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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) TRADEMARK INFRINGEMENT / INTERNET: Internet Specialties West v. Milon-DiGiorgio Enterprises, 07-55087 (9th Cir. Mar. 17, 2009). Milon-DiGiorgio Enterprises ("MDE") appealed the district court's grant of an injunction against further use of its registered domain name, "ISPWest.com." MDE asserted three challenges to this injunction: (1) that the jury's finding of trademark infringement, which gave rise to the injunction, was the result of an improper jury instruction; (2) that the district court erred in finding that the plaintiff's claim was not barred by laches; and (3) that the injunction was overbroad. The USCA found affirmed. The jury instruction followed the Model Civil Instructions by identifying the elements of infringement, and by listing the eight Sleekcraft factors under the element of likelihood of confusion. The wording of the injunction reflected the usual public interest concern in trademark cases: avoiding confusion to consumers. Dissenting, Judge Kleinfeld thought that on the issue of prejudice, the majority defied Circuit precedent, Grupo Gigante v. Dallo & Co., 391 F.3d 1088, 1105 (9th Cir. 2004), for no equitable reason he could see, and when it turned to injunction law, it defied Supreme Court precedent in Winter v. NRDC, 129 S.Ct. 365, 381 (2008). Fletcher (author), Kleinfeld (dissenting), and Rawlinson, Circuit Judges. W. Lloyd of Beverly Hills, CA, for the appellant; J. Wilson of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) BANKRUPTCY: In re Wardrobe, 07-16635 (9th Cir. Mar. 16, 2009). Griffin sued Wardrobe, a building contractor, and his bonding companies, for breach of contract after a disappointing home repair job. Three days before trial was to begin in Nevada state court, Wardrobe filed for Chapter 13 bankruptcy, which was converted to Chapter 7, and obtained the statutory automatic stay of the litigation pending in state court. Griffin then moved the bankruptcy court for a limited lifting of the stay to permit her to proceed against the bonding companies, using the defendant contractor as a witness. Her complaint alleged only a damages claim for breach of contract, costs and attorneys' fees. The bankruptcy court granted the motion. Griffin next filed an unopposed motion in the bankruptcy court to extend the bar date to object to discharge of debts until 30days after there has been a notice of entry of judgment in the pending state action. The bankruptcy court granted that motion. Wardrobe thereafter received a discharge in bankruptcy, became hard to find, and his attorney received permission to withdraw as counsel. The state case proceeded to trial but Wardrobe, if served, failed to appear. Griffin then filed an adversary petition in the bankruptcy court objecting to the discharge of the state judgment. After the matter worked it way through the BAP, the USCA adopted the reasoning of Nugent v. Am. Broad. Sys., 1 Fed. Appx. 633 (9th Cir. 2001), finding that it furthered the purposes of the automatic stay and left creditors with sufficient procedural safeguards to ensure that any judgment rendered was within the intended scope of the order granting relief from the stay or ratified by an order granting retroactive relief. The USCA held that an order granting limited relief from an automatic stay to allow a creditor to proceed to judgment in a pending state court action is effective only as to claims actually pending in the state court at the time the order modifying the stay issues, or that were expressly brought to the attention of the bankruptcy court during the relief from stay proceedings. Goodwin (author), Schroeder, and Hawkins, Circuit Judges. J. Bartlett of Carson City, NV, for the appellant; J. C. Demetras of Reno, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) BANKRUPTCY: In re Coleman, 06-16477 (9th Cir. Mar. 25, 2009). At issue here was whether "undue hardship" determina-tions-whereby bankruptcy courts decide whether student loans qualify for discharge-are ripe in a Chapter 13 case substantially in advance of plan completion. The USCA held that prudential ripeness considerations did not warrant taking the undue hardship deter-mination away from the bankruptcy court at a time when its resolution may be integral to successful completion of the plan. Absent a constitutional ripeness impediment to the undue hardship determination, the USCA saw no prudential reason to delay the determination where the record was sufficiently well-developed for the bankruptcy court to undertake the analysis. O'Scannlain and Hawkins (au-thor), Circuit Judges, and Selna, District Judge. C. Zaun of St. Paul, Minn. for the appellant; L. Fuller of San Jose, CA, for the appel-lee. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) BANKRUPTCY: In re Maple-Whitworth, 07-56537 (9th Cir. Mar. 11, 2009). The USCA's decision of Feb. 10, 2009 recounts that Sofris "filed an involuntary Chapter 7 petition against Maple-Whitworth under 11 USC Sec. 303(a)-(b)." The USCA adopted the BAP's characterization of the involuntary petition as a Chapter 7 petition. Sofris filed a notice of errata stating that the involuntary petition was a Chapter 11 petition. No objection was filed. The record confirms that the involuntary petition sought relief under Chapter 11. The USCA thus corrected its earlier decision to reflect that the involuntary petition invoked Chapter 11, not Chapter 7. 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/) 5) ENVIRONMENTAL LAW: Latino Issues Forum v. U.S. Environmental Protection Agency, 06-71907 (9th Cir. Mar. 5, 2009). The petitioners challenged the EPA's approval of a revision to the state implementation plan ("SIP") for San Joaquin Valley, California. The revision, known as Rule 4550, was part of the Conservation Management Practices ("CMP") Program, an air-pollution reduction program, established by the San Joaquin Valley Unified Air Pollution Control District. Rule 4550 aimed to reduce emissions from agricultural sources of a particulate known as PM-10. The USCA held that Rule 4550 comports with 42 USC Secs. 7509 and 7513a(b)(1)(B). Because the EPA made no clear error in holding that Rule 4550 complies with the "best available control measures" ("BACM"), because the EPA followed its regulatory process, and because that process was consistent with one approved in Vigil v. Leavitt, 381 F.3d 826 (9th Cir. 2004), the USCA held that the EPA's approval of Rule 4550 did not violate Sec. 7513a(b)(1)(B). The USCA thus denied the petition. Concurring, Judge Thomas agreed with the majority that the EPA's cramped reading of Sec. 7509(d)(2) could not be sustained, that Sec. 7509(d)(2) applied to Rule 4550, and that the petitioners did not waive their objection to the EPA's interpretation. He also agreed that the EPA's interpretation of Sec. 7509(d)(2)-that the statute requires only those measures that the Administrator may reasonably prescribe in light of technological achievability, costs, and economic, health, and environmental effects-was reasonable. In addition, he thought Vigil controlled the question of whether the "menu" approach to controlling emissions satisfies the statutory requirement that an area designated as having a "serious" air pollution problem must implement the best available control measures. As he saw no principled distinction to be drawn between Virgil and the instant case, he concurred in full with the majority. Nevertheless, if not constrained by Vigil, he would grant the petition. He did not think the EPA's Vigil-approved regime draws a distinction-much less a principled one-between the "best available control measures" to be use in areas of "serious" pollution and the "reasonably available control measures" required in areas of "moderate" pollution. Wallace, Thomas (concurring), and Graber (author), Circuit Judges. P. Cort of Oakland, CA, for the petitioners; T. Lorenzen of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) ENDANGERED SPECIES ACT: Trout Unlimited v. Lohn, 07-35623 (9th Cir. Mar. 16, 2009). At issue here was whether the National Marine Fisheries Service ("NMFS") may distinguish between natural and hatchery-spawned salmon and steelhead when de-termining the level of protection the fish should be afforded under the Endangered Species Act ("ESA"). The district court held that NMFS may consider listing only an entire species, subspecies or distinct population segment. Because NMFS had placed the hatchery coho and the natural coho in the same evolutionarily significant unit ("ESU"), NMFS was required to list both hatchery and natural coho as endangered, or neither as endangered. The district court thus struck down the Oregon coast coho listing as arbitrary and capricious. Rather than appeal, NMFS revised its Interim Hatchery Policy to eliminate the distinction between natural and hatchery fish in listing determinations. That policy was the focus on appeal of the NMFS's decision under the new policy to down-list a population of Upper Columbia River steelhead from "endangered" to "threatened." The USCA upheld the district court's ruling that the challenged Sec. 4(d) regulations permissibly distinguish between hatchery and naturally spawned salmon. (Regulations regarding takings are referred to as "Sec. 4(d) regulations," a reference to the original ESA section.) In addition, the USCA found that it is permissible to take some members of a threatened ESU, but not others. The Sec. 4(d) regulations herein at issue represent the agency's reasonable judgment that permitting the destruction of some members of an ESU enables the remaining portions to flourish. O'Scannlain (author), Rymer, and Kleinfeld, Circuit Judges. D. Schiff of Sacramento, CA, for the intervenors; P. Goldman of Seattle, WA, for the appellees; E. Durkee of Seattle, WA, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) ICC ARBITRATION: Kam-Ko Bio-Pharm Trading Company v. Mayne Pharma (USA), Inc., 07-35449 (9th Cir. Mar. 11, 2009). Kam-Ko successfully sued the defendant in district court to compel arbitration before the International Chamber of Commerce ("ICC"). However, Kam-Ko then filed a new suit in district court seeking a declaration that the ICC's $220,000 advance arbitration fee was so high as to be substantively unconscionable under the Federal Arbitration Act and Washington State law. The court rejected the plaintiff's contentions and, when the parties failed to comply with its directive to proceed with arbitration within 60 days, dismissed the plaintiffs declaratory relief action with prejudice. The USCA affirmed. In this purely commercial dispute, Kam-Ko failed to meet its burden of showing that ICC arbitration costs were so excessive as to be substantively unconscionable. Kam-Ko was also not entitled to a jury trial or an evidentiary hearing. Finally, the district court did not fail to properly consider sworn testimony regarding Kam-Ko's financial hardship. Beezer, Tallman, and M.D. Smith (author), Circuit Judges. S. Knibb of Seattle, WA, for the appellant; A. Middleton of Seattle, WA, for the appellees. ( (Download the full text of this decision at www.ce9.uscourts.gov/) 8) RECEIVERSHIPS: Plata v. Schwarzenegger, 08-17412 (9th Cir. Mar. 25, 2009). This case arose out of a receivership created by the district court to oversee the provision of health care at prisons under the jurisdiction of the California Department of Corrections and Rehabilitation ("CDCR"). The Receiver brought a motion for contempt against California Governor Schwarzenegger and State Controller Chiang (the "State") for failure to fund the Receiver's capital projects. After a hearing, the district court entered an order on October 27, 2008 which directed the State to transfer $250 million to the Receiver by November. 5, 2008, and to appear in a contempt hearing shortly after that date if it had not done so. The State appealed on the grounds that the order violated California's Eleventh Amendment immunity and the Prison Litigation Reform Act. Alternatively, the State asked the USCA to issue a writ of mandamus to halt the implementation of the order. Because the order clearly contemplated further proceedings, rendering it non-final, the USCA dismissed the appeal for lack of jurisdiction. It also held that the requirements for issuance of the writ of mandamus were not met. It thus denied that petition as well. Schroeder, Canby (author), and Hawkins, Circuit Judges. DAG D. Powell of San Francisco, CA, for the petitioners; J. Brosnahan of San Francisco, CA, for the receiver. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) RECEIVERSHIPS: Canada Life Assurance v. LaPeter,
07-35683 (9th Cir. Mar. 4, 2009). LaPeter, as trustee for the LaPeter 1985
Living Trust, appealed the district court's order appointing a receiver to manage
the Park Center Mall in Boise, Idaho. In 1996, LaPeter purchased the Mall for
$9.6 million, made a $2.4 million down payment, and financed the rest through
a promissory note is-sued by Crown Life Insurance Company. The note was secured
by a Deed of Trust. In 1999, Crown Life assigned the note to Canada Life Assurance
Company. In 2005, LaPeter began negotiating with Canada Life to refinance the
loan at a lower interest rate. Canada Life agreed to a lower interest rate based,
in part, on LaPeter's representations that one mall tenant would renew its lease
for reduced rent and another would not renew at all. However, LaPeter subsequently
entered into a new lease agreement with the first tenant which resulted in a significant
increase in rental payments and the second decided to extent its lease for two
years. LaPeter did not disclose either development to Canada Life. When Canada
Life learned about them, it cancelled its refinancing commitment. LaPeter was
unable to obtain alternative financing and defaulted on the note. Canada Life
then foreclosed on the Deed of Trust and initiated a state court action which
LaPeter removed to federal court. The district court appointed a receiver, but
failed to specify whether it was applying state or federal law in making the appointment.
