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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) TAXATION: Keller v. CIR, 06-75441 (9th Cir. Feb. 26, 2009). Keller appealed a tax court order upholding the Commissioner's imposition of accuracy-related penalties for tax underpayments. He conceded that a 20% penalty for negligence was appropriate under 26 USC Sec. 6662(b)(1) but contested an enhancement to a 40% penalty for gross valuation misstatements under Sec. 6662(h). The USCA agreed with Keller that his tax under-payment was not "attributable to" a valuation over-statement. It held that Gainer v. CIR, 893 F.2d 225 (9th Cir. 1990), and the formula it embraced from the General Explanation of the Economic Recovery Tax Act of 1981, prepared by the staff of the Joint Committee on Taxation, require the validity of deductions be determined first, and that any over-valuation penalty be imposed only on any lingering inflated value. The USCA thus reversed the imposition of the gross valuation mis-statement penalty for 1994 and 1995. It affirmed the imposition of the 20% negligence penalty for both tax years, and remanded to the tax court to calculate the appropriate penalty, using the 20% multiplier, plus interest. B. Fletcher, Rymer (author), and Fisher, Circuit Judges. T. Merriam of Seattle, WA, for the petitioner; A. Sheehan of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) TAXATION: Load, Inc. v. CIR, 07-72564 (9th Cir. Feb. 2, 2009). Appellants Load, Inc. and Coad, Inc. challenged a tax court's determination of a federal income tax deficiency for the 2000 tax year. Although only Load and Coad were parties to this petition, As-sociated Dealers, Inc. and 12 affiliated entities raised similar arguments and agreed to be bound by the final outcome of this case. "ADI" refers to Load, Coad and the affiliated companies. The tax court held that certain of ADI's expenses were not deductible as ordinary and necessary business expenses under 26 USC Sec. 162(a) and had to be capitalized as inventory costs under 26 USC Sec. 263A. Without elaboration, the USCA approved and adopted the tax court's opinion as governing this case. See Load, Inc. v. CIR, 93 TCM (CCH) 969 (2007). Bright, Hug, and Reinhardt, Circuit Judges. Per Curiam. J. Daniels of Phoenix, AZ, for the petitioners; R. Morrison of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 3) BANKRUPTCY: In re Simpson, 07-15626 (9th Cir. Feb. 23, 2009). Simpson claimed that his single-premium annuity was exempt property. His bankruptcy trustee objected to this exemption, and the bankruptcy court sustained the objection. The Bankruptcy Appellate Panel affirmed. The USCA agreed, holding that, under the circumstances presented by this case, the annuity did not qualify as exempt property, either as life insurance or as a private retirement account. Wallace, Thomas (author), and Graber, Circuit Judges. H.L. Horner of Cortaro, AZ, for the debtor; M. Burkart of Carmichael, CA, Trustee. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) BANKRUPTCY: In re Costas, 06-16520 (9th Cir. Feb. 6, 2009). The Bankruptcy's Code's federal fraudulent conveyance provi-sion allows a trustee to avoid "any transfer … of an interest of the debtor in property" within a two year reach-back period where the transfer is actually or constructively fraudulent. 11 USC Sec. 548(a)(1). The question presented on appeal here was whether an Ari-zona disclaimer qualifies as a "transfer … of an interest of the debtor in property." The USCA answered this question in the negative and thus upheld the Bankruptcy Appellate Panel's refusal to avoid the disclaimer under Sec. 548. Applying the deferential approach to state law taken in Butner v. USA, 440 US 48 (1979), rather than the rule of Drye v. USA, 528 US 49 (1999), the USCA held that a dis-claimer that is properly executed under Arizona law does not qualify as the "transfer … of an interest of the debtor in property." Klein-feld and N.R. Smith (author), Circuit Judges, and Mills (author), District Judge. P. Sala of Phoenix, AZ, for the appellant; M. Bregman of Scottsdale, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) BANKRUPTCY: McKay v. Ingleson, 07-35362 (9th Cir. Feb. 23, 2009). At issue here was whether a student's financial ar-rangement with a university she attended constituted a non-dischargeable education loan under the Bankruptcy Code. The student, McKay, filed for bankruptcy in June 2003, and was granted a discharge in September 2003. In 2005, Ingleson, an attorney hired by Vanderbilt University, filed a complaint in state court on Vanderbilt's behalf, alleging that McKay did not pay her student loan. In January 2006, the state court granted a default judgment. McKay then commenced the adversary proceeding at issue here against Ingleson and Vanderbilt, alleging violation of the discharge injunction under 11 USC Sec. 524. The bankruptcy court ruled against McKay, and the district court affirmed. A very similar set of facts were addressed in In re Johnson, 218 B.R. 449, 456-57 (B.A.P. 8th 1998), where it was held that a student's arrangement with his university constituted a non-dischargeable student loan. The USCA found the Johnson analysis persuasive, and found no relevant differences between the agreement in the instant case and the arrangement in Johnson. McKay pointed to several features of her agreement which, in her view, were inconsistent with it being a loan, but the USCA found none of her contentions persuasive. Because McKay's student loan was exempt from discharge, Ingleson could not have violated the discharge injunction by attempting to collect the loan. O'Scannlain (author), Graber, and Bybee, Circuit Judges. T. Slominski of Tigard, OR, for the appellant; D. Gray of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) BANKRUPTCY / ATTORNEYS' FEES: In re Maple-Whitworth, Inc., 07-56537 (9th Cir. Feb. 10, 2009). This appeal concerns $42,257 in attorneys' fees and costs awarded pursuant to 11 USC Sec. 303(i)(1), following the dismissal of an involuntary bankruptcy petition. The debtor, Maple-Whitworth, Inc. sought fees and costs against only one petitioner, but under a theory of joint and several liability the bankruptcy court entered the award against other petitioners as well who had been served with the debtor's motion. The bankruptcy court failed to rule on a challenge to the award based on a waiver theory. A divided Bankruptcy Appellate Panel ("BAP") then affirmed the award to fewer than all the petitioners. The majority held that Sec. 303(i)(1) is governed by the common law theory of joint and several liability. The BAP also found that the bankruptcy court properly handled the waiver issue. The USCA affirmed the Sec. 303(i)(1) award in part, reversed in part, and remanded to the bankruptcy court for resolution of the waiver issue. Noonan and Silverman, Circuit Judges, and Conlon (author), District Judge. M. Sofris of Beverly Hills, CA, for the appellant; J. Kaplan of Beverly Hills, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) INSURANCE: Mundi v. Union Security Life Ins., Co.,
07-16171 (9th Cir. Feb. 11, 2009). Union Security Life Insurance Company
("USLIC") appealed a decision of the district court denying its motion
to compel arbitration in its dispute with Jasviro Mundi, the widow of decedent
Harnam Mundi. USLIC issued a life insurance policy to cover a loan taken out by
Harnam from Wells Fargo Bank. The policy did not contain an arbitration agreement,
but the loan agreement, to which USLIC was not a party, did contain an arbitration
provision. At issue on appeal was whether USLIC could enforce that arbitration
agreement, even though it was not a nonsignatory to the loan agreement containing
it. The USCA affirmed the district court's denial of USLIC's motion to compel
arbitration. The arbitration provision defines a dispute as a disagreement between
Wells Fargo and Harnam that "relates in any way to accounts, loans, services
or agreements subject to this Arbitration Agreement." Jasviro's dispute with
USLIC was not a disagreement between Wells Fargo and Harnam. Tashima (author),
W. Fletcher, and Berzon, Circuit Judges. S. Reich of Fresno, CA, for the appellee;
K. Rogers of Ridgeland, Miss, for the appellant. (Download
the full text of this decision at www.ce9.uscourts.gov/)
9) TRADE DRESS INFRINGEMENT / INSURANCE: United National Ins. Co. v. Spectrum Worldwide, 07-55833 (9th Cir. Feb. 2, 2009). At issue on appeal was whether the "first publication" exclusion found in the United National's excess insurance policy applies to infringement claims. The USCA held that it does. In addition, because the defendant presented the USCA with a legal posi-tion clearly inconsistent with a position it took and benefited from in earlier litigation, judicial estoppel prevented the USCA from al-lowing the defendant to argue that it first published infringing material after purchasing its excess insurance coverage. The district court properly granted summary judgment to the insurer on the issues of whether the policy's first publication exclusion applied to trade dress infringement claims, and whether Sunset's claim arose from information first published prior to the policy's effective date. Moreover, the district court did not abuse its discretion when it held Spectrum Worldwide's CEO and CFO jointly and severally liable for repayment of the insurer's contribution. Pregerson and N.R. Smith (author), Circuit Judges, and Collins, District Judge. J. Nielsen of Los Angeles, CA, for the appellees; P. Ross of Los Angeles, CA, for the appellant.(Download the full text of this decision at www.ce9.uscourts.gov/) 10) SECURITIES: Madden v. Cowen & Co., 07-15900 (9th Cir. Feb. 11, 2009). Sixty-three shareholders 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 ac-quiring corporation. The 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. The USCA found that the suit fell within SLUSA's savings clause, known as the "Delaware carve-out," which preserves certain state-law actions. 15 USC Sec. 77p(d). The complaint was based on the law of the State of California, the State in which the issuer of the relevant securities, St. Joseph Medical Corporation, was incorporated, and involves a communication (Cowen's fairness opinion) with respect to the sale of those securities. The communication was made by Cowen "on behalf of" St. Joseph, to the shareholders of St. Joseph, concerning the shareholders' response to an exchange offer. The USCA thus vacated and remanded to the district court with instructions to remand the action to state court. Hug, Noonan, and Ikuta (author), Circuit Judges. P. Borowski of San Francisco, CA, for the plaintiffs-appellants; L. Goldstein of New York, NY, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 11) LABOR LAW: Virginia Mason Medical Center v. NLRB, 07-73851 (9th Cir. Feb. 25, 2009). Virginia Mason Medical Center appealed the National Labor Relation Board's finding that it committed an unfair labor practice. The NLRB found that the Center unlawfully withdrew recognition from the United Staff Nurses Union, Local 141, within the protected certification year period. The Center argued that the certification year elapsed prior to its withdrawal of recognition. The USCA affirmed. The Center offered no evidence of bad faith delay by the Union other than its bare assertion that four months is an inexcusably long time to wait to start bar-gaining. The USCA agreed with the NLRB's finding that four months is a reasonable amount of time for the Union to reestablish con-tacts with the unit employees, and to process the information received from the Center. The USCA thus held that the Union was entitled to retain its presumption of majority status during the certification year. B. Fletcher (author), Rymer, and Fisher, Circuit Judges. M. Hutcheson of Portland, OR, for the petitioner; L. Dreeben of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 12) LABOR / RETALIATORY DISCHARGE: Lakeside-Scott v.
