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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) LIMITED PARTNERSHIPS: Perretta v. Prometheus Development, 06-15526 (9th Cir. March 27, 2008). This action for breach of fiduciary duty required the USCA to decide what vote of the limited partners of a California limited partnership is necessary to ratify a self-interested transaction proposed by the partnership's general partner. The USCA held that only the partnership agreement can vary the unanimous ratification requirement of California law, and that it would be "manifestly unreasonable" for a partnership agree-ment to include votes cast by an interested general partner or its affiliates in a ratification vote. The USCA thus reversed the district court's decision. Thompson and M.D. Smith (author), Circuit Judges, and Hayes, District Judge. B. Adelstein of Los Angeles, CA, for the appellants; R. Tricker of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) ANTITRUST: Kendall v. Visa U.S.A., Inc., 05-16549 (9th Cir. March 7, 2008). At issue here were the pleading requirements to state a claim for antitrust violations under Sec. 1 of the Sherman Act after Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-66 (May 21, 2007). The appellants are businesses who offer their customers the convenience of paying with a credit card. The appellees are MasterCard, Visa, Bank of America, Wells Fargo Bank, and U.S. Bank. The appellants sued under Sec. 1 of the Sherman Act and Sec. 16 of the Clayton Act, alleging that the appellees conspired to set the fees charged to merchants for payment of credit card sales. The district court dismissed the appellants' First Amended Complaint without leave to amend for failure to state a claim upon which relief could be granted. The USCA affirmed. It held that the appellants' First Amended Complaint failed to plead evidentiary facts sufficient to establish a conspiracy. The appellants had already been granted leave to amend once and were given an opportunity to conduct discovery to find the facts needed to plead their causes of action. Still, their First Amended Complaint contained all the defects of their original complaint. They failed to state what additional facts they would plead if given leave to amend, or what additional discovery they would conduct to discover such facts. The USCA thus agreed that amendment would be futile. Hawkins, Tashima, and Bea (author), Circuit Judges. R. Archer of Occidental, CA, for the appellants; M. Fiala of San Francisco, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 3) RICO: Canyon County v. Syngenta Seeds, Inc., 06-35112 (9th Cir. March 21, 2008). This case involves an Idaho county's attempt to recover damages under the Racketeer Influenced and Corrupt Organizations Act ("RICO") for additional monies it claims to have expended on public health care and law enforcement services for undocumented immigrants. Canyon County commenced this action against four companies and one individual under RICO's civil enforcement provision, 18 USC Sec. 1964(c), alleging that the defendants engaged in an illegal scheme of hiring and/or harboring undocumented immigrant workers within the County, and that their actions forced the County to pay "millions of dollars for health care services and criminal justice services for the illegal immigrants." The district court concluded that the County did not have statutory standing under Sec. 1964(c) because it did not meet the threshold requirement that a civil plaintiff be "injured in his business or property" by reason of the alleged RICO violation. The district court thus dismissed the County's complaint. The USCA affirmed. It agreed that the County failed to allege that it was injured in its business or property, adding: "We find it particularly inappropriate to label a governmental entity 'injured in its property' when it spends money on the provision of additional public services….given that those services are based on legislative mandates and are intended to further the public interest." The USCA also held that, with respect to almost all of the defendants alleged RICO violations, the County could not show that its claimed injuries were proximately caused by the defendants' conduct. For both of these reasons, the County lacked statutory standing to pursue its federal RICO claims. Canby, Tashima (author), and Callahan, Circuit Judges. H. Foster of Chicago, IL, for the appellant; G. Wood of Minneapolis, Minn., and R. Leasia of San Jose, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) IDENTITY THEFT LAW: Satey v. JPMorgan Chase & Company, 06-56370 (9th Cir. March 31, 2008). JPMorgan Chase & Company ("Chase") issued a credit card to Satey in March 2002. Satey used the card in April 2002 for purchases totaling a few hun-dred dollars. But, on May 19, 2002, Chase received a charged in the amount of $8,666 on Satey's card from Jackpot 98 Cent Store in Glendale, California. Chase approved the charge and it thereafter appeared on Satey's credit card statement for the billing period end-ing on May 29, 2002. Satey contacted Chase on June 4, 2002 to dispute the charge as fraudulent and to report that his card was missing. Based on Satey's report of credit card fraud, Chase closed the account and transferred the balance to a new account. A Chase representative then contacted Jackpot 98 Cent Store. The store told the representative that Satey purchased $8,000 worth of goods, before taxes, and provided at the time of purchase a California driver's license containing the license number and date of birth. The store also had obtained a signed credit card slip and an imprint of the card. Upon reviewing these items, the representative determined that Satey's actual date of birth and driver's license number matched the information provided by the store. Chase decided that the charge was legitimate and continued to seek payment from Satey for the amount due including interest and other charges. Satey refused to make payments to Chase on the disputed charge. On March 28, 2003, Satey received notice that Trilogy Capital Management, LLC had purchased Satey's account from Chase. Trilogy then requested that Satey tender payment in the amount of $10,106. The notice stated that the collection letter was "For: Chase Bank" but that Trilogy had purchase the debt and was responsible for collection. On December 6, 2004, lawyers for Great Seneca Financial Corporation notified Satey that Great Seneca had now purchased Satey's delinquent account. Satey filed an action in federal district court against Chase, Great Seneca, and Experian, a credit bureau, for violation of the Fair Credit Reporting Act ("FCRA"), California's Identity Theft Law ("ITL"), the federal Fair Debt Collection Practices Act ("FDCPA"), and California's Fair Debt Collection Practices Act. The parties voluntarily dismissed some claims and settled others. The district court granted Chase's motion, ruling that the FDCPA preempted Satey's claims under the ITL. The USCA affirmed. Because the California Legislature explicitly used the present tense when crafting the definition of "claimant" under the ITL, the USCA held that it did not apply to a "claimant" who no longer has a claim at the time the lawsuit is filed. For that reason, while Chase may have previously come within the scope of the ITL, once Chase sold the debt it was no longer a "claimant" under the ITL. Accordingly, Satey's claims under the ITL were not viable against Chase when he filed suit on October 31, 2005. Satey instead dismissed his claim against Great Seneca. The USCA affirmed the district court and held that summary judgment was appropriately entered in light of the fact that Chase was not a "claimant" under the ITL. The USCA declined to reach the propriety of the district court's ruling that the ITL was preempted by the FCRA. In light of the USCA's decision affirming summary judgment, the USCA held that Chase's request for further proceedings on its statement of material facts not in controversy was moot. B. Fletcher and N.R. Smith (author), Circuit Judges, and King, District Judge. R. Brennan of La Crescenta, CA, for the plaintiff-appellant; G. Weickhardt of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) TAX LIENS: First American Title Insurance Company v. USA, 05-35520 (9th Cir. March 27, 2008). This case concerned a third party challenge to a tax assessment and lien on an earlier owner' property. In 1991, Penny Jensen's mother, Roberta Smith, died, and Jensen was named the personal representative of her mother's estate. The estate consisted of three houses and the stock of a cor-poration that owned a hamburger drive-in (Frisko Freeze, Inc.). Its federal estate tax return for 1992 valued the estate at $1,302,129, calculated taxes at $144,323, and elected to pay that tax on an installment plan. Jensen then conveyed the three houses to herself and her husband. She then sold them to three different purchasers, each a bona fide purchaser for value. Each purchaser obtained title insurance from one of the three plaintiffs in this case. Despite their title searches, the title insurance companies failed to discover that the houses were encumbered by tax liens. Subsequently, the IRS audited the estate and concluded that the drive-in was worth more than the $762,275 valuation the estate put on it. Eventually, in 1994 (after the three houses had been sold) the IRS and Jensen, compromised on a value of $911,987, increasing the estate taxes by $49,416. The problem that gave rise to this case was that, not long after agreeing to the higher assessment, Jensen quit paying the estate taxes. She and Frisko Freeze then filed for bankruptcy. The estate left the IRS short by $189,372. Since the supposedly undervalued Frisko Freeze drive-in had failed and Jensen was not paying the tax debt, the IRS went after the houses. The homeowners made claims on their title insurers, and the title insurers paid off the tax liens under protest and brought this case, suing under 28 USC Sec. 1346 to recover "federal estate tax…erroneously or illegally assessed and collected." The district court ruled that the court lacked jurisdiction to decide the claims under Sec. 1346, and denied leave to amend to join Jensen as a plaintiff because amendment would make no difference. The USCA affirmed. Had Jensen paid the estate taxes when due, or paid the installments and not gone bankrupt, she could not have challenged the assessment, because she had agreed to it. There was no reason why her failure to pay the estate's taxes should reopen the valuation of Frisko Freeze. The homeowners and title insurance companies had their own distinct problem: the real estate chain of title included an estate that had not paid its taxes. A third party that pays a tax to eliminate a tax lien on the third party's property is, under Sec. 7426(c), bound by the assessment on the property. Schroeder, Kleinfeld (author), and Bea, Circuit Judges. R. Henry of Seattle, WA, for the appellants; J. Dudeck of Washing-ton, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) INSURANCE: Progressive Casualty Insurance Company v. Owen, 06-35677 (9th Cir. March 26, 2008). Progressive Casualty Insurance Company appealed the district court's summary judgment in favor of Arlene Owen ("Arlene"). Progressive maintained that the district court improperly rewrote an insurance policy issued to Owen Trucking to include Arlene as a named insured. Progressive also argued that the