was based on errors of law under National Environmental Policy Act and CWA, the USCA vacated and remanded for further proceedings. The permit did not comply with 40 CFR Sec. 122.4(i) which states that no permit may be issued when the conditions of the permit do not provide for compliance with the applicable requirements of the CWA or regulations promulgated under the CWA. Hug (author), Tashima, and Gould, Circuit Judges. R. Flynn of Lyons, CO, for the petitioner; D.J. Keith Washington, DC, for the respondents; A. Porter of Phoenix, AZ, for the interve-nor. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) LABOR LAW / CIVIL PROCEDURE: Ryman v. Sears, Roebuck & Company, 06-35630 (9th Cir. Oct. 12, 2007). Here, the USCA reiterated the rule that when a federal court is required to apply state law, and there is no relevant precedent from the state's highest court, but there is relevant precedent from the state's intermediate appellate court, the federal court must follow the state inter-mediate appellate court decision unless the federal court finds convincing evidence that the state's supreme court likely would not follow it. Fernandez, Silverman (author), and Graber, Circuit Judges. K. Karnes of Salem, OR, for the plaintiff-appellant; M. Garone of Portland, OR, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 10) LABOR LAW: Pocatello Education Association v. Heideman, (9th Cir. Oct. 5, 2007). Plaintiff labor organizations sued offi-cials of the State of Idaho, claiming that the Voluntary Contributions Act (VCA), Idaho Code Secs. 44-2004(2) and -2601 to -2605, violated plaintiffs' constitutional rights under the First Amendment as well as other constitutional provisions. Before the District Court, the State officials conceded that all challenged provisions were unconstitutional, except Idaho Code. Sec. 4402004(2), which prohibits any payroll deductions for "political activities." The District Court held the ban on payroll deductions to be constitutional as applied to the state government itself, but unconstitutional as applied to private and local government employers. The State officials maintained on appeal that the payroll deduction ban may be constitutional applied to local government employers. Affirming, the USCA held that Sec. 44-2004(2), as applied to local government employers, violates the First Amendment because it is a content-based law for which the State officials asserted no compelling justification. Moreover, the State officials have not shown that the law should be reviewed under the more relaxed standard applicable to speech restrictions in nonpublic fora. In particular, they have not shown that the State of Idaho may properly assert a proprietary interest in controlling assess to the payroll systems that constitute the fora in this case. Case law suggests that the authority over local governments the State possesses by operation of law is not enough to associate the local workplaces or payroll deduction programs with the State of Idaho, and the State officials have adduced no specific evidence that the State actually does own, administers, or control the payroll deduction programs. Canby, Tashima (author), and Callahan, Circuit Judges. DAG C. Smith of Boise, ID, for the defendants-appellants; J. Collins of Washington, DC, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) DISABILITY PLANS: Shane v. Albertson's, 05-56319 (9th Cir. Oct. 15, 2007). Albertson's Employees' Disability Plan and several other Albertson's Employee Plans brought this appeal from a District Court's order reversing Albertson's decision to terminate Shane's Long Term Disability ("LTD") benefits. Several issues were presented to the District Court, including whether it should refer to Albertson's Disability Plan effective as of August 1, 1993 or to its Disability Plan effective as of February 1, 2002, and the appropriate standard for reviewing the termination of Shane's LTD benefits. It ruled in favor of Shane by finding that the 1993 Disability Plan governed Shane's LTD claim and, in applying the de novo standard of review. It held that Shane was entitled to continue receiving LTD benefits. The USCA affirmed. It found that the District Court properly applied the 1993 Disability Plan in reviewing Albertson's decision to terminate Shane's LTD benefits. While the District Court may not have properly applied and expressly considered the 1993 Disability Plan's delegation clause and relevant evidence, the USCA affirmed based upon its de novo review, because the record established that Albertson's decision-making body was not properly vested with the requisite discretionary authority so as to invoke a deferential standard of review by the District Court. Dissenting, Judge Trott thought that even assuming, arguendo, that the 1993 Plan controlled, he would disagree with the majority's analysis of the standard of review applicable to this controversy because he thought its approach was at odds with Hensley v. Northwest Permanente Retirement Plan & Trust, 258 F.3d 986 (9th Cir. 2001), which held that the District Court properly applied an abuse of discretion standard of review where the administrators that denied the plaintiffs' clamed received their authority via a verbal delegation. Rawlinson and Trott (dissenting), Circuit Judges, and Murguia (author), District Judge. L. Kantor of Northridge, CA, for the appellees; W.M. Gavre of Salt Lake City, UT, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) ERISA: Miller v. Rite Aid Corp., 05-35505 (9th Cir. Oct. 11, 2007). At issue here was whether the estate and beneficiaries of an employee who was neither enrolled in, nor eligible for, a life insurance plan regulated by ERISA at the time of her death (which pre-ceded the time this action was filed) may being an ERISA claim. The USCA held that these parties may not bring such a claim and thus that ERISA did not preempt the appellants' state law claims. Reinhardt (author), Hall, and Smith, Circuit Judges. J.M. Alexander of Salem, OR, for the appellants; B. Rubin of Portland, OR, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) SOCIAL SECURITY: Lingenfelter v Astrue, 04-56934 (9th Cir. Oct. 4, 2007). Lingenfelter appealed the District Court's judgment affirming an ALJ's decision denying his applications for social security disability insurance benefits and supplemental security income under Title II and XVI of the Social Security Act. He argued that substantial evidence did not support the ALJ's decision be-cause the ALJ improperly