Multnomah County, 05-35896 (9th Cir. Feb. 12, 2009). This appeal involved
an alleged retaliatory discharge of an employee after she complained about co-workers
and a supervisor. It presents a question never before answered by the Ninth Circuit:
Can a final decision-maker's wholly independent, legitimate decision to terminate
an employee insulate from liability a lower-level supervisor who was involved
the process and had a retaliatory motive to have the employee fired? The USCA
concluded that on the record in this case, the answer had to be "yes"
because the termination decision was not shown to have been influenced by the
subordinate's retaliatory motives. Judge Berzon concurred in the result, but did
not agree with the majority's conclusion that there was insufficient evidence
from which a reasonable jury could have found that the lower-level supervisor's
retaliatory animus was a "substantial or motivating factor" in the decision
to terminate the plaintiff. Fisher (author), and Berzon (concurring),
Circuit Judges, and Barzilay, District Judge. G. Fisher of Portland, OR, for the
appellee; J. Morf of Portland, OR, for the appellant.(Download
the full text of this decision at www.ce9.uscourts.gov/)
14) LABOR / AMERICANS WITH DISABILITIES ACT: Rohr v. Salt River Project, 06-16527 (9th Cir. Feb. 13, 2009). Rohr appealed the district court's grant of summary judgment in favor of his former employer, Salt River Project Agricultural Improvement and Power District ("Salt River"). Rohr, an insulin-dependent type 2 diabetic, brought suit for employment discrimination in violation of the Americans with Disabilities Act. ("ADA"). Because the district court erred in holding that Rohr was neither "disabled" nor a "qualified individual" under the ADA, the USCA vacated its summary judgment and remanded for further proceedings. Rohr presented a genuine issue of material fact that his diabetes substantially limited his major life activity of eating and thus raised a genuine issue as to whether he was "disabled" under the ADA. He also raised a genuine issue as to whether he was "qualified" for his position within the meaning of the ADA, since with the exception of the respirator certification requirement, which may itself be found to be discriminatory, he provided sufficient evidence that he satisfied all of Salt River's job-related requirements and could perform the essential functions of his job. Paez and Berzon, Circuit Judges, and Baer, District Judge. L. Skon of Mesa, AZ, for the appellant; J. Egberg of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) CAMPAIGN FINANCE LAWS: Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 06-35883 (9th Cir. Feb. 25, 2009). Canyon Ferry Road Baptist Church challenged Montana's campaign finance law requiring reporting and disclosure of campaign contributions and expenditures. The Church challenged the statutory provision both facially and as applied to its activities of de minimis economic effect in support of a state ballot initiative. Following an adverse administrative decision by the Montana Com-mission of Political Practices, the Church brought this action in federal court, claiming that the Commissioner's decision violated its First Amendment and due process rights. It sought declaratory relief and nominal damages. On cross-motions for summary judgment, the district court upheld the Montana law against the challenges. The USCA reversed. It held that Montana's disclosure and reporting requirements were unconstitutional as applied to the Church's de minimis activities in connection with Constitutional Initiative No. 96. The USCA also held that designating the Church an "incidental committee" because of its one-time, in kind "expenditures" of de minimis economic effect violated the Church's First Amendment speech rights. Judge Noonan wrote separately to address the constitutionality of Mont. Code. Ann. Sec. 130-1-101, et seq. and the regulations thereunder in light of the Free Exercise Clause of the First Amendment. Pregerson, Canby (author), and Noonan (concurring), Circuit Judges. D. Schowengerdt of Scottsdale, AZ, for the plaintiffs-appellants; DAG A. Johnston of Helena, MT, for the defendants-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) LABELING VIOLENT VIDEO GAMES: Video Software v. Schwarzenegger, 07-16620 (9th Cir. Feb. 20, 2009). California's Governor and Attorney General (together "State") appealed a district court's grant of summary judgment for the Video Software Dealers Association and the Entertainment Software Association (together "plaintiffs"), and the denial of the State's cross-motion for summary judgment. The plaintiffs filed suit for declaratory relief seeking to invalidate newly-enacted California Civil Code Secs. 1746-1746.5 ("Act"), which imposes restrictions and a labeling requirement on the sale or rental of "violent video games" to minors on the grounds that the Act violates rights guaranteed by the First and Fourteenth Amendments. The USCA held that the Act, as a presumptively invalid content-based restriction on speech, is subject to strict scrutiny and to not the "variable obscenity" standard of Ginsberg v. New York, 390 US 629 (1968). Applying strict scrutiny, the USCA held that the Act violates rights protected by the First Amendment because the State has not shown a compelling interest, and has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State's expressed interests. In addition, the USCA held that the Act's labeling requirement is unconstitutionally compelled speech under the First Amendment as it does not require the disclosure of purely factual information; but compels the carrying of the State's controversial opinion. The USCA thus affirmed the district court. Kozinski, Thomas, and Callahan (author), Circuit Judges. DAG Z. Morazzini of San Francisco, CA, for the appellants; P. Smith of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) COMMERCIAL SPEECH / BILLBOARDS: Maldonado v. Morales, 06-15657 (9th Cir. Feb. 25, 2009). Maldonado raised constitutional challenges to the California Outdoor Advertising Act, Cal. Bus. & Prof. Code Sec. 5200, et seq. As a consequence of a legislative amendment in 2008, the Act bars offsite commercial advertising but does not restrict non-commercial speech. Sec. 5275. Although some of Maldonado's claims were mooted by the amendment, he continued to challenge the application of the Act to his effort to display off-premises advertising on a billboard. The USCA dismissed as moot Maldonado's appeal from the district court's injunction and affirmed the district court's grant of summary judgment on his other claims. Siler, McKeown (author), and Callahan, Circuit Judges. D. Zell of Millbrae, CA, for the appellant; R. Beals of Sacramento, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 18) FEDERAL AVIATION ACT / PERSONAL INJURY CLAIMS: Martin v. Midwest Express Holdings v. Braun, 07-55063 (9th Cir. Feb. 9, 2009). At issue here was whether, and, if so, to what extent, the Federal Aviation Act ("ACT"), 49 USC Secs. 40101 et seq., preempts airline passengers' personal injury claims. A pregnant woman fell from an airplane's stairs, injuring herself and her fetus. She sued the airline, Midwest Express, and the airplane's manufacturer, Fairchild Dornier and related companies, alleging that the stairs were defectively designed because they had only one handrail. Midwest Express settled the claim for $8 million, and sought in-demnity from the manufacturer. Relying on Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), the manufacturer maintained that the Act preempted the passenger's personal injury claims and, consequently, Midwest Express' indemnity claim. The district court dismissed the complaint. The USCA reversed. Concurring, Judge Bea agreed that the district court's order dismissing the complaint should be reversed, but to another result. He would hold that Montalvo requires the USCA to remand this case to the district court to allow a factfinder to consider evidence to determine the federal standard of care for negligence stairway design, and state standards for breach, causation, and damages. Kozinski (author) and Bea (concurring), Circuit Judges, and Huff, District Judge. J. McNicholas of Los Angeles, CA, for the plaintiffs; R. LaMontagne of Los Angeles, CA, for the defendants-third-party-plaintiffs-appellants; A. Willner of Los Angeles, CA, for the third-party defendant-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 19) AGRICULTURAL ADJUSTMENT ACT: Amalgamated Sugar Co., LLC v. Vilsack, 07-35971 (9th Cir. Feb. 11, 2009). Under review here was the construction and application of 7 USC Secs. 1359dd(b)(2)(E)-(F) of the Agricultural Adjustment Act. The USCA found the disputed provisions to be unambiguous. The district court thus erred in granting deference, under Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 US 837 (1984), to the interpretation advanced by the U.S. Dept. of Agriculture ("USDA"). The USCA held that under the Act a "processor" is an entity who processes sugar, as defined by the USDA's own regulations and entirely within the natural and ordinary meaning of the word. The Act requires the USDA to eliminate a processor's sugar marketing allocation when the processor has "permanently terminated operations (other than in conjunction with a sale or other disposition of the processor or the assets of the processor)." Sec. 1359dd(b)(2)E). The USCA held that Pacific Northwest Sugar Company ("Pacific") permanently terminated operations prior to and not in conjunction with the purported sale of assets to defendant-intervenor American Crystal Sugar Company. The USCA held that the USDA erred in approving the transfer of the allocation to American Crystal and that Pacific's sugar marketing allocation had to be redistributed pro rata among all processors. Sec. 1359dd(b)(2)(E). The USCA thus reversed the district court's summary judgment for the USDA and American Crystal. Wallace, Trott, and N.R. Smith (author), Circuit Judges. K. Brosch of Washington, DC, for the appellant; J. Kahn of Washington, DC, for the appellee; D. Bundle of Minneapolis, MN, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) CARRIAGE OF GOODS BY SEA ACT / CARMACK AMENDMENT: Regal-Beloit Corp. v. Kawasaki Kisen Kaisha Ltd., 06-56831 (9th Cir. Feb. 17, 2009). This case required the USCA to determine which federal statute governed "a maritime case about a train wreck," where the parties' agreement for carriage of goods from China into the U.S., first by sea and then