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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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PUBLISHABLE OPINIONS 1) PATENT INFRINGEMENT: Fisher Tool Company v. Mayhew Steel Products, Inc., 06-55996 (9th Cir. June 30, 2008). Gillet Outillage, a French company that makes hose clamp pliers, owns French and U.S. patents on its pliers design. When it discovered that the plaintiffs were selling similar pliers in the U.S., it sued for patent infringement. However, the district court construed the patent claims narrowly at a pre-trial Markman hearing. Gillet then dropped its suit. Plaintiffs thereupon sued Gillet and its lawyers ("Mathews"), claiming that the lawsuit was a malicious prosecution under California law and a violation of the federal antitrust laws. They also claimed that the company's public allegations of patent infringement violated Sec. 43(a) of the Lanham Act and various California tort laws. The district court granted the defendants summary judgment. The USCA affirmed. Mathews had abundant probable cause to think that plaintiffs' pliers infringed the Gillet patent. Two of the firm's lawyers performed independent infringement analyses and the firm obtained a third infringement analysis from an outside patent lawyer. All three concluded that the plaintiffs' pliers infringed Gillet's patent. The plaintiffs did not come forward with any evidence that these infringement analyses fell below professional standards or were conducted in bad faith. Even the district judge who ruled against Gillet at the pre-trial Markman hearing said the company's arguments of patent infringement were "strong." The USCA agreed that "more than ample probable cause supported Mathews's decision to file the underlying lawsuit." Kozinski (author), O'Scannlain, and W. Fletcher, Circuit Judges. L. Mastriani of Washington, DC, for the plaintiffs; D. Lula of Irvine, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) COPYRIGHTS: Richlin v. Metro-Goldwyn-Mayer Pictures, Inc., 06-55307 (9th Cir. June 19, 2008). In 1962, Maurice Richlin co-authored a story involving the bumbling inspector Clouseau. He assigned all rights in the story-including copyright and the right to renew that copyright-to a corporation that used it to create The Pink Panther movie. Richlin's heirs later claimed federal statutory renewal rights in the story and derivative works. They asserted that Richlin's co-authorship of the story made him a coauthor of the movie. Alternatively, he maintained that because the movie secured statutory protection for portions of the story incorporated into the movie, and because the copyright in the movie was renewed for a second term, they were co-owners of the movie's renewal copyright and all derivative works thereof. The USCA affirmed the district court's ruling that the heirs had no interest in the copyright to the movie. Richlin failed to secure federal statutory copyright protection for the story. Thus he was never invested with statutory copyright, and a right to renew the original term of statutory copyright neither vested in him nor reverted to his heirs. Because Richlin neither co-owned nor co-authored the movie, neither he nor his heirs had any interest in its copyright. Fernandez and Wardlaw (author), Circuit Judges, and Collins, District Judge. E.R. Schoenberg of Los Angeles, for the plaintiffs; D. Grossman of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) COPYRIGHTS: Derek Andrew, Inc. v. Poof Apparel Corporation, 07-35048 (9th Cir. June 11, 2008). Poof Apparel appealed the district court's award to Derek Andrew of $15,000 in statutory damages under the Copyright Act, plus $296,090 in attorneys' fees. The USCA reversed the damages award because the infringing activity at issue commenced before the effective registration date of the copyright. In addition, while the district court's award of attorneys' fees under the Lanham Act was proper, any award of attorneys' fees under the Copyright Act was improper for the same reason Derek Andrew was not entitled to damages under the Copyright Act. On the record on appeal, however, the USCA found that it was unable to determine whether any portion of the attorneys' fees aware was based on the Copyright Act. It thus remanded with instructions to apportion the fee award in light of the USCA's ruling that attorneys' fees are not available under the Copyright Act. Graber and Rawlinson, Circuit Judges, and Wright (author), District Judge. N. Smith of San Francisco, CA, for the defendant; L. Koonce of New York, NY, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) SECURITIES LAW: SEC v. Talbot, 06-55561 (9th Cir. June 30, 2008). Talbot, a member of the board of directors of Fidelity National Financial, traded on confidential information about the impending acquisition of LendingTree, which he received in his capacity as a Fidelity director. At issue on appeal was whether he could be liable under Sec. 10(b) and Rule 10b-5, for misappropriating information from Fidelity, in the absence of a fiduciary duty of confidentiality owed LendingTree by Fidelity or Talbot when he executed the trades. The USCA held that Talbot could be liable under a misappropriation theory because he traded on confidential information received in his capacity as a member of Fidelity's Board, but that a genuine issue of material fact as to the materiality of the information precluded judgment as a matter of law. Thompson, Wardlaw (author), and Ikuta, Circuit Judges. B. Cartwright of Washington, DC, for the SEC; R. Marmaro of Los Angeles, CA, for Talbot. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) SECURITIES FRAUD: Berson v. Applied Signal Technology, 06-15454 (9th Cir. June 5, 2008). At issue here was whether the plaintiffs adequately pled a claim of securities fraud. They had bought stock in Applied Signal Technology ("AST") during a six month period before AST revealed that its revenue had fallen 25% from the preceding quarter. Its stock price then dropped 16%. Plaintiffs sued AST and two of its officers under Securities Exchange Act Sec. 10(b), 15 USC Sec. 78j(b), and Rule 10b-5, 17 CFR Sec. 240.10b-5. Military agencies accounted for some 20% of AST's revenue. According to the plaintiffs, these government customers at any time and for any reason can order the company to stop working on existing contracts for up to 90 days. AST gets paid only for work it actually performs. Thus, when the government issues a "stop-work order," AST immediately ceases to earn money and, be-cause stopped work often is cancelled altogether, a stop-work order signals a heightened risk that AST never will earn the money. Ac-cording to the plaintiffs, the precipitous drop in AST's revenue was caused by four stop-work orders which halted tens of millions of dollars of work it had contracted to perform. Investors were surprised by the drop in revenue, plaintiffs claim, because AST continued to count the stop work as part of its "backlog"-a term the company defines as the dollar value of the work it has contracted to do but hasn't yet performed. The plaintiffs claimed that the company's backlog reports misled them into believing that AST was likely to per-form work that, in reality, had been halted and was likely to be lost forever. The district court dismissed the complaint. The USCA reversed and remanded. Had the defendants released no backlog reports, their failure to mention the stop-work orders might not have misled anyone. But once they chose to tout the company's backlog, they were had to do so in a manner that would not mislead inves-tors as to what that backlog consisted of. The USCA could not say, as a matter of law, that the defendants fulfilled this duty. Kozinski (author), Cowen, and Hawkins, Circuit Judges. M. Kindall of Walnut Creak, CA, for the plaintiff; D. Priebe of East Palo Alto, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) BANKRUPTCY: In re Imperial Credit Industries, 05-56073 (9th Cir. June 4, 2008). The cases consolidated on appeal here concerned the undercapitalization and eventual insolvency of a federally insured bank, Southern Pacific Bank ("SPB"), and its holding company, Imperial Credit Industries ("Imperial"). In February 2002, the Federal Deposit Insurance Corporation ("FDIC") notified SPB that it was under-capitalized and required it to submit a capital restoration plan. SPB submitted a capital plan as well as a guaranty from Imperial that SPB would perform under the plan. When SPB failed to implement its capital plan, the FDIC demanded that Imperial pay its $18,375,800 obligation under the guaranty. Imperial, which by that time was in Chapter 11, asserted a number of defenses to its obligation under the performance guaranty. The district court rejected all of these defenses and granted partial summary judgment in favor of the FDIC, ruling that Bankruptcy Code Sec. 365(o) required Imperial to cure its deficit to the FDIC as a condition of re-maining in Chapter 11. On appeal, Imperial's trustee challenged not only whether the guaranty bound Imperial with respect to SPB's capital plan, but whether Imperial's liability under the guaranty was properly calculated and the guaranty could be avoided as a fraudu-lent conveyance. The USCA affirmed the district court's ruling that Imperial was bound by the guaranty and its calculation of Imperial's liability, but reversed and remanded the fraudulent conveyance claim. While that appeal was pending, Imperial converted to Chapter 7 to avoid the district court's order that it cure its deficit. The FDIC counterclaimed for declaratory relief in the district court, seeking a determination of the priority of Imperials' obligation under the guaranty. The district court granted summary judgment for the FDIC, holding that its claim was entitled to administrative priority status under 11 USC Sec. 507(a)(2). The trustee appealed that decision too, arguing that the FDIC's claim was entitled only to ninth priority under 11 USC Sec. 507(a)(9). The USCA agreed and reversed the district court's summary judgment for the FDIC. It held that a failure to cure a Sec. 365(o) deficit in a Chapter 11 case does not give rise to an administrative priority in a Chapter 7 case. Rather, the FDIC's claim attributable to Imperial's failure to cure its debt was entitled only to ninth priority under Secs. 365(o) and 07(a)(9). Hall (author), Graber, and Berzon, Circuit Judges. M. Strub of Los Angeles, CA, for the plaintiff; J. Taner of Arlington, VA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) BANKRUPTCY / STUDENT LOANS: Espinosa v. United Student Aid Funds, Inc., 06-16421 (9th Cir. June 24, 2008). Espinoza obtained $13,250 in student loans from United Student Air Funds, Inc. ("Funds"). He later filed a Chapter 13 bankruptcy petition and a plan that provided he would repay the $13,250 principal and that accrued capitalized interest, penalties and fees would be discharged. The clerk of the bankruptcy court mailed a notice of commencement and a copy of the proposed plan to Funds, which gave Funds the usual notice of the date and time of the plan confirmation hearing and the deadline for filing objections. Funds then filed a proof of claim for $17,823.15, which presumably included unpaid accrued capitalized interest, penalties and fees. But Funds filed no objections to the plan, and the bankruptcy court confirmed the plan as proposed. Espinosa subsequently paid Funds $13,250 and the bankruptcy court issued a discharge order. However, that order provided that Espinosa was "discharged from