rejected his testimony as not credible. The USCA reversed with instructions for the District Court to remand to the ALJ for the calculation and award of appropriate benefits. It concluded that the ALJ did not provide clear and convincing rea-sons for his adverse credibility determination. There was no consensus of medical opinion contrary to Lingenfelter's testimony, and his failed work attempt alone was not a clear and convincing reason for rejecting his testimony, especially in light of the record as a whole. Moreover, because the vocational expert testified that Lingenfelter's pain and physical limitations would eliminate potential employment, further proceedings were unnecessary. Dissenting, Judge Beezer thought the majority failed to properly analyze the ALJ's assessment of Lingenfelter's credibility. When evaluating the credibility of a claimant's testimony, the ALJ has discretion to resolve conflicts between opinions of examining and treating physicians. He thought the ALJ may be justified in discounting the value of Dr. Caillouette's statements as to Lingenfelter's ability to work. In addition, when the treating physicians' statements are ambiguous, Judge Beezer thought the USCA had to permit the ALJ to interpret the statements, rather than adopt its own interpretations. Thus, Judge Beezer would reverse the judgment of the District Court and remand to the District Court with instructions to remand to the Commissioner of the Social Security for further administrative proceedings consistent with his dissent. Beezer (dissenting), Wardlaw, and Paez (author), Circuit Judges. T. Monge of Anaheim, CA, for the plaintiff-appellant; AAG P. Keisler of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) TORTS / NEGLIGENCE / FEDERAL AVIATION ACT: Montalvo v. Spirit Airlines, 05-15640 (9th Cir. Oct. 4, 2007). These consolidated appeals arose from 14 negligence claims under California common law against various airlines for failing to warn about the danger of developing deep vein thrombosis (DVT) and for providing an unsafe seating configuration on domestic flights. At issue was whether, and if so, to what extent, the Federal Aviation Act of 1958 and its corresponding regulations promulgated by the FAA regarding aviation safely, preempt state law standards of care, including any state-imposed duty to warn about the risks of DVT. Also at issue was whether the plaintiffs may recover for injuries sustained due to an allegedly unsafe seating configuration or whether such clams are preempted by the Airline Deregulation Act of 1978 (ADA). The District Court found federal preemption in both instances. It held that the FAA impliedly preempts the field of preflight warnings, and dismissed the failure to warn claim as a matter of law. It further held that the ADA preempts the plaintiffs' unsafe seating configuration claim, because any seating reconfiguration would impermissibly affect airline prices. The USCA affirmed the District Court's dismissal of the failure to warn claim, but remanded the seating configuration claim for further factual development. The FAA and relevant federal regulations preempt the plaintiffs failure to warn claims, because the FAA preempts the entire field of aviation safety through implied field preemption. FAA and regulations promulgated pursuant to it establish complete and thorough safety standards for air travel, which are not subject to supplementation by, or variation among, state laws. Schroeder (author) and Trott, Circuit Judges, and Moskowitz, District Judge. R. Baker of Seattle, WA, for the appellants; W. Boyce of Houston, TX, and S. Kenney of San Francisco, CA, the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) ZONING: Fantasyland Video v. County of San Diego, 05-56026 (9th Cir. Oct. 15, 2007). In June 2002, the San Diego County Board of Supervisors adopted a comprehensive zoning ordinance to govern the operation of adult entertainment businesses within it jurisdiction, which covers unincorporated portions of the county. The ordinance restricts the hours in which such businesses can operate, requires the removal of doors on peep shows booths, and limits adult entertainment establishment to areas of the country zoned for industrial use. The County's stated rationale was that the ordinance was to combat negative secondary effects-crimes, disorderly conduct, blight, noise, traffic, property value depreciation, and unsanitary behavior-that concentrated in and around adult businesses. The operator of an adult entertainment business located in an unincorporated portion of San Diego County filed suit and subsequently ap-pealed the District Court's decision upholding the ordinance's hours restrictions and open-booth requirement. The operator maintained that the hours of operation restriction violated both the First Amendment and the California Constitution. After oral argument, the USCA certified to the California Supreme Court the question of what the proper standard of review is under the California Constitution. The California Supreme Court responded that hours-of-operation ordinances for adult businesses are subject to intermediate scrutiny. Meanwhile, Fantasyland advised the USCA of its decision to withdraw its claim that the hours of operation restriction violates the First Amendment, while retaining its claim under the California Constitution. The federal issue was thus taken off the table regarding the hours restriction, but it remained a basis for the challenge to the open-booth requirement. The USCA affirmed the District Court's decision to uphold the ordinance's hour-of-operation restriction as surviving intermediate scrutiny under the California Constitution. Fantasyland failed to cast direct doubt on the County's rational for the hours restriction. With respect to the open-booth requirement, the USCA affirmed the District Court's ruling that the County's requirement of open booths at peep shows does not violate the First Amendment. Similar to the ordinances in other cases upholding open-boot requirements, the County's open-booth ordinance is supported by evidence of the nexus between closed booths and adverse secondary effects such as prostitution and pandering, matters in which the County has a substantial interest in regulating. Moreover, the ordinance is narrowly tailored. The content, number, and availability of peep shows were untouched; the ordinance dealt only with the doors. The USCA further rejected Fantasyland's argument that the provision is invalid under Justice Kennedy's