1) SECURITIES FRAUD: USA v. Samueli, 08-50417 (9th Cir. Sept. 24, 2009). Samueli appealed two orders entered by the district court in a criminal proceeding alleging that he made a false statement to the Securities and Exchange Commission in violation of 18 USC Sec. 1001. The USCA found that it lacked jurisdiction to review either order, and dismissed the appeal. This criminal case fol-lowed allegations that securities fraud occurred at Broadcom, a company that Samueli co-founded. During an SEC investigation into Broadcom's stock-option grants, Samueli told investigators that he had no involvement in the granting process. He now admits that he was involved and that he knew that the statement was false at the time he made it. After negotiations with the government, Samueli entered into a combination charge-and-sentence bargain under Federal Rule Criminal Procedure 11(c). Under that agreement, Samueli would plead guilty to one count of making a false statement in violation of Sec. 1001, but would not face criminal exposure on securities-fraud charges. The statutory maximum for a Sec. 1001 violation is five years imprisonment and a $250,000 fine. The parties' sentencing bargain stipulated five years probation, a $250,000, and a $12 million payment to the U.S. Treasure "for making a false statement to the SEC." Samueli entered his guilty plea on June 23, 2008. Under Rule 11(c)(3)(A), the district court elected to wait until the presentence report ("PSR") was complete before deciding whether to accept the plea agreement. Both parties objected to portions of the PSR after the probation officer disclosed it. Before filing his set of objections with the court, Samueli filed an application for an order sealing the objections and an in camera hearing to discuss them. The district court denied this relief on August 26, 2008. On September 8, 2008, after reviewing the terms of the plea agreement and the PSR, the district court rejected the agreement. Samueli thereafter declined to withdraw his guilty plea and brought this appeal. He requested review of the August 26 order denying his requests to file his PSR objections under seal and to hear his objections in camera. He filed his notice of appeal on September 22, 2008, almost one month after the August 26 order was issues. Because a criminal defendant has only ten days to file a notice of appeal from a district court order, Samueli's appeal was untimely. Federal Rule Appellate Practice 4(b)(1)(A)(i). Dismissal of the appeal of this order was thus mandatory. Samueli did timely appeal the order of September 8, 1008 which rejected his plea agreement. However, this appeal is met by the broad rule that orders in criminal cases are generally unreviewable before imposition of a judgment and sentence. Samueli nevertheless asserted that his case fell within an exceptional category of cases in which an appeal at this stage might proceed. However, the used rejected these contentions as being without merit and dismissed the appeal. Fernandez and Gould (author), Circuit Judges, and England, District Judge. G. Greenberg of Los Angeles, CA, for the appellant; AUSA G. Cardona of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) SECURITIES FRAUD: USA v. Hickey, 05-10004 (9th Cir. Sept. 2, 2009). This appeal arose from a fraud that resulted in pro-tracted civil and criminal proceedings spanning more than ten years. Hickey and Tang, induced over 700 individuals to invest some $20 million in two real estate development funds. Their plan was to purchase land in Northern California, prepare it for residential development, and then resell it to developers at a profit. As it turned out, the investors were duped by false representations regarding land title, guarantees and securitization of the funds. Hickey and Tang also appropriated money from the funds for personal use. As the scam progressed, it devolved into a Ponzi scheme: Hickey used the money from later investors to pay earlier investors the "interest" they were owed. When the money ran out and the fraud was exposed, the investors had lost some $18.5 million. The Securities and Exchange Commission ("SEC") filed a civil enforcement action against Hickey, resulting in a consent decree that included a $1.1 million disgorgement payment. The investors also obtained an as-yet-unpaid $10 million civil judgment. Hickey was indicted in July 1997 and subsequently convicted. He challenged his conviction for mail fraud and securities fraud on multiple grounds, including jurisdiction, statute of limitations and claimed evidentiary errors. He also appealed his 97-moth sentence. The USCA affirmed. Hickey argued that his sentence would result in a significant overpayment to investors because the total amount of restitution he and Tang were ordered to pay exceeded the amount of loss by investors, less the disgorgement payment Hickey already made-- $17,454,581. Tang was ordered to pay $12,266,090, and Hickey was ordered to pay $17,454,000. However, the USCA noted that Tang and Hickey had been ordered to pay joint and several restitution, a point that Hickey ignored in his brief. Hence there will be no windfall to investor. Concurring, Judge Reinhardt said he was reluctant to concur in the majority opinion as he did not favor depriving words of all meaning simply in order to reach a desired legal result. Specifically, he saw no reason to treat the word "superseding" as meaning "not replacing." Reinhardt (concurrence), Noonan, and McKeown (author), Circuit Judges. E. Cortez of San Diego, CA, for the appellant; V. Shanker of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) SECURITIES / BACKDATING STOCK OPTIONS: USA v. Ruehle, 09-50161 (9th Cir. Sept. 30, 2009). Ruehle is the former CFO of Broadcom Corporation, a California-based, publicly traded semiconductor supplier that came under intense scrutiny for its suspected backdating of company stock options. Following a government investigation, Ruehle was criminally indicted for his in-volvement in an alleged backdating scheme that ultimately resulted in Broadcom's restatement of its earnings to account for approxi-mately $2.2 billion in additional stock-based compensation expenses. The district court held an evidentiary hearing and, after evaluating the extensive briefing and evidence presented, suppressed all evidence reflecting Ruehle's statements to attorneys from Irell & Manella LLP ("Irell"), Broadcom's outside counsel, regarding Broadcom's stock option granting practices. The court found that at the initial stage of the inquiry by Irell (called the "Equity Review") an attorney-client relationship also existed with the CFO individually, and not just with Broadcom, and that the lawyers breached their ethical duties to their client Ruehle in disclosing what he told them in a preliminary interview. The government filed an interlocutory appeal. The USCA reversed and remanded for further proceedings.

