May 2008

provides summaries of decisions of the Ninth Circuit Court of Appeals, including "unpublished" decisions.
Copies of decisions, briefs, and other documents in the public record are available through Judicial Update.

April 1 - 30, 2008 Vol.XXV, No. 4

PUBLISHABLE OPINIONS

1) TAXATION: USA v. Wealth and Tax Advisory Services, 06-55915 (9th Cir. May 15, 2008). The government appealed a district court order denying its petition to enforce a summons issued by the IRS. The USCA reversed. It held that a 29-page "draft opinion letter" sent by the taxpayers' accountants to the taxpayers' tax lawyers, containing extensive legal authority and analysis of a complicated tax transaction, constituted a "memorandum." Thus, although characterized as a "draft," it was subject to disclosure pursuant to the taxpayer's agreement to provide the IRS "all opinions and memoranda that provide a legal analysis" of the transaction. Hall, T.G. Nelson, and Silverman, Circuit Judges. Per Curiam. E. O'Connor of Washington, DC, for the plaintiff-appellant; D. Jacobs of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) ANTITRUST: Gerlinger v. Amazon.com, Inc., 05-17329 (9th Cir. May 27, 2008). Gerlinger purchases books and other items online. He filed this antitrust action to challenge a marketing agreement between Amazon.com, an online bookseller, and Borders, a brick-and-mortar bookseller. He appealed the district court's dismissal for lack of standing. The USCA agreed that Gerlinger lacked standing because he did not show that he ever purchased an item for a higher price than he would have paid had there been no marketing agreement. He failed to show he suffered an injury-in-fact. Schroeder (author) and Bybee, Circuit Judges, and Wu, District Judge. R. Katriel of Washington, DC, for the plaintiff-appellant; R. Steer of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) BANKRUPTCY: In re Straightline Investments, Inc., (9th Cir. May 8, 2008). Aalfs appealed a Bankruptcy Appellate Panel ("BAP") decision affirming a bankruptcy court's judgment under 11 USC Sec. 549(a) avoiding the transfer to Aalfs of debtor Straightline Investments' accounts receivable which had a face value of $200,600. In avoiding the transfer, the bankruptcy court ordered Aalfs to pay the debtor's trustee $163,007, the amount collected by Aalfs on the transferred accounts, and to transfer back to the trustee all uncollected accounts receivable still in Aalfs' possession. Aalfs maintained that the transfer of accounts receivable was not an avoidable transfer under Sec. 549(a) as there was no depletion or diminution of the debtor's estate. He paid the debtor $186,455 for the acounts and argued that the transfer was an outright sale of receivables in the ordinary course of business, and that the defenses of recoupment and earmarking should apply to bar recovery by the trustee. He further argued that, even if the transfer was avoidable, the bankruptcy court awarded the wrong measure of recovery to the trustee under 11 USC Sec. 550. The USCA affirmed the bankruptcy court's avoidance of the post-petition transfer to Aalfs of the debtor's accounts receivable under Sec. 549(a), and held that the bankruptcy court's finding that the transaction was a disguised loan in contravention of its earlier order was not clearly erroneous. It also upheld the bankruptcy court's decision that the transfers of accounts were not conducted in the ordinary course of the debtor's business under 11 USC Sec. 363(c). In addition, the bankruptcy court did not err in rejecting Aalf's asserted defenses of earmarking and recoupment because Aalfs did not satisfy the requirements of earmarking, and his inequitable conduct barred him from recoupment benefits. Finally, the USCA affirmed the recovery awarded to the trustee under Sec. 550 as an appropriate equitable remedy. Thompson (author), Kleinfeld, and Thomas, Circuit Judges. P. Arnot of Eureka, CA, for the appellant; D. Chandler of Santa Rosa, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) BANKRUPTCY: In re Slatkin, (9th Cir. May 6, 2008). This case involves an adversary proceeding filed by the Trustee of the es-tate of Slatkin against investors Glenn and Barbara Johnson and Santa Barbara Capital Management (collectively the "Johnsons"). Slatkin operated a Ponzi scheme, during which time he transferred millions of dollars to the Johnsons. The trustee sought to recover this money. The bankruptcy court granted the trustee partial summary judgment, finding that Slatkin's guilty plea and plea agreement conclusively established that Slatkin operated a Ponzi scheme from 1986 to May 2001 with the actual intent to defraud his creditors. It then granted the trustee summary judgment on the remaining issues, finding that the trustee had the right to avoid and recover the transfer to the Johnsons. He was also entitled to prejudgment interest. The district court affirmed the bankruptcy court's grant of summary judgment. The USCA affirmed. Slatkin was not "engaged in the business of effecting transactions in securities" and thus was not a "stockbroker." Beezer, T.G. Nelson (author), and Silverman, Circuit Judges. R. Moneymaker of Los Angeles, CA, for the appellants; J. Reitman of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) FRAUD / BANKRUPTCY: Reusser v. Wachovia Bank, 06-35850 (9th Cir. May 8, 2008). At issue here was whether fraud in a state court home foreclosure action during the homeowners' bankruptcy could be revisited in federal court. Affirming the district court, the USCA held that the homeowners' collateral attack on the bankruptcy court's jurisdiction was unavailing and thus that Wachovia Bank did not violate 11 USC Sec. 362 in foreclosing. O'Scannlain (author), Graber, and Callahan, Circuit Judges. C. Markley of Portland, OR, for the plaintiffs; T. Johnson of Portland, OR, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/)

6) PATENT & COPYRIGHT LAW: Medtronic and Los Angeles Biomedical Research Inst. v. White, 06-16229 (9th Cir. May 15, 2008). The L.A. Biomedical Research Inst. ("Biomed") appealed the judgment resulting from a jury verdict in favor of defendant White in a contract dispute over ownership of a patent. Biomed alleged that the jury instructions contained a number of prejudicial errors. Finding that both the "agency" instruction and the corroboration instruction were given in error and that each was prejudicial, the USCA reversed and remanded for a new trial. Ferguson, Trott (author), and Thomas, Circuit Judges. L. Callison of Palo Alto, CA, for the intervenor; M. Haddad of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) UNFAIR COMPETITION: Family Home and Finance Center v. Federal Home Loan Mortgage Corp., 06-56521 (9th Cir. May 7, 2008). Family Home and Finance Center, doing business as Park Place Funding, along with Daisy Phillips and Mark Gallagher (collectively "Park Place") operated a mortgage broker business initiating loan applications from prospective borrowers and presenting the applications to lenders for processing and potential funding. National City Mortgage Company, who is not a party here, processed and funded many of Park Place's loan applications and then sold the loans to Freddie Mac. Freddie Mac, in turn, would sell Participation Certificates, or interests, in pools of loans to capital market investors, or keep the loans for its own investment. An investor notified Freddie Mac that some loans included in its mortgage pools were prepaying at a faster than normal rate, thus reducing the investor's anticipated rate of return. Freddie Mac asked National City to look into the matter. It turned out that Park Place had been encouraging borrowers to apply for initial loans at a high interest rate, and then to engage in early refinancing, which resulted in a rising curve of rapid prepayment. National City then terminated its contract with Park Place. Following its own investigation, Freddie Mac notified Park Place of its intent to put Park Place on the Exclusionary List, a list which identifies entities with whom Freddie Mac will no longer transact business. Freddie Mac had determined that Park Place's loans were not of investment quality. Park Place was thereby effectively denied access to the principal market for the loans it was writing. It sued. The district court granted summary judgment in favor of Freddie Mac on Park Place's claims for intentional interference with contract, unfair competition under California Business & Professions Code Sec. 17200, and defamation. The USCA affirmed. Park Place maintained that circumstantial evidence precluded summary judgment. That evidence tended to prove that Park Place had been a profitable mortgage broker for National City, which no one denied, and that National City may have been reluctant to terminate its contract with Park Place. It also showed that Freddie Mac may have known about Park Place's rapid refinancing strategy before National City terminated the contract. But, even if Freddie Mac was negligent in its tardy discovery that it was dealing in problematic loans, evidence of negligence is not proof of intentional interference by Freddie Mac with Park Place's contract. A necessary element of Park Place's claim is proof that Freddie Mac's action was designed to accomplish interference. The evidence proved only that Freddie Mac would no longer buy a product it could not sell to its customers. Goodwin (author), Kleinfeld, and Bybee, Circuit Judges. J. Bellenghi of Newport Beach, CA, for the plaintiffs; K. Sager of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

