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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) DRUG TESTING BASEBALL PLAYERS: USA v. Comprehensive Drug Testing, 05-10067 (9th Cir. Jan. 24, 2008). Although it had only a search warrant for data concerning eleven major league baseball players, as part of an ongoing grand jury investigation into illegal steroid use by professional athletes, the government seized thousands of medical records and test results for every major league baseball player, and for individuals in 13 major sports organizations, three unaffiliated business entities, and three sports competitions. At issue was whether the government could retain all of the medical information it obtained about individuals not the subject of any criminal inquiry, and whether it could enforce an additional subpoena. The USCA held that it had no jurisdiction to address the legal foundation for the District Court for the Central District of California's grant of a Fed R. Crim. Proc. 41(g) motion seeking return of the property seized, although it recognized that its authoritative interpretation of USA v. Tamura, 694 F.2d 591 (9th Cir. 1982), conflicted with the interpretation of Tamura upon which that order was based. The USCA held that the government could not obtain redress for any alleged errors or impropriety in that order, where the government filed to object in a timely manner. The government's appeal of the grant of the Rule 41(g) motion was dismissed for lack of jurisdiction and the District Court for the Central District of California's order denying the government's motion for reconsider was affirmed. The USCA also held that government's seizures at Quest Diagnostics, Inc. in Las Vegas, Nevada, were reasonable under the Fourth Amendment. And, finally, it noted that the record, illuminated by caselaw, revealed that subpoenas to Comprehensive Drug Testing, Inc. in Long Beach, California, and Quest, which covered the same evidence as the contemporaneous search warrants, were not unreasonable and did not constitute harassment. The USCA thus reversed the District Court for the Northern District of California's order quashing the May 6, 2004 subpoenas. Dissenting, Judge Thomas noted that the government claimed the right to seize and retain-without warrant or even a suspicion of criminal activity-anyone's confidential medical record or other confidential personal information contained in a computer directory so long as it has a legitimate warrant or subpoena for any other person's record that may be stored on the same computer. The government at-tempted to justify this theory on an expansion of the "plain view" doctrine, which, Judge Thomas thought, had no application to inter-mingled private electronic data. He thought the majority had ignored the government's plain view argument-a theory rejected by every district judge involved in this case. He also thought the majority had invented a new justification for approving seizures. It held that the boilerplate terms of a computer search warrant justify both the seizure of massive amounts of confidential medical information about persons not suspected of any criminal activity and the subsequent warrantless search of the information. Judge Thomas thought this ruling would allow the government unprecedented and easy access to confidential medical and other private information about citizens who are under no suspicion of having been involved in criminal activity and poses a serious threat to the confidentiality of patient records and ultimately to the effective delivery of health care itself. He further thought the majority's decision would adversely impact the viability of voluntary workplace drug testing, and conflicts with the procedures detailed in Tamura for the appropriate and constitutional processing of seized information not responsive to a warrant that is intermingled with data that is responsive to a warrant. Finally, he thought that the majority had improperly rejected the factual findings of the district the district judges, to which it owes deference, while adopting wholesale the government's view of the events. He thought that the findings and conclusion of the three district judges who all rejected the government's position were supported by the record. O'Scannlain (author), Thomas (dissenting in part), and Tallman, Circuit Judges. AUSA E. Frick of San Francisco, CA, for the appellant; E. Peters of San Francisco, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 2) ANTITRUST: Costco Wholesale Corp. v. Maleng, 06-35538
(9th Cir. Jan. 29, 2008). At issue on these consolidated appeals
was whether certain restrictions imposed by a state on the sale
of wine and beer were preempted by federal antitrust laws, and,
if these restraints were subject to federal preemption, whether
they might be saved by operation of the state's powers under Sec.
2 of the Twenty-first Amendment to the U.S. Constitution. The USCA
reversed the judgment of the district court insofar as it held that
most of the state's restraints on the sale of beer and wine were
hybrid restraints subject to preemption under the Sherman Act. It
upheld the district court's rejection of Costco's challenge to the
retailer-to-retailer sales ban. It also affirmed the district court's
ruling that under Ninth Circuit precedents, the "post-and-hold"
scheme is a hybrid restraint of trade that is not saved by the state
immunity doctrine or the 3) ANTITRUST: Newcal Industries v. Ikon Office Solution,
05-16208 (9th Cir. Jan. 23, 2008). Five lessors of copier equipment
(collectively "Newcal") appealed the dismissal of their
complaint for failure to state Sherman Act antitrust, Lanham Act,
and RICO claims against Ikon. The USCA affirmed. Newcal and Ikon
compete to lease copier equipment to commercial customers, as well
as service contracts for the maintenance of that equipment. Newcal
alleged that Ikon engage in an ongoing scheme to defraud Ikon cus-tomers
by amending Ikon customer lease agreements and service contracts
without disclosing that the amendments would lengthen the term of
the original agreement. The purpose of extending these contracts
was to shield Ikon customers from competition in the after-markets
for upgrade equipment and for lease-end services. By extending the
term of the contract, Ikon was able to raise the contract's value,
which in turn raised the price to Newcal and other competitors of
buying out that contract in the after-markets for equipment upgrades
and lease-end services. On appeal, the first issue was whether Newcal's
antitrust claims alleged any legally cognizable "rele-vant
market." The USCA held that they did, and remanded those claims
to the district court. Ikon had asked the USCA to affirm the district
court's dismissal order on the alternative ground that Newcal failed
to state claims based on exclusive dealing, tying, restraint of
trade, and attempted monopolization. However, Ikon's arguments hinged
on factual disagreements rather than legal deficiencies, such that
the arguments did not support affirmance of the Rule 12(b)(6) dismissal.
Newcal's antitrust claims thus did not fail to state a claim upon
which relief may be granted. The second issue on appeal was whether
Newcal sufficiently alleged false or misleading statements of fact
to support its Lanham Act claim. The district court found that all
five of the statements identified in Newcal's complaint were insufficient
to support the claim. Because the district court's conclusions with
respect to four of the five statements rested on factual findings
rather than legal conclusion, the USCA reversed the Rule 12(b)(6)
dismissal and remanded Newcal's Lanham Act claims. The complaint
sufficiently alleged all elements of a Lanham Act violation, including
several false statements of fact that were allegedly disseminated
to the relevant market's consumers. The third issue on appeal was
whether Newcal had standing to pursue its RICO claims. The district
court concluded that it did not. The USCA reversed and remanded
that issue. The last issue on appeal was whether the district court
abused its discretion when it dismissed Newcal's declaratory complaint
without granting leave to amend. The USCA held that it did. Kleinfeld
and Thomas (author), Circuit Judges, and Burgess, District
Judge. M. Blecher of Los Angeles, CA, for the appellants; B. Brian
of Los Angeles, CA, and A. Pfeiffer of San Francisco, CA, for the
appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
6) CONSUMER PROTECTION: Lowden v. T-Mobile USA, 06-35395
(9th Cir. Jan. 22, 2008). At issue here was whether arbitration
provisions in T-Mobile's customer service agreements were enforceable
under Washington state law and, if not, whether the state law was
preempted by the Federal Arbitration Act. After two consumers of
T-Mobile's cellular phone service brought a class action against
T-Mobile in state court for breach of contract and violation of
the Washington Consumer Protection act, T-Mobile removed the case
to federal district court and moved to compel arbitration per its
service agreements. The district court denied T-Mobile's motion,
holding that the arbitration agreements were tainted by substantive
unconscionability and thus unenforceable. The USCA held that the
Washington State Supreme Court's decision in Scott v. Cingular
Wireless, 161 P.3d 1000 (Wash. 2007), establishes that T-Mobile's
arbitration provision is substantively unconscionable and unenforceable
under state law. Moreover, there is no federal preemption in light
of Shroyer v. New Cingular Wireless Services, Inc., 498 F.3d
976 (9th Cir. 2007). Canby, Graber, and Gould (author), Circuit
Judges. S. Rummage of Seattle, WA, for the appellant; D. Breskin
of Seattle, WA, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
8) FAIR CREDIT REPORTING ACT: Willes v. State Farm Fire and Casualty, 03-35848 (9th Cir. Jan. 9, 2008). This appeal reached the USCA on remand. See State Farm Mut. Auto. Ins. Co. v. Willes, 127 S.Ct. 2933 (2007) (citing Safeco Insurance Co. v. Burr, 127 S.Ct. 2201 (2007). Burr affirmed the USCA holding in Reynolds v. Hartford Financial Services Group, Inc. 435 F.3d 1081 (9th Cir. 2006), that liability under 15 USC Sec. 1681n(a) for willfully failing to comply with the Fair Credit Reporting Act includes reckless disregard of statutory duties. Burr also agreed with the USCA's holding that quoting or charging a first-time premium can be an increase in any charge for any insurance, existing or applied for. In addition, Burr held that notice is required only when consideration of a consumer's credit report is a necessary condition for the increased rate. Finally, reversing the USCA, Burr ruled that the base-line for determining whether a first-time rate is a disadvantageous increase is the rate the applicant would have received had the company not taken his credit score into account. In light of the Supreme Court's holding that notice is required only when the credit report is a necessary condition of the increased rate, the USCA affirmed the district court's summary judgment with respect to the claims against State Farm Fire and Casualty Company. State Farm Fire's rate quote was not influenced by Willes' credit report, and State Farm Fire is thus not liable. Willes did not raise on appeal any basis for liability other than the theories rejected by the Supreme Court. The USCA thus affirmed the district court's summary judgment. Reinhardt, Berzon, and Bybee, Circuit Judges. Per Curiam.(Download the full text of this decision at www.ce9.uscourts.gov/) 9) FAIR CREDIT REPORTING ACT: Spano v. Safeco Corp.,
04-35313 (9th Cir. Jan. 9, 2008). This appeal reached the USCA on
remand. See Safeco Ins. Co. of Am. v. Burr, 127 S.Ct. 2201 (2007),
which affirmed the ruling of Reynolds v. Hartford Financial Services
Group, Inc. 435 F.3d 1081 (9th Cir. 2006), that liability under
15 USC Sec. 1681n(a) for willfully failing to comply with the Fair
Credit Reporting Act includes reckless disregard of statutory duties.
