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2) COPYRIGHT INFRINGEMENT: Tur v. YouTube, Inc., 07-56683 (9th Cir. Apr. 21, 2009). Tur, a journalist, sued YouTube, an online video sharing service, for copyright infringement. YouTube moved for summary judgment based on the safe-harbor provision of the Digital Millennium Copyright Act. The district court denied the motion. Hoping to join a putative New York class action against YouTube that raised similar issues, Tur moved to dismiss his case. The district court granted the motion without prejudice. YouTube appealed both the grant of the motion to dismiss and the denial of summary judgment. In a memorandum disposition filed concurrently with this opinion, the USCA affirmed the dismissal order. Because the underlying case had been dismissed, the only remaining issue was whether YouTube's appeal from the denial of summary judgment was moot. The USCA held that it was moot. YouTube had argued that, because a reversal of the district court's denial of summary judgment would have a preclusive effect on Tur's claims in the New York litigation, the case was not moot. At issue was whether, after a case on appeal has been dismissed voluntarily, the USCA may review an earlier order in the same case on the grounds that resolving it might have a collateral estoppel or a res judicata effect on pending litigation in another Jurisdiction. The USCA concluded that it cannot. Mootness is jurisdictional. If the potential of a pre-clusive effect were enough to keep a case alive, the mootness doctrine itself would largely evaporate. O'Scannlain, Rymer, and Wardlaw, Circuit Judges. Per Curiam. D. Kramer of Palo Alto, CA, for the defendant; H. Shaftel of New York, NY, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) ANTITRUST: Gilley v. Atlantic Richfield, Co., 06-56059 (9th Cir. April 3, 2009). Gilley filed this class-action lawsuit in 1998 on behalf of himself and other wholesale purchasers of CARB gasoline in the State of California. CARB gas is a cleaner-burning fuel, and since 1996 it is the only type of gas that can be sold in California. The complaint alleged that the defendants-appellants, all major oil producers, violated Sec. 1 of the Sherman Act by entering into a conspiracy to limit the supply of CARB gas so as to raise prices. The district court granted the defendants' motion to dismiss plaintiffs' antitrust claim founded on Sec. 1 of the Sherman Act, holding that (1) Aguilar v. Atlantic Richfield Co., 24 P. 3d 493 (Cal. 2001), precluded the allegations made in the operative pleading; (2) defen-dants exchange agreements can not be aggregated to establish market power and anticompetitive effect; and (3) even if the exchange agreements could be aggregated, the absence of a conspiracy to limit supply and raise prices eliminates a causal connection between the exchange agreements and anti-competitive effect. The USCA reversed and remanded. It agreed with the California Supreme Court that the Aguilar trial court only adjudicated a per se claim of horizontal price fixing. Plaintiffs' rule of reason claim alleging that the bilateral exchange agreements have anti-competitive effect was thus not precluded. In addition, Ninth Circuit and U.S. Supreme Court precedent allow for aggregation of the individual exchange agreements to demonstrate market power and anti-competitive effect in a given market. Though the district court may think the prospects of Gilley actually proving the allegations contained in the Second Amendment Complaint ("SAC") to be highly improbable-and may be correct in that assessment-that is not a valid basis for Rule 12 dismissal. Dissenting, Judge Callahan thought the majority had read Aguilar too narrowly and failed to appreciate the pleading standard set forth in Bell Atl. Corp. v. Twombly, 550 US 544 (2007). When Gilley's SAC is viewed in light of these cases, it is too broad and amorphous and fails to limit his claims to those that are not precluded by Aguilar. Moreover, because Gilley has been on notice since 2002 that his complaint must be limited to claims not precluded by Aguilar. He has had several opportunities to submit a properly circumscribed amended complaint, but failed to do so, Judge Callahan would affirm the district court's dismissal of the SAC. Trott (author), Clifton, and Callahan (dissenting), Circuit Judges. C. Kagay of San Francisco, CA, for the plaintiff-appellants; H. Hwang of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) TAXATION: Winn v. Arizona Christian School Tuition Organization, 05-15754 (9th Cir. April 21, 2009). Arizona grants income tax credits to taxpayers making contributions to nonprofits organizations that award private school scholarships. The plaintiffs, certain Arizona taxpayers, alleged that some of the organizations funded under this program restrict the availability of their scholarships to religious schools, and that the program in effect deprives parents, the program's aid recipients, of a genuine choice between selecting scholarships to private secular schools or religious ones. The USCA held that the plaintiffs' complaint, viewed in the light most favorable to the plaintiffs, sufficiently alleges that Arizona's tax-credit funded scholarship programs lacked religious neutrality and true private choice in making scholarships available to parents. Although scholarship aid is allocated partially through the individual choices of Arizona taxpayers, the overall program in practice "carries with it the imprimatur of government endorsement." Zelman v. Simmons-Harris, 536 US 639, 655 (2002). The USCA thus held, contrary to the district court, that the plaintiffs' allegations, if accepted as true, were sufficient to state a claim that Arizona's private school scholarship tax credit program, as applied, violated the establishment Clause of the U.S. Constitution. D.W. Nelson, Reinhardt, and Fisher (author), Circuit Judges. M. Cohen of Scottsdale, AZ, for the appellants; T. Goddard of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) BANKRUPTCY: In re Lehtinen, 05-17421 (9th Cir. April 28, 2009). Attorney Price appealed a decision of the Bankruptcy Appellate Panel ("BAP") affirming the bankruptcy court's order suspending him. The USCA affirmed. In late 2003, Lehtinen retained Price to represent her in a chapter 13 proceeding. Lehtinen was primarily concerned with selling her house to repay some debts. On February 19, 2004, she attended the 11 USC Sec. 341 meeting of creditors. Price did not attend this meeting and sent a contract attorney instead. Lehtinen alleged that Price failed to inform her that he would not attend. Price also referred Lehtinen to Rene Boisvert of Boulevard Equity Group to obtain a loan to fix up her house. Boisvert told her that Boulevard would lend her the funds, pay off the first deed of trust on her house, and would be repaid from the proceeds of the sale, but only if Lehtinen retained Price as a broker for the sale. Lehtinen never completed the loan documents, and sold her house through another realtor without informing Price. The trustee served notice of a June 3, 2004, confirmation hearing on Price and Lehtinen. Lehtinen called the trustee's office in April 2004, and was advised that she had until the confirmation hearing to either sell her home, refinance it, or amend her plan. She was also advised that she was required to attend the hearing. According to Lehtinen, this was the first time she had heard of the confirmation hearing because Price had failed to notify her. Price did not appear at the June 3, 2004 confirmation hearing. At the request of another client, he had agreed to appear in another court even though he knew it conflicted with the confirmation hearing. He did not request a continuance of either hearing. Lehtinen attended the confirmation hearing alone, and informed the court that her house was pending sale. The court confirmed the plan with a 100% payout to unsecured creditors. Without checking the outcome of the confirmation hearing, Price sent a letter to Lehtinen on June 4, 2004, stating that her case had been dismissed, that he could refile another case for her or help her to sell the house, and that the bank could proceed with the foreclosure on her house. Price admitted that sending the latter was a "mistake." He had assumed the case had been dismissed because he missed the hearing and because Lehtinen was behind on her payments to the trustee. On June 10, 2004, the bankruptcy court issued an order to show cause why Price should not disgorge all or part of his $1,500 fee for failure to appear at the meeting of creditors and the confirmation haring ("First OSC"). The bankruptcy court heard these issues on July 8, 2004 and entered an order resolving both absences by ordering Price to disgorge $300 of the $1,500 fee. After the hearing, but before the issuance of the order, Lehtinen sent a letter to the bankruptcy court stating: (1) that Price never informed her of the confirmation hearing date; (2) that she learned of the hearing date from the trustee; (3) that Price was a real estate broker and pressured her to list her house with his brokerage firm; and (4) that Price referred Lehtinen to his friend for a home improvement loan, who had conditioned the loan on her engaging Price as her broker. Based on Lehtinen's letter, the bankruptcy court issued a second order to show cause why Price should not be sanctioned for bad faith pursuant to the court's inherent power, and why he should not be suspended or disbarred from practice in the bankruptcy court ("Second OSC"). The bankruptcy court held the Second OSC hearing on July 24, 2004. It later ordered Price to disgorge the balance of the $1,500 fee and suspended him from practicing before the bankruptcy court for three months. On appeal, the BAP concluded that the bankruptcy court was within its authority in sanctioning Price, and afforded him due process, but vacated the suspension and remanded to the bankruptcy court for consideration of the American Bar Association Standards in disciplining Price. The USCA affirmed, concluding that because Price was accorded due process, the bankruptcy court possessed the inherent power to suspend him. D.W. Nelson (author), W. Fletcher, and Tallman, Circuit Judges. J. Price of Brentwood, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)
7) ENVIRONMENTAL LAW: The Ecology Center v. Castaneda, 07-35054 (9th Cir. April 17, 2009). WildWest Institute challenged the Forest Service's approval of timber sales and restoration projects in Montana's Kootenai National Forest, claiming violations of the National Forest Management Act ("NFMA"), the National Environmental Policy Act, and the Service's own regulations. WildWest sought declaratory and injunctive relief to prevent environmental injury. The district court granted the Service summary judgment. The USCA affirmed, holding that the Service had complied with the substantive NFMA requirements and Forest Plan. It had also taken the requisite "hard look" at environmental effects of the projects before approving them. Reavley, Tallman (author), and M.D. Smith, Circuit Judges. T. Woodbury of Missoula, MT for the appellant; J. Stahr of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) ENVIRONMENTAL LAW: White Tanks Concerned Citizens
v. Strock, (9th Cir. April 29, 2009). This dispute arose between developers
hoping to build thousands of homes in the relatively undisturbed desert near the
White Tank Mountains in Arizona, and a non-profit formed to oppose such developments.