8) CONVERSION / NEGLIGENCE: Williston Basin Interstate Pipeline v. An Exclusive Gas Storage Leasehold and Easement, 06-35660 (9th Cir. May 9, 2008). Williston Basin Interstate Pipeline claims that it is loosing natural gas stored in its Elk Basin Storage Reservoir due to the operation of gas wells owned by Howell and Anadarko Petroleum corporations. Two of those wells are located within the lateral boundaries of Williston's storage reservoir, but are completed in geologic formations (the Morrison and Sundance formations) below the geologic formation in which Williston stores its natural gas (the Cloverly formation). Williston brought an action in federal district court, seeking damages and injunctive relief pursuant to its state law claims of conversion and negligence and also seeking to condemn the two Howell/Anadarko wells located within the lateral boundaries of the Elk Basin Storage Reservoir. The district court dismissed Williston's action. On appeal, the USCA considered Williston's contentions that the district court erred in dismissing its complaint for lack of subject matter jurisdiction or for failure to state a claim under the Natural Gas Act ("NGA"). Williston maintained that the district court erred in holding that Williston needed authorization from the Federal Energy Regulatory Commission before it could condemn the Howell/Anadarko wells, and thus erred in dismissing its condemnation claim. Williston also maintained that its state law claims raised a substantial federal question because they were aimed at enforcing a duty created by the NGA. The USCA rejected both contentions and affirmed the district court. It affirmed the district court's dismissal of Williston's condemnation claim on the ground that it failed to state a claim, and held that the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over the state law claims. The USCA also affirmed the district court's dismissal of Williston's state law claims for lack of subject matter jurisdiction. Fisher, Gould, and Ikuta (author), Circuit Judges. R. Hall of Washington, DC, and J. Metropoulos of Helena, MT, for the plaintiff; W. Mitchell of Billings, MT, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) ENVIRONMENTAL LAW / TIMBER SALES: Center for Biological Diversity v. Rey, 07-16892 (9th Cir. May 14, 2008). Sierra Forest Legacy appealed the district court's denial of a preliminary injunction against the Forest Service in a suit challenging the Service's decision to permit logging at three sites in the Sierra Forest in accordance with changes made in a 2004 forest plan. The USCA reversed and remanded, holding that the district court abused its discretion. The proposed projects were preliminarily enjoined to the extent they were inconsistent with a 2001 FEIS. Concurring, Judge Noonan noted that the decisionmakers were influenced by monetary rewards to their agency to be paid by successful bidders as part of the agency's plan. Independently of the grounds he set out in his opinion for the court, Judge Reinhardt would have held that this defect in the process vitiated the ultimate decisions. Reinhardt, Noonan (author & concurring), and Fisher, Circuit Judges. D. Edelson of Berkeley, CA, for the plaintiffs; J. Scheller of Washington, DC, for defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) ENVIRONMENTAL LAW: USA v. Carpenter, 06-15596 (9th Cir. May 20, 2008). This case arose from a dispute over the status of a road on U.S. Forest Service land in Elko County, Nevada. The case first came before the Ninth Circuit in 2002. See USA v. Carpenter, 298 F.3d 1122 (9th Cir. 2002). At that time, the intervenor environmental groups objected to the terms of a proposed set-tlement between the United States and Elko County that effectively allowed the County to repair the road. The USCA ordered the dis-trict court to grant the motion to intervene. The intervenors subsequently returned to the Ninth Circuit, claiming that the district court disregarded its mandate by not permitting them to intervene in the Quiet Title Act ("QTA") portion of the suit that was the subject of the proposed settlement and thus was the critical part of the litigation. The district court had permitted the intervenors to appear only as amici during the settlement approval proceedings; it denied their motion to participate in an evidentiary hearing. After the hearing, the court ruled against their position on the merits without, in the appellants' view, permitting them adequate participation. On the instant appeal, the intervenors wanted the USCA to reach the merits and rule in their favor. The USCA vacated in part, reversed in part, and remanded. Pursuant to its earlier mandate, it ruled that the district court had to permit the intervenors to participate as parties in advocating their position in the QTA action. It found it had to vacate the settlement approval to effectuate this result. It also ruled that the intervenors' cross-claims were reviewable under the Administrative Procedure Act. Schroeder (author), D.W. Nelson, and Reinhardt, Circuit Judges. E. Peterson of Washington, DC, for the plaintiff; K. McQueary of Elko, NV, for the defendant; M. Freeman of Denver, CO, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) ENVIRONMENTAL LAW: USA v. Manning, 06-35613 (9th Cir. May 21, 2008). In 1989, Washington's Department of Ecology ("Ecology"), the U.S. Department of Energy ("DOE"), and the U.S. Environmental Protection Act ("EPA") entered into the Hanford Federal Facility Agreement and Consent Order to bring the Hanford Nuclear Reservation ("Hanford") into compliance with federal and state environmental laws. However, according to Ecology, since signing the agreement, the DOE and its contractors have been cited numerous times for violations of federal and state hazardous and mixed waste laws and requirements. The instant appeal arose out of an effort by Washington voters "to prevent the addition of new radioactive and hazardous waste to the Hanford nuclear reservation until the cleanup of existing contamination is complete." USA v. Hoffman, 116 P.3d 999, 1001 (Wash. 2005). The USCA concluded that the statute enacted through the passage of Initiative 297, the Cleanup Priority Act, was preempted by federal law. This result was dictated by a plain reading of the Washington statute, as interpreted by the Washington Supreme Court, as well as long stand-ing principles of federal preemption. McKeown (author) and Clifton, Circuit Judges, and Schwarzer, District Judge. AAG A. Fitz of Olympia, WA, for the defendants-appellants; M. Robinson-Dorn of Seattle, WA, for the intervenors; AUSA J. Bryson of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) ENVIRONMENTAL LAW: Our Children's Earth Foundation v. EPA, 05-16214 (9th Cir. May 23, 2008). The plaintiffs filed this citizen suit under the Clean Water Act, alleging that the Environmental Protection Agency ("EPA") failed to fulfill its mandate to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards. Specifically, they claimed that the EPA violated its statutory-mandated duties by abandoning technology-based review in favor of hazard-based review; neglecting to identity new polluting sources, and failing to publish timely plans for future reviews. A technology-based approach to water quality focuses on the achievable level of pollutants reduction given current technology, whereas a hazard-based approach seeks to identify known hazards or contaminants in the water and to reduce the prevalence of those hazards. Although these approaches are not mutually exclusive, the plaintiffs maintained that the EPA jettisoned a technology-based approach altogether, thus abdicating its statutory duties. The district court granted judgment in favor of the EPA, holding that the challenged acts or omissions were discretionary. The USCA agreed that the decisions whether to revise the effluent guidelines and whether to incorporate technology-based criteria in its periodic review of the guidelines fell within the EPA's discretion. It thus affirmed. Wallace, D.W. Nelson, and McKeown (author), Circuit Judges. C. Sproul of San Francisco, CA, for the appellants; AAG S. Wooldridge of Washington, DC, for the appellees; F. Andes of Chicago, IL, and D. Burchmore of Cleveland, OH for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) ENVIRONMENTAL LAW: NRDC v. U.S. Environmental Protection Agency, 06-73217 (9th Cir. May 23, 2008). The Natural Resource Defense Council, along with the Oil and Gas Accountability Project, Amigos Bravos, and Powder River Basin Resource Council ("Powder River"), challenged aspects of the EPA's recent Clean Water Act ("CWA") storm water discharge rule. This rule, entitled "Amendment to the National Pollutant Discharge Elimination System ("NPDES") Regulations for Storm Water Discharges Associated with Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities," exempts from the permitting requirements of the CWA discharges of sediments from oil and gas construction activities that contribute to violation of water quality standards. The petitioners claimed that the rule's NPDES permitting requirements exemption for storm water discharges of sediment from oil and gas construction activities is unlawful under CWA Sec. 402(l)(2), as amended by Sec. 323 of the Energy Policy Act of 2005, and under the Administrative Procedure Act. They asked the USCA to vacate the rule. The USCA granted the petition for review, vacated the rule, and remanded the matter to the EPA for further proceedings. It found the rule and corresponding regulations to be arbitrary and capricious and an impermissible construction of Sec. 402(l)(2). Dissenting, Judge Callahan agreed with the majority that at step one of the analysis under Chevron v. NRDC, 467 US 837 (1984), the plain language of Sec. 402(l)(2), as amended, did not unambiguously indicate whether Congress intended the exemption from NPDES permitting to cover storm water discharges contaminated solely with sediment. He also agreed that the scant legislative histories of Sec. 402(l)(2) and relevant portions of the Energy Policy Act did not elucidate Congress' clear intent. Thus, as he thought the had majority correctly concluded, the dispute had to be resolved at step two of the Chevron analysis, with the question of whether the EPA provided a permissible interpretation of Sec. 402(l)(2). It is at this point that Judge Callahan departed from the majority and accorded the EPA's permissible interpretation deference. Roth (author), Thomas, and Callahan (dissenting), Circuit Judges. S. Buccino of Washington, DC, for the petitioner; D. Carson of Denver, CO, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) LABOR LAW: NLRB v. Studio Transportation Drivers, Local 399, 06-72695 (9th Cir. May 12, 2008). The National Labor Relations Board sought enforcement of its order finding that Studio Transportation Drivers, Local 339 committed an unfair labor prac-tice against Lim, who refused to join the union. The USCA enforced the NLRB's order. The NLRB found that the union violated the National Labor Relations Act by offsetting its "liquidated damages" from its nonrepresentational expenses. The NLRB relied on its decision in Teamsters Local 618, in which it held that a union could not offset from nonrepresentational expenses the interest and divi-dend income it had received, because there was no evidence in the record that the interest and dividend income was generated solely from funds (or assets purchased from funds) other than dues and fees for representational services exacted equally from all unit em-ployees, including objectors. 326 NLRB 301, 302 (1998). Similarly, the "liquidated damages" in the current case were derived from arbitration that had been funded partially by Beck objectors such as Lim. Communications Workers of America v. Beck, 487 US 735 (1988) (Employees who work under a collective bargaining agreement containing a union security clause can refuse to join the union as long as they agree to pay their fair share of representational expenses.) The NLRB thus held that the union could not offset these "liquidated damages" from its nonrepresentational expenses. The USCA found the NLRB's interpretation of the National Labor Rela-tions Act rational and consist with the Act. Pregerson (author) and Wardlaw, Circuit Judges, and Leighton, District Judge. K. Isbell of Washington, DC, for the petitioner; J. Scully of Springfield, VA, for the intervenor; R. Cantore of Los Angeles, CA, for the respon-dent. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) LABOR LAW / DUE PROCESS: Levine v. City of Alameda, 06-15480 (9th Cir. May 13, 2008). Levine filed an action under 42 USC Sec. 1983 against the City of Alameda and James Flint, individually and as City Manager. He alleged that the defendants violated his due process rights under the Fourteenth Amendment. On February 17, 2004, Flint told Levine, a property manager for the City, that he was going to be laid off. Levine wrote Flint a letter in which he requested a pre-termination hearing regarding his lay off. He believed that the lay off was a pretext and that he was being terminated because Flint disliked him. After receiving the letter, Flint gave it to the City's Human Resources Director, Willis, and told her to make sure that Levine's due process rights were respected. Willis then wrote Levine, stating that he was not entitled to a pre-termination hearing under his union contact because he was being laid off and not discharged for cause. Willis offered to meet with Levine to discuss lay off procedures and retirement benefits. Willis and Levine later had a five-minute talk according to Willis. The district court granted summary judgment in part for Levine, finding that his procedural due process rights were violated and he was entitled to a full evidentiary hearing before a neutral third-party. It also granted summary judgment in part for the defendants, finding that Flint was not personally liable based on qualified immunity and that the City was not liable as a municipality. The USCA affirmed. Levine produced no evidence that the City had a policy that amounted to deliberate indifference to his constitutional due process rights, and was the moving force behind a violation of those rights. Levine maintained that Flint's single act of terminating him represented a policy amounting to deliberate indifference to his due process rights. Because there was no evidence that Flint had any policy making authority over personnel decisions, and no evidence of a policy or custom otherwise that amounted to a deliberate indifference to his due process rights, the district court properly granted summary judgment for the City on that issue. Hug (author), Schroeder, and Clifton, Circuit Judges. R. Carnagey of Oakland, CA, for the plaintiff; L. Tripoli of Tiburon, CA, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/)