concurring opinion in Los Angeles v. Alameda Books, 535 US 425 (2002). It noted that Kennedy's concurrence is not applicable to open-booth requirements. Silverman (author), W. Fletcher, and Clifton, Circuit Judges. C. DeWitt of Los Angeles, CA, for the plaintiff-appellant; T. Bunton of San Diego, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) ZONING: Tollis, Inc. v. County of San Diego, 05-56300 (9th Cir. Oct. 10, 2007). In June 2002, the San Diego County Board of Supervisors adopted a comprehensive zoning ordinance governing the operation of adult entertainment businesses within it jurisdic-tion. The ordinance restricts the hours in which such businesses can operate, requires the removal of doors on peep shows booths, and limits adult entertainment establishments to areas of the county zoned for industrial use. The County's stated rationale was that the ordinance aimed at combating negative secondary effects (crimes, disorderly conduct, blight, noise, traffic, property value depreciation, and unsanitary behavior) concentrated in and around adult businesses. Déjà vu, an adult entertainment business, appealed the District Court's decision to uphold the ordinance's dispersal requirements. It also appealed the District Court's dismissal of its claim under California Government Code Sec. 65860, which requires zoning laws to confirm to the municipality's general plan, and the District Court's decision to sever a provision of the ordinance setting forth the amount of time in which the County had to approve an operating permit for adult establishment. The USCA affirmed in all respects, but one. It held that the District Court's manner of severance was in error and reversed on that ground. It noted that once the offending provision is removed, the text of the ordinance contains no time limits at all. A licensing requirement for protected expression is patently unconstitutional if it imposes no time limits on the licensing body. Silverman (author), W. Fletcher, and Clifton, Circuit Judges. A.D. Manicom of San Diego, CA, for the appellants; T. Bunton of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) BILLBOARDS / FIRST AMENDMENT: Desert Outdoor Advertising, Inc. v. Oakland, 05-15501 (9th Cir. Oct. 30, 2007). Desert Outdoor Advertising wanted to display three billboards, each could be viewed from a freeway in Oakland, California. The signs would display the messages "Volunteer to be a Big Brother" and "Pray at First Baptist Church." Oakland refused to permit the signs, citing specific City ordinances. Desert filed this action to challenge those ordinances on First Amendment grounds. Desert argued that Oakland Municipal Code Sec. 1501, which generally prohibits advertising signs designed to be seen from a freeway, favors commercial over noncommercial speech and imposes content-based restrictions on noncommercial speech. It also maintained that Oakland Planning Code Sec. 17.148.050(A), which limits advertising signs more generally, provides City officials which unbridled discretion to permit or deny the display of signs. Finally, it challenged the specific application of these ordinances to the signs it erected or attempted to erect. The District Court held that one provision of Sec. 1501 was a content-based regulation of noncommercial speech in violation of the First Amendment. It severed that provision and held that the rest of the ordinance, as well as Sec. 17.148.050(A), was constitutional. The USCA affirmed. It concluded that the two sign ordinances challenged by Desert, Sec. 1501 and Sec. 17.148.050(A), the latter in its current form, were constitutional, facially and as applied to Desert. Desert, it held, was not entitled to relief beyond that already granted by the District Court. B. Fletcher and Clifton (author), Circuit Judges, and Shea, District Judge. A. Herson of Jacksonville, OR, for the appellant; C. Kee of Oakland, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) PUBLIC UTILITIES: Public Utility Dist. No. 1 of Snohomish County Washington v. BPA, 04-74240 (9th Cir. Oct. 15, 2007). The petitioners, publicly owned utilities (PUDs) operating in the Pacific Northwest challenged contract amendments entered into in May 2004 between the Bonneville Power Administration (BPA) and several investor-owned utilities (IOUs), arguing that they violate provisions of the Northwest Power Act (NWPA). The amendments modify provisions of several "REP Settlement Agreements" BPA entered into with IOUs in October 2000 and implement a $100M "Reduction of Risk" or "litigation penalty" implemented in agreements between BPA and two IOUs, PacificCorp and Puget Sound Energy, in May and June of 2001. In an earlier decision, the USCA found BPA bound by the power exchange requirements of the NWPA and exercised its settlement authority contrary to those requirements when it entered into the REP Settlement Agreements. As BPA had not had an opportunity to determine the continued validity of the 2004 Amendments, the USCA remanded for it to determine in the first instance how to treat the amendments in light of this prior decision and the current opinion. Reinhardt, W. Fletcher, and Bybee (author), Circuit Judges. P. Murphy of Portland, OR, for Canby Utility Board; M. Goldfarb of Seattle, WA, for PUD No. 1; T. Mundorf of Mill Creek, WA, for PUD No. 1 and 3; R. Roach of Port-land, OR, for BPA. (Download the full text of this decision at www.ce9.uscourts.gov/) See Memo Decision 6) below. 19) FOIA: Carlson v. USPS, 05-16159 (9th Cir. Oct. 15, 2007). Carlson appealed pro se the District Court's grant of summary judgment in favor of the U.S. Postal Service ("USPS") in Carlson's action under the Freedom of Information Act, which sought public disclosure of the names, addresses, telephone numbers, regular business hours and final collection times for outgoing mail for every U.S. post office. The District Court held that the records sought were exempt from FOIA disclosure as "information of a commercial na-ture,…which under good business practice would not be publicly disclosed." 