all debts provided for by the plan … except any debt … for a student loan," which contradicted the terms of the plan. Stranger still was that Espinosa did not seek reconsideration of the order. Nor did he appeal. Three years after the order was filed, Funds began taking Espinosa's income tax refunds to satisfy "unpaid" portions of his student loan. Espinosa petitioned the bankruptcy court for an order holding Funds in contempt for violating the discharge injunction. Funds cross-moved for relief from the bankruptcy court's confirmation of the plan on the ground that the order had been entered in violation of Funds' rights under the Bankruptcy Code and the Due Process Clause. The bankruptcy court held that Funds violated the discharge injunction and ordered Funds to cease all collection activities against Espinosa. It also denied Funds' motion for relief from the confirmed plan, holding that the plan became final when confirmed and that Funds should have objected to any procedural defects before confirmation. Funds appealed to the district court, which reversed, finding that the order confirming the plan was void because Funds received insufficient notice. The USCA vacated the submission and remanded. It instructed that the case be remanded to the bankruptcy court and that the bankruptcy court has express leave to consider whether its discharge order was entered as a result of a clerical error and, if so, whether to correct it so as to conform to Espinosa's Chapter 13 plan. Kozinski, Tashima, and N.R. Smith, Circuit Judges. Per Curiam. M. Meehan of Tucson, AZ, for the plaintiff; M. Wanslee of Phoenix, AZ, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) BANKRUPTCY / TAXATION: Central Valley Ag Enterprises v. USA, 05-16177 (9th Cir. June 25, 2008). This appeal con-cerned the intersection of 11 USC Sec. 505(a), which generally authorizes bankruptcy courts to redetermine a debtor's tax liability, and provisions of the Tax Equity and Fiscal Responsibility Act of 1982 ("TEFRA"), which provide that the tax treatment of partnership items ordinarily must be determined at the partnership level. After Chapter 11 debtor Central Valley Ag Enterprises filed an objection to the Government's $13.1 million tax claim in its bankruptcy proceeding, the district court dismissed the action on the basis that the statutory res judicata provision in Sec. 505(a)(2)(A) deprived it of subject matter jurisdiction to review the tax treatment of any partnership item administratively determined by the IRS that has become final pursuant to TEFRA. The USCA disagreed and held that Sec. 505(a)(1) gave the district court subject matter jurisdiction to review the tax treatment of Central Valley's partnership items, not-withstanding TEFRA. Brunetti (author), W. Fletcher, and Bea, Circuit Judges. S. Reddie of Fresno, CA, for the plaintiff; T. Clark of Washington, DC, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) TAXATION: Texaco v. USA, 06-16098 (9th Cir. June 13, 2008). The USCA herein undertook the interpretation of 26 USC Sec. 1341, which allows a taxpayer, who is required to pay to a third party income on which it has already paid income tax, credit for the tax it paid on that income. Subsection (b)(2) provides that this credit is not available with respect to an item included in gross income by reason of the sale of inventory. Texaco sought a tax refund of $101,043,085.00 under Sec. 1341(a), because pursuant to a settle-ment agreement with the Department of Energy it had to pay out sums it had previously included in its gross income. The government denied the refund claims on the ground that the inventory exception in Sec. 1341(b)(2) barred Texaco from using Sec. 1341(a). The district court ordered the government to pay the refund. The USCA reversed, holding that Sec. 1341(b)(2) plainly precluded Texaco from using the computation of tax set forth in Sec. 1341(a) and Sec. 1341(b)(2) plainly prohibited the use of a Sec. 1341(a) computa-tion by an entity other than a public utility with respect to any amount included in its gross income in a prior taxable year by reason of the sale or other disposition of stock in trade or inventory. Hug, Schroeder, and Callahan (author), Circuit Judges. AAG E. O'Connor of Washington, DC, for the defendant; W. Goldman of Washington, DC, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) VEHICAL WARRANTIES: Clemens v. DaimlerChrysler Corp., 06-56410 (9th Cir. June 19, 2008). Clemens bought a new 1998 Dodge Neon from an independent Dodge dealership. After driving the car 50,000 miles, he noticed that the engine had begun to leak oil. The leak worsened. After 60,000 miles, he learned that head gasket failure (and resulting oil leaks) were a common problem on this model. In September 2002, a Chrysler-authorized service center referred Clemens to a customer service hotline, which denied his request for a repair discount. He brought this class action, alleging that DaimlerChrysler breached express and implied warranties and committed fraud in the sale of Dodge Neon cars containing defective head gaskets from 1995 to 1998. The district court granted the defendant's Rule 12(b)(6) motion to dismiss the warranty claims. It also granted the defendant's motion for summary judgment on the fraud claims, holding that one claim was barred by the statute of limitations and the other failed on the merits. The USCA affirmed. It held that Clemens could not proceed on his express warranty claim because he did not allege that his car failed to perform as expressly warranted. His implied warranty claim failed because he was not in vertical privity with DaimlerChrysler as required by California law. Dismissal was appropriate as to both claims under state law and the Magnuson-Moss Act. Because Clemens had inquiry notice of fraud more than three years before he filed this action, the statute of limitations barred his Civil Code fraud claim. He also could not proceed under the UCL because DaimlerChrysler's conduct was not unfair within the meaning of the statute and Clemens had not produced sufficient evidence that the failure rate of the head gasket was material to a reasonable consumer. Canby (author) and Bybee, Circuit Judges, and Hunt, District Judge. J. Edgar of Kansas City, Kansas for the plaintiff; F. Baker of San Francisco, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) INSURANCE LAW: Ferguson v. Coregis Insurance Company, 06-35867 (9th Cir. June 3, 2008). Ferguson filed this action on behalf of his son in Idaho state court seeking a declaratory judgment as to the "general liability limit" of an insurance policy sold to the Coeur d'Alene School District by Coregis Insurance Company. Coregis removed the action to federal district court, invoking that court's diversity jurisdiction pursuant to 28 USC Sec. 1332. It then moved for summary judgment. Ferguson responded and filed a cross-motion for summary judgment. The district court denied Ferguson's motion and granted Coregis'. The USCA reversed both the summary judgment for Coregis and the denial of Ferguson's cross-motion because the judgment determined the "general liability limit" by means of a non-existent standard. A judgment cannot be entered to enforce a contact's term when that term does not exist. Thompson, W. Fletcher, and Bea, Circuit Judges. Per Curiam. G. Amendola of Coeur d'Alene, ID, for the plaintiff; B. Julian of Boise, ID, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) ENVIRONMENTAL LAW: Coos County Board of County Commissioners v. Kempthorne, 06-35634 (9th Cir. June 26, 2008). At issue here was whether the Fish and Wildlife Service ("FWS") had an enforceable duty promptly to withdraw a threatened species from the protections of the Endangers Species Act ("ESA"), after a five-year agency review mandated by the ESA found that the species did not fit into one of the several types of population categories protected by the ESA. The USCA held that the FWS did not have such a duty. Fernandez and Berzon (author), Circuit Judges, and Wright, District Judge. R. Kasarda of Salem, Or, for the plaintiff; E. Durkee of Washington, DC, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) ENVIRONMENTAL LAW: The Lands Council v. Martin, 07-35804 (9th Cir. June 25, 2008). After a forest fire burned thousands of acres of national forest in Washington, the U.S. Forest Service initiated a salvage logging operation. The Lands Council, and other environmental groups, appealed the district court's grant of summary judgment for the Service and the Forest Supervisor. At issue before the USCA was whether the Service took the requisite "hard look" under the National Environmental Policy Act of 1969, and whether it complied with the National Forest Management Act of 1976. The USCA held that the Service failed to include an ade-quate discussion of the effects of proposed logging on two significant roadless areas. It otherwise affirmed. Graber (author), Paez, and Bea, Circuit Judges. R. Bloemers of Portland, OR, for the plaintiffs; D. Shilton of Washington, DC, for the defendants; S. Horngren of Portland, OR, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) TOXIC TORTS / PRICE-ANDERSON ACT: Golden v. CH2M Hill Hanford Group, 05-35832 (9th Cir. June 11, 2008). Golden worked on the Hanford Nuclear Reservation in a facility operated by the CH2M Hill Hanford Group ("CH2M"). CH2M stored liquid waste containing radioactive materials and non-radioactive heavy metals in large storage tanks. On May 20, 2002, Golden was working on one of these tanks when up to four gallons of this toxic liquid splashed on him. He sued CH2M in state court under Wash-ington law, claiming that the accident caused him physical injuries ranging from colitis to sinusitis, as well as emotional distress. His wife sued for loss of consortium. CH2M removed. The district court had jurisdiction under the Price-Anderson Act, which preempts all state-law claims for injury resulting from nuclear incidents. It granted summary judgment to CH2M. The USCA affirmed in part, vacated in part, and remanded. To survive summary judgment on a toxic tort claim for physical injuries, Golden had to show that he was exposed to chemicals that could have caused the physical injuries he complains about (general causation), and that his exposure did in fact result in those injuries (specific causation). However, that his physician considered the exposure to be a potential cause in prescribing treatment did not mean that the exposure in fact caused his injuries. The physician later offered another opinion: "Mr. Golden has had adverse health effects caused by or exacerbated by those exposures." But his reference to "those exposures" was not limited to the May 20, 2002 accident: Golden worked for years without protective equipment, including respiratory protection, in an area in which people are now required to wear respiratory protection: "It is," he said, "likely that he was chronically exposed to toxic materials as a result of that work." Golden did not claim that CH2M was liable for chronically exposing him to toxins. He claimed only that CH2M was liable for the toxic exposure on May 20, 2002. As his expert was unable to support his claim that the accident caused his physical injuries, Golden was unable to prove specific causation. The USCA thus affirmed the district court's grant of summary judgment to CH2M on Golden's claim for physical injuries. Kozinski (author) and Fisher, Circuit Judges, and Guilford, District Judge. W. Rutzick of Seattle, WA, for the plaintiffs; T. Heiden of