16) LABOR LAW: Adkins v. Alvarez, 06-56005 (9th Cir. May 16, 2008). This appeal arose out of a union-negotiated collective bargaining agreement governing employees of Lucky Stores' general merchandise warehouse. David Akins and other former employees at Lucky's Fullerton, California warehouse (collectively "Appellants"), all members of Teamsters Local 952 ("the Union"), appealed the district court's judgment following a partial summary judgment and jury trial, in favor of the Union, Ed Mireles, secretary-treasurer of the Union, and Harry Ashley, president of the Union (collectively, "Appellees"). Appellants alleged breach of the duty of fair representation, breach of contract, negligent misrepresentation, fraud and deceit, intentional infliction of emotional distress, violation of RICO, and conspiracy to commit RICO violations. The district court granted summary judgment in favor of the Appellees on all but one claim, finding the others preempted by federal law. The remaining claim for breach of the duty of fair representation was decided after an 8-day jury trial. Appellants maintained that the district court erred by finding preemption as to the dismissed claims and as to the claim that went to trial by granting a motion in limine to exclude evidence of a 1985 incident in which two or more of the Appellants burned their teamster jackets. The USCA affirmed. It held that the district court did not err in holding that federal law preempts Appellants' breach of contract, breach of covenant of good faith and fair dealing, misrepresentation, and intentional infliction of emotional distress claims because each implicates the duty of fair representations. It also did not error in finding that the Labor Management Relations Act Sec. 301 preempted Appellants' fraud and deceit claim, because that claim could not be maintained without the court interpreting the provision of the CBA. The Appellants' RICO claims were preempted under San Diego Building Trades Council v. Garmon, 359 US 236, 244-45 (1959), because the Appellants alleged an unfair labor practice-bargaining in bad faith-which is prohibited by the National Labor Relations Act Secs. 7 and 8. It is thus under the exclusive jurisdiction of the National Labor Relations Board. Finally, the Appellants failed to perfect their challenge to the district court's evidentiary decision to exclude evidence regarding the jacket-burning incident: while the Appellants proffered this evidence in limine, they did not attempt to introduce the evidence at trial. B. Fletcher (author), Friedman, and N.R. Smith, Circuit Judges. L. Wood of Santa Ana, CA, for the plaintiff; F. Steiner of San Diego, CA, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/)

17) PROPERTY LAW / LAND USE: North Pacifica v. City of Pacifica, 05-16069 (9th Cir. May 13, 2008). North Pacifica, LLC, a developer trying to secure approval for a condominium project, initially sued the City of Pacifica for delays in approving its application for permits, but because of a citizen's appeal to the California Coastal Commission, the development is still on hold, long after City approval. The district court awarded damages to the developer on the basis of a condition in the permit inserted by outside counsel the City hired in order to avoid litigation. The condition had the opposite result. The district court also dismissed the substantive due process claim in the original complaint, incorrectly treating it as a takings claim that required exhaustion of state court remedies, rather than as a substantive due process claim for delays that, contrary to the complaint's allegations, were not unreasonable. At issue on appeal was whether the USCA should resurrect the developer's substantive due process claim, and remand for the award of additional damages on the equal protection claim. Also at issue was the City's contention that the developer was not entitled to judgment, damages, or attorneys' fees in the first place. The USCA affirmed the district court's dismissal of the developer's substantive due process claim and reversed the order holding the City liable for an equal protection violation. It agreed with the City that the developer was not entitled to judgment on the equal protection claim because the City did not intentionally treat this developer differently from any other developer. Outside counsel inserted the now-controversial provision in the recommended permit and the developer raised no opposition at the hearing during which the City Council considered the permit application. Moreover, there could be no compensatory damages attributable to the provision in any event, because the developer still has not obtained the requisite approval from the Coastal Commission. The USCA also agreed with the City that the due process claim should not be resurrected because the developer failed to allege any irrational delay in the City's approval of its permits. The USCA thus vacated the district court's award of attorneys' fees and costs to the developer and remanded for entry of judgment in favor of the City. Wallace, Hug, and Schroeder (author), Circuit Judges. J. Pope of Hermosa Beach, CA, for the plaintiff; L. Rosenthal of Oakland, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) FAIR HOUSING ACT / STATUTE OF LIMITATIONS Garcia v. Brockway, 05-35647 (9th Cir. May 13, 2008). Sitting en banc, the USCA adopted the opinion of the three-judge panel in Garcia v. Brockway, 503 F.3d 1092 (9th Cir. 2007). At issue on this consolidated appeal was when the statute of limitations begins to run in a design-and-construction claim under the Fair Housing Act ("FHA"). As both district courts held, an aggrieved person must bring a private civil action under the FHA for a failure to properly design and construct within two years of the completion of the construction phase, which concludes on the date that the last certificate of occupancy is issued. Since neither plaintiff brought a timely suit, their cases were properly dismissed. Kozinski (author), Pregerson (dissenting), Reinhardt (dissenting), Kleinfeld, Silverman, McKeown, Wardlaw, Rawlinson, Clifton, Bea, Fisher (dissenting), and N.R. Smith, Circuit Judges. K. Nagy of Lewiston, ID, for the plaintiff; P. Oberrecht and K. Naylor of Boise, ID, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) FOIA: Forest Service Employees for Environmental Ethics v. USFS, 05-36221 (9th Cir. May 1, 2008). At issue here was whether the U.S. Forest Service must publicly release the identities of agency personnel who responded to a wildfire, the "Cramer Fire" in the Salmon-Challis National Forest in Idaho. That fire killed two Forest Service employees. Balancing the privacy interest at stake against the public interest involved, the USCA concluded that the Forest Service is not required to release the identities of the employees named in the Cramer Fire Report. It thus affirmed the district court's grant of summary judgment in favor of the Forest Service. O'Scannlain (author), Graber, and Callahan, Circuit Judges. D. Barr of Eugene, OR, for the plaintiff; S. Frank of Washington, DC, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) FOIA / PRIVACY ACT: Air Line Pilots Association v. NLRB, 05-75333 (9th Cir. May 8, 2008). The Air Line Pilots Association ("ALPA") petitioned the USCA to review a final Decision and Order of the National Labor Relations Board ("NLRB"). The NLRB petitioned for enforcement of its Order. ABX Air, Inc., the charging party before the NLRB, intervened in the appeal as a mat-ter of right. The NLRB complaint against ALPA alleged that, by attempting to enforce certain provision of a collective bargaining agreement with DHL Airways, ALPA had committed unfair labor practices. Following a hearing, the ALJ ruled that ALPA had violated the National Labor Relations Act ("NLRA) and ordered ALPA to take remedial action. ALPA filed exceptions to the ALJ's decision. The NLRB issued a Decision and Order, likewise finding that ALPA's conduct violated the NLRA and adopting the ALJ's order. The USCA granted ALPA's petition for review and denied the NLRB's cross-petition for enforcement. It concluded that under the analysis of Brotherhood of Railroad Trainmen v. Jacksonville Terminal, 394 US 369 (1969), the NLRB did not have jurisdiction over this Railway Labor Act dispute. The USCA thus granted ALPA's petition for review and set aside the NLRB's Order. In light of its holding, it denied as moot ALPA's motion for leave to file proof of changed circumstances. Roth (author), Thomas, and Callahan, Circuit Judges. D. Iglitzin of Seattle, WA, for the petitioner; D. Habenstreit of Washington, DC, for the respondent; N. Quandt of Atlanta, GA, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) FOIA / PRIVACY ACT: Lane v. Dept. of the Interior, 06-15191 (9th Cir. May 2, 2008). Lane, a former park ranger appealed the district court's summary judgment in favor of the U.S. Department of Interior in her action for violations of the Freedom of Information Act and Privacy Act. She also appealed the district court's denial of her discovery request and motion to seal records. The USCA affirmed. It agreed with the district court's approach. Lane had not provided evidence in her pleadings, depositions, answers to interrogatories, or affidavits to show willfulness or damages. She pointed only to her attorney's statements at oral argument to establish that her supervisor, Mary Hinson, had conducted a purposeful, retaliatory viewing of her file and that resulted in the adverse conse-quence of the loss of her law enforcement commission. Her complaint arguably alleged willful conduct on Hinson's part, but that alle-gation was unsupported by evidence, and neither the complaint nor declaration asserted that Hinson's viewing of her file resulted in an adverse effect. Schroeder, Hall (author), and Bybee, Circuit Judges. R. Neal of Idaho Falls, ID, for the plaintiff; AUSA J. Hair of Phoenix, AZ, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) "DON'T ASK, DON'T TELL" POLICY: Witt v. Dept. of the Air Force, 06-35644 (9th Cir. May 21, 2008). Witt, a Major in the Air Force, sued the Air Force, the Secretary of Defense, the Secretary of the Air Force, and her Air Force commander (collectively "the Air force") after she was suspended from duty as an Air Force reservist nurse on account of her sexual relationship with a civilian woman. Witt maintained that 10 USC Sec. 654, commonly know as the "Don't Ask, Don't Tell" policy ("DADT"), violates substantive due process, the Equal Protection Clause, and procedural due process. She sought to enjoin DADT's enforcement. The district court dismissed the suit under Fed. R. Civ. Proc. 12(b)(6) for failure to state a claim. The USCA affirmed the district court with regard to Witt's equal protection clause claim, but reversed and remanded with regard to her substantive due process and procedural due process claims. Taking direction from Lawrence v. Texas, 539 US 558 (2003), and Sell v. USA, 539 US 166 (2003), the USCA held that, after Lawrence, DADT had to satisfy an intermediate level of scrutiny under substantive due process, an inquiry that required facts not present on the record on appeal. It held that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important government interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. That is, a less intrusive means must be unlikely to achieve substantially the government's interest. Dissenting in part, Judge Canby Jr. found the ma-jority's opinion "very praiseworthy, as far as it goes," but he would reverse the dismissal of the equal protection claim too, as he favored the strict scrutiny test. Canby (dissenting in part), Graber, and Gould (author), Circuit Judges. J. Lobsenz of Seattle, WA, for the appellant; P. Keisler of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) AMERICANS WITH DISABILITIES ACT: Doran v. 7-Eleven, Inc., 05-56439 (9th Cir. May 2, 2008). Here, the USCA reviewed an order of the district court granting summary judgment to 7-Eleven in Doran's suit under the Americans with Disabilities Act ("ADA"). The USCA affirmed the district court's summary judgment on certain alleged ADA violations Doran encountered, or of which he had personal knowledge. However, because the district court erred in concluding that Doran did not have standing to challenge other barriers related to his disability and identified in his expert's site inspections, the USCA partially vacated the district court's order granting summary judgment, and remanded for further proceedings. Specifically, the USCA held that the district court properly granted summary judgment to 7-Eleven on the issues of whether the store's aisle width and the store's refusal to allow Doran to access the employees-only restroom violated the ADA. However, the USCA also held that Doran had standing to challenge barriers to wheelchair access in the store that he learned about through his expert's site inspections. The USCA thus vacated the portion of the district court's order granting summary judgment to 7-Eleven on those claims. Because those alleged ADA violations could give rise to a justiciable dispute between Doran and 7-Eleven, the USCA also vacated the district court's order declining supplemental jurisdiction, and remanded the case for further proceedings. Dissenting, Judge Duffy noted that the majority held that an ADA plaintiff has standing to sue for things that did not injure him. In holding that a plaintiff who has encountered or has specific knowledge of one barrier at a facility may sue for any unknown barrier on the premises related to his disability, the majority reasoned that "it makes no sense to require a disabled plaintiff to challenge, in separate cases, multiple barriers in the same facility, controlled by the same entity, all related to the plaintiff's specific disability. "We," the majority said, "do not believe that Congress would have intended such a constricted reading of the ADA which could render the benefits it promised largely illusory." Judge Duffy thought that the majority's approach compromised longstanding constitutional principles for the sake of convenience, and ignored the fact that no one-not even Congress-can preempt the Constitution and confer standing to a party for things that have not injured him. Farris and Gould (author), Circuit Judges, and Duffy (dissenting), District Judge. L. Hubbard of Chino, CA, for the plaintiff; S. Ferrell of Newport Beach, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) MEDICARE: Robert F. Kennedy Medical Center v. Leavitt, 06-56367 (9th Cir. May 19, 2008). The Robert F. Kennedy Medical Center ("RFK") appealed the district court's summary judgment, which affirmed the denial of RFK's Medicare reimbursement request by the Secretary of Health and Human Services. RFK maintained that the Secretary had to reimburse it for depreciation losses resulting from its disposal of assets through a statutory merger. The district court held that FRK was not eligible for reimbursement because the merger did not qualify as a "bona fide sale" under 42 CFR Sec. 413.134(f). The USCA agreed. The district court correctly concluded that substantial evidence supported the Secretary's determination. RFK was ineligible for reimbursement under Sec. 413.134(f) because its statutory merger did not qualify as a "bona fide sale." Because that issue was dispositive, the USCA affirmed without reaching the "related parties" issue. Goodwin (author), Pregerson, and D.W. Nelson, Circuit Judges. P. Hooper of Los Ange-les, CA, for the plaintiff-appellant; M. Raab of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) ESCHEATMENT: Taylor v. Westly, 07-16902 (9th Cir. May 12, 2008). Plaintiffs prevailed on two prior appeals in this action. On the first, the USCA held that the State of California did not have the sovereign immunity it claimed. On the second, the USCA con-cluded that the State's procedures for protecting the rights of owners of property in its escheat process were unconstitutional. The USCA required the district court to enjoin operation of California's escheat process and suggested that the district court require court approved of curative regulations. The district court then issued a preliminary injunction pursuant to the USCA's mandate. The State responded by eliminating the statutory and administrative procedures that the USCA determined to be unconstitutional. It then promul-gated an entirely new statutory procedure addressing escheatment. Concluding that the amendment remedied the constitutional defects identified by the USCA, the district court granted the Controller's motion to dissolve the injunction. Under the new law, the Controller is required to provide pre-escheat notice "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Thus, the plaintiffs' challenge, to the extent that it constituted a facial challenge to the new law, failed. Beezer, Kleinfeld, and Hawkins, Circuit Judges. Per Curiam. W. Palmer of Sacramento, CA, for the appellants; R. Johansen of San Leandro, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) FIRST AMENDMENT / SCHOOL / DRESS CODES: Jacobs v. Clark County School District, 05-16434 (9th Cir. May 12, 2008). Public schools across the country have increasingly turned to the adoption of mandatory dress policies in an effort to focus student attention and reduce conflict. Some students and parents find them offensive to their understanding of First Amendment values. In a case of first impressions for the Ninth Circuit, it addressed just such a set of challenges and concluded that public school mandatory dress policies survive constitutional scrutiny. The USCA thus affirmed the district court's grant of summary judgment in favor of the Clark County School District. Neither the School District's dress regulation nor the individual school uniform policies implemented thereunder violated the plaintiffs' free speech, free exercise, or due process rights. Judge Thomas dissented. He saw the question to be simply whether the district court and the majority properly rejected the traditional analysis of Tinker v. Des Moines Independent Community School District, 393 US 503 (1969). Because he thought the law of the Circuit mandates that Tinker be applies, he would reverse the district court and remand for a proper reexamination of the case under Tinker. Hawkins (author), Thomas (dissenting), and Clifton, Circuit Judges. A. Lichtenstein of Las Vegas, NV, for the plaintiffs-appellants; C.W. Hoffman of Las Vegas, NV, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