39 USC Sec. 401(c)(2). The USCA reversed, finding that the requested records were not "information of a commercial nature" and thus not within the scope of Sec. 401(c)(2). The USCA did not decide whether the entire USPS database from which Carlson requested an electronic version of particular information is commer-cial, nor whether the USPS may be exempt from disclosure. In so ruling, it did not preclude further consideration by the District Court, nor did it preclude consideration of reasonable conditions. Farris, Boochever, and Leavy (author), Circuit Judges. D. Carlson pro se; L. Schaitman of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) CIVIL PROCEDURE: Guglielmino v. McKee Foods Corp., 05_16144 (9th Cir. Oct. 9, 2007). At issue here was the proper burden of proof to be borne by the removing defendant when plaintiffs move to remand the case to state court and their complaint al-leged damages less than the jurisdictional threshold for diversity cases but does not specify a total amount in controversy. Here, be-cause the plaintiffs' complaint was unclear and did not specify a total amount in controversy, the proper burden of proof was proof by a preponderance of the evidence. Because that was the standard the District Court applied in denying the motion to remand the case to state court, the USCA affirmed its judgment. Concurring, Judge O'Scannlain noted his difficulty with the varied and inconsistent bur-dens of proof that the panel placed upon the defendants who sought to exercise their statutory right of removal under 28 USC Sec. 1441. In particular, he disagreed with the imposition of a "legal certainty" burden on a party seeking to invoke federal jurisdiction, rather than seeking to defeat it. O'Scannlain (author and concurring), Hawkins, and Wardlaw, Circuit Judges. E. Zusman of San Francisco, CA, for the appellants; W. Pickering of Chattanooga, TN, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) SANCTIONS: Foster v. Wilson, 05-56424 (9th Cir. Oct. 5, 2007). At issue here was whether the District Court correctly dis-missed, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief could be granted, a complaint alleging federal security fraud. The USCA affirmed the dismissal, but reversed the District Court's imposition of monetary sanctions against the appellants and their attorney. First, the flaw in the federal securities fraud claim was not a failure to allege sufficient facts, but a failure to state a tenable theory upon which the claim could be established. This defective claim could not be saved by incorporating into it a different theory set forth in a state law claim contained in the same complaint. Second, a District Court may impose sanctions sua sponte, but, before doing so, the person against whom the sanctions are to be imposed must be given the same notice and opportunity to respond required for sanctions generally. That did not occur in this case. The only notice the appellants received of the proposed sanctions was Wilson's motion for sanctions. The District Court, however, rejected all of the grounds for sanctions asserted in that motion. It then imposed sanctions on three other grounds not included in the motion. The appellants did not receive notice of those three additional grounds, and had no opportunity to be heard in opposition to them before sanctions were imposed. The USCA reversal of the sanctions did not preclude the District Court from conducting further proceedings on the sanctions issue if it deems such action appropriate. Friedman (author), Kozinski, and Gould, Circuit Judges. W. Delgado of Los Angeles, CA, for the appellants; R. Augustini of Irvine, CA, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) ATTORNEYS' FEES: Shimko v. Guenther, 05-16847 (9th Cir. Oct. 12, 2007). Milton and Kathi Guenther appealed a judgment awarding $359,668.00 in attorneys' fees to Shimko and his law firm (collectively "Shimko") in payment for legal services provided to Arizona limited partnerships, Comprehensive Outpatient Rehabilitation Facility ("CORF") Licensing Services, L.P., and CORF Management Services, L.P. (collectively "CORF entities"), and their limited partners. The organic documents of both CORF entities list Milton Guenther as a limited partner, not as a general partner. On appeal, Shimko argued that it reasonably believed Milton to be a general, rather than a limited partner, and that, as a result, the Guenthers were liable for the legal fees of the CORF entitles under Arizona Revised Statutes Sec. 29-319. The USCA disagreed. Shimko was not an ordinary creditor. It was a law firm hired to defend the CORF entities and its limited partners against a significant number of multi-million dollar claims filed across the country, primarily alleging fraud. The USCA held that because Shimko owed a fiduciary duty of care to its clients, it was chargeable under the facts of this case with knowledge of the contents of the CORF entities' organic documents, whether or not it actually examined them, and thus, that it was not reasonable for Shimko to believe that Milton was a general partner of either of the CORF entitles. Shimko thus could not recover from the Guenthers legal fees owed by the CORF entitles to Shimko. The USCA reversed in part, affirmed in part, and remanded for further proceedings on the issue of the Guenthers' liability for legal fees incurred as a result of Shimko's representation of the Guenthers personally. Bybee and Smith, Circuit Judges, and Seabright (author), District Judges. R. McDaniel of Phoenix, AZ, for the appellants; T. Shimko of Cleveland, OH, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) IMMIGRATION: Ahmed v. Keisler, 04-76246 (9th Cir. Oct. 16, 2007). Ahmed, a native of Bangladesh, appealed a BIA decision affirming an Immigration Judge's denial of his application for asylum, withholding of removal, and protection under the Conven-tion Against Torture (CAT). The USCA granted the petition for review. Ahmed, a 48 year old Bihari, born in East Pakistan before it became Bangladesh. The Biharis had sided with Pakistan against East Pakistan in the War of Independence in 1971. They consider themselves citizens of Pakistan and hoped someday return to Pakistan. After the Biharis' refused to accept Bengali citizenship, the Bengali government removed them from their homes, confiscated their property and businesses, and relocated them to squalid, over-crowded resettlement camps. Ahmed testified that Biharis were virtual prisoners inside these camps; there was not enough food to sustain them, they were not allowed to work, and they did not have the right to travel within the country. Ahmed lived in two such camps before coming to America. In 1972, Ahmed, his older brother, and uncle, were captured and detained by the Bengali army which suspected the uncle of having collaborated with Pakistan. During the detention, the army killed the uncle in front of Ahmed. They also beat Ahmed and his brother. Ahmed's brother suffered