Burr also held that quoting or charging a first-time premium can
be an increase in any charge for any insurance, existing or applied
for. In addition, Burr held that notice is required only when consid-eration
of a consumer's credit report is a necessary condition for the increased
rate. Finally, Burr ruled that a the baseline for determin-ing whether
a first-time rate is a disadvantageous increase is the rate the
applicant would have received had the company not taken his credit
score into account. Burr held that Safeco was not liable because
its misreading of the statute was not reckless, and thus was not
"willful." As Spano did not raise on appeal any basis
for liability other than the theories rejected by the Supreme Court,
the USCA affirmed the district court's summary judgment. Reinhardt,
Berzon, and Bybee, Circuit Judges. Per Curiam.(Download
the full text of this decision at www.ce9.uscourts.gov/)
15) LABOR LAW / BACK PAY: Weber v. Dept. of Veterans Affairs, 06-35522 (9th Cir. Jan. 15, 2008). Weber appealed a district court order denying his motion for summary judgment on his claim for back pay under the Back Pay Act, 5 USC Sec. 5596, and granting the Dept. of Veterans Affairs' motion to dismiss. On Oct. 1, 1997, Weber had been appointed to the position of staff radiologist at a VA facility in Montana, an appointment subject to a two-year probationary period and to board review. On Aug. 12, 1999, the board issued findings and a recommendation that Weber be separated from his employment effective Sept. 13, 1999. It found that no single incident warranted separation, but when considered in its entirety, Weber's pattern of behavior warranted separation. The USCA reversed and remanding, holding that the district court lacked jurisdiction to adjudicate Weber's claim for back pay. The APA did not vest the district court with jurisdiction for two reasons: First, "back pay," as a claim for money damages, falls outside the scope of the APA. Second, the comprehensive statutory scheme for the Veterans Health Administration does not permit judicial review. The USCA thus remanded to the district court with instructions to dismiss his complaint for lack of jurisdiction. Gould and Paez, Circuit Judges, and Strom (author), District Judge. B. Spencer of Helena, MT, for the appellant; AUSA W. Mercer of Great Falls, MT, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) LABOR LAW / BACKGROUND CHECKS: Nelson v. NASA, 07-56424 (9th Cir. Jan. 11, 2008). The appellants in this action are scientists, engineers, and administrative support personnel at the Jet Propulsion Laboratory (JPL), a research laboratory run jointly by the National Aeronautics and Space Administration ("NASA") and the California Institute of Technology ("Caltech"). They sued NASA, Caltech, and the Department of Commerce (collectively "appellees"), challenging NASA's recently adopted requirement that "low risk" contract employees like themselves submit to in-depth back-ground investigations. The district court denied the appellant's request for a preliminary injunction, finding they were unlikely to succeed on the merits and unable to show irreparable harm. The USCA reversed and remanded. The appellants raised serious questions as to the merits of their informational privacy and APA claims, and the balance of hardships tipped sharply in their favor. The district court's denial of the preliminary injunction was based on errors of law and hence was an abuse of discretion. Thompson and Wardlaw (author), Circuit Judges, and Reed, District Judge. D. Stormer of Pasadena, CA, for the appellants; M. Stern of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) LABOR LAW: NLRB v. Friendly Cab Co., 05-73752 (9th Cir. Jan. 8, 2008). Friendly Cab argued that its drivers were inde-pendent contactors, rather than employees, and thus excluded from the protections of the National Labor Relations Act. The National Labor Relations Board (NLRB) ruled that the drivers were employees and that Friendly violate the Act by refusing to engage in collec-tive bargaining with their union. On appeal, acting pursuant to the jurisdiction Congress granted under Sec. 10 of the Act, the USCA affirmed the NLRB's conclusion that Friendly's drivers were employees within the meaning of the Act, a conclusion supported by sub-stantial evidence that Friendly exercised considerable control over the means and manner of its drivers' performance and did not pro-vide its drivers the ability to pursue entrepreneurial opportunities. Roth, Thomas, and Callahan (author), Circuit Judges. A. Rosenfeld of Washington, DC, for the petitioner; A. Berline of San Francisco, CA, for the respondents; D. Rosenfeld of San Francisco, CA, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) AGE DISCRIMINATION / AMERICANS WITH DISABILITIES ACT: Fichman v. Media Center, 05-16653 (9th Cir. Jan. 14, 2008). At issue here was whether directors of a nonprofit organization or independent volunteer producers may be considered employees within the meaning of the Age Discrimination in Employment Act and the Americans with Disabilities Act. The USCA con-cluded that they may not, and affirmed the district court's grant of summary judgment holding that the nonprofit corporation did not have a sufficient number of employees to be considered an "employer" within the meaning of the two Acts. Roth, Thomas (author), and Callahan, Circuit Judges. J. Dickerson of Reno, NV, for the appellant; G. Cardinal of Reno, NV, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 19) ERISA: Saffon v. Wells Fargo & Co. Long Term Disability Plan, 05-568242 (9th Cir. Jan. 9, 2008). At issue here was whether an ERISA plan administrator properly terminated benefits because the beneficiary failed to produce evidence of her disability. Saffon has long suffered from degeneration of her cervical spine, a condition confirmed by repeated MRI scans and X-rays. After a car crash aggravated her condition in December 2001, she quit her desk job at Wells Fargo Bank and applied for disability benefits from defen-dant Wells Fargo & Company Long Term Disability Plan. Metropolitan Life Insurance Company (MetLife), which served both as the Plan's insurer and its claims administrator, promptly began to pay her short-term disability benefits. She eventually applied for long-term disability benefits, which MetLife granted. After paying long-term benefits for a year, MetLife informed Saffon that she no longer met the definition of "disability" and terminated her long-term benefits. Saffon then unsuccessfully availed herself of MetLife's admin-istrative appeals process. Saffon sued the Plan under 29 USC Sec. 1132(a), seeking payment of withheld benefits, attorney's fees and a declaration that she is disabled. After a bench trial on the administrative record, the district court held that the Plan had not abused its discretion and denied Saffon any relief. The USCA reversed and remanded. Because the district court did not have the benefit of the teachings of Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006), it applied the wrong legal standard in review Met-Life's determination that Saffon is not disabled. The USCA thus accorded the district court's ruling no deference and examined the record afresh through Abatie's lens. MetLife had been paying Saffon long-term disability benefits for a year, which suggests that she was already disabled. In finding her no longer disabled, the USCA said one would expect the MRIs to show an improvement, not a lack of degeneration. Insofar as MetLife believed that a Functional Capacity Evaluation, or some other means of objectively testing Saffon's ability to perform her job, was necessary for it to evaluate Saffon's claim, it was required to say so at a time when Saffon had a fair chance to present evidence on this point. This issue was addressed in Abatie. Kozinski (author) and Rawlinson, Circuit Judges, and Cedarbaum, District Judge. C. Springer-Sullivan of Beverly Hills, CA, for the appellant; Y. LaRoe of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 20) RETIREMENT INCOME PLANS / BANKRUPTCY: United Steelworkers
of America v. Retirement Income Plan for Hourly-Rated Employees
of ASARCO, 05-16833 (9th Cir. Jan. 7, 2008). The defendant
retirement plan appealed the district court's summary judgment in
favor of the United Steelworkers of America and 20 individually
named retirees. The defendant also appealed from the district court's
order granting attorneys' fees and denying its motion to stay. The
USCA affirmed the district court's summary judgment and its denial
of the defendant's motion to stay. Although the USCA agreed with
the district court's award of attorneys' fees, it remanded to determine
what effect, if any, the automatic stay in bankruptcy for ASARCO
should have on payment of the award. Wallace (author) and
Rawlinson, Circuit Judges, and Restani, U.S. Court of Intl. Trade
Judge. J. Doran of Phoenix, AZ, for the appellants; R. Stock of
Los Angeles, CA, for the appellees.(Download
the full text of this decision at www.ce9.uscourts.gov/)