27) NATIVE AMERICAN LAW: Lawrence v. Dept. of Interior, 06-35448 (9th Cir. May 13, 2008). Lawrence is a member of the Standing Rock Sioux Indian Tribe and employed by the Bureau of Indian Affairs ("BIA"). He challenged the denial of increased re-tirement benefits payable to employees whose duties included firefighting. He claimed that the BIA failed to notify him of an application deadline for retroactive reclassifications of service to reflect firefighting service. As a result of this failure, Lawrence missed the deadline and the benefits were denied. He maintained that the BIA's failure to notify him constituted a violation of federal trust responsibility toward Indians, a violation of the Indian Preference Act, and employment discrimination on the basis of race. The district court granted the BIA summary judgment. The USCA affirmed. Lawrence presented evidence that the BIA's policy affect some Indian employees, but he presented no evidence that the failure to provide actual and timely notice disproportionately affected Indians more than other racial groups. Canby (author), Graber, and Gould, Circuit Judges. R. Price of Omak, WA, for the appellant; AUSA A. Biviano of Spokane, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) IMMIGRATION: Silaya v. Mukasey, 06-73822 (9th Cir. May 6, 2008). Silaya, a native and citizen of the Philippines who en-tered the U.S. as a non-immigrant visitor, overstayed her visa, and was charged with and conceded removability. She applied for asy-lum, withholding, and relief under the Convention against Torture ("CAT"). The BIA ruled against her. On appeal, because that the record compelled a finding that Silaya was subjected to past persecution on account of imputed political opinion, the USCA granted her petition with respect to the asylum claim. Members of the New People's Army, a communist revolutionary group, had kidnapped, raped, and abused Silaya because her father was a World War II veteran and supported the government of the Philippines. As she had been subjected to past persecution on account of imputed political opinion, the USCA remanded for the BIA to consider future persecution, humanitarian asylum, withholding of removal, and whether internal relocation would be reasonable. Costs were awarded to Silaya. Trott (author) and Thomas, Circuit Judges, and Hogan, District Judge. S. Tolchin of Los Angeles, CA, for the petitioner; D. Goldman of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

