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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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1) SECURITIES FRAUD: USA v. Reyes, 08-10047 (9th Cir. Aug. 18, 2009). Reyes and Jensen appealed from their convictions for falsifying corporate books and records, and related charges, stemming from their participation in a scheme to reward employees with grants of backdated stock options. The options were backdated to a time when the company's stock price was low, and the options were not recorded on the company's books as an expense of the corporation. The books thus showed the corporation to be more profitable than it actually was. The convictions represented the first criminal convictions for a backdating practice that was widespread in the late 1990s, particularly in the Silicon Valley, where the appellants' company was located. The USCA reversed Reyes' conviction be-cause of prosecutorial misconduct in making a false assertion of material fact to the jury in closing argument. It affirmed Jensen's conviction but vacated the sentence and remanded for resentencing because the sentence improperly included an obstruction of justice enhancement for which reprehensibility lay primarily with Jensen's lawyer. Schroeder (author) and Reinhardt, Circuit Judges, and Pol-lack, District Judge. A. Rosen of San Jose, CA, for the plaintiff-appellant; S. Waxman and S. Hirsch of Washington, DC, for the de-fendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) FOREIGN CURRENCY OPTIONS FRAUD: CFTC v. Baere,
07-56629 (9th Cir. Aug. 3, 2009). In 2000, Matthews formed White Pine Trust Corporation
("White Pine") as a holding company for investment funds, including
the Pinnacle Capital Fund. Investors were told they had accounts representing
investments in the trading of Pinnacle. Investors were not to place orders for
specific products; instead White Pine claimed in its Prospectus that it would
manage the accounts in the Fund according to one of two trading strategies. These
strategies combined trading in the spot and options markets for foreign currency.
White Pine also told customers it would keep the money customers invested in Pinnacle
segregated into individual accounts. As it turned out, Pinnacle and White Pine
did not do much trading. Instead, Matthews stole the money of investors for himself.
Though he claims not to have known that Matthews was pocketing Pinnacle funds,
Baere conceded that he solicited money from investors by lying to them at Matthews'
direction. The Commodity Futures Trading Commission ("CFTC") brought
civil proceedings against White Pine and Matthews in October 2004, adding Baere
as a defendant a month later. The CFTC obtained a preliminary injunction against
Baere to freeze his assets, to make his assets and records available to the CFTC
for discovery, and to prohibit Baere from destroying records. The government also
initiated criminal prosecutions against all three defendants. Baere accepted a
plea agreement. While admitting that he actively solicited investments in Pinnacle
by misrepresenting facts, Baere did not concede that White Pine offered foreign
currency options. CFTC's complaint rested the agency's jurisdiction on a provision
of the Commodity Exchange Act, the statute governing the reach of the CFTC and
commodities regulations. Whether this provision actually supported CFTC's jurisdiction
was the central issue on appeal. Baere successfully moved to compel responses
to all of his discovery requests pertaining to the jurisdictional issue-whether
he traded in or offered transactions to others in foreign currency options. CFTC
responded as directed, but Baere remained unsatisfied. He argued that CFTC had
to provide an expert analysis of 400 pages of documents pertaining to White Pine's
trading activity to determine whether options trading actually occurred. The magistrate
refused to compel CFTC to perform that analysis and Baere objected. The district
court overruled the objection, concluding that CFTC's jurisdiction did not turn
on whether White Pine actually traded options, because CFTC only alleged that
Baere offered options transactions to clients. In any event, the district court
ruled that even if CFTC had to prove actual trading, it met is discovery obligations
by producing over "400 pages of trading documents identified by Bates Stamp
number." Meanwhile, CFTC moved for summary judgment, which the district court
granted. On appeal, Baere challenged only the district court's determination that
CFTC had jurisdiction to bring this case. He did not challenge the district court's
ruling that, as a matter of law, he engaged in actionable fraud under the relevant
statutes. The USCA thus assumed that he had but still reversed and remanded with
instructions to dismiss the case. It found that CFTC lacked the power to bring
his action. While CFTC suggested that foreign currency is a commodity "regulated
under" the Act by virtue of Subsection 2(c)(2)(B), that is the very provision
the USCA found not to apply to Baere. O'Scannlain (author), Rymer, and
Wardlaw, Circuit Judges. D. Metzger of San Diego, CA, for the appellant; N. Page
of Washington, DC, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
4) SECURITIES: Madden v. Cowen & Co., 07-15900 (9th Cir. The Feb. 11, 2009 opinion in this case has been withdrawn and re-placed with this opinion filed Aug. 7, 2009). Sixty-three shareholders (collectively "Madden") brought a state-law action against an investment bank for misleading them in connection with the sale of their closely held corporation to a publicly traded acquiring corpo-ration. Madden owned a majority interest in St. Joseph Medical Corporation, which in turn owned a controlling share in Orange Coast Managed Care Services. Both St. Joseph and Orange Coast were closely held corporations. St. Joseph was incorporated in California, and Orange Coast in Delaware. Madden's suit was removed to federal district court under the Securities Litigation Uniform Standards Act of 1998 ("SLUSA"), which allows for the removal and preclusion of private state-law covered class actions alleging untruth or manipulation in connection with the purchase or sale of a 'covered' security. Kircher v. Putnam Funds Trust, 547 US 633, 636-37 (2006). The district court held that the suit was properly removed and precluded under SLUSA. However, the USCA found that the district court erred by applying the wrong legal standard to determine whether the suit was preserved by SLUSA's savings clause (known as the "Delaware carve-out"). The USCA remanded to the district court so that it could apply the correct standard. It held that the suit was a covered class action alleging a misrepresentation in connection with a covered security under 15 USC Sec. 77p(b). Be-cause the action was brought under California law, rather than Delaware law, the Delaware carve-out did not preserve the suit to the extent it involves misrepresentations made on behalf of Orange Coast. In light of the USCA's clarification of the meaning of "on behalf of" under the Delaware carve-out, it remanded the case to allow the district court to determine, in the first instance, whether Madden's action involves a communication made by Cowen on behalf of St. Joseph to St. Joseph's shareholders. Hug, Noonan, and Ikuta (au-thor), Circuit Judges. P. Borowski of San Francisco, CA, for the plaintiffs-appellants; L. Goldstein of New York, NY, for the defen-dants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) BANKRUPTCY: In re Ransom, 08-15066 (9th Cir. Aug. 14, 2009). At issue here was whether an above-median income debtor seeking relief under chapter 13 may deduct from his projected disposable income (that otherwise would be available to unsecured creditors) a vehicle "ownership cost" for a vehicle he owned free and clear? Based upon its interpretation of the controlling statute, 11 USC Sec. 707(b)(2)(A)(ii)(I), the USCA's answered "no." It agreed with the Bankruptcy Appellate Panel's ruling in Ransom v. MBNA Am. Bank, N.A., 380 B.R. 799 (BAP 9th Cir. 2007), and upheld the decision of the bankruptcy court. However, the USCA added that the "correct" answer to the question depends ultimately not upon its interpretation of the statute, but upon what Congress wants the answer to be. It thus forwarded a copy of its opinion to the Senate and House Judiciary Committees. Trott (author), McKeown, and Ikuta, Circuit Judges. C. Burke of Las Vegas, NV, for the appellant; J. Bergstrom of Henderson, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) BANKRUPTCY: In re Khalil, 07-56819 (9th Cir. Aug. 24, 2009). Debtor Khalil appealed a BAP decision which affirmed a judg-ment of the bankruptcy court in favor of creditor Developers Surety and Indemnity Company (DSI"). The USCA affirmed. DSI brought an adversary proceeding to prevent the discharge of certain debts related to Khalil's construction business. After a bench trial in the bankruptcy court, judgment was entered in favor of DSI and discharged was denied pursuant to 11 USC Sec. 727(a)(4), which provides for the denial of a discharge of debt where a creditor shows that a debtor "knowingly and fraudulently" made a false oath or accounting during the bankruptcy proceedings. The BAP affirmed, holding that while evidence of recklessness alone will not satisfy the intent requirement of Sec. 727(a)(4), evidence of recklessness may be combined with other circumstantial evidence to prove fraudulent intent. The USCA found the BAP's opinion to be a correct statement of the applicable law, and expressly approved that opinion. It also independently reviewed the record and found that there was substantial circumstantial evidence of Khalil's fraudulent intent. Fraudulent intent, it added, maybe be inferred from a patter of behavior. See Devers v. Sheridan, 759 F.2d 751, 754 (9th Cir. 1985). The denial of discharge was thus proper. Pregerson and Thompson, Circuit Judges, and Fogel (author), District Judge. M. Sharf of Encino, CA, for the appellant; A. Mauthe of Irvine, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) BANKRUPTCY: In re Craig, 08-15451 (9th Cir. Aug. 26, 2009). At issue here was the dischargeability of a student loan in bankruptcy under 11 USC Sec. 523(a)(8) based on "undue hardship." As of April 10, 2005, Craig owed $81,575 on her consolidated student loan. Her income in 2004 was $16,815. The bankruptcy court found it unlikely that she would be able to materially change her employment status in the future, and thus used the $16,815 income figure in determining whether she had demonstrated that she would suffer "undue hardship" if required to repay her student loan. The bankruptcy court then found that, other than a $68 monthly 401(k) plan contribution, the items included in Craig's $1,785 adjusted monthly budget were reasonably necessary to maintain a minimal standard of living and that she should be required to pay on her student loan debt the $68 per month that she had been contributing to the 401(k) plan. It further found that because Craig's mobile home mortgage payment of $150 would end in December 2006, begin-ning in January 2007, she should be required to pay on her student loan debt the $150 per month that she had been paying on her mort-gage. The bankruptcy court then declared Craig's student loan debt discharged, except that her debt was not discharged as to $68 per month from May 1, 2005 forward, plus $150 per month from January 1, 2007 forward. The USCA vacated and remanded for reconsideration with instructions to remand to the bankruptcy court for a determination of (1) whether, under Craig's particular circumstances, the $68 monthly 401(k) contribution is "necessary," and (2) what portion of her outstanding student loan debt is subject to discharge based on her monthly income and her monthly expenses necessary for maintaining a minimal standard of living. Trott (author), McKeown, and Ikuta, Circuit Judges. K. Nye of Tucson, AZ, for the appellant; M. Wanslee of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) BANKRUPTCY: In re Joye, 07-15676 (9th Cir. Aug. 21, 2009). The Joyes filed an adversary complaint in the bankruptcy court against California's Franchise Tax Board and its Executive Director, (collectively, "the Board"), for declaratory and injunctive relief. They sought an order declaring that their state tax obligations from the year 2000 were discharged at the conclusion of their Chapter 13 bankruptcy proceedings in 2004. They also sought to enjoin the Board from collecting these outstanding tax liabilities. The bankruptcy court denied the Board's motion for summary judgment. The district court reversed and entered summary judgment in the Board's fa-vor. It agreed that the outstanding tax liabilities were "technically discharged" through the Chapter 13 proceeding because the Board did not filed a proof of claim. However, it held that the Board was nonetheless entitled to summary judgment because barring collection of the outstanding taxes would constitute a denial of fundamental fairness to the Board. The district court held that the Board did not receive adequate notice of its right to payment on the outstanding taxes because "California's income tax system … relies on taxpayers to assess how much they owe and inform the [Board] of that amount by filing a tax return," and the Joyes did not file their state tax return until after the claims bar date for governmental claims. The district court further held that scheduling the Board as a creditor in the bankruptcy petition for an estimated amount was insufficient to provide the Board with constitutionally adequate notice. The USCA reversed and remanded. It held that the Joyes' outstanding taxes for the year 2002 were properly discharged pursuant 11 USC Sec. 1328(a). These taxes did not give rise to a post-petition claim under 11 USC Sec. 1305(a)(1); the Board thus could rely on that provision to save its claim to these taxes from discharge. The USCA also held that the Board received constitutionally adequate notice of its right to payment on these outstanding taxes. Thus, barring the Board from collecting these taxes would not constitute a denial of fundamental fairness. Dissenting, Judge Graber would hold that, under 11 USC Sec. 1305(a)(1), the Joyes' 2000 taxes were post-petition. She would affirm the district court's decision. Wallace (author), Thomas, and Graber (dissenting), Circuit Judges. R. Kolb of Antioch, CA, for the appellants; R. Borcherding of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) SPAM: Gordon v. Virtumundo, Inc., 07-35487 (9th Cir. Aug. 6, 2009). Gordon and his company, Omni Innovations sued Virtu-mundo, Inc., Adknowledge, Inc. and Scott Lynn, the sole shareholder of both companies. Gordon sought injunctive relief and damages based on his receipt of thousands of commercial emails commonly called "spam." The defendants are in the online marketing business and widely transmit email advertisement and solicitations to potential consumers on behalf of third-party clients. They are spammers. The district court granted summary judgment in favor of the defendants on all of Gordon's claims. The USCA agreed that summary judgment was proper. Gordon lacked statutory standing to bring a private action for alleged violations of the Controlling the Assault of Non-Solicited Pornography and Marketing ("CAN-SPAM") Act of 2003. His state law claims failed a matter of law because they were precluded by the Act's express preemption clause and because Gordon failed to show the existence of a genuine issue of material fact. Concurring, Judge Gould thought that the most pertinent conclusion in this case was that Gordon was seeking to use the CAN-SPAM Act to build a litigation factory for his personal financial benefit. As explained by Judge Tallman, the ways in which Gordon inserted himself into the legal controversy here required the conclusion that he is not an Internet Access Service ("IAS"). Each of the majority's conclusions is independently sufficient to deny Gordon standing to assert his claims, and each requires the USCA to affirm the district court's summary judgment. Judge Gould wrote separately to add that the USCA should not extend the concept of "tester" standing to an area where it does not have confidence that Congress intended to empower anyone to make claims. Unlike the broad standing provisions in the housing discrimination laws and the ADA, the CAN-SPAM statutory language grants a private right of action not to "all persons" regardless of injury, but only to IAS providers who suffer adverse effect. These requirements make clear that a litigation-seeking party in Gordon's circumstances has no standing to proceed under the CAN-SPAN Act. Gould (concurring), Tallman (author), and Callahan, Circuit Judges. T. Walton of Palo Alto, CA, for the plaintiff-appellant; D. Newman of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) COPYRIGHT INFRINGEMENT: Brayton Purcell LLP v. Recordon & Recordon, 07-15383 (9th Cir. Aug. 5, 2009). Recordon & Recordon ("Recordon") appealed the district court's denial of its motion to dismiss for improper venue. In copyright infringement actions, venue is proper in the district in which the defendant resides or may be found. 28 USC Sec. 1400(a). The Ninth Circuit interprets this provision to allow venue in any judicial district where, if treated as a separate state, the defendant would be subject to personal jurisdiction. Because Recordon would be subject to personal jurisdiction in the Northern District of California if it were treated as a separate state, the USCA held that venue was proper and affirmed the decision of the district court. Recordon satisfied the "purposeful direction" prong for specific personal jurisdiction. Because the parties did not dispute the remaining two prongs-that Brayton Purcell's claim arose out of Recordon's purposeful direction and that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice-Recordon is subject to personal jurisdiction in the Northern District of California. The USCA thus held that venue was proper in the Northern District of California pursuant to 28 USC Sec. 1404(a). Dissenting, Judge Reinhardt thought Recordon had no connection to the Northern District of California other than its knowledge of Brayton Purcell's residence there, and its website was targeted entirely at potential clients in the Southern District. Pebble Beach Co. v. Caddy, 453 F.3d 1151 (9th Cir. 2006) and Schwarzennegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004), Judge Reinhardt thought, were squarely on point and precluded a finding of "express aiming" in these circumstances. Schroeder, D.W. Nelson (author), and Reinhardt, (dissenting), Circuit Judges. J. Zamora of Marysvillle, CA, for the appellant; D. Fermino of Novato, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) TRADEMARK INFRINGEMENT / MISAPPROPRIATION OF PUBLICITY: Hilton v. Halmark Cards, 08-55443 (9th Cir. Aug. 31, 2009). At issue here was whether California law allows a celebrity to sue a greeting card company for using her image and catch-phrase in a birthday card without her permission. Paris Hilton is known for her lifestyle as a flamboyant heiress. She starred in "The Simple Life," a so-called "reality" TV show that placed her and fellow heiress Nicole Ritchie in situations for which, the audi-ence is to assume, their privileged upbringings did not prepared them. For example, in an episode called "Sonic Burger Shenanigans," Hilton is employed as a waitress in a "fast food joint." As in most other episodes, Hilton says "that's hot," whenever she finds some-thing interesting or amusing. She has registered that phrase as a trademark with the U.S. Patent & Trademark Office. Hallmark Cards is a major national purveyor of greeting cards. This case concerns one of its birthday cards. The front cover of the card contains a picture above a caption that reads, "Paris's First Day as a Waitress." The picture depicts a cartoon waitress, complete with apron, serving a plate of food to a restaurant patron. An oversized photograph of Hilton's head is super-imposed on the cartoon waitress's body. Hilton says to the customer, "Don't touch that, it's hot." The customer asks, "What's hot?" Hilton replies, "That's hot." Inside, the card reads, "Have a smokin' hot birthday." Hilton sued Hallmark alleging misappropriation of publicity under California common law; false designation under the Lanham Act; and infringement of a federally registered trademark. The district court granted one portion of Hallmark's motion to dismiss: the trademark infringement claim, a judgment Hilton did not appeal. By a separate motion, Hallmark moved to strike Hilton's right of publicity claims under California's anti-SLAPP statute which is designed to bar meritless lawsuits filed merely to chill someone from exercising his First Amendment rights on a matter of public interest. In both motions, Hallmark raised defenses peculiar to each cause of action, some based on the First Amendment to the U.S. Constitution, and some not. The district court denied the remaining portions of the motion to dismiss and denied the special motion to strike the anti-SLAPP claim. It held that the defense requires a more fact-intensive inquiry than is permissible at such stage of the case. Hallmark appealed. The USCA held that Hallmark could not employ the "public interest" defense because its birthday card does not publish or report information. It affirmed the denial of Hallmark's motion to strike pursuant to California's anti-SLAPP statute, but dismissed the appeal of the denial of Hallmark's motion to dismiss the misappropriation of publicity claim and the Lanham Act claim. It then remanded for further proceedings. Noonan, O'Scannlain (author), and Graber, Circuit Judges. L. Bandlow of Los Angeles, CA, for the appellant; B. Blakely of Hollywood, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) CLASS ACTIONS / LABOR LAW: Rutti v. Vermillion, 07-56599 (9th Cir. Aug. 21, 2009). Rutti sought to bring a class action on behalf of all technicians employed by Lojack, Inc. to install alarms in customers' cars. He sought compensation for time spent commuting to worksites in Lojack's vehicles and for time spend on preliminary and postliminary activities performed at home. The district court granted Lojack summary judgment, holding that Rutti's commute was not compensable as a matter of law and that the preliminary and postliminary activities were not compensable because they either were not integral to Rutti's principal activities or consumed a de minimis amount of time. The USCA affirmed the district court's denial of compensation for Rutti's commute and for his preliminary activities. However, it vacated the summary judgment on Rutti's postliminary activity of required daily portable data transmissions ("PDT"), and remanded that matter to the district court for further proceedings. Judge Hall joined in the majority's opinion except as to Rutti's claim for compensation for the required postliminary PDT transmission, which she would also affirm. She thought the time spent engaging in PDT transmissions was de minimis. Judge Silverman also dissented in part. He thought the majority had made the mistake of assuming that any employer-mandated travel that begins at home is automatically noncompensable, but that assumption ignores the controlling legal principle. It is the "level of the employer's control over its employees" that "is determinative," not whether the employee just so happens to depart from his home instead of some other location. Morillion v. Royal Packing Co., 22 Cal. 4th 575, 578 (2000). In the instant case, the level is total control. Rutti was required to use the company truck and was permitted no personal stops or any other personal use. Thus, under