23) INSURANCE: Contractors Equipment Maintenance Co. v. Bechtel Hanford, Inc., 06-35310 (9th Cir. Jan. 24, 2008. United Coastal Insurance Company (UCIC) appealed a district court order granting Bechtel Hanford's motion for judgment on a supersedeas bond. Bechtel was awarded a judgment in 2004 against Acstar Insurance Company and P.W. Stephens Contractors (PWS). Acstar obtained a supersedeas bond from UCIC and appealed the judgment against it. After the USCA affirmed in part and reversed in part, Bechtel moved to collect the entire 2004 judgment from UCIC. The district court held that the supersedeas bond covered the judgment against both Acstar and PWS and granted Bechtel's motion, ordering UCIC to pay the entire underlying judgment On appeal, UCIC claimed that the bond secured only Bechtel's judgment against Acstar. The USCA agreed with UCIC that the bond secured only Ac-star's obligations on the underling judgment. Because Acstar's liability had been satisfied, the USCA directed entry of judgment in favor of UCIC. Cudahy (author), Reinhardt, and Paez, Circuit Judges. M. Klinger of Los Angeles, CA, for the appellant; M. Grace of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) ENVIRONMENTAL LAW: Feldman v. Bomar, 06-55675 (9th Cir. Jan. 10, 2008. Feldman, Puddicombe, and In Defense of Animals appealed a judgment in favor of the Nature Conservancy, the National Park Service (NPS), NPS's director, and the Chief of Natural Resources Management at Channel Islands National Park (collectively "appellees") on their claims that the appellees violated the National Environmental Policy Act and the California Environmental Quality Act in adopting NPS's program to restore and protect Santa Cruz Island by, in part, eradicating its feral pig population. The appellants did not dispute that the pigs threatened Santa Cruz Island's ecological and archeological infrastructure. However, they would have preferred eliminating the population through non-lethal means, such as sterilization or removal of the pigs to the mainland, and they challenge NPS's process in reaching its conclusion that the pigs should be killed instead. Because NPS completely eradicated the feral pigs from Santa Cruz Island during the pendency of this litigation, and because the appellants allege only procedural violations in the development of the eradication program and do not seek compensation in monetary damages, the USCA granted the appellees' motion to dismiss the appeal as moot. The appellees met their heavy burden of showing that "no effective relief for the alleged violations[s] can be given." Neighbors of Cuddy Mountain v. Alexan-der, 303 F.3d 1059, 1065 (9th Cir. 2002). Wardlaw (author), Bea, and N.R. Smith, Circuit Judges. Y. Rubinstein of San Francisco, CA, for the plaintiffs-appellants; A. Sabey of Walnut Creek, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 25) ENVIRONMENTAL LAW: Bering Strait Citizens for Responsible
Resource Development v. U.S. Army Corps of Engineers, 07-35506
(9th Cir. Jan. 3, 2008). This appeal concerned a permit issued to
the defendant-appellee, the Alaska Gold Company, by the Army Corps
of Engineers for a major gold-mining project near Nome, Alaska.
The permit was issued pursuant to Sec. 404 of the Clean Water Act
(CWA), which authorizes the Corps to issue permits for the discharge
of dredged or fill material into the navigable waters of the United
States. The plaintiffs maintained that the Corps violated the CWA
and the National Environmental Policy Act (NEPA) by granting a permit
for the project. They appealed the district court's denial of its
motion for a temporary restraining order and a preliminary injunction,
and also appealed the district court's dismissal of the suit on
summary judgment. The USCA affirmed, holding that the Corps complied
with the requirement of the CWA and NEPA and that its decisions
relating to the mining project were not arbitrary and capricious.
Nor were they contrary to law. The USCA found that, on balance,
the mining project has no significant detrimental effect on the
environment in and near Nome. The Corps thus was not required to
prepare an EIS based on the issues raised by the plaintiffs or by
the EPA. B. Fletcher, Kleinfeld, and Gould (author), Circuit
Judges. V. Clark of Anchorage, AK for the plain-tiffs-appellants;
R. Tenpas of Washington, DC, for the defendant-appellee; M. Grisham
of Anchorage, AK, for the defendant-intervenor. (Download
the full text of this decision at www.ce9.uscourts.gov/)
27) FIRST AMENDMENT: Berger v. City of Seattle, 05-35752 (9th Cir. Jan. 9, 2008). At issue here was the extent of the City of Seattle's authority to restrict expression in the "Seattle Center," an entertainment zone covering about 80 acres of land in downtown Seattle. Each year, the Center's theaters, arenas, museums, exhibition halls, conference rooms, outdoor stadiums, and restaurants at-tract some 10 million visitors. Seattle wields authority over the Center and has delegated its power to promulgate rules to the Center's Director. In 1978, the Director issued rules setting forth procedures and requirements governing use of the Center campus. In 2002, after public comment, the Director issued a superseding set of provisions in response to specific complaints and safety concerns. These provisions became known as the Seattle Center Campus Rules. Berger, a street performer, in the Center since the 1980s, makes balloon sculptures while talking to his audience about his personal beliefs, especially about the importance of reading books. During the 1990s, Center authorities ejected him for various violations of the Rules and in 1996 he sued them, alleging violations of the First and Fourteenth Amendments under 42 USC 1983. The City moved for summary judgment, but the magistrate denied the motion on the grounds that "substantial authority" supported "a constitutionally protected right to perform magic tricks, create balloon sculptures, and receive voluntary donations in a public park." That case settled. When the revised Rules were enacted in 2002, Berger obtained a per-mit. Still, he had problems with the Center authorities: Members of the public filed numerous complaints alleging that he exhibited threatening behavior and Center staff reported several more Rule violations. In 2003, Berger filed this action for damages and injunctive relief for alleged civil rights violations. He raised as-applied and facial challenges to the Rules. In 2005, the district court granted him summary judgment, concluding that the Rules facially violated the First amendment. Pursuant to a stipulation by the parties, the City paid Berger $1 in nominal damages and $22,000 in attorney's fees and costs. It then dismissed with prejudice Berger's remaining and potential claims. The USCA reversed and remanded. The Rules satisfy the requirements for valid restrictions on expression under the First Amendment. Such content neutral and narrowly tailored rules, which leave open ample alternatives for communication must be upheld. The Rules also survive rational basis review under the Fourteenth Amendment. Dissenting in part, Judge Berzon said the majority's decision radically alters existing law, creating a legal structure which will make it far easier to shut down discourse in public parks and other traditional public fora. Democracies survive and grow through public conversations among their citizens. For this rea-son, the courts have always viewed any limitations on speech in traditional public for a with extreme skepticism. Judge Berzon thought the majority's opinion departed from this tradition. O'Scannlain (author) and Berzon (dissenting in part), Circuit Judges, and Haddon, District Judge. G. Keese of Seattle, WA, for the appellants; E. Garella of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) FIRST AMENDMENT: Arizona Life Coalition, Inc. v. Stanton, 05-16971 (9th Cir. Jan. 28, 2008). Arizona Life Coalition appealed a summary judgment in favor of Stanton and other members of the Arizona License Plate Commission. It argued that the Com-mission violated its First Amendment right to free speech and Fourteenth Amendment right to equal protection by arbitrarily denying its application for a special Arizona organization license plate that would carry it message "Choose Life." The USCA agreed that the Commission violated the Coalition's First Amendment right to free speech and thus did not reach its equal protection argument. Mes-sages conveyed through special organization plates represent primarily private speech. Through its special organization license plate program, Arizona has created a limited public forum for all nonprofit organizations that meet the State's statutory requirements. Because the Commission denied the Coalition's application on grounds not specified in the statute or related to the limited purpose of the license plate forum, the USCA reversed the district court's grant of summary judgment in favor of the Commission. Thompson and Tallman (author), Circuit Judges, and Duffy, District Judge. J. Shafer of Washington, DC, for the plaintiffs-appellants; D. Schaack of Phoenix, AZ, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 29) CHILD ABUSE / CUSTODY / CIVIL RIGHTS / ABSOLUTE IMMUNITY: Beltran v. Santa Clara County, 05-16976 (9th Cir. Jan. 24, 2008). Suarez, a social worker for Santa Clara County's child protective services, investigated whether Beltran was abusing her son, Coby. After she investigated, Suarez's supervisor Tjhin filed a child dependency petition, which Tjhin signed under pen-alty of perjury. The petition included a statement of facts describing the findings of Suarez's investigation. Suarez also filed a separate custody petition, which she signed under penalty of perjury. The custody petition attached and incorporated by