The USCA affirmed. It joined the Eighth and Eleventh Circuits in holding that
federal law governs the appointment of a receiver where jurisdiction is premised
on diversity. It also held that district courts have broad discretion to consider
a number of factors in deciding whether to appoint a receiver and that no one
factor is dispositive. Applying these standards, the USCA ruled that the district
court's appointment of the receiver was not an abuse of discretion, and that requiring
certain rents to be turned over to the receiver was within its discretion in administering
the receivership. As Canada Life was the prevailing party on appeal, the USCA
also ruled that it was entitled to attorneys' fees under the terms in the Deed
of Trust. Gould, Tallman, and Callahan (author), Circuit Judges. B. Squyres for
the appellee; E. Berg for the appellants. (Download
the full text of this decision at www.ce9.uscourts.gov/)
11) FAIR DEBT COLLECTION PRACTICES ACT: Rowe v. Educational Credit Management Corp., 07-35046 (9th Cir. Mar. 18, 2009). Rowe sued the Educational Credit Management Corporation, alleging violations of the federal Fair Debt Collection Practices Act ("FDCPA"), and Oregon state law. The district court dismissed Rowe's federal claims for failure to state a claim under Fed. R. Civ. Proc. 12(b)(6) on the ground that the defendant's collection activity was "incidental to a bona fide fiduciary obligation" and thus not subject to the FDCPA. It dismissed without prejudice Rowe's state law claims under 28 USC Sec. 1367(c). The USCA re-versed and remanded, holding that while a "guaranty agency" owes a fiduciary obligation to the Department of Education under the Higher Education Act of 1965, the collection activity alleged here was not "incidental to" such an obligation within the meaning of the FDCPA because the defendant acted solely as a collection agent. W. Fletcher (author) and Fisher, Circuit Judges, and Breyer, District Judge. T. Slominski of Tigard, OR, for the appellant; S. Tweet of Salem, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) CLASS ACTIONS / CONTRACTS: Chalk v. T-Mobile USA, 06-35909 (9th Cir. Mar. 27, 2009). At issue here was whether the district court properly dismissed a consumer class action pursuant to an arbitration agreement between T-Mobile and its customers. The USCA found that the agreement's class action waiver was substantively unconscionable and thus unenforceable under Oregon law. Under Oregon law, only substantive unconscionability is necessary to find that an agreement is unenforceable. Because Oregon courts have declared that class action waivers in consumer contracts where individual damages are likely to be small are substantively uncon-scionable and the waiver here was contained in a contract of adhesion, T-Mobile's class action waiver was not enforceable. Because the arbitration agreement prohibits severance of that waiver, the agreement as a whole was unenforceable. The USCA thus reversed the district court's order dismissing the case ending arbitration. Goodwin, Pregerson, and Reinhardt (author), Circuit Judges. K. Read of Lake Oswego, OR, for the appellants; S. Ferrell of Newport Beach, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) CLASS ACTIONS: Tanoh v. Dow Chemical Company, 09-55138 (9th Cir. Mar. 27, 2009). At issue here was whether seven individual state court actions, each with fewer than 100 plaintiffs, should be treated as one "mass action" eligible for removal to federal court under the Class Action Fairness Act of 2005 ("CAFA") which extends federal removal jurisdiction to civil actions in which monetary relief claims of 100 or more persons are tried together because their claims involve common questions of law or fact. The USCA upheld the district court's order remanding the actions. As none of the actions involved claims of one hundred or more persons, none were removable under CAFA. The USCA expressed no opinion as to whether a state court's sua sponte joinder of claims might allow a defendant to remove an action to federal court as a single "mass action" under CAFA. Hawkins, Berzon (author), and Clifton, Circuit Judges. M. Brem of Houston, TX, for the appellant; R. Metzger of Long Beach, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) DIRECT MARKETING / DECEPTIVE CLAIMS: FTC v. Stefanchik, 07-35359 (9th Cir. Mar. 13, 2009). At issue here was whether the district court correctly granted summary judgment to the Federal Trade Commission ("FTC") in this action against Stefanchik and Beringer Corporation under the Federal Trade Commission Act and the Telemarketing Sales Rule. The FTC alleged that the defendants made false and deceptive claims while marketing a program purporting to teach purchasers how to become wealthy by buying and selling privately held mortgages. Holding that the defendants failed to meet the FTC's overwhelming evidence of deceptive claims with evidence to create a triable issue of fact, the USCA affirmed. Reavley (author), Tallman, and M.D. Smith, Circuit Judges. D. Levin of Seattle, WA, for the appellant; J. Stefanchik pro se; L. Melman of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) LABOR LAW / JURSIDICTION: Intl. Union of Operating Engineers v. County of Plumas, 07-16001 (9th Cir. Mar. 20, 2009). When Plumas County laid off five employees, allegedly for budgetary reason, the Union filed a grievance, claiming that the layoffs were pretext for disciplinary terminations. It sought to arbitrate the grievance under its collective bargaining agreement. Plumas asserted that the layoffs were not subject to arbitration and removed the action to federal district court. It ordered Plumas to arbitrate. On appeal, Plumas argued that the district court had no business deciding the question because it lacked subject matter jurisdiction over the case that Plumas itself had removed. The USCA held that Plumas was not barred from raising the jurisdictional argument and that the district court did lack subject matter jurisdiction. However, it remanded to permit the district court to address the question of whether attorneys' fees, costs, or sanctions should be assessed, and then to remand the case to the California Superior Court in and for the County of Plumas. Thomas (author) and Paez, Circuit Judges, and Walker, District Judge. M. Chase for the appellant; S. Welty for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) LABOR LAW: Southern California Painters & Allied Trades v. Rodin & Co., 06-56246 (9th Cir. Mar. 10, 2009). The Union brought suit alleging that Rodin & Company and Southern California Painting ("SCP") were alter egos, and that Rodin was thus bound by the Master Labor Agreement signed by SCP. The USCA affirmed the district court's judgment in favor of Rodin. The Union offered a novel "reverse" alter ego claim wherein a non-union employer opens a union company in an effort to avoid future collective bargaining obligation. The USCA said it knew of no court that has recognized a reverse alter ego doctrine, and the Northern District of Illinois has explicitly rejected it as "patently inequitable and illogical," because a company that has not signed a collective bargaining agreement cannot simultaneously be avoiding a collective bargaining agreement. The USCA found that reasoning persuasive. Goodwin, Kleinfeld, and Bybee (author), Circuit Judges. E. Greenstone of Pasadena, CA, for the appellant; J. Strumreiter of Agoura Hills, CA, and G. Khougas of Santa Monica, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) INSURANCE / ERISA: AMI v. Illinois Union Ins. Co., 07-35812 (9th Cir. Mar. 25, 2009). Alexander Manufacturing Employee Stock Ownership Plan, the sole shareholder of Alexander Manufacturing, Inc. ("AMI"), sued its Illinois Union Insurance Company to recover under a policy it issued to AMI. AMI was the assignee of post-loss claims under the policy. The district court held that, under Oregon law, the policy's anti-assignment clause prevented a post-loss assignment of the claims to the plaintiff. The USCA reversed. It agreed with AMI that Groce v. Fid. Gen. Ins. Co., 448 P.2d 554 (Or. 1968), is good law and stands for the proposition that an anti-assignment clause worded like the one herein at issue applies only to pre-loss assignments. Graber (author), Fisher, and M.D. Smith, Circuit Judges. M. Maurer of Spokane, WA, for the appellant; D. Verfurth of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) ERISA: Paulsen v. CNF, Inc., 07-15142 (9th
Cir. Mar. 20, 2009). The plaintiffs here are former employees of CNF, a company
that underwent a substantial reorganization. They alleged that as a result of
the reorganization, which included a spinoff of an under-performing division in
which they worked, their retirement benefits were substantially reduced. The spinoff
created a new company, Consolidated Freightways Corporation ("CFC").