Morillion, Rutti had a valid state-law claim for compensation. Judge Silverman would reverse the dismissal of this portion of the lawsuit. Hall (dissenting in part), Silverman (dissenting in part), and Callahan (author), Circuit Judges. M. Righetti of San Francisco, CA, for the appellants; P. Holbrook of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) CLASS ACTIONS / ANNUITIES: Yokoyama v. Midland National Life Ins. Co., 07-16825 (9th Cir. Aug. 28, 2009). Defendant Midland National Life Insurance Company marketed annuities to senior citizens in Hawaii. At issue on appeal were Midland annuities sold by independent brokers between 2001 and 2005. Yokoyama purchased one of the annuities through an independent broker and then filed this class action claiming that Midland marketed the annuities through deceptive practices, in violation of Hawaii's Deceptive Practices Act. Haw. Rev. Stat. Sec. 480-2. His complaint specifically targeted representations made in Midland's brochures, which promoted the annuities as appropriate for seniors. This action was exempted from multi-district litigation against Midland pending in the Central District of California, as it had been narrowly tailored to rely only on Hawaii law. The district court denied class certification, holding that to succeed under the Hawaii Act, each plaintiff would have to show subjective, individualized reliance on deceptive practices in the circumstances of each plaintiff's purchase of the annuity. For that reason, the district court held that the plaintiffs could not satisfy Fed. R. Civ. Proc. 23's requirements that common issues predominate over individual issues and that a class action was a superior method of adjudication. The dispositive issue was an issue of Hawaii state law, namely whether Hawaii's Act requires a showing of individualized reliance. The USCA held that the district court erred when it denied class certification because there were no individualized issues of subjective reliance under Hawaii law. Because there were no individualized issues sufficient to render class certification inappropriate under Rule 23, class issues predominated and a class action was a superior way to adjudicate this case. Moreover, Hawaii's state courts have made it clear that Hawaii's consumer protection laws are flexible and may be enforced through the class action mechanism. The class should have been certified. The USCA expressed no opinion of the merits of the claims. Judge Smith joined the majority in its ultimate conclusion, but not in its failure to give the district judge discretion when making class certification decision. He thought the majority had refused to use the Circuit's longstanding and sufficient standard of review to resolve this case. Instead, he said, the majority substituted it preference for heightened appellate review, when no such review was needed or available under Circuit precedent. Schroeder (author), Paez, and N.R. Smith (concurring), Circuit Judges. J. Bickerton of Honolulu, HI, for the appellant; R. Phillips of Oakland, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) WHISTLEBLOWERS: Van Asdale v. Intl. Game Technology, 07-16597 (9th Cir. Aug. 13, 2009). This case presented the USCA with its first opportunity to examine the substantive requirements necessary to establish a claim under the whistleblower-protection provisions of the Sarbanes-Oxley Act, 18 USC Sec. 1514A. The plaintiffs, Lena and Shawn Van Asdale, appealed the dis-trict court's summary judgment in favor of their former employer, International Game Technology ("IGT"), on their claims of retaliatory discharge in violation of Sec. 1514A. They also appealed the district court's dismissal of their factually-related Nevada state-law claims for tortious discharge and intentional interference with contractual relations. Lena brought a separate state-law claim for retaliation and Shawn brought a separate state-law claim for intentional infliction of emotional distress. Shawn and Lena, both IP attorneys at IGT, alleged that they raised claims of shareholder fraud at a November 24, 2003 meeting with Johnson, IGT's General Counsel, and that they were terminated in retaliation for those allegations. The USCA concluded that that the plaintiffs raised a genuine issue of material fact regarding the cause of their terminations and that summary judgment should not have been granted. The district court had simply asserted that because the relevant portion of Shawn's declaration contradicted his deposition testimony it had to be disregard. But, the USCA noted, that this is directly contrary to the rule set forth in Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991), that the sham affidavit "rule does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony." The district court did not make a specific factual finding that the affidavit was a sham as it was required to do prior to striking it. In addition, the USCA found that the minor conflicts between Shawn's earlier deposition testimony and subsequent declaration, if any, do not justify invocation of the sham affidavit rule. The USCA cautioned that its analysis is not intended as an endorsement of the factual account provided in Shawn's declaration. A jury could find Shawn's account not credible and conclude that the meeting with Johnson did not qualify as protected activity under Sec. 1514A. Shawn's declaration sufficed to raise a genuine issue of material fact regarding the nature of Shawn's and Lena's disclosures to Johnson, and the district court should not have disregarded it. The USCA thus concluded that, taking the facts in the light most favorable to the plaintiffs, their meeting with Johnson involved disclosure "definitively and specifically" related to shareholder fraud. The USCA thus reversed the district court's summary judgment in favor of IGT on the plaintiff's Sarbanes-Oxley claim and vacate the dismissal of their state-law claims. The plaintiffs maintained that they were terminated for reporting possible shareholder fraud in connection with a possible merger of IGT with Anchor Gaming. Wallace, Thomas, and Bybee (author), Circuit Judges. M. Piscevich of Reno, NV, for the plaintiff-appellant; R. Campbell of Reno, NV, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) TERRORIST ORGANIZATIONS: Humanitarian Law Project v. U.S. Treasury Department, 07-55893 (9th Cir. Aug. 24, 2009). In the wake of the September 11, 2001 terrorist attack on America, the President declared a national emergency and, invoking powers vested in him by the International Economic Powers Act ("IEEPA") and the United Nations Participation Act ("UNPA"), signed Executive Order 13224. This Executive Order blocked the property of 27 designated terrorist entities, and authorized the Secretary of the Treasury to designate others whom the Secretary determines to be acting for, providing support or services to, or are other-wise associated with, designated persons. The Humanitarian Law Project ("HLP") wanted to support the "lawful activities" of two organizations designated as foreign terrorist organizations: the Kurdistan Worker's Party in Turkey, and the Liberation Tigers of Tamil Elam in Sri Lanka. HLP maintained that it has been deterred from doing so out of fear that it, too, would be designated as a terrorist organization pursuant to Executive Order 13224 if it provides services to the two terrorist organizations. HLP brought this action to challenge on First and Fifth Amendment grounds, the Presidents authority to designate organizations as terrorists under IEEPA and UNPA; the Secretary of the Treasury's designation authority from the President under Executive Order 13224; the Executive Order's ban on providing services to designate terrorist organizations; and the regulatory licensing scheme under which organizations may apply for permission to engage in activities that are otherwise prohibited. The district court held that HLP lacked standing to contest the President's authority or the licensing scheme; and rejected its contention that the Secretary's designation authority, or the ban on services, was unconstitutionally infirm. On appeal, the USCA was asked to invalidate the President's authority to designate terrorist organizations where there is an extraordinary threat to national security, as well as the Secretary of Treasury's authorization to designate further organizations, and to declare that a ban on providing services to, or for the benefit of, such organizations, is unconstitutionally vague and overbroad. The USCA agreed with the district court that HLP lacked standing to challenge the President's designation au-thority because HLP has never been designated, or threatened with designation, on account of it. The USCA also disagreed with HLP's contention that self-censorship sufficed for injury-in-fact because IEEPA on its face does not regulate speech. It regulates conduct. Thus, the standing requirements for pre-enforcement challenges set out in Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134 (9th Cir. 2000), applied. The USCA further held that HLP could not show injury-in-fact with respect to the licensing regulations as it had never applied for, or been denied, a license. The USCA also agreed with the district court that the Secretary's authority to designate terrorist groups is adequately constrained by criteria in the Executive Order. Similarly, it held that the ban on "services" to designated terrorist organizations was not unconstitutionally vague; "services" are clearly enough delineated by examples in the regulations for a person or ordinary intelligence to understand what kind of activities are not permitted. HLP worried that protected speech such as independent advocacy may be caught in the net, but the Secretary does not interpret the ban that way, and neither did the USCA. Finally, the USCA held that no mens rea is required for IEEPA's civil provisions, and its criminal provisions raised no constitutional concerns as they include willfulness, or knowledge of unlawfulness, as an element. Dissenting in part, Judge Pregerson thought that HLP's standing to challenge the President's power to designate entities as global terrorist should be analyzed using the less rigid standard appropriate when First Amendment rights are at stake. He also disagreed with the majority's conclusion that the Executive Order's ban on "services" is valid, as he did not agree that a person of ordinary intelligence would be put on notice of whether his or her desired conduct would be considered a prohibited "service." Pregerson (dissenting in part) and Rymer (author), Circuit Judges, and Korman, District Judge. D. Cole of Washington, DC, for the appellant; J. Waldman of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) DRUG TESTING: USA v. Comprehensive Drug Testing, Inc., 05-10067 (9th Cir. Aug. 26, 2009). This case addressed a federal investigation into steroid use by professional baseball players and, generally, the procedures and safeguards that federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information. In 2002, the federal government commenced an investigation into the Bay Area Lab Cooperative ("Balco"), which it suspected of providing steroids to professional baseball players. That same year, the Major League Baseball Players Association entered into a collective bargaining agreement with Major League Baseball providing for suspicionless drug testing of all players. Urine samples were to be collected during the first year of the agreement and each sample was to be tested for banned substances. The players were assured that the results would remain anonymous and confidential. The purpose of the testing was solely to determine whether more than 5% of the players tested positive, in which case there would be additional testing in future seasons. Comprehensive Drug Testing ("CDT"), an independent business, administered the program and collected the