by rail, included a Tokyo forum selection clause that would violate one federal law, but would be enforceable under another. Regal-Beloit and several other named plaintiffs contracted with Kawasaki Kisen Kaisha, Ltd ("K-line") to ship their goods from China to various American Midwestern destinations via the Port of Long Beach, California. K-line issued a through bill of lading to each shipper to cover the shipment from China all the way to the inland destination, designating the Carriage of Goods by Sea Act as the law to govern the carriers' responsibility during the entire shipment. Although K-line's own ocean liner carried the goods from China to Long Beach, its U.S. agent, K-line America ("KAM"), subcontracted with United Pacific Railroad Company ("UPRR") to transport the goods from Long Beach to the inland destinations. K-line is KAM's corporate parent, handling its domestic business dealings through KAM, in-cluding dispatching and receiving vessels and negotiating inland shipping with domestic carriers such as UPRR. The plaintiffs' cargo was allegedly damaged when UPRR's train derailed in Oklahoma. The plaintiffs filed a breach of contract suit against the defendants in California Superior Court. After UPRR removed the case to the district court, K-line and KAM moved to dismiss under the Tokyo forum selection clause in K-line's initial agreement with the plaintiffs. The district court granted the motion to dismiss, determining that the parties successfully avoided the strict venue limitations that apply by default to the rail portions of the shipments as a matter of federal law under the Carmack Amendment. The plaintiffs appealed. This case turned upon the answers to two questions, the first being which statutory framework should apply-The Carmack Amendment ("Carmack"), which provides the default rules governing the inland rail leg of a shipment between a foreign country and a point in the U.S., or the Carriage of Goods by Sea Act ("COGSA"), which is what the parties contractually agreed would govern? A reasonable forum selection clause typically is enforceable under COGSA, but such a clause is valid under Carmack only if the parties fulfill one of Carmack's two statutory methods for contracting out of the statute's venue restrictions. Ninth Circuit's precedent dictates that contractually extending COGSA to the inland rail leg cannot trump the statutory force of Carmack's default responsibility regime unless the parties properly agree to opt out of Carmack and thereby remove the statutory barrier to choosing COGSA as the government law. The USCA thus addressed the second question: Which of Carmack's two statutory opt out provisions applies to a contract for rail service that, like the contract here, has been exempted from regulation by the Surface Transportation Board? Unlike the district court, the USCA found the applicable requirements for opting out of Carmack in 49 USC Sec. 10502, instead of Sec. 10709. The USCA thus reversed and remanded for the district court to determine whether the parties contracted out of Carmack's venue restrictions under Sec. 10502 so as to make the Tokyo forum selection clause valid and enforceable. Trott, Thomas, and Fisher (author), Circuit Judges. D. Cammarano of Long Beach, CA, for the appellants; A. Nakazawa of Long Beach, CA, and L. McMurray of Valley Village, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) JURISDICTION: Davis v. HSBC Bank Nevada, N.A., 08-57062 (9th Cir. Feb. 26, 2009). The defendants appealed the district court's order granting Davis' motion to remand his putative class action to state court. At issue on appeal was whether Best Buy, a nationwide electronics retailer, has its principal place of business in California. Davis, as a private attorney general on behalf of himself and a putative class of similarly situated California consumers, sued HSBC Bank of Nevada, HSBC Financial Corporation, Best Buy Company, and Best Buy Stores in California Superior Court. He alleged claims for unfair competition under Cal. Bus. & Prof. Code Sec. 17200, false advertising under Sec. 17500, and common law fraud in the nature of concealment. His complaint alleged that the defendants defrauded California customers by offering credit cards without adequately disclosing the annual fee the customers would be charged for used of the card. The defendants removed the action to federal district court based on the Class Action Fairness Act of 2005 ("CAFA"). Davis then moved to remand the action to state court, arguing that the local controversy exception, 28 USC Sec. 1332(d)(4), barred the exercise of federal jurisdiction. The district court granted the motion. The defendants appealed. The USCA reversed, holding that Best Buy Stores does not have its principal place of business in California. It was thus not a citizen of California, the local controversy exception did not apply, and federal jurisdiction existed under CAFA. Judge Kleinfeld concurred in the result, but thought the majority had extended Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495 (9th Cir. 2001), beyond its facts. He would confine Tosco to its facts and clarify the "place of operations" test itself and when it applies. He thought that the com-parison of individual states generates expensive, unpredictable, and pointless litigation about corporate citizenship, likely to lead to inter-circuit conflicts about where a national business is a citizen. Kleinfeld (concurring), Bea (author), and Ikuta, Circuit Judges. S. Richter for the appellants; D. Pomerance for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 22) SOCIAL SECURITY: Bray v. Commissioner of Social Security, 06-36072 (9th Cir. Feb. 6, 2009). Bray appealed a district court's judgment affirming the Commissioner's final decision denying her application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Bray claimed that the ALJ failed to make findings concerning whether she possessed "transferable skills" as Social Security Ruling ("SSR") 82-41 expressly requires. She also claimed that the ALJ erred in discounting her testimony, in disregarding a treating physician's medical opinion, and in failing to account for her mental im-pairments in determining her residual functional capacity. Finally, she claimed that the ALJ applied the governing Medical Vocational Guidelines "mechanically" in a borderline situation in violation of 20 CFR Sec. 404.1563(b), by including her in the 50-54 age category even though she was less than a month from turning 55 at the time of the ALJ's decision. The USCA held that the ALJ erred by failing to make findings on the issue of whether Bray possessed transferable skills. It thus reversed and remanded. Judge WU concurred that the decision below should be reversed and remanded to the Commissioner but arrived at that conclusion by an entirely different approach. He thought the problem was not fundamentally due to a failure of the ALJ to make a specific finding regarding transferable skills, but to the inconsistent and erroneous findings actually made by the ALJ in his written decision and adopted by the district court. Tashima (author) and M.D. Smith, Circuit Judges, and Wu (concurring), District Judge. B. Stephens of Albuquerque, NM, for the appellant; L.J. Edwards of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) IMMIGRATION: Sun v. Mukasey, 06-74450 (9th Cir. Feb. 9, 2009). Sun is a native and citizen of China. She is also a battered spouse. The BIA affirmed the IJ's denial of asylum, withholding of removal, and CAT relief, and entered a final order of removal in 2004. Sun did not seek review of that decision but instead sought review of the BIA's denial, on timeliness grounds, of her motion to reopen removal proceedings on the basis of her successful application to qualify for an adjustment of status under the Violence Against Women Act, 8 USC Sec. 1154. Her motion to reopen was not filed within the year provided for in 8 USC Sec. 1229a(c)(7)(C)(iv)(III) due to her counsel's errors. She sought review of the BIA's ruling that she did not adequately show that her first lawyer was ineffective and did not act diligently to obtain new counsel after becoming aware of her first lawyers' errors. She also sought review of the BIA's denial of her motion for reconsideration of its previous decision, which the BIA also denied after finding that she failed to specify any errors of fact or law that would justify reversing the earlier decision. The USCA granted the petition and remanded to the BIA for consideration of the merits of Sun's motion to reopen. She acted diligently in retaining new counsel and was entitled to the benefit of the equitable tolling doctrine. The USCA also held that the BIA should have granted Sun's motion to reconsider as she pointed out the factual error underlying the BIA's denial of her motion. Schroeder (author), D.W. Nelson, and Reinhardt, Circuit Judges. D. Sieminski of Oakland, CA, for the petitioner; J. Sponzo of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) IMMIGRATION: Soto-Olarte v. Holder, 06-71822 (9th Cir. Feb. 23, 2009). Jorge Soto-Olarte and his wife petitioned for re-view of the BIA's opinion dismissing their appeal of an immigration judge's ("IJ") denial of their petitions for asylum, withholding of removal and protection under the Convention Against Torture ("CAT"). The USCA granted the petitions for review and remanded to the BIA for further proceedings, but held that on remand the BIA need not necessarily deem Jorge credible. It held that the IJ and BIA's adverse credibility determinations were not supported by substantial evidence. It remanded on an open record to give the BIA the opportunity to evaluate Soto-Olarte's credibility and allow him to explain inconsistencies. As the BIA had not evaluated the petitioners' eligibility for asylum or withholding of removal independently from its adverse credibility finding, the USCA also remanded to give the BIA an opportunity to make those determinations in the first instance. Noonan, W. Fletcher, and Gould (author), Circuit Judges. E. Quintanilla of Sherman Oaks, CA, for the petitioners; J. Jones of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 25) IMMIGRATION: Sinha v. Holder, 04-73843 (9th Cir. Feb. 10, 2009). Petitioners Sinha and his wife Singh are ethnic Indians and citizens of Fiji. In 2001, Sinha filed an application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT") for himself and, derivatively, for his wife. The Immigration Judge ("IJ") denied all relief, and the Board of Immigration Appeals ("BIA") adopted and affirmed that decision. On appeal, the petitioners challenged the BIA's dismissal of their appeal, and also contested the BIA's denial of their subsequently-filed motion to reopen, based on changed country conditions. The USCA granted the petition for review of the removal order and ordered the motion to reopen to be held in abeyance. It found that the record compelled the conclusion that, contrary to the IJ's decision, the harm Sinha suffered was "on account of" his race. The USCA thus remanded to the agency to make a finding with respect to the second and third prongs of a past persecution analysis, government inability and severity. If the government was indeed unwilling and/or unable to control Sinha's attackers, and if the harm was sufficiently severe, he will have established past persecution and will be entitled to a rebuttable presumption that his fear of future persecution is well founded. 