The focus of the dispute was the adequacy of the study underlying the Army Corps
of Engineers' decision to grant a permit under the Clean Water Act ("CWA")
so that the development could fill several ephemeral washes in the project area.
The scope of the Corps' jurisdiction under the CWA has not been entirely clear
since the four-four-one decision in Rapanos v. USA, 547 US 715 (2006). There has
not been a direct challenge to the exercise of jurisdiction before the Corps in
this case, and the existence of the Corps' jurisdiction was not disputed before
the USCA. Rather, the dispute on appeal was over which of the Ninth Circuit's
prior decisions should control: Is the present case more similar to Save Our
Sonoran v. Flowers, 408 F.3d 1113 (9th Cir. 2005) ("SOS"), or to
Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d 1105
(9th Cir. 2005). SOS held that before the Corps could grant a permit to fill washes
similar to those at issue here, it must consider the entire scope of that development,
because the pattern of washes in the area made any development avoiding the washes
impossible. Wetlands considered a project that required filling natural saltwater
wetlands, but in mitigation created a lager freshwater wetland. Wetlands held
that the Corps properly confined its environmental review to the wetlands and
was not required to study the environmental effects on the upland area, princi-pally
because the development of the upland area could proceed independently of the
wetland project. The district court concluded that it should follow Wetlands because
it agreed with the analysis of the Corps that the bulk of the project could be
developed independently, without affecting the area traversed by the washes. However,
the USCA found that the washes were, in most material respects, more like those
in SOS. The washes were dispersed throughout the project area in such a way that,
as a practical matter, no large-scale development could take place without filling
them. The USCA thus held that the Crops' finding of "No Significant Impact"
was made on the basis of too narrow a scope of analysis. The USCA thus reversed
and remanded for entry of an appropriate injunction against the issuance of a
Sec. 404 permit until the Corps performs the requisite environmental analysis
in accordance with the USCA's decision. A Sec. 404 permit is a major federal action
requiring review under the National Environmental Policy Act ("NEPA");
because of the need for a Sec. 404 permit, the NEPA requires the Corps to investigate
whether the dredging and filling would significantly affect the quality of the
human environment. 42 USC Sec. 4332(2)(C). Schroeder (author), D.W. Nelson,
and Reinhardt, Circuit Judges. J. Herr of Tucson, AZ, for the appellant; M. Haag
of Washington, DC, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
10) TORTS / DEBPT COLLECTION: Avery v. First Resolution Management Corporation, 07-35726 (9th Cir. April 2, 2009). Avery, an Oregon resident at all relevant times, received an offer for a credit card from Providian National Bank in July 2001. Avery applied for and received the card and used it to make several purchases. She subsequently defaulted and made no further payments after November 2001. Providian assigned the account for collection, and First Resolution purchased the debt. On November 15, 2004, First Resolution sent Avery a notice identifying itself as the owner of the debt and indicating that the account information would be forwarded for collection to a lawyer in Avery's area if the debt was not resolved by December 6, 2004. Attorney McGavic, filed suit against Avery on behalf of First Resolution on February 9, 2006 in Oregon. On the day the suit was filed, Avery disputed the debt and requested verification. Another attorney, Finney, responded to Avery's request for verification in May 2006 and provided Avery updates on the amount of the balance in June and August. On September 13, 2006, McGavic served Avery with a notice of intent to apply for an Order of Default Judgment. On September 21, Finney moved to dismiss the underlying lawsuit without prejudice, allegedly because the attorneys had concluded it would be best to avoid protracted litigation over such a small account. The attorneys denied that the reason they decided to dismiss the lawsuit was because Avery indicated her intention to pursue a statute of limitations defense. Avery filed suit against First Resolution and the attorneys on December 19, 2006 in the U.S. District Court for Oregon. First Resolution counterclaimed seeking to collect the debt due on Avery's account. Avery then moved to dismiss the claim for lack of subject matter jurisdiction under Fed. R. Civ. Proc. 12(b)(1). The district court granted summary judgment in favor of the attorneys and denied Avery's request for attorneys' fees from First Resolution Management Corporation and First Resolution Investment Corporation. Avery maintained that the attorneys attempted to collect a time-barred debt against her in violation of the Fair Debt Collection Practices Act ("FDCPA"). She also argued that the district court's refusal to accept supplemental jurisdiction over First Resolution's counterclaim against her entitled her to attorneys' fees as a prevailing party. The district court found that the underlying debt was not timebarred and granted the attorneys' motion for summary judgment, denying Avery's cross-motion for summary judgment on the same issue. The district court also declined to exercise supplemental jurisdiction over First Resolution's counterclaim and dismissed accordingly, but did not award Avery attorneys' fees. Avery appealed. The USCA affirmed. Both parties agreed that under the terms of the agreement between Avery and Providian National Bank, New Hampshire law applied to this dispute. Because Avery was absent from New Hampshire at all relevant time, the statute of limitations on the claim against her was tolled under New Hampshire law and had not run by the time the attorneys brought suit against her in Oregon. Even if the New Hampshire tolling statute were unconstitutional, Or. Rev. Stat. Sec. 12.450 would replace New Hampshire's statute of limitations with Oregon's six-year limitations period, under which the suit was timely. The district court did not err in granting summary judgment to the attorneys on the claim that they violated the FDCPA by attempting to collect on a time-barred debt. The district court was also correct in denying Avery's claims for summary judgment on this issue. Graber, Fisher, and M.D. Smith (author), Circuit Judges. D. Gerlt of Portland, OR, for appellant; D. Jacobs of Eugene, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) NEGLIGENCE: Millenkamp v. Davisco Foods International,
Inc., 07-35299 (9th Cir. April 14, 2009). Davisco Foods ap-pealed
the district court's judgment that it breached express and implied warranties
to the Millenkamps and the district court's denial of post-trial motions that
would relieve Davisco of the judgment. The USCA held that the district court erred
in admitting evidence and giving jury instructions concerning Idaho milk permeate
labeling laws and abused its discretion in admitting Exhibits 18 and 25. These
acts unfairly prejudiced Davisco. The district court should have granted Davisco's
motion for a new trial. The USCA thus reversed the denial of Davisco's motion
for a new trial and remanded the case to the district court for proceedings consistent
with this opinion. Be-cause the district court had to conduct a new trial, the
parties' arguments concerning offsets for damages, attorneys' fees, and prejudg-ment
interest were moot, because they were predicated upon the jury's conclusions that
Davisco was liable for the Millenkamps' dam-ages. Wallace, Trott, and N.R. Smith
(author), Circuit Judges. K. White of Boise, ID, for the appellants; T.
Arkoosh of Gooding, ID, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
13) FAIR LABOR STANDARDS ACT: Solis v. Matheson,
07-35633 (9th Cir. April 20, 2009). At issue here was whether the over-time provisions
of the Fair Labor Standards Act ("FLST") apply to a retail business
located on an Indian reservation and owned by Indian tribal members, and whether
the Secretary of Labor had the authority to enter that reservation to inspect
the books of that busi-ness. A third issue was whether it was an abuse of discretion
for the district court to appoint a receiver for that business in the event the
overtime payments were not made. The USCA concluded that the overtime requirements
of the FLSA applied to the business in this case. Because the FLSA applies to
the business, the USCA concluded that the Secretary had the authority to enter
the reservation to audit the books of that business, as she would regularly do
with respect to any private business. The USCA thus affirmed the district court
on these two issues. However, the USCA also held that the district court's decision
with respect to the automatic appointment of a receiver in the event the overtime
payments were not made was premature. It thus vacated that portion of the judgment.