reference the statement of facts from the dependency petition. The dependency petition was denied and Coby was returned to his parents. Beltran then sued Suarez and Tjhin under 42 USC Sec. 1993, charging constitutional violations in removing Coby from Beltran's custody and attempting to place him under the supervision of the state. Specifically, Beltran claims that Suarez and Tjhin fabricated much of the information in the statement of facts. Relying on Doe v. Lebbos, 348 F.3d 820, 825-26 (9th Cir. 2003), the district court held that Suarez and Tjhin had absolute immunity for their actions relating to signing and filing the dependency and custody petitions-including the alleged fabrications of evidence and false statements. It thus dismissed Beltran's claims that were based on the allegedly false petition statements. The district court granted summary judgment to the defendants on the remainder of Beltran's claims, but those issues were not appealed. The USCA reversed and remanded. Social workers have absolute immunity only for functions that are critical to the judicial process itself such as initiating a prosecution. Thus they have absolute immunity when they make "discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents." Miller v. Gammie, 335 F.3d 889, 896 (9th Cir. 2003). But they are not entitled to absolute immunity from claims they fabricated evidence during an investigation or made false statements in a dependency petition affidavit signed under penalty of perjury, because such actions are not similar to discretionary decisions about whether to prosecute. The USCA added that the district court's error was understandable as it relied on the incorrect ruling in Lebbos, which the USCA now overruled. Kozinski, Reinhardt, Kleinfeld, Hawkins, Wardlaw, W. Fletcher, Gould, Paez, Berzon, Clifton, and Ikuta, Circuit Judges. R. Powell of San Jose, CA, for the appellants; M. Kiniyalocts of San Jose, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 30) EDUCATION LAW: Mark H. v. Lemahieu, 05-16236
(9th Cir. Jan. 17, 2008). In 2000, Mark H. and Rie H., individually
and as guardians ad litem for their autistic daughters, sued the
Hawaii Department of Education and various school officials in their
officials capacities (collectively "the agency") for damages
for alleged violations of the Individuals with Disabilities Education
Act ("IDEA"), and Sec. 504 of the Rehabilitation Act of
1973 as amended, 29 USC Sec. 794. The district court held that "there
are no rights, procedures, or remedies available under Sec. 504
for violations of the IDEA's affirmative obligations," and
that U.S. Department of Education (US DOE) Sec. 504 regulations
are not enforceable through a private right of action. At issue
here is the relationship between the IDEA and the US DOE's regulations
implementing Sec. 504 of the Rehabilitation Act. The IDEA requires
that states accepting funds under the ACT provide disabled children
with a "free appropriate public education" (FAPE). The
USCA held that the availability of relief under the IDEA does not
limit the availability of a damages remedy under the Sec. 504 FAPE
regulation. As the H. family has assumed that alleging a violation
of the IDEA FAPE requirement is sufficient to allege a violation
of Sec. 504, they have not specified precisely whether they believe
the US DOE's Sec. 504 FAPE regulation, as opposed to the IDEA FAPE
requirement, were violated, and, if so, in what regard. Without
some clarity about precisely which Sec. 504 regulations are at stake
and why, the USCA said it could not determine whether the H. family
sufficiently alleged a privately enforceable cause of action for
damages. It thus reversed the district court's summary judgment
to the agency and remanding for further proceedings. Thompson, Berzon
(author), and Tallman, Circuit Judges. M. Livingston, Honolulu,
HI, for the petitioners; D. Sellers of Honolulu, HI, for the defendants.(Download
the full text of this decision at www.ce9.uscourts.gov/)
32) CIVIL RIGHTS: Solis v. Los Angeles, 05-56637 (9th Cir. Jan. 29, 2008). Solis, a former inmate at the L.A. County jail, brought this pro se action for constitutional violations stemming from his transfer into the jail's "gang module," where he was attacked by other inmates. He appealed the district court's verdict, after a bench trial, in favor of defendant Deputy Beltran, as well as its summary judgment in favor of the other defendants. The USCA reversed the summary judgment on the grounds that Solis was not given fair notice of the requirements and consequences of a summary judgment motion, as required by Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). The USCA also reversed the verdict in favor of Beltran because the district court erred in denying Solis a jury trial, and the error was not harmless. D.W. Nelson, Reinhardt (author), and Rymer, Circuit Judges. M. Dore of Los Angeles, CA, for the appellant; A. Sabouri of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) MUSLIM PRISONERS' RIGHTS: Shakur v. Schriro, 05-16705 (9th Cir. Jan. 23, 2008). While incarcerated in an Arizona Department of Corrections (ADOC) facility, Shakur changed his religious preference from Catholic to Muslim. The ADOC granted his request to adopt for religious reasons a lacto-vegetarian diet, which includes milk but not meat or eggs. He currently receives an ovo-lacto vegetarian diet, which includes milk and eggs, but no meat. He claimed that the vegetarian diet causes him hardship because it gave him gas. This, he argued, interfered with the state of "purity and cleanliness" needed for Muslim prayer. At issue was whether prison officials violated the Religious Land Use and Institutionalized Person Act (RLUIPA), the Free Exercise Clause, and the Equal Protection Clause by denying Shakur further dietary accommodations. In particular, he would like to receive Orthodox Jewish kosher meat. The district court issued a memorandum and order granting summary judgment to the defendants on all counts. As for Shakur's First Amendment Free Exercise claim, the district court found that, even assuming that kosher meat is not prohibited by Islam, Shakur did "not allege that consuming Halal meat is required of Muslims as a central tenet of Islam, not did he provide any evidence to support that contentions. In addition, the district court determined that even if consuming Halal meat was a central tenet, the refusal to provide him with a Halal meat diet was rationally related to legitimate penological interest, namely, avoiding the additional cost and administrative burden. The district court did not address whether the provision of kosher meat meals to Jewish prisoners and denial of Halal meat meals to Muslim inmates violates the Establishment Clause. As for Shakur's claim under RLUIPA, the district court held that Shakur's free exercise had not been substantially burdened and, even if it had been, the ADOC had established that its dietary regulations furthered a compelling state interest and were the least restrictive means of achieving that interest. The district court also granted summary judgment to ADOC on Shakur's Equal Protection claim "because the Equal Protection Clause does not require state prisons to provide each religious sect or group within a prison with identical treatment." It held that because prisoners were not a protected class, the ADOC needed to show only a rational basis for its regulations, which it did by showing the extensive costs of providing Halal meat to inmates, "especially given the fact that kosher meat is not Halal meat and Muslims are to avoid non-Halal meat." The USCA concluded that the summary disposition of Shakur's claims based on a sparse factual record warranted reversal. As Ward v. Walsh, 1 F.3d 873 (9th Cir. 1993), makes clear, only a careful analysis of a fully developed record can justify burdening an inmate's religious rights. O'Scannlain (author), Hawkins, and Wardlaw, Circuit Judges. D. Shaffer of Stanford, CA, for the appellant; C. Stewart of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) CIVIL RIGHTS: Greene v. Solano County Jail, 06-16957
(9th Cir. Jan. 22, 2008). In his civil rights action against Solano
County Sheriff's Lieutenant Rourk, Greene alleged that the Claybank
jail's policy of prohibiting maximum security prisoners such as
himself from participating in group worship violated his rights
under the Religious Land Use and Institutionalized Persons Act of
2000 (RLUIPA), under the First, Eighth and Fourteenth Amendments,
and under California Penal Code Sec. 4027. The district court granted
summary judgment in favor of Rourk on the RLUIPA claim, and, sua
sponte, granted summary judgment in favor of Rourk on Green's 42
USC Sec. 1983 claims for alleged violations of the First, Eighth
and Fourteenth Amendments, as well as for his claim under Penal
Code Sec. 4027, and dismissed the case. Because there were disputed
issues of material fact existed with regard to Green's RLUIPA claim,
the USCA reversed the summary judgment in favor of Rourk on that
claim and remanded it for further proceedings. Because Rourk did
not meet her burden on summary judgment as to Greene's Sec. 1983
claims, or as to his Sec. 4027 claim, and because Greene was not
given notice and an opportunity to oppose summary judgment as to
those claims, the USCA vacated the summary judgment in favor of
Rourk on those claims, and remanded them to the district court.