Washington, DC, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) MOTOR CARRIER ACT: Fulfillment Services v. United Parcel Services, 06-15970 (9th Cir. June 9, 2008). This case concerns the availability of a private civil remedy for violations of the Motor Carrier Act ("MCA"), specifically establishment of shipping rates in the trucking industry. The USCA considered whether, under 49 USC Sec. 14704(a)(2), a private party can sue for violations of 49 USC Sec. 13703. It held that Sec. 14704(a)(2) provides for a private cause of action, but that a plaintiff must allege actual damages arising from the violation in order to state a claim successfully. Silverman, McKeown (author), and Tallman, Circuit Judges. P. Cullen of Washington, DC, for the plaintiffs; G. Koltun of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) CONDEMNATION: USA v. Campion, 06-15410 (9th Cir. June 24, 2008). At issue here was the district judge's discretion to exclude expert testimony about electromagnetic fields ("EMFs") in a condemnation action. The U.S. condemned land belonging to Campion for the construction of power transmission lines. At trial, both sides offered expert testimony regarding diminution of value of the remaining land resulting from the power lines within the easement. While some of the testimony was allowed, the judge refused to let Campion's expert, an environmental planner, testify about EMF levels on the land and the types of questions developers typically asked her about EMFs. A jury found that Campion was entitled to just compensation in the amount of $2,023,715. Campion appealed the exclusion of expert testimony. The USCA affirmed. The trial judge acted within his discretion in excluding measurements taken by Sage, one of Campion's experts, on the ground that they could mislead the jury into thinking that EMFs posed a proven health risk to humans. The countervailing probative value of such measurements was minimal as Campion presented no evidence linking specific EMF levels with specific public perceptions or market effects. Models Sage constructed for developers offered little probative value in light of the general testimony regarding Sage's work that was admitted. If there was any error in excluding the latter evidence, the error was harmless. Canby (author) and M.D. Smith, Circuit Judges, and Larson, District Judge. J. Derrick of Santa Barbara, CA, for the defendant; L. Bellas of Washington, DC, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) CONDEMNATION: USA v. Sawyer, 05-17347 (9th Cir. June 24, 2008). Pursuant to a 2001 order of the Secretary of Energy, the Western Area Power Administration ("WAPA") selected certain land in California on which to construct a high-voltage transmission line. The U.S. began condemnation proceedings in the district court on behalf of WAPA. Sawyer, an owner of condemned property, challenged the government's exercise of its power of eminent domain, claiming that the taking lacked proper congressional authorized, was not for a "public use" as required by the Takings Clause, and violated California law. The district court dismissed his objections and, when the parties reached an agreement on the compensation amount, entered summary judgment sua sponte. The USCA affirmed. The district court did not err in granting summary judgment for the U.S. or in apportioning the compensation among the defendants. Canby (author) and M.D. Smith, Circuit Judges, and Larson, District Judge. B. Leichty of Clovis, CA, for the defendants; D. Wright of Washington, DC, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) AMERICANS WITH DISABILITIES ACT: Hubbard v. SoBreck, LLC, 06-56870 (9th Cir. June 27, 2008). Lynn and Barbara Hubbard filed parallel claims for violations of the Americans with Disabilities Act ("ADA") and the California Disabled Persons Act. Their complaint alleged barriers that deprived them of full and equal access to a restaurant operated by SoBreck, dba Johnny Carino's. At issue was whether the district court properly awarded attorneys' fees where fees were not authorized under the federal ADA. The USCA held that the award of fees under state law was preempted by federal law in this case. Schroeder (author), Silverman, and Berzon, Circuit Judges. S. Hubbard of Chico, CA, for the plaintiffs; D. Merkin of San Diego, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) AMERICANS WITH DISABILITIES ACT: Gribben v. UPS, 06-15964 (9th Cir. June 16, 2008). Gribben appealed the district court's judgment in favor of his employer United Parcel Service ("UPS") in his action alleging disability discrimination and retaliation in violation of the ADA. Gribben, who suffers from congestive heart failure and cardiomyopathy requested but was denied accommodations for limitations imposed by his cardiologist. The district court granted summary judgment for UPS on the discrimination claim and a jury returned a verdict for UPS on the retaliation claim. The USCA affirmed the jury verdict on the retaliation claim, reversed the summary judgment on the disability claim, and remanded for further proceedings. The district court did not err in refusing to given the jury a punitive damages instruction. The jury determined that the evidence was insufficient to establish a claim for retaliation. That determination supported the district court's decision that the same evidence was insufficient to warrant in instruction on punitive dam-ages. A punitive damages instruction, may, however be warranted in connection with Gribben's disability discrimination claim which the USCA remanded to the district court. Canby, Thompson (author), and M.D. Smith, Circuit Judges. D. Bonnet of Phoenix, AZ, for the plaintiff; D. Barton of Phoenix, AZ, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) SOCIAL SECURITY: Le v. Astrue, 06-56804 (9th Cir. June 24, 2008). Le first applied for Supplemental Social Security ("SSI") benefits in September 1994, claiming an onset of disability in February 1994. His application was denied by an ALJ in October 1997, but that judgment was reversed by the district court and Le's application was remanded to the Commissioner for additional proceedings. Le then moved the district court for attorney's fees under Equal Access to Justice Act ("EAJA"). The district court denied the EAJA motion, holding that the government's position was "substantially justified." The USCA affirmed. Though incorrect, the Com-missioner's position was substantially justified within the meaning of the fee statute. A non-frivolous argument could be made that Le's five visits over three years were not enough under the regulatory standard especially given the severity and complexity of Le's alleged mental problems. W. Fletcher and Gould (author), Circuit Judges, and Pollak, District Judge. A. Manbeck of San Diego, CA, for the appellant; AAG P. Keisler of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) ) 21) SOCIAL SECURITY: Ryan v. Commission of Social Security, 06-15291 (9th Cir. June 18, 2008). Ryan appealed the district court's order granting summary judgment for the Commissioner of Social Security, upholding the Commissioner's decision denying her application for Title II disability benefits. The ALJ did not give full weight to the opinions of two examining psychologists, characterizing their opinions as too heavily based on Ryan's "subjective complaints," and as being inconsistent with the records of Ryan's treating physician, a family practitioner. The USCA found no inconsistency. The records of Ryan's treating physician supported the examining psychologists' assessment that Ryan was incapable of maintaining a regular work schedule. Because substantial evidence did not support the ALJ's denial of disability benefits, the USCA reversed. B. Fletcher (author), Canby, and Rawlinson (dissenting), Circuit Judges. H. Sackett of San Jose, CA, for the plaintiff; J. Cusker of San Francisco, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) FIRST AMENDMENT: Fogel v. Collins, 06-15395 (9th Cir. June 27, 2008). Police in Grass Valley, California, arrested Fogel and impounded his van because of messages painted on it. (E.g., "I am a fucking suicide bomber communist terrorist!" and "Allah praise the Patriot Act … fucking jihad on the first amendment.) Fogel brought suit against the City and six of its police officers under 42 USC Sec. 1983, alleging a violation of his First Amendment rights. The district court assumed without deciding that Fogel's First Amendment rights had been violated and granted summary judgment for the defendants. It held that the City had not implemented an unconstitutional policy and that the officers were entitled to qualified immunity. The USCA held, rather than assumed, that Fogel's First Amendment rights were violated. It then affirmed for the reasons given by the district court. The individual defendants violated Fogel's First Amendment rights by arresting him, impounding his van, and making him paint over his message. However, qualified immunity protected these defendants from a claim for damages. The USCA further held that the City did not violate Fogel's First Amendment rights. Brunetti, W. Fletcher (author), and Clifton, Circuit Judges. S. Munkelt of Nevada City, NV, for the appellant; G. Tonon of Truckee, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) NATIVE AMERICA LAW: Barona Band of Mission Indians v. Yee, 06-55918 (9th Cir. June 18, 2008). At issue here was whether a non-Indian contractor who purchased construction materials from non-Indian vendors, which are later delivered to a con-struction site on Indian land, is exempt from state sales taxes. The California State Board of Equalization appealed the grant of summary judgment for the Barona Band of Mission Indians. The district court determined that the balancing test set forth in White Mountain Apache tribe v Bracker, 448 U.S. 136 (1980), preempted a state sales tax levied against a non-Indian subcontractor performing work on the Tribe's casino expansion. Because the Tribe, as part of its highly lucrative gambling enterprise, merely marketed a sales tax exemption to non-Indians as part of a calculated business strategy, the USCA concluded that its strategic effort to receive construction services from non-Indians at a competitive discount by circumventing the state sales tax did not outweigh California's interest in raising general funds. The USCA thus reversed and remanded for further proceedings. Pregerson, Archer, and Wardlaw (author), Circuit Judges. W.D. Freeman of San Diego, CA, for the appellants; A. Bunce of Escondido, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) NATIVE AMERICA LAW: Guidiville Band of Pomo Indians v. NGV Gaming, 05-17066 (9th Cir. June 26, 2008). This dispute concerns a statute which requires the Secretary of the Department of the Interior to approve any "contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years" before such a contract can be considered valid. 