8 CFR Sec. 1208.13(b)(1)(i). Even if the agency determines that the harm Sinha suffered in the past cumulatively does not rise to the level of past persecution, it will be relevant to his ability to show a well-funded fear of future persecution if he is removed to Fiji, under the disfavored group approach. Tashima, Berzon (author), and N.R. Smith, Circuit Judges. J. Siguenza of Burlin-game, CA, for the petitioners; W.D Smith of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Ramirez-Altamirano v. Mukasey, 06-71445 (9th Cir. Feb. 4, 2009). The petitioner sought review of the denial of his application for cancellation of removal. The Immigration Judge ("IJ") and Board of Immigration Appeals ("BIA") both found that his prior state conviction for possession of drug paraphernalia rendered him ineligible for relief, even though the conviction had been set aside under state law. Because the IJ and BIA erred in treating the set-aside conviction as an absolute bar to relief, the USCA granted the petition and remanded for further proceedings. The petitioner's set-aside conviction for possession of drug paraphernalia had been expunged, and, under Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), it could not be considered to deny relief for immigration purposes. The IJ and the BIA thus erred in finding the petitioner statutorily ineligible for cancellation of removal on the basis of that conviction and in finding that the conviction terminated the accrual of his "continuous physical presence" in the United States. The USCA thus granted the petition and remanded to the BIA to consider whether the petitioner is otherwise eligible for relief. Dissenting, Judge Ikuta noted that the majority holds that an alien convicted of the state offense of possession of drug paraphernalia and given limited relief under a state expungement scheme does not have a "conviction" for purposes of determining whether he/she is inadmissible under 8 USC Sec. 1182(a)(2) or deportable under 8 USC 1227(a)(2). The majority also held that the Equal Protection Clause compelled this ruling because aliens convicted of certain federal drug crimes expunged under the Federal First Offender Act ("FFOA") do not have a "conviction" for purposes of determining inadmissibility of deportability under Secs. 1182(a)(2) and 1227(a)(2). However, Judge Ikuta thought that the Equal Protection Clause does not compel the USCA to invalidate a distinction between aliens who receive relief under the FFOA and aliens who receive relief under state law, because "distinctions between different classes of aliens in the immigration context are subject to rational basis review and must be upheld if they are rationally related to a legitimate government purpose." Aguilera-Montero v. Mukasey, 548 F.3d 1248, 1252 (9th Cir. 2008). Before the USCA can invalidate such a distinction, it must "be wholly irrational." Id. Here, however, there was a rational reason for distinguishing between aliens whose convictions were expunged under the FFOA and those who obtain limited relief under the sort of state scheme at issue in this case. Wardlaw (author) and Ikuta (dissenting), Circuit Judges, and Fogel, District Judge. K. Bove of Escondido, CA, for the petitioners; R. LeFevre of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) NATIVE AMERICAN LAW: USA v. Cruz, 07-30384 (9th Cir. Feb. 10, 2009). The Ninth Circuit has distilled a specific test for determining whether an individual can be prosecuted by the federal government under 18 USC Sec. 1153, a statute governing the conduct of Indians in Indian Country. That test was announced in USC v. Bruce, 394 F.3d 1215 (9th Cir. 2005. Because the evidence adduced during the defendant's trial in the instant case does not satisfy any of the four factors outlined in the second prong of the Bruce test, the USCA held that, even when viewed in the light most favorable to the government, his conviction could not stand. The district court's failure to grant the defendant's motion for judgment of acquittal was plain error. The USCA thus reversed. Judge Kozinski dis-sented. He thought that because the defendant had the requisite amount of Indian blood, the only issue was whether he had "tribal or government recognition as an Indian." Bruce, 394 F.3d at 1223. Judge Kozinski thought he did. The record shows that the Blackfeet tribal authorities have accorded the defendant "descendent" status, which entitles him to many of the benefits of tribal membership, including medical treatment at any Indian Health Service facility in the U.S., education grants, housing assistance and hunting and fishing privileges on the reservation. That the defendant may not have taken advantage of these benefits didn't matter because the test is whether the tribal authorities recognize him as an Indian, not whether he considers himself one. That they do, Judge Kozinski added, is confirmed by the fact that, when he was charged with an earlier crime on the reservation, the tribal police took him before the tribal court rather than turning him over to state or federal authorities. How that case was resolved is not relevant; what matters, Judge Kozinski thought was that tribal authorities protected him from a state or federal prosecution by treating him as one of their own. Finally, the defendant was living on the reservation when he was arrested, further evidence supporting the jury's verdict. Kozinski (dissenting), Reinhardt (author), and Thomas, Circuit Judges. AUSA R. Archer of Helena, MT, for the plaintiff-appellant; AFD R.H. Branom of Great Falls, MT, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) UNLAWFUL ARREST / MALICIOUS PROSECUTION: Lassiter v. City of Bremerton, 07-35848 (9th Cir. Feb. 26, 2009). The Lassiters appealed the summary dismissal of their lawsuit against the City of Bremerton Police Department, Officers Santford and Thuring, the Kitsup County Prosecutor's Office, and the prosecuting. The Lassiters alleged that their constitutional rights were violated by unlawful arrest, malicious prosecution, and failure to investigate their claims. The USCA affirmed the district court's dismissal of the Lassiters' claims on summary judgment, and found no error in the court's jury instructions. B. Fletcher (author), Rymer, and Fisher, Circuit Judges. D. Smith of Seattle, WA, for the appellants; J. Zehnder, A. Cooley of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) EVIDENCE / MARITAL COMMUNCATION PRIVILEGE / PORNOGRAHY: USA v. Banks, 07-30130 (9th Cir. Feb. 25, 2009). At issue here was whether Banks' conviction on multiple counts involving the possession, production, transportation and receipt of images depicting minors engaged in sexually explicit conduct should be reversed based on the denial of his motion to suppress evidence seized pursuant to a warrant, the admission of testimonial evidence provided by Banks' wife alleged to be protected by the marital communications privilege, or the district court's adoption and/or application of definitions for "masturbation" and "lascivious." The USCA held that, although the ruling addressing the marital communications privilege was erroneous, the error was harmless. Judge Alarcon concurred in the majority's conclusion that the district court did not err in denying Banks' motion to suppress the evidence seized pursuant to the search warrant in this case, and in defining and applying the terms "masturbation" and lascivious." But he dissented from the majority holding that the district court's abused its discretion in admitting the testimony of Banks' wife that he told her he had produced a video for distribution on the internet to other pedophiles that depicted him masturbating their two-year-old grandchild. Judge Alarcon would affirm that ruling as well. Alarcon (dissenting in part), Graber, and Rawlinson (author), Circuit Judges. D. Charney of Eagle, ID, for the appellant; AUSA J. Peters of Boise, ID, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) SIXTH AMENDMENT RIGHT TO CONFRONT: USA v. Norwood, 08-30050 (9th Cir. Feb. 18, 2009). Norwood appealed his jury conviction for possession of cocaine with intent to distribute in violation of 21 USC Sec. 841(a)(1) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 USC Sec. 924(c)(1). As part of its case-in-chief, the government presented an affidavit prepared by an employee at the Washington Department of Employment Security, which certified that "a diligent search of the department's files failed to disclose any record of wages reported for [Norwood] from January 1, 2004 through March 31, 2007." Although the employee did not appear in person to testify, the court admitted her affidavit as circumstantial evidence that Norwood had no legal source for the large amounts of cash that were found on his person and in his car. On appeal, Norwood claims violation of his Sixth Amendment right to confront his accuser and violation of his due process rights both in trial and at sentencing. He also claimed that the evidence was insufficient to convict him for possession of a firearm in furtherance of a drug trafficking crime. The USCA affirmed Norwood's conviction and sentence. USA v. Cervantes-Flores, 421 F.3d 825 (9th Cir. 2005), controlled: the affiant in the instant case prepared a certificate of nonexistence of a record ("CNR") indicating that there was no record that Norwood had received taxable wages for the period in question. Such a record would have been among the business records of the Washington State Employment Security Department kept in the ordinary course of business, if