Alarcon, Thompson (author), and Tallman, Circuit Judges.
F. Martin of Oakland, CA, for the plaintiff-appellant; M. Stringer
of Sacramento, CA, for the defendant-appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
36) NATIVE AMERICAN LAW: Atwood v. Fort Peck Tribal Court, 06-35299 (9th Cir. Jan. 18, 2008). This case involves a custody dispute concerning an Indian child, Lexie. After the death of Lexie's mother, Lexie's maternal aunt, Hanson, sought custody through the Fort Peck Tribal Court. It granted temporary custody to Lexie's maternal grandmother pending the outcome of the custody dispute. Lexie's non-Indian father, Atwood then brought this action in federal district court challenging the jurisdiction of the Tribal Court and alleging a substantive due process violation. The district court dismissed the case, relying on the domestic relations exception to subject matter jurisdiction and on Atwood's failure to exhaust tribal court remedies. The USCA held that the "domestic relations exception," a doctrine divesting the federal courts of jurisdiction, applies only to the diversity jurisdiction statute, 28 USC Sec. 1332, and that the district court erred by applying the domestic relations exception because federal question jurisdiction exists in this case under 28 USC Sec. 1331. The USCA affirmed the district court's dismissal nonetheless because Atwood failed to exhaust tribal court remedies. Canby, Graber (author), and Gould, Circuit Judges. J.G. Tomicich, Billings, MT, for the appellant; R. Rusche of Wolf Point, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) IMMIGRATION: Apolinar v. Mukasey, 04-73489 (9th Cir. Jan. 24, 2008). Apolinar, a 28 year old native and citizen of Mexico, testified that she first entered the U.S. in December 1986 without inspection and has not left since. She is the single mother of two native-born U.S. citizens, ages 9 and 11. She petitioned for review of two decisions of the Board of Immigration Appeals (BIA): The first dismissing her appeal of an Immigration Judge's denial of cancellation of removal and rejecting her claim that her attorney pro-vided ineffective assistance and the second denying her motion to reconsider its earlier decision. The USCA granted relief and re-manded for a merits hearing on Apolinar's cancellation of removal application. With her mother established as a qualifying relative, it is plausible that Apolinar would have met the hardship requirement because Apolinar's mother, who lives with her, is permanently disabled. The facts surrounding her permanently disabled mother, her young daughter's medical problems, the impact of removal on her U.S. citizen children, and Apolinar's residence in the U.S. since her early childhood might all have been favorable developed by a competent lawyer familiar with the details of her case. Apolinar's ability to present her case may have been affected by the deficient performance of her attorney and, as a result, the USCA granted her another opportunity to present it before the Immigration Judge. Pregerson (author), Hawkins, and Fisher, Circuit Judges. M. Janossy of Glendale, CA, for the petitioner; K. Larson of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) IMMIGRATION: Cerezo v. Mukasey, 05-74688 (9th Cir. Jan. 14, 2008). At issue here was whether a violation of California Vehicle Code Sec. 20001(a) (leaving the scene of an accident resulting in bodily injury or death) is categorically a crime involving moral turpitude for purposes of 8 USC Sec. 1227(a)(2)(A)(ii). The USCA held that it is not. Based on the plain language of the status as interpreted by California courts, Sec. 20001(a) is not categorically a crime involving moral turpitude. Because the modified categorical approach does not alter the analysis, the USCA concluded on the basis of the record that the government did not meet its burden of proving that Cerezo committed a crime involving moral turpitude. Berzon and Ikuta (author), Circuit Judges, and Singleton, District Judge. L. Guttentag of Oakland, CA for the petitioner; J. Keeney of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) IMMIGRATION: Fernandez v. Mukasey, 06-74228 (9th Cir. Jan. 7, 2008). The petitioners appealed from a final order of re-moval entered after the BIA denied their application for cancellation of removal due to the lack of a qualifying relative. 8 USC Sec. 1229b(b). Both petitioners are devote Catholics who have attempted to conceive a child for many years. They maintained that they have been unable to have a child due to their opposition to in vitro fertilization, a method disapproved by the Catholic church. They argued that the application of the statutory requirements for cancellation of removal to them violates the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act (RFRA). The USCA denied the petition, finding that the petitioners failed to establish that the qualifying relative requirement for cancellation places a substantial burden on their religious exercise under the RFRA. First, they had not established that their lack of a qualifying relative is due to their religious belief. Adopted children are treated as qualifying relatives for purposes of the cancellation of removal statute. Second, the connection between having a child and obtaining cancellation of removal is too attenuated to create a substantial burden on the petitioners' religious exercise. In order to be eligible for cancellation of removal, an applicant must establish that "removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." Sec. 1229b(b). B. Fletcher, Berzon, and Rawlinson, Circuit Judges. Per Curiam. M. Robles of San Francisco, CA, for the petitioners; D. Scroggin of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) IMMIGRATION: Perez v. Mukasey, 06-73523 (9th Cir. Jan. 22, 2008). Perez petitioned for review of the BIA's summary af-firmance of an Immigration Judge's removal order. The IJ ordered Perez's removal on the basis that his conviction for misdemeanor assault was a conviction for a "crime of violence," and thus an "aggravated felony." Because his conviction for domestic violence assault in the fourth degree under RCW Secs. 9A.36.041 is not categorically a "crime of violence," and the modified categorical approach does not establish that Perez's conviction was based on a "crime of violence," the USCA granted his petition. McKeown (author) and Clifton, Circuit Judges, and Schwarzer, District Judge. M. Adams of Seattle, WA, Washington for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 41) IMMIGRATION: L.A. Closeout, Inc. v. Dept. of Homeland Security, 06-56084 (9th Cir. Jan. 18, 2008). L.A. Closeout and Johansen Grospe appealed a district court decision affirming the denial of Grospe's adjustment of status application by the U.S. Citi-zenship and Immigration Services (CIS). Grospe wished to adjust his status from a B-2 tourist visa to an H-1B visa for specialty occu-pation workers. The appellants maintained that the CIS's use of an internal memorandum (the Pearson memorandum) interpreting 8 CFR Sec. 248.1 violated the notice and comment requirements of the Administrative Procedure Act. They also maintained that the CIS's interpretation of Sec. 248.1 contradicts the language of the regulation. The USCA rejected both of these arguments and affirmed the district court's decision. The agency was not required to comply with notice and comment procedures and its interpretation of Sec. 248.1 was not plainly erroneous or inconsistent. Pregerson, Noonan, and Trott, Circuit Judges. Per Curiam. W. Chernick of Encino, CA, for the plaintiffs-appellants; AUSA C. Ford of Los Angeles, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 42) IMMIGRATION: Vizcarra-Ayala v. Mukasey, 06-73237 (9th Cir. Jan. 23, 2008). Vizcarra-Ayala, a native and citizen of Mexico, challenged a BIA's ruling that his forgery conviction under California Penal Code Sec. 475(c) rendered him an aggravated felon pursuant to Immigration and Naturalization Act Sec. 101(a)(43)(R). He argued that Sec. 475(c) encompasses conduct involving real, unaltered documents and is not categorically an offense relating to forgery under Sec. 101(a)(43)(R). The USCA agreed. Gibson, Ber-zon (author), and Bea, Circuit Judges. M. Adura-Miranda of Santa Clara, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) IMMIGRATION: Arreguin-Moreno v. Mukasey, 06-73014 (9th Cir. Jan. 14, 2008). At issue here was whether time spent in pre-trial detention, which is credited as time served in a sentence imposed after conviction, is considered to be confinement as a result of a conviction within the meaning of 8 USC Sec. 1101(f)(7). The USCA concluded that it is and denied the petition for review. Thomas (author), Tallman, and Ikuta, Circuit Judges. A. Lubarsky of San Mateo, CA, for the petitioner; S. Park of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 44) IMMIGRATION / SENTENCING: USA v. Calderon-Segura,