25 USC Sec. 81(a) defines the term "Indian lands" in part as "lands the title to which is held by the United States in trust for an Indian tribe." NGV Gaming asked the USCA to read Sec. 81 literally-as pertaining solely to contracts that implicate lands already held in trust by the federal government. Harrah's Operating Company and the Guidiville Band of Pomo Indians urged a non-literal reading, one that would treat Sec. 81 as also covering contracts in which the parties reach agreement, not with respect to already-held lands, but "to acquire lands in the future that might eventually be held in trust." Under the latter interpretation the contract would be invalid, lacking as it does the Secretary's approval, and the district's decision to dismiss NGV's suit against Harrah's for tortious interference with that contract would have to be affirmed. But under the literal, reading, the district court's decision would be error, and the state law action could proceed. The USCA held that the word "is" in the statute means just that (in the most basic, present-tense sense of the word) and that Sec. 81 applies only to contracts that affect lands already held in trust by the United States. The USCA reversed the district court and remanded for further proceedings. Trott and N.R. Smith (dissenting), Circuit Judges, and Shadur (author), District Judge. T. Cassidy of Sacramento, CA, for NGV Gaming; S. Hart of Phoenix, AZ, for the Guidiville Band. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) NATIVE AMERICA LAW: USA v. FMC, 06-35429 (9th Cir. June 27, 2008). In the late 1990s, the U.S. and Intervenor Sho-shone-Bannock Tribes approached FMC, a mining company operating in Idaho, about potential violations of federal and tribal envi-ronmental laws. FMC reached an agreement with each party. It agreed to pay the Tribes $1.5 million per year in lieu of applying for certain tribal permits. FMC and the U.S. then entered into a consent decree, which they presented to the federal district court for ap-proval. The district court approved it and the USCA affirmed. In 2001, FMC ceased some of its mining operations, stopped making its annual payments to the Tribes, and refused to apply for certain tribal permits. After negotiations between the Tribes and FMC failed, the Tribes sought enforcement of the consent decree in district court. It held that the Tribes could enforce the decree as third-party beneficiaries and that the decree required FMC to apply for tribal permits. On appeal, the USCA held that the Tribes lacked standing to enforce the decree, vacated the district court's orders, and remanded with instructions to dismiss the action. Graber (author) and Rawlinson, Circuit Judges, and Wright, District Judge. R. Palumbo of Seattle, WA, for the defendant; P. EchoHawk of Pocatello, ID, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) PRIVACY: Quon v. Arch Wireless Operating Company, 07-55282 (9th Cir. June 18, 2008). The Ontario Police Department reviewed text messages to and Officer Quon. At issue was whether Arch Wireless, with whom the City contracted for text messaging services, violated the Stored Communications Act, and whether the City, is Police Department, and Police Chief Scharf violated Quon's rights and the rights of those with whom he "texted"-Sergeant Trujillo, Dispatcher Florio, and his wife Jerilyn Quon-under the U.S. and California constitutions. The USCA held that the search of Quon's text messages violated his federal and state privacy rights because he had a reasonable expectation of privacy in the content of the messages, and the search was unreasonable in scope. While Scharf was shielded by qualified immunity, the City and the Department were not shielded by statutory immunity. The USCA also affirmed in part, reversed in part, and remanded Quon's Stored Communications Act claim against Arch Wireless and his state and federal constitutional claims against the City, the Department, and Glenn, a member of the Department's Internal Affairs section who assisted in the investigation of the texting. Pregerson and Wardlaw (author), Circuit Judges, and Leighton, District Judge. D. Dammeier of Upland, CA, for the plaintiffs; D. Rinos of Tustin, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) LABOR LAW: United Transportation Union v. Burlington Northern Santa Fe, 07-35066 (9th Cir. June 9, 2008). The United Transportation Union, General Committee of Adjustment GO-386 ("Union") alleged that the Burlington Northern Santa Fe Railroad Company ("BNSF") and the Longview Switching Company ("LSC") violated the Railway Labor Act ("RLA") by implementing a trackage rights agreement approved through the process prescribed by the Interstate Commerce Act ("ICA") but without bargaining with the Union. The Union objected to the unilateral transfer of work to LSC employees and the cancellation of BNSF jobs, which effected a change in the terms and conditions of employment of individuals represented by the Union. On appeal, the Union challenged the district court's grant of BNSF and LSC's motion to dismiss on grounds that the court lacked subject matter jurisdiction. The USCA affirmed. A Trackage Rights Agreement is a regulated Subchapter II transaction under 49 USC Sec. 11323(a) and 49 CFR Sec. 1180.2. The parties to the transaction here filed a Notice of Exemption, expressly referencing Sec. 1180.2(d)(7). The STB granted the exemption from the procedures of 49 USC Secs. 11323 and 11324, filing its notice under 49 CFR Sec. 1180.2(d)(7), and imposing Norfolk & Western conditions. As a regulated Subchapter II transaction, it is subject to Sec. 11321(a) and immune from "all other law," including the abrogation of collective bargaining agreements and the strictures of the RLA as necessary to implement the transaction. Any disputes, including labor disputes, necessary to the Trackage Rights Agreement and its implementation and any disputes about whether modifications to the collective bargaining agreements are "necessary" to the transaction are within the exclusive jurisdiction of the STB and should be raised there. The USCA thus held that the district court properly dismissed the matter, having found that it lacked jurisdiction. Bea and M.D. Smith, Circuit Judges, and Hood (author), District Judge. D. Straton of Eugene, OR, for the appellant; D. Munro of Washington, DC, for the appellees (Download the full text of this decision at www.ce9.uscourts.gov/) 28) LABOR LAW / IMMIGRATION:
Aramark Facility Services v. Service Employees Intl. Union, 06-56662
(9th Cir. June 16, 2008). This case arose from the response by Aramark Facility
Services to a "no-match letter" from the Social Security Administration
("SSA"), which indicated that Aramark had reported information for 48
of its employees at a Staples Center Los Angeles that did not match the SSA's
database. Suspecting immigration violations, Aramark told the listed employees
that they had three days to correct the mismatches by proving they had begun the
process of applying for a new social security card. Seven to ten days later, Aramark
fired 33 employees who did not timely comply. The Service Employees International
Union ("SEIU") filed a grievance on behalf of the fired workers, contending
that the terminations were without just cause and thus in breach of the collective
bargaining agreement ("CBA") between Aramark and SEIU. An arbitrator
ruled for SEIU and awarded the fired workers back-pay and reinstatement, finding
there was no convincing information that any of them were undocumented. The district
court vacated the award on the ground that it violated public policy. At issue
on appeal was whether the SSA's no-match letter and the fired employees' responses
put Aramark on constructive notice that it was employing undocumented workers.
If so, the arbitrator's award would force Aramark to violate federal immigration
law and was properly vacated as against public policy. If not, the award must
stand. The USCA reversed and remanded. Constructive knowledge is to be narrowly
construed in the immigration context and requires positive information of a worker's
un-documented status. The USCA said it must defer to the arbitrator's factual
findings even when evaluating an award for violation of public policy. Thus, given
the extremely short time that Aramark gave its employees to return with further
documents and the arbitra-tor's finding that Aramark had no "convincing information"
of immigration violations, the employees' failure to meet the deadline was not
probative enough of their immigration status to indicate that public policy would
be violated if they were reinstated and given back pay. Hall (author),
T.G. Nelson, and Silverman, Circuit Judges. S. Wall of Los Angeles, CA, for the
defendant; M. Chawla of Ala-meda, CA, for the plaintiff. (Download the full text of this decision
at www.ce9.uscourts.gov/) 31) IMMIGRATION: Ram v. Mukasey, 05-71190 (9th Cir. June 26, 2008). Ram petitioned for review of a BIA decision finding him removable because he was convicted of an aggravated felony and a controlled substance violation. The BIA held that Ram's hearing before an Immigration Judge ("IJ") afforded him adequate due process. However, the USCA held that Ram was denied due process and his statutory right to counsel, and that he was prejudiced. It thus granted his petition for review and remanded to the BIA with instructions to order a new hearing before an IJ. Ram's perfunctory responses to the IJ's questions about his criminal convictions dem-onstrated that he did not understand either his role in the proceedings or that the government had the burden of proving he was con-victed of an aggravated felony and a controlled substance violation. The documentary evidence eventually produced with respect to Ram's "convictions" also was far from clear. His counsel on appeal argued that "an attorney would have helped Ram understand his criminal record as well as his legal rights and evidentiary burden, so that he would not have admitted to allegation and charges that were spurious and that the [Department of Homeland Security] could not substantial with proper documents." Counsel plausibly added that the most that could be proven from the record is that Ram was convicted for narcotics possession; he was not an aggravated felon; and, he is eligible for cancellation of removal, asylum, and withholding of removal. Trott (author) and Thomas, Circuit Judges, and Hogan, District Judge. A. Mathew of Berkeley, CA, for the petitioner; N. Friedman of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) IMMIGRATION: Morgan v. Mukasey, 05-70590 (9th Cir. June 25, 2008). Morgan, his wife Miriam, and three children, were members of the Coptic Orthodox Church in his home country of Egypt. He testified that he experienced hostility from "extremists" - Muslim fundamentalists who were not restrained by the government of Egypt. In 1988, they attacked and burned his store because it remained open during Muslim prayers and they threatened to kill him if he continued to do business. Morgan reported the attack to the fire department, which refused to investigate or to provide a report of the incident for insurance purposes. In 1995, extremists attacked a store owned by Morgan's cousin, Refaat, and severely beat him. Morgan and Refaat were then shot at as Morgan drove Refaat to the hospital. While at the hospital, Muslim extremists beat Refaat's wife and sprayed acid in her face. When Morgan and Refaat informed the police, the police insulted them and their religious beliefs. On May 5, 1997, Morgan was arrested and falsely accused of raping Hoda, the daughter of a Muslim client. Hospital records showed that Morgan was in the hospital recovering from hernia surgery at the time of Hoda's alleged rape. The police said they would drop the charges if Morgan converted to Islam and married Hodo. Morgan refused saying, "I would rather die like many Christians did before me, than leave my religion and convert." Morgan was then beaten and gang raped by three men as a police officer looked on. Before raping him, the men tore off a gold cross that he wore around his neck, called it "devil jewelry," and stomped on it. On October 13, 