Norwood had been legally employed in Washington during that time. Under the reasoning of Cervantes-Flores, the CNR in this case is not testimonial and is admissible under the Sixth Amendment. Reavley, Tallman, and M.D. Smith (author) Circuit Judges. T. Staab of Spokane, WA, for the appellant; J. McDevitt of Spokane, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) FELONY MURDER / JUVENILES: USA v. James, 07-10122 (9th Cir. Feb. 26, 2009). James was convicted of multiple criminal violations in a single trial. There were two issues on appeal. One involved the process for adding new charges against a juvenile after the district court has already approved his prosecution as an adult on charges previously filed against him. The other involved the imposition of multiple convictions and sentences for single acts of misconduct. James was 17 years old when he committed the crimes for which he was tried and convicted as an adult. Other charges related to the same series of acts were added after the juvenile transfer hearing and determination. James challenged the added charges, arguing that the Federal Juvenile Delinquency Act ("FJDA") requires that they also be the subject of a juvenile transfer hearing before he could be tried on them as an adult. The USCA disagreed and held that the FJDA, specifically 18 USC Sec. 5032, does not require that charges added after a juvenile has been transferred to adult status be the subject to an additional juvenile transfer hearing. James was convicted on separate counts of felony murder, second degree mur-der, and robbery, among other offenses. These three major convictions resulted from a single homicide committed during a single rob-bery. He was also convicted of three violations of 18 USC Sec. 924(c) for using a gun in connection with each of the major crimes. James challenged the multiple convictions and the sentences imposed based on those convictions on the ground that they represent multiple punishments for the same offense in violation of the Double Jeopardy Clause. The USCA agreed, concluding that the convic-tions for second degree murder, robbery, and the two related gun violations had to be vacated. A conviction for violating Sec. 924(c) is authorized only if separate conviction and punishment for the underlying offense is consistent with double jeopardy. Hug, Roth, and Clifton (author), Circuit Judges. J. Park of Phoenix, AZ, for the appellant; AUSA V. Kirby of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) HONEST SERVICE WIRE FRAUD: USA v. Selby, 07-30183 (9th Cir. The opinion of Jan. 15, 2009 has been withdrawn and replaced with this opinion filed Feb. 9, 2009). Selby, a former official of the Bonneville Power Administration appealed her jury conviction for honest services wire fraud, in violation of 18 USC Sec. 1343; making false claims and statements, in violation of 18 USC Sec. 1001; and felony conflict of interest, in violation of 18 USC Sec. 208. Selby argued that the district court erred by denying her motions for acquittal because the evidence was insufficient to convict. The USCA found that viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of all three crimes beyond a reasonable doubt. Because the evidence established that Selby knowingly violated Sec. 208 and the related provisions of Title 18 with which she was charged, the USCA affirmed her judgment of conviction. Tallman and Clifton, Circuit Judges, and Korman, District Judge. Per Curiam. P. Olson of Portland, OR, for the appellant; AUSA K. Zusman of Portland, OR, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 33) HONEST SERVICE WIRE FRAUD: USA v. Kincaid-Chauncey, 06-10544 (9th Cir. Feb. 20, 2009). Kincaid-Chauncey ap-pealed her convictions for honest services wire fraud, aiding and abetting honest services wire fraud, conspiracy to commit honest ser-vices wire fraud, and Hobbs Act extortion under color of official right. She raised three claims of error: that the district court precluded her from calling witnesses to support her defense and that the district court gave erroneous instructions on both the honest services fraud and extortion counts. The USCA affirmed. The jury instructions adequately stated the elements of 18 USC Sec. 1346 for each theory of prosecution. Concurring, Judge Berzon agreed with the majority that a quid pro quo requirement is not necessary in all Sec. 1346 prosecutions. She also agreed that, because Kincaid-Chauncey appealed only the lack of a quid pro quo instruction, the issue of whether a Sec. 1346 prosecution also requires a showing of private gain or a violation of a specific conflict of interest disclosure stan-dard was not properly before the USCA. Judge Berzon recognized that USA v. Weyhrauch, 548 F.3d 1237, 1248 (9th Cir. 2008), compels the conclusion that a violation of a state law disclosure requirement is not necessary to sustain an honest services fraud conviction, had that specific question properly been before the USCA. However, she wrote separately to express her view that where the government's Sec. 1346 theory rests on the defendant's failure to disclose a conflict of interest, reference to some well-defined external disclosure standard, expressed in state law or elsewhere, is necessary to limit an otherwise amorphous standard for criminal liability. Proving a specific intent to defraud-which, in her view, always includes an intent to deceive-is a necessary element of an honest services fraud prosecution, but is not sufficient as a limiting principle in the conflict of interest context. Where public officials are the target of such prosecutions, vague or amorphous disclosure requirements risk political misuse and manipulation. Kozinski, Berzon (concurring), and Bybee (author), Circuit Judges. FPD F. Forsman of Las Vegas, NV, for the appellant; AUSA D. Scheiss of Las Vegas, NV, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 34) MALICIOUS DAMAGE: USA v. Renteria, 07-50471 (9th Cir. Feb. 20, 2009). A jury convicted Renteria of maliciously damaging the Congregation Beth Am Synagogue, a building, used in interstate and foreign commerce, in violation of 18 USC Sec. 844(i). The synagogue Renteria burned was part of a complex of buildings which included a sanctuary, social hall, gift shop, and preschool daycare center. A preschool teacher ran the gift shop. Under an agreement with the synagogue, she paid a monthly rent of $400 and kept the profits on goods she sold. The shop was selling between $1,200 and $1,500 worth of goods each month. The synagogue had an internet link to the shop on its website. In his first appeal, Renteria maintained that the indictment was defective because it failed to allege a "substantial" effect on interstate commerce, which he argued was a necessary element of a violation of Sec. 844(i). He also maintained that evidence presented at trial was insufficient to prove a Sec. 844(i) violation, and that a jury instruction was improper. The USCA reversed Renteria's first conviction because the challenged jury instruction was improper. USA v. Renteria, 187 F. App'x 704 (9th Cir. 2006). In that decision, the USCA also addressed Renteria's other arguments. It held that it was not necessary to include in the indictment an allegation that the impact on interstate commerce was "substantial," and that the evidence was sufficient for conviction. After remand, Renteria moved to dismiss the indictment on the grounds that there was a lack of nexus to interstate commerce and that the indictment was duplicitous. The district court denied the motion. The case went to trial and Renteria again was found guilty. This appeal followed and the USCA affirmed. Viewing the evidence concerning the operation of the gift shop and the daycare center in the light most favorable to the government, a rational trier of fact could have found that these commercial uses were "not passive, passing, or past connections" to commerce and that the synagogue was used for interstate or foreign commercial purposes in addition to religious purposes. The evidence presented was sufficient to support Renteria's conviction under Sec. 844(i). Pregerson, D.W. Nelson, and Thompson (author), Circuit Judges. AUSA K. Hoffman of San Diego, CA, for the appellee; D. Zugman of San Diego, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) INEFFECTIVE ASSISTANCE OF COUNSEL: USA v. Nickerson, 07-30382 (9th Cir. Feb. 25, 2009). Nickerson was found guilty by a jury of conspiracy to distribute methamphetamine in violation of 21 USC Secs. 841(a)(1) and 846, and sentenced to 210 months in prison. He claimed that his attorney's admitted violation of Montana Rules of Professional Conduct Rule 4.2 in the days before trial rendered her performance per se ineffective. The USCA declined to adopt such a per se rule. Alternatively, Nickerson maintained that his attorney provided ineffective assistance under the Strickland v. Washington, 466 US 668 (1984), standard and that the district court abused its discretion by not granting a continuance or appointing new counsel. The USCA disagreed. It held that an attorney's violation of a rule of ethics or professional conduct before trial does not constitute per se ineffective assistance of counsel. Nickerson also had not shown prejudice under a traditional ineffective assistance of counsel analysis. District Judge Molloy had shown continuous concern for Nickerson's rights, and did not abuse his discretion in not granting a continuance or appointing new counsel for Nickerson. Reavley, Tallman, and M.D. Smith (author), Circuit Judges. J. Holden of Great Falls, MT, for the appellant; AUSA J. Van de Westering for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 36) SENTENCING: USA v. Romero-Ochoa, 08-30251
(9th Cir. Feb. 5, 2009). The appellant was indicted by grand jury for knowingly
and unlawfully re-entering the U.S. after having been previously arrested and
deported subsequent to conviction for an aggra-vated felony. He sought dismissal
of the indictment in a pretrial motion, claiming that the crime for which he was
previously convicted was not an aggravated felony, and that his indictment incorrectly
allowed for a sentencing enhancement basis on that conviction. He maintained that
due process entitled him to know whether he faced the consequences of conviction
following re-entry after an aggra-vated felony conviction as the sentence would
be longer. He claimed that he could not make an intelligent decision whether to
enter a guilty plea or proceed to trial without a pretrial ruling on that issue.