district court erred in denying Progressive's summary judgment motion because Arlene was not occupying the insured auto at the time of her accident. The district court held that it was "impossible to discern" who was covered under the underinsured motorist and medical benefits provisions. It further held that this ambiguity created illusory coverage in violation of public policy because a corporation cannot suffer bodily injuries and incur medical bills. It concluded that it had "no other choice" but to rewrite the policy to include Arlene as a named insured. Because it held that Arlene was a named insured, it did not reach the question whether Arlene was occupying a covered auto under Owen Trucking's policy. The USCA reversed. The district court erred in reforming the policy to provide coverage to all owners, officers, and directors of the corporate named insured, regardless of whether they were occupying an insured auto. In order to obtain coverage under the substitute auto provision, Arlene had to produce evidence either that she intended to use a specific vehicle covered by Owen Trucking's policy but could not because of its unavailability, or that she would have used one of several or even all of the vehicles covered under the policy, but could not because all of the vehicles she would have used were unavailable. There was no evidence in the record, however, regarding which covered vehicle or vehicles Arlene would have used but for its unavailability. Progressive was thus entitled to summary judgment because Arlene had presented no evidence that she was using a truck owned by her friend Craig Cornell instead of an Owen Trucking vehicle that had been withdraw from use because of breakdown, repair, servicing, loss, or destruction. McKeown and Clifton, Circuit Judges, and Schwarzer, (author), District Judge. R. Phillips of Missoula, MT, for the appellant; R. McCarthy of Butte, MT, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 7) INSURANCE: Manzarek v. St. Paul Fire & Marine Insurance Company, 06-55936 (9th Cir. March 25, 2008). The USCA held that the district court erred in dismissing the amended complaint file by Raymond Manzarek and Doors Touring, Inc. ("DTI") because the underlying complaints raised at least the potential for coverage under the operative insurance policies. The district court also abused its discretion by not giving Manzarek and DTI an opportunity to amend their complaint. Taking the allegations in the complaint as true, Manzarek and DTI stated a viable claim for breach of contract against St. Paul Fire & Marine Insurance Company. The USCA thus reversed and remanded for further proceedings. Goodwin, B. Fletcher, and N.R. Smith (author), Circuit Judges. Kirk Pasich of Los Angeles, CA, for the plaintiffs-appellants; A. McCloskey of San Diego, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) INSURANCE: James River Insurance Company v. Schenk, P.C., 06-15622 (9th Cir. March 18, 2008). At issue on this appeal was whether the district court erred in granting summary judgment to a professional liability insurer on a claim seeking a declaration of no coverage, and on counterclaims for breach of contract and bad faith under Arizona law. The insurer argued that it could permissibly refuse to provide for its insured's defense against a legal malpractice lawsuit because the insured failed to mention the possibility of the lawsuit in the insurance application. The district court agreed and held that Arizona Revised Statutes Sec. 20-1109 permits a denial of coverage because the insured's omission constitutes legal fraud. The court rejected the counterclaims because the insurer provided for the malpractice defense. The USCA reversed and remanded for trial. It held that the district court erred in granting summary judgment on James River's claim under Sec. 20-1109. Actual fraud is not a viable basis for denying coverage because the parties agree that there is not evidence of intent to deceive. Summary judgment also cannot be entered on the alternative basis of legal fraud because reasonable persons could conclude that Question 10(c) of the application elicited a statement of opinion. Canby, Thompson, and M.D. Smith (author), Circuit Judges. S. Plitt of Phoenix, AZ, for the defendant-appellant; M. Gibbs of Phoenix, AZ, for the plain-tiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) INSURANCE: New Hampshire Insurance Company v. C'Est Moi, Inc., 06-55031 (9th Cir. March 20, 2008). O'Rourke pur-chased C'Est Moi in 1986, and became its president and sole shareholder. As part of this purchase, he acquired a yacht owned by C'Est Moi, and subsequently insured it through Washington International Insurance Company. A fire destroyed the yacht in 1992, and Washington International paid O'Rourke $450,000 for the loss. O'Rourke reacquired the yacht from Washington International at sal-vage, paid off a loan and began restoring it. Washington International stopped insuring the yacht after the fire, and it remained unin-sured until 2001, when C'Est Moi obtained insurance from New Hampshire Insurance Company (NHIC). In 2004, the yacht sank in calm waters while docked at Newport Beach, California. O'Rourke, on behalf of C'Est Moi, filed an insurance claim. NHIC investigated and determined that the likely cause was a malfunctioning bilge pump. It then sued C'Est Moi to rescind the insurance policy, and the district court granted summary judgment in favor of NHIC, holding that uberrimae fidei applied and that C'Est Moi misrepresented material facts on its insurance application. Uberrimae fidei "imposes a duty of utmost good faith," so "an applicant for a marine insurance policy is bound to reveal every fact within his knowledge that is material to the risk." C'Est Moi maintained that paragraph 10 of the insurance policy's General Conditions and Exclusions section superseded its uberrimae fide obligation by substituting a different, and lower, standard. It read paragraph 10 as allowing NHIC to rescind the insurance policy only for a material misrepresentation that is intentional. The USCA affirmed. It held that the district court correctly found no factual dispute as to whether C'Est Moi made material misrepresentations in the insurance policy application. The NHIC's insurance application asked for the yacht's purchase price and present insurer, and C'Est Moi misrepresented both facts, thereby making material misrepresentations as a matter of law. Kozinski (author) and Rawlinson, Circuit Judges, and Cedarbaum, District Judge. R. Dyer of San Diego, CA, for the defendant-appellant; N. Lerner of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 10) ENVIRONMENTAL LAW: Friends of Yosemite Valley v. Kempthorne, 07-15124 (9th Cir. March 27, 2008). The appellants maintained that the district court erred in finding that 1) the Merced Wild and Scenic River-Revised Comprehensive Management Plan and Supplemental Environmental Impact Statement (the "2005 Plan") failed sufficiently to address user capacities as required by Sec. 1274(d) of the Wild and Scenic Rivers Act ("WSRA"); 2) the 2005 Plan is deficient because it is not a wholly self-contained plan; and (3) the Supplemental Environmental Impact Statement ("SEIS") prepared by the 2005 Plan violates the National Environmental Policy Act ("NEPA"). The USCA affirmed the district court. It held that the 2005 Plan does not describe an actual level of visitor use that will not adversely impact the Merced's Outstanding Remarkable Values ("ORVs") required by Friends of Yosemite Valley v. Norton, 348 F.3d 789 (9th Cir. 2003) (Yosemite I) and WSRA, because the Visitor Experience and Resource Protection ("VERP") framework is reactionary and requires a response only after degradation has already occurred. Moreover, the interim limits are based on current capacity limits and National Park Service has not shown that such limits protect and enhance the Merced's ORVs. And, as made clear in Friends of Yosemite Valley v. Norton, 366 F.3d 731 (9th Cir. 2004) (Yosemite II), the USCA again conclude that the WSRA requires that the Comprehensive Management Plan be in the form of a single, comprehensive document, which addresses all the required elements, including both the "kinds" and "amounts" of use, and thus the 2005 Plan is deficient because it addresses only the two components struck down in Yosemite I and was not a single, self-contained plan. Finally, the USCA concluded that the SEIS violates NEPA because the "no action" alternative assumed the existence of the very plan being proposed and the three action alternatives-which are each primarily based on the VERP framework-were unreasonably narrow; in addition, for the first five years, the interim limits proposed by the three alternatives were essentially identical. Goodwin, Tashima, and Wardlaw (author), Circuit Judges. AAG R. Tenpas of Washington, DC, for the defendants-appellants; J. Olson of Oakland, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) EMPLOYMENT LAW / DRUG TESTING: Lanier v. City of Woodburn, 06-35262 (9th Cir. March 13, 2008). At issue here was the constitutionality, facially or as applied to Lanier, of the City of Woodburn's policy requiring candidates of choice for city positions to pass a pre-employment drug test as a condition of the job offer is constitutional. Lanier was the preferred applicant for a part-time position as a page at the Woodburn Library. The district court held that the test was not constitutional. The USCA affirmed in part and reversed, vacated, and remanded in part. It agreed that the policy was unconstitutional as applied because the City failed to show a special need to screen a prospective page for drugs. But, Lanier did not show that the policy could never be constitutionally applied to any City position. The USCA thus reversed the district court's order to the extent it implies otherwise and remanded for the declaratory judgment to be clarified so as to be consistent with the USCA's holding. Rymer (author) and Paez, Circuit Judges, and Carney, District Judge. M. Speirs of Portland, OR, for the appellant; S. Wilker of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)