29) IMMIGRATION: Mendez-Mendez v. Mukasey, 06-70851 (9th Cir. May 8, 2008). Mendez, a native and citizen of Mexico, petitioned for review of the BIA's dismissal of his appeal from an Immigration Judge's order of removal. The BIA held that the IJ did not abuse her discretion in denying Mendez's motion for a continuance and that the IJ correctly ruled that Mendez did not qualify for the exception to inadmissibility found in 8 USC Sec. 1182(a)(2)(A)(ii)(II). The USCA denied the petition. Mendez had become a lawful permanent resident on December 1, 1990. On September 8, 1995, he pled guilty to one count of bribery of a public official, in violation of 18 USC Sec. 201(b)(1)(A). The sentencing guideline range was zero to six months, and Mendez was sentenced to a three-month term of imprisonment. In April 2004, Mendez was served with a Notice to Appear, charging him with inadmissibility for being an alien convicted of a crime involving moral turpitude, pursuant to 8 USC Sec. 1182(a)(2)(A)(i)(I), based on his bribery conviction. The IJ subsequently issued an oral decision denying relief and ordering Mendez removed to Mexico, in so ruling the IJ found that Mendez's conviction for bribery was a crime involving moral turpitude and not subject to the petty offense exception of Sec. 1182(a)(2)(A)(i)(II). The IJ agreed with the government that the phrase "maximum penalty possible," referred to the statutory maximum, not to the Guideline range. Because the statutory maximum was 15 years, the IJ held that Mendez was ineligible for the petty offense exception. It thus denied his motion for termination of the proceedings and ordered Mendez removed to Mexico. The BIA dismissed Mendez's appeal. The USCA denied Mendez's petition for review of the BIA decision. It found that the plain language of Sec. 1182(a)(2)(A)(i)(II) indicated that the "maximum penalty possible" referred to the statutory maximum, not the maximum Guideline sentence to which the alien was exposed. The statutory maximum term of imprisonment for Mendez's bribery offense was 15 years; thus he was ineligible for the petty offense exception. O'Scannlain, Tashima (author) and M.D. Smith, Circuit Judges. F. Cosio of Honolulu, HI, for the petitioner; N. Schwarz of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) IMMIGRATION: Mandujano-Real v. Mukasey, 06-74186 (9th Cir. May 22, 2008). At issue here is whether a conviction for identity theft under Oregon Revised Statute Sec. 154.800 is a conviction for an aggravated felony theft offense for the purposes of 8 USC Sec. 1101(a)(43(G). The USCA held that it is not. However, the petitioner remained removable for his controlled substance con-viction, a ground of removability that he did not challenge. Unlike an aggravated felony offense, the petitioner's controlled substance conviction did not render him ineligible for relief in the form of cancellation of removal. 8 USC Sec. 1229b(a)(1)-(3). The USCA thus granted the petition for review and remanded for the BIA to provide the petitioner with an opportunity to apply for cancellation of re-moval. Reinhardt (author), McKeown, and W. Fletcher, Circuit Judges. M. Adams of Seattle, WA, 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: Sandoval-Luna v. Mukasey, 04-74825 (9th Cir. May 22, 2008). The petitioner sought review of his removal proceedings, claiming that the Immigration Judge's denial of a continuance constituted an abuse of discretion, a violation of due process, and that the "qualifying relative" requirement for cancellation of removal, 8 USC Sec. 1229b(1)(D), violated his equal protection rights. The government maintained that the USCA lacked jurisdiction over the petition. The USCA found that it had jurisdiction. First, it found statutory jurisdiction over Sandoval-Luna's due process and equal protection claims under 8 USC Sec. 1252(a)(2)(D), as amended by the REAL ID Act of 2005. Second, it also has jurisdiction over Sandoval-Luna's claim that the Immigration Judge ("IJ") abused his discretion by denying the motion for a continuance. And, third, the USCA has jurisdiction to review an IJ's discretionary denial of a continuance. However, while having jurisdiction, the USCA denied Sandoval-Luna's petition. It disagreed that the IJ erred by not granting a continuance to allow for the release of regulations under the Child Status Protection Act and the adjudication of his father's labor certification application. The IJ had already granted Sandoval-Luna a six-month continuance. Even assuming that he would have eligible as a dependent under his father's labor certification application, that application had not been approved at the time of the hearing and no relief was the immediately available. Goodwin, B. Fletcher, and N.R. Smith, Circuit Judges. A. Nieto of Los Angeles, CA, for the petitioner; J. Braunstein of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) IMMIGRATION: Fakhry v. Mukasey, 04-73671 (9th Cir. May 5, 2008). Fakhry, a native and citizen of Senegal, came to America on a temporary visa in 1999. Over three years later he applied for asylum based on his membership in a Senegalese political organization. The Immigration Judge denied the application, finding that Fakhry failed to qualify for the "changed circumstances" excep-tion to the one-year bar on filing asylum claims. In the alternative, it held that he could reasonably relocate to another part of Senegal. The USCA found error in each ground for denying asylum and remanded for further proceedings. It affirmed the denial of Fakhry's application for withholding of removal and his subsequent motion to reopen. It then remanded for consideration under the correct legal standard for the changed circumstances exception to the one-year filing bar and, if the agency reaches the merits of the asylum applica-tion, for application of the presumption against the availability of relocation when the government is the persecutor. Leavy, Fisher, and Berzon (author), Circuit Judges. P. Smith of Portland, OR, for the petitioner; AUSA W. Fitzgerald of Portland, OR, for the respon-dent. (Download the full text of this decision at www.ce9.uscourts.gov/)

33) IMMIGRATION: Chen v. Mukasey, 06-71430 (9th Cir. May 2, 2008). Chen, a citizen of China, was subject to a final order of removal when she sought asylum based on a change in personal circumstances. The BIA held that her application could be presented only as part of a motion to reopen her removal proceedings. It then denied Chen's motion to reopen as it exceeded the limits on time and number for such motions. Chen's petition for review of that denial, presented a question of the proper interpretation of two arguably conflicting immigration statutes and their implementing regulations. One provides that an alien who is subject to a final order of removal is limited to one motion to reopen the removal proceedings, which motion must be filed within 90 days of the entry of a final order of removal. An exception to this time limit provides that there is no time limit for motions to reopen for asylum applications based on "changed country" conditions arising in the country of nationality or the country to which removal has been ordered. Chen did not assert a change in country conditions. Another statute provides that aliens who apply for asylum must do so within one year after arrival in the U.S., and must show that they have not previously applied for and been denied asylum. An exception to the number and time limits is provided, however, for aliens who can show changed circumstances which materially affect their eligibility for asylum. Chen alleged a change in her personal circumstances that qualify her for this exception. At issue on appeal was whether the broader exception permits Chen not only to avoid the general number and time limits of the asylum statute, but also to avoid the number and time limits of the statute governing the reopening of removal proceedings by an alien subject to a final order of removal. The BIA had answered "no" in In re C-W-L, 24 I&N Dec. 346 (BIA 2007). The USCA found the BIA's interpretation of the statutes, as they affect each other, was reasonable. It thus deferred to its interpretation: The BIA did not err in ruling that Chen's motion to reopen was barred by the number and time limitations of 8 USC Sec. 1229a(c)(7). Canby (author), Graber, and Gould, Circuit Judges. J. Bardavid of New York, NY, for the petitioner; A. Mai of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

34) FOURTH AMENDMENT: Torres v. City of Madera, 05-16762 (9th Cir. May 5, 2008). In this interlocutory appeal, the USCA faced an issue similar on its facts to that faced by the Fourth Circuit in Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007). There, a deputy sheriff, intending to deploy a Taser holstered near his firearm, instead drew and fired his service weapon, wounding a suspect fleeing arrest. Here, Madera City Police Officer Noriega made the same mistake with more tragic results: she shot and killed Everardo Torres, an arrestee sitting handcuffed in the back of a patrol car. The USCA concluded that Everardo had been seized within the meaning of the Fourth Amendment, and further concluded, as did the Fourth Circuit, that the officer's mistake was governed by Fourth Amendment reasonableness analysis. However, since the parties had not briefed the issue of whether Noriega's mistake was a reasonable one, the factual record was insufficiently developed for the USCA to make that determination. It thus remanded to the district court to determine in the first instance whether Noriega's conduct was unreasonable under Graham v. Conner, 490 US, 386, 396-97, and then too otherwise proceed with this matter. B. Fletcher, Siler, and Hawkins (author), Circuit Judges. C. Douglas of Los Angeles, CA, for the plaintiffs-appellants; B. Praet of San Ana, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) CHILD ABDUCTION: Duarte v. Bardales, 06-56808 (9th Cir. May 20, 2008). Duarte petitioned the district court for the return of her children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. But after she failed to appear for a scheduled hearing, the district court denied the petition. She timely moved to vacate the judgment under Fed. R. Civ. P. 59(e). She then appealed the district court's order denying her motion to set aside judgment. The USCA reversed and remanded, ruling that the district court abused its discretion by denying Duarte's Rule 59(e) motion. As the district court had to decide the merits of Duarte's petition on remand, the USA addressed whether equitable tolling of time requirements under the Hague Convention is available to Duarte. It held that it is available and thus that the district court could consider whether to apply equitable tolling to Duarte's Hague petition. Dissenting, Judge Bea thought that it could not be said that the district court abused its discretion in denying Duarte a hearing. Bright (author), Pregerson, and Bea (dissenting), Circuit Judges. B. Baker-Kelly of Oakland, CA, for the appellant; V. Mordey of Chula Vista, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

36) PROBABLE CAUSE: Beck v. City of Upland, 05-56901 (9th Cir. May 28, 2008). For months, Beck and the City of Upland, California, engaged in a series of disputes arising from Beck's protesting City's grant of a contract to one of his competitors. Eventually, Beck was arrested after he confronted two police officers over what he felt was unfair treatment by the City. Beck's arrest was pursuant to a warrant for two felony violations of a California statute prohibiting threats of violence made to deter police officers from performing their duties. The USCA found that the warrant had been issued without probable cause. The state courts had concluded the same and had dismissed all charges against Beck. Remaining at issue on appeal was whether Beck's suit under 42 USC Sec. 1983 for constitutional and state law causes of action against the City, its police department, and the officers, could go to trial. The district court held that it could not because (1) a San Bernardino County prosecutor authorized the filing of a criminal complaint before the police officers obtained an arrest warrant, thereby acting as an intervening cause of Beck's injuries and cutting off post-complaint liability under Sec. 1983; and (2) California state law immunizes the officers. After the district court's decision, Hartman v. Moore, 547 US 250 (2006), clarified the elements of a constitutional tort under Sec. 1983 for retaliatory arrest or prosecution. Relying in part on Hartman, the USCA held that causation issues arising from the criminal complaint do not preclude Beck's cause of action, and neither does California immunity law. The USCA thus reversed the district court's grant of summary judgment against Beck and remanded for trial. Dissenting, Judge Ikuta noted that although a First Amendment claim was lurking the Beck's complaint, neither the parties nor the district court had addressed it. Similarly, the parties had not developed arguments as to whether the record raised a material issue of retaliatory intent on the part of the police officers. Judge Ikuta thought it was inappropriate to reach this mixed issue of law and fact for the first time on appeal. Berzon (author) and Ikuta (dissenting in part), Circuit Judges, and Singleton, District Judge. T. Freeman of Los Angles, CA, of for the plaintiff; S. Wells of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