05-50820 (9th Cir. Jan. 9, 2008). The defendant, a native and citizen
of Mexico, was arrested in 2005 by Border Patrol agents after they
found him hiding in the brush about one mine north of the U.S.-Mexico
border. He was indicted by a grand jury and convicted after a jury
trial as an alien who had been excluded, deported, or removed and
thereafter found in the U.S. in violation of 8 USC Sec. 1326. The
evidence admitted at his trial included documents showing that in
1999 he was ordered deported and was removed, and the testimony
of a fingerprint expert that a fingerprint exemplar taken from him
matched the exemplar on his 1999 warrant of removal, which positively
identified him as the same person who was previous deported. For
purposes of sentencing, the government submitted evidence of multiple
prior convictions, including a 1997 convicton in California of forcible
rape. Over his objections, the district court relied on that aggravated
felony conviction to increase the applicable statutory maximum from
two years under 8 USC Sec. 1326(a) to twenty years under Sec. 1326(b)(2)
(applying to defen-dants "whose removal was subsequent to a
convicton for commission of an aggravated felony"). Applying
the Sentencing Guidelines as advisory, the court sentenced him to
94 months imprisonment. On appeal, he collaterally attacked the
validity of his prior deportation on due process grounds, maintained
that the expert testimony on exemplar fingerprint examination should
have been excluded as unreliable, and argued that the application
of an enhanced statutory maximum under 8 USC Sec. 1326(b) violated
the Fifth and Sixth Amendments because the facts necessary to sustain
the enhancement were neither pleaded in the indictment nor proved
to the jury. The USCA found no merit in these claims, except the
claim of indictment error relating to the sentence, which, it said,
had some merit but was nonetheless harmless beyond a reasonable
doubt. The USCA thus affirmed the conviction and sentence. Kozinski,
Reinhardt, and Brunetti (author), Circuit Judges. J. Fife
of San Diego, CA, for the appellant; AUSA H. Arendsen of San Diego,
CA, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
46) RIGHT TO COUNSEL: Plumlee v. Masto 04-15101 (9th Cir.
Jan. 17, 2008). The Supreme Court has held that a criminal defendant
has a constitutional right to counsel who is free of conflicts of
interest, and that a defendant does not have a constitutional right
to an appointed lawyer with whom he has had a "meaningful relationship"
so long as the lawyers acts as the client's advocate. Here, Plumlee
argued that he was unconstitutionally forced to represent himself
when the Nevada state trial court refused to replace the Public
Defender's Office, which he distrusted and with which he would not
cooperate. He argued that he had an "irreconcilable conflict"
with counsel. Before the trial began, and again in state post-conviction,
the trial judge made inquiry and found no actual conflict underlying
Plumlee's refusal to work with his appointed lawyer because counsel
committed no misconduct, and Plumlee's reasons for distrusting the
lawyers were not supported. The USCA held that the Nevada Supreme
Court did not misapply clearly established federal law as determined
by the Supreme Court when it ruled that Plumlee's right to the effective
assistance of counsel was not violated by the trial judge's refusal
to appoint a different lawyer. Kozinski, Schroeder, Pregerson (dissenting
in part) Silverman (author), McKeown, Fisher, Gould,
Clifton, Callahan, Ikuta, and N.R. Smith, Circuit Judges. J. Carr
of Las Vegas, NV, for the petitioner; J. Long of Ely, NV, for the
respondent. (Download
the full text of this decision at www.ce9.uscourts.gov/)
49) SEARCH & SEIZURE: USA v. Snipe, 06-30215 (9th Cir. Jan 28, 2008). Snipe challenged his conviction and sentence for pos-session of a firearm with an obliterated serial number in violation of 18 USC Sec. 922(k) and 18 USC Sec. 924(a)(1)(B). His convic-tion followed a warrantless entry by police, who were responding to an emergency call. During the course of their search, they saw drugs in plain view. They returned with a search warrant and the seize drugs and the firearm. The USCA affirmed. Its review of Snipe's motion for suppression required it to revisit, and modify, USA v. Morales Cervantes, 219 F.3d 882 (9th Cir. 2000), in light of Brigham City v. Stuart, 126 S.Ct. 1943 (2006). In place of Cervantes, the USCA adopted a two-pronged test which asks 1) whether, considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and 2) whether the search's scope and manner were reasonable to meet that need. Under this test, if law enforcement, while responding to an emergency, discovers evidence of illegal activity, that evi-dence is admissible even if there was not probably cause to believe that such evidence would be found. In the present case, the police met both prongs of this test. Thompson, Kleinfeld, and Bybee (author), Circuit Judges. D. Parmenter of Blackfoot, ID, for the appel-lant; AUSA M. Mallard of Pocatello, ID, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 50) CUSTODIAL INTERROGATIONS: Saleh v. Fleming. Snipe, 04-35509 (9th Cir. Jan 3, 2008). Saleh was suspected of murdering his former wife. On March 3, 1998, Seattle Police Detective Ramirez went to the King County Jail to interview Saleh, who was serving a jail sentence for assaulting his son-in-law. Ramirez read Saleh his Miranda rights and interviewed him. On March 25, 1998, Ramirez interviewed Saleh again. After giving Saleh a written copy of his Miranda rights, Saleh asked for an attorney. Ramirez asked Saleh what he wanted to do, and Saleh began to cry and said that he wanted the electric chair so he could join his former wife. He added that he had nothing to do with her death. The next day, he called Ramirez from the jail to discuss the case. He again told Ramirez that he wanted the electric chair so he could be with his former wife, and again denied killing her. At issue on appeal was whether the phone conversation with Ramirez initiated by Saleh from jail constituted a "custodial interrogation" under Miranda v. Arizona, 384 US 436, 442 (1966), and its progeny. The state trial court suppressed Saleh's statements of March 3, 1998, finding that the state failed to show that Saleh understood his Miranda warning. Additionally, because the statements made on March 25, 1998 were part of a custodial interrogation and made after Saleh asked for counsel, they were suppressed. The court further found that the March 25, 1998 statements, though inadmissible, were not the product of coercion but voluntary. It nevertheless held that the statements made to Ramirez during the March 26 phone call from Saleh were admissible. On direct appeal, the Washington Court of Appeals upheld Saleh's conviction for the first degree murder of his former wife. Saleh's petition for review in the Washington Supreme Court was denied. Saleh next filed a collateral attack on his conviction in state court (a personal restraint petition), which the Washington Court of Appeals denied. He then filed a motion for discretionary review in the Washington Supreme Court which was also denied. Saleh next filed a federal habeas petition. Adopting the magistrate's report and recommendation, the district court denied the petition with preju-dice. The USCA affirmed. Judge Berzon concurred in full in the opinion, but if the "cat out of the bag" contention resolved in Sec. II.B were not foreclosed by Medeiros v. Shimoda, 889 F.2d 819 (9th Cir. 1998) (9th Cir. 1989), she would adopt Judge Norris' dissenting view in that case. Here, as in Medeiros, she thought that that no valid Miranda warnings were given after the unwarned inculpatory statement was made. Judge Norris would have held that in those circumstances, no later statement is voluntary. O'Scannlain (author), Tashima, and Berzon (concurring), Circuit Judges. C. Endo of Seattle, WA, for the petitioner; AAG R. Larson of Seattle, WA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 51) SEXUAL ACTS MINORS: USA v. Cherer, 06-10642 (9th Cir. Jan. 25, 2008). Cherer was convicted under 18 USC Sec. 2422(b) for attempting to persuade, entice, or coerce a minor to engage in sexual acts. In appealing his conviction he argued that the district court committed prejudicial error by improperly instructing the jury and in improperly admitted evidence of his past conviction and other prior bad acts under Fed. R. Evid. 404(b). He also appealed his sentence of 293 months as unreasonably long. The USCA affirmed. Although it thought the sentence might be unduly harsh, it noted that it is not the sentencing court: "the fact that the appellate