Concurrently, CNF spun-off part of the defined benefit pension plan in which the
plaintiffs were participants. The plaintiffs then became members in a new plan
sponsored by CFC. Both plans were governed by ER-ISA. In connection with the plan
spinoff, CNF engaged Towers, Perrin, Forster & Crosby ("Towers")
to value benefits liabilities to be transferred to the CFC-sponsored plan and
associated assets to be transferred to cover those liabilities. This was done
to certify com-pliance with the ERISA requirement that each participant in the
spun-off plan would (if the plan then terminated) receive a benefit im-mediately
after the spinoff equal to or greater than the benefit he would have been entitled
to receive immediately before the spinoff (if the plan had then terminated). Towers
also provided actuarial services to the new CFC-sponsored plan and certified for
several years after the spinoff that the new plan was adequately funded. After
the spinoff, CFC declared bankruptcy and "distress terminated" its pension
plan, which was then determined to be under-funded by roughly $216 million. The
termination resulted in the Pension Benefit Guaranty Corporation ("PBGC"),
a government corporation, becoming trustee over the defunct plan. PBGC pays reduced
benefits to participants of distress-terminated plans from assets pooled from
all terminated plans. The plaintiffs sued CNF, CNF Service Com-pany, the Administrative
Committee of the CFC Pension Plan and its individual members for breaches of their
ERISA-based fiduciary duties in connection with the spinoff. They also sued Towers
for professional negligence under state law in valuing the plan liabilities to
be transferred at spinoff and in repeatedly certifying post-spinoff that the new
plan was adequately funded. Finally, they sued PBGC for not pursuing claims against
the other defendants in connection with the spinoff. The district court dismissed
all of the claims. The USCA affirmed the district court's dismissal of the ERISA-based
claims because the plaintiffs lacked Article III standing to pursue several of
those claims and lacked standing under ERISA to pursue others. It was not likely
that their injury would be redressed if they were to prevail on those claims.
Moreover, the plaintiffs' claims seeking relief under 28 USC Sec. 1132(a)(3) did
not seek appropriate equitable relief. The USCA affirmed the dismissal of the
claim against PBGC because PBGC's non-enforcement decisions were pre-sumptively
immune from judicial review, and the plaintiffs could not rebut that presumption.
PBGC's discretionary decision not to pursue claims against the fiduciary defendants
or Towers is not subject to review because of the complicated balancing of policies
and interest PBGC must engage in to determine whether such enforcement action
is proper, a task which is within PBGC's peculiar expertise. Finally, the USCA
held that the plaintiffs might be able to state a claim for professional negligence
against Towers under California law and remanded for further proceedings on a
more developed factual record. Siler, McKeown, and Callahan (author), Circuit
Judges. T. Renaker of San Francisco, CA, for the appellants; D. Bacon and G. Tell
of San Francisco, CA, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
20) WORKERS COMPENSATION: Van Skike v. Director, Office of Workers' Comp. Programs, 07-73886 (9th Cir. Mar. 2, 2009). This case involves an appeal from the Benefits Review Board's ("BRB") affirmance of attorneys' fees awards granted by the Administrative Law Judge ("ALJ") and the District Director ("DD") in a matter arising under the Longshore and Harbor Workers' Compensation Act ("LHWCA"). After prevailing on all issues on his claim for hearing loss benefits, Van Skike's attorney claimed compensation at a market rate of $350 per hour. The bulk of the litigation on the benefits claim had occurred before the ALJ, but the DD resolved several issues as well. After reviewing the evidence submitted by both parties as to what hourly rate was appropriate, and after considering the applicable attorneys' fees regulation, 20 CFR Sec. 702.132(a) the ALJ granted the attorney a rate of $250 per hour for the time the attorney expended litigating before the ALJ. And, based upon the complexity of the issues heard before her, the DD granted the attorney a rate of $235 per hour for the attorney's time expended litigating before the DD. The BRB affirmed both awards, finding that the ALJ and DD properly applied Sec. 702.132(a) in arriving at their respective hourly rates. On appeal, the USCA vacated and remanded in part and affirmed in part. W. Fletcher and Fisher, Circuit Judges, and Roll (author), District Judge. C. Robinowitz of Portland, OR, for the petitioners; J. Dudrey of Portland, OR, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) INSURANCE: Walker v. GEICO General Ins. Co., 07-15357 (9th Cir. Mar. 10, 2009). Walker does business as PJ's Auto Body ("Walker"). He filed putative class actions against two insurance companies doing business in California: USAA Casualty Insurance Company ("USAA") and GEICO General Insurance Company. He claimed violations of various California statutes in connection with volume discount agreements the insurers had with other automotive body repair shops ("direct repair providers"). He also challenged the inclusion of negotiated prices in price surveys that insurance companies are permitted to conduct under California law: Cal. Code Regs. Tit. 10, Sec. 2698.91. The district court dismissed the action for failure to state a claim on which relief could be granted. The USCA affirmed. As the district court correctly pointed out, the discounts negotiated between the insurance companies and the direct repair providers reflect the proper functioning of the market to bring about lower prices to consumers. Walker's desire to charge more than the market will bear did not transform the defendants' lawful formation of service contracts into a forbidden conspiracy to destroy competition. Schroeder (author), Canby, and Hawkins, Circuit Judges. D. Johnson of Beverly Hills for the appellant; R. Derevan of Costa Mesa, CA, and J. McGuire of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) ONE-VOYAGE FISHING CONTRACTS / EVIDENCE: Day v. American Seafoods. Co., 07-35712 (9th Cir. Mar. 2, 2009). Day, as executor of O'Neal's estate, appealed an order of the district court barring extrinsic evidence pertaining to the duration of O'Neal's employment agreement with American Seafoods Company ("ASC"). O'Neal signed a contract to work for ASC that was lim-ited to one fishing voyage and included an integration clause. His neck and back were injured on that voyage. ASC paid O'Neal wages through the end of the trip. O'Neal did not sign a new contract to work with ASC. Day sought "unearned wages" for a period of time longer than the single voyage agreed upon, and maintained that the extrinsic evidence would show an oral understanding for that longer period. The district court declined to admit parol evidence on the question. The USCA affirmed, noting that there were valid reasons why both the employee and the employer may wish to enter into one-voyage contracts. It declined to declare such contracts uncon-scionable per se. Beezer, Gould (author), and Callahan, Circuit Judges. J. Merriam of Seattle, WA, for the appellant; A. Gaspich of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) LONGSHOREMENS' BENEFITS: Christensen v. Stevedoring Services, 07-70247 (9th Cir. Mar. 2, 2009). The petitioners appealed the amount of attorneys' fees awarded them by the Benefits Review Board of the U.S. Department of Labor ("BRB") under the Longshore and Harbor Workers' Compensation Act. The USCA vacated and remanded. On remand, it directed the BRB to re-evaluate its decision awarding attorneys' fees and directed it to make appropriate findings regarding the relevant community and prevailing market rate, but did not required it to award a delay enhancement. W. Fletcher and Fisher, Circuit Judges, and Roll (author), District Judge. C. Robinowitz of Washington, DC, for the petitioner; J. Dudrey of Portland, OR, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) INDIVIDUALS WITH DISABILITIES EDUCATION ACT: Joshua A. v. Rocklin Unified School District, 08-15845 (9th Cir. Mar. 19, 2009). This appeal focused on the financial aspect of a federal program designed to accommodate the special educational needs of a child with disabilities. It pitted parents anxious to secure their child's education, against a school district conscious of its educational mission and limited funds. Joshua, a child affected by autism, maintained that Rocklin Unified School District failed to provide him with a Free and Appropriate Public Education in accordance with 26 USC Sec. 1412(a)(1)(A). In a memo disposition, the USCA affirmed the district court's denial of Joshua's appeal. Here, the USCA addressed only Joshua's motion for stay put seeking reimbursement for educational costs incurred during the pendency of this appeal. Less than one month after filing this appeal, Joshua filed a motion for stay put under Sec. 1415(j) of the Individuals with Disabilities Education Act ("IDEA"), requesting that the School District continue to co-fund his in-home intervention program through the appeals process. The statute requires the state to maintain the child's "current educational placement" during the course of "any proceedings conducted pursuant to this section." 20 USC Sec. 1415(j). The phrase "current educational placement" includes the placement described in the child's most recently implemented Individualized Education Plan ("IEP"). For Joshua, the most recently implemented IEP requires the district to co-fund 40 hours a week of in-home educational services administered by Therapeutic Pathways, a nonpublic agency. The USCA remanded to the district court to determine what the school district owes Joshua for the cost of his education during the pendency of his appeal. It noted that refusing to enforce the stay put provision during the appeals process would force parents to choose between leaving a child in an education setting which potentially fails to meet minimum legal standards, and placing that child in private school at their own costs. Congress sought to eliminate this dilemma through its enactment of Sec. 1415(j). Allowing the School District to terminate a child's placement during the appeals process, while it continues to receive federal education finding, runs counter to the purpose of Sec. 1415(j). Noonan (author), Kleinfeld, and Ikuta, Circuit Judges. B. Varma of El Dorado Hills, CA, for the appellant; M. Gutierrez of Sacramento, CA, for the ap-pellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) SOCIAL SECURITY: Bruce v. Astrue, 06-35529 (9th Cir. Mar. 5, 2009). Bruce appealed the district court's judgment affirming the Commissioner of Social Security's decision to deny his application for Supplementary Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles II and XVI of the Social Security Act. Because the ALJ failed to adequately address competent lay witness testimony favorable to Bruce, the USCA reversed the district court's judgment and remanded. Schroeder and Pregerson (author), Circuit Judges, and Strom, District Judge. J. Coon of Portland, OR, for the appellant; J. Edwards of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) SOCIAL SECURITY: Le v. Astrue, 07-55559 (9th Cir. Mar. 