B. Fletcher and Rawlinson, Circuit Judges, and Ezra (author), district
judge. R. Kovacevich of Spokane, WA, for the appellants; J. Snare of Wash-ington,
DC, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
15) CONTRACTS / ARBIRATION: USA v. Park Place Assoc., 05-56235 (9th Cir. April 22, 2009). An arbitration panel in Los Angeles awarded Park Place Associates $93,612,892 against the United States, after a proceeding in which the U.S. declined to par-ticipate. The district court denied the government's motion to vacate the award and granted Park Place's motion to confirm it. The USCA found that, under the unique circumstances of this case, the district court had jurisdiction over the government's motion to va-cate. While it affirmed the district court's order denying that motion, it found that the district court had no authority to confirm the ar-bitration award and vacated its order granting Park Place's motion. The USCA remanded to the district court with instructions to dis-miss the action to confirm as barred by sovereign immunity. The USCA noted that its reversal of the district court's judgment confirming the arbitration award essentially returned Park Place to the Court of Federal Claims, the only forum in which its contract claims may plausibly be said to belong. The USCA recognized that the Federal Circuit has seemingly suggested that neither it nor the Court of Federal Claims may confirm the arbitration award. The USCA expressed no opinion on whether this decision was correct, but ac-knowledged the frustrating nature of this result for Park Place. In 1993, Park Place entered into a contract providing a right to arbitrate any claims arising thereunder. The Court of Federal Claims told Park Place that it could not arbitrate there. Now the USCA has barred Park place from its courts. However, the USCA noted that it has previously acknowledged that the concept of "make-whole relief" inherent in much of the common-law tradition does not apply in the context of actions brought against the U.S. and that a suit against the United States must start from the opposite assumption that no relief is available. Although it sympathized with Park Place's apparent jurisdictional predicament, the USCA said it could not simply waive sovereign immunity where Congress has not, and cannot exercise jurisdiction where none exists. The USCA thus affirmed the district court's denial of the United States' motion to vacate the arbitration award. Silverman, Wardlaw, and Bybee (author), Circuit Judges. P. Keisler of Washington, DC, for the petitioner; C. Buckley of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) FAIR CREDIT REPORTING ACT: Pintos v. Pacific Creditors Association, 04-17485 (9th Cir. April 30, 2009; the opinion filed Sept. 21, 2007 in this case has been withdrawn). Pintos appealed the District Court's summary adjudication of her claims under the Fair Credit Reporting Act ("FCRA"). She maintained that Pacific Creditors Association ("PCA") violated the FCRA by obtaining, without a FCRA-sanctioned purpose, a credit report on her from Experian Information Solutions ("EIS"), a credit reporting agency. She also argued that EIS violated the FCRA by furnishing the report to PCA. The district court granted the defendants summary judgment, concluding that PCA was authorized to obtain Pintos' credit report under the FCRA, which allows for the furnishing of reports in connection with a credit transaction involving the consumer and involving the collection of an account of the consumer. 15 USC Sec. 1681b(a)(3)(A). The district court determined that the transaction involved the collection of an account, relying on Hasbun v. County of Los Angeles, 323 F.3d 801 (9th Cir. 2003). The USCA reversed and remanded, finding Hasbun more limited. Because the case in-volved neither a transaction for which Pintos sought credit nor the collection of a judgment debt, the USCA held that Sec. 1681b(a)(3)(A) did not authorize PCA to obtain the credit report. It thus vacated district court's judgment and remanded for further proceedings regarding the defendants' liability. It also vacated the district court's order regarding EIS's motion to seal certain documents and remanded for consideration under the proper legal standard. Dissenting, Judge Bea noted that the majority held that because this case involved neither a transaction for which Pintos sought a loan nor the collection of a judgment debt, Sec. 1681b(a)(3)(A) did not authorize the PCA to obtain Pintos' credit report or EIS to release it. Judge Bea disagreed with the majority's finding that Pintos' decision to leave her unregistered car on a public street where she knew it might be towed did not "involve" her in a credit transaction. The towing company had no need to reduce its lien to a court judgment to establish Pintos' obligation to pay. A creditor-debtor rela-tionship is established by the operation of the lien law regardless of whether an action to collect the deficiency is commenced. Schroe-der, Clifton (author), and Bea (dissenting), Circuit Judges. A. Ogilvie of San Francisco, CA, for Pintos; D. McLoon of Los Angeles, CA, for EIS; A. Steinheimer of Sacramento, CA, for PCA. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) SECOND AMENDMENT: Nordyke v. King, 07-15763 (9th Cir. April 20, 2009). The Nordykes promote gun shows. Since 1991, they have publicized numerous shows across California, including some at the public fairgrounds in Alameda County. Before the County passed the law at issue here, the Alameda gun show routinely drew about 4,000 people. In 1999, the County Board of Supervi-sors passed an ordinance which made it a misdemeanor to bring onto or possess a firearm or ammunition on Country property. How-ever, the ordinance did not mention gun shows. Representatives of the Scottish Caledonian Games inquired about the effect of the or-dinance on games they traditionally held at the fairgrounds, including reenactments of historic battles using period firearms loaded with blank ammunition. After that inquiry, the County amended its ordinance so that it no longer applied to "the possession of a firearm by an authorized participant in a motion picture, television, video, dance, or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use." This exception allows members of the Scottish Caledonian Games to reenact battles if they secure their weapons, but it is unclear whether the County created the exception just for them. By the time the exception was written into the ordinance, the Nordykes and several patrons of and exhibitors at gun shows (collectively, "the Nordykes") had already sued the County and its Supervisors under 42 USC Sec. 1983 on constitutional grounds. The amendment did not mollify them, and their lawsuit has now wended though procedural twists and turns for nearly a decade. Initially, the Nordykes argued that the ordi-nance violated their First Amendment right to free speech and was preempted by state law. However, the California Supreme Court answered that the ordinance was not preempted. The USCA earlier addressed the Nordykes' challenges under the First and Second Amendments. Construing the First Amendment challenge as a facial one, the USCA rejected their argument that the statute burdened the expressive conduct of gun possession. The USCA also ruled that its decision in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), pre-cluded the Nordykes' Second Amendment claims. Hickman held that individuals lack standing to raise a Second Amendment challenge to a law regulating firearms, as the right to keep and bear arms is a collective one. The USCA thus remanded. On remand, the Nor-dykes moved for leave to file a Second Amended Complaint ("SAC") in order to rephrase their First Amendment challenge, arguing that, as applied to their use of the fairgrounds, the ordinance violated their freedom of expression by making gun shows impossible. In addition, their SAC contained as-applied versions of other constitutional challenges, including an equal protection claim. The district court allowed the Nordykes to add those claims, but denied their motion to add a Second Amendment cause of action. It rested that denial on Hickman. After two motions to dismiss under FRCP 12(b)(6), only the First Amendment "expressive conduct" and the "equal protection" claims survived. The district court granted the County's motion for summary judgment on these two claims. The Nordykes appealed, arguing that Dist. of Columbia v. Heller, 128 S.Ct. 2783 (2008), abrogated Ninth Circuit case law and compelled the district court to grant their motion for leave to amend their complaint. The USCA agreed that Heller abrogated Hickman. However, the Nordykes still faced the obstacle of incorporation. The USCA thus had to decide whether the Second Amendment applies to the states through the Fourteenth, a question Heller explicitly left open. In addition, even if the Fourteenth Amendment incorporates the Second against the states, the USCA had to determine whether it actually invalidates the ordinance at issue. First, Heller instructs that the Second Amendment's guarantee revolves around armed self-defense. If laws make such self-defense impossible in the most crucial place-the home-by rendering arms useless, then they violate the Constitution. But the ordinance herein at issue was not of that ilk. It did not directly impede the efficacy of self-defense or limit self-defense in the home. Rather, it regulates gun possession in public places that are Country property. The USCA thus affirmed the district court's grant of summary judgment to the County on the Nor-dykes' First Amendment and equal protection claims, and, although it noted that the Second Amendment is indeed incorporated against the states, it affirmed the district court's refusal to grant the Nordykes leave to amend their complaint to add a Second Amendment claim. The Nordykes were not situated similarly to the Scottish Games in that they could not meet the safety requirements of the exception. The district court correctly awarded the County summary judgment on this claim. Judge Gould concurred but wrote separately to elaborate on his view of the policies underlying the selective incorporation decision. First, as Judge O'Scannlain explained, the rights secured by the Second Amendment are "deeply rooted in this Nation's history and tradition," and "necessary to the Anglo-American regime of ordered liberty." The salient policies underlying the protections of the right to bear arms are of inestimable importance. The right to bear arms is a bulwark against external invasion. We thus should not, Judge Gould said, be overconfident that oceans on our east and west coasts alone can preserve security. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists would make headway in an attack on any community before more professional forces arrive. Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny and this possibility should be guarded against with individual diligence. Third, while the Second Amendment stands as a protection against both external threat and internal tyranny, the recognition of the individual's right in the Second Amendment, and its incorporation by the Due Process Clause against the states, is not inconsistent with the reasonable regulation of weaponry. Not all weapons are "arms" within the meaning of the Second Amendment. For example, no one could sensibly argue that the Second Amendment gives them a right to have nuclear or chemical weapons in their home for self-defense. Alarcon, O'Scannlain (author), and Gould (concurring), Circuit Judges. D. Kilmer of San Jose, CA, for the appellants; T.P. Pierce of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) STANDING / SACTIONS: Wilson v. Kayo Oil, Co., 07-56765 (9th Cir. April 24, 2009). Wilson appealed the district court dismissal of his suit against Kayo Oil for lack of standing, and its entry of monetary sanctions against him and his counsel. The USCA reversed. The district court ruled that Wilson and his counsel committed nine sanctionable acts. With respect to seven of them, Wilson was not given sufficient, particularized, advance notice of exactly what conduct was alleged to be sanctionable. In re DeVille, 361 F.3d 539, 549 (9th Cir. 2004). However, the district court's order to show cause did not notify Wilson and his counsel that they needed to show that they did not file this case in bad faith or for oppressive reasons. Both of these allegedly sanctionable acts relied on the same lynchpin: that Wilson filed his suit knowing that he did not have standing. But, the district court's standing decision was contrary to the USCA decision in Doran v. 7-Eleven, 524 F.3d 1034, 1041 (9th Cir. 2008). Silverman and Callahan, Circuit Judges, and Mills, District Judges. Per Curiam. L. Hubbard of Chico, CA, for the appellant; S. Erb of San Diego, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) CIVIL RIGHTS: Robinson v. York, 07-56312 (9th Cir. April 27, 2009). Robinson, a sergeant with the Los Angeles County Office of Public Safety ("OPS"), filed a civil rights complaint against the County of Los Angeles and several OPS officers ("defen-dants"). He alleged that he was denied promotion in violation of his First and Fourteenth Amendment rights after he reported miscon-duct within his department. The defendants appealed the denial of qualified immunity. The USCA affirmed. Although the USCA has sometimes found a police department's interests in discipline and esprit de corps to outweigh First Amendment interests, genuine fac-tual disputes here-including the extend of potential workplace disruption and whether the justifications defendants assert for their actions were pretextual-precluded such a finding at this stage of the litigation. Given the evidence that the defendants may have been more concerned with the nature and frequency of Robinson's reports of conduct than his adherence to the formal chain of command, a fact-finder could conclude that their application of the chain of command policy was pretextual and not based on their interest in avoiding workplace disruption. If a factfinder did so conclude, then Robinson's speech interests would outweigh the defendants' interests under Pickering v. Bd. of Educ., 391 US 563 (1968). Where, as here, the Pickering test must be applied and "there are underlying factual issues regarding the extent of office disruption," it is proper to deny a motion for summary judgment. Although the defendants were free to argue at trial that they would have taken the same adverse employment actions against Robinson regardless of his speech, Robinson adequately alleged that the "chain of command" assertion was a pretext and the adverse actions against him occurred because of the content of his protected speech, not the manner in which he filed his complaints. This factual dispute could not be resolved on summary judgment. Cudahy, Pregerson, and Hawkins (author), Circuit Judges. J. Choi of Glendale, CA, for the appellants; S. Bansal of Upland, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) IMMIGRATION: Kaur v. Holder, 06-71048 (9th Cir. April 1, 2009). Cheema and his wife Kaur appealed from a decision of the Board of Immigration Appeals ("BIA") denying Cheema asylum and withholding of deportation and denying Kaur asylum. The USCA dismissed Cheema's appeal as moot and reversed the BIA's denial of asylum for Kaur and remanded for further proceedings. Kaur found herself in a fundamentally unfair posture on her second trip to the BIA. The BIA relied on classified evidence without giving her the barest summary notice required, and also overrode the Immigration Judge's ("IJ") affirmative credibility finding by sanctioning the IJ's passing, unspecified reference to "lack of candor." These errors, the USCA found, went to the heart of the asylum ruling and re-quired a remand to the BIA. Judge Noonan concurred in the opinion and judgment with one reservation: The use of secret "evidence" is itself a denial of a hearing. If no hearing, then no process. Judge Noonan would not want to leave the impression that a summary of secret evidence would have provided due process. Judge Rawlinson concurred in the conclusion that Cheema's petition for review had been mooted by the deportation. He agreed with Judge McKeown that the USCA should refrain from opining about Cheema's fate in India or the positions taken by the U.S. government. Although Judge Rawlinson also concurred that Kaur's petition for review had to be granted and the matter remanded, he did so reluctantly. He thought that unclassified evidence in this case provided adequate support for the denial of relief to Kaur. Nevertheless, in light of the BIA's insistence on incorporating classified information into its decision, remand was appropriate as a matter of fundamental fairness. Noonan (concurring), McKeown (author), and Rawlinson (concurring), Circuit Judges. R. Jobe San Francisco, CA, for the petitioners; C. Fuller of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) IMMIGRATION: Al Mutarreb v. Holder, 04-75676 (9th Cir. April 6, 2009). Al Mutarreb, a native and citizen of Yemen, had been ordered removed in absentia. He moved to reopen his proceedings. The IJ denied the motion, and the BIA affirmed. Al Mutarreb petitioned for review, maintaining that he had not received notice of the pendency of proceedings in accordance with 8 USC Sec. 1229(a)(1)(F), and argued that his motion to reopen should have been granted for that reason. He also submitted that the agency's finding of removability was either procedurally improper, or unsupported by substantial evidence. The USCA reached only the latter contention. Because the record contained no evidence relevant to the charge of removability, the USCA granted the petition for review and remanded to the BIA with instructions to vacate the removal order. The USCA noted that its decision to vacate the removal order does not prevent the Service from issuing a new Notice to Appear ("NTA"). But because the first NTA was the subject of a final judgment on the merits, res judicata bars the Service from initiating a second deportation case on the basis of a charge that it could have brought in the first case, but did not. The USCA instructed that should the Service decide to initiate new proceedings against Al Mutarreb based on facts that have arisen or come to light after his original in absentia proceeding took place, it will again bear the burden of proving his removability under 8 USC Sec. 1229a(c)(3), and if it prevails, Al Mutarreb will have the opportunity to renew his asylum application or make any other claims for relief to which he may be entitled. Tashima, Berzon (author), and N.R. Smith, Circuit Judges. R. Jobe San Francisco, CA, for the petitioner; G. Katsas of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) IMMIGRATION: Alcala v. Holder, 04-70983 (9th Cir. April 28, 2009). At issue here was whether the USCA has power to act where the government voluntarily dismisses immigration removal proceedings before obtaining a final order of removal. Alcala sought review of two Board of Immigration Appeals ("BIA") orders: (1) an order affirming an Immigration Judge's ("IJ") grant of the gov-ernment's motion to dismiss removal proceedings so the government could reinstate a prior, expedited order of removal against Alcala; and (2) an order denying Alcala's motion to reopen the dismissed proceedings, which motion was based on ineffective assistance of counsel. Because the authorizing statute limited the USCA jurisdiction to review of final orders of removal-and no such order existed here-the USCA dismissed Alcala's petition for review. It could not reach the merits of his claim that the IJ abused his discretion when he terminated proceedings without adjudicating Alcala's applications for relief and his claim of ineffective assistance of counsel. Judge Wardlaw dissented from the majority's holding that the USCA lacked jurisdiction to consider Alcala's motion to reopen. Though the majority would end its inquiry at the purported lack of a final order of removal, Judge Wardlaw thought it could not escape two facts: First, a final order of removal exists and will be reinstated upon termination of this appeal. Second, with effective assistance of counsel, Alcala may have succeeded in adjusting his status before the IJ. By ignoring these facts, the majority ensured that Alcala's potentially meritorious ineffective assistance of counsel claim could never be heard due to a technical delay that was entirely within the government's control and of its own creation. Wardlaw (dissenting in part), Bea (author), and N.R. Smith, Circuit Judges. V. Nieblas of City of Industry, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) IMMIGRATION: Ramos-Lopez v. Holder, 06-72402 (9th Cir. April 16, 2009). The petitioner, a Honduran national, sought review of a BIA order denying asylum and withholding of removal. An Immigration Judge credited as true petitioner's testimony that, when he refused recruitment into the Mara