13) LABOR LAW: International Brotherhood of Teamsters v. North American Airlines, 05-17436 (9th Cir. March 7, 2008). At issue was whether Sec. 2, First of the Railway Labor Act ("RLA"), read in conjunction with other provisions of the RLA, imposes a status quo requirement prohibiting carriers from unilaterally altering terms or conditions of employment once negotiations toward an initial collective bargaining agreement ("CBA") have begun, but before the agreement has been completed. Following Williams v. Jacksonville Terminal Co., 315 US 386, 402-03 (1942), the USCA held that it does not. Because it held that Sec. 2 First does not prohibit carriers from altering working conditions in the period before a CBA has been completed, the USCA also rejected the argument of the International Brotherhood of Teamsters ("IBT") that it is entitled to injunctive relief requiring North American to comply with a status quo requirement imposed by Sec. 2 First. The district court found that "the parties continue to negotiate, with no evidence that either side is not participating in good faith with the desire to reach agreement and no indication that the mediation will not ultimately be successful." These findings were not clearly erroneous. Because the IBT had not established that an injunction "is the only practical, effective means of enforcing the duty to exert every reasonable effort to make and maintain agreements," IBT did not meet the standard for injunctive relief. The district court thus acted well within its discretion in denying injunctive relief in this case. Thomas, Tallman, and Ikuta (author), Circuit Judges. R. Wilder of Washington, DC, for the appellant; N. Quandt of Atlanta, GA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 14) SEXUAL DISCRIMINATON: Davis v. Team Electric, Co., 05-35877 (9th Cir. March 28, 2008). In this sexual discrimination action under Title VII of the Civil Rights Act of 1964, electrician Christie Davis maintained that her former employer, Team Electric Company, treated her worse than the male employees at a work site that had no other women until she contacted the state civil rights agency; retaliated against her for filing a discrimination complaint with the agency; and failed to prevent her supervisors from creating and maintaining a hostile work environment. The district court granted Team Electric's motion for summary judgment on all claims. The USCA reversed. Davis had raised genuine issues of material fact on her disparate treatment, retaliation, and hostile work environment claims. Goodwin, Reinhardt (author), and M.D. Smith, Circuit Judges. P. Eaglin of Fairbanks, AK, for the appellant; P. Chamberlain of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) PENSION TRUST FUNDS: Trustees of the Southern California IBEW-NECA Pension Trust Fund v. Flores, 06-55812 (9th Cir. March 27, 2008). The Trustees of the Southern California IBEW-NECA Pension Trust Fund appealed the district court's judgment against them in their action to collect delinquent trust fund contributions from employer Herman Flores. The Trustees maintained that the district court erred by holding that the term "covered employees" in the collective bargaining agreements ("CBAs") is ambiguous and by considering extrinsic evidence of the parties' oral representations. The USCA reversed and remanded for further proceedings. It held that the CBAs require Flores to make benefit contributions for all electrical workers engaged in project work. Goodwin (author), O'Scannlain, and W. Fletcher, Circuit Judges. J.D. Sackman of Los Angeles, CA, for the plaintiff-appellant; M. Hendrickson of Tustin, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) MARITIME LAW: Trans-Tec Asia v. M/V Harmony Container,
06-55355 (9th Cir. March 11, 2008). At issue here was whether a
foreign supplier, who supplied fuel to a foreign-flagged vessel
in a foreign port under an agreement providing that U.S. law applied
to the transaction, may obtain a maritime lien under the Federal
Maritime Lien Act ("FMLA"), on the vessel while it is
docked in an U.S. port. The district court granted summary judgment
in favor of the vessel and its owner and against the fuel provider,
holding that the FMLA did not permit a foreign necessaries provider
to obtain a maritime lien under the circumstances presented by this
case. The USCA agreed with the district court's conclusion that
Malaysian law governed the issue of contract formation, and that
under Malaysian law, the U.S. choice of law provision was incorporated
as a term of the bunker sale contract. However, the USCA reversed
the district court's holding that no maritime lien arose under the
FMLA, and remanded for proceedings in accordance with its decision.
FMLA's plain language demands that a maritime lien arose in favor
of Trans-Tec because it provided necessaries to the M/V Harmony
on the order of the Harmony's charterer. Charterers and their agents
are presumed to have authority to bind the vessel by the ordering
of necessaries. Kozinski, Tashima, and McKeown (author),
Circuit Judges. J.S. Simms of Baltimore, Maryland, for the appellant;
G. Gorman of San Diego, CA, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
18) SOCIAL SECURITY: Shafer v. Astrue 05-16507 (9th Cir. March 10, 2008). Shafer appealed the district court's order denying her motion for attorneys' fees under the Equal Access to Justice Act, in this social security disability action. The USCA held that the district court abused its discretion in denying Shafer's motion because the government's defense of the procedural errors in the admin-istrative law judge's opinion was not substantially justified. The USCA thus reversed the district court's order and remanded for a de-termination of the amount of attorneys' fees. Pregerson, Siler, and Bea (author), Circuit Judges. M. Caldwell of Phoenix, AZ, for the appellant; AAG P. Keisler of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) MEDICARE: County of Los Angeles v. Leavitt, 06-55222 (9th Cir. March 31, 2008). This appeal, which involved Medicare reimbursement of "indirect education expenses" ("IME") incurred by a public teaching hospital with an approved intern and residence program, presented two questions: first, whether it was arbitrary and capricious for the Secretary of Health and Human Services to in-terpret the Medicare statute and regulations providing for IME payment on the basis of "available beds" as presumptively meaning physical beds, when the hospital's fiscal intermediary had previously accepted a calculation based on budgeted beds; and second, whether the Secretary's findings were supported by substantial evidence. Upholding the district court's decision, the USCA concluded that the Secretary had discretion to presume that "available beds" means actual beds, rather than budgeted beds. The USCA noted that it owed deference to this interpretation. Applying it, the USCA ruled that the Provider Reimbursement Review Board ("PRRB") could find, based on the record, that Los Angeles County / University of Southern California Medical Center ("County/USC") failed to carry is burden of proving that beds in excess of the budgeted bed figure should be excluded from the physical count. Substantial evidence supported the PRRB's decision because the actual number of beds at County/USC that were physically ready to be occupied was not in dispute, and there was evidence that all beds at the hospital-whether budgeted or not-were maintained and could be used at any time for patient care. The Secretary's determination thus was not arbitrary and capricious. Dissenting, Judge Reinhardt said he agreed with the majority that the Secretary did not act arbitrarily and capriciously when he switched from using the number of budgeted beds to using the number of physical beds for calculating the Medicare IME adjustment. He also agreed that the Secretary's interpretation of "available beds" as presumptively meaning physical beds is entitle to deference from the USCA and is reasonable as a general matter. However, because he thought that County/USC met its burden of rebutting the presumption and showing that certain beds should have been excluded from Med Center's available bed count in the fiscal year ending June 30, 1994-namely the 123 beds that made up the difference between the number of physical beds and the number of budgeted beds-he would hold that the PRRB's decision was arbi-trary and capricious. B. Fletcher, Reinhardt (dissenting), and Rymer (author), Circuit Judges. T. Smason of Los Angeles, CA, for the plaintiff-appellant; J. Koppel of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) CIVIL FORFEITURE / SHARK FINNING: USA v. Approximately 64,695 Pounds of Shark Fins, 05-56274 (9th Cir. March 17, 2008). This case arose from a civil complaint brought by the U.S. government for the forfeiture of 64,695 pounds of shark fins found on board the King Diamond II ("KD II"), a United States vessel. Claimant Tai Loong Hong Marine Products, Ltd. ("TLH") owned the fins. TLH, a Hong Kong company, had chartered the KD II and ordered it to meet foreign fishing vessels on the high seas, purchase shark fins from those vessels, transport the fins to Guatemala, and deliver them to TLH. The government seized the fins pur-suant to the Shark Finning Prohibition Act, which makes it unlawful for any person aboard a U.S. fishing vessel to possess shark fins obtained through prohibited "shark finning." TLH does not contest that, on its behalf, the KD II purchased the fins at sea from foreign vessels that engaged in shark finning. Instead, it argues that the KD II is not a fishing vessel under 16 USC Sec. 1802(18)(B), and for that reason the forfeiture of the fins it possessed would violate due process. The USCA agree that neither the statute nor the regulations provided fair notice to TLH that it would be considered a fishing vessel under Sec. 1802(18)(B). The USCA thus reversed and re-manded for further proceedings. Reinhardt (author), Fisher, and Clifton, Circuit Judges. B. Ho of Honolulu, HI, for the defendant-appellant; R. Haines of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) CIVIL FORFEITURE: USA v. Bruno, 06-15225 (9th Cir. March 13, 2008). The claimants appealed the magistrate's order granting summary judgment in favor of the government in its civil forfeiture action against $493,850 in U.S. currency and one 1993 Ford F-350 truck. The USCA affirmed. In granting summary judgment, the magistrate properly considered information from the Miami inves-tigations and the nature of the res as currency. To the extent the magistrate relied upon the amount of currency, such reliance was error but harmless error. The admissible evidence was sufficient to establish probable cause and proof, by a preponderance of the evidence, that the currency is subject to forfeiture without regard to the amount of currency. The claimants presented no evidence of innocent ownership. The magistrate thus properly granted summary judgment in favor of the government. Farris, Beezer (author), and Thomas, Circuit Judges. R. Jones of Tucson, AZ for the claimants; AUSA J. Ruffennach of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) ATTORNEYS' FEES: Brown & Bain, P.A. v. O'Quinn, 06-15931 (9th Cir. March 6, 2008). The plaintiff, Brown & Bain, a Phoenix law firm, sued John M. O'Quinn and his Houston Texas law firm (collectively "O'Quinn") for fees owed it upon the termination of a law suit. The district court entered judgment for the plaintiff. O'Quinn appealed. The USCA affirmed. No evidence was presented by O'Quinn that any burden was put on any client by Brown & Bain's withdrawal from the underlying case. It gave ample notice of its desire to withdraw and designated a lawyer, in addition to Allen & Price, who could be local counsel for O'Quinn, which had it own amply funded office in Phoenix. It was part of O'Quinn's defense to show that the withdrawal of Brown & Bain burdened the clients. But O'Quinn failed to do so. Noonan (author), Thomas, and Bybee, Circuit Judges. N. McCabe of Houston, TX, for the appellants; L. Kasten of Phoenix, AZ, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 23) ATTORNEYS' FEES: Lussier v. Dollar Tree Stores,
06-35148 (9th Cir. March 7, 2008). Lussier and Hawks, putative class
representatives in litigation against Dollar Tree Stores appealed
the district court's denial of their request for attorneys' fees
following their successful motion to remand the underling action
after it had been removed by Dollar Tree pursuant to the recently
enacted Class Action Fairness Act of 2005, 28 USC Sec. 1332(d)(2)
(2005). The USCA concluded that the district court did not abuse
its discretion in finding that, given the lack of clarity in the
law at the time, Dollar Tree's removal arguments were not unreasonable.