10, 2009). The district court disposed of cross-motions for sum-mary judgment. The losing party's notice of appeal mistakenly designated only the denial of his motion for summary judgment, rather than the denial of his motion and the grant of the prevailing party's motion. The USCA held that Fed. R. of App. Proc. 3(c)(1)(B) and 3(c)(4), as interpreted by the Supreme Court and Ninth Circuit, required it to construe the notice of appeal as encompassing the district court' entire disposition. Callahan and Ikuta (author), Circuit Judges, and Shadur, District Judge. A. Manbeck of San Diego, CA, for the appellant; AUSA M. Cabotaje of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) FOREIGN SOVEREIGN IMMUNITIES ACT: Doe v. Holy See, 06-35563 (9th Cir. Mar. 3, 2009). Doe brought suit in the district court against the Holy See, the Archdiocese of Portland, Oregon, the Catholic Bishop of Chicago, and the Order of the Friar Servants, alleging that when he was 15 or 16 years old he was sexually abused by Father Ronan, a priest in the Archdiocese and a member of the Order. Doe alleged causes of action against the Holy See: (1) for vicarious liability based on the actions of the Holy See's instrumentalities, the Archdiocese, the Chicago Bishop, and the Order; (2) for respondeat superior liability based on the actions of the Holy See's employee, Ronan; and (3) for direct liability for the Holy See's own negligent retention and supervision of Ronan and its negligent failure to warn Doe of Ronan's dangerous proclivities. The Holy See maintained that all of Doe's causes of action against it had to be dismissed because, as a foreign sovereign, it is immune from suit in U.S. courts. The district court disagreed, holding that it had jurisdiction over all but one of Doe's claims under the Foreign Sovereign Immunities Act's ("FSIA") tortious act exception to sovereign immunity. The USCA affirmed in part and reversed in part. As to the Holy See's vicarious liability for the acts of the Archdiocese, the Chicago Bishop, and the Order, it held that Doe had not alleged facts sufficient to overcome the presumption of separate juridical status for governmental instrumentalities, so the negligent acts of those entities could not be attributed to the Holy See for jurisdictional purposes. Doe's vicarious liability claims thus could not go forward as pleaded. As for the Holy See's respondeat superior liability for Ronan's acts, the USCA held that, because Doe had sufficiently alleged that Ronan was an employee of the Holy See acting within the "scope of his employment" under Oregon law, Ronan's acts could be attributed to the Holy See for jurisdictional purposes. Moreover, the USCA agreed with the district court that Ronan's actions came within the tortious act exception of the FSIA. Thus, the Holy See was not immune from suit for the respondeat superior cause of action. Although the district court held that Doe's negligence claims against the Holy See could proceed under the FSIA's tortious act exception, the USCA held that they could not, because the FSIA preserves immunity for discretionary acts. However, the USCA found that it did not have jurisdiction to consider the cross-appeal as to the commercial activity exception at this time. Concurring, Judge Fernandez said that, if the USCA had jurisdiction, he would not apply the commercial activity exception to this case. Dissenting, Judge Berzon would affirm the district court's judgment, holding that the FSIA's commercial activity exception permits it to exercise jurisdiction over Doe's non-fraud negligence claims. Fernandez (concurring) and Berzon (dissenting), Circuit Judges, and Wright, District Judge. Per Curiam. J. Lena of Berkeley, CA, for the defendant-appellant; M. Hamilton, Washington Crossing, Penn., for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) IMMIGRATION: Sanchez v. Holder, 04-75584 (9th Cir. Mar. 26, 2009). Sanchez petitioned for review of the BIA's affirmance of an IJ's decision denying him cancellation of removal as he could not meet the "good moral character" requirement of 8 USC Sec. 1229b(b)(1). Persons who have knowingly encouraged or assisted other aliens to enter the U.S. illegally may not be found to have good moral character. 8 USC Secs. 1101(f)(3) and 1182(a)(6)(E). Such persons may obtain a waiver of inadmissibility if the person smuggled into the U.S. was their spouse, parent, son, or daughter. 8 USC Sec. 1182(d)(11). The USCA took this case en banc to resolve whether this waiver applies to an application for cancellation of removal: May an applicant for cancellation of removal demon-strate good moral character notwithstanding his participation in family-only smuggling? The USCA held that such an applicant could not. It overruled Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005). Moran's "translation" of Sec. 1182(d)(11) into the cancellation of removal context was at odds with the plain meaning of Secs. 1229b(b), 1101(f), and 1182(a)(6)(E). The family unity waiver of Sec. 1182(d)(11) did not permit the petitioner to show good moral character. Kozinski, Pregerson (dissenting), O'Scannlain, Rymer, Klein-feld, Silverman (author), McKeown, Fisher, Paez (concurring), Callahan and N.R. Smith, Circuit Judges. F. Sprouls of San Francisco, CA, for the petitioner; M. Palau of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) IMMIGRATION: Mengstu v. Holder, 05-71825 (9th Cir. Mar. 27, 2009). Mengstu is an Ethiopian national of Eritrean descent. In May 1998, warfare erupted between Ethiopia and Eritrea and some 75,000 Ethiopians of Eritrean origin were expelled to Eritrea. The justification for these expulsions was simply suspect status as "Eritreans." Mengstu flew to the Sudan on March 25, 2000. She showed Sudanese officials her Ethiopian identity papers and entered the country. There was no Sudanese stamp on her visa and she was not interviewed by immigration officials. Shortly after her arrive in the Sudan she went to a refugee camp operated by the Red Cross. She was not directed to that camp by Sudanese officials; she simply believed that she would know people there. She remained there for two years. Her husband had been deported to Eritrea in 1999 and was then forcibly conscripted into the Eritrean army. He later deserted the army and entered the Sudan illegally in 2001. The Sudanese government did not offer Mengstu or her husband citi-zenship or permanent residence during their stay in the Sudan. Mengstu eventually procured a false passport and traveled to the U.S., arriving on February 14, 2002. She appeared in removal proceedings and conceded removability. She declined to designate a country of removal and applied for asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge ("IJ") denied her application and designated Ethiopia as the country of removal. The IJ found that Mengstu was not subject to past persecution because she had been a "war refugee" as defined by the UN High Commission for Refugees. He further found that Mengstu had firmly resettled in the Sudan, but made no express finding as to whether she had a well-founded fear of future persecution. The BIA summarily affirmed the IJ. Mengstu then petitioned the USCA for review of the BIA's denial of her application for asylum. The USCA granted the petition and remanded. Substantial evidence did not support the IJ's findings as to nexus and firm resettlement. It was the government's burden, not Mengstu's, to offer proof of permanent residence, or in its absence, to make an offer of proof that such evidence was unobtainable. Mengstu specifically testified that she had never received an offer of citizenship or permanent residence in the Sudan. The government did not meet this burden and thus the rebuttable presumption never arose in Mengstu's case. Even if it had, the record compelled a finding that Mengstu rebutted the presumption of resettlement by showing that her stay was "tenuous." Her entry visa was issued by the Ethiopian government, not the Sudanese, and had never been stamped. Her two-year stay was in a refugee camp, and she testified that she "has nothing there." She and her husband had no employment, funds, or other social or economic ties to the Sudan. Moreover, the IJ himself designated Ethiopia, rather than the Sudan, as the country of removal. The IJ's finding as to firm resettlement was thus not supported by substantial evidence. D.W. Nelson (author), W. Fletcher, and Tallman, Circuit Judges. A. Patek of San Francisco, CA, for the petitioner; M. Latour of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) IMMIGRATION: Estrada v. Holder, 05-75772 (9th Cir. Mar. 26, 2009). At issue here was whether an alien whose state conviction for possession of drug paraphernalia was expunged under state law, but who violated the terms of his probation before expungement, would have been eligible for relief under the Federal First Offends Act ("FFOA"). Generally, expungement of a conviction under a state rehabilitative statute does not negate the immigration consequences of the conviction. Notwithstanding this, an alien is not removable if-had he been prosecuted in federal court-he would have qualified for relief under FFOA. FFOA relieves certain first-time offenders convicted on drug possession charges of what would otherwise be the immigration consequences of the conviction. However, FFOA relief is unavailable when an offender has violated a condition of probation. The USCA thus denied Estrada's petition. His ap-plication for adjustment to permanent resident status had been denied and both the IJ and BIA found him ineligible for a 8 USC Sec. 1182(h) waiver. O'Scannlain, Rymer (author), and Wardlaw, Circuit Judges. H. Posada of Downey, CA, for the petitioner; D. Gold-man Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) IMMIGRATION: Martinez v. Holder, 04-72975 (9th Cir. Mar. 3, 2009). Martinez, a native of Guatemala, petitioned for review of a BIA decision denying his claims for asylum, withholding of removal, and voluntary departure. The USCA initially remanded, finding that the BIA had not provided cogent reasons for rejecting Martinez's testimony in support of his application. The BIA then upheld the IJ's adverse credibility finding. Martinez petitioned for review of the BIA's decision denying his motion to reopen to consider his Convention Against Torture claim. The USCA denied the petition on both counts. As the record revealed, Martinez repeatedly and persistently lied under oath with respect to his application for asylum. Both the IJ and the BIA's adverse credibility finding were well supported by substantial uncontroverted evidence. Pregerson (dissenting), Noonan, and Trott (author), Circuit Judges. K. Hong of Los Angeles, CA, for the petitioner; A. Rabin of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) IMMIGRATION: Samayoa-Martinez v. Holder, 04-74220 (9th Cir. Mar. 3, 2009). The petitioner sought relief from a final order of removal on the ground that the IJ erred in admitting a Form I-213 (Record of Deportable / Inadmissible Alien) into evidence. He maintained that the I-213 included information the INS obtained in violation of its own regulations. Because it held that the INS did not commit any regulatory violation, the USCA denied the petition for review. As the petitioner failed to show that the INS violated its regulations in obtaining the information used to prepare the I-213, it did not err in denying the petitioner's motion to suppress the I-213. Fernandez, Callahan, and Ikuta (author), Circuit Judges. H. Varvandeh of Los Angeles, CA, for the petitioner; R. Evans of Wash-ington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) IMMIGRATION: Marmolejo-Campos v. Holder 04-76644 (9th Cir. Mar. 4, 2009). At issue here was whether the petitioner could be removed from the U.S. for having been convicted of a crime involving moral turpitude as determined under federal immigration law. After his second aggravated DUI conviction in Arizona, the Department of Homeland Security charged that he was removable as an alien convicted of a crime involving moral turpitude within 10 years of admission, and as an alien convicted of "two or more crimes involving moral turpitude, not arising out of a single scheme or criminal misconduct. 