Salvatrucha ("MS-13"), a Central American gang, MS-13 members threatened to kill him. The dispositive issue was whether the petitioner suffered or had a well-founded fear of persecution on account of a particular social group: young Honduran men who have been recruited by the MS-13, but who refused to join-or political opinion. The BIA recently determined that young Salvadoran men who have resisted recruitment into the MS-13 do not constitute a particular social group and that the refusal to join the MS-13 does not amount to a political opinion. In re S-E-G-, 24 I&N Dec. 579, 583, 589 (BIA 2008). Applying the principles of deference established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the USCA deferred to the BIA's decision with respect to social group and denied the petition. The petitioner had not shown that he suffered or had a well-founded fear of persecution by the MS-13 on account of one of the five protected grounds. Tashima (author), McKeown, and W. Fletcher, Circuit Judges. J. Bildhauer of Seattle, WA, for the petitioners; AUSA S. Harrison of Seattle, WA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) IMMIGRATION: USA v. Santacruz, 07-55470 (9th Cir. April 20, 2009). Santacruz is a native of Mexico and a naturalized U.S. citizen. The district court granted partial summary judgment to the government, which had sought to revoke Santacruz's naturalization because he had been convicted of a crime involving moral turpitude-possession of child pornography in the five years immediately preceding the filing of his naturalization application. U.S. Customs found 63 nude or sexually explicit images of minors on Santacruz's personal computer. He pled guilt to possession of child pornography in violation of 18 USC Sec. 2252A(a)(5)(B). At issue on appeal was a matter of first impression in the Ninth Circuit: Whether possession of child pornography is a crime involving moral turpitude. Santacruz maintained that possession of child pornography is not a crime involving moral turpitude because Sec. 2252A(a)(5)(B) does not require specific intent. However, because possession of child pornography offends conventional morality and visits continuing injury on children, it is "vile, base or depraved and … violates societal moral standards." Navarro-Lopez v. Gonzales, 503 F.3d, 1062, 1074 (9th Cir. 2007). The lack of a specific intent requirement in Sec. 2252A(a)(5)(B)-which bars "knowing" as opposed to willful possession of child pornography-does not change this result. Specific intent is not required for a crime to involve moral turpitude. The USCA thus affirmed the district court. Kleinfeld, Bea, and Ikuta, Circuit Judges. Per Curiam. R. Berke of Los Angeles, CA, for the appellant; J. Bucholtz of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)
26) EXTRAORDINARY RENDITION: Mohamed v. Jeppesen Dataplan, Inc., 08-15693 (9th Cir. April 28, 2009). The plaintiffs alleged that the CIA, together with other government agencies and officials of foreign governments, operated an extraordinary rendition program to gather intelligence by apprehending foreign nationals suspected of involvement in terrorist activities and transferring them in secret to foreign countries for detention and interrogation by U.S. or foreign officials. According to the plaintiffs, this program has allowed agents of the U.S. government, to employ interrogation methods that would otherwise have been prohibited under federal or international law. Citing publicly available evidence, the plaintiffs, all foreign nationals, maintained that they were each processed through the extraordinary rendition program. They sued Jeppesen Dataplan, a wholly owned subsidiary of the Boeing Company, under the Alien Tort Statute, 28 USC Sec. 1350. Before Jeppesen answered the complaint, the U.S. intervened, asserting that the state secrets privilege required dismissal of the entire action on the pleadings. The district court agreed and dismissed the complaint. On appeal, the plaintiffs argued that the district court misapplied the state secrets doctrine and erred in dismissing the complaint. Concluding that the subject matter of this lawsuit is not a state secret because it is not predicated on the existence of a secret agreement between the plaintiffs and the Executive Branch, and recognizing that the USCA's limited inquiry under Fed. R. Civ. Proc. 12(b)(6) precludes prospective consideration of hypothetical evidence, the USCA reversed and remanded. The USCA instructed that, on remand, the government must assert the privilege with respect to secret evidence (not classified information), and the district court must determine what evidence is privileged and whether any such evidence is indispensable either to plaintiffs' prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should the district court dismiss the complaint. Schroeder, Canby, and Hawkins (author), Circuit Judges. B. Wizner of New York, NY, for the plaintiffs; D. Collins of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) EXTRADITION: McKnight v. Torres, 08-55459 (9th Cir. April 20, 2009). In this international extradition case. McKnight ap-pealed the denial of his 28 USC Sec. 2241 habeas corpus petition, arguing that the government violated the covenant of good faith and fair dealing implied in his immunity agreement with the U.S. Attorney's Office for the Central District of California. According to McKnight, he "reasonably expected" that the government, having granted immunity from use of his incriminating admissions against him in any U.S. prosecution, would not disseminate his admissions to any foreign prosecution for prosecution abroad. Concluding that the government's actions did not violate the immunity agreement, the USCA affirmed. Future government witnesses are on notice that, if they wish to prevent federal prosecutors from sharing incriminating statements with other sovereigns (including State governments), they must reduce that expectation to writing. Conversely, prosecutors should not be surprised when such protection is sought by cooperating witnesses, or when, if such protection is refused, witnesses decline the agreement. There was no written agreement preventing disclosure of the statements here. Hawkins (author), Berzon, and Clifton, Circuit Judges. W. Genego of Santa Monica, CA, for the petitioner; AUSA D. Goodman of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) DANGEROUSNESS CERTIFICATION: USA v. Godinez-Ortiz, 08-50337 (9th Cir. April 29, 2009). The defendant appealed a district court's order which returned him to a Federal medical facility for a period not to exceed 45 days so that he could be evaluated for "dangerousness" and for a decision whether to file a dangerousness certification. The defendant argued that the district court lacked authority under 18 USC Sec. 4241 or Sec. 4246 to issue the order and that the order violated his due process rights under the Fifth Amendment. In the alternative, the defendant petitioned for a writ of mandamus seeking vacatur of the order. The USCA had jurisdiction over this appeal pursuant to the collateral order doctrine. In exercising that jurisdiction, it concluded that the district court acted within its authority when it committed the defendant to the custody of the Attorney General under Sec. 4246. The district court order was a proper result of (1) its finding that there was no substantial likelihood the defendant would obtain competence and (2) the pending disposal of all charges for reasons related to his mental condition, pursuant to Sec. 4241(d)(2). In addition, the USCA held that the district court order did not violate the defendant's Fifth Amendment rights, and that a writ of mandamus was inappropriate. Trott (au-thor), Kleinfeld, and Fisher, Circuit Judges. S. Charlick of San Diego, CA, for the defendant; AUSA W. Hall of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) FARETTA RIGHTS: USA v. Mendez-Sanchez, 08-30044 (9th Cir. April 23, 2009). At issue here was the relationship between a motion to substitute counsel and an invocation of a defendant's rights under Faretta v. California, 422 US 908 (1975). The USCA held that while a defendant may invoke his self-representation rights after a denial of a motion to substitute counsel, that invocation must be unequivocal. A request to represent oneself made while at the same time stating a preference for representation by a different lawyer and rearguing a change of counsel motion is insufficient to invoke Faretta rights. The district court did not abuse its discretion by denying the defendant's motion to substitute counsel. In addition, as the defendant's waiver of counsel under Faretta and his demand for self-representation were not unequivocal, he did not properly invoke his right to self-representation. Moreover, the district court was not required to advise the defendant that standby counsel may be made available to him if he represented himself. Finally, the district court did not err by not initiating sua sponte a competency evaluation with regard to the defendant's competency to stand trial or to refuse to enter a plea agreement. W. Fletcher, Gould (author), and Tallman, Circuit Judges. N. Talner of Seattle, WA, for the appel-lant; J. Sullivan of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) MONEY LAUNDERING / WIRE FRAUD: USA v. Lazarenko, 06-10592 (9th Cir. April 10, 2009; the opinion filed Sept. 26, 2008 in this case has been withdrawn). During his rise to Prime Minister of the Ukraine, Lazarenko engaged in multiple transactions that netted him millions of dollars. He was extremely powerful as the governor of the Dnepropetrovsk region of Ukraine and in his other public roles. He required businesses to pay him 50% of their profits in exchange for his influence to make the business successful. Conversely, he used his influence to disadvantage a business that would not pay him. He kept his money in foreign bank accounts, transferring funds from one account to another across the globe, allegedly in an effort to conceal the sources and ownership of the pro-ceeds. After the money passed through bank accounts in the U.S. from Swiss, off-shore, and other accounts, the U.S. charged him with 53 counts of conspiracy, money laundering, wire fraud, and interstate transportation of stolen property. He was convicted in federal district court on 14 counts which he challenged on appeal. The USCA affirmed his convictions on count 1 for conspiracy, and counts 2 through 8 for money laundering. It reversed his convictions on