The USCA thus affirmed. Rymer (author) and Paez, Circuit
Judges, and Carney, District Judge. J.D. Pinney of Vancouver, WA,
for the plaintiffs-appellants; K. Kono of Portland, OR, for the
defendant-appellee.(Download
the full text of this decision at www.ce9.uscourts.gov/)
25) FIRST AMENDMENT / ANTI-SLAPP LAWS: Manufactured Home Communities v. County of San Diego, 05-56401 (9th Cir. March 6, 2008). Manufactured Home Communities ("MHC"), a real estate investment trust headquartered in Chicago, owns and operates mobile home parks throughout the United States. At issue here was whether hostile remarks by a county supervisor, Ms. Jacob, directed at MHC were actionable as a matter of law. After MHC initiated phased rent increases in Jacob's district, Jacob issued a news advisory that MHC was preying upon elderly tenants with fixed incomes by raising their rents 25%. HMC sued. California en-acted its anti-SLAPP law in reply to a "disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech." Cal. Civ. Proc. Code Sec. 425.16(a). The statute was designed to allow the swift dismissal of meritless claims aimed not at remedying legally cognizable harms but at chilling expression. To prevail on a motion to strike, a defendant must first make a prima facie showing that the suit arises from activity in furtherance of First Amendment rights of petition or free speech; once such a showing has been made the plaintiff must show a probability of prevailing on the claims. Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1110 (9th Cir. 2003). Dissenting, Judge Callahan would construe Sec. 425.16(a) broadly to conclude that not only were Jacob's statements opinions in the context they were given, but that HMC failed to show with admissible evidence that they were factually untrue so as to show a probability of prevailing on the merits as requires by Sec. 425.16(b). Hall, O'Scannlain (author), and Callahan (dissenting) Circuit Judges. D. Bradford of Chicago, IL, for the plaintiff-appellant; W. Johnson of San Diego, CA, for the defendants-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) ESTABLISHMENT CLAUSE: Card v. City of Everett, 06-35996 (9th Cir. March 26, 2008). Card appealed the district court's award of summary judgment to the City of Everett on his claim that the City's display of a six-foot tall granite monument inscribed with the Ten Commandments on the grounds of the Everett Old City Hall violates the Establishment clauses of the Constitutions of the United States and the State of Washington. Van Orden v. Perry, 545 US 677 (2005), and McCreary County v. ACLU, 545 US 844 (2005), both address the issues presented here, and the former involves a monument of virtually identical design and origin to the monument at issue here. The Supreme Court concluded that the display on the grounds of the Texas State Capitol in Van Orden is constitutional, but struck down as unconstitutional the Kentucky monument display at issue in McCreary. Although the circumstances of the Ten Commandments' installation in the City of Everett vary slightly from those surrounding the Texas monument, the USCA agreed with the district court that Van Orden controlled the decision here. It thus affirmed. Alarcon, Fernandez (concurring), and Wardlaw (author), Circuit Judges. M. Slonim of Seattle, WA, for the appellant; S. Smith of Seattle, WA, for the appellees (Download the full text of this decision at www.ce9.uscourts.gov/) 27) IMMIGRATION: Blanco v. Mukasey, 06-71385 (9th Cir. March 3, 2008). Blanco petitioned for review of a final order of re-moval arguing that the Board of Immigration Appeals ("BIA") erred in holding that he is an inadmissible alien who is not eligible for any discretionary relief. The BIA found Blanco to be ineligible for adjustment of status because he made a false claim to citizenship when he was detained at the border. It also found him ineligible for cancellation of removal because he had been convicted of crimes involving moral turpitude. The USCA found that the BIA erred when it held that Blanco's conviction under California Penal Code Sec. 148.9(a) precluded him from consideration for cancellation of removal. Because the BIA's moral turpitude finding was flawed, the USCA granted Blanco's petition as to cancellation of removal, but denied his petition in all other respects. Judge Pregerson specially concurred in the holding that a violation of Sec. 148.9(a) is not a crime of moral turpitude. Pregerson (concurring), Hawkins, and Fisher (author), Circuit Judges. M. Codner of San Diego, CA, for the petitioner; A. Payne of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 28) IMMIGRATION: Navarro v. Mukasey, 04-70324 (9th Cir. March 4, 2008). The petitioners moved the BIA to reopen their deportation proceedings on the basis that they qualified for the benefits of the Barahona-Gomez v. Ashcroft, 243 F. Supp. 2d 1029 (N.D. Cal. 2002), class action settlement. That settlement allows certain eligible aliens to apply for suspension of deportation under the less stringent pre-Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") continuous physical presence standard. The BIA found that the petitioners did not qualify for the Barahona-Gomez relief and denied their motion to reopen. The USCA disagreed and granted the petitioners relief. The petitioners were "scheduled" for a merits hearing between February 13 and April 1, their hearing was continued to a date after IIRIRA took effect, and they were denied relief on the basis of the stop-clock rule. They are thus class members eligible for relief. Judge Clifton concurred in the judgment. He thought that application of the Barahona-Gomez settlement situation should be based on the facts of the particular situation, and he did not think the broad interpretation stated by the majority would lead to sensible results in all cases. Pregerson (author), Gould, and Clifton (concurring), Circuit Judges. K. Bove of Escondido, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) IMMIGRATION: Hong v. Mukasey, 06-72823 (9th Cir. March 4, 2008). Hong petitioned for review of an order for her removal from the United States. She argued that evidence used against her in the removal proceedings should have been suppressed because it was obtained through violations of federal regulations committed by a U.S. immigration officer. Because the exclusionary rule does not generally apply to immigration proceedings, and Hong's due process rights were not violated, the USCA denied in part her petition for review. Hong also sought reconsideration of the denial of her application for cancellation of removal. However, the USCA found that it lacked jurisdiction to review this discretionary decision and thus dismissed that portion of the petition. D.W. Nelson (author) and Bea, Circuit Judges, and Oberdorfer, District Judge. R. Baizer of Oakland, CA, for the petitioner; S. Park of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) IMMIGRATION: Shin v. Mukasey, 06-71955 (9th Cir. March 4, 2008). At issue here was whether an alien who overstayed her tourist visa, and then paid $10,000 for the purchase of a fraudulent alien registration card (a "green card") manufactured by a corrupt federal immigration employee, can bar the government from removing her from the United States on the grounds that the government is estopped to assert that the green card is bogus. The USCA held that the government cannot be saddled with the felonious, unauthor-ized issuance of residence documents by a thieving employee. D.W. Nelson and Bea (author), Circuit Judges, and Oberdorfer, District Judge. A. Park of Santa Clara, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 31) IMMIGRATION: Al-Mousa v. Mukasey, 06-70638 (9th Cir. March 5, 2008). Al-Mousa, a native of Sudan and citizen of Saudi Arabia, petitioned for review of the Board of Immigration Appeals decision dismissing his appeal from the Immigration Judge's ("IJ's") denial of his applications for asylum, withholding of removal and relief under the Convention Against Torture. Al-Mousa as-serted past persecution and a fear of future persecution in Saudi Arabia on account of his ethnicity or dark skin color. The BIA affirmed the IJ's finding that Al-Mousa's asylum application was time-barred, and that he failed to establish a credible claim for relief. Al-Mousa appealed, claiming that he is excused from the one-year bar because he was a minor and that the IJ's adverse credibility finding was unsupported by substantial evidence. The USCA remanded, directing the BIA to address whether, if a petitioner under age 21 is viewed as a minor, his status as a minor may forgive his failure to exhaust a claim. The USCA declined to address the propriety of the adverse credibility finding. Dissenting, Judge Rawlinson thought the USCA had no jurisdiction to address the issue of whether individuals under the age of 21 are minors because that issued was not exhausted by Al-Mousa. B. Fletcher (author), Canby, and Rawlinson (dissenting), Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; P. Keisler of Washington, DC, for the re-spondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 32) IMMIGRATION: Lemus-Galvan v. Mukasey, 04-72651 (9th Cir. March 11, 2008). The petitioner, a native and citizen of Mexico, has been a legal permanent resident of the United States since 1982. He was convicted of attempted second degree murder. On the basis of that conviction, he was denied relief under Sec. 212(c) of the Immigration and Nationality Act and ordered deported in 1996. He subsequently sought review of the BIA's summary affirmance of the Immigration Judge's denial of deferral or removal under the Convention Against Torture ("CAT"). Notwithstanding that he was ordered removed on the basis of an aggravated felony, the USCA found that it had jurisdiction over his deferral of removal claim under CAT. But the USCA then found that the petitioner failed to establish that internal relocation within Mexico was impossible. Substantial evidence thus supported the IJ's decision to deny deferral of removal under CAT. Kozinski, Tashima, and McKeown (author), Circuit Judges. D. Landry of San Diego, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 33) IMMIGRATION: Mustanich v. Mukasey, 04-74290 (9th Cir. March 11, 2008). Mustanich was convicted of burglary and later ordered removed under 8 USC Sec. 1227(a)(2)(A)(iii) as an alien who committed an aggravated felony. He sought to terminate his removal proceedings on the ground that he is a U.S. citizen. He argued that although he did not file an application for naturalization prior to the applicable statutory deadline, the U.S. was equitably estopped from denying his citizenship because the Government's own affirmative misconduct precluded a timely filing. The USCA rejected this argument and denied the petition on the authority of INS v. Pangilinan, 486 U.S. 875 (1988), which established that citizenship cannot be conferred by estoppel where the statutory requirements for naturalization have not be satisfied. Mustanich also moved to transfer his case to the district court for an evidentiary hearing re-garding his possible U.S. citizenship. The USCA denied this motion because there was no genuine issue of material fact concerning nationality. Farris and M.D. Smith (author), Circuit Judges, and Holland, District Judge. R. Carr of San Diego, CA, for the petitioner; C. McIntyre of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: Huang v. Mukasey, 04-73309