1998, Islamic extremists kidnapped Morgan's wife and two of his children. They demanded that Morgan's father deed a parcel of land he owned adjacent to the Coptic parish church for the building of a Mosque. They also demanded that Miriam convert to Islam. When she refused, they gang raped her in front of her children. Miriam and the children were released after Morgan's father transferred title to Farid, a Muslim attorney who represented Morgan in the Hodo rape case and who now acted as a go-between in the land-for Mosque theft matter. A government-authorized mosque and madrassa now stand on that land. In December 1999, the wife of Miriam's cousin was kidnapped, raped, and forced to convert to Islam in a public celebration conducted under police protection. The Muslims who did this also threatened Morgan's family and wife with the same kind of forced conversion. In October 2000, a government tax assessor told Morgan that he knew about Morgan's refusal to convert to Islam and his alleged rape of Hoda. He assessed Morgan taxes of 77,000 Egyptian pounds (about $14,125) and said he would assess normal taxes if Morgan converted. On March 7, 2001, Morgan obtained relief form this assessment in court. As Morgan and his father were leaving the court, Muslims shot at them. His father was shot in the leg. On March 16, 2001, Morgan and his family entered America on a tourist visa. The next year the U.S. government charged them with overstaying their visas. Six evidentiary hearing were held by the Immigration Judge ("IJ"). Morgan and Miriam testified and an affidavit from the Egyptian court testified to Morgan's 1997 acquittal of the rape of Hoda. The IJ denied Morgan's teenage children the ability to testified on the grounds that they were not on the witness list submitted in advance of trial and that he did not want to put them in "the untenable position of coming into court to advance their parents' specious claims." Even before Morgan was cross-examined by the government, the IJ stated that Morgan had "severe credibility problems" and suggested that he withdraw his petition if the government would give him voluntary departure. At the conclusion of the hearing, the IJ found both Morgan and Miriam not believable and that they had given "false testimony" for the purpose of obtaining immigration benefits. He then gave them, but not their children, voluntary departure. The IJ did not determine whether Morgan's allegations, if assumed to be credible, made him eligible for asylum, withholding removal, or protection under the Convention Against Torture. The BIA dismissed the appeal, stating that Morgan had not shown the IJ's adverse credibility determination to be clearly erroneous and that there were major material discrepancies in his testimony. Finding the BIA's decision marred by errors of law, the USCA granted the petition and remanded. It found that substantial evidence did not support the IJ's incredibility determination because the components of that determination were not substantial and did not go to the heart of Morgan's claims of past persecution. Morgan also adequately explained the minor discrepancies between his written declaration and his testimony. Finally, the USCA said it would be appropriate to assign the case to a different IJ. Noonan (author), W. Fletcher, and Gould, Circuit Judges. N. Nekrasova, Encino, CA, for the petitioner; AUSA G. Newkirk of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) IMMIGRATION: Husyev v. Mukasey, 05-75177 (9th Cir. June 16, 2008). Husyev, a native and ethnic Russian and a citizen of Ukraine, petitioned for review of final orders of the BIA denying relief from removal. He entered the U.S. on a tourist visa, overstayed, and 364 days after the expiration of his temporary nonimmigrant status, applied for asylum. The IJ and the BIA denied his application as untimely, holding that, although his legal status as a tourist could constitute an "extraordinary circumstance" justifying his failure to file an asylum application within one year of arrival, he failed to file his asylum application within a "reasonable period" after expiration of his legal status. The USCA held that it had jurisdiction under the REAL ID Act to review this ruling, and it affirmed the BIA's decision. B. Fletcher, Canby (author), and Rawlinson, Circuit Judges. S. Tolchin of Los Angeles, CA, for the petitioners; S. Flynn of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: Chen v. Mukasey, 04-72413 (9th Cir. June 3, 2008). Chen, a native and citizen of China, sought review of a BIA decision affirming an Immigration Judge's decision that declared Chen's asylum application to be frivolous. At a hearing in April 2002, Chen admitted that the contents of her application was false, that the information she provided to an asylum officer in an April 1999 interview was false, and that the marriage and birth certificates she provided to the asylum officer were false. Thus, pursuant to 8 USC Sec. 1158(d)(6), the IJ held that Chen knowingly filed a frivolous application. As a finding of frivolousness makes an alien per-manently ineligible for benefits, the IJ denied both Chen's application for waiver of inadmissibility and her application for adjustment of status based on her marriage to a U.S. citizen. On appeal, Chen argued that because she withdrew her application prior to testifying in support of it and prior to a final ruling on it application, the IJ erred. The USCA remanded the matter to the BIA to determine whether 8 USC Sec. 1158(d)(6) requires an IJ to make a final ruling on the merits of the asylum application, or requires only that an IJ make a final determination that the application itself was frivolous; and whether the withdrawal of an application for asylum after it is filed renders a subsequent frivolousness finding by an IJ moot. Concurring, Judge Clifton agreed that the matter should be remanded to permit the agency to answer the relevant question first; however, he said he could not join the majority in that part of its opinion that itself provides an answer to that question. He did not disagree with the majority's answer or the analysis upon which it was based, but thought the USCA should wait until the agency answers the questions before providing one itself. Trott (author), Clifton (concurring), and Callahan, Circuit Judges. H. Hom of Los Angeles, CA, for the petitioner; J. McAdams of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) IMMIGRATION: Lazaro v. Mukasey, 05-70165 (9th Cir. June 4, 2008). Lazaro, a native and citizen of the Philippines, peti-tioned for review of a BIA order dismissing his appeal from an Immigration Judge's removal order, which denied his application for withholding of removal and protection under the Convention Against Torture. The USCA denied the petition to the extent it argued that Lazaro's Notice to Appear ("NTA") was defective and deprived the Immigration Court of jurisdiction to begin his removal proceedings. As the BIA's decision under review contained an erroneous description of how Lazaro's NTA was amended in the Immigration Court, however, the USCA granted the petition in part and remanded for the BIA to address in the first instance Lazaro's contention that the IJ acted beyond her authority in amending the NTA sua sponte. Canby and M.D. Smith, Circuit Judges, and Larson (author), District Judge. J. Bennett of El Cerrito, CA, for the petitioner; J. Bernstein of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) IMMIGRATION: Ahir v. Mukasey, 04-73464 (9th Cir. June 2, 2008). Ahir, a native and citizen of India, entered the U.S. in March 1992 as a non-immigrant visitor. She overstayed her visa and she applied for asylum in May 1994. She alleged that she be-longed to a "Hindu Sanatan group," which had been banned by the government of India. She said she had been arrested many times because she did not believe in the policies of the government. The application form she used did not contain an explicit warning of the consequences of filing a frivolous application. In 1999, the INS terminated her application for asylum when she failed to appear at a scheduled hearing in Miami. It then filed a Notice to Appear, charging her with removability under INA Sec. 237(a)(1)(B). When she failed to appeal, the IJ proceeded in absentia and ordered her removed to India. In December 2000, she filed an unopposed motion to reopen her removal proceedings on the ground that she had not received notice of the 1999 hearing. The IJ granted that motion and a second for change of venue to Los Angeles. She subsequently petitioned for review of a BIA decision affirming an IJ's finding that her application for asylum was frivolous. The USCA denied the petition. While the consequences of a finding of frivolousness under INA Sec. 208(d)(6) are severe, the decision to file a fraudulent application for asylum is not one that should be taken lightly. Wallace (author), Gould, and Ikuta, Circuit Judges. G. Sarin of Los Angeles, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) WARRANTLESS ENTRY: Cuevas v. De Roco, 06-15403 (9th Cir. June 27, 2008). This case arouse out of a botched attempt by law enforcement to locate a parolee in the plaintiffs' residence. The plaintiffs appealed the district court's summary judgment against them on their civil rights action under 42 USC Sec. 1983. Although they alleged a variety of constitutional violations in the district court, on appeal they asserted only their claim that a warrantless entry into their residence on Feb. 25, 2004 was unlawful under the Fourth Amendment. Viewing the facts in the light most favorable to the plaintiffs, the USCA held that Deputy Sheriff Starr violated the plaintiffs' Fourth Amendment rights by participating in the forced entry of the residence and by opening at least on drawer during a protective sweep, and he was not entitled to qualified immunity. It thus reversed the district court's summary judgment for Starr and remanded for trial concerning the constitutional violations. It affirmed as to the other defendants. Specifically, it held that deputies Horn and Cook did not violate the plaintiffs' Fourth Amendment rights, and thus affirmed as to them. As the plaintiffs did not argue that their Fourth Amendment rights were violated by Sheriff Neves, Sergeant Golmitz, or the Country of El Dorado, the USCA affirmed as to those defendants as well. B. Fletcher, Berzon, and Rawlinson, Circuit Judges. Per Curiam. M. Miller for the plaintiffs; J. Flynn and F. Gumpert for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) EXCESSIVE FORCE: Simpson v. Thomas, 07-16228 (9th Cir. June 11, 2008). Simpson sued under 42 USC Sec. 1983, alleging that Thomas, a California corrections officer, used excessive force after he failed to comply with Thomas' orders. For impeachment purposes, the district court admitted evidence of Simpson's three prior convictions more than ten years earlier pursuant to Fed. R. Evid. 609(b), explaining that because the prior convictions were utilized under California's Three Strikes Law to enhance his sentence, they "were not and do not wash out under state law." Pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), the district court also excluded any evidence that Simpson acted in self-defense after Thomas allegedly punched him, explaining that such evidence would invalidate the guilt finding in Simpson's prison disciplinary proceedings. After a jury trial resulted in a verdict in Thomas' favor, Simpson moved for a new trial, which the district court denied. The USCA reversed and remanded, holding