8 USC Secs. 1227(a)(A)(i) and 1227(a)(2)(A)(ii). The petitioner filed a motion to terminate the proceedings, arguing that his aggravated DUI convictions were not crimes of moral turpitude. The IJ held otherwise and ordered him removed to Mexico. The BIA affirmed the IJ's decision in an unpublished order signed by a single member of the Board. That order relied on the en banc precedent of In re Lopez-Meza, 22 I&N Dec. 1188 (B.I.A. 1999), which held that a violation of Arizona's aggravated DUI statute is a crime involving moral turpitude. Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003), considered Lopez-Meza and rejected the BIA's interpretation of the Arizona Statute. Although the USCA did not opine on the BIA's conclusion that the act of driving under the influence with a suspended or otherwise restricted driver's license is a crime involving moral turpitude, the USCA held that the BIA misinterpreted Arizona's aggravated DUI statute by failing to acknowledge that it prohibits more than that act alone: Arizona Revised Statute Sec. 28-1383(A)(1) can be violated (1) by "driving" while under the influence of intoxicating liquor or drugs with a suspended or otherwise restricted driver's license, or (2) by maintain "actual physical control" of a vehicle under the same conditions. When a criminal statute has multiple independent prongs, the BIA must determine whether any conduct violative of the statute meets the relevant definition of a deportable offense under the INA. By failing to assess Arizona's aggravated DUI statute as such, the USCA held that the BIA committed an "error or law" and it expressed doubt that it intended to categorize the second act as a crime of equal severity as the first. However, it did not foreclose the possibility that a conviction under Sec. 28-1383(A)(1) could qualify as a crime of moral turpitude if the record of conviction demonstrated that the offender had been driving at the time of the arrest. Acknowledging Hernandez-Martinez, the IJ and BIA looked beyond the statute to the record of the petitioner's convictions and determined that the transcripts of his 1997 and 2002 plea hearings sufficiently established that both offenses for which he was convicted involved driving while intoxicated. Relying on Lopez-Meza, the BIA held that such convictions were crimes involving moral turpitude. The petitioner then sought review. A divided USCA panel denied the petition, upholding the BIA's determination that a violation of Arizona's aggravated DUI statute that involves actual driving is a crime involving moral turpitude. The USCA then considered the matter en banc. It denied the petition, concluding that the BIA provided a reasoned explanation for its resolution of any tension between its holdings in Lopez-Meza and In re Short, 20 I&N Dec. 136 (B.I.A. 1989). Moreover, the BIA's rejection of the rule the petitioner sought was not irrational. It is possible that two separate acts may not be turpitudinous standing alone, but that their commission in tandem rises to the level of an offense so contrary to accepted societal standards as to result in a crime involving moral turpitude. Kozinski, Pregerson, O'Scannlain (author), Kleinfeld, Silverman, Fisher, Paez, Berzon (dissenting), Tallman, Clifton, and Bybee (dissenting in part), Circuit Judges. C. Stender of San Diego, CA, for the petitioner; S. Brady of Washington, DC, for the respondent. ( (Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: Wakkary v. Holder, 05-71539 (9th Cir. Mar. 10, 2009). At issue here was whether membership in a "disfa-vored group"-a group of individuals in a certain country, all of whom share a common, protected characteristic, many of whom are mistreated, and a substantial number of whom are persecuted-is pertinent in determining whether an applicant for withholding of re-moval is eligible for that relief. The USCA has recognized that membership in a disfavored group is relevant to whether an applicant has a well-funded fear of future persecution for purposes of an asylum claim, but has never determined the role of the disfavored group analysis in the context of a claim for withholding of removal. It now held that the BIA applied an incorrect standard in determining whether Wakkary's asylum claim was time-barred. It thus remanded that claim for reconsideration. Regarding his claim for withholding of removal, the USCA held that the BIA's determinations that Wakkary failed to show past persecution or a pattern or practice of persecution against Chinese Christians in Indonesia were supported by substantial evidence. The USCA held, however, that the BIA erred in refusing to consider the evidence regarding whether Wakkary belonged to a disfavored group in assessing the likelihood that he would face future persecution for withholding or removal purposes, and so remanded to the BIA for reconsideration of the withholding determination. Finally, the USCA held that the BIA's denial of CAT relief was supported by substantial evidence. Paez and Berzon (author), Circuit Judges, and Baer, District Judge. R. Ryan of San Francisco, CA, for the petitioner; A. Han of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) IMMIGRATION: Martinez-Madera v. Holder, 06-73157 (9th Cir. Mar. 16, 2009). At issue here was whether an unnaturalized person (1) born in Mexico, (2) to unwed Mexican citizen parents, (3) whose mother later married in Mexico a U.S. citizen, who treats that person as his son, and (4) who with his family moves to the U.S., is a citizen of the United States. The USCA concluded that the answer is "no." The petitioner, born to two unwed non-citizen parents, cannot be deemed "born in wedlock" under 8 USC Sec. 1401. And, because there was no blood relation between the petitioner and his citizen stepfather, he could not meet his burden to prove citizenship under 8 USC Sec. 1409. Finally, as it was not disputed that the petitioner had been convicted of attempted murder, he was removable under 8 USC Secs. 1227(a)(2)(A)(iii) and 1101(a)(43)(U). The naturalization door had been opened to him, but instead he chose serious antisocial conduct that led him to prison. Dissenting, Judge Thomas noted that the majority had held that a child raised from the age of six months by a non-biological citizen father is not a citizen, but he thought Ninth Circuit case law, governing federal and state statutes, and a proper application of the principles of cooperative federalism compelled a different conclusion. Trott (author) and Thomas (dissenting), Circuit Judges, and Hogan, District Judge. P. Jasper of San Francisco, CA, for the petitioner; A. Oliveira of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) IMMIGRATION: Li v. Holder, 05-70053 (9th Cir. Mar. 23, 2009). The consolidated petitions of Li, Cui, and Fang present the same question. Police in the People's Republic of China are alleged to have arrested and tortured the petitioners, all of North Koran descent, for having provided humanitarian assistance to North Koreans seeking refuge in China. The BIA denied the petitioners' asylum applications, characterizing the Chinese authorities' treatment of the petitioners as prosecution for a criminal act-that of harboring foreign citizens-rather than persecution on account of political opinion. However, the BIA did not rely upon any Chinese law that actually criminalizes the provision of food and clothing to undocumented North Koreans or other foreigners so as to give rise to a "legitimate prosecutorial purpose." The USCA did not discover a Chinese law that prohibits providing assistance to foreign refugees either. It thus seems that the BIA imported into China what it perceived would be criminal activity in the United States. However, the policy of the U.S., through the North Korean Human Rights Act of 2004, has been to encourage the very type of humanitarian assistance provide here. The USCA thus held that when a petitioner violates no Chinese law, but instead comes to the aid of refugees in defiance of China's unofficial policy of discouraging such aid, a BIA finding that the petitioner is a mere criminal subject to legitimate prosecution is not supported by substantial evidence. Schroeder, Wardlaw (author), and Tallman, Circuit Judges. J. Porta of Los Angeles, CA, for the petitioner; AUSA D. Groom of Fort Smith, Arkansas, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) IMMIGRATION: USA v. Marguet-Pillado, 08-50130 (9th Cir. Mar. 27, 2009). The appellant became a legal permanent resident at an early age, but later engaged in criminal activity that resulted in his removal to Mexico. When he returned, he was convicted under 8 USC Sec. 1326(a) for being a removed alien found in the United States. He maintained that he is an American citizen due to derivative citizenship and that, in any event, evidence was improperly admitted at trial. The USCA affirmed in part, but reversed the conviction. It found that the appellant did not have derivative citizenship as his stepfather was not related to him by blood, and not even married to the appellant's mother. However, to convict him, the government had to prove that the appellant was not a U.S. citizen. While the evidence outside the record strongly suggested that he was born in and a citizen of Mexico, the evidence admitted at trial estab-lished those "facts" through the use of improperly admitted hearsay. Goodwin, Fernandez (author), and Paez, Circuit Judges. G. Mur-phy of San Diego, CA, for the appellant; D. Curnow of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) IMMIGRATION: USA v. Krstic, 08-30022 (9th Cir. Mar. 10, 2009). At issue here was whether an alien may be prosecuted for possession of an authentic immigration document obtained by means of a false statement. A grand jury returned an indictment charging Krstic with violating 18 USC Sec. 1546(a) by knowingly possessing an alien registration receipt card which he knew to have been procured by means of materially false claims. The indictment did not allege that the card itself was forged, counterfeited, altered, or falsely made. It simply charged Krstic with obtaining an alien registration by means of a false statement. Krstic argued that possessing an authentic immigration document procured by a false statement does not constitute an offense under Sec. 1546(a). The district court agreed and dismissed the indictment. The USCA reversed and remanded for further proceedings. The statutory history satisfied the USCA that Sec. 1546(a) does not require proof of an already forged, counterfeited, altered, or falsely made immigration document. It prohibits possessing an otherwise authentic document that one knows has been