(9th Cir. March 24, 2008). Meihua Huang and his wife, Mingyan Qiu,
natives and citizens of China, petitioned for review of a BIA order
dismissing their appeal from an Immigration judge's (IJ's) decision
denying their application for asylum, withholding of removal, and
relief under the Convention Against Torture. The USCA granted the
petition in part, dismissed in part, and remanded for further proceedings
so that the agency could review the IJ's finding that Huang and
Qiu failed to prove either past or a well-founded fear of future
persecution. The USCA added that the BIA may choose to remand the
case to the IJ for a credibility finding. The USCA also dismissed
Huang and Qui's claims that incompetent translations and denial
of an opportunity to testify at the deportation hearing violated
their due process rights because these claims were not exhausted
before the BIA. Goodwin, O'Scannlain, and W. Fletcher, Circuit Judges.
Per Curiam. D. Jiang of Fremont, CA, for the petitioners;
AUSA R. Wenthe of Las Vegas, NV, for the respondent(Download
the full text of this decision at www.ce9.uscourts.gov/)
36) IMMIGRATION: Sillah v. Mukasey, 06-73857 (9th Cir. March 27, 2008). Sillah, a native and citizen of Sierra Leone, applied for asylum, withholding of removal, and relief under the Convention Against Torture. The Immigration Judge ("IJ") denied relief and the BIA dismissed Sillah's appeal. The USCA found that it lacked jurisdiction to review the denial of the application for asylum and denied the petition for review with respect to withholding removal. It found that the evidence did not compel the conclusion that the Revolutionary United Front would target Sillah upon his return to Sierra Leone. It was reasonable for the IJ to conclude that circum-stances in Sierra Leone have changed such that Sillah's life and freedom are no longer threatened. The USCA thus denied the petition in so far as it sought review of the BIA's decision denying withholding of removal. McKeown and Clifton, Circuit Judges, and Schwarzer, District Judge. Per Curiam. V. Dobrin of Seattle, WA, for the petitioner; K. Conway of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) VISA WAIVER PROGRAM: Momeni v. Chertoff, 07-55018
(9th Cir. March 31, 2008). At issue here was whether a traveler
to the U.S. under the Visa Waiver Program may contest deportation
pending his application for adjustment of status. Momeni, a German
citizen, came to the U.S. as a tourist under a program that Congress
created which permits citizens of certain countries to come to the
U.S. as tourist for 90 days or less without visas. He argued that
under Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006),
the "no contest" provision of the 90-day Program did not
apply to him, because he has since filed (and has pending) an application
for adjustment of status, based on his marriage to a U.S. citizen.
As there are no administrative proceedings available for entrants
under the Visa Waiver Program except on the basis of asylum, Momeni
sought none. Instead, he filed a habeas corpus petition,
which the district court dismissed for lack of jurisdiction. The
USCA affirmed. An alien who comes to the United States under the
Visa Waiver Program generally cannot avoid waiving the right to
contest removal (other than on the basis of asylum). Freeman is
a narrow exception to the rule, but Momeni did not fall within it.
Kozinski, Kleinfeld (author), and Tallman, Circuit Judges.
L. Schoenberg of Pasadena, CA, for the appellant; AUSA T. Buck of
Los Angeles, CA, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
39) SEALED PLEA PROCEEDINGS: In re Copley Press, Inc., 07-72143 (9th Cir. March 4, 2008). The USCA here considered a district court order unsealing the transcript of a plea colloquy, a plea agreement's "cooperation addendum" and the documents support-ing a motion to seal the plea proceedings. The documents were sealed to reduce the danger to Higuera-Guerrero, a drug cartel boss who pledged to help the government build its case against others in the cartel. The USCA held that the public has a First Amendment right to access the cooperation addendum to Higuera-Guerrero's plea agreement, the unredacted transcript of his plea colloquy, the transcript of the public portions of the hearings on the motions to seal and the government's sealed memorandum. Though this right can be overcome by a compelling interest in some circumstances, the district court did not abuse its discretion in unsealing the portions of these documents that describe Higuera-Guerrero's cooperation. However, the district court did abuse its discretion in unsealing these portions that describe the other people in danger. Kozinski (author), D.W. Nelson, and Rawlinson, Circuit Judges. V. Shanker of Washington, DC, for the plaintiff-appellant; G. Cummins of San Diego, CA, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) CRIMINAL LAW: USA v. Alghazouli, 06-50422 (9th Cir. March 4, 2008). Alghazouli was convicted by a jury on five counts arising out of unlawful importation of R-12 freon, an ozone-depleting substance. Counts 1, 2 and 6 charged him with violating 18 USC Sec. 545 which prohibits fraudulent or knowing importation of merchandise "contrary to law," as well as the receipt, concealment, or sale of merchandise, or the facilitation of the transportation, concealment, or sale of merchandise, which the defendant knows to have been imported "contrary to law." Count 8 charged him with conspiring to violate two money laundering statutes in violation of 18 USC Sec. 1956(h). Count 8 also charged, as a predicate offense for the money laundering offense, a violation of Sec. 545. Count 15 charged him with violating 42 USC Sec. 7413(c)(1), based on his having knowingly violated a regulation prohibiting the sale of R-12 freon to an improperly certified person. The USCA affirmed. It held that the term "law" in Sec. 545 includes a "regulation" when, but only when a statute (a "law") specifies that violation of the regulation is a crime. The USCA thus upheld Alghazouli's convictions on Counts 1, 2, and 6. It also held that the district court erred in failing to instruct the jury on the elements of the underling substantive money laundering offenses that were the object of the charged conspiracy, but that the error was not plain and that it did not affect Alghazouli's substantive rights. The USCA thus affirmed Alghazouli's conviction on Court 8. It held that the term "knowingly" in Sec. 7413(c) requires only that the defendant know that facts constituting the violation. The USCA thus affirmed Alghazouli's conviction on Court 15. Finally, it held that the district court properly applied the 18 USC Sec. 3553(a) sentencing factors. Silverman, W. Fletcher (author), and Clifton, Circuit Judges. A. Alghazouli pro se; R. Haines of San Diego, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 41) SPEEDY TRIAL ACT / TAXATION: USA v. Mendoza, 06-50447 (9th Cir. March 3, 2008). Mendoza appealed his convictions on two counts of subscribing to a false income tax return in violation of 26 USC Sec. 7201. He maintained that the eight-year delay between his indictment and his arrest violated his Sixth Amendment right to a speedy trial. He also maintained that the district court plainly erred when it ordered restitution during sentencing. The USCA reversed. After balancing the factors set out in Barker v. Wingo, 407 US 514, it held that Mendoza's Sixth Amendment speedy-trial right was violated. The eight-year delay between Mendoza's indictment and arrest was a result of the government's negligence, thus the USCA presumed that Mendoza suffered prejudice and that warranted a dismissal of Mendoza's indictment. Concurring, Judge Bybee said he joined the majority because the facts before the court show how Doggett v. USA, 505 US 647 (1992), requires a presumption unsupported by the record. Because the government did not make even a single effort to notify Mendoza of his indictment, the court must find the government responsible for the constitutionally impermissible 8 ½ year delay between indictment and arrests. Nevertheless, Judge Bybee noted that the court might not have been re-quired to set aside Mendoza's jury verdict but for the requirement of Doggett that the court presume that the delay prejudiced, and here it appears that Mendoza suffered no prejudice. T.G. Nelson (author), Paez, and Bybee (concurring) Circuit Judges. R. Levy of Tor-rance, CA, for the defendant-appellant; AUSA A. Sagar of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 42) SPEEDY TRIAL ACT: USA v. Lewis, 05-10692 (9th Cir. March 13, 2008). Lewis appealed the district court's decision to dis-miss without prejudice his indictment for violation of the Speedy Trial Act ("STA"), 18 USC Sec. 3162(a)(2). On her prior appeal, the USCA found that one discrete period of