a fractured hand and Ahmed has scars all over his body from the beating. The USCA found that substantial evidence did not support the IJ's finding that Ahmed failed to show past persecution. To the contrary, the record compelled the finding that he was targeted and persecuted on account of his political opinion. Dissenting, Judge Rawlinson would deny Ahmed's petition as he thought that substantial evidence did support the IJ's finding of no persecution. Citing Kohli v. Gonzales, 473 F.3d 1061, 1070 (9th Cir. 2007), he noted that persecution is an "extreme concept," characterized by "the infliction of suffering or harm upon those who differ in a way regarded as offensive." He thought the facts of this case did not compel the USCA to fit Ahmed's claims within this characterization. Pregerson (author), and Rawlinson (dissenting), Circuit Judges, and Sandoval, District Judge. S. Hasan of Las Angeles, CA, for the petitioner; J. Grimes of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) IMMIGRATION: Martinez-Merino v. Keisler, 05-74776 (9th Cir. Oct. 10, 2007). In this converted petition for review of the order reinstating his removal from the country, Martinez-Merino challenged the validity of his underlying removal proceedings. Holding that he had not alleged the deprivation of any constitutional or statutory right to be free from the restraint imposed by the reinstatement order, the USCA denied his petition. Judge Paez concurred but wrote separately to note that the Fifth Circuit's recent conclusion in Ramirez-Molina v. Ziglar, 436 F.3d 508 (9th Cir. 2006), that Sec. 106(a)(1)(A)(iii) of the Real ID Act, codified at 8 USC Sec. 1252(a)(2)(D), cured any potential Suspension Clause concerns implicated by Sec. 1231(a)(5)'s foreclosure of judicial review of an underling removal order. Wallace, Noonan (author), and Paez (concurring), Circuit Judges. P. Eide of Anchorage, AK, for the peti-tioner; E. Duffy of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) ARRESTS / EXCESSIVE FORCE: Acosta v. Hill, 05-56575 (9th Cir. Oct. 17, 2007). Bouncers physically removed Acosta from Murphy's Club, a bar in San Diego's Qualcomm Stadium. Stadium security was notified, and two security guards approached Acosta. She refused to show the guards her ID or to accompany them to the security office. San Diego Police Officers then intervened. Officer Hill told Acosta that she had been ejected from the stadium. After he told her at least three times that she would be arrested if she didn't leave the stadium, Acosta kicked both Hill and a security guard. Hill then placed her in a carotid restraint hold. She became compliant without losing consciousness, and was handcuffed. Soon, however, she began kicking again, so Hill slammed her to the ground and tied her legs together. She was then taken to the holding area by Officers Krouss and Stafford. Acosta filed a 42 USC Sec. 1983 action against the security guards, police officers, and the City of San Diego, alleging various constitutional violations including unconstitutional use of deadly force under the Fourth Amendment. The jury was given an excessive force instruction based on a rea-sonableness standard-but not a separate deadly force instruction. The jury found for the defendants. Acosta appealed, arguing that the jury should have been given a separate deadly force instruction. The USCA affirmed. Scott v. Harris, 127 S.Ct. 1769 (2007), fore-closed Acosta's deadly force argument. The jury was given an excessive force instruction and found for Hill; it must therefore have determined that the officer acted reasonably. Under Scott, that is the end of the inquiry. The District Court did not err by refusing to give a separate deadly force instruction. Kozinski (author) and Tallman, Circuit Judges, and Sandoval, District Judge. M. Westreich of Pasadena, CA, for the appellant; R. Walters of San Diego, CA, and M. Rutherford of Lemon Grove, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) WITNESS TESTIMONY: USA v. Richard, 06-10377 (9th Cir. Oct. 12, 2007). Richard appealed his jury conviction for being a felon in possession of a firearm under 18 USC Sec. 922(g)(1). The USCA vacated the conviction and remanded, finding that the Dis-trict Court abused its discretion by permitting the jury to rehear only a portion of a key witness's testimony without taking necessary precautions to ensure that the jury did not unduly emphasize the testimony. Dissenting, Judge O'Scannlain could not agree that the District Court abused its discretion by allowing an audio replay in open court of the specific portion of the witness's testimony requested by the jury. O'Scannlain (dissenting), Hawkins (author), and Wardlaw, Circuit Judges. AUSA R. Ellman for the appellants; AFPD A. Traum of Las Vegas, NV, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) PLEA AGREEMENTS: In re Morgan, 07-70201 (9th
Cir. Oct. 9, 2007). Morgan petitioned for a writ of mandamus after
the District Court rejected the stipulated sentence called for by
his plea agreement with the government. The government did not oppose
the petition, and both parties assigned error to the District Court's
conclusion that the stipulated sentence was "unreasonable as
a matter of law." The USCA denied Morgan's petition. However,
because it found that the District Court erred, it remanded the
matter for further proceedings. The USCA emphasized that it reviews
for an abuse of discretion a District Court's decision to reject
a plea agreement. Morgan's petition raised the question of whether,
when considering a sentence-bargain plea agreement, a District Court
must provide individualized reasons for rejecting the agreement,
based on the specific facts and circumstances presented. The USCA
an-swered "yes." District Courts must, the USCA held,
consider individually every sentence bargain presented to them and
must set forth, on the record, its reasons in light of the specific
circumstances of the case for rejecting the bargain. The District
Court here did not engage in such an analysis, ruling instead that
the sentence contemplated by Morgan's plea agreement was "unreasonable
as a matter of law, not necessarily as a matter of fact." Such
a categorical rejection of a sentence bargain plea agreement is
error. The USCA thus remanded to the District Court for it to make
an individualized assessment of the propriety of Morgan's stipulated
sentence in light of the factual circumstances specific to this
case. Goodwin (author), Thomas, and Bea, Circuit Judges. AFPD C.