37) RIGHT TO COUNSEL: Miller v. Blacketter, 06-36090 (9th Cir. May 12, 2008). At issue on appeal was whether a defendant, whose attorney moved on the morning of trial to withdraw from the case and to postpone proceedings, was denied his right to the counsel of his choice when the trial judge denied the motions. Miller robbed several retail stores in 1998. He resisted arrest but was apprehended and confessed. He was charged with robbery, assaulting a police officer, and resisting arrest. He pled not guilty to all counts and Janise Augur, of the Lane County Public Defender's Office, was appointed to represent him. Trial was scheduled, but con-tinued for 30 days upon Augur's motion because she had not yet received a tape of Miller's confession from the State. During this pe-riod, Augur and the State attempted to negotiate a plea, but never agreed to the terms. On the evening before trial, Miller left a phone message on Augur's home answering machine stating that he was no longer comfortable with her representation and that he wanted a new lawyer. In response, Augur filed motions the next morning to withdraw as Miller's counsel and to postpone trial. Oregon Circuit Judge Velure considered the motions in open court with Miller present. Augur explained that Miller's father had told his son the day before that he would be willing to pay for private representation. In addition, she described Miller's phone call and statement that was unwilling to communicate with her further. Given these developments, she told the judge that she felt she could no longer effectively represent Miller. Finally, she speculated that a new attorney could be ready to try the case "within a month," but conceded that Miller had not yet retained a new attorney. The prosecutor objected to postponement, arguing that the State was ready to proceed and that all of its witnesses were present at the courthouse that morning. Moreover, the prosecutor characterized Augur as competent and able, nothing that she had actively attempted to negotiate a plea on Miller's behalf and had recently filed a pretrial motion to suppress Miller's confession. He also argued that the motions made that morning were simply Miller's attempt to delay trial and to pressure that State into a more favorable plea agreement. The trial judge then expressed his view that Augur was "one of the most competent crimi-nal defense attorneys in the country" and noted that one continuance had already been granted. Miller than alleged that Augur had not met with him until two days before trial, leaving him "completely in the dark" regarding the status of his case. He also argued that Augur "had no defense prepared," specifically noting that she had not arranged for any witnesses to testify on his behalf. In response to the trial judge's questions, however, Miller acknowledged that Augur had met with him on each of the two previous days and conceded that he never informed her of any witnesses who could testify on his behalf. The judge then denied Augur's motions to withdraw and to continue trial, emphasizing his reluctance to encourage criminal defendants to file last-minute motions to fire their lawyers. He also found Miller's allegations that Augur was unprepared unfounded, noting specifically that her pretrial motion was "appropriately prepared and appropriately formed." Later, in exchange for the State's promise to recommend a reduced sentence, Miller waived his right to a jury trial and agreed to a stipulated facts trial. The trial judge found Miller guilty on all counts and imposed a 210-month sentence, consistent with the State's recommendation. The USCA affirmed. Viewing the factors under the deferential standard that Sec. 2254(d)(1) requires, it concluded that the trial judge's decision to deny the motions to withdraw and to postpone trial did not exceed is discretion to balance Miller's right to counsel of choice against concerns of fairness and scheduling. O'Scannlain (author), Graber, and Callahan, Circuit Judges. AFPD K. Hellman of Portland, OR, for the petitioner; AAG C. Alexander of Salem, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) INTERLOCUTORY APPEALS / JURISDICTION: USA v. W.R. Grace, 06-30192 (9th Cir. May 15, 2008). The USCA granted en banc review of this appeal by the government to resolve two questions. First, does a U.S. Attorney's simple certification under 18 USC Sec. 3731 that the government's interlocutory appeal in a criminal case is not taken for purpose of delay and that the evidence the district court suppressed or excluded is substantial proof of a fact material in the proceeding sufficient to establish the appellate court jurisdiction to hear the interlocutory appeal. Second, if, so, did the district court have the authority to order pretrial dis-closure by the government of its final list of witnesses and evidentiary documents and to exclude witnesses and evidence not timely disclosed in compliance with such order. The USCA held that a U.S. Attorney's bare certification regarding delay and materiality in accordance with the terms of Sec. 3731 was sufficient for appellate jurisdiction to address the government's objections to the district court's orders. It thus overruled its prior decisions to the extent they are not in accord, including USA v. Loud Hawk, 628 1139 (9th Cir. 1979) (en banc), and USA v. Adrian, 978 F.2d 486 (9th Cir. 1992). The USCA also held that the district court did have the authority to issue and enforce its pretrial orders compelling the government to disclose its witness list and did not abuse its discretion in doing so. The USCA thus overruled USA v. Hicks, 103 F.3d 837 (9th Cir. 1996), to the extent that it purports to deny the district court such authority. Judge Hawkins, joined by judges Pregerson and Wardlaw, concurred in part and in the judgment. He noted that the case presented to closely related issues, both dealing with the ability of district judges to manage complex criminal trials. One such issue was whether a district judge may order the government to provide a final witness list prior to the beginning of the trial. This, Judge Hawkins thought, the majority got right in holding that the interests of trial continuity outweigh any interest in withholding those names and disclosing them only when the prosecution deems it appropriate. The other issue was whether the prosecution could delay a trial and require an interlocutory appeal on an evidentiary ruling on nothing more than its say so. Judge Hawkins thought the majority not only got this issue wrong, but created what Judge Goodwin has termed a "hazard to navigation" to the efficient and evenhanded administration of justice in the trial courts. Kozinski, Pregerson, Reinhardt, Kleinfeld, Hawkins (concurring), Graber, McKeown, Wardlaw, Fisher (author), Bea, and M.D. Smith, Circuit Judges. J. Kilbourne of Washington, DC, for the plaintiff; C. Landau of Washington, DC, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

39) MIRANDA RIGHTS: USA v. Caruto, 07-50041 (9th Cir. May 12, 2008). Caruto was convicted of one count of importation of cocaine in violation of 21 USC Secs. 952 and 960 and one count of possession of cocaine with intent to distribute in violation of 21 USC Sec. 841. She argued that her trial was fundamentally unfair because the district court allowed the prosecution to emphasize in its closing argument omissions in the short post-arrest statement she gave before invoking her Miranda rights. This closing argument, she maintained, improperly penalized her for cutting the interview short by exercising her Miranda rights. The USCA held that the prose-cutor's argument, emphasizing omissions from Caruto's post-arrest statement that exists only because she invoked her right to counsel under Miranda, constituted a violation of her right to due process. To argue that those omissions were inconsistent with her trial testi-mony penalized her for invoking her Fifth Amendment right to remain silent. The USCA thus reversed her conviction and remanded for a new trial. Graber and Berzon, Circuit Judges, and Wilken (author), District Judge. T. Scott of San Diego, CA, for the defendant-appellant; AUSA N. Hedley of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

40) SPEEDY TRIAL ACT: USA v. Pete, 06-10390 (9th Cir. May 8, 2008). Pete was convicted, following a jury trial, of second degree murder on an Indian reservation, two counts of felony murder, and conspiracy to commit murder. He was sentenced to four con-current terms of life imprisonment. He maintained on appeal that the Speedy Trial Act ("STA") was violated and the indictment against him should have been dismissed. The USCA disagreed and affirmed the district court's dismissal of Pete's motion to dismiss based on the STA. It held that the entire period from the time Pete filed his motion to recall the mandate on December 23, 2004, up until the Supreme Court denied his certiorari petition on June 20, 2005, is excluded. As a result, there was no violation of the STA. Gibson, Berzon (author), and Bea, Circuit Judges. T. Hoidal of Phoenix, AZ, for the defendant-appellant; AUSA V. Kirby of Phoenix, AZ, for the plaintiff-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. May 8, 2008). (The opinion and concurrence filed March 3, 2008 has been withdrawn and replace with this opinion and concurrence.) 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 in-dictment 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 (1972), it held that Mendoza's Sixth Amendment speedy-trial right was violated. The eight-year delay between his indictment and ar-rest was a result of government negligence. The USCA thus presumed that Mendoza suffered prejudice and that warranted a dismissal of his 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 required to set aside Mendoza's jury verdict but for the requirement of Doggett that the court presume delay prejudice, and here it appears that Mendoza suffered no prejudice. T.G. Nelson (author), Paez, and Bybee (concurring), Circuit Judges. R. Levy of Torrance, 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) DISCOVERY ABUSES: USA v. Chapman, 06-10316 (9th Cir. May 6, 2008). The district court dismissed an indictment against the defendants after the government admitted that it failed to meet its obligations to disclose some 650 pages of documents to the defense. At issue on appeal was whether the government's appeal of the dismissal was precluded by the Double Jeopardy Clause, whether the dismissal was proper, and whether the defendants were entitled to fees and costs under the Hyde Amendment. The USCA held that the Double Jeopardy Clause did not bar the government's appeal under the circumstances presented in this case, and affirmed as to both the dismissal of the indictment and the denial of fees and costs. The government failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. Moreover, it repeatedly misrep-resented to the district court that all such documents had been disclosed prior to trial. O'Scannlain, Hawkins, and Wardlaw (author), Circuit Judges. AUSA S. Myhre of Reno, NV, for the appellant; D. Chapman of Las Vegas, NV, pro se. (Download the full text of this decision at www.ce9.uscourts.gov/)

43) WIRETAP EVIDENCE: USA v. Fernandez, 06-50595 (9th Cir. May 27, 2008). At issue here was whether evidence obtained from an authorized wiretap had to be suppressed where the government continued to intercept a named target's conversations despite his adoption of a new alias. At the heart of this case were six wiretap orders obtained by DEA agents between May and October 2003 as part of an investigation of a drug trafficking conspiracy. Initially, the agents believed that the conspiracy was headed by "Enrique Mendoza," and thus the first four wiretap applications submitted to the district court named Mendoza as a target. While intercepting a conversation on August 8, 2003, the agents for the first time learned that "Enrique Mendoza" was merely an alias used by their target and that he had adopted a new alias-"Jorge Acosta." In subsequent status reports and wiretap applications, the agents gave detailed reports of intercepted calls involving Acosta but did not inform the district court that they thought Mendoza and Acosta were the same person. Rather, their subsequent wiretap applications listed both names as targets. Soon thereafter, agents intercepted conversations between Acosta and Ramon Sanchez Fernandez arranging for the transportaiton and sale of narcotics. They concluded that Fernandez was a multi-kilogram narcotics broker who negotiated and facilitated sales of narcotics for Acosta. On December 12, 2003, agents obtained a warrant to search Fernandez's residence. During the search, they seized a cache of firearms that included a .22 Marlin rifle, a 357 Magnum revolver, and Olympic Arms semi-automatic rifle, a ballistic vest, and a military protective flak vest. The government indicted Fernandez and 11 others for offenses stemming from the drug trafficking conspiracy. Fernandez move to suppress evidence seized as a result of the wiretaps. The district court denied the motion, finding that the agents immediately and in good faith recognized that "Acosta" and "Mendoza" referred to the same person, and that the officers did not intend to deceive the court by failing to report this conclusion. The district court thus held that the wiretap orders directly authorized the agents to intercept phone conversations of Acosta. Fernandez pled guilty to the charges, expressly reserving the right to appeal the district court's denial of his suppression motion as well as well as any sentencing claims. The district court sentenced Fernandez to 120 months in prison and five years supervised release. It denied his motion for safety valve relief from the mandatory minimum sentence, required by 18 USC Sec. 3553(f), on the ground that the arms seized were used in connection with the underlying drug conspiracy. The USCA affirmed. It noted that were it to hold that investigators must terminate wiretap surveillance whenever a target adopts a new alias, government investigations would be frustrated well beyond the limited scope of the minimization requirement. The USCA thus held that, where the government reasonably and in good faith concludes that the target of its wiretap has adopted a new alias, it may continue to intercept such target's conversations without violating the Sec. 2518(5) minimization requirement. Goodwin, O'Scannlain (author), and W. Fletcher, Circuit Judges. G. Haigh of Santa Ana, CA, for the defendant; AUSA C. Brunwin of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