pretrial delay had violated the STA, did not reach the other asserted violations, and remanded for a determination of whether the dismissal of the indictment should be with or without prejudice. Lewis correctly maintained that the district court misconstrued the scope of the USCA's mandate by considering only the one period of delay it found to violate the STA before dismissing the indictment without prejudice. The government reindicted Lewis and the case proceeded to trial for a second time. He was again convicted. He appealed his second conviction on various errors he asserts the district court committed during the second trial. The USCA did not reach these assertions of error because, it said, upon remand, the district court should consider the effect of all of the improper periods of pretrial delay. Upon review, the district court may determine that Lewis' indictment should be dismissed with prejudice, obviating the need for the USCA to review this appeal pursuant to 28 USC Sec. 1291. The USCA thus reversed and remanded. O'Scannlain (dissenting), Hawkins, and Wardlaw (author), Circuit Judges. D. Paik of San Francisco, CA, for the defendant-appellant; M. McKeown of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) JURY INSTRUCTIONS: USA v. Smith, 05-50375 (9th Cir. March 31, 2008). At issue here was whether a jury instruction impermissibly relieved the government of its burden to prove beyond a reasonable doubt that the defendant used a "dangerous weapon," an essential element of the crime. Because the jury instruction did not relieve the government of its burden to prove beyond a reasonable doubt that Smith used a "dangerous weapon," and because the evidence was sufficient to support the verdict, the USCA rejected Smith's challenge to his conviction. Dissenting, Judge Nelson did not believe that the court could conclude that the flawed instruction in the instant case was "harmless" beyond a reasonable doubt or that there was no "reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution. Judge Nelson would also expressly disapprove of the continued use of Model Criminal Jury Instruction 8.5 and adopt an instruction consistent with those used in other Circuits. D.W. Nelson (dissenting) and O'Scannlain (author), Circuit Judges, and Jones, District Judge. D. Chen of Los Angeles, CA, for the appellant; AUSA C. Missakian of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 44) SENTENCING: USA v. Crawford, 06-30205 (9th Cir. March 28, 2008). Crawford raised a number of sentencing issues that have been answered by recent Supreme Court and Ninth Circuit sentencing decisions: 1) whether the Sentencing Commission's policy statements should be given more weight than the Guidelines for crack cocaine sentences because the Commission's reports are sup-ported by empirical evidence, while the Guidelines were based on unproven assumptions; 2) whether the district court procedurally erred in offering comments concerning the view that the Guidelines are presumptively reasonable and whether it failed to consider the sentencing factors set forth in 18 U.S.C. Sec. 3553(a); and 3) whether the district court erred in finding that Crawford was a career offender. As for 1), the USCA found that Kimbrough v. USA, 128 S.Ct. 558 (2007), while validating Crawford's view, does not help him because he conceded during his resentencing hearing that the crack / powder disparity does not affect his sentencing level. As for 2), although Rita v. USA, 127 S.Ct. 2456 (2007), held that appellate courts may presume that a sentence is reasonable when a district court judge's discretionary decision accords with the sentence the Sentencing commission deems appropriate in most cases, the Court emphasized that such a presumption was limited to the standard on appeal. The district court here did not presume the reasonableness of a Guidelines sentence with respect to Crawford's case but, rather, presciently forecasted Rita's holding, while citing USA v. Booker, 543 US 220 (2005) and acknowledging other circuit that had already adopted the rule Rita would eventually espouse. The district court neither misapprehended the sentencing framework nor adopted a presumption of reasonableness. To comply with Booker, a district court must sufficiently consider the Guidelines, as well as the other factors listed in Sec. 3553(a). The USCA found that the district court more than met Booker's requirements. Finally, as for 3), the district court properly found that Crawford qualified as a career offender under Sentencing Guidelines Sec. 4B1.1 based on his two prior drug offense convictions in California and Washington. The USCA affirmed his 210-month sentence for distribution of heroin and crack cocaine. B. Fletcher, Graber, and McKeown, Circuit Judges. K. Moran of Spokane, WA, for the appellant; AUSA G. Jacobs of Spokane, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) SENTENCING: USA v. Carty, 05-10200 (9th Cir. March 24, 2008). The USCA ordered a rehearing en banc in these consoli-dated case to clarify its sentencing law in the wake of USA v. Booker, 543 US 220 (2005). However, when the U.S. Supreme Court granted certiorari in Claiborne v. USA and Rita v. USA, the USCA deferred submission pending the Supreme Court's decision, as the issues were similar. The Court rendered its opinion in Rita on June 21, 2007, holding that a court of appeals may presume that the sen-tence is reasonable when a district judge's discretionary decision accords with the sentence the U.S. Sentencing Commission deems appropriate in the mine-run of cases. 127 S.Ct. 2456, 2465 (2007). Claiborne's case was mooted by his death, so the Court granted certiorari in Gall v. USA to address the question whether a sentence that amounts to a substantial variance from the Guidelines needs to be justified by extraordinary circumstances. 127 S.Ct. 2933 (2007). It held on December 10, 2007 that appellate courts must review all sentences, within and without the Guidelines range, under a deferential abuse-of-discretion standard. 128 S.Ct. 586, 591 (2007). On the same day, the Court held that under Booker, the cocaine Guidelines, like all others, are advisory only and that the Guidelines, formerly mandatory, serve as one factor among several that district courts must consider in determining an appropriate sentence. Kimbrough v. USA, 128 S.Ct. 558, 564 (2007). As the core principles were resolved, the USCA faced only one open question presented by the cases consolidates here: whether to adopt an appellate "presumption" of reasonableness for sentences imposed within the Guidelines range. The USCA declined to do so, although it recognized that a correctly calculated Guidelines sentence will normally not be found unreasonable on appeal. Applying Rita, Gall, and Kimbrough, the USCA concluded that there was no significant procedural error in either of the consolidated cases, and that the sentences imposed were not unreasonable. Judge Kozinski, joined by Judge Kleinfeld, concurred in Judge Rymer's opinion with the understanding that it affirmed Carty's within-Guidelines sentence by invoking a presumption that within-Guidelines sentences are "reasonable." Concurring, Judge Silverman would apply the presumption of reasonableness to the sentences under review and, finding no abuse of discretion on the part of the district court, would affirm. Kozinski (concurring), Schroeder, Reinhardt, Rymer (author), Kleinfeld, Thomas, Silverman (concurring), McKeown, Wardlaw, Gould, Paez, Berzon, Tallman, Bybee, and Bea, Circuit Judges. AFPD J. Green of Phoenix, AZ, for the defendant-appellant Carty; D. Charney of Eagle, ID, for defendant-appellant Zavala; M. Dreeben of Washington, DC, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 46) SENTENCING: USA v. Cannel, 06-30590 (9th Cir. March 3, 2008). Cannel appealed his sentence of 72 months' imprisonment for possession of child pornography in violation of 18 USC Sec. 2252(a)(5)(B). He maintained for the first time on appeal that the government breached its plea agreement with him. The UCA affirmed the sentence. The government's final sentencing recommendation was consistent with the plea agreement, which permited the government to withhold a recommendation for an adjustment for ac-ceptance of responsibility if Cannel did not comply with the specified conditions. The plea agreement also permitted the government to seek any sentence within the applicable guideline range. The government recommended a sentence of 97 months, which was at the top of the 78 to 97-month sentencing range dictated by the offense level of 28. Concurring, Judge Clifton agreed that the sentence should be affirmed, but reached that result via a different route. Specifically, he disagreed with the conclusion that the government did not breach the agreement. But, because he did not believe that the sentence impose by the district court was affected in any way by that breach, Judge Clifton agreed that the sentence should be affirmed. McKeown and Clifton (concurring), Circuit Judges, and Schwarzer (author), District Judges. T. Staab of Spokane, WA, for the defendant-appellant; AUSA K.J. Bolton of Spokane, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) SENTENCING / DOUBLE JEOPARDY: USA v. Davenport, 06-30596 (9th Cir. March 20, 2008). Davenport appealed the district court's denial of his motion to withdraw his guilty plea and the sentence that the district court imposed on him for receiving child pornography in violation of 18 USC Sec. 2252A(a)(2) and possessing child pornography in violation of 18 USC Sec. 2252A(a)(5)(B). After the district court denied Davenport's motion to withdraw his guilty plea, he received a 78-month sentence of incarceration for each of the two counts, to be served concurrently, as well as concurrent life terms of supervised release for each count. At issue on this appeal was whether his convictions for both receipt of child pornography and possession of child pornography offends double jeopardy when the conduct underling both offenses is the same. The USCA held that Davenport's simultaneous conviction for both receipt and possession of child pornography violates