Orent of Phoenix, AZ, for the petitioner; AUSA L. Boone of Phoenix,
AZ, for the United States. (Download
the full text of this decision at www.ce9.uscourts.gov/)
29) SENTENCING: USA v. Banks, 05-10053 (9th Cir. Oct. 25, 2007). Banks was convicted of violence in aid of a racketeering enterprise ("VICAR"), use of a firearm in a crime of violence, and possession of a firearm by a convicted felon. He was sentence to a total of 450 months in prison. On appeal, he argued that the District Court gave erroneous instructions for the VICAR counts, that the evidence was insufficient to convict him on the VICAR and use of firearm counts, that the District Court erred in giving a "de facto" Allen charge, that it erred in admitting into evidence the underlying facts of a prior felony conviction and that cumulative error produced a miscarriage of justice. The USCA reversed Banks VICAR convictions and sentences on the basis that the District Court's instructions to the jury were erroneous. It affirmed on all other respects. The District Court erred in instructing the jury that it could convict Banks under the VICAR statute if it found that any element of his motivation, no matter how incidental, in assaulting a member of a rival gang was to maintain his membership in his own gang. Wallace, Kleinfeld, and Bybee (author), Circuit Judges. R. Cornell of Reno, NV, for the defendant-appellant; AUSA R. Marsh of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) SENTENCING / ILLEGAL ALIENS: USA v. Salazar-Lopez, 06-50438 (9th Cir. Oct. 24, 2007). The USCA held that for a defendant convicted of being a previously removed alien found in the United States in violation of 8 USC Sec. 1326, the dates of his previous felony conviction and previous removal from the United States, subsequent to that conviction, had to be alleged in the indictment and proved to a jury in order for the defendant to be subject to an increased sentence under 8 USC Sec. 1326(b). In addition, the error of not doing so in a context affecting only sentencing, is subject to harmless error analysis. Since it held that here the error was harmless, the USCA affirmed the sentence imposed by the District Court. Fisher and Clifton (author), Circuit Judges, and Fogel, District Judge. C. Gorden of San Diego for the appellant; AUSA B. Castetter of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) SENTENCING / ILLEGAL ALIENS: Quintero-Salazar v. Keisler, 04-73128 (9th Cir. Oct. 9, 2007). At issue here was whether Cal. Penal Code Sec. 261.5(d) is categorically a crime involving moral turpitude within the meaning of 8 USC Sec. 1182(a)(2)(A)(i)(I), thus making removable any alien committing that crime. The USCA concluded that it is not and granted the petition for review from the contrary decision of the Board of Immigration Appeals. Dissenting, Judge Kleinfeld thought that precedent compelled him to conclude that the crime of which the petitioner was convicted, statutory rape, specifically sexual intercourse by a person over 21 with a person under 16, is a crime of moral turpitude. He noted that the Ninth Circuit has consistently held that statutory rape laws prohibiting sexual contact with a minor under 16 proscribe conduct constituting sexual the abuse of a minor, an aggravated felony. The Circuit has even said that Quintero-Salazar's crime is a "crime of violence." These precedents leave no room, in Judge Kleinfeld's view, for the panel to now conclude that the crime is not one of moral turpitude or is not an aggravated felony. He would thus conclude, as the BIA concluded, that Quintero-Salazar was ineligible for a waiver. Kleinfeld (dissenting) and Thomas (author), Circuit Judges, and Leighton, District Judge. Z. Nightingale of San Francisco, CA, for the petitioner; E. Molina of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 32) SENTENCING / ILLEGAL ALIENS: USA v. Perez-Perez, 06-30341 (9th Cir. Oct. 22, 2007). Perez was arrested in Seattle on Feb. 7, 2006, and charged with illegal re-entry after being deported in violation of 8 USC Sec. 1326(a). He waived indictment and pleaded guilty on March 8, 2006. In his plea agreement, he acknowledged that a previous conviction for possession with intent to dis-tribute cocaine was an aggravated felony subjecting him to a 20 year enhancement of the maximum potential sentence under 8 USC Sec. 1326(a)(2). He also admitted that he had been deported from the United States on two previous occasions, most recently on or about January 4, 2005, after serving his sentence for eluding examination and inspection by immigration officers in violation of 8 USC Sec. 1325(a)(2). The record also indicated that he had previous convictions for the possession or sale of cocaine in California and Washington state. The District Court conducted a sentencing hearing on June 5, 2006. The U.S. Probation Office recommended a sen-tence of 63-78 months based on the base offense level, Perez's criminal history and acceptance of responsibility, and a downward de-parture for his participation in the district's immigration "fast track" program. The probation office's final recommendation was for 62 months and two weeks, reflecting a bottom-of-the guideline sentence of 63 months minus two weeks for time served. Perez concurred in the calculation as part of his plea agreement. The District Court sentenced Perez to 62 months and two weeks. It stressed his extensive criminal history and the need for deterrence in light of his prompt reentry into the U.S. following his prior deportation. The USCA concluded that the sentence was not unreasonable and affirmed. The sentencing judge expressly based the within-guidelines sentence on the defendant's extensive criminal history and the need for deterrence, while apparently considering-without explicit reference-Perez's mitigation argument. That was sufficient under the Supreme Court's decision in Rita v. USA, 127 S.Ct. 2456 (2007), and Ninth Circuit authority. B. Fletcher, Kleinfeld, and Gould (author), Circuit Judges. AFPD J. Stansell of Seattle, WA, for the appellant; AUSA D. Reno of Seattle, WA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 33) SENTENCING / ILLEGAL ALIENS: USA v. Rodriguez-Guzman, 06-10585 (9th Cir. Oct. 22, 2007). The defendant was indicted on one count of violating 