44) IMPEACHMENT EVIDENCE: USA v. Hinkson, 05-30303 (9th Cir. May 30, 2008). Following trial in federal district court, a jury convicted Hinkson of soliciting the murder of three federal officials. The government's star witness supporting the conviction was Elven Joe Swisher. Wearing a Purple Heart lapel pin on the witness stand, Swisher testified that he had told Hinkson that he was a Ko-rean War combat veteran and that Hinkson, impressed by Swisher's military exploits, solicited him to kill the officials. The government maintained in its opening statement to the jury that Swisher was a Korean War combat veteran, and maintained throughout the trial that Hinkson's understanding of Swisher's military exploits showed that he was serious in his solicitations of Swisher. The government later conceded that Swisher neither served in combat nor earned any personal military commendations, and that he presented a forged military document in court and repeatedly lied under oath at trial abut his military record. On appeal, Hinkson argued (1) that the district court wrongly precluded him from introducing evidence showing that Swisher presented a forged document and lied on the stand, (2) that the prosecutor engaged in misconduct when he invoked Swisher's military service in his closing argument despite having substantial reason to suspect that Swisher had not been truthful, and (3) that he is entitled to a new trial based upon his discovery after trial of evidence that conclusively established Swisher's fabrications. The USCA reversed the denial of Hinkson's motion for a new trial. Because Hinkson's conviction substantially rested upon the testimony of a witness who had been conclusively shown, by the time Hinkson moved for a new trial, to be a forger and a liar, the district court abused its discretion in denying Hinkson's motion for a new trial. Dissenting, Judge McKeown thought that a witness discredited on a collateral issue-his military service-is not grounds to reverse a murder-for-hire conviction that was corroborated by independent evidence, particularly when defense counsel had full opportunity to cross-examine the witness on that subject. The issue in this case, Judge McKeown noted was whether Hinkson solicited Swisher to murder a federal judge and other public officers, not whether Swisher lied about his military service. The district court determined that information about Swisher's military service was not "new" evidence, the prosecutor had no advance knowledge of this information, the defense was not diligent in pursuing this line of attack, and the defense was afforded ample opportunity to impeach Swisher. In granting a new trial, Judge McKeown thought the majority had assumed the role of a super trial court rather than a reviewing court. Nowhere does the majority give any deference to the district court's detailed findings. Instead, in an effort to reconstruct the trial from the bottom up and in hindsight, the majority goes to great lengths to marshal the evidence, vigorously arguing the facts and the inferences from those facts, and forgetting that "under the abuse of discretion standard we cannot simply substitute our judgment for that of the district court." USA v. BNS, Inc., 858 F.2d 456, 464 (9th Cir. 1988). Hug, McKeown (dissenting), and W. Fletcher (author), Circuit Judges. D. Riordan of San Francisco, CA, for the appellant; M. Taxay of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

45) EVIDENCE / SENTENCING: USA v. Giberson, 07-10100 (9th Cir. May 30, 2008). Giberson appealed the district court's denial of his motion to suppress evidence of child pornography found on his computer, which led to his conviction for receipt of child pornography in violation of 18 USC Sec. 2252(a)(2) and possession of child pornography in violation of Sec. 2252(a)(4)(B). He also appealed his sentence, arguing that the district court erred in sentencing him for both possession and receipt of child pornography. The USCA affirmed the conviction, but vacated the sentence and remanded. Giberson was stopped by a North Las Vegas police officer because his license plate was expired. During the stop, the officer discovered that Giberson had a false Nevada identification card in the name of "Charles F. Walsh, III." After learning that he had three outstanding arrest warrants for traffic violations and no valid driver's license, the officer arrested him. Giberson told the officer that he used the fake ID to avoid paying his child support obligations. U.S. Health and Human Services Agent Kiesow began an investigation into Giberson's child support obligations and discovered that, in 1991, a Minnesota state court had ordered him to make monthly payments to his ex-wife for the support of their two children. But, as of 2003, he was $108,000 behind. Efforts to collect Giberson's child support arrearage had been unsuccessful. As a result of his investigation, Kiesow obtained a warrant to search Giberson's residence for evidence of assets, aliases, documents related to the use or attempt to use other individuals' identities, earnings, and tax records. Prior to executing the warrant Kiesow had no evidence that Giberson owned a computer or used a computer in the commission of his suspected crimes. During the search, however, agents discovered a computer, a printer and evidence of fake Nevada ID cards and transparencies depicting the Nevada State Seal, fake Social Security cards, and New York birth certificates in the name of Charles Walsh III. A warrant was then obtained to search the computer on the grounds that the agents believed that the ID materials had been printed on that computer. While searching the computer's hard drive, agents found an image of child pornography. Another warrant was obtained and more than 700 images of child pornography were found. That led to Giberson's conviction and sentence. His principal argument was that computers are able to store "massive quantities of intangible, digitally stored information," distinguishing them from ordinary storage containers. But the USCA noted that neither the quantity of information, nor the form in which it is stored, is legally relevant in the Fourth Amendment context. There is no reason why officers should be permitted to search a room full of filing cabinets or even a person's library for documents listed in a warrant but not be able to search a computer. Wallace (author) and Schroeder, Circuit Judges, and Benitez, District Judge. AFPD J. Carr of Las Vegas, NV, for the appellant; AUSA E. Olsen of Reno, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

46) JURY INSTRUCTIONS / SENTENCING: USA v. Crandall, 06-50592 (9th Cir. May 13, 2008). The defendants, Crandall and McDonnell, appealed their convictions and sentences for mail, wire and honest services fraud, in violation of 18 USC Secs. 1341, 1343, and 1346. They challenged their convictions based on the district court's refusal to give their proposed jury instructions on "intent to defraud." The also appealed their sentences, arguing that the district court erred in relying on Application Note 2(F)(v)(III) to Guideline Sec. 2B1.1 to calculate loss. McDonnell also argued that his sentence was unreasonable because of the disparity between his sentence and that of a codefendant, and that his restitution order will illegal. The USCA affirmed the convictions but vacated and re-manded the sentences. Defendants' proposed "intent to defraud" jury instruction was not supported by law and the instructions given adequately covered the lack of intent defense theory. Because the district court improperly relied on Application Note 2(F)(v)(III) to calculate the loss resulting from the fraud, the sentences were vacated. McDonnell's restitution order was vacated because it was un-clear whether the restitution amount was based on actually lost by fraud victims. The matter was remanded for resentencing and for reassessment of the amount of restitution. Farris and M.D. Smith, Circuit Judges, and Holland (author), District Judge. J. Brainin of Los Angeles, CA, for the defendants; AUSA A. Stolper of Santa Ana, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

47) SENTENCING: USA v. Tapia-Romero, 05-50121 (9th Cir. May 1, 2008). Tapia-Romero pled guilty to being an illegal alien found in the U.S. after deportation. At sentencing, he argued that the district court should consider imposing a shorter term of impris-onment due to the cost of imprisoning him. He argued that such cost was a factor the court had to consider under 18 USC Sec. 3553(a) in determining the length of his term of imprisonment. The USCA affirmed, finding that the district court correctly concluded that the cost to society of imprisoning a defendant is not a factor to be considered in determining the appropriate length of a defendant's term of imprisonment under 18 USC Secs. 3553(a) and 3553(a). Beezer, T.G. Nelson (author), and Gould, Circuit Judges. FPD J. Libby of Los Angeles, CA, for the defendant-appellant; AUSA R. Katzenstein of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

48) SENTENCING: USA v. Dallman, 05-30349 (9th Cir. May 19, 2008). Dallman appealed the 33-month sentence he received following his convictions for possession and importation of marijuana and conspiracy to possess marijuana. He and two others were ar-rested by U.S. Border Patrol Agents who observed them carrying duffle bags along an abandoned logging road just south of the U.S.-Canadian border. The bags contained 142 pounds of marijuana. Dallman maintained that his sentence was unreasonable because the district court erroneously found that he was accountable for the aggregated quantity of marijuana that the three men carried into the United States and denied his request for a downward departure based on aberrant behavior. The USCA affirmed. First, the district court did not err in viewing the conspiracy in which the three participated as a joint undertaking rather than as several separate criminal activities and, as a result, basing its calculation of Dallman's Guidelines range on the aggregate amount of marijuana that the three car-ried. The cooperative and coordinated conduct of the three rendered Dallman responsible, for sentencing purposes, for the contraband carried by all. Second, the district court, by its own language, clearly presumed that a sentence within the Guidelines range of 33 to 41 months was reasonable. Dallman did not object to this presumption. Thus to warrant relief the district court's action must constitutes plain error. In light of USA v. Carty, 2008 WL 763770 (9th Cir. 2008) (en banc), the district court plainly erred in presuming that a sentence within Guidelines range is reasonable. Dallman, however, did not show a reasonable probability that he would have received a different sentence if the district court had not concluded that a sentence within the Guidelines range is presumptively reasonable. Because he did not satisfy the third prong of the plain error test, the USCA held that the district court's presumption that a sentence within the Guidelines range was reasonable does not warrant relief under the circumstances of this case. Finally, in sentencing Dallman, the district court correctly calculated the Guideline range of 33 to 41 months and recognized that the Guidelines were advisory. It then weighed several of the Sec. 3553(a) factors: observed that because the offense required planning, Dallman's behavior was not aberrant; noting that the offense was serious; and stating that it was considering the need to avoid unwarranted disparities between Dallman's sentence and the sentences imposed on the other two men. The USCA held that the district court did not commit an error causing substantial prejudice to Dallman's rights in concluding that a 33-month sentence was warranted. Canby, Gould (author), and Bea, Circuit Judges. G. Stoa of Spokane, WA, for the defendant; AUSA J. Harrington of Spokane, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