the Fifth Amendment's prohibition on double jeopardy. It thus reversed and remanded to the district court for further proceedings. Dissenting, Judge Graber thought that Congress clearly intended to permit cumulative punishment for both receipt and possession of child pornography. She would this hold that punishing Davenport for both does not violate the Double Jeopardy Clause. Canby, Graber (dissenting), and Gould (author), Circuit Judges. D. Mondou of Marana, AZ, for the defendant-appellant; M. Hurd of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 48) SENTENCING: USA v. Davis, 06-10527 (9th Cir. March 19, 2008). The USCA issued a limited remand in this case with instructions to the district court to strike the conviction and sentence as to count four, and to determine, in accordance with USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), whether the district court would have imposed the same sentence had it been aware that the Sentencing Guidelines were advisory rather than mandatory. On remand, the district court struck the conviction and sentence as to count four. It also declared that it would not have imposed a different sentence had it known that the Guidelines were advisory. How-ever, it went on to reconsider the sentence as to count three, increasing it substantially. The USCA held that where it expressly limits the scope of remand, the district court is without authority to reexamine other sentencing issues on remand. USA v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994). The district court in the present case exceeded its authority when it increased the sentence on count three. The USCA thus vacated that sentence and instructed the district court to reimpose his original sentence, except that no sentence shall be imposed on count four. No adjustment shall be made with respect to any other count as well. Reinhardt, Noonan, and Fisher, Circuit Judges. Per Curiam. M. Robinson of Cincinnati, OH, for the defendant-appellant; AUSA W. Wong of Sacramento, CA, for the plain-tiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 49) SENTENCING / RECUSAL: USA v. Holland, 06-30258 (9th Cir. March 17, 2008). Holland appealed his conviction and sen-tence for mailing threatening communications and threatening the President of the United States. He maintained that the district court judge who imposed the sentence should have recused himself after Holland obtained that judge's home telephone number and left at least one threatening message prior to his sentencing. The USCA held that the district judge reasonably construed Holland's threatening phone message as an attempt to manipulate the court system which did not warrant his sua sponte recusal. The USCA thus affirmed the district court's judgment. Thompson, Kleinfeld, and Bybee (author), Circuit Judges. P. Gordon of Boise, ID, for the appellant; A. Burrow of Boise, ID, for the government. (Download the full text of this decision at www.ce9.uscourts.gov/) 50) RESTITUTION: USA v. Gianelli, 07-10233 (9th Cir. March 20, 2008). In 1987, Gianelli pleaded guilty to one count of mail fraud, 18 USC Sec. 1341, in the Northern District of California. As part of his sentence he was ordered to pay restitution to the federal government in the amount of $125,000. He did not appeal that judgment. He now appeals a 2007 district court order reinstating a 2001 order imposing a payment plan aimed at collecting the remaining amount of restitution owed. He maintained that the government was barred from enforcing the restitution judgment because ten years from the date of that judgment passed on May 13, 1997, and California state law precludes enforcement of a judgment after that period of time. He further argued that the original $125,000 restitution amount was improper because it was not predicated upon the government's actual loss, as required by Hughey v. USA, 495 US 411 (1990). The USCA held that Gianelli waived the right to appeal the amount of the restitution order by failing to file a direct appeal, and thus affirmed the 2007 order reinstating the 2001 payment plan. Canby, Thompson (author), and M.D. Smith, Circuit Judges. P. Sullivan of Oakland, CA, for the appellant; R. Friedman of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 51) SUPERVISED RELEASE: USA v. Anderson, 07-50145 (9th Cir. March 25, 2008). Anderson appealed the district court's imposition of a 3-year term of supervised release after revocation of a 90-day term of supervised release. He argued that the court's authority to reimpose a term of supervised release under 18 USC Sec. 3583(e) (1993) was limited to the duration of the revoked term. The USCA affirmed. Anderson already had served in prison part of his original term of supervised release. That original term was 5 years, or 60 months. After the three revocations of supervised release, he served 6, 7 and 3 months' imprisonment, respectively. The district court thus could impose no more than 44 months of supervised release. The 3-year (36-month) term was permissible. Gibson, O'Scannlain, and Graber (author), Circuit Judges. DFPD M. Tanaka of Los Angeles, CA, for the defendant-appellant; AUSA T. Flynn of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 52) SENTENCING / HABEAS CORPUS: Harrison v. Ollison, 06-55470 (9th Cir. March 20, 2008). A federal prisoner challenging the legality of a sentence must generally do so by a motion pursuant to 28 USC Sec. 2255. However, when a motion under Sec. 2255 is "inadequate or ineffective to test the legality" of a prisoner's detention, that prisoner may bring a habeas petition under 28 USC Sec. 2241. At issue on this appeal was whether Harrison was entitled to bring his habeas petition under Sec. 2241. But, before reaching that issue, the USCA had to determine whether Harrison needed a certificate of Appealability, 28 USC Sec. 2253(c), before he could appeal the district court's dismissal of his Sec. 2241 petition for lack of jurisdiction. The USCA held that because Harrison had not established that his petition is a legitimate Sec. 2241 petition brought pursuant to the escape hatch of Sec. 2255, the USCA did not have jurisdiction under Sec. 2241 to hear his appeal. His pleading had to be characterized as a disguised Sec. 2255 motion. As the district court noted, because he has filed multiple Sec. 2255 motions, he cannot proceed with a successive Sec. 2255 motion without an order of the court authorizing his successive petition. 28 USC Sec. 2244(b)(3)(A). As Harrison conceded, he is not entitled to file a successive Sec. 2255 motion. His claim under Jones v. USA, 529 US 848 (2002), did not present "newly discovered evidence" or "a new rule of constitutional law." The USCA thus affirmed the decision of the district court dismissing his petition for lack of jurisdiction. Wallace, T.G. Nelson, and Ikuta (author), Circuit Judges. K Hermansen of San Diego, CA, for the petitioner; AUSA B. Castetter of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 53) HABEAS CORPUS: Harvest v. Castro, 05-16879 (9th Cir. March 27, 2008). At issue here was whether and, if so, under what circumstances, a district court has the authority to modify a conditional writ of habeas corpus after the time provide in the order has lapsed. The USCA held that the district court does have such authority, but that such modifications may only be made pursuant to the Rules of Civil Procedure. In this case, the State had not shown that relief under Rule 60 was warranted; thus, the USCA reversed, con-cluding that the district court abused its discretion when it modified the conditional writ. The USCA remanded with instructions for the district court to grant the unconditional writ of habeas corpus ordering the petitioner's release. Gibson, Tashima (author), and Berzon, Circuit Judges. S. Sugarman of San Francisco, CA, for the petitioner; J. Friedlander of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 54) HABEAS CORPUS / EXTRADITION: Manta v. Chertoff, 07-55353 (9th Cir. March 11, 2008). Manta appealed the dismissal of her habeas petition. Since 1999, Greece has sought the extradition of Crystalla Kyriakidou pursuant to the Treaty of Extradition with the United States. The United States filed a complaint for extradition against Kyriakidou, whom it believes is the same person as Manta. After an extradition hearing, a magistrate granted the request for extradition based on two foreign charges of fraud. Seeking relief from the extradition order, Manta petitioned the district court for a writ of habeas corpus under 28 USC Sec. 2241. The USCA affirmed the district court's dismissal of Manta's habeas petition. Manta cited no cases to support her contention that the Fourth Amendment requires that every piece of evidence relied on in an extradition proceeding be sworn. Moreover, such a requirement would run contrary to Ninth Circuit well established case law that evidence offered for extradition purposes need not be made under oath. Zanazanian v. USA, 729 F.2d 624, 627 (9th Cir. 1984). Farris and M.D. Smith (author), Circuit Judges, and Holland, District Judge. J. Coon of San Diego, CA, for the petitioner; AUSA G. Aguilar of San Diego, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)