When the district court denied his motion, he requested that it revise the indictment
by striking reference to the aggravated nature of the felony. The district court
denied that relief as well, indicating that it would resolve the issue at sentencing.
The appellant then filed an interlocutory appeal, arguing that the district court's
failure to provide a pretrial judicial ruling on the disputed term "aggravated
felony" constituted a violation of his Sixth Amendment due process right
to notice. The USCA held that it lacked jurisdiction to hear the appeal and dismissed.
Beezer, Tallman, and M.D. Smith (author), Circuit Judges. S. Sady of Portland,
OR, for the appellant; AUSA K. Immergut of Portland, OR, for the appellee.(Download
the full text of this decision at www.ce9.uscourts.gov/)
38) SENTENCING: USA v. Beltran-Moreno, 07-10368 (9th Cir. Feb. 10, 2009). After pleading guilty to a multiple-count indictment charging two independent firearms counts under 18 USC Sec. 924(c), Jose and Abraham Beltran-Moreno benefited from the district court's erroneous construction of Sec. 924(c) at sentencing. As made clear in Deal v. USA, 508 US 129 (1993), when the government charges more than one Sec. 924(c) offense in a single indictment, each additional count is to be treated as a "second or subsequent conviction" for purposes of 18 USC Sec. 924(c)(1)(C)(i) and therefore carries a mandatory minimum sentence of 25 years. Because Sec. 924(c)(1)(D)(ii) requires that "no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed," each independent Sec. 924(c) count imposes a consecutive sentence on top of any other sentence imposed, either under Sec. 924(c) or under any other counts for which the defendant has been convicted. The defendants pled guilty to various drug offenses that, taken together, imposed a mandatory minimum sentence of 10 years. They also pled guilty to two Sec. 924(c) charges, the first required a mandatory minimum sentence of five years and the second required an additional sentence of 25 years. Because the statute does not allow any of these sentences to run concurrently, the mandatory minimum sentence for both de-fendants was 40 years in prison. But, the district court was not familiar with Deal. Despite the Government argument for a 40-year minimum sentence, it held that multiple Sec. 924(c) counts in a single indictment do not trigger the "second or subsequent" provision. The court thus added only two 5-year sentences-as opposed to a 5-year sentence plus a 25-year sentence-to the 10-year minimum required by the drug offenses. This error resulted in the calculation of a sentence of 20 years-20 years lower than that required by statue. The defendants' good fortune continued. Under the Guidelines, each defendant's conduct established an offense-level score of over 42 points. Regardless of a defendant's criminal history, the Guidelines recommend that someone convicted of so high an offense level be sentenced to no less than life in prison. But, the Guidelines are merely advisory. Taking into account the defendants' characteristics, the nature the crimes, and other relevant factors, the district judge exercised his discretion under 18 USC Sec. 3553(a) to depart downward from the Guidelines recommendations, sentencing the defendants to 35 years in prison instead of imprisoning them for the rest of their lives as the Guidelines suggest, but no longer mandate. In the end, the defendant not only avoided life sentences but because the district court was unaware of Deal, they received sentence 5 years below the mandatory minimum. Still, for reasons the USCA could not understand, the defendants appealed their sentences, arguing that instead of imposing a mandatory minimum of 20 years, the district court should have consolidated the two Sec. 924(c) sentences into a single 5-year term and imposed a 15-year minimum sentence for each. The USCA found this argument squarely foreclosed by decades-old circuit precedents. The government was entitled to charge the defendants with two separate Sec. 924(c) counts, and, once they pled guilty to those counts, the district court was required to impose consecutive minimum sentences of 5 and 25 years on top of the 10-year mandatory minimum that attached to the drug charges. Counsel did not urge the USCA to reconsider any of the precedents. Rather, they appeared to be simply ignorant of the controlling law. If the defendants' sentences were to be altered, there was only one direction they could go-up by at least 5 years. But fortunately for the defendants, in a decision issued one year after they filed their notices of appeal the Supreme Court held in a cases with similar facts that an appellate court cannot raise a defendant's sentence if the government has not appealed-even to raise the sentence to the statutorily required minimum. Greenlaw v. USA, 128 S.Ct. 2559 (2008). The government exercised its discretion not to seek on appeal the additional years of incarceration for which the statute provides. That decision saved Abraham from a higher sentence. Jose's appeal was even more brazen. He did not simply challenge the computation of the mandatory minimum sentence under Sec. 924(c), but challenged the district court's exercise of its discretion in imposing a 35 year sentence instead of the recommended term of life in prison. He thought the 35 year sentence was unreasonably high and procedurally invalid. However, the USCA noted that were Jose to prevail, it could not imagine that he would receive a more favorable sentence and might very well receive a higher one. The district court's sentence was procedurally sound under Sec. 3553(c), as it adequately explained the rationale for the discretionary decision to depart downward from the recommended life sentence. Nor could the sentence possible be unreasonably high as a substantive matter, as it was lower than legally permitted. Jose's appeal thus failed on both grounds, thereby sparing him from the adverse consequences he likely would have suffered had he succeeded. Hug, Reinhardt (author), and Tashima, Circuit Judges. AUSA B. Larson of Phoenix, AZ, for the appellee; L. Hamilton of Mesa, AZ, and J. Park of Phoenix, AC, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) SENTENCING: USA v. Alvarado-Martinez, 07-50492 (9th Cir. Feb. 5, 2009). Alvarado-Martinez challenged his sentence, arguing that the district court improperly relied upon a California Law Enforcement Telecommunications System database report ("rap sheet") in calculating his criminal-history score. The USCA affirmed. The district court did not abuse its discretion in ruling that the rap sheet was sufficiently reliable and did not clearly err in finding that Alvarado-Martinez had four prior misdemeanors. He did not deny that he had been convicted of the misdemeanors, but only that prosecution failed to provide sufficient evidence. However, the record contained sufficient evidence in the form of the fingerprint-matched rap sheet. Bright, Trott, and Hawkins, Circuit Judges. Per Curiam. DFPD J. Locklin of Los Angeles, CA, for the appellant; AUSA A. Raphael of Riverside, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) SENTENCING: USA v. Esparza-Herrera, 07-30490 (9th Cir. Feb. 25, 2009). The U.S. Government appealed the district court's ruling that the appellant's prior conviction for aggravated assault under Arizona Revised Statutes Sec. 13-1204(A)(11) was not a conviction for a "crime of violence" under Sec. 2L1.2 of the U.S. Sentencing Guidelines. The district court held that the Arizona statute did not correspond to the generic definition of "aggravated assault" listed as a "crime of violence" in Guidelines Sec. 2L1.2. As a result, the district court did not apply a 16-level enhancement to appellant's sentence for illegal reentry into the U.S. by a deported alien. The USCA affirmed. Under the categorical approach, aggravated assault requires a mens rea of at least recklessness under circumstances manifesting extreme indifference to the value of human life. Section 13-1204(A)(11) encompasses ordinary recklessness. The conviction thus was not a conviction for generic aggravated assault or a crime of violence. The district court correctly denied the request for a 16-level enhancement. Judge Gould, joined by Judges Tallman and Callahan, concurred. He would hold that the appellant might be sentence to a longer term in the public interest, without regard to the Circuit's standard requiring an assessment of what the majority of jurisdiction view as aggravated assault. He thought it better to look at the matter functionally, balancing fairness to the defendant being sentenced with fairness to the public that deserves protection. A common sense approach that examines the "ordinary, contemporary, and common meaning of Sec. 13-1204(A)(II) would, he thought, strike that balance. Gould (concurring), Tallman, and Callahan, Circuit Judges. Per Curiam. D. Hollar of Washington, DC, for the appellant; T. Monaghan of Boise, ID, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) CHILD PORNOGRAPHY / SENTENCING: USA v. Autery, 07-30424 (9th Cir. Feb. 13, 2009). Autery pled guilty to possession of child pornography and entered into a plea bargain that called for the imposition of a 41 to 51 month prison sentence, the applicable range under the Sentencing Guidelines. Notwithstanding this agreement, the district court deviated from the Guidelines and im-posed a sentence of 5 years probation with conditions. The government did not object to the sentence when the district court imposed it, but later appealed, arguing that it was substantively unreasonable. The USCA held that, for the reasons described in USA v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005), abuse of discretion is the appropriate standard of review where a party challenges a sentence's substantive reasonableness on appeal but had not objected to that sentence's reasonableness before the district court. Reviewing the sentence under that standard, the USCA affirmed, holding that the district court did not abuse its discretion in sentencing Autery. Dis-senting, Judge Tashima agreed with the government that the sentence was unreasonable under 18 USC Sec. 3553(a). He thought that the district court did not merely assign a sentence from a range of reasonable choices, but that it deviated below any range of reason-ableness and, in so doing seriously erred. Thompson, Tashima (dissenting in part), and M.D. Smith (author), Circuit Judges. K. Im-mergut of Portland, OR, for the appellant; W. Mackeson of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) HABEAS CORPUS: DeWeaver v. Runnels, 06-16865 (9th Cir. Feb. 25, 2009). DeWeaver petitioned for habeas relief arguing that the California Court of Appeal erroneously held that he failed to invoke his right to remain silent during interrogation, that his confession was voluntary, and that the trial court's interactions with the jury did not coerce a verdict. DeWeaver had to overcome the high standard of deference to a state-court decision mandated by the Antiterrorism and Effective Death Penalty Act, under which a state court decision may not be reversed unless it is contrary to or an unreasonable application of clearly established Supreme Court prece-dent, or based on an unreasonable factual determination. 28 USC Sec. 2254(d). As DeWeaver could not clear this hurdle, the USCA affirmed the denial of his petition. Hug (author), Noonan, and Ikuta, Circuit Judges. M. Pougiales of Novato, CA, for the petitioner; DAG J. Haley of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) HABEAS CORPUS: Dawson v. Marshall, 06-56454
(9th Cir. Feb. 9, 2009). At issue here was whether an Article III judge may decide
a habeas petition on which he had issued findings and recommendations in his prior
capacity as a magistrate judge. The USCA held that in the instant case, although
District Judge Larson's role violated no law and denied the petitioner no right,
the practice of district judges reviewing a case on which they have previously
sat as a magistrate is not desirable as it raises a problem of appearance. Thus,
in its supervisory capacity over district courts, the USCA suggest that district
courts avoid assigning new district judges to cases they handled as magistrates.