court might reasonably conclude that a different sentence is appropriate is insufficient to justify reversal of the district court." Gall v. USA, 128 S.Ct. 586, 597 (2007). Judge Noonan concurred in the convicton, but dissented as to the sentence. He thought the sentencing court failed to follow the law in two respects: It did not consider that Cherer responded to a temptation set up by the government and that his response to that temptation was ineffective. While Cherer was not entrapped in a legal sense, he was ready and willing to commit the crime and the law permits an attempt to be punished as severely as a completed crime. Nonetheless, in weighing the sentence, it would be unreasonable for the sentencing court not to take some account of these facts. Noonan (dissenting in part) and McKeown, Circuit Judges, and Trager (author), District Judge. M. Valencia of Henderson, NV for the appellant; AUSA N. Koppe of Las Vegas, NV, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 52) FELON IN POSSESSION / PROTECTIVE ORDERS: USA v. Carr, 07-30133 (9th Cir. Jan. 25, 2008). Carr appealed his convicton for being a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1). The felony was his Washington state conviction for "Felony Violation of a Protection Order-Domestic Violence," Wash. Rev. Code. Sec. 2650.110(5). Violation of a protection order is normally a gross misdemeanor in Washington, but Sec. 26.50.110(5) makes it a felony if the offender has two earlier convictions for violation of a protection order. Carr argued that, for purposes of the federal felon-in-possession statute, the USCA should construe his predicate convicton as a gross misdemeanor, because in other contexts the USCA has ignored recidivist sentencing enhancements in determining the severity of a conviction. The USCA rejected this argument because the statutory structure under which Carr was convicted requires that his predicate state conviction be treated as a felony. Canby (author), Graber, and Gould, Circuit Judges. D. Hehir of Yakima, WA, for the appellant; AUSA T. Hanlon of Yakima, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 53) SENTENCING: USA v. Medina Casteneda, 05-10372 (9th Cir. Jan. 15, 2008). Casteneda appealed his jury conviction and sentence for conspiracy to distribute and conspiracy to possess with the intent to distribute cocaine and cocaine base in violation of 21 USC Secs. 841 and 846, and for possession with intent to distribute cocaine base in violation of Sec. 841(a)(1). The USCA affirmed the conviction, but in light of Kimbrough v. USA, 128 S.Ct. 558 (2007), vacated the sentence and remanded for resentencing and a determination as to whether the disparity between crack and powder cocaine produced a sentence "greater than necessary" under 18 USC Sec. 3553(a). Goodwin, D.W. Nelson (author), and Callahan, Circuit Judges. J. Balazs of Sacramento, CA, for the appellant; AUSA T. Flynn of Sacramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 54) SENTENCING: USA v. Thornton, 06-50597 (9th Cir. Jan. 10, 2008). Thornton appealed a district court's decision not to re-sentence him after a limited remand pursuant to USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). He challenged the ruling and issues with respect to the original sentencing. The USCA affirmed. It held that where sentencing issues are raised, but not decided, in an appeal prior to an Ameline remand, those issues are properly before the court on any subsequent appeal from the Ameline remand, along with any challenges to the results of the Ameline remand itself. Thornton argued that he needed a kidney transplant and possible liver transplant which the Bureau of Prisons (BOP) could not provide. He claimed that the district court did not properly consider his medical condition and the lack of appropriate care available through the BOP, and that by failing to grant his request for an independent medical evaluation, its did not fully obtain the views of counsel as required by Ameline. The USCA disagreed. The district court obtained and recognized the views of counsel regarding the medical issues. Ameline does not require district courts on remand to appoint or consider the views of medical experts when requested by counsel; it simply states that the views of counsel should be obtained. Moreover, Thornton requested an independent medical examiner only in the event that the district court decided to resentence him, not to assist the district court in making the threshold determination to resentence. Reinhardt and Berzon (author), Circuit Judges, and Singleton, District Judge. W. Melcher of Woodland Hills, CA, for the appellant; G. Cardona of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 55) SENTENCING: USA v. Tulaner, 06-10304 (9th Cir. Jan. 9, 2008). Tulaner devised a scheme to defraud Johnson Matthey, Inc. (JMI) and Applied Materials by posing as an executive of Applied to obtain 12 platinum sputtering discs used in the manufacture of semiconductor chips. His scheme failed and he was arrested before he obtained them. He pled guilty to one count of wire fraud and was sentenced to 71 months incarceration. He appealed the sentence, arguing that the district court improperly determined the "intended loss" of his scheme and applied the wrong offense level increase under Guideline Sec. 2B1.1(b)(1). The USCA affirmed, finding that the district court properly held that the intended loss was the value of the 12 discs, rather than the value of four other discs he thought he was receiving the day he was arrested. The USCA also rejected Tulaner's argument that the district court should have applied an offense level reduction for a partial completed offense, because the crime to which he pled guilty was complete when an inter-state wire transmission was made by a phone call placed in furtherance of his scheme. Thomas (dissenting in part), Tallman (author), and Ikuta, Circuit Judges. J. Newton of Sedona, AZ, for the appellant; AUSA H. Kewalramani of Oakland, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 56) SENTENCING: USA v. Ross, 06-50569 (9th Cir. Jan. 14, 2008). Ross appealed his conviction and 188-month sentence following his guilty plea to one count of conspiracy to distribute more than 50 grams of cocaine base in violation of 21 USC Sec. 841(a)(1). He argued that his guilty plea was invalid because the plea colloquy did not comply with Fed. R. Crim. Proc. 11. The USCA noted that the district court failed to advise Ross that the government must prove its case beyond a reasonable doubt. That was error. Rule 11 provides that a defendant must understand his "right to a jury trial" and "the nature of each charge" before his guilty plea can be accepted. As Ross already knew that the reasonable doubt standard applied, the district court's failure to advise him of that did not constitute plain error. Ross also argued that the district court abused it s discretion when it denied his motion to withdraw his plea. He argued that his intention was to plead guilty to conspiracy while retaining the right to litigate the drug quantity and that constitutes a "fair and just reason" for withdrawing his plea under Rule 11(d)(2)(B). However, the USCA found that his statements during the plea colloquy contracted this claim. Finally, the district court's sentence was imposed at a time when courts believed the Sentencing Guidelines were mandatory. That, the USCA found, was plain error under USA v. Booker, 543 U.S. 220 (2005). The USCA thus remanded for further proceedings pursuant to USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005). Pregerson (author), Trott, and Paez, Circuit Judges. K. Landau of Oakland, CA, for the appellant; AUSA T. O'Brien of Oakland, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 57) SENTENCING: USA v. Calvert, 06-30643 (9th Cir. Jan. 14, 2008). At issue here was a question left open by USC v. Smith, 387 F.3d 826, 831 n.6 (9th Cir. 2004): When someone is convicted of retaliating against a federal witness in violation of 18 USC Sec. 1513(b), may the eight-level increase of Guideline Sec. 2J1.2(b)(1) (Nov. 2000) for an offense "causing or threatening to cause physi-cal injury to a person…in order to obstruct the administration of justice" be imposed even if no judicial proceeding was pending at the relevant time? The district court, following USA v. Duarte, 28 F.3d 47 (7th Cir. 1994), found such an increase permissible. The USCA affirmed. Calvert intended to retaliate against witness Overdorff because of Overdorff's service as a witness in a past criminal trial; in doing so Calvert's offense was committed "in order to obstruct the administration of justice." The imposition of the eight-level en-hancement was proper. Concurring, Judge Fletcher agreed that the enhancement was proper. She wrote separately