In March 2006, the Wall Street Journal published the first of a series of articles called "The Perfect Payday," which suggested that a number of public companies were backdating stock options granted to their employees. Shortly thereafter, in mid-May 2006, an investor rights group publicly identified Broadcom as one of the corporations that appeared to have engaged in backdating. As a result of the media attention and in anticipation of an inquiry from the SEC, Broadcom's Board of Directors and company management de-cided to bring in outside counsel to commence an internal review of the company's current and past stock option granting practices. Ruehle, as Broadcom's CFO, was among those intimately involved in that decision from the outset. On May 18, 2006, Broadcom's Audit Committee engaged Irell, a law firm with which it had longstanding ties, to conduct the Equity Review by investigating the pro-priety of the measurements dates utilized by Broadcom in its option granting process and identifying those grants which failed to meet the measurement date requirements of generally accepted accounting principles. Irell immediately commenced its review, which entailed collecting corporate documents and records and conducting interviews with past and current Broadcom employees. Broadband representatives, including Ruehle, met with Irell lawyers on May 24 and 25, 2006, to discuss the scope of the Equity Review. It was agreed that Irell would report the results of its inquiries to the Audit Committee. It was also decided that the Board would not appoint a panel of independent, outside directors to oversee the Equity Review. On May 26, 2006, a formal meeting of the Audit Committee was convened. Ruehle and other senior Broadcom executives, several members of the Board, and Irell lawyers were among those present. During the meeting, Irell partner David Siegel explained the nature of typical "backdating" investigations and discussed the status of Irell's internal review, including the necessary involvement of Broadcom's outside independent auditors, Ernst & Young LLP, who would have to review and opine on the accuracy of the company's audited financial statements and regulatory filings. Siegel also cautioned "that Irell can handle issues related to the proper accounting for option grants but that if an issue of self-dealing or management or Board integrity arose, a special committed of independent directors would need to be appointed and special independent counsel engaged to conduct that inquiry." The Audit Committee and other representatives of Broadcom made clear that the intent was to turn over the information obtained through the Equity Review to the auditors, to fully cooperate with government regulators, and, if necessary, to self-report any problems with Broadcom's financial statements.

As many within Broadcom had anticipated, civil lawsuits soon followed the media reports about the company's backdating of stock options. On May 25, 2006, a shareholder derivative suit captioned Murphy v. McGregor was filed in California federal court. On May 26, the plaintiffs in the ongoing securities class action in California state superior court, Jin v. Broadcom Corp., filed an amended complaint. Both the Murphy and Jin actions now alleged wrongdoing in relation to Broadcom's stock option granting practices; both suits named Broadcom and also personally named Ruehle, among other Broadcom officers and directors, as an individual defendant. On May 30, Broadcom's in-house General Counsel David Dull sent an email to various Broadcom employees, including Ruehle, notifying them of the Murphy action and of the amended complaint filed in the Jin securities class action. Dull invited anyone with concerns to contact him or Irell attorneys Siegel, Heitz, or Lefler. On June 1, 2006. Heitz and Lefler subsequently met with Ruehle to discuss Broadcom's stock option granting practices and his role as CFO. Ruehle later talked with the Irell lawyers as the Equity Review continued and the lawyers reported to the CFO their progress in unearthing facts. At no point did the topic of the civil securities law-suits arise as that topic might relate to Ruehle personally. Nor did Ruehle ever indicate to the lawyers that he was seeking legal advice in his individual capacity. It is the substance of these interactions that lay at the center of the present dispute. In late June 2006, Irell advised Ruehle to secure independent counsel with respect to the investigations and the pending civil suits. Ruehle retains the law firm Wilson Sonsini Goodrich & Rosanti to represent him individually. Nevertheless, Ruehle remained heavily involved in the company's internal review and he was privy to Irell's reports to the Audit Committee of its findings and ultimately the disclosures of the information gathered by Irell to Ernst & Young. In August 2006, at Broadcom's direction, Irell fully disclosed the information obtained from the Equity Review to the Ernst & Young auditors. Irell had a series of meetings with Ernst & Young in which the lawyers reported