specimens from the players; the actual tests were performed by Quest Diagnostics, Inc., a laboratory. CDT maintained the list of players and their respective test results; Quest kept the actual specimens on which the tests were performed. During the Balco investigation, federal authorities learned of ten players who had tested positive in the CDT program. The government secured a grand jury subpoena in the Northern District of California seeking all drug testing records and specimens pertaining to Major League Baseball in CDT's possession. CDT and the Players tried to negotiate a compliance agreement with the government but, when negotiations failed, moved to quash the subpoena. The same day that the motion to quash was filed, the government obtained a warrant in the Central District of California authorizing a search of CDT facilities in Long Beach. Unlike the sub-poena, the warrant was limited to the records of the ten players as to whom the government had probable cause. But, when the warrant was executed, the government seized and promptly reviewed the drug testing records for hundred of players and a great many other people. The government also obtained a warrant from the District of Nevada for the urine samples on which the drug tests had been performed. These were kept at Quest's facilities in Las Vegas. Subsequently, the government obtained additional warrants for records at CDT's facilities in Long Beach and quest's lab in Las Vegas. Finally, the government served CDT and Quest with new subpoenas in the Northern District of California, demanding production of the same records it has just seized. CDT and the Players moved the Cen-tral District of California under Fed. R. Crim. Procedure 41(g) for return of the property seized there. Judge Cooper found that the government failed to comply with the procedures specified in the warrant and, on that basis and others, ordered the property returned (the "Cooper Order"). CDT and the Players subsequently moved in the District of Nevada, pursuant to Rule 41(g), for return of the property seized under the warrants issued by that district court. The matter came before Judge Mahan, who granted the motion and ordered the government to return the property it has seized, with the exception of materials pertaining to the ten identified baseball players (the "Mahan Order"). CDT and the Players finally moved in the Northern District of California, pursuant to Fed. R. Crim. Proc. 17(c), to quash the latest round of subpoenas and the matter was heard by Judge Illston. In an oral ruling, Judge Illston quashed the subpoenas (the "Illston Quashal"). All three judges expressed dissatisfaction with the government's handling of the investigation, some going so far as to accuse the government of manipulation and misrepresentation. The government nevertheless appealed all three orders and a divided Ninth Circuit panel reversed the Mahan Order and the Illston Quashal, but unanimously found that the appeal from the Cooper Order was untimely. The USCA then took the case en banc. It dismissed as untimely the appeal of the Cooper Order, but affirmed judgments regarding the Mahan Order and Illston Quashal. It noted that this was a case of deliberate overreaching by the government in an effort to seized date as to which it lacked probable cause. It further noted that the Circuit has long held that Rule 41(g) is an appropriate means of obtaining the return of property improperly seized by the government. Although styled as a motion under a Federal Rule of Criminal Procedure, when the motion is made by a party against whom no criminal charges have been brought, such a motion is in fact a petition that the district court invoke its civil equitable jurisdiction. The USCA agreed with the panel below that the district court in this case did not abuse its discretion in choosing to exercise that jurisdiction. Finally, it noted that when the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain in-criminating files, or when a search for evidence could result in the seizure of a computer, magistrate judges must be vigilant in observing five guidelines: (1) They should insist that the government waive reliance upon the plain view doctrine in digital evidence cases; (2) segregation and redaction must be either done by specialized personnel or an independent third party; if the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the of the warrant; (3) warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seized that information in other judicial fora; (4) the government's search protocol must be designed to uncover only the information for which it as probable cause, and only that information may be examined by the case agents; and, (5), the government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. Judge Callahan, joined by Judge Ikuta, agreed with the majority that the government appeal from the Cooper Order was untimely and that the appeal in case 05-55354 thus should be dismissed. However, they disagreed with the majority's conclusion that the findings stated in the Cooper Order or the Illston Order had dispositive preclusive effect with respect to the USCA's review of the Mahan Order. Setting aside the Cooper and Illston orders, Judges Callahan and Ikuta would reverse the Mahan Order on the merits. In addition, they would vacate and remand the Illston Quashal. Judge Bea agreed with the majority's analysis of the issues presented, as applied to this case only, but also agreed the Judges Callahan and Ikuta that the later-filed Cooper Order did not have preclusive effect on the earlier-filed Mahan Order. That said, the majority reached the correct result even if the Cooper Order is not given preclusive effect. The government failed to follow either the procedures of USA v. Tamura, 694 F.2d 591 (9th Cir. 1982), or those outlined in the approved warrant, which would have required the government to conduct its search of the seized intermingled computer files by using computer technicians, not case investigators. Judge Bea would also affirm the Cooper, Mahan, and Illston orders because the seized names at issue were not in "plain view" when seized. He wrote separately only because he did not concur in the proposed guidelines set out by the majority. Judge Ikuta agreed with Judge Callahan's dissent in full and wrote separately to underline Judge Callahan's concern that the "the return of property pursuant to Rule 41(g) is not necessarily the appropriate relief in this case." Kozinski (author), Kleinfeld, Graber, Wardlaw, W. Fletcher, Paez, Berzon, Callahan (dissenting in part), Bea (dissenting in part) M.D. Smith, and Ikuta (dissenting), Circuit Judges. AUSA J. Wilson of San Francisco, CA, the plaintiff-appellant; E. Balogh and D. Silbert of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) HUMAN RIGHTS: Bauman v. DaimlerChrysler Corp., 07-15386 (9th Cir. Aug. 28, 2009). The appellants are 23 Argentinean citizens and residents who alleged, inter alia, that they or their family members were kidnapped, detained, and/or tortured by Argentinean state security forces acting at the direction of their former employer Mercedes Benz Argentina ("MBA"). The appellants alleged that during the military regime that governed Argentina from 1976 to 1983, MBA officials maintained close ties with high-ranking members of the military, and utilized them to rid its plant of individuals MBA itself viewed as subversive. In 2002, the appellants filed a complaint in the District Court for the Northern District of California against DaimlerChrysler AG ("DCAG"), MBA's parent company, requesting relief under the Alien Tort Claims Act against DCAG for human rights violations allegedly committed by MBA in Argentine during the 1970s military regime. DCAG filed a successful Rule 12(b)(2) motion and the lawsuit was dismissed for lack of personal jurisdiction. The district court found that (1) Mercedes Benz USA ("MBUSA") was not DCAG's agent for the purpose of conferring general jurisdiction, and (2) either Germany and Argentina provided an adequate forum for the appellant's claims. The USCA affirmed. It agreed that the District court did not have personal jurisdiction over DCAG. DCAG had no control over the product's ultimate destination within the U.S., and the evidence shows that MBUSA had the power to independently decide against buying DCAG G-Class vehicles in California. That was not "pervasive and continual" control. Even if DCAG exerted pervasive control, the appellants failed to make a prima facie showing that DCAG would undertake to perform substantially similar services in the absence of MBUSA. Because there was insufficient control and because MBUSA did not serve as DCAG's representative, MBUSA's contacts could not be imputed to DCAG. Because the USCA found that DCAG lacked the continuous and systematic contacts sufficient to confer general jurisdiction, it did not need to reach the question of the reasonableness of jurisdiction. Judge Reinhardt dissented. He thought the majority had formulated a stringent new test for determining whether an agency relationship existed for purposes of establishing personal jurisdiction. He thought that, although the majority's goal of providing clarity to the Circuit's muddled case law on the subject was laudable, the test it imposed goes too far, requiring a much stronger relationship between a parent and subsidiary than necessary or desirable. The result is to shield foreign corporations from actions in American courts-although they have structured their affairs so as to reap vast profits from American markets-and to deprive plaintiffs, including those who allege grave human rights abuses, of access to justice. Schroeder, D.W. Nelson (author), and Reinhardt (dissenting), Circuit Judges. T. Collingsworth of Washington, DC, for the plaintiffs-appellants; M. Kemner of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) INSURANCE / ARMENIAN GENOCIDE VICTIMS: Movsesian v. Victoria Versicherung AG, 07-56722 (9th Cir. Aug. 20, 2009). In 2000, the California Legislature enacted Senate Bill 1915, which amended California Code of Civil Procedure to provide California courts with jurisdiction over certain classes of claims arising out of insurance policies that were held by "Armenian Genocide victims." In Sec. 354.4, the Bill also amended the Code to extend the statute of limitations for such claims until Dec. 31, 2010. The primary issue on appeal was whether Sec. 354.4 interferes with the national government's conduct of foreign relations. The USCA concluded that it did and, thus, held that the California statute is preempted. Section 354.4 was modeled after Secs 354.5 and 354.6, which extended the statute of limitations until 2010 for Holocaust-era insurance claims and World War II slave labor claims, respec-tively. Both of these sister statutes have been found unconstitutional because they interfered with the national government's foreign affairs power. Deustch v. Turner, 324 F.3d 692, 716 (9th Cir. 2003), and Steinberg v. Int. Comm. on Holocaust Era Ins. Claims, 34 Cal. Rptr. 3d 944, 953 (Cal. Ct. App. 2005). Section 354.4 is preempted because it directly conflicts with the Executive Branch's foreign policy refusing to provide official recognition to the "Armenian Genocide." Far from concerning an area of traditional state interest, Sec. 354.4 impinges upon the National Government's ability to conduct foreign affairs. Judge Pregerson dissented. He disagreed with the majority's holding that California's attempt to regulate insurance does not fall within the realm of traditional state interests. Pregerson (dissenting), D.W. Nelson, and Thompson (author), Circuit Judges. N. Soltman of Los Angeles, CA, for the defendant-appellant; B. Kabateck of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) RECOVERY OF HOLOCAUST-ERA STOLEN PROPERTY: Von
Saher v. Norton Simon Museum of Art, 07-56691 (9th Cir. Aug. 19, 2009).