counts 25 through 29 for wire fraud, and count 31 for interstate trans-portation of stolen property. This presented an issue of evidence. "It is not necessary that the court agree with jury verdicts on all counts to determine that the jury carefully weighted the evidence." USA v. Stefan, 784 F.2d 1093, 1101 (11th Cir. 1986). Lazarenko had not explained how the evidence related to the dismissed counts was tainted by the evidence regarding transactions involving the United Energy Systems of Ukraine ("UESU"). The overall evidence of fraud was strong, although it was incumbent on the government to weave that evidence through the technical threads of multiple counts. That the government was not 100% successful did not undermine the evidence that was airtight. Lazarenko argued that the prejudicial impact of the evidence on the dismissed counts was compounded in the government's closing argument. He claims that while the government referred to the scheme in the "indictment," he was prevented from arguing that the conspiracy alleged in count 1 was not proven because the central allegations-the UESU fraud and others-were not proven. He further asserted that the government improperly referred to the UESU fraud in arguing that Lazarenko was "never engaged in legitimate business," while he was precluded from responding that funds from UESU were not unlawful. However, the USCA found that the government's references to the indictment were not improper. The jury had been specifically instructed that certain counts were no longer before them, the government stated at the beginning of its closing argument that it was not addressing those counts, and the jury never saw the indictment. With these safeguards in place, the government's mention of "the crimes charged in the indictment," or the schemes "alleged in the indictment,"-references that did not mention UESU-did not im-properly implicate the dismissed UESU counts. Finally, because it reversed 6 of the convictions, it vacated the sentence and remanded for resentencing on the remaining 8 counts. Tashima, McKeown (author), and Gould, Circuit Judges. D. Riordan of San Francisco, CA, for the appellant; AUSA H. West of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) SEARCH & SEIZURE: USA v. Brown, 08-30040 (9th Cir. April 17, 2009). Brown pled guilty to being a felon in possession of firearms and ammunition. On appeal, he contested the denial of his pretrial motion to suppress the firearms and ammunition seized during the search of the home in which he had been staying for several nights. A co-occupant of the home consented to the search. Brown had been arrested while walking down the street, not far from the home, with the female co-occupant, and was sitting in a police car in custody when her consent was obtained. Brown maintained that the consent was not voluntary, and, in addition, that her consent was ineffective as to him because officers should have sought his permission pursuant to Georgia v. Randolph, 547 US 102 (2006). The USCA rejected Brown's arguments and affirmed. The Supreme Court's mandate in Randolph had not been violated. Seeking Brown's consent would have needlessly limited the capacity of the police to respond to ostensibly legitimate opportunities in the field. Randolph, 547 US at 122. Agent Watson encountered two such opportunities on the day he arrested Brown-he encountered Brown in the company of a co-occupant, and that co-occupant later spontaneously volunteered consent to a search of the shared residence. These two legitimate opportunities allowed Watson to remove from a felon's possession both a semiautomatic pistol and a revolver. More-over, a contrary finding would open the door to turning every such case "into a test about the adequacy of the police's efforts to consult with a potential objector." Id. W. Fletcher, Gould, and Tallman (author), Circuit Judges. K. Deater of Spokane, WA, for the defen-dant-appellant; AUSA A. Ahmed of Spokane, WA, for the plaintiff-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) EVIDENCE / SENTENCING: USA v. Crowe, 08-30173 (9th Cir. April 24, 2009). Crowe challenged her conviction and sen-tence for involuntary manslaughter under 18 USC Secs. 1112(a) and 1153, arguing that the district court erred in admitting "other acts" evidence under Fed. R. Evid. 404(b); that it improperly instructed the jury on involuntary manslaughter as a lesser included offense; that the evidence adduced at trial was legally insufficient to establish her guilt of involuntary manslaughter beyond a reasonable doubt; and that her sentence of 32 months imprisonment for that offense was unreasonable under the totality of the circumstances. The USCA affirmed. The sentence imposed by the district court was given sufficient explanation by the district court to permit effective appellate review, and was substantively reasonable in light of the totality of the circumstances. Paez and Rawlinson, Circuit Judges, and Jenkins (author), District Judge. A. Gallagher of Great Falls, MT, for the defendant-appellant; AUSA E. Wolff of Billings, MT, for the plain-tiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) SENTENCING: USA v. Diaz-Argueta, 05-10224 (9th Cir. April 24, 2009). The defendant was indicted for having been an alien found in the U.S. after having been deported. He pled guilty. The Pre-Sentence Report said that he had been convicted in California in 1995 for assault with a firearm. After three sentencing hearings, the district court concluded from the state court records that the defendant had pled guilty to assault with a firearm, a felony, and that he had been convicted of that offense. The district court sentenced him at the lower end of the Guidelines to three years and ten months' imprisonment. The USCA affirmed. The district court started out properly by calculating on the record the applicable Guideline range. It then stated that it had "carefully considered the Pre-Sentence Report and the comments of counsel, and the memorandum filed on behalf of the defendant." Based on the district court' analysis, the USCA said it was satisfied that the district court properly considered the 18 USC Sec. 3553(a) factors. Noonan (author), Tashima, and W. Fletcher, Circuit Judges. C. Hahn of Reno, NV, for the defendant-appellant; AUSA R.D. Gifford of Reno, NV, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) SENTENCING: USA v. Paul, 08-30125 (9th Cir. April 2, 2009). In USA v. Paul, 239 Fed. App'x 353 (9th Cir. 2007), held that the 16-month sentence imposed on Paul for theft from a local government receiving federal funding, a violation of 18 USC Sec. 666(a)(1)(A), was unreasonable. The panel saw Paul's case as one that did not fall within the "heartland" of cases to which the Sen-tencing Guidelines are most applicable, as contemplated by Rita v. USA, 551 US 338 (2007). The USCA vacated the sentence and remanded for resentencing. It pointed to four specific mitigating factors which demonstrated that a 16-month sentence was unreasona-bly high. Paul next appealed the 15-month sentence the district court imposed upon remand. At issue on this appeal was whether dis-trict court could disregard the spirit and express instructions of an appellate court's mandate to reconsider an unreasonable sentence. The USCA again vacated Paul's sentence, and this time remanded to a different judge for resentencing. The USCA thought that the appearance of justice would be best preserved by remanding to a different judge. While the district judge on remand explained some of the reasoning behind his resentencing of Paul, he did not put out of his mind his previously expressed view that Paul's abuse of trust trumped all other mitigating factors combined, as shown by the fact that he again sentenced Paul to a prison sentence at the top of the Guidelines range. The USCA said it had little faith that the prior district court would be able to do so on remand again. It did not believe that resentencing by another judge would entail waste and duplication out of proportion to the gain achieved in preserving an appearance of fairness, as a new sentencing hearing would be required whether the case is reassigned or remains with the initial judge. Dissenting, Judge Hall thought that under the guise of the rule of mandate, the majority sought to insulate a prior unpublished disposition from intervening Supreme Court and Ninth Circuit precedent. In so doing, the majority demonstrated a complete disregard for the appropriate roles of the sentencing judge and the appellate court. As noted in USA v. Whitehead, "one theme runs though the Supreme Court's recent sentencing decisions: empowered district courts, not appellate courts … and breathed life in the authority of district court judges to engage in individualized sentencing." 532 F.3d 991, 992 (9th Cir. 2009). "Even if we are certain that we would have imposed a different sentence had we worn the district judge's robe, we can't reversed on that basis. Id. at 993. Judge Hall noted that the majority had relied on a scant one-paragraph section of an unpublished disposition, unsupported by any analysis, and decided the issue without the benefit of the decisions in Gall v. USA, 128 S.Ct. 586, 597 (2007); Kimbrough v. USA, 128 S.Ct. 558 (2007); and USA v. Carty, 520 F.3d 984 (2008). Reinhardt, Hall (dissenting), and M.D. Smith, Circuit Judges. Per Curiam. A. Gallagher of Helena, MT, for the defendant-appellant; AUSA W. Mercer of Great Falls, MT, for the plaintiff-appellee . (Download the full text of this decision at www.ce9.uscourts.gov/) 35) SENTENCING: USA v. Rollness, 07-30411 (9th Cir. April 2, 2009). Pursuant to a jury trial, Rollness, a former member of the Washington Nomads chapter of the Hells Angels, was convicted under the Violent Crime in Aid of Racketeering ("VICAR") statute, 18 USC Sec. 1959, for the murder of Michael Walsh. The district court sentenced Rollness to life imprisonment, which it determined to be the minimum sentence required under 18 USC Sec. 1959(a)(1) for murder in aid of racketeering ("VICAR murder"). On appeal, Rollness maintained that the district court was free under Sec. 1959(a)(1) to impose a minimum sentence of a fine, without any term of imprisonment, for VICAR murder. The USCA disagreed, and held that VICAR murder carries a statutory minimum sentence of life imprisonment. Concurring, Judge Rymer offered that, alternatively, the USCA could affirm because the district court found that even if it could impose just a fine, a fine would not be appropriate. She thought