8 USC Sec. 1326(a), Unlawful Reentry by a Deported Alien. He was arrested on September 30, 2005, having been deported several times before. He entered a guilty plea on December 15, 2005, reserving the right to challenge his sentence. His Presentence Report (PSR) revealed a conviction in April 2002 for Unlawful Sexual Intercourse With a Minor, under Cal. Penal Code Sec. 261.5(c) (2000). Relying on that convicton, the District Court determined that Sec. 261.5(c) constituted statutory rape, a per se "crime of violence" under Sentencing Guideline Sec. 2L1.2(b)(1)(A)(ii) (2003). However, it did not consider whether the definition of statutory rape in Sec. 261.5(c)-which sets the age of consent at 18-comports with the common understanding of that crime. It imposed an automatic 16-level enhancement to the sentence. The USCA vacated the sentence and remanded for resentencing. It found Sec. 261.5(c) to be overbroad. The generic federal definition of statutory rape, reflecting the age of consent established by the overwhelming body of authority, requires that the victim be under 16 years of age. Judge Siler concurred with the majority in finding that Sec. 261(5)(c) qualifies as a per se crime of violence under Sec. 2L1.2(b)(1)(A)(ii), but dissented from the majority on whether the District Court erred by finding that a 16-level enhancement was appropriate for the defendant based upon his prior conviction for statutory rape in California. B. Fletcher (author), Siler (dissenting in part), and Hawkins, Circuit Judges. AFPD M. Powell of Reno, NV, for the appellant; AUSA B. Sullivan of Reno, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) SENTENCING / CHILD PORNOGRAPHY: USA v. Salcido, 06-10546 (9th Cir. Oct. 19, 2007). Salcido appealed his conviction and sentence for receipt or distribution of material involving the sexual exploitation of minors, in violation of 18 USC Sec. 2252(a)(2), and possession of material involving the sexual exploitation of minors, in violation of 18 USC Sec. 2252(a)(4)(B). He maintained that (1) the District Court erred in admitting videos and image files into evidence because the government had not estab-lished that they actually depicted a minor; (2) without this evidence, there was insufficient evidence that he possessed authentic material depicting the sexual exploitation of an actual minor; (3) admission of sexual explicit chat logs was irrelevant and unduly prejudicial since he conceded the issue of knowledge; (4) the District Court lacked a sufficient factual basis to enhance his sentence pursuant to Sentencing Guideline Sec. 2G2.2(b)(7)(D); and (5) the District Court erred by failing to hold an evidentiary hearing to determine the number of images he possessed. The USCA affirmed. The principle issue was Salcido's contention that the government's evidence was insufficient to prove that the videos and images depicted an actual minor. The USCA found that it did not need to decide whether the jury may determine the reality of persons depicted in images based solely on the images themselves, as here the government presented additional evidence from which the jury could conclude that the images depicted actual children. For example, Detective Smith testified that he interviewed one of the girls depicted. Siler, McKeown, and Bea, Circuit Judges. Per Curiam. AFPD R. Rainwater of Fresno, CA, for the appellant; AUSA S. Carvalho of Fresno, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) SENTENCING / SUPERVISED RELEASE: USA v. Soltero, 06-50257 (9th Cir. Oct. 19, 2007). Soltero appealed the sentence imposed following his guilty plea to being a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1). He maintained that the District Court erred by failing to verify that he had read his presentence report (PSR) and discussed it with his attorney, as well as by imposing certain conditions of supervised release. The USCA affirmed in part, and vacated and remanded in part. Because the District Court neither directly asked Soltero if he had read the PSR and discussed it with his attorney nor relied on evidence indicating the same, the USCA held that the court's inquiry was inadequate under Fed. Rule Crim. Proc. 32(i)(1)(A), but that this error was harmless. However, the USCA thought that one of the conditions of supervised released was improper: that condition prohibited Soltero from associating with any known member of a "disruptive group." As Soltero pointed out, the term "disruptive group" has a broad meaning and could reasonable be interpreted to include not only a criminal gang, but also a labor union on strike, a throng of political protesters, or a group of sports fans celebrating after their team's championship victory. Accordingly, the substantial encroachment upon Soltero's First Amendment rights created by this condition was without sufficient justification and had to be stricken. Judge Hawkins concurred in all of the majority opinion save that concerning the treatment condition, which he thought constituted an impermissible delegation to the probation office. As he read 18 USC Sec. 3672, only courts are permitted to decide whether, and to what extent, a defendant is required to pay for drug treatment costs. T.G. Nelson, Siler, and Hawkins (dissenting in part), Circuit Judges. Per Curiam. AFPD S. Kennedy of Los Angeles, CA, for the defendant-appellant; AUSA W. Gross of Santa Ana, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) SENTENCING: USA v. Saeteurn, 06-10401 (9th Cir. Oct. 15, 2007). At issue here was whether a sentencing judge must resolve disputes regarding facts recited in a Presentence Investigation Report ("PSR"), when those facts do not affect the terms of imprisonment imposed, but may affect how the sentence is served, including a possible early release from prison. The USCA held that there is no such requirement a sentencing judge must satisfy. It also held that the sentencing judge in this case imposed a reasonable sentence. Hawkins, Tashima, and Bea (author), Circuit Judges. AFPD T. Zindel of Sacramento, CA, for the defendant-appellant; AUSA A. Pings of Sacramento, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) RESTITUTION: USA v. Brock-Davis, 06-30565 (9th Cir. Oct. 2, 2007). This case concerns a restitution order covering testing