that the use of prior convictions more than ten years old to enhance a sentence for a separate conviction pursuant to California's Three Strikes Law did not bring those prior convictions within the ten year time limit of Rule 609. It further held that Heck did not create a rule of evidence exclusion and thus may not be used to bar relevant evidence. Trott (author) and Thomas, Circuit Judges, and Hogan, District Judge. C. White of Davis, CA, for the plaintiff; DAG M. Igra of Sacramento, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.go 39) EAGLE PROTECTION ACT: USA v. Vasquez-Ramos, 06-50553 (9th Cir. June 27, 2008). The opinion filed April 10, 2008 has been withdrawn and replace by this opinion. The appellants were charged by information with the possession of feathers and talons of bald and golden eagles without a permit in violation of the Bald and Golden Eagle Protection Act ("BGEPA") and the Migratory Bird Treaty Act ("MBTA"). They moved to dismiss the information claiming that prosecuting their possession of feathers and talons violated the Religious Freedom Restoration Act ("RFRA"). The USCA noted that USA v. Antoine, 318 F.3d 919, 924 (9th Cir. 2003), under nearly identical facts, held that there was no RFRA violation. Antoine held that individuals such as the defendants here, who are not members of a federally-recognized tribe, lack a valid claim that their prosecution under BGEPA violates RFRA. Neither the removal of bald eagles from the Endangered or Threatened Species List, the Supreme Court decision in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 481 (2006), nor the government's eagle recovery methods undermine this holding. The district court correctly denied the defendants' motion to dismiss the information in reliance on the continued viability of Antoine. Goodwin, Schroeder, and Tallman, Circuit Judges. R. Harley of Santa Ana, CA, for the appellants; R. Lundman of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) SIMPLE ASSAULT: USA v. Chapman, 07-50000 (9th Cir. June 23, 2008). Chapman appealed his misdemeanor convicton un-der 18 USC Sec. 111(a) for forcibly resisting, opposing, impeding, and interfering with a federal officer engaged in official duties. Because Sec. 111(a) allows misdemeanor convictions only where the acts constitute simply assault, and Chapman's nonviolent civil disobedience did not constitute a simple assault, the USCA reversed and vacated the conviction. Thompson and Wardlaw (author), Circuit Judges, and Reed, District Judge. S. Barth of San Diego, CA, for the defendant; B. Castetter of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) POSSESSION WITH INTENT TO DISTRIBUTE: USA v. Gonzales, 07-10326 (9th Cir. June 19, 2008). Gonzales, a Border Patrol agent, appealed his jury conviction for possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 USC Secs. 841(a)(1) and (b)(1)(D), and for use of a firearm in furtherance of that trafficking offense in violation of 18 USC Sec. 924(c)(1)(A)(I). In uniform and carrying his service-issued sidearm, Gonzales was caught on videotape stealing a distribution quantity of marijuana, while purporting to assist an Arizona Department of Public Safety officer with a traffic stop. A jury found that the weight of the stolen marijuana was 10 kilograms. Gonzalez challenged the district court's denial of a judgment of acquittal on both counts and its denial of a motion to dismiss the firearm charged for lack of jurisdiction and failure to state an offense. He also challenged the district court's adoption of the jury's finding regarding the weight of the stolen marijuana. The USCA affirmed. The district court found drug quantities by a preponderance of the evidence aided by the jury's answer to the interrogatory. The court did not clearly err in accepting the jury's finding that the marijuana weighed ten kilograms. B. Fletcher (author), and Rymer, Circuit Judges, and Duffy, District Judge. T.S. Hartzell of Tucson, AZ, for the defendant; AUSA B. Giles of Tucson, AZ, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) SEARCE & SEIZURE: USA v. Harrell, 07-10238 (9th Cir. June 30, 2008). Harrell appealed in part the district court's partial denial of his motion for return of property filed pursuant to Fed. R. Crim. Proc. 41(g). Acting pursuant to a warrant, officers seized the property from Harrell's residence in 2004. A federal indictment followed, but was dismissed after the district court granted Harrell's suppression motion. Harrell then sought the return of property still in the government's possession. The USCA affirmed in part, reversed in part, and remanded. It found that the government had already returned some items to Harrell, has agreed to return other items, and could retain the remaining items. As Harrell did not seek the return of any discs containing instructions on modifying equipment to permit the illegal viewing of encrypted TV signals, such items need not be returned to him. Reinhardt, Brunetti (author), and Fisher, Circuit Judge. D. Broderick of Sacramento, CA, for the defendant; AUSA S. Flynn of Sacramento, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) SEARCH & SEAZURE: USA v. Davis, 07-30219 (9th Cir. June 30, 2008). In October 2004, law enforcement agents executed a search warrant and raided a large marijuana growing operation on private property in rural Oregon belonging to Jeffrey and Cynthia Davis. While they were executing the warrant, Richard Davis, Jeffrey's brother, drove onto the property through a locked gate and, when asked, told the agents that he knew "everything" about the marijuana growing operation. The USCA held that the observations, upon which the agents relied to obtain the warrant to search the Davis' property, were not made within the cartilage of the Davis' home. As a result, the warrant did not violate the Davis' Fourth Amendment rights. Also at issue was whether the agents violated Richard's constitutional rights by questioning him, searching his person, searching his vehicle, and subsequently searching his property. With the exception of its search of a tin container found on Richard's person, the USCA answered "no." But because any error arising from its discovery was harmless, the motions to suppress all evidence seized were properly denied. Tallman, Clifton, and N.R. Smith (author), Circuit Judges. AFPD S. Jacobsen of Portland, OR, and M. Friedman of Eugene, OR, for the defendants; AUSA D. Fong of Medford, OR, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)
45) ILLEGAL RE-ENTRY / JUVENILES: USA v. Juvenile Male, 07-50107 (9th Cir. June 12, 2008). R.P. appealed from a proceeding in which he was found to be a juvenile delinquent due to violations of 8 USC Sec. 1324(a)(1)(A)(ii) (transporting illegal aliens into the U.S.) and Sec. 1324(a)(2)(B)(ii) (bringing illegal aliens to the U.S. for "commercial advantage or private financial gain.") He argued that the juvenile information should have been dismissed because the government violated provisions of the Juvenile Justice and Delinquency Prevention Act of 1974 ("JDA") with regard to the institution of proceedings against him in federal court, his interro-gation and arraignment, and the timeliness of his trial. He also appealed from the district court's judgment on the Sec. 1324(a)(2)(B)(ii) counts, claiming that there was insufficient evidence that he obtained or aided another in obtaining "commercial advantage or private financial gain." As it held that JDA Sec. 5033 was violated, the USCA remanded to the district court to consider whether those violations were a cause of R.P.'s confession. If they were, the evidence of the confession must be suppressed, and the district court must consider whether a judgment of acquittal is required as to Counts Two, Four, and Six in light of the remaining admissible evidence in the record. Judge Berzon concurred in opinion, except for the conclusion that a remand is necessary to determine whether the violation of Sec. 5033 was a cause of R.P.'s confession. The government has never disputed R.P.'s allegation that the failure to provide the benefits of Sec. 5033 contributed to his confession. Nor has the government argued that, were the USCA to hold that Sec. 5033 was violated, a remand would be necessary to determine whether violations of Sec. 5033 contributed to R.P.'s confession. The government even refused to make such an argument when invited to do so. Berzon (dissenting in part) and Ikuta, Circuit Judges, and Singleton, District Judge. Per Curiam. L. Morgan of San Diego, CA, for the petitioner; AUSA C. Tenorio of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) WIRETAPS / SENTENCING: USA v. Rivera, 06-30474 (9th Cir. June 2, 2008). The defendants appealed their convictions for conspiracy to distribute a controlled substance in violation of 21 USC Sec. 846. They argued that the government failed to show necessity for a wiretap on two telephones and failed to properly minimize wiretaps it used in investigating the conspiracy. In addition, Espinoza appealed her convicton for intentional use of a communication facility in causing and facilitating conspiracy to distribute a controlled substance in violation of 21 USC Sec. 843(b). Rigoberto appealed his 168 month imprisonment on the ground that the dis-trict court in calculating the applicable sentencing range improperly applied a four-level enhancement for his role as an "organizer or leader." He also asserted that his sentence was unreasonable. The USCA affirmed. It found that the affidavit supporting the wiretap application contained a "full and complete statement" as required by 18 USC Sec. 2518(1)(c). While it agreed with the defendants that the government could have further utilized traditional investigative techniques before applying for the wiretap, it noted that it could not reverse simply because it might have decided not to grant the wiretap. It reviews a court's decision to grant a wiretap for an abuse of discretion and, here, it concluded that the issuing court did not abuse its discretion. The USCA further held that the DEA's monitoring procedures and its training of the monitors did not fall short of the requirements of Sec. 2518(5). B. Fletcher (author), Kleinfeld, and Gould, Circuit Judges. B. Bollinger of Spokane, WA, for the defendants; AUSA J. Kirk of Yakima, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) TAX EVASION / SENTENCING: USA v. Marks, 05-30218 (9th Cir. June 13, 2008). Marks was convicted of numerous of-fenses arising from his involvement in an organization creating, promoting, and implementing schemes to assist taxpayers evade income tax liabilities. He was sentenced to a prison term and to pay restitution. On appeal, he argued that the district court denied him a fair trial because it was biased against him and the other pro se defendants; that it erred in failing to address his jurisdictional challenges; that its restitution order was invalid because it was not entered until after the 90-day statutory period set forth in 18 USC Sec. 3664(d)(5); that its ex parte entry of the restitution order violated his right to be present at critical stages of the proceedings; that it erred in failing to sua sponte examine his competence to stand trial; and that it erred in allowing Marks to proceed to trial pro se. The USCA affirmed. The district court did not abuse its discretion in supervising the trial in a manner that it did, and its actions neither revealed actual bias nor created the appearance of bias towards Marks or toward the pro se defendants collectively. The USCA