the sentence imposed was reasonable. B. Fletcher, Rymer (concurring), and Fisher, Circuit Judges. S. Elliott of Seattle, WA, for the defendant-appellant; AUSA H. Brunner of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) SENTENCING: USA v. Felix, 07-50173 (9th Cir. April 13, 2009). Felix appealed his sentence following a drug conviction. He objected to the district court's consideration of a second misdemeanor conviction, which disqualified him from eligibility for a safety valve sentence, and resulted in a mandatory minimum sentence. He argued that the district court improperly relied upon a computer printout in calculating his criminal history points, and wrongly placed the burden of proof on him to demonstrate that his prior conviction was diverted. He also argued that the district court violated Sheppard v. USA, 544 US 13 (2005), by engaging in fact-finding regarding a prior conviction, and, finally, he argued that because the alleged prior conviction had a disproportionate impact on his sentence, the district court should have applied a clear and convincing standard of proof. The USCA rejected the government's assertion that Felix had waived his right to appeal. By failing to object to the sentencing judge's statements that Felix could appeal his sentence, the government waived its argument that Felix waived his right to appeal. However, the USCA affirmed the sentence because none of Felix's challenges to it were persuasive. The Guidelines and Ninth Circuit case law allowed the district court to consider a computer printout. The district court correctly placed the burden of proving Felix's prior convictions on the government, and properly required that Felix show that his conviction had been expunged or diverted. The district court's use of the computer printout did not violate Sheppard because it used the printout only to determine the existence, not the nature of the conviction. Finally, the district court did not err in using the preponderance of evidence standard rather than the clear and convincing evidence standard with respect to the proof of Felix's misdemeanor conviction, because the imposition of a non-discretionary mandatory sentence does not require that latter standard. Moreover, even applying the factors set forth in USA v. Valensia, 222 F.3d 1173 (9th Cir. 2000), Felix's sentence did not present extraordinary circumstances requiring the application of the higher standard. Hall, Silverman, and Callahan (author), Circuit Judges. B. Lechman of San Diego, CA, for the appellant; B. Castetter of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) HABEAS CORPUS: Townsend v. Knowles, 07-15712 (9th Cir. April 21, 2009). Townsend, a California state prisoner, appealed the district court's order denying his 28 USC Sec. 2254 habeas corpus petition, which challenged his conviction for second degree murder. At issue on appeal was whether Townsend's petition was untimely based on an intervening change of law: Pace v. DiGuglielmo, 544 US 408 (2005). The USCA held that, although Townsend was ineligible for statutory tolling, he was entitled to equitable tolling. Because equitable tolling rendered Townsend's petition timely filed, the USCA considered the merits of his appeal and af-firmed the district court's denial of the petition. The district court had correctly ruled that the California Superior Court's rejection of Townsend's jury instructions and ineffective assistance claims was not contrary to or an unreasonable application of clearly established federal law. Hug and Bea, Circuit Judges, and Edmunds (author), District Judge. J. Balazs of Sacramento, CA, for the petitioner; AAG R.T. Marshall of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) HABEAS CORPUS: Farmer v. Baldwin, 06-35635 (9th Cir. April 29, 2009). Farmer appealed the district court's dismissal of his petition for a writ of habeas corpus under 18 USC Sec. 2254. He had been convicted in Oregon State court on one count of mur-der. The district court held that Farmer failed to exhaust his federal claims because he had not "fairly presented" them to the Oregon Supreme Court during his state post-conviction relief proceedings, and that federal habeas review was thus unavailable under the Anti-terrorism and Effective Death Penalty Act of 1996. The district court also found that Farmer's claims were untimely under Oregon's procedural rules and were procedurally defaulted for purposes of federal habeas review. It further held that Farmer failed to show the cause and prejudice necessary to cure his procedural default, and dismissed his petition. Farmer argued that he had complied with Ore-gon procedural rules and fairly presented his federal claims to the Oregon Supreme Court by filing a petition for review that referred to a copy of the brief he had filed with the Oregon Court of Appeals in his post-conviction relief proceedings. He alleged that his appellate brief substantially complied with the procedures set out in State v. Balfour, 311 Ore. 434, 814 P.2d 1069 (Or. 1991), and that Ore-gon law did not bar him from incorporating by reference his appellate brief into his petition for review. The USCA held that Farmer's argument raised an important and unresolved issue of Oregon law, and certified the following question to the Oregon Supreme Court: "Whether, under its rules or practice, the Oregon Supreme Court would deem a federal question not properly raised before it, when that question has been presented by means of an attachment to a Balfour brief filed in the Court of Appeals, and the attachment served as (but was not labeled as) Section B of said brief, and the petitioner specifically states in his petition to the Supreme Court that his reasons for seeking review are set forth in the Balfour brief." The Court answered: "Under ORAP 5.90, a petitioner may present a question of law to this court by means of an attachment to a Balfour brief filed in the Court of Appeals, when the attachment serves as Section B of said brief, and the petitioner incorporates that same brief by reference into his petition for review." The Oregon Supreme Court further stated that Farmer's petition for review complied with the appellate rules and his incorporation by reference of arguments from his appellate brief is a permissible method of raising an issue in the Oregon Supreme Court. In light of this answer, the USCA held that the district court erred in ruling that Farmer had not fairly presented his federal claims and was thus barred from seeking federal habeas review. The USCA reversed the district court's judgment and remanded with instructions that it consider Farmer's petition for a writ of habeas corpus ripe for review on the merits. Goodwin (author), Reinhardt, and M.D. Smith, Circuit Judges. AFPD L. Hay of Portland, OR, for the petitioner; AAG E. Lagesen of Salem, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) PRISONERS' RIGHTS: Marella v. Terhune, 07-55006 (9th Cir. April 14, 2009). Marella, a prisoner at the Calipatria State Prison, filed a 42 USC Sec. 1983 complaint against prison officials, alleging violations of his constitutional rights stemming from a knife attack by fellow inmates. Prison officials filed a motion for summary judgment on grounds unrelated to exhaustion of administrative remedies. The Magistrate Judge ("MJ") notified Marella that he was required to oppose the motion with evidence. While the motion for summary judgment was pending the MJ requested that prison officials supplement their motion with information regarding whether Marella had exhausted his administrative remedies. Prison officials took the position that Marella had not exhausted his administrative remedies because his first formal grievance was untimely filed. The district court subsequently dismissed the action for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"). The USCA reversed and remanded. Although Marella earlier received a proper notice under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), the question was whether a second Rand notice was required following the order requesting supplemental briefing as to whether Woodford v. Ngo, 548 US 81 (2006), required him to provide evidentiary support to rebut the prison officials' claim that he had not exhausted administrative remedies. The USCA found this to be a close question, but concluded that fair notice required more notice than Marella had received. The order for supplemental briefing injected renewed uncertainty and complexity into the summary judgment procedure. The previously issued Rand notice thus did not give Marella fair notice that he should have submitted evidence regarding exhaustion of remedies. Wallace, Farris, and McKeown, Circuit Judges. Per Curiam. J. Renz of Missoula, MT for the appellant; AAG D. Chaney of Sac-ramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) TAXATION: Seidel v. CIR, 07-72754 (9th Cir. April 28, 2009) (unpublished). Seidel appealed pro se from the Tax Court's decision that a $157,000 payment she received in a settlement agreement was not excludable from her gross income. The USCA affirmed. The Tax Court did not clearly err by finding that, under the settlement agreement, the $157,000 payment was intended to compensate for emotional distress and thus was not excludable from Siedel's gross income. See 26 USC Sec. 104(a)(2) (exempting compensation based on physical injury from taxation but not treating emotional distress as a physical injury or physical sickness); Rivera v. Baker West, Inc., 430 F.3d 1253 (9th Cir. 2005) (explaining that, in analyzing a settlement agreement, the court looks to the express language of the agreement to determine whether it specifies the purpose of the compensation and, if there is no express language, the intent of the payor). Graber, Gould, and Bea, Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) CONTRACTS: Galicia v. Country Coach Inc.,
07-56359 (9th Cir. April 29, 2009) (unpublished). The Galicias appealed
the district court's rulings granting summary judgment to Country Coach, McMahon's
RV, and Caterpillar. Because the USCA received a Notice of Bankruptcy Stay on
March 30, 2009, the appeal was stayed with regard to Country Coach. The USCA thus
resolved only issues related to McMahon and Caterpillar. It first found that the
district court did not err in granting McMahon summary judgment. The Galicias'
Song-Beverly Consumer Warranty Act claim against McMahon could proceed only if
McMahon sold the Galicias a mo-torhome in California. Cal. Civ. Code Sec. 1793.2(a)(1)(A).