procured by means of a false claim or statement. O'Scannlain (author), Graber, and Bybee, Circuit Judges. AUSA D. Atkinson of Portland, OR, for the appellant; AFPD C. Schatz of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) CIVIL RIGHTS: Fisher v. City of San Jose, 04-16095 (9th Cir. Mar. 11, 2009). At issue here was the Fourth Amendment's exigent circumstance doctrine in the context of an armed standoff. Fisher triggered a standoff with police after he pointed a rifle at a pri-vate security guard. When the police arrived, a noticeably intoxicated Fisher pointed a rifle at the officers and threatened to shoot them. The ensuring standoff lasted more than 12 hours but ended peacefully when fisher finally allowed himself to be taken into custody. He then brought this civil rights action. The jury found that exigent circumstances excused the need for a warrant, but the district court nevertheless granted Fisher's renewed motion for judgment as a matter of law. It held that no reasonable jury could have found that there was insufficient time to obtain a warrant. The USCA reversed and remanded, holding that Fisher's civil rights were not violated when police arrested him without a warrant. During such a standoff, once exigent circumstances justify the warrantless seizure of the suspect in his home, and so long as the police are actively engaged in completing his arrest, they need not obtain an arrest warrant before taking the suspect into custody. This is true regardless of whether the exigency that justified the seizure has dissipated by the time the suspect is taken into custody. Reinhardt (joined by Judges Kozinski, Pregerson, Thomas and Paez, dissenting), O'Scannlain, Rymer, Gould, Paez (joined by Judges Pregerson, Reinhardt and Thomas, dissenting), Tallman, (author), Bybee, and N.R. Smith, Circuit Judges. S. Attaway of San Jose, CA, for the appellant; D. Kilmer of San Jose, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) CIVIL RIGHTS: Johnson v. Walton, 07-55935 (9th Cir. Mar. 13, 2009). This appeal arose from a 42 USC Sec. 1983 action filed by Kim Johnson and Sun Min Lee, in which they were awarded damages from Police Officer Walton for an illegal search and seizure of their personal property from their home and alleged detention in violation of the Fourth and Fourteenth Amendments. On appeal, Walton argued that the district court erred by (1) concluding that the search warrant lacked probable cause or was otherwise invalid; (2) refusing to allow her to introduced evidence outside the warrant to show that she reasonably believed probable cause existed; (3) denying her request for qualified immunity; and (4) awarding attorneys' fees to Sun and Kim. The USCA reversed. It held that Walton merits qualified immunity. It then vacated the attorneys' fees and expense award. Bright (author), Trott, and Hawkins, Circuit Judges. T. Hurrell of Los Angeles, CA, for the appellant; D. Norris of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) CIVIL RIGHTS: Ramirez v. City of Buena Park, 04-56832 (9th Cir. Mar. 25, 2009). Officer Montez of the Buena Park Police Department noticed a car parked outside a drugstore. He noticed Ramirez in the driver's seat apparently asleep. Montez detained, searched, and arrested Ramirez for being under the influence of a controlled substance. Montez and two other officers then impounded Ramirez's care for safekeeping. Montez issued Ramirez a citation and released him on his own recognizance after performing additional tests (including a blood test) at the police station. The blood test later came back negative and no charges were filed. Ramirez filed his 42 USC Sec. 1983 action against Montez seeking damages for the detention, search, arrest, and blood test, and against Montez and the other two officers for impounding his car. Montez included a Monell claim against Buena Park for the impoundment of his car, and five state law claims against the defendants. The defendants moved for summary judgment and Ramirez filed a partial motion for summary judgment. The district court granted the defendants' motion on Ramirez's Sec. 1983 and state law claims, and denied Rami-rez's partial motion for summary judgment. The USCA reversed the district court's summary judgment to Montez with respect to Ra-mirez's Sec. 1983 claim for the unlawful pat-down search. It affirmed the grant of summary judgment to Montez with respect to Rami-rez's detention and arrest. And it affirmed the summary judgment to the defendants with respect to the impoundment of Ramirez's car and the blood test. It also affirmed the summary judgment on all of Ramirez's state law claims. Kozinski, Brunetti (author), and Rymer, Circuit Judges. E.T. Barham of Los Alamitos, CA, for the appellant; M. Abbott of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) CIVIL RIGHTS: Rodis v. San Francisco, 05-15522 (9th Cir. Mar. 9, 2009). Rodis brought suit under 42 USC Sec. 1983 against two San Francisco police officers, alleging a violation of his Fourth Amendment rights during an arrest. When the district court rejected the officers' assertion of qualified immunity, the defendants filed an interlocutory appeal. The USCA initially affirmed. The Supreme Court then granted the defendants petition for a writ of certiorari, vacated the USCA's decision, and remanded for further consideration in light of Pearson v. Callahan, 555 U.S. ___ No. 07-751, slip op. 1 (Jan. 21, 2009). On remand, the USCA reversed and found the defendants entitled to qualified immunity. It was undisputed that Rodis' $100 bill looked odd, and that it lacked many modern security features. Although Rodis' arrest was unfortunate, the USCA could not say that the officers' belief that the bill was fake was plainly incompetent. The arrest was not clearly unlawful. D.W. Nelson (author) and Callahan, Circuit Judges, and Carney, District Judge. S. Wiener of San Francisco, CA, for the appellants; L. Fasano of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) CIVIL RIGHTS / QUALIFIED IMMUNITY: Maropulos v. County of Los Angeles, 07-55873 (9th Cir. Mar. 24, 2009). Los Angeles County Sheriff's Deputy Lankford appealed a district court order denying him qualified immunity on an action brought under 42 USC Sec. 1983 by the Maropulos family for violation of their Fourth and Fourteenth Amendment rights. The Maropuloses claimed that Lankford set fire to their home, and then hindered rescue efforts by firefighters. Lankford argued that the Maropuloses failed to present sufficient evidence to create a triable issue as to proximate cause, whether he set fire to the house, and whether he knowingly or intentionally lied to firefighters such that his statements violated any clearly established due process right. As such, his appeal raised issues having to do with sufficiency of the evidence over which the USCA had no jurisdiction. It thus dismissed. It added that it was satisfied from the arguments made on appeal and its own examination of the record that the district court must have believed there were genuine issues of material fact that precluded summary judgment on the qualified immunity issue. Having experienced similar difficulties in determining the scope of jurisdiction to hear interlocutory appeals from the denial of qualified immunity, the Third Circuit now requires district court's ruling on summary judgment motions based on qualified immunity where material facts are in dispute to specify which facts are in dispute and why they are material. The USCA embraced this principle and encouraged all district judges within the Ninth Circuit to articulate the basis upon which they deny qualified immunity and, when it is for reasons of sufficiency of the evidence to raise genuine issues of act, to spell out the triable issues and why they preclude immunity before trial. O'Scannlain, Rymer, and Wardlaw, Circuit Judges. R. Sakai of Glendale, CA, for the appellant; D. Galipo of Woodland Hills, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 44) CIVIL PROCEDURE: Tortu v. Las Vegas Metropolitan
Police Dept., 06-16663 (9th Cir. Mar. 3, 2009). Tortu appealed the district
court's order granting Police Officer Engle's motion for judgment as a matter
of law and, in the alternative, his motion for a new trial. After the jury returned
a verdict in favor of Officers Cashton and Cowley but finding Engle liable, the
district court granted Engle's Fed. R. Civ. P. 50(b) motion for judgment as a
mater of law and, alternatively, his Rule 59 motion for a new trial. However,
neither Engle nor the other two officers filed a Rule 50(a) motion for judgment
as a matter of law. Tortu claimed that this procedural error should have prevented
Engle from filing a Rule 50(b) motion and that the district court abused it discretion
when it granted Engle's motion for a new trial. Alternatively, Tortu argued that
the district court erroneously found Engle protected by qualified immunity. The
USCA agreed that the district court should not have entertained Engle's Rule 50(b)
motion because he had failed to file a Rule 50(a) motion, which must be filed
before a court can consider a Rule 50(b) motion. The USCA also held that the district
court abused its discretion when it granted Engle's Rule 59 motion for a new trial
as the verdict was not against the clear weight of the evidence. The USCA thus
reversed and remanded with instructions for the district court to reinstate the
jury's verdict and enter judgment accordingly. Hug (author), Kleinfeld,
and R.N. Smith, Circuit Judges. P. Armeni of Las Vegas, NV, for the appellant;
T. Dillard of Las Vegas, NV, for the appellees. ( (Download
the full text of this decision at www.ce9.uscourts.gov/)
46) POLICE INTERROGATIONS: USA v. Bassignani, 07-10453 (9th Cir. Mar. 25, 2009). At issue here was whether a criminal defendant was "in custody" when police officers interviewed him for over two hours in a conference room at his workplace. A grand jury indicted Bassignani on one count of distributing images of child pornography and one count of possessing images of child pornography. He faced 5 to 20 years in prison for the first count and up to 10 years on the second. In a pretrial motion filed in the district court, Bassignani moved to suppress statements made during his interrogation at his work place, the Window Washers program found in his lunch pail and car, as well as evidence found on his worksite computers. (The Window Washer program could be set to delete and overwrite Internet-browsing history and other information on a computer hard drive.) Bassignani challenged the admissibility of his statements on the grounds that he was "in custody" for Miranda purposes and had not been given the four required warnings. He also argued that the evidence found in his car and on the worksite computers should be suppressed based on the mistaken address con-tained in the warrant. The district court reviewed the "totality of the circumstances surrounding the interrogation" and concluded that "the defendant was in custody for Miranda purposes." It thus granted Bassignani's motion to suppress the statements and the evidence found in the lunch pail. It denied the motion to suppress the evidence obtain from the worksite computers and Bassignani's car. After addressing the five factors setout in USA v. Kim, 292 F.3d 968 (9th Cir. 2002), the USCA reversed and remanded the district court or-der suppressing Bassignani's statements made during interrogation. Although it said it