and cleanup costs for a motel room the defendant occupied during the course of a conspiracy to manufacture methamphetamine. WTR Consulting Engineers was selected to do the testing and cleaning. Restitution was imposed pursuant to the Mandatory Victims Restitution Act of 1996. The parties agreed that the statute applied and the USCA accepted their agreement that it applied. However, the USCA vacated in part and remanded the District Court's decision. It concluded that the District Court erred when it awarded restitution for the motel's lost income from the room and when it required restitution for the total amount of WTR's unsegregated bill, which included asbestos-related costs. On remand, the USCA directed that a determination be made whether the asbestos testing and ceiling tile replacement could be properly linked to the methamphetamine contamination and, even if they could be, a breakdown was necessary as to how much of the associated costs could be attribute specifically to the defendant's room. Canby, Tashima (author), and Cal-lahan, Circuit Judges. AFPD J. Rhodes of Missoula, MT, for the defendant-appellant. AUSA M. Lahr of Helena, MT, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 38) PROBATION / DNA SAMPLES: USA v. Lujan, 02-30237 (9th Cir. Oct. 2, 2007). Lujan appealed the District Court's order authorizing the probation office to demand the collection of a blood sample as a condition of her supervised release, as mandated by the DNA Analysis Backlog Elimination Act of 2000. She maintained that the Act violates the Fourth Amendment and the Ex Post Facto Clause, that it is an unconditional bill of attainder, and that it contravenes separation of powers. The USCA rejected these constitutional challenges and affirmed. It found that the DNA Act is a legitimate delegation of congressional authority. First, it does not encroach on the prerogatives of the executive branch. The probation office's authority is limited to the collection of the DNA sample. It has no role in analyzing that sample or in suing the test results to detect, investigate, or prosecute other crimes-quintessential law enforcement functions vested in the executive branch. Second, the purpose of the Act is consistent with the mission of the judiciary. The Act seeks to deter recidivism by instilling in defendants a fear that future crimes of theirs will be readily identified. Fernandez, Silverman (author), and Graber, Circuit Judges. AFPD R. Iniquez of Portland, OR, for the defendant-appellant; J. Marcus of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) HABEAS CORPUS: Parle v. Runnels, 06-16780 (9th Cir. Oct. 10, 2007). Parle killed his wife by stabbing her in the back during a domestic dispute. At trial, he conceded that he unlawfully killed is wife and contested only his state of mind at the time of the killing. Although he contended that his state of mind was such that he could be guilty of no more than second-degree murder or voluntary manslaughter, a jury convicted him of first-degree murder. On direct review, the California Court of Appeal identified numerous, serious errors in the trial proceedings but, despite these errors it upheld Parle's convicton, concluding that the errors-both individually and collectively-were harmless. The U.S. District Court concluded that the erroneous evidentiary rulings infected the trial with such unfairness that it rose to the level of a due-process violation. Concluding, as did the District Court, that multiple serious errors in the admission and exclusion of evidence accumulated to deprive Parle of a constitutionally fair trial, and that the one-sided prejudice caused by these errors made the state court's contrary conclusion objectively unreasonable, the USCA upheld the grant of habeas relief. Because all of the trial court's error pertained to evidence relevant to the only issue before the jury-Parle's state of mind at the time of the crime-and all of the improperly admitted evidence bolstered the State's case, while all of the erroneously excluded evidence rendered Parle's defense far less persuasive than it might have been, it was objectively unreasonable for the California Court of Appeals to conclude that the combined effect of these errors did not violate Parle's due process rights. Hawkins (author), Tashima, and Bea, Circuit Judges. B. Ortega of San Francisco, CA, for the respondent; M. Buchanan of San Diego, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/) MEMORANDA
2) BANKRUPTCY: In re Beachport Entertainment, 06-55081
(9th Cir. Oct. 19, 2007) (unpublished). Wallace, T.G. Nelson,
and Smith, Circuit Judges. 3) CONTRACTS / NOVATION: Landover Corp. v. Bellevue Master
LLC, 06-35326 (9th Cir. Oct. 29, 2007) (unpublished).
D.W. Nelson, Beam, and Rymer, Circuit Judges. 5) CORPORATIONS: Tracy Industries v. Alma Products 1, Inc.,
06-55040 (9th Cir. Oct. 18, 2007) (unpublished). Pregerson,
Hawkins, and Fisher, Circuit Judges 6) CLASS ACTION WAIVERS / ARBITRATION: Laster v. T-Mobile
USA, Inc., 06-55010 (9th Cir. Oct. 25, 2007) (unpub-lished).
Pregerson, Hawkins, and Fisher, Circuit Judges. 7) CLASS ACTIONS: In re New Mexico State Investment Council,
07-71032 (9th Cir. Oct. 5, 2007) (unpublished). Wallace,
Ikuta, and Smith, Circuit Judges. 8) PUBLIC UTILITIES: Public Utility Dist. No. 1 of Snohomish
County Washington v. BPA, 04-70306 (9th Cir. Oct. 11, 2007)
(unpublished). Reinhardt, W. Fletcher, and Bybee, Circuit
Judges. 9) CIVIL PROCEDURE: Martinez v. Del Taco, Inc.,
06-15424 (9th Cir. Oct. 23, 2007) (unpublished). Thompson
and Tallman, Circuit Judges, and Duffy, District Judges. 10) AMERICANS WITH DISABILITIES: Daft v. Sierra Pacific Power
Co., 05-16785 (9th Cir. Oct. 22, 2007) (unpublished).
Alarcon and Tallman, Circuit Judges, and Duffy, District Judges. 11) FAIR CREDIT REPORTING ACT: Krieg v. Allstate Financial
Services, 06-16259 (9th Cir. Oct. 12, 2007) (unpublished).
Canby, Tashima, and Graber, District Judges. 12) IMMIGRATION: Mesfin v. Gonzales, 04-73429 (9th
Cir. Oct. 23, 2007) (unpublished). Alarcon and Tallman, Circuit
Judges, and Duffy, District Judges. 13) IMMIGRATION / ASYLUM: Rokni v. Keisler, 06-73293
(9th Cir. Oct. 12, 2007) (unpublished). Farris, Boochever,
and Leavy, Circuit Judges.
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