A "sale" occurs under California law at the time title to the goods
passes from the seller to the buyer. Cal. Civ. Code Sec. 1791(n). California Commercial
Code Sec. 2401(2) provides the default rules for pas-sage of title: "unless
otherwise explicitly agreed, title passes to the buyer at the time and place at
which the seller completes his per-formance with reference to the physical delivery
of the goods … even though a document of title is to be delivered at a different
time or place." See also Cal. State Electronics Ass'n v. Zeos Intl., Ltd.,
41 Cal. App. 4th 1270, 1276 (Cal Ct. App. 1996) (Sec. 2401 determines where
title passes for Song-Beverly purposes). If the purchase / sales contract requires
or authorizes the seller to send the goods to the buyer, but does not require
the seller to deliver them at a specific destination, title passes to the buyer
at the time and place of shipment. Cal. Comm. Code Sec. 2401(2)(a). This type
of contract is called a "shipment contract." If the contract requires
delivery at a specific destination, however, title passes on tender at that destination.
Cal. Comm. Code Sec. 2401(2)(b). This is called a "delivery" or "destination"
contract. The parties agreed that McMahon would deliver the motorhome to the Galicias
at the Ehernberg, Arizona "Flying J"-a specific location outside California-preventing
the sale from being a California sale. Song-Beverly thus did not apply. The district
court also properly denied the Galicias' motion to amend their complaint to add
a new claim against McMahon's on the eve of trial. "A district court acts
within its discretion to deny leave to amend when amendment would be futile, when
it would cause undue prejudice to the defendant, or when it is sought in bad faith."
Chappel v. Laboratory Corp. of America, 232 F.3d 719, 726-26 (9th Cir.
2000). The district court denied the motion, finding that McMahon's would be prejudiced.
The Galicias included in their complaint neither a claim under the Magnuson-Moss
Consumer Warranty Act, 15 USC Sec. 2301, against McMahon's, nor any common-law
implied warranty claim. They attempted to add these claims eight days before trial,
after summary judgment was granted in McMahon's favor. Had the district court
allowed the amendment, McMahon's would not be able to move for summary judgment
on the new claims and would need to take new depositions and prepare and amend
their pleadings, all on the eve of trial. The USCA thus held that the district
court did not abuse its discretion, and affirmed the district court's decision
to deny the Galicias leave to amend. By failing to address the merits of the breach
of warranty claim against Caterpillar in its Opening Brief, the Galicias waived
their right to appeal the district court's decision that Caterpillar did not breach
its warranty to the Galicias. See Dream Games of Arizona, Inc. v. PC Onsite,
07-15847 (9th Cir. 2, 2009). 4) DIRECTORS & OFFICERS INSURANCE: S.J. Amoroso Construction Co. v. Executive Risk Indemnity, Inc., 07-17182 (9th Cir. April 30, 2009) (unpublished). S.J. Amoroso Construction Company appealed from the district court's order granting summary judgment to Executive Risk Indemnity Inc. ("ERI") in its suit seeking coverage under a Directors & Officers insurance policy ("D&O Policy"). The USCA reversed in part and affirmed in part. The district court erred in ruling that Amoroso was not entitled to coverage under the D&O Police for claims stemming from Paul Mason's alleged misrepresentations as he acted in his individual capacity, and not on behalf of the insured organization. California law provides that employees may be said to act within the scope of their employ-ment, even when their actions are not authorized by their employer, so long as their actions are not so "unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Farmers Ins. Group v. County of Santa Clara, 11 Cal. 4th 992, 1003 (1995). The USCA could not conclude that Mason's acts were so "unusual or startling" that they should be classified as actions taken in his individual capacity. Under Insuring Clause I(C) of the D&O Policy, Mason's alleged mis-representation qualified as a wrongful act committed by the insured organization. Though the alleged misrepresentations fell within the scope of Insuring Clause I(C), the USCA had to consider whether the D&O Policy's exclusion of coverage for claims arising form a contract or agreement applied. Under California law, "whereas coverage clauses are interpreted broadly to afford the greatest possible protection to the insured, exclusionary clauses are construed narrowly against the insurer." Continental Cas. Co. v. City of Richmond, 763 F.2d 1076, 1079 (9th Cir. 1985). "Exceptions to the performance of the basic underlying contract obligation must be clearly stated to apprise the insured of the effect of those exceptions." Id. Considering this standard, the construction contract between Mauna Kea Properties ("MKP") and DAP could not form the basis for a complete exclusion of coverage under Exclusion III(C)(2), which excludes claims "arising from" liability "under any written or oral contract or agreement." In the litigation it initiated, MKP alleged that Amoroso made negligent or intentional misrepresentations that induced it to contract with DAP. This theory of liability depended upon the fact that Amoroso was not a party to the construction contract and thus did not have liability under the contract. To that extent, Amoroso's liability was not liability under a contract or agreement, and ERI could not rely on Exclusion III(C)(2) to deny coverage. There remained a triable issue of fact, however, about whether correspondence between Mason and MKP concerning the potential assignment of the construction contract created a separate contract or agreement under which any potential liability on the part of Amoroso would be excluded from the coverage. On remand, the district court should consider whether under California law, the letter correspondence amounted to a contract by Amoroso to, in effect, guarantee DAP's performance of the construction contract. If it did, ERI permissibly denied coverage pursuant to Exclusion III(C)(2) to the extent that Amoroso's liability arose under the letter correspondence. Where there is a genuine issue of liability, the insurer, as a matter of law, could not have acted in bad faith in denying coverage. The district court thus did not err in granting ERI summary judgment on Amoroso's claim of bad faith due to ERI's denial of coverage. The USCA left it to the district court to determine whether Amoroso stated a claim of bad faith based on a breach of the duty to defend, and, if so, whether Amoroso should prevail on such a claim. McKeown and Ikuta, Circuit Judges, and Block, District Judge. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) CONTEMPT / DIRECT USE IMMUNITY: In re Grand Jury Subpoena to Mustafa Janan. 08-55425 (9th Cir. April 30, 2009) (unpublished). Janan appealed a district court order holding him in contempt for his refusal to provide voice exemplars in accordance with a grand jury subpoena. The USCA affirmed. It applied contract principles to the interpretation of a proffered agreement and reviewed de novo alleged violations of a proffer agreement. USA v. Chiu, 109 F.3d 624, 625 (9th Cir. 1997). The proffer agreement between Janan and the U.S. Attorney was not ambiguous. It explicitly stated that the government is precluded from directly offering Janan's statements against him only in its case-in-chief. Similarly worded agreements confer only direct use immunity. Id. at 626. Janan's attempt to distinguish Chiu on the ground that he is a witness, rather than a defendant, was not persuasive. As In Chiu, the government has not used Janan's statements against him in its case-in-chief. The USCA rejected Janan's invitation to adopt an expansive definition of the term "case-in-chief." Chiu held that a government's use of proffer statements to prepare a witness for trial did not con-stitute use during the case-in-chief. Id. The term "case-in-chief" refers only to "the evidence presented at trial by a party between the time the party calls the first witness and the time the party rests" or "the part of the trial in which a party presents evidence to support the claim or defense." Black's Law Dictionary 222 (8th ed. 2004. Here, no trial had taken place. Pregerson, Graber, and Wardlaw, Cir-cuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/)
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