thus concluded that Marx was not denied a fair trial. Moreover, the district court did not abuse its discretion by not holding a hearing on Marks' motions contesting the court's jurisdiction. He jurisdictional challenges were frivolous. B. Fletcher (author), Beam, and Rymer, Circuit Judges. W. Broberg of Seattle, WA, for the defendant; A. Hechtkopf of Washington, DC, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 48) SENTENCING: USA v. Becerril-Lopez, 05-50979 (9th Cir. June 12, 2008). Becerril-Lopez appealed his jury conviction and sentence for being a deported alien found in the U.S. in violation of 8 USC Sec. 1326. He argued that his prior convicton under Cali-fornia Penal Code Sec. 211 was not for a "crime of violence" under the sentence enhancement provisions for illegal-re-entry crimes. The USCA held that it was. A conviction under Sc. 221 could only result from conduct that constitutes a "crime of violence" for purposes of Sentencing Guideline Sec. 2L1.2. The district court thus properly applied the 16-level enhancement. Pregerson, Hall (author), and Hawkins, Circuit Judges. S. Lacambra of San Diego, CA, for the defendant; AUSA M. Gardner of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 49) SENTENCING: USA v. Taylor, 06-35080 (9th Cir. June 26, 2008). Taylor pleaded guilty to nine counts of armed bank robbery, plus a count of bank robbery. He appealed the district court's sentencing decision, claiming it erred in finding that he was previously convicted of two crimes of violence, and consequently in adjusting his advisory sentence upward under Guideline Sec. 4B1.1. He asserted that it erred in holding that his 1986 Arizona state conviction for attempted armed robbery was a crime of violence under Sec. 4B1.2(a)(1) as it looked to Arizona intermediate appellate court decisions to determine that Arizona's "attempt" statute, Arizona Revised Statutes Sec. 13-1001, is coextensive with the federal definition of attempt. He argued that the statute establishes that his conviction was not a crime of violence because it shows that Arizona's definition of "attempt" is broader than the federal definition. The USCA affirmed. The district court properly considered Arizona intermediate appellate court decisions in determining whether Taylor's attempted armed robbery conviction was a categorical crime of violence. It also agreed that the Arizona and federal definitions of "at-tempt" were coextensive. Alarcon (author), Graber, and Rawlinson, Circuit Judges. W. Broberg of Seattle, WA, for the defendant; AUSA H. Brunner of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 50) SENTENCING: USA v. Santos, 06-10470 (9th Cir. June 6, 2008). Santos appealed his sentence of 77 months following his plea of guilty to possession of stolen mail, possession and utterance of a forged security, and conspiracy. The charges stemmed from Santos' involvement in a counterfeit checking scheme in which he and his co-conspirator used checks stolen from the mail as templates to produce counterfeit checks, which they would then recruit others to cash. Santos argued that the district court erred in using the total face value of the stolen checks, rather than the counterfeit checks to determine intended loss for the purposes of a sentencing enhance-ment under Guidelines Sec. 2B1.1(b)(1). Adopting the approach of the Eleventh Circuit in USA v. Grant, 431 F.3d 760 (11th Cir. 2005), the USCA held that, in cases such as this, a district court may reasonable infer, absent a showing to the contrary, that the defen-dant intended to cause loss up to the full face value of the stolen checks. Because the district court did not clearly err in finding that Santos intended to cash counterfeit checks up to the face amount of the stolen checks, the USCA affirmed its application of a 12-level enhancement under Sec. 2B1.1(b)(1)G). Reinhardt (author), Noonan, and Fisher, Circuit Judges. D. Broderick of Sacramento, CA, for the appellant; AUSA Ellen Endrizzi of Sacramento, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 51) DEATH PENALTY / INEFFECTIVE ASSISTANCE OF COUNSEL: Belmontes v. Ayers, 01-99018 (9th Cir. June 13, 2008). At issue here was whether Belmontes received inadequate representation that was prejudicial during the penalty phase of his trial. The USCA held that he did and reversed and remanded for issuance of a writ of habeas corpus and, if the State elects, new death penalty proceedings. Belmontes' counsel's failure to introduce adequate lay witness testimony regarding Belmontes' childhood experiences and his failure to explain to the jury the consequences of the minimal mitigating evidence he did introduce was prejudicial, especially in light of the scant aggravating evidence and the uncertainly the jury indicated about the sentence it should impose. The USCA also held that the counsel's failure to introduce expert witnesses to testify to the relationship of the type of childhood traumas suffered by Belmontes to future criminal conduct, and thus to offer important mitigating expert testimony was prejudicial and provided a separate and independent basis for reversal. The USCA thus remand to the district court with instructions to grant the habeas petition and to return the case to the San Joaquin County Superior Court to reduce Belmontes' sentence to life without parole, unless the state pursues a new sentencing proceeding within a reasonable amount of time, as determined by the district court. Dissenting, Judge O'Scannlain thought the majority had re-characterized the aggravating evidence as "minimal" and claimed that Belmontes was prejudiced by his counsel's failure to present certain available mitigating evidence to counterbalance the aggravating evidence presented by the state. In order to discern prejudice, Judge O'Scannlain added, the majority overstated the mitigating evidence, understated the properly admitted aggravating evidence, and ignored the further aggravating evidence that would have come in on rebuttal. Reinhardt (author), O'Scannlain (dissenting), and Paez, Circuit Judges. E. Multhaup of Mill Valley, CA, for the petitioner; AAG D. Gillette of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 52) DEATH PENALTY / INEFFECTIVE ASSISTANCE OF COUNSEL: Brown v. Uttecht, 04-35998 (9th Cir. June 27, 2008). After raping and murdering Holly Washa, Brown was convicted of aggravated first-degree murder in the State of Washington. With the aid of an investigator, a social worker and a mitigation specialist, Brown's three experienced attorneys put on a thorough mitigation case during the penalty phase of the trial. They 1) created a 250-page chronology detailing Brown's social and medical history, and presented most of this information at trial; 2) introduced evidence that Brown had a mental disorder; 3) called Dr. Maiuro, a clinical psychologist; and 4) called multiple character witnesses. The jury nevertheless sentenced Brown to death. After exhausting his direct appeals and state collateral review, Brown filed a habeas petition in federal court, raising a number of constitutional claims regarding his trial and sentencing. When the district court denied the petition, Brown appealed the facial validity of the Washington death penalty statue, the exclusion of jurors, and claimed ineffective assistance of counsel. The USCA expanded the certificate of Appealability to include whether the district court erred in excluding death penalty trial reports. Initially, the USCA upheld Washington's death penalty statute, Brown v. Lambert, 451 F.3d 946-48 (9th Cir. 2006), but ruled that a juror had been unconstitutionally excluded. Id at 948-54. The Supreme Court reversed on the juror exclusion issue. Uttecht v. Brown, 127 S.Ct. 2218 (2007). The USCA next affirmed the dis-trict court's rulings that the death penalty statute was facially valid and that the jury selection for Brown's trial was constitutional. At issue in the instant appeal was Brown's ineffective assistance of counsel claim, including the district court's exclusion of the death penalty trial reports. The USCA held that Brown's lawyers were not objectively deficient, as they made reasonable strategic decision by not calling a psychiatrist, not calling Sally Schick and not cross-examining Dr. Brinkley. The district court thus correctly rejected Brown's ineffective assistance of counsel claim. In addition, it did not abuse its discretion in excluding the death penalty trial reports. Dissenting, Judge Reinhardt thought that Brown's attorneys had made a highly deficient presentation on the most important aspect of his mitigation case-that Brown suffered from a serious mood disorder that was treatable with lithium. Had they performed at up to professional norms, the jury would have been aware that with the proper medication, Brown would have had greater control over his impulses and would have been less likely to commit the crime. The jurors would also have learned that with the proper treatment, Brown would not be a threat in the future. Judge Reinhardt could not say with confidence that had the jury possessed this information it would have voted unanimously to impose the death penalty. Kozinski (author), Reinhardt (dissenting), and Berzon, Circuit Judges. G. Levy of Seattle, WA, for the petitioner; AAG J. Samson of Olympia, WA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 53) DEATH PENALTY: Duncan v. Ornoski, 05-99010 (9th Cir. June 24, 2008). At issue here was whether the performance of a capital defendant's appointed lawyer was so deficient and prejudicial as to violate the defendant's Sixth Amendment right to counsel. Duncan was convicted or robbery and first-degree murder on March 3, 1986. The jury found the special circumstance allegation to be true and sentenced him to death. The California Supreme Court affirmed the judgment on direct appeal and subsequently denied Dun-can's habeas petition on the merits. Duncan then filed a federal habeas petition. The district court denied all of his claims. The USCA conclude that Duncan's lawyer's performance was deficient during the guilt phase of his trial because he failed to investigate and present evidence that the blood samples from the crime scene that did not belong to the victim also did not belong to Duncan. This evidence would have tended to establish that Duncan had an accomplice who was in the murder room on the night of the murder, shed blood, and used the first aid kit on the wall to treat his wounds. That evidence would have been sufficient to support an inference that it was the accomplice, not Duncan, who killed the victim. Nevertheless, evidence with respect to Duncan's presence at the crime scene on the night of the murder, including his shoe prints, fingerprint, and palm prints in the money room, was sufficient to show that Duncan participated in the robbery and to sustain Duncan's conviction for felony murder. The USCA thus held that Duncan's lawyer's deficient performance did not prejudice him with respect to his conviction. However, the counsel's failure to investigate and present the potentially exculpatory serological evidence did prejudice Duncan with respect to the jury's special circumstance finding, which, under California law at the time of his trial, required proof beyond a reasonable doubt that he intentionally killed the victim or, if not, that he intended that she be killed. Because the serological evidence raised doubts as to whether Duncan was the actual killer, and the record evidence did not establish beyond a reasonable doubt that Duncan intended that the victim be