was a close case, the USCA held that the overall tenor of the interrogation was not coercive. It did not think, based on the totality of the circumstances, that Bassignani met his burden of showing a "restraint on freedom of movement of the degree associated with a formal arrest." Id. at 973. Dissenting, Judge Bea noted that factual determinations in close cases are the function of the trial court, not the court of appeals, and especially not where the court of appeals' standard of review is for clear error. Clear error, he said, means it is not a close case. Because there is evidence in the record supporting each of the district court's factual findings, Judge Bea said he saw no way the USCA could say that the district court committed clear error. O'Scannlain (author), Gould, and Bea (dissenting), Circuit Judges. AUSA A. Rosen of San Francisco, CA, for the appellant; S. Shaiken of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) EVIDENCE: USA v. McFall, 07-10034 (9th Cir. Mar. 9, 2009). McFall, a former lobbyist and local elected official, was con-victed of nine counts of attempted extortion and conspiracy to commit extortion, 18 USC Sec. 1951, six counts of honest service mail fraud, 18 USC Secs. 1341, 1346, and two counts of attempted witness tampering, 18 USC Secs. 1512(b)(1), (3). He was sentenced to 121 months' imprisonment and a $50,000 fine. He challenged the sufficiency of the evidence supporting the attempted extortion and conspiracy to commit extortion (Counts 2, 3, and 4) convictions, the jury instructions relating to the government's "official right" theory of attempted extortion (Count 11), and the district court's exclusion of exculpatory grand jury testimony on Count 14. The USCA reversed all five convictions, vacated the sentence, and remanded. The probative value of the grand jury testimony was very high, and the potential for unfair prejudice, given the government's ability to impeach under Rule 806 or even to call Sawyer, a former prosecutor, as a witness, was substantially lower than the district court presumed. The district court thus abused its discretion in excluding Sawyer's grand jury testimony as unduly prejudicial under Rule 403. Schroeder, Tashima (author), and W. Fletcher, Circuit Judges. V. Haltom of Sacramento, CA, for the appellant; AUSA B. Wagner of Sacramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 48) SEARCH & SEIZURE / SENTENCING: USA v. Brobst, 07-30284 (9th Cir. Mar. 9, 2009). Whether a search and seizure or a warrantless arrest is reasonable, within the meaning of the Fourth Amendment, depends upon the traditional standards of reasonable-ness and not upon the law of a particular state. The USCA thus concluded that Brobst's constitutional rights were not violated because (1) the search warrant described the place and things to be searched and seized with sufficient particularity; (2) probable cause existed for Brobst's arrest; (3) Brobst's post arrest statement were admissible; (4) the document the prosecutor failed to produce was not mate-rial to Brobst's conviction; and (5) the district court did not improperly shift the burden of proof to Brobst during trial. Brobst also appealed his sentence, arguing that his simultaneous conviction and concurrent sentences for both receipt and possession of child por-nography violated the Double Jeopardy Clause. The USCA agreed. It thus affirmed the conviction but vacated and remanded the sen-tence. Clifton and N.R. Smith (author), Circuit Judges, and Sandoval, District Judge. T. Phalen of Phoenix, AZ, for the appellant; AUSA E. Wolff of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 49) PRE-SENTENCE REPORTS / CIVIL CONFINEMENT: USA v. Streich, 07-30105 (9th Cir. Mar. 9, 2009). At issue here was whether a defendant who pled guilty could challenge the inclusion of information in his Pre-Sentence Report ("PSR") that might put him at risk of subsequent civil confinement. The USCA affirmed the district court's sentence with respect to defendant Streich's breach of plea agreement claim and dismissed without prejudice his claims challenging the inclusion of psycho-sexual information in the PSR. Taking Streich at his word, the USCA assumed that his claimed injury was a potential civil commitment on the basis of the inclusion of the psycho-sexual treatment information in his PSR. This was a classic example of a "contingent future event" that "may not happen at all." Unlike in 18 Unnamed John Smith Prisoners v. Meese, 871 F.2d 881 (9th Cir. 1989), the Bureau of Prisons had not yet made the decision, the consequences of which Streich objects to. He is at the start of his sentence, in a posture similar to the defendant in USA v. Abbouchi, 502 F.3d 850. If Abbouchi's Fifth Amendment injury from a condition of supervised release-a condition the district court had already imposed but which had not yet begun-was not ripe, then the injury here that arises from a hypothetical civil commitment cannot be ripe. Judge Kleinfeld wrote separately to state that he concurred except for the majority's conclusion that Streich's challenge was not ripe. While it is not ripe insofar as it is addressed to the use of the PSR in a civil commitment proceeding subsequent to the defendant's custodial sentence, Judge Kleinfeld thought that ripeness flowed from the district court's duties under Fed. R. Crim. Proc. 32, as well as from the use that will be made of the PSR even if there never is a civil commitment proceeding. O'Scannlain (author), Rymer, and Kleinfeld (concurring), Circuit Judges. J. Solovy of Seattle, WA, for the appellant; AUSA M. Parrent of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 50) MENTAL COMPANCY / SELF-REPRESENTATION: USA v. Ferguson, 07-50096 (9th Cir. Mar. 27, 2009). Ferguson video-taped himself sexually molesting a four-year-old. He was indicted for possession and production of child pornography. He pled not guilty and insisted on representing himself. Throughout the pre-trial proceedings, he exhibited bizarre behavior that befuddled every-one, including the judge who several times expressed his desire to deny Ferguson's request to represent himself. But binding law at the time required the judge to allow him to represent himself because he had been found mentally competent to stand trial. Other than mak-ing a few nonsensical motions, Ferguson did nothing at trial or sentencing. A jury convicted him and the court sentenced him to the statutory maximum of 480 months' imprisonment. On appeal, the USCA addressed the intervening decision in Indiana v. Edwards, 128 S.Ct. 2379 (2008), which held that a different standard of mental competency applies when considering a defendant's request for self-representation than when considering whether the defendant may be tried at all. The USCA thus remanded for the district court to determine whether, in light of Edwards, it would have made a different mental competency decision. Graber (author) and Clifton, Cir-cuit Judges, and Trager, District Judge. G. Burcham of San Diego, CA, for the appellant; AUSA R. Goswami of Los Angeles, CA for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 51) MURDER-FOR-HIRE / JURY INSTRUCTIONS: USA v. Driggers, 07-30190 (9th Cir. Mar. 18, 2009). At issue here was the intent requirement of 18 USC Sec. 1958, which prohibits using interstate commerce facilities in the commission of murder-for-hire. Driggers was convicted of violating Sec. 1958 by causing one Matthew Robinson to travel interstate commerce with the intent that a murder-for-hire be committed. At trial, Driggers objected to a jury instruction describing the intent element of Sec. 1958 which required the government to prove three elements: First, that Driggers caused Robinson to travel from one state to another; second, that he intended a murder be committed; and third, that he promised to pay Robinson something of pecuniary value in consideration for the murder." Driggers maintained that the instruction was wrong because it didn't require the government to prove any connection between the travel and the intent to murder. The district court gave the challenged instruction, reasoning that Sec. 1958's travel element is purely "jurisdictional." The USCA affirmed. It noted that its interpretation of Sec. 1958 in USA v. Ritter, 989 F.2d 318 (9th Cir. 1993), made clear that Driggers must have had a murderous intent when he caused another person to travel across state lines. The instruction given by the district court didn't adequately explain this and would have allowed the jury to convict even if it found that the defendant did not form a murderous intent until after the interstate travel was complete. However, the error was harmless as it was clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. Judge Rawlinson concurred that the district court should be affirmed, but wrote separately to emphasize that any instructional error regarding Sec. 1958 was, at most, technical in nature. Kozinski (author), B. Fletcher, and Rawlinson (concurring), Circuit Judges. G. Silvey of Kuna, ID, for the appellant; AUSA A. Burrow of Boise, ID, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 52) JURY INSTRUCTIONS / SENTENCING: USA v. Smith, 05-50375 (9th Cir. Mar. 24, 2009). The primary issue here was whether a jury instruction impermissibly relieved the government of its burden to prove beyond a reasonable doubt that the defendant used a "dangerous weapon" and whether any error in the instruction was harmless. A panel held that the jury instruction was not defec-tive and affirmed the defendant's conviction. The USCA now reconsidered the matter en banc. Although it held that there was a "rea-sonable likelihood" the trial judge's instructions "misled" the jury to think they did not have to determine beyond a reasonable doubt that the defendant used a dangerous weapon, the USCA nevertheless affirmed the defendant's conviction because it was clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. However, the USCA also held that the district court erred in delegating its statutory duties and applying the Sentencing Guidelines to the facts in his case. It thus vacated the sentence and remanded for further proceedings as to the conditions of his supervised release and the decision to impose the sentence concurrently, partially concurrently, or consecutively to his undischarged term of imprisonment. Dissenting, Judge Berson, joined by Judges Schroeder, Reinhardt, Wardlaw, and Paez, agreed that the jury instructions were erroneous, because they relieved the govern-ment of its burden of proving that the object in question was a "dangerous weapon" within the meaning of the federal assault statute. The given instructions purported to define "dangerous weapon," but, critically, failed to instruct the jury that it must find, as an element of the offense-and, therefore, beyond a reasonable doubt-that the defendant used a dangerous weapon. Given that error and the trial record, the dissent could not agree with the majority that it is clear beyond a reasonable doubt that a rational jury would have returned the same verdict had a proper instruction been given. Kozinski, Schroeder, Reinhardt, Kleinfeld, Hawkins (author), Graber, Wardlaw, Gould, Paez, Berzon (dissenting), and Ikuta, Circuit Judges. DFPD D. Chen of Los Angeles, CA, for the appellant; AUSA M. Silber of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 53) SENTENCING: USA v. Hilgers, 08-30078 (9th Cir. Mar. 11, 2009). At issue here