56) PRISONERS' RIGHTS: Pierce v. County of Orange, 05-55829 (9th Cir. March 24, 2008). In 2001 some pretrial detainees in Orange County's jail facilities, initiated a class action suit against the County and the County's sheriff and agent. They sought relief under 42 USC Sec. 1983 for violations of their Fourteenth Amendment due process rights. They maintained that the jails were oper-ated in an unconstitutional manner, depriving detainees of opportunities for exercise, unduly limiting their access to common areas, and impermissibly restricting their ability to practice religion. They further maintained that they have been deprived of a number of the federal rights recognized in Stewart v. Gates, 450 F.Supp. 583 (C.D. Cal. 1978) (the "Stewart" orders)-a decision and resulting injunctive orders that established standards for pretrial detention in Orange County jails. The plaintiffs sought relief for the same injuries under the California Constitution, as well as Title 15 of the California Code of Regulations (which sets minimum standards for country jails) in violation of Sec. 815.6 of the California Government Code, and breach of Sec. 54.1 of the California Civil Code. Finally, they maintained an equal protection claim of Sec. 1983 based on the denial of equal treatment to disabled detainees, and they advanced a separate claim for violations of Title II of the Americans with Disabilities Act ("ADA"), alleging non-compliant jail facilities and denial of access to programs and services available to non-disabled detainees. After a six day trial, the district court found that the plaintiffs failed to establish any constitutional injury giving rise to relief under Sec. 1983. It further found the 14 Stewart orders at issue were no longer necessary, and ordered them all terminated pursuant to the Prison Litigation Reform Act. It likewise rejected plaintiffs' equal protection and ADA claims, finding that although the County was not in full ADA compliance, it could reasonably be expected to move toward full compliance. The USCA affirmed the district court's pre-trial and evidentiary rulings challenged by the plaintiffs; the district court did not abuse its discretion in its pre-trial management of the case or its decisions relating to the admission of evidence. On the merits, the USDA affirmed the district court's termination of nearly all of the 14 Stewart orders at issue. Two of those orders, however, give inmates housed in administrative segregation minimal access to religious services and exercise and could not be terminated. The district court clearly erred in its finding that these two orders are unnecessary to correct a current and ongoing violation of a Federal right. The USCA likewise concluded that, because of physical barriers that deny disabled inmates access to certain prison facilities (bathrooms, showers, exercise and other common areas), and because of disparate programs and services offered to disabled versus non-disabled inmates, the County was in violation of the ADA. B. Fletcher (author), McKeown, and Bybee, Circuit Judges. V. Keeny of Pasadena, CA for the plaintiffs-appellants; S. Miller of Santa Ana, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 57) PRISONERS' RIGHTS: Alvarez v. Hill, 06-35068 (9th Cir. March 13, 2008). Alvarez brought suit alleging that prison officials substantially burdened his religious exercise by denying him various accommodations. The officials insist that Alvarez's failure to spe-cifically plead in his complaint a violation of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") barred his argument that the district court erred in not analyzing his religious exercise claims under RLUIPA, which establishes a more protective standard than does the First Amendment. The USCA disagreed. Their rigid insistence that RLUIPA claims must be specifically pled in the plaintiff's complaint is without support in Ninth Circuit precedent and puzzling in view of the lenience traditionally afforded pro se pleadings and of RLUIPA's manifest purpose of protecting "institutionalized persons who are unable to freely to attend to their religious needs. Cutter v. Wilkinson, 544 US 709 (2005). The "simplified pleading standards apply to all civil actions, with limited exceptions" provided for by rule or by statute. Swierkiewicz v. Sorema N.A., 534 US 506, 513 (2002). The USCA held that RLUIPA claims need satisfy only the ordinary requirements of notice pleading, and that a complaint's failure to cite RLUIPA does not preclude the plaintiff from subsequently asserting a claim based on RLUIPA. Under this pleading standard, it is sufficient that the complaint, alone or supplemented by any filings before summary judgment, provide the defendant fair notice that the plaintiff is claiming relief under RLUIPA as well as the First Amendment. Having held that the district court erred in not addressing Alvarez's RLUIPA claim, the USCA vacated the summary judgment as to his religious exercise claims without reaching his constitutional arguments in support of reversal. Fisher (author), Gould, and Ikuta, Circuit Judges. B. Alvarez, pro se; AAG R. Moan of Salem, OR, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) MEMORANDA
1) COPYRIGHT INFRINGEMENT: Mostowfi v. 12 Telecom International, Inc., 06-155977 (9th Cir. March 4, 2007) (unpub-lished). The plaintiffs appealed the district court's dismissal of their complaint for lack of subject matter jurisdiction under Rule 41(b). The USCA affirmed. It found that the district court properly dismissed the plaintiff's claims of copyright infringement. It was undis-puted that the Common Stock Purchase Agreement executed between the parties affirmed that SuperCaller, Inc., had ownership of all intellectual property, including patents and copyrights, that was necessary for the operation of the business. The plaintiffs conceded that plaintiff Mostowfi had not individually sought or obtained copyright protection for the property at issue. In addition, as the district court held, the disputed software was a "work made for hire." The Copyright Act provides that copyright ownership "vests initially in the author or authors of the work." 17 USC Sec. 201(a). However, if the work is made for hire, "the employer or other person for whom the work was prepared is considered the author … and, unless the parties have expressly agreed otherwise in a written instru-ment signed by them, owns all of the rights comprised in the copyright." 17 USC Sec. 201(b) Section 101 of the Copyright Act defines a "work made for hire" as "a work prepared by an employee within the scope of his or her employment." 17 USC Sec. 101. The creator of a work made for hire does not have a legal or beneficial interest in the copyright and thus does not have standing to sue for in-fringement. Mostowfi does not contest that any software he designed at SuperCaller would qualify as a work made for hire. The com-plaint alleges that Mostowfi created the "VOIP" technology, including the disputed software, within the scope of his employment at SuperCaller. Given this concession and the executed agreement acknowledging that the corporation had ownership of all intellectual property necessary for business operation, including copyrights, the district court did not err in concluding that SuperCaller, not Mo-stowfi, owns the copyright in its software. Because the plaintiffs did not own the copyright, the district court correctly held that the plaintiffs lacked standing to sue for infringement. The USCA also affirmed the district court's dismissal of the plaintiffs' RICO claim because it was not pled with the degree of particularity required by Rule 9(b). Rule 9(b) "applies to civil RICO fraud claims." Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004). In addition, Rule 9(b) may apply to claims-that although lacking fraud as an element-are "grounded" or "sound" in fraud. Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1103-04 (9th Cir. 2003). ("In some cases, the plaintiff may allege a unified course of fraudulent conduct and rely entirely on that course of conduct as the basis of a claim. In that event, the claim is said to be 'grounded in fraud' or to 'sound in fraud,' and the pleading of that claim as a whole must satisfy the par-ticularity requirement of Rule 9(b).") Here, the plaintiffs' RICO claim was "grounded" in fraud because it alleged a uniform course of fraudulent conduct. Rule 9(b) provides: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." The rule "requires a pleader of fraud to detail with particularity the time, place, and manner of each act of fraud, plus the role of each defendant in each scheme." Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 1991). In addition, a complaint must "set forth an explanation as to why the statement or omission complained of was false and misleading." Decker v. GlenFed, Inc., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc), superseded by statute on other grounds as stated in In re Silicon Graphics, Inc., 970 F. Supp. 746, 746 (N.D. Cal. 1997). The plaintiffs' RICO cause of action failed to meet Rule 9(b)'s heightened pleading standard. Most of the alleged predicate acts were general statements about actions committed by the defendants that failed to identify the "who, what, when, where and how" of the misconduct charged. Likewise, several predicate acts alleged viola-tions of federal criminal statutes but did not specify who committed the violation, and when and where it occurred. These problems were exacerbated because the plaintiffs lump together the defendants without identifying the particular acts of omissions each commit-ted. The district court and the defendants were entitled to a coherent presentation of the plaintiffs' theory. Having afforded the plain-tiffs several opportunities to correct the deficiencies, the district court did not commit reversible error in holding that the complaint did not satisfy Rule 9(b)'s heightened pleading standard. Finally, the district court did not abuse its discretion in refusing the plaintiffs a third opportunity to amend. It had given the plaintiffs two opportunities to amend their complaint to comply with Rule 9(b). In its May 23, 2005 order, the district court stated it had "serious reservations" about giving the plaintiffs another opportunity to amend given the "unfocused character" of the first two complaints and expressly warned the plaintiffs that "no further amendment will be permitted except for good cause shown." The district court thus did not abuse its discretion by denying leave to amend. Judge Noonan concurred except for the majority's holding that the complaint "sounded in fraud" and was fatally unspecific. At the heart of the complaint, he said, were allegations specific as to time, place, the statements made, and the defendants who made them. These were allegations as to the stockholders' meeting of 9/16/02 and they alleged a viable RICO claim for extortion. Noonan (dissenting in part), Thomas, and Bybee, Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/)
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