because she thought the majority's opinion carried the troubling potential of mandating legal standards on issues that were not before the court and had not been considered in the context of concrete facts raising genuine legal issues. The discussion of the interrelationship between retaliation against witnesses and the administration of justice generally was her main concern. She thought that nearly all of that discussion un-necessary to the resolution of the appeal. B. Fletcher (concurring) and Gould, Circuit Judges, and Lawson (author), District Judge. R. Wall of Spokane, WA, for the appellant; T. Rice of Spokane, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 58) HABEAS CORPUS: Frantz v. Hazey, 05-16024 (9th Cir. Jan. 22, 2008). Frantz appealed the district court's denial of his habeas petition. Invoking the Sixth Amendment right to self-representation and the limits on advisory attorneys' participation described in McKaskle v. Wiggins, 465 US 168 (1984), he challenged his exclusion from a chambers conference in which his advisory counsel par-ticipated and discussed how the judge should respond to a query from the deliberating jury. The Arizona Court of Appeals denied the claim on harmless error grounds. However, Supreme Court law holds that a McKaskle error is structural and not subject to harmless error analysis. Deciding this appeal required that the USCA clarify it its approach to reviewing state court decisions which rely on legal principles contradicting clearly established Supreme Curt law but not necessarily reaching the wrong result. It held that, in addition to contradicting clearly established Supreme Court law, the Arizona Court of Appeals decision may have resulted in a denial of Frantz's constitutional right to represent himself, but the record on appeal was insufficient to resolve that issue. The USCA thus reversed the denial of Frantz's petition and remanded. Kozinski (concurring), Schroeder, Pregerson, O'Scannlain, Rymer, Thomas, Silverman, Graber, Wardlaw, Gould (concurring), Paez, Berzon (author), Callahan, Bea, and Ikuta, Circuit Judges. M. Burke of Phoenix, AZ, for the petitioner; T. Goddard of Phoenix, AZ, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 59) HABEAS CORPUS: Jackson v. Brown, 04-99006 (9th Cir. Jan. 23, 2008). Jackson filed a habeas petition challenging 1) his state court convictions for two counts of burglary and two counts of murder, 2) the jury's findings of special circumstances making him death-eligible, and 3) his death sentence. The fed-eral district court denied relief as to his convictions, but granted conditional relief as to the special circumstances findings and the death sentence. The state appealed the relief granted as to the special circumstances findings, but not also the ruling as to the death sentence. Jackson appealed the denial of relief as to his underlying conviction. The USCA affirmed the district court's partial grant of Jackson's petition as to the special circumstances and death sentence and its partial denial as to his convictions. Wardlaw (author), Paez, and Bybee, Circuit Judges. T. Dressner of La Crescenta, CA, for the petitioner; B. Lockyer of Los Angeles, CA, for the respondent (Download the full text of this decision at www.ce9.uscourts.gov/) 60) HABEAS CORPUS: Estrada v. Scribner, 06-55013 (9th Cir. Jan. 23, 2008). Estrada appealed the district court's denial of his 28 USC Sec. 2254 habeas petition for a new trial after his conviction in state court for second-degree murder. He claimed that his rights to due process and a fair and impartial jury under the Sixth and Fourteenth Amendments were violated because juror misconduct resulted in the jury's consideration of impermissible extraneous information, and because two jurors were impermissibly biased. The USCA affirmed. Regarding Juror No. 1's declaration that set forth his mistaken belief that his probation status would be adversely affected by a mistrial, the state courts concluded that the statements were inadmissible evidence of Juror No. 1's "subjective reasoning process," rather than extrinsic evidence of extraneous information injected into deliberations. The district court agreed. There was no indication from any of the juror affidavits that Juror No. 1 articulated this belief and injected it into the deliberations. The district court's ruling was thus consonant with Fed. R. Evid. 606(b), and not contrary to, or an unreasonable application of, clearly established Supreme Court law. Regarding the portions of the affidavits detailing the improper discussions of sentencing, as well as Juror No. 8's introduction of a prior murder into the discussions to support a longer sentence, the state appellate court determined that those portions were admissible. The district court agreed, as such evidence was "extrinsic." This ruling was correct and the USCA said it could consider it in reviewing Estrada's claims. It also said it could consider the portions of the declaration discussing Juror No. 8's introduction if his mother's murder into sentencing discussions. The district court and state courts erred in finding this inadmissible, because the mother's murder became "extrinsic evidence" considered by the jury, and evidence of the murder is admissible. The USCA thus held that the state court's decision was "contrary to" established Supreme Court precedent. Kozinski and Rawlinson, Circuit Judges, and Baer (author), District Judge. K. Hermansen of San Diego, CA, for the petitioner; M. Graves of San Diego, CA, for the respondent (Download the full text of this decision at www.ce9.uscourts.gov/) 61) HABEAS CORPUS: Davis v. Silva, 05-16821 (9th Cir. Jan. 2, 2008). Davis appealed the district court's dismissal of his habeas petition for failure to exhaust. He had complained that, during a prison disciplinary hearing resulting in the revocation of good-time credits, his due process right to call a witness was violated. The respondent maintained that Davis' claim was unexhausted because he failed to provide the California Supreme Court with a sufficient factual basis for his federal claim. The USCA reversed, holding that Davis did exhaust the factual basis for his claim because he presented to the state court all the facts necessary to give application to the constitutional principle upon which he relied. Gibson, Tashima (author), and Berzon, Circuit Judges. K. Hart of Sacramento, CA, for the petitioner; DAG H. Armstrong of Sacramento, CA, for the respondent (Download the full text of this decision at www.ce9.uscourts.gov/) 62) HABEAS CORPUS / PAROLE: Hess v. Bd. of Parole & Post-Prison Supervision, 06-35963 (9th Cir. Jan. 29, 2008). Hess appealed the denial of his 28 USC Sec. 2254 habeas petition. He argued that Oregon Revised Statute Sec. 144.125(3) (1991) (allowing the Parole Board to postpone his release date if it finds he has "a psychiatric or psychological diagnosis of a present severe emotional disturbance such as to constitute a danger to the health or safety of the community") is unconstitutionally vague. The USCA af-firmed, finding that Sec. 144.125(3) is neither facially vague nor vague as applied to Hess. Fisher (author) and Berzon, Circuit Judges, and Barzilay, District Judge. A. Bornstein of Portland, OR, for the petitioner; H. Myers of Salem, OR, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 63) HABEAS CORPUS / PAROLE: Hayward v. Marshall,
06-55392 (9th Cir. Jan. 3, 2008). California state prisoner Hayward
has twice been granted a parole date by the California Board of
Prison Terms, and California's Governor has twice reversed the Board's
determination that he was suitable for parole. On his appeals from
the federal district court's denial of his habeas petition, the
USCA held that, considering all the circumstances, the denial of
parole denied Hayward due process. It thus reversed and remanded
the case to the district court with instructions to grant the writ.
Hayward spent the last 27 years in prison and is now 64 years old.
He retired from the Vagos motorcycle gang in 1981. In the 27 years
he has spent in prison, he has completed substantial vocational
training in the fields of plumbing, mechanics, welding, meat cutting,
and shoe repair, He obtained a GED in 1981 and has developed typing
and computer skills through job assignments in prison. For the last
20 years, he has led prison tours for university students studying
criminal justice. He has not had a major disciplinary violation
in prison since 1989, and his last minor disciplinary infraction
was in 1997. Kozinski, Friedman, and Gould (author), Circuit
Judges. J. Camarata of Vallejo, CA, for the petitioner; AAG J. Garland
of Los Angeles, CA, for the respondent. (Download
the full text of this decision at www.ce9.uscourts.gov/)
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