49) SENTENCING: USA v. Vasquez-Landaver, 07-50226 (9th Cir. May 21, 2008). Vasquez-Landaver appealed his conviction and 90-month sentence for being found in the U.S. after being deported. He argued that the district court erred in not allowing him to present evidence of duress and in not giving an instruction on a duress defense, and that his within-Guidelines sentence was unreasonable and an impermissible punishment for going to trial. The USCA affirmed. As Vasquez failed to make a prima facie showing of an im-mediate threat, the district court properly precluded him from introducing evidence on a duress defense and properly declined to in-struct the jury on duress. The 90-month sentence was reasonable. The district court did not abuse its discretion in declining to give Vasquez the same 48-month sentence offered him and similarly situated defendants as a plea bargain. Nothing in the record suggests that Vasquez's sentence was imposed to punish him for exercising his constitutional right to a trial. Wardlaw, Gould, and Ikuta (author), Circuit Judges. J. Blair of San Diego, CA, for the defendant; AUSA W. Narus of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

50) SENTENCING: USA v. Marler, 07-30181 (9th Cir. May 29, 2008). The issue on appeal here was whether the fact that a defendant is on escape status at the time he commits another offense means that the escape and subsequent offense are "related" for purposes of calculating the criminal history score under Sentencing Guideline Sec. 4A1.2(a)(2), even though the two offenses are not related in any other way. The district court rejected Marler's contention that his escape offense was related to his subsequent robbery conspiracy offense and sentenced him to 57 months' imprisonment. The USCA affirmed. Marler's prior sentence for escape was not "related" to his robbery conspiracy sentence for purposes of Sec. 4A1.2. Deeming the robbery conspiracy as having occurred on the same occasion as his escape solely because escape is deemed to be a continuing offense for some purposes is inconsistent with the purpose of the Guideline to reflect accurately the seriousness of the defendant's criminal history, especially where the offenses are not related in any other way. Kleinfeld, Tashima (author), and Tallman, Circuit Judges. AFPD D. Ness of Great Falls, MT, for the defendant; AUSA L. Johnson of Billings, MT, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

51) HABEAS CORPUS: Brown v. Farwell, 07-15592 (9th Cir. May 5, 2008). At Brown's trial for sexual assault, the Warden and State DNA expert provided critical DNA testimony that was later shown to be inaccurate and misleading. The respondents conceded at least twice that, absent this faulty testimony, there was insufficient evidence to sustain Brown's conviction. In light of these extraordinary circumstances, the USCA agreed with the district court that Brown was denied due process and affirmed the district court's grant of Brown's petition for a writ of habeas corpus. Judge O'Scannlain dissented. He noted that the AEDPA permits habeas relief only if the state court determination that the evidence was sufficient to support a conviction was an "objectively unreasonable" application of Jackson v. Virginia, 443 US 307 (1979). Judge O'Scannlain was persuaded that the Nevada Supreme Court did not misapply federal law with respect to sufficiency of the evidence review. O'Scannlain (dissenting), Hawkins, and Wardlaw (author), Circuit Judges. C. Masto of Carson City, NV, for the respondent; AFPD P. Turner of Las Vegas, NV, for the petitioner.(Download the full text of this decision at www.ce9.uscourts.gov/)

52) HABEAS CORPUS: Pinholster v. Ayers, 03-99003 (9th Cir. May 2, 2008). Pinholster faced a death sentence in California for murdering Johnson and Beckett in 1982, and robbing them with intentional infliction of great bodily injury and with personal use of a knife, for robbing Croutch with a firearm, and for burglarizing Kumar's residence. The jury found two special circumstances: Pinholster was convicted of more than one murder in the same proceeding, Cal. Penal Code Sec. 190.2(a)(3) (1984), and he committed the murders during a robbery and burglary, Sec. 190.2(a)(17)(i), (vii). The jury fixed Pinholster's penalty at death, and the Los Angeles Country Superior Court so sentenced him. On automatic appeal, the California Supreme Court set aside one multiple-murder special-circumstance finding but otherwise affirmed. Pinholster sought a state writ of habeas corpus. The California Supreme Court summarily denied the petition. Pinholster then filed a federal habeas petition but the district court dismissed it when the parties stipulated that the petition contained unexhausted claims. Pinholster returned to state court to exhaust those claims. On October 1, 1997, the California Supreme Court denied Pinholster's second habeas petition. Pinholster then filed an amended federal habeas petition and requested an evidentiary hearing on several claims. The district court granted the state's motion for summary judgment on Pinholster's claims chal-lenging the constitutionality of his convictions. He then appealed the district court's denial of his request for an evidentiary hearing on his guilt phase ineffective assistance of counsel claims. The district court had also held that Pinholster's counsel inadequately investigated and deficiently presented mitigating evidence at the penalty phase and granted his habeas petition with respect to the death penalty. The state cross-appealed the district court's judgment setting aside the death sentence. The USCA affirmed the denial of an evidentiary hearing on Pinholster's claims of ineffective assistance during the guilty phase but reversed the grant of habeas relief on the death sentence. Judge Kozinski concurred in the majority's opinion in full but with a misgiving: he was not sure that Rompilla v. Beard, 545 US 374, 393 (2005), still allows the USCA to "reweigh the evidence in aggravation against the totality of available mitigating evidence, Wiggins v. Smith, 539 US 510 (2003), when counsel fails to uncover mitigating evidence. Judge Fisher dissented. He thought the case was controlled by a trio of recent Supreme Court decision holding that petitioners' Sixth Amendment rights are violated when their lawyers failed to present available mitigating evidence during the penalty phases of their capital trials. He found the majority's efforts to distinguish these cases were not persuasive. Kozinski (concurring), Fisher (dissenting), and Tallman (author), Circuit Judges. DAG K. Jorstad of Los Angeles, CA, for the respondent; FPD S. Kennedy of Los Angeles, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/)

53) HABEAS CORPUS: Woods v. Carey, 05-55302 (9th Cir. May 12, 2008). Woods, a California state prisoner, appealed the district court's denial of his 28 USC Sec. 2254 habeas corpus petition. The district court dismissed the petition, concluding that it was barred as successive under 28 USC Sec. 2244(b). The USCA vacated and remanded, with instructions that the district court construe Woods' pro se petition as a motion to amend the habeas petition that was still pending before the district court at the time this new petition was filed. Goodwin, Pregerson, and D.W. Nelson (author), Circuit Judges. K. Hermansen of San Diego, CA, for the peti-tioner; H. Bushman of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

54) SUPERVISED RELEASE: USA v. Perez, 07-10289 (9th Cir. May 16, 2008). At issue here was whether a person on supervised release has a right to cross-examine the laboratory technician who tested a urine sample containing an illegal drug, where: (1) the test report stated the sample was "dilute"-meaning that the urine sample had been combined with another liquid before or during the testing; (2) the evidence presented showed that the releasee did not have an opportunity to dilute or add a substance to the sample; and (3) the result of the urinalysis was critical to support a finding that the releasee had possessed or used illegal drugs. Because the illegal drug found in the tested sample could only have come from Perez's urine, an added substance, or another liquid, and because the valid-ity of the urinalysis was the critical issue in determining whether Perez had used cocaine, the USCA reversed the district court and held Perez had a right to cross-examine the technician. Absent such cross examination, the urinalysis should not have been admitted, and the consequent revocation of supervised release could not stand. However, the USCA cautioned that this was an unusual case with un-usual facts: it noted that it does not hold that a releasee always has a right to cross-examine the technician who tests a urine sample. This is not a case where other evidence was offered in support of revocation, such as illegal drugs discovered in the possession of the releasee. Nor is this a case where multiple urine samples tested positive. Here, the urinalysis report was the critical piece of evidence presented in support of the charge that Perez tested positive for cocaine. Although urinalysis results may often be sufficiently reliable evidence that the opportunity for cross-examination is unnecessary for due process purposes, here the report itself showed the sample had been adulterated. Gibson, Berzon, and Bea (author), Circuit Judges. AFPD M. Winter of Honolulu, HI, for the defendant; AUSA T. Hino of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

55) SUPERVISED RELEASE: USA v. Santana, 07-50190 (9th Cir. May 27, 2008). Santana appealed the district court's decision to revoke his supervised release and impose a new term of 8 months' imprisonment and 25 months of supervised release. He argued that his right to a prompt disposition of the government's petition to revoke his supervised release was violated by the government's unjus-tified delays in executing the warrant for his arrest and in bringing him before a judge for his initial appearance. He also claimed that the procedure for revocation of supervised release is unconstitutional in light of Cunningham v. California, 127 S.Ct. 856 (2007). The USCA affirmed. Revocation of supervised release is not governed by the Sixth Amendment. Cunningham interprets the Sixth Amend-ment, and thus is not relevant to revocation proceedings. Nothing in Cunningham calls into question the continuing authority of USA v. Huerta-Pimental, 445 F.3d 1220 (9th Cir.), cert. denied, 127 S.Ct. 545 (2006). Cunningham does not affect the validity of the 18 USC Sec. 3583 procedure for revocation of supervised release. Gibson (author), O'Scannlain, and Graber, Circuit Judges. Z. Lopez of San Diego, CA, for the defendant; AUSA R. Jones of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

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