was whether an above-Guidelines prison sentence of a mortgage broker convicted of wire fraud was reasonable. Hilgers was sentenced to 3 years longer than the top Guidelines range and almost three times the uppermost Guidelines sentence of 18 months. But, given the factors considered by the district court-chief among them the inadequacy of the Guidelines sentence in reflecting the potential loss to the victims-the USCA could not say that the 5-year sentence was unreasonable. The district court's conclusion that a significant sentence was necessary to accomplish the purposes of the Sentencing Reform Act was supported by its findings as to Hilgers' past criminality, his lack of response to prior sen-tences, his personal characteristics, and his lack of remorse. The USCA thus affirmed. O'Scannlain (author), Graber, and Bybee, Cir-cuit Judges. S. Haddon of Helena, MT, for the appellant; AUSA C. Rostad of Great Falls, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 54) SENTENCING: USA v. Strickland, 08-30091 (9th Cir. Mar. 2, 2009). Strickland appealed following his guilty-plea conviction for receipt and possession of child pornography. He challenged the government's proof at sentencing that a prior Maryland conviction for child abuse was a predicate offense relating to sexual abuse under 18 USC Secs. 2252A(b)(1) and (2), resulting in an increased statutory sentence. The USCA affirmed, holding that the district court properly applied the modified categorical approach of Taylor v. USA, 495 US 575, 599-600, and correctly found that Strickland's admissions in state sex offender registration documents constituted sufficient proof that his prior convicton was a qualifying predicate offense. Reavley (author), Tallman, and M.D. Smith, Circuit Judges. M. Donahoe of Helena, MT, for the appellant; AUSA M. Hurd of Billings, MT for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 55) SENTENCING: USA v. Hahn, 07-30324 (9th Cir. Mar. 4, 2009). Hahn pled guilty to one count of felon in possession of a fire-arm, in violation of 18 USC Sec. 922(g). When he entered his guilty plea, he was already serving a term of imprisonment imposed by a Montana court for state-law criminal endangerment and intimidation convictions arising out of the same set of events as his federal firearm offense. His Pre-Sentence Report ("PSR") recommended a sentencing range of 37 to 46 months. It identified no factors that would warrant departure from the term suggested by the Guidelines, and was silent regarding whether the sentence should run concur-rently or consecutively to Hahn's state-law sentence. Neither party objected to the PSR's Guidelines calculation, but both Hahn and the government filed sentencing memoranda that discussed whether the district court should impose a federal sentence to run concurrently or consecutively to his state-law sentence. The USCA found that the district court erred when it found that the parties' pre-hearing submissions alone were inadequate to satisfy Fed. R. Crim Proc. 32(h). The sentencing memoranda, which discussed whether a con-secutive or concurrent sentence was appropriate, provided adequate notice that the district court might consider a consecutive sentence. The USCA thus reversed and remanded for resentencing. Kozinski (concurring), B. Fletcher, and Rawlinson, Circuit Judges. Per Cu-riam. W. Mercer of Billings, MT, for the appellant; R. Shaffer of Missoula, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 56) SENTENCING: USA v. Hammons, 08-50329 (9th Cir. Mar. 11, 2009). The district court sentenced Hammons to 10 months in prison upon revoking his supervised release. On appeal, Hammons argued that the district court committed plain error by failing to state a reason for its sentence, and that it committed plain error by failing to calculate the appropriate Guidelines rate and by relying upon an incorrectly calculated Criminal History Category. The USCA vacated the sentence and remanded. The district court's failure to give any reasons for the sentence, and its reliance on an improper Guidelines range and failure to calculate the appropriate Guidelines range constituted plain errors that affected substantial rights and seriously affect the pubic reputation of judicial proceedings. Pregerson (author) and D.W. Nelson, Circuit Judges, and Singleton, District Judge. S. Kennedy of Los Angeles, CA, for the appellant; T. O'Brien of Santa Ana, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 57) SENTENCING: USA v. Flores, 08-30076 (9th Cir. Mar. 18, 2009). Flores appealed the sentence imposed by the district court, asserting that the government wrongfully refused to move for a substantial assistance sentencing reduction under Guidelines Sec. 5K1.1, even though he provided information useful to its investigation of criminal activity, and that the district court erred in denying his request for an evidentiary hearing to evaluate the extent of his assistance. The USCA affirmed. A defendant's insistence that he provided substantial assistance alone does not entitle him to an evidentiary hearing. To warrant a hearing, he must make a substantial threshold showing that the government's refusal to file a Sec. 5K1.1 motion is unconstitutional, arbitrary, or in breach of the plea agreement. Here the government acted within its discretion under the plea agreement when it found Flores' assistance insubstantial and refused to move for a reduction. Flores had not alleged, much less shown, that the government's decision was based on an unconstitutional motive. Reavley (author), Tallman, and M.D. Smith, Circuit Judges. P. Hoovestal of Helena, MT, for the appellant; AUSA J. Seykora of Billings, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 58) SENTENCING: USA v. Gutierrez-Sanchez, 08-50254 (9th Cir. Mar. 23, 2009). The appellant challenged his sentence primarily because, although he pleaded guilty to an offense for which the Sentencing Guidelines recommended a particular sentence, he was given a more severe sentence that the Guidelines recommended for a related, more serious offense. The Guidelines, however, provided that if a plea agreement "specifically establishes the commission of additional offense(s)" it shall be "treated as if the defendant had been convicted of additional count(s) charging those offenses(s)." USSG Sec. 1B1.2(c). Since the appellant admitted facts in his peal agreement, which established the more serious offense on which his sentence was based, the district court did not err in its calculation of the Guidelines recommended sentence. The USCA thus affirmed. Bea, Friedman (author), and Ikuta, Circuit Judges. N. Aguilar of San Diego, CA, for the appellant; AUSA B. Castetter of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 59) SENTENCING: USA v. Christensen, 06-30402 (9th Cir. Mar. 23, 2009). Christensen pled guilty to being a felon in possession of ammunition in violation of 18 USC Secs. 922(a)(1) and 924, an offense carrying a maximum sentence of 10 years. The district court enhanced the sentence of 15 years under the Armed Career Criminal Act ("ACCA"), 18 USC Sec. 924(e), based on Christensen's prior convictions for three violent felonies. One of the prior convictions arose out of a guilty plea to statutory rape in violation of Washington Revised Code Sec. 9A.44.079. Based on Begay v. USA, 128 S.Ct. 1581 (2008), the USCA held that under the categorical approach of Taylor v. USA, 495 US 575 (1990), a conviction under Sec. 9A.44.079 does not constitute a violent felony under the ACCA. The USCA thus reversed and remanded to the district court for further proceedings. Hug, McKeown, and W. Fletcher (author), Circuit Judges. C. Hunt of Spokane, WA, for the appellant; G. Jacobs of Spokane, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 60) SENTENCING: USA v. Mejia, 06-50220 (9th Cir. Mar. 24, 2009). Mejia challenged his conviction and sentence of 188 months imprisonment plus 5 years supervised release for possession and distribution of methamphetamine. He argued that he was entrapped into selling methamphetamine, his statement was taken in violation of Miranda, and his due process rights were violated because he was shackled during trial. He also appealed his sentence on the grounds that the district court failed to consider the factors set forth under 18 USC Sec. 3553(a) and his requests for downward departures. In addition, he argued that he should have received a two-point reduction for acceptance of responsibility, and should not have received on criminal history point for a misdemeanor conviction. The USCA affirmed the conviction, but remanded for resentencing. The suspension of Mejia's sentence before he was placed on a truncated term of probation indicates that the offense of which he was convicted was not regarded as serious. The USCA thus held that the assignment of one criminal history point to him for his prior conviction for resisting arrest was plain error which affected Mejia's substantial rights. Bright, Trott (author), and Hawkins, Circuit Judges. A. Peterson of Irvine, CA, for the appellant; AUSA R. Aghaian of Riverside, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 61) PRISONERS' RIGHTS: Griffin v. Arpaio, 06-16132 (9th Cir. Mar. 5, 2009). Griffin, a state inmate, fell from the top bunk of his prison cell. At the time, he was suffering from mental health problems for which he took prescription drugs. He argued that the drugs impaired his vision and depth perception, making it difficult for him to access upper bunks. The prison assigned him to a lower bunk initially, but soon reassigned him to a top bunk. When he fell again, he filed a grievance and requested a ladder or "some sort of permanent step." While the grievance was pending, he obtained an order for a lower bunk from a prison nurse. A prison officer, the shift supervisor, and the Bureau Hearing Officer replied to Griffin's grievance, stating that the nurse's order resolved his problem. But Griffin maintained that the staff disregarded the nurse's order. He appealed his grievance in compliance with prison procedures, but his appeals did not mention the alleged disregard of his lower bunk assignment. Instead, he continued to demand better access to the top bunk. The Commander replied that the lower bunk assignment addressed the problem and obviated further action. The external refe-ree's response was similar. Griffin then brought this action for money damages in the district court under 42 USC Sec. 1983, alleging cruel and unusual punishment and unsafe living conditions in violation of the Eighth Amendment. On the defendants' motion, the dis-trict court dismissed the action with prejudice, holding that Griffin had not exhausted his administrative remedies. It also noted that Griffin had alleged deliberate indifference to his medical needs in his federal action without having first grieved it to the prison. The USCA affirmed. Griffin failed to exhaust properly as he did not provide notice of the prison staff's alleged disregard of his lower bunk assignments. The USCA rejected the district court's reliance on Brown v. Sikes, 212 F.3d 1205 (11th Cir. 2000), and instead affirmed because Griffin failed to exhaust administrative remedies as required by 42 USC Sec. 1997e(a). Wallace, Farris (author), and McKeown, Circuit Judges. R. Desai of Phoenix, AZ, for the appellant; B. White of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)
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