The USCA affirmed the district court's dismissal of the habeas petition. Hall,
O'Scannlain (author), and Paez, Circuit Judges. P. Afrasiabi of Costa Mesa,
CA, for the appellant; DAG H. Heckler of Sacramento, CA, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
45) PRISONERS' RIGHTS: Foster v. Runnels, 06-15719 (9th Cir. Feb. 5, 2009). Foster appealed an order of the district court granting summary judgment to Correctional Officer Cole on his 42 USC Sec. 1983 claim. He maintained that his Eighth Amendment right to be free from cruel and unusual punishment was violated when Cole deprived him of 16 meals over a 23 day period. The district court granted summary judgment on the grounds that Cole was entitled to qualified immunity because the constitutional right was not clearly established at the time of the alleged violation such that it would have been clear to a reasonable officer that his/her conduct was unlawful. The USCA reversed and remanded for further proceedings. It concluded that Cole was not entitled to qualified immunity. On the basis of the evidence presented, a jury could find that Foster suffered a sufficiently serious deprivation and that Cole was deliberately indifferent to the obvious risk of harm. In addition, it is clearly established under the Eighth Amendment that prison officials are obligated to provide inmates with nutritionally adequate meals on a regular basis. Summary judgment on Foster's Sec. 1083 claim was thus inappropriate. Cowen (author), Thomas, and Paez, Circuit Judges. M. O'Carroll of Sacramento, CA, for the appellee; R. Foster of Soledad, CA, pro se. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) HABEAS CORPUS: Briceno v. Scribner, 07-55665 (9th Cir. Feb. 23, 2009). Briceno appealed the district court's denial of his petition for a writ of habeas corpus. He had been convicted in the Superior Court of Orange County, California, following a jury trial, of four counts of second degree robbery and four counts of street terrorism. The jury found that the robberies had been committed for the benefit of a criminal gang. Briceno pursued various challenges to his convictions in the California state courts and in federal district court. Ultimately, the USCA granted a Certificate of Appealability as to two issues: whether there was sufficient evidence to support the gang enhancement conviction for each robbery, and whether the trial court erred by allowing the prosecution's expert to testify that the gang enhancement allegations were true. The USCA answered both questions in the negative. Judge Wardlaw concurred in the opinion, except as to Part III. She dissented from Part III, principally due to the standard she thought the USCA must apply on habeas review. The majority had disregarded the clear holding of the California appellate courts that a criminal act intentionally committed with another known gang member demonstrates specific intent to assist in criminal conduct by gang members-a holding that sustains the state court's finding of sufficient evidence to support the gang enhancement in Briceno's case. Judge Wardlaw thought that the majority disregard of the California Court of Appeal's decision was unwarranted as there is no convincing evidence suggesting that the Supreme Court would decide the question differently, and because that court has already placed its stamp of approval on the state court of appeals conclusion in this case that, no matter the interpretation of the statue, Briceno's crimes warrant the sentencing enhancement. Miner (author), Wardlaw (dissenting in part), and Berzon, Circuit Judges. V. Fu of San Francisco, CA, for the petitioner; DAG R. Jakob of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) HABEAS CORPUS: Waldron-Ramsey v. Pacholke,
07-35938 (9th Cir. Feb. 25, 2009). Waldron-Ramsey appealed the district court's
order denying equitable tolling of the statute of limitations on his 28 USC Sec.
2254 petition for a writ of habeas corpus and dismissing the petition as barred
because it was untimely. The USCA affirmed the district court's decision to deny
equitable tolling and affirmed the district court's denial of the petition as
time-barred. The Supreme Court and the policies behind AEDPA require that equitable
tolling be used only to protect diligent petitioners facing extraordinary circumstances
that prevent them from timely filing federal habeas petitions. Pace v. DiGuglielmo,
544 US 408, 418 (2005). The exception for equitable tolling could not be interpreted
so broadly as to displace the statutory limitations Congress crafted. The USCA
held that Waldron-Ramsey was not adequately diligent in filing his petition, which
was 340 days late. He thus was not entitled to equitable tolling. Beezer and Gould
(author), and Callahan, Circuit Judges. D. Zuckerman of Seattle, WA, for
the petitioner; P. Weisser of Olympia, WA, for the respondent. (Download
the full text of this decision at www.ce9.uscourts.gov/)
MEMORANDA
Unpublished decisions may not be cited to or by the courts of this circuit except when relevant under the Doctrine of Law of the Case, Res Judicata, or Collateral Estoppel. Rule 36-3
2) TAXATION: McDonough v. CIR, 07-73610 (9th
Cir. Feb. 23 2009) (unpublished). McDonough appealed a tax court order
up-holding the CIR's imposition of accuracy-related penalties for his underpayment
of tax for 1989 and 1991. The USCA reversed the gross valuation misstatement penalty
for 1989, affirm the negligence penalty for 1991, and remand to the tax court
for a determination of whether the negligence penalty should apply to the 1989
return. First, because the tax court in the partnership level proceedings for
Timeshare Breeding Services 1989-1 determined that all deductions taken by the
partners were invalid in full, McDonough's under-payment was "attributable
to" an unwarranted deduction, not overvaluation of an asset. The tax court's
decision upholding the 40% gross valuation misstatement penalty under 26 USC Sec.
6662(h) was erroneous. Second, the tax court did not err in upholding the 20%
negligence penalty imposed on McDonough for tax year 1991 under 26 USC Sec. 6662(b)(1).
The USCA has upheld the same penalty against other "Hoyt" investors.
Hansen v. CIR, 471 F.3d 1021, 1028-33 (9th Cir. 2006). While McDonough
may have done slightly more than Hansen to verify the legitimacy of the Hoyt investment
scheme, he still ignored numerous warning signs, including included a brochure
entitled "The 1,000 lb. Tax Shelter," correspondence from Hoyt about
litigation with the IRS, correspondence from the IRS that another of McDonough's
partnerships was being audited, the method by which the investment was funded,
the fact that McDonough was being allocated losses far in excess of the amount
he invested, the fact that McDonough was receiving depreciation deductions for
partnerships he never actually signed up for, and a series of letters exchanged
between Hoyt and the IRS that indicated Hoyt's cavalier treatment of the IRS's
interpretation of its own rules. Despite all this, McDonough, a relative layman
in determining the legitimacy of tax schemes, failed to consult an attorney or
a tax professional for advice. The fact that he might not have been able to uncover
Hoyt's fraud, even if he had tried, was no excuse. Hansen, 471 F.3d at 1032-33
("The issue is not whether a taxpayer is wholly successful in determining
the tax legitimacy of a desired investment, but whether he is negligent for not
reasonably investigating in the first place.") "Had [McDonough] sought
verification of the legitimacy of [his] investment and the associated tax deductions
from a source independent of Hoyt, [his] victimization arguments would be more
persuasive, even if the independent advice had failed to uncover the full extent
of Hoyt's scam." Id. at 1033. Tax court thus did not clearly err in determining
the warning signs sufficient to support a negligence penalty under 26 USC Sec.