killed, the USCA held that counsel's ineffective performance was prejudiced and thus constituted a Sixth Amendment violation. The USCA reversed the judgment in part and remanded with instructions to grant the petition as to the jury's special circumstances finding and to vacate the sentence. Reinhardt (author), Gould, and Paez, Circuit Judges. M. Zimmerman of Mountain View, CA, for the petitioner; D. Gillette of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 54) SUPERVISED RELEASE: USA v. Cope, 06-50441 (9th Cir. June 4, 2008). The opinion on Nov. 5, 2007 has been withdrawn and replaced by the instant decision. In 2003, San Bernardino Sheriff Deputies discovered over 600 images and 20 videos of child pornography on Cope's home computers. Cope pled guilty to one count of possession of child pornography in violation of 18 USC Sec. 2252A(a)(5)(B) and entered a plea pursuant to an agreement with the government stipulating to a total offense level of 28 under the Sentencing Guidelines. The government conditionally agreed to seek the low end of the Guidelines range for incarceration, but made no agreement as to what term of supervised release it would seek. In return, Cope agreed to waive his statutory right to appeal "any sentence imposed by" the district court, provided certain requirements were met. He retained his right to appeal most of the special conditions of his supervised release. At issue on appeal was whether the district court's imposition of a lifetime of supervised release was reasonable and whether the district court was required to articulate findings before imposing certain special conditions of supervised release pertaining to medication. The USCA held that the term of supervised release imposed was reasonable, but that the district court should have articulated findings before imposing special conditions of release that would implicate a significant liberty interest of the defendant. It instructed the district court on remand to 1) provide notice to the parties of any special conditions of supervised release not contemplated by the Guidelines; 2) articulate specific, medically informed findings on the record regarding the need to Cope to undergo plethysmograph testing and take medications that implicate significant liberty interests; 3) clarify that any conditions requiring Cope to take all prescribed medications is limited to those medications reasonably related to sex offender treatment; and 4) clarify that the condition prohibiting Cope from possessing materials describing child pornography does not apply to materials necessary to, and used for, a collateral attack, or to materials prepared or used for the purposes his court-mandate sex offender treatment. Thomas (author), Fisher, and Gould, Circuit Judges. AFPD S. Kennedy of Los Angeles, CA, for the appellant; AUSA G. Cardona of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 55) SUPERVISED RELEASE: USA v. Tsui, 07-30467 (9th Cir. June 25, 2008). Tsui asserted that the U.S. Parole Commission improperly ruled that his supervised release on his South Korean conviction and sentence would continue through the expiration of his 60-month sentence. Because the Parole Commission's ruling is not inconsistent with the plain language of the relevant treaty and statue, and is consistent with its regulation, the USCA deferred to the Commission and upheld its determination of Tsui's sentence. Ferguson, Callahan (author), Circuit Judges, and Wright, District Judge. DFPD B. Fuller of Los Angeles, CA, for the petitioner; R. Chickinell of Chevy Chase, Maryland, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 56) COMMUNITY CUSTODY: Carver v. Lehman, 06-35176 (9th Cir. June 9, 2008). At issue here was whether Washington cre-ates a liberty interest in an inmate's early release into community custody where the inmate has earned early release time-a liberty interest protected under the Due Process Clause of the Fourteenth Amendment. The USCA held that it does and that Carver was denied due process by the State's refusal to approve his release plan without reviewing it on the merits. However, the USCA added that Carver's right was not sufficiently established at the time of the facts giving rise to his case such as to meet the standard of Saucier v. Katz, 533 U.S. 194, 200-02 (2001). It thus affirmed the grant of qualified immunity to Lehman, Secretary of Washington's Dept. of Corrections at the time Carver's release plan was denied. Judge Smith concurred in the judgment, but did not believe that Washington created a Fourteenth Amendment liberty interest in early release into community custody. The majority, he thought, had erroneously conjured a statutory liberty interest, protected by the Due Process Clause, out of Wash. Rev. Code Sec. 9.94A.728(2) only by confus-ing "may" and "shall" and by reading "if" to mean "only if." Ferguson, Reinhardt (author), and M.D. Smith (concurring), Circuit Judges. T. Baker of Mountain View, CA, for the plaintiff; R. McKenna of Olympia, WA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 57) HABEAS CORPUS: Delgadillo v. Woodford, 07-55089 (9th Cir. June 3, 2008). At issue here was whether for purposes of re-view under the Antiterrorism and Effective Death Penalty Act, a state habeas court's decision to apply Crawford v. Washington, 541 U.S. 36 (2004), retroactively to uphold a defendant's sentence is an unreasonable application of Supreme Court precedent. Although Whorton v. Bockting, 127 S.Ct. 1173, 1177 (2007), held that Crawford is not retroactively applicable in federal habeas proceedings, Danforth v. Minnesota, 128 S.Ct.1029, 1040-41 (2008), clarified that the rule of non-retroactivity for federal habeas proceedings is not binding on state habeas courts. In light of Danforth, the USCA held that the state habeas court's decision to apply Crawford was reasonable. It also held that it must defer to the state habeas court's application of Crawford to the facts of this case. It thus affirmed the district court's denial of Delgadillo's petition for a writ of habeas corpus. Thompson, Wardlaw, and Ikuta (author), Circuit Judges. V. Fu of San Francisco, CA, for the petitioner; DAG M. Beale of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 58) HABEAS CORPUS: Butler v. Curry, 07-56204 (9th Cir. June 9, 2008). Butler alleged in his habeas petition that his Sixth Amendment rights were violated when the California state trial court imposed an "upper term" sentence based on two aggravating fac-tors not proved to a jury beyond a reasonable doubt. The district court, relying on Cunningham v. California, 127 S.Ct. 856 (2007), agreed and granted the writ. The State argued that Cunningham, which struck down California's determinate sentencing law, announced a "new rule" that could not be applied on collateral review. In the alternative, the State argued that the requirements for habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 were not met, and even if they had been, there was no constitutional violation. The USCA held that the result in Cunningham was clearly dictated by the Supreme Court's Sixth Amendment case law-especially by Blakely v. Washington, 542 U.S. 296 (2004), decided before Butler's conviction became final. The state court decision in Butler's case was contrary to this clearly established law. Moreover, Butler's constitutional rights were violated when the statutory maximum for his crime was increased on the basis of facts found by a judge by a preponderance of the evidence, rather than admitted or found by a jury beyond a reasonable doubt. However, the USCA could not determine whether this violation was harmless in the absence of further factfinding about what evidence was presented to the state trial court judge in support of the allegation that Butler was on probation at the time of his crime. The USCA thus remanded to the district court for an evidentiary hearing. Hall, Graber, and Berzon (author), Circuit Judges. DFPD D. Chen of Los Angeles, CA, for the petitioner; DAG W. Shin of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 59) PRISONERS' RIGHTS: In
re Arizona, 07-70300 (9th Cir. June 9, 2008). In May 2004, Tuzon filed a complaint
seeking relief under 42 USC Sec. 1983. In March 2005, the district court granted
Tuzon in forma pauperis status and directed that his complaint be served. In January
2006, Tuzon filed an amended complaint alleging damages in connection with an
attack on him by other inmates on September 17, 2003; confiscation of his legal
documents by prison library staff in December 2003; confiscation of his money
from July 2003 to the date of his complaint; and inadequate medical treatment.
The district court dismissed certain claims and defendants without prejudice,
and directed the remaining defendants to file answers to the remaining claims.
It concluded that Tuzon stated claims for deliberate indifference to his safety
and for denial of access to the courts, but it dismissed claims that the defendants
had confiscated his personal property and had been deliberately indifferent to
his medical needs. After the defendants served three separate answers, the district
court issued the scheduling order that is the subject of the current petition.
That order required that the defendants review the subject matter of the complaint
so as to ascertain the facts and circumstances underlying the complaint and consider
whether any action could and should be taken by the institution or appropriate
officials to resolve the subject matter of the complaint. The defendants were
further ordered to file a written report with the court, which included a thorough
explanation of the actions described in the complaint; the results, if any, of
the review undertaken by officials responsible for the institutions; affidavits
to support any facts alleged in the report; and copies of the documents pertaining
to the administration record. The defendants' response was due on January 12,
2007. On January 10, 2007, they moved to dismiss the complaint, alleging that
Tuzon failed to exhaust his claims because he did not complete available administrative
grievance procedures with respect to any count alleged in the complaint. On July
27, 2007, the district court granted in part and denied in part the defendants'
motion to dismiss, and further stayed enforcement of the order pending disposition
of the instant petition. At issue on appeal was whether a district court has the
authority to require a defendant to prepare a report under Martinez v. Aaron,
570 F.2d 317 (10th Cir. 1978) (per curiam). The USCA held that, as a permissible
option within its discretion, a district court can issue a Martinez order reasonably
tailored to the pretrial needs of the district court to access the case. While
it may be possible in some instances for a Martinez order constitute an abuse
of discretion, that was not the case here where the scope of the investigation
and report had been limited by two screening orders and a subsequent dismissal
order. Tuzon's claims of deliberate indifference and retaliation also were of
a type not limited to Tuzon and thus could affect other inmates. In light of the
results of the investigation of Tuzon's grievance file, the district court could
also conclude that it was appropriate to create a comprehensive, substitute record.
Kozinski, Gould, and Callahan, Circuit Judges. P. Carter of Phoenix, AZ, for the
petitioners; Hon. F. Zapata of Phoenix, AZ, for the respondent.(Download the full text of this decision
at www.ce9.uscourts.gov/) |
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