Marei von Saher sought the return of two paintings alleged to have been looted
by the Nazis during World War II. The paintings were purchased in or around 1971
by the Norton Simon Museum of Art in Pasadena, California, and are now on display
there. Saher brought this claim against the Museum under Sec. 354.3 of the California
Code of Civil Procedure, which extends the statute of limitations until 2010 for
actions for the recovery of Holocaust-era art. The primary issue on appeal was
whether Sec. 354.3 infringes on the national government's exclusive foreign affairs
powers. The district court held that it does. The USCA agreed and affirmed the
district court's holding that Sec. 354.3 is preempted. California also has a three-year
statute of limitations for actions to re-cover stolen property. California Code
of Civil Procedure Sec. 338. The district court granted the Museum's Rule 12(b)(6)
motion to dismiss Saher's complaint under that statute without leave to amend.
Because it is possible Saher might be able to amend her complaint to bring her
action within Sec. 338, the USCA reversed the district court's dismissal without
leave to amend, and remanded for further proceedings. Judge Pregerson dissented
from the majority's conclusion that California was acting outside the realm of
traditional state responsibility, and that field preemption applied. Here, a museum
located in California, acquired stolen property in 1971. Von Saher sought recovery
of that property. Judge Pregerson failed to see how a California statute allowing
such recovery intrudes on the federal government's power to make and resolve war.
He would reverse the district court. Pregerson (dissenting), D.W. Nelson,
and Thomp-son (author), Circuit Judges. L. Kaye of New York, NY, for the
plaintiff-appellant; F. Rowley of Los Angeles, CA, for the defendants-appellees.
(Download the full
text of this decision at www.ce9.uscourts.gov/)
21) UTILITIES: Pacific Northwest Generating Cooperative v. BPA, 09-70228 (9th Cir. Aug. 28, 2009). Pacific Northwest Generating Coop. v. Dept. of Energy, 550 F.3d 846 (9th Cir. 2008), amended on denial of reh'g, 05-75638, 2009 WL 2386294 (9th Cir. Aug. 5, 2009), held invalid a central provision of a five-year contract between the Bonneville Power Administration ("BPA") and Alcoa, Inc. Less than a month later, the BPA announced that it and Alcoa had agreed to an amended version of the invalidated provision that would govern the nine-month period ending Sept. 30, 2009 (the original five-year contract would have expired in September 2011). The petitioners challenged the BPA's decision to execute the amended contract. The USCA agreed with the petitioners' challenge and granted their petitions for review. Although under no obligation to contract with Alcoa, BPA agreed voluntarily to make a $32 million cash "benefit" payment to Alcoa, so Alcoa could purchase power form one of BPA's competitors. BPA's justifications for this unusual transaction, under which the BPA received nothing directly in exchange for its $32 million, do not demonstrate that the transaction was "consistent with sound business principles," are required by BPA's governing statutes. The USCA thus held that BPA exceeded its statutory authority when it agreed to the Alcoa contract amendment. Fisher and Berzon (author), Circuit Judges, and Moskowitz, District Judge. E. Johnson of Lake Oswego, OR, and M. Thompson of Portland, OR, for the petitioners; AUSA S. Odell of Portland, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) CHILD PROECTION LAW: Mueller v. Rogers, 07-35554 (9th Cir. Aug. 10, 2009). Police Detective Rogers made a decision permitted by Idaho law to remove temporarily a sick infant from the custody of her parents in order to secure a medical diagnostic test and prophylactic treatment, procedures which pediatric doctors advised Rogers were necessary and within the standard of care for the infant's situation. The child had been taken to St. Luke's hospital in Boise, Idaho, by her mother, Corissa, while her father, Eric, remained at home to care for the couple's other child. Rogers intervened at the behest of hospital doctors after the child's mother refused to consent to the recommended procedures. Eric was not given pre-deprivation notice of the detective's intentions or post-deprivation notice by Rogers, and the child received a medical test and treatment in Eric's absence. Eric sued Rogers, claiming he was (1) deprived of his substantive due process rights, and (2) deprived of his individual procedural due process rights to both pre- and post-derivation notice in connection with the detective's decision. Rogers asserted qualified immunity. The district court (1) ruled with respect to both parties' competing motions for summary judgment on Eric's substantive due process claims that a genuine issue of material fact existed as to whether the child was in imminent danger when Rogers made his decision, (2) granted Rogers' request for qualified immunity on those substantive due process claim, (3) denied Rogers' request for qualified immunity on Eric's procedural due process claims, and (4) granted summary judgment to Eric on his procedural due process claims on the ground that Rogers' failure timely to notify him both before and immediately after the deprivation of custody violated his constitutional rights as a matter of law. The USCA held (1) that the district court erred in granting summary judgment to Eric on his procedural due process claims as a matter of law, and (2) that Rogers was shielded by qualified immunity from those same claims. The USCA thus reversed and remanded. Judge Wallace concurred only in the majority's conclusion that Rogers was entitled to qualified immunity. He dissented from the majority's exercise of appellate jurisdiction over the district court's partial summary judgment in favor of Eric on his procedural due process claims. He noted that the USCA's jurisdiction to hear appeals is strictly limited by statute and precedent. To hold that a partial summary judgment on the merits is akin to a denial of qualified immunity for the purposes of appellate jurisdiction constitutes, he thought, "a striking and unwarranted expansion of our limited jurisdiction." Wallace (dissenting in part), Trott (author), and N.R. Smith, Circuit Judges. M. Rosman of Washington, DC, for the plaintiffs-appellees; K. Naylor of Boise, ID, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) NATIVE AMERICAN LAW: Upper Skagit Tribe v. State of Washington, 07-35061 (9th Cir. Aug. 6, 2009). This case concerned the geographical scope of the Suquamish Indian Tribe's treaty right fishing grounds in the Puget Sound. In the 1850s, the U.S. signed a series of treaties with the tribes of the Pacific Northwest which reserved to the Tribes the "right of taking fish at usual and accustomed grounds and stations." In 1970, the U.S. initiated the underlying case, USA v. Washington, 384 F.Supp. 312 (W.D. Wash. 1974), against the State of Washington to vindicate the tribes treaty right to fish. As part of his opinion, District Judge Boldt determined the various tribes' usual and accustomed fishing grounds and stations: "The usual and accustomed fishing places of the Suquamish Tribe include the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River and including Haro and Rosario Straits, the steams draining into the western side of the portion of Puget Sound and also Hood Canal." USA v. Washington, 459 F.Supp 1020, 1049 (W.D. Wash. 1978). Some 30 years later the Suquamish changed its fishing patterns to include Saratoga Passage and Skagit Bay. The Upper Skagit Tribe initiated this action by requesting a determination that the Suquamish were fishing outside their adjudicated grounds. The district court granted summary judgment to Upper Skagit, finding that it had met its burden of showing that Judge Boldt did not intend to include these areas in Suquamish's traditional fishing grounds. The USCA reversed and remanded for entry of summary judgment in favor of the Suquamish. It concluded that it is at least as likely as not that Judge Boldt meant what he said: the Suquamish treaty territory "include[s] the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River." O'Scannlain, Rymer, and Kleinfeld (author), Circuit Judges. M. Hansen of Suquamish, WA, for the appellant; H. Chesnin of Seattle, WA, for the Upper Skagit Indian Tribe; J. Jannetta of LaConnor, WA, for the Swinomish Indian Tribal Community. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) NATIVE AMERICAN LAW: Bressi v. Ford, 07-15931 (9th Cir. Aug. 4, 2009). Bressi, a non-Indian, filed this action against four officers of the Tohono O'odham Police Department and the United States after he was stopped and cited at a roadblock on a state highway crossing the Tohono O'odham Nation Indian Reservation. The defendant officers all had some contact with Bressi at the roadblock. Bressi sought relief pursuant to 42 USC Sec. 1983 and Bivens v. Six Unknown Named Agents, 403 US 388 (1971), against the officers for operation of the roadblock, and sought relief under Sec. 1983 and the right to privacy provision of Art. 2, Sec. 8 of the Arizona Constitution for his citation and arrest. Finally, he sought relief under the Federal Tort Claims Act against the U.S. on a malicious prosecution claim arising out of his aborted prosecution. The district court granted summary judgment to the officers and the United States. It held that the officers' operation of the roadblock was purely a tribal endeavor. Sovereign immunity thus barred Bressi's Sec. 1983 and Bivens actions. It also held that Bressi's malicious prosecution claim failed because there was an independent prosecutorial decision to pursue the complaint against Bressi. The USCA affirmed in part but reversed and remanded the district court's grant of summary judgment on Bressi's Sec. 1983 action as it related to the operation of the roadblock. The USCA affirmed the dismissal of Bressi's claim relating to his arrest and citation. It also affirmed the grant of summary judgment on the Bivens action, the right to privacy under the Arizona Constitution, and the malicious prosecution claim. Canby (author) and Wardlaw, Circuit Judges, and Mills, District Judge. D. Euchner of Tucson, AZ, for the plaintiff-appellant; R. Frazier of Tucson, AZ, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) IMMIGRATION: USA v. Garcia-Villegas, 08-50503 (9th Cir. Aug. 4, 2009). Garcia-Villegas was convicted of the misdemeanor of attempting to enter the U.S. in violation of 8 USC Sec. 1325. He twice admitted the elements of an illegal entry by an alien into the United States. The government supplemented his admissions with the testimony of one witness who saw him climbing over the border fences separating the U.S. from Mexico and a second witness who apprehended him, with torn clothes and bloody hands, hiding in a bush on the American side. The USCA affirmed the conviction and held that Garcia's admission of alienage was sufficiently corroborated by the testimony of two witnesses. It did not decide whether a mere admission of border crossing would suffice to confirm an admission of alienage. Judge Graber concurred in most of the majority's decision and in its judgment, but she disagreed with the ma-jority's description of the holding of USA v. Hernandez, 105 F.3d 1330 (9th Cir. 1997). She said the holding of Hernandez was that mode-of-entry evidence was insufficient to corroborate a defendant's admission that he is an alien. Nevertheless, Judge Graber reached the same conclusion as the majority because she read the Hernandez holding as encompassing only mode-of-entry evidence admitted by the defendant. In Hernandez, the only evidence presented concerning the defendant's mode of entry was the defendant's own ad-mission. Here, by contrast, the government introduced testimony from two witnesses, one who saw the defendant scale the fences and another who found him hiding in the bushes. The distinction is significant, she thought, as the purposes of the corroboration rule are to avoid prosecutions based on insufficient investigation and avoid creating incentives for abusive tactics in eliciting admissions. Noonan (author), O'Scannlain, and Graber, Circuit Judges. J. Chavez of San Diego, CA, for the appellant; G. Manahan of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Mielewczyk v. Holder, 07-74246 (9th Cir. Aug. 5, 2009). Mielewczyk appealed the Board of Immigration Appeals' ("BIA") dismissal of his appeal from the immigration judge's ("IJ") order of removal. The BIA and IJ found him removable due to his prior state conviction under California Health and Safety Code Sec. 11352(a) for offering to transport heroin. At issue on appeal was whether the conviction violated any state law or regulation relating to a controlled substance (as defined in Sec. 802 of Title 21), rendering him removable under 8 USC Sec. 1227(a)(2)(B)(i). Because the statute of conviction by its own terms is a state law "relating to a controlled substance and Mielewczyk's conviction involved heroin, a controlled substance as defined in 21 USC Sec. 802(6), the USCA held that the BIA correct found him removable and denied his petition. Pregerson, Graber, and Wardlaw (author), Circuit Judges. S. Jezairian of Tucson, AZ, for the petitioner; S. Nickum of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) IMMIGRATION / FEMALE GENITAL MUTILATION: Benyamin v. Holder, 05-71488 (9th Cir. Aug. 24, 2009). Benyamin, a native and citizen of Indonesia, petitioned for review of the Board of Immigration Appeal's ("BIA") denial of his application for asylum, withholding of removal, and relief under the Convention against Torture. His wife is a native and citizen of Venezuela. The couple has three children. Benyamin maintained that his daughter, Annisa, suffered persecution in Indonesia by enduring female genital mutilation as a five-day-old infant, without his or his wife's consent. He fears that his younger daughter, Anakarina, may face genital mutilation if the family is forced to return to Indonesia. He also maintained that he faced past persecution and the threat of future per-secution on the basis of his membership in a particular social group, defining that group as Muslim men married to Roman Catholic women in Indonesia. Reasoning that female genital mutilation "appears to be of a less extreme variety" than those described in a case involving Ethiopia, the BIA affirmed the Immigration Judge's decision that Benyamin had not established that he suffered persecution or that he had a well-founded fear of future persecution. The BIA also rejected Benyamin's argument of persecution. The USCA granted the petition for review and remanded. It found that the BIA's determination regarding the persecution Annisa faced when she was forced to undergo female genital mutilation and the dismissal of that procedure as a lesser form of circumcision was erroneous. Female genital mutilation "constitutes persecution sufficient to support an asylum claim." Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir. 2005 (en banc). The BIA's conclusion to the contrary was at odds with Ninth Circuit law and represents a misunderstanding of the BIA's own precedent. The BIA also erred in failing to consider whether the threat that Anakarina would be forced to undergo female genital mutilation in the future could be a ground for relief in this matter. Substantial evidence supported the rejection of Benyamin's other proffered basis for relief. B. Fletcher, McKeown (author), and N.R. Smith, Circuit Judges. E. Wong of San Francisco, CA, for the petitioners; P. Keisler of Washington, DC, and R. LeFevre of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) IMMIGRATION: Fregozo v. Holder, 05-71268 (9th Cir. Aug. 12, 2009). At issue here was whether a California conviction for misdemeanor child endangerment is a "crime of child abuse" for purposes of the federal Immigration and Nationality Act ("INA"). Fregozo pleaded nolo contendere to one count of driving under the influence of alcohol or drugs and one count of child endangerment, both misdemeanors. Police officers stopped him after observing him exit a freeway at a high speed. The officers observed his frightened wife and saw his two children screaming and crying in the backseat. They ordered Fregozo from the car. After smelling alcohol on his breath and observing his demeanor, they suspected that he was intoxicated. The children indicated that they were afraid that his erratic diving would lead to a car crash. After he refused a field sobriety test, he was arrested and booked on the charges of driving under the influence and child endangerment. He was advised of the potential immigration consequences of a nolo plea, entered the plea as to both charges, and was sentenced to 15 days in county jail and three years probation. In 2001, the then-INS initiated removal proceedings. Fregozo appeared and admitted the factual allegations contained in the Notice to Appear and conceded his removability as charged. He then applied for cancellation of removal pursuant to Sec. 240A of the INA, 8 USC Sec. 1229b. The government moved to pretermit the application on the ground that the misdemeanor child endangerment conviction under California Penal Code Sec. 273a(b) was a conviction of a "crime of child abuse," rendering Pacheco statutorily ineligible for cancellation of removal pursuant to INS Sec. 240A(b)(1)(c). The immigration judge agreed with the government and denied Fregozo's application for cancellation of removal, holding that he was convicted of an offense "involving child endangerment or child abuse or child neglect." Fregozo then appealed to the BIA which affirmed. The USCA held that a conviction under Sec. 273a(b) is not categorically a "crime of child abuse" within the meaning of the INA and thus granted the petition for review and remanded for further proceedings, including the application of the modified categorical analysis. Thompson, Berzon (author), and N.R. Smith, Circuit Judges. S. Ogbu of Emeryville, CA, for the petitioner; J. Sponzo of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) IMMIGRATION: Uppal v. Holder, 07-72614 (9th Cir. Aug. 11, 2009). Uppal, a native and citizen of India, petitioned for review of the BIA's order dismissing his appeal. He maintained that the BIA erred in concluding that he had committed a crime which categorically involved moral turpitude, thus rendering him inadmissible at the time of his adjust of status, and subject to removal. Uppal also claimed that he was denied due process of law, and that the BIA abused its discretion in handling his appeal. The USCA denied the petition. Uppal's claim that the BIA failed to rule on or address his motion for remand bordered on disingenuous. While the BIA did not deny his motion for remand in any particular words, the order thoroughly addressed the moral turpitude issue, provided a reasoned analysis rejecting Uppal's claim, and dismissed his appeal. There was no abuse of discretion. Judge Berzon, dissenting in part, said she could not agree with that part of the majority's decision in which it deferred to the BIA's holding that a violation of Canada Criminal Code Sec. 268 is categorically a crime involving moral turpitude ("CIMT"). She would conclude that it is not and would remand to the agency to decide whether, under the modified categorical approach, Uppal's conviction qualified as a CIMT. Thompson (author), Berzon (dissenting in part); and N.R. Smith, Circuit Judges. M. Robles of San Francisco, CA, for the petitioner; AUSA T. Kleinert of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) IMMIGRATION / CRIMES OF VIOLENCE: Prakash v. Holder, 07-72831 (9th Cir. Aug. 26, 2009). At issue here was whether convictions for solicitation to commit rape by force, in violation of California Penal Code Sec. 653f(c), and solicitation to commit assault by means of force likely to produce great bodily injury, in violation of Sec. 653f(a), constitute crimes of violence under 8 USC Sec. 1101(a)(43)(F) for immigration law purposes. The USCA held that they do and thus dismissed the petition for review. USA v. Cox, 74 F.3d 189 (9th Cir. 1996), held that to ask someone to murder your wife for money involves a high degree of threat of physical force against one's wife. That is true about solicitation to commit rape and assault as well. The USCA thus held that solicitation to commit rape by force and solicitation to commit assault by means of force likely to produce great bodily injury are crimes of violence under Sec. 1101(a)(43)(F) and are aggravated felonies rendering an alien subject to removal under 8 USC Sec. 1227(a)(2)(A)(iii). Silverman, Clifton (author), and M.D. Smith, Circuit Judges. R. Jobe of 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/) 31) IMMIGRATION: S-Yong v. Holder, 07-70619 (9th Cir. Aug. 25, 2009). At issue here was whether the Department of Homeland Security met its burden of proving that the petitioner is removable from the U.S. as an alien convicted of a law relating to a controlled substance. A second issue was whether the petitioner met his burden of proving that he is eligible for relief from removal. Because there was no record documentation supporting either the order of removal or the ruling that the petitioner was barred from relief, the USCA found for the petitioner on both issues. Cudahy (author), Pregerson, and Hawkins, Circuit Judges. K. Davis of Pasadena, CA, for the petitioner; G. Katsas of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) IMMIGRATION / SENTENCING: USA v. Rivera-Ramos,
08-10174 (9th Cir. Aug. 21, 2009). The defendant, a native and citizen of Mexico,
entered the U.S. illegally in 1994. In 2002, he was convicted of attempted robbery
in the state of New York and received a 3 ½ year sentence. He was deported
in 2004, but returned 2 ½ years later in order to earn money to obtain
medical care for his father and to support his nine sibling, his son, and his
common law wife, who was pregnant with his second child. He was indicted by a
Grand Jury for illegal reentry after deportation in violation of 8 USC Sec. 1326.
He was also given a sentence enhancement under 8 USC Sec. 13226(b)(2), on account
of his prior attempted robbery conviction, which was, according to the Government,
a "crime of violence." He pled guilty to the illegal reentry charge.
At sentencing, he agued that his attempted robbery conviction was not a crime
of violence and that the 16-level upward adjustment should not be applied. The
district judge disagreed, but gave Rivera-Ramos the op-portunity-which he took-to
withdraw his plea agreement and preserve his right to appeal. Taking into account
the compelling reasons for Rivera-Ramos' return to the U.S., the fact that he
did not have multiple reentries after his initial deportation, and his limited
criminal record, which consisted solely of the attempted robbery conviction, the
district court imposed a 30-month sentence and 36 months of supervised release.
The advisory Guideline range was 41-51 months. The USCA affirmed. Following the
Second Circuit, the USCA held that New York's definition of "attempt,"
which requires conduct that comes within a "dangerous proximity to the criminal
end to be attained," People v. Warren, 66 N.Y.2d 831, 832-33 (1985),
is no broader that the definition at common law, which requires a "substantial
step towards committing the crime." USA v. Sarbia, 367 F.3d 1079, 1085-86
(9th Cir. 2004). The district court thus cor-rectly determined that Rivera-Ramos'
prior attempted robbery conviction was a "crime of violence." Reinhardt
(author), Siler, and McKeown, Circuit Judges. R. Sigal of Tucson, AZ, for
the appellant; AUSA A. Woodridge of Tucson, AZ, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
34) IMMIGRATION / SENTENCING: USA v. Saavedra-Velazquez, 08-10078 (9th Cir. Aug. 21, 2009). The defendant, a native and citizen of Mexico, entered the U.S. more than 30 years ago and has spent most of his life here. He married a U.S. citizen, and has a U.S. citizen son. Following a 2005 conviction for illegal reentry after deportation, he was indicted by the grand jury for illegal reentry by a deported alien in violation of 8 USC Sec. 1326(a) and entered an unconditional guilty plea. At sentencing, the district court placed him in a criminal history category VI, with an advisory Guidelines range of 77-96 months. He had accumulated a number of arrests and felony convictions over the course of his time in the U.S., most of which resulted in relatively short periods of incarceration; none were for more than three years. In 1989, however, he was convicted of felony attempted robbery under California Penal Code Sec. 211. On account of this conviction, the district court determined that he previously was deported after a conviction for a felony that is a crime of violence. In calculating the advisory Guidelines range, the district judge included a 16-level upward adjustment of his base offense level under Guideline Sec. 2L1.2(b)(1)(A)(ii). The defendant argued that the conviction for attempted robbery was not, categorically, a "crime of violence" for the purposes of Guideline Sec. 2L1.2 and that the 16-level upward adjustment should not apply. Relying on USA v. McDougherty, 920 F.2d 569 (9th Cir. 1990), the district court disagreed. The court nevertheless sentenced him to 41 months in prison, well below the Guideline range, due in part to his showing of "cultural assimilation" and to the fact that, for ten years, he had no violent criminal history. The USCA affirmed, holding that an "attempt" under California law is coextensive with an "attempt" at common law. The defendant's felony attempted robbery conviction was thus a "crime of violence" as defined by the Guidelines. The district court did not err in calculating the advisory Guidelines range to include a 16-level upward adjustment to his base offense level pursuant to Guideline Sec. 2L1.2(b)(1)(A). Reinhardt (author and special concurrence), Siler, and McKeown, (author), Circuit Judges. AFPD M. Powell of Reno, NV, for the appellant; AUSA G. Bower of Reno, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) FOURTH AMENDMENT: USA v. Fraire, 08-10448 (9th Cir. Aug. 4, 2009). Park rangers set up a vehicle checkpoint at the entrance to the Kings Canyon National Park as part of an effort to mitigate the illegal taking of animals in the park due to hunting, which is prohibited inside the park. All vehicles were stopped for about 15 to 25 seconds, and their drivers asked about hunting. When Fraire's vehicle was stopped, a ranger noted a strong order of alcohol on Fraire's breath. As a result, he was charged with driving un-der the influence and related offenses. In a motion to suppress, he argued that the suspicionless stop was unconstitutional. The USCA agreed with the district court that it was not. It held that a momentary checkpoint stop of all vehicles at the entrance of a national park, aimed at preventing illegal hunting-which is minimally intrusive, justified by a legitimate concern for the preservation of part wildlife and the preservation of irreparable harm, is directly related to the operation of the park, and confined to the park gate where visitors would expect to briefly stop-is reasonable under the Fourth Amendment. Silverman (author), Clifton, and M.D. Smith, Circuit Judges. D. Broderick of Fresno, CA, for the appellant; AUSA L. Brown of Fresno, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) DOUBLE JEOPARDY: USA v. Hector, 08-30271 (9th Cir. Aug. 18, 2009). At issue here was, as between the prosecutor and the trial judge, who determines which conviction to vacate when a defendant has been convicted of multiplicitous offenses in violation of the Double Jeopardy Clause? Hector possessed child pornography through a peer-to-peer network which allowed for file-sharing. He pled guilty to both receipt (Count I) and possession (Count II) of child pornography. See 18 USC Secs. 2252A(a)(2) (receipt) and 2252A(a)(5)(b) (possession). Shortly after he pled, it was decided in USA v. Davenport, 519 F.3d 940 (9th Cir. 2008), that conviction and sentencing for both receipt and possession violates the Double Jeopardy Clause when the charge are predicated on the same image or set of images. Hector then moved to vacate the possession or receipt conviction. The district court decided to address the matter during sentencing. At sentencing, the prosecution asserted that the government had the right to determine which charge should go; the defense said that discretion lay with the court. After the prosecution argued for its preferred sentence, the court noted that the prosecutor had not moved to vacate either conviction. The prosecutor responded that she would do so after Hector was sentenced on Count I. "Then I'll sentence him on Count II," the court replied. "But I have to sentence him, and I can only sentence him on one count. And if that's your choice, I'm gong to sentence under the count that I believe is appropriate." The prosecution then moved to vacate the possession conviction, and the count granted that motion. The court imposed a sentence for receipt at the low end of the Guideline range: 97 months. Hector appealed. The USCA reversed and remanded for the district court to hold a hearing and then to make a discretionary determination as to which conviction should be vacated. Goodwin, O'Scannlain (author), and Fisher, Circuit Judges. AFPD J. Rhodes of Missoula, MT, for the defendant-appellant; AUSA C. Peterson of Missoula, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) SHACKLING: USA v. Brandau, 06-10512 (9th Cir. Aug. 21, 2009). This appeal challenged a mandatory full body shackling policy applicable to all defendants at initial appearances implemented by the federal district judges of the Eastern District of California. During the pendency of the appeal, the official policy was rescinded and rewritten. Whether the full shackling policy continues in practice, however, is unclear. The USCA thus remanded the case to a district judge outside the Eastern District of California to conduct an evidentiary hearing regarding the present shackling practice at initial appearances and to determine in the first instance whether this consolidated case is now moot. The USCA then instructed that the judges of the Eastern District shall be notified of the evidentiary hearing. They may then, if they wish, retain separate counsel to represent their interest at that hearing, as the AUSA stated at oral ar-gument that she does not represent the court. Similarly, on remand, the Eastern District judges may wish to intervene in the proceed-ings, file an amicus brief, or decline to participate at all, as they see fit. Reinhardt (author), Noonan, and McKeown, Circuit Judges. R. Rainwater of Eugene, OR, for the defendants-appellants; AUSA K. Escobar of Fresno, CA, for the plaintiffs-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) POSSESSION OF FIREARMS: USA v. Gonzales, 07-30098 (9th Cir. Aug. 24, 2009). The USCA reviewed the issue in this case for the second time on remand from the U.S. Supreme Court. On May 4, 2009, the Supreme Court granted certiorari, vacated and remanded the USCA opinion for further consideration in light of Arizona v. Grant, 129 S.Ct. 1710 (2009). The USCA now held that Grant requires that Gonzales' motion to suppress be granted, and that his conviction be reversed. Gonzales had been convicted of possession of a firearm and ammunition by a prohibited person, in violation of 18 USC Sec. 922(g)(1). His conviction resulted from a firearm found during a traffic stop of the car in which he was riding. Following the arrest of another passenger for out-standing war-rants, the police searched the passenger compartment and discovered a loaded 9 millimeter Beretta in the glovebox. Gonzales moved to suppress, asserting that the search violated his Fourth Amendment rights. The district court denied the motion. The USCA affirmed the district court on all aspects of the appeal. It's ruling rested on New York v. Belton, 453 US 454, 460 (1981), which it read as per-mitting a warrantless vehicle search incident to the arrest of an occupant of the vehicle. The Grant court affirmed the Arizona Supreme Court's holding that that the broad reading of Belton was error. Reading Belton more narrowly, the Court announced the rule that "Po-lice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger com-partment at the time of the search or it is reasonable to belief the vehicle contains evidence of the offense of arrest. When these justifi-cations