6662(b)(1). Third, McDonough was not immunized from accuracy-related penalties
by the Treasury Regulations or the Internal Revenue Code. The tax court's decision
in Bales v. CIR, T.C. Memo. 1989-568, was not authority sufficient to show
a reasonable possibility that McDonough's depreciation deductions would be sustained
on the merits. See "Penalty on Income Tax Return Preparers Who Understate
Taxpayer's Liability on a Federal Income Tax Return or a Claim for Refund,"
56 Fed. Reg. 67509-01, 67516 (Dec. 31, 1991) (requiring a reasonable and well-informed
tax preparer to find that a position has at least a one in three chance of success
on the merits). Bales applied to investment made 10 years prior to McDonough's
involvement and before serious deterioration in the Hoyt operation, yet McDonough
sought no professional advice with respect to its significance. Hansen, 471 F.3d
at 1032-33. McDonough did not fare any better under the good cause exception found
in 26 USC Sec. 6664(c)(1). The USCA had previously rejected arguments that either
Hoyt's deceit or the Bales decision were sufficient to trigger Sec. 664(c)(1),
Hansen, 471 F.3d at 1032-33, and it did so again now. Fourth, the tax court did
not err in limiting trial time. Given the tax court's familiarity with Hoyt-related
cases and the narrow scope of the trial, the limitation was not unreasonable and
thus not an abuse of discretion. See Monotype Corp. PLC v. Int'l Typeface Corp.,
43 F.2d 443, 450 (9th Cir. 1994) (holding that trial time may be limited to "prevent
undue delay, waste of time, or needless presentation of cumulative evidence").
Likewise, there was no abuse of discretion in the tax court's evidentiary rulings.
The documents were largely cumulative, irrelevant, or both. B. Fletcher, Rymer,
and Fisher, Circuit Judges. (Download
the full text of this decision at www.ce9.uscourts.gov/)
5) INSURANCE / ANTITRUST: Live Nation, Inc. a v. Illinois National Insurance Co., 07-56658 (9th Cir. Feb. 20 2009) (unpublished). Live Nation appealed a district court order granting Illinois National Insurance Company's Rule 12(b)(6) motion to dismiss Live Nation's declaratory judgment action. Live Nation sought a declaration that Illinois National owed it a duty to defend in 22 consumer class actions alleging violations of the Sherman Antitrust Act. The USCA affirmed. Live Nation's liability policy expressly ex-cluded "antitrust violations" and claims under the Sherman Act. The exception to this exclusion for unfair competition alleged in con-junction with a covered wrongful act did not encompass the consumer claims alleged in this case. Standard Fire Ins. Co. v. Peoples Church of Fresno, 985 F.2d 446, 450 (9th Cir. 1993). The plaintiffs unjust enrichment claims were based entirely on the alleged anti-trust violations. Kleinfeld, Bea, and Ikuta, Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) INSURANCE: Butler v. Clarendon America Ins. Co., 07-16462 (9th Cir. Feb. 26 2009) (unpublished). Butler, the operator of the San Rafael Yacht Harbor ("SRYH"), appealed the district court's summary judgment for Clarendon America Insurance Company. The district court held that the insurance policy between Butler and Clarendon did not provide potential coverage for injuries allegedly suffered by Ramirez as a result of Butler's intentional acts against Ramirez's interests. The USCA saw no reason to disturb the district court's analysis. Commercial General Liability Sec. I, Coverage A ("CGL 1-A") provides only for potential coverage when bodily injury or property damage results from an "accident." Although the term "accident" is not defined in the policy, California courts have consistently defined it to require unintentional acts or conduct. Ramirez's complaint states that Butler injured him by trespassing upon, selling, and converting Ramirez's vessels and personal property. All the evidence provided to Clarendon before it denied Butler cover-age-including Butler's admission that he chained Ramirez's vessels to the dock, towed one vessel back to the SRYH, and hauled it from the water-suggested that Butler's actions were intentional. California courts have held that similar intentional acts by an insured do not constitute an "accident" within the meaning of comparable insurance policy language. See St Paul Fire & Marine v. Super. Ct., 208 Cal. Rptr. 5, 7 (Ct. App. 1984). Thompson, Berzon, and N.R. Smith, Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) IMMIGRATION: Al Bajah v. Holder, 08-72491 (9th Cir. Feb. 19, 2009) (unpublished). Al Bajah petitioned for review of a BIA order dismissing his appeal from an IJ order denying his motion to reopen proceedings conducted in absentia in 1993. Reviewing for abuse of discretion, the USCA denied the petition. The BIA denied Al Bajah's motion to reopen as untimely as it was not filed within the 180 day deadline. 8 CFR Sec. 1003.23(b)(4)(iii). Al Bajah argued that he was entitled to equitable tolling of the deadline due to ineffective assistance he received from an immigration consultant who was not an attorney. Specifically, he argued that the consultant advised him not to attend his 1993 immigration hearing and failed to keep him apprised of the status of his case. He said he looked for the consultant later that year, but was unable to find him. He did not hire a lawyer to look into his immigration status until 2001. Equi-table tolling is available "when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error." Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). Al Bajah failed to show that he acted with due diligence in discovering that the consultant provided him with ineffective assistance. Nearly 14 years passed from the date he was ordered removed in absentia to the date he moved to reopen before the IJ. His explanations as to why he did not discover that he had been ordered deported until sometime in 2006 were unpersuasive. The BIA thus did not abuse its discre-tion in denying the motion to reopen as untimely. Dissenting, Judge Pregerson thought that this case was but one of a multitude of cases by which the government's deportation of undocumented parents results in the deportation of their American-born citizen children, and effectively denies those children their birthrights. Cerrillo v. INS, 809 F.2d 1419, 1426-27 (9th Cir. 1987) (requiring the government to conduct individualized analysis of hardships to U.S. citizen children). The government's conduct forces U.S. citizen children to accept de facto expulsion or give up their constitutionally protected right to remain with their parents. To make matters worse, the Byzantine immigration laws and administrative regulation are second or third in complexity to the Internal Revenue Code. Petitioners seeking to legalize their presence are often forced to navigate this legal labyrinth alone, or with inadequate representation. In the vast majority of immigration cases before the Ninth Circuit, those who attempt to establish a productive life in America fall prey to unscrupulous networks of notarios and "appearance lawyers" who cheat immigrant clients and their families out of their hard-earned money. This state of affairs, he said, was a national disgrace, of which the government is well aware. He said he hoped that the government would craft a system to assure that applicants such as the petitioners are represented by competent counsel, and that will ameliorate the plight of families like the petitioner's and result in humane laws that will not cause families to disintegrate. Pregerson (dissenting), McKeown, and N.R. Smith, Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) IMMIGRATION: Ahmed v. Holder, 04-73286 (9th Cir. Feb. 26, 2009) (unpublished). Ahmed, a native and citizen of Pakistan, appealed the denial of his claim for asylum and withholding of removal, as well as his family's derivative claims for the same. Citing Matter of Burbano, the BIA affirmed the IJ's determination that changed country conditions in Pakistan rebutted the presumption of a well-founded fear as Ahmed's previous persecutor, the Muslim League, was no longer in power. As this finding was not supported by individualized substantial evidence, the USCA granted Ahmed's petition and remanded to the BIA to determine whether the presump-tion of future persecution is rebutted due to changed country conditions. Arreguin-Moreno v. Mukasey, 511 F.3d 1229 (9th Cir. 2008), held that where the BIA issues a Burbano affirmance, "all issues presented before the IJ are deemed to have been presented to the BIA." All of Ahmed's arguments made before the IJ, including his claim for asylum based on past persecution and his claim for with-holding, were thus preserved on appeal. Although the IJ's decision was less than clear, it appears he found that Ahmed's return trip to Pakistan undermined his fear of future persecution and may have been evidence of changed country conditions. Smolniakova v. Gonza-les, 422 F.3d 1037, 1050 (9th Circ. 2005), held that where an asylum applicant returns to his home country to care for an ailing parent, the trip does not undermine the applicant's objective fear of persecution, but rather shows the risk the alien is willing to take for loved ones. Here too, Ahmed's trip could not be considered substantial evidence that he had no fear of persecution and could not be used as evidence of changed country conditions to rebut the presumption of future persecution. The IJ's determination that Ahmed did not have a well founded fear of persecution, and that any presumption of future persecution was rebutted because the Muslim League was no long in power, was not supported by individualized evidence. A change in regime does not automatically rebut the presumption, particularly where the new leadership may harbor the same animosities as the old. In re N-M-A, 22 I&N Dec. 312, 318 (BIA 1998); Hanna v. Kiesler, 506 F.3d 933, 938 (9th Cir. 2007). The government failed to show that the new government in Pakistan is any less likely than the Muslim League to persecute Ahmed. The USCA remanded to the BIA to determine whether the presumption of future persecution had been overcome by changed country conditions in Pakistan, and to assess Ahmed's fear of future persecution form the current regime. Pregerson, Hall, and N.R. Smith, Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/)
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