are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement apples." Grant, 129 S.Ct. at 1723-24. The Government conceded that, under Grant, the search of the vehi-cle was improper because Gonzales was handcuffed and secured in a patrol vehicle at the time of the search. However, the Government maintained that the search was in good faith under then-prevailing interpretation of Belton and that, therefore, the exclusionary rule should not be applied. But, the USCA found that the Government assertion was not directly supported by current Circuit case law. B. Fletcher (author), Paez and N.R. Smith, Circuit Judges. R. Pennell of Yakima, WA, for the appellant; AUSA T. Hanlon of Yakima, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) POSSESSION OF FIREARMS: USA v. Thongsy, 08-30198 (9th Cir. Aug. 17, 2009). Thongsy challenged his conviction for possession of a firearm in furtherance of a felony under 18 USC Sec. 924(c). He argued that the evidence was insufficient to prove he possessed a firearm because he was asleep, no firearm was on his person, and he shared a tent with two others. He also argued that, even if he possessed a firearm, the evidence was insufficient to prove he possessed it in furtherance of the underlying illegal marijuana operation. He also argued that the district court gave an improper jury instruction because the court stated that the jury could convict him if it found he possessed a firearm "during and in relation to the crime," as opposed to "in furtherance of" the crime. Because the evidence presented was sufficient to convict Thongsy, and because the district court's error in formulating the jury instruction was harmless, the USCA affirmed. W. Fletcher, Bea, and Ikuta (author), Circuit Judges. R. Stone of Medford, OR, for the appellant; K. Immergut of Medford, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) SEX OFFENERS: USA v. George, 08-30339 (9th Cir. Aug. 25, 2009). George was convicted of the federal crime of sexual abuse of a minor on an Indian reservation in violation of 18 USC Secs. 2243(a) and 1153. He served his sentence for that offense, but then failed to register as a sex offender in violation of the Sex Offender Registration and Notification Act ("SORNA"), 18 USC Sec. 2250. He was convicted of that new offense in 2008, pursuant to a conditional guilty plea, and now appeals that conviction. He argued that his conviction was invalid because the state where he was required to register, Washington, had not implemented SORNA. He further argued that SORNA's registration requirement was an invalid exercise of congressional power and violates the Ex Post Facto Clause of the U.S. Constitution. The USCA affirmed the conviction. The district court correctly denied George's motion to dismiss the in-dictment. The registration requirement under SORNA required him to register as a sex offender in the State of Washington, to which he moved from Idaho, even though Washington had not implemented the statute. SORNA's registration requirements are a valid exer-cise of congressional commerce power, and do not violate the ex post factor clause of the Constitution. Canby, Thompson (author), and Callahan, Circuit Judges. AFPD R. Pennell of Yakima, WA, for the defendant-appellant; AUSA A. Ekstrom for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) SENTENCING / SEX OFFENDERS: USA v. Vanderwerfhorst, 07-30336 (9th Cir. Aug. 6, 2009). At issue here is the sentencing procedure. The underlying crime itself is not at issue. Vanderwerfhorst, a convicted sex offender, pled guilty to one count of possession of child pornography, in violation of 18 USC 2252(a)(4)(B) and (b)(2). On appeal, he maintained that the district court violated the notice requirement of Fed. R. Crim. Proc. 32(h) when it imposed a sentence above the advisory range set forth in the Sentencing Guidelines. He also claimed that the court committed procedural error in relying upon unreliable information and assumptions and in failing to adequately explain the sentencing determination. The USCA rejected Vanderwerfhorst's arguments and affirmed. Vanderwerfhorst failed to show that his 168-month sentence was demonstrably based on false or unreliable information. The district court had imposed a sentence that it deemed reasonable based on the undisputed conclusion that Vanderwerfhorst posed a danger to society and, in particular, a grave risk to children-i.e., not due to any one specific piece of information or assumption. Thus, even if the USCA were to interpret the record in a manner to find error, any such error would be harmless under the weight of the aggravating evidence present in the instant case, and would thus fall well short of the plain error standard. Beezer, Tallman (author), and M.D. Smith, Circuit Judges. P. Deutsch of Seattle, WA for the defendant-appellant; V. Lombardi of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) SENTENCING: USA v. Benford, 07-50210
(9th Cir. Aug. 3, 2009). Benford appealed his conviction and 147-month sentence
for armed robbery. The USCA affirmed. It held: (1) the absence of defense counsel
from a short pretrial conference at which the pre-existing trial date was confirmed
and nothing else of substance happened did not constitute per se ineffective assistance
of counsel in violation of the Sixth Amendment; and (2) the sentencing court's
incorporation of the "brandished" finding in the presentence report
and the court's statement at sentencing that the defendant had "turned and
pointed the handgun at [the teller]," which was "an absolutely harrowing
experience for the victims," sufficed to support application of the seven-year
minimum sentence under 18 USC Sec. 924(c)(1)(A)(ii). Rymer, Graber (author),
and Bea, Circuit Judges. T. Adlai of Pasadena, CA, for the appellant; AUSA A.
Gannon of Santa Ana, CA, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
44) SENTENCING: USA v. Jackson, 08-30231 (9th Cir. Aug. 14, 2009). Jackson appealed the district court's denial of his motion for a sentence reduction pursuant to 18 USC Sec. 3582(c)(2). He had pled guilty to possession of crack cocaine with intent to distrib-ute, but maintained that the district court should have reduced his sentence on the basis of Amendment 706 to the Sentencing Guide-lines, which lowered the guideline ranges for crack cocaine offenses. Although the district court waived the mandatory minimum sen-tence in Jackson's case, the USCA held that his sentence nevertheless was based on the statutory mandatory minimum, not on a Guide-line range that was affected by Amendment 706. The USCA thus affirmed the district court's conclusion that it did not have the author-ity to grant relief under Sec. 3582(c)(2). B. Fletcher, Tashima (author), and Thomas, Circuit Judges. M. Donahoe of Helena, MT, for the defendant-appellant; W. Mercer of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) SENTENCING: USA v. Alba-Flores, 08-50135 (9th Cir. Aug. 18, 2009). Alba-Flores appealed his sentence for importation of methamphetamine. 21 USC Secs. 952, 960. He claimed that the district court erred when it determined that he had more than one criminal history point under the Sentencing Guidelines because he was serving a term of probation at the time of his federal offense, although his probation was terminated before he was sentenced. That precluded a grant of relief under 18 USC Sec. 3553(f) and Guideline 5C1.2 ("safety valve relief"). The USCA affirmed. At the time he committed his federal offense of importation of metham-phetamine, Alba-Flores was serving an actual sentence of probation exceeding one year, which arose out of a state misdemeanor con-viction. That sentence was not expunged by a state court within the meaning of Guideline Sec. 4A1.2(j). He was thus properly assigned two criminal history points pursuant to Guideline Sec. 4A1.1(d) and was not eligible for safety valve relief pursuant to Sec. 3553(b). Dissenting, Judge Kozinski noted that under USA v. Mejia, 559 F.3d 1113 (9th Cir. 2009), Alba-Flores served 11 months on probation for driving with a suspended license. Thus, under Mejia, he didn't serve a "term of probation of more than one year" and gets no criminal history points for that offense. Guideline Sec. 4A1.2(c)(1)(A). Judge Kozinski thought the majority had refused to follow Mejia, thereby precipitating a conflict in the law of the circuit. Kozinski (dissenting), Fernandez (author), and N.R. Smith, Circuit Judges. R. Feral of San Diego, CA, for the defendant-appellant; J. Orabona of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) HABEAS CORPUS: Randle v. Crawford, 08-15657 (9th Cir. Aug. 25, 2009). Randle is currently serving several live sentences without the possibility of parole in a Nevada state prison. He appealed from a district court order dismissing his petition for writ of habeas corpus on statute of limitations grounds. He maintained that the one-year statute of limitations on federal habeas claims should not bar his petition because (1) the respondents waived that affirmative defense, (2) judicial estopple precluded the respondents from asserting this defense, (3) his petition was timely under the statute, and (4) he was entitled to equitable tolling. The USCA affirmed. Morrison v. Mahoney, 399 F.3d 1042, 1046 (9th Cir. 2005), reiterated that the statute of limitations for habeas petitions is an affirma-tive defense. Fed. R. Civ. Proc. 8(c) and (12(b) thus require that the state raise the statute of limitations in its first responsive pleading to avoid waiving the defense. Morrison applied this principle to a case where the state failed to raise a procedural default defense in a motion to dismiss, but subsequently asserted the defense in its answer. "Rule 7(a) defines 'pleadings' as a complaint and answer; a reply to a counterclaim; an answer to a cross-claim; and a third party complaint and answer." The USCA thus concluded that a "motion to dismiss is not a responsive pleading within the meaning of the Federal Rules of Civil Procedure," thus the state did not waive its procedural default defense. Similarly, here the state's failure to raise the statute of limitations in its prior filings did not constitute waiver. Wallace (author), Thomas, and Bybee, Circuit Judges. F. Forsman of Las Vegas, NV, for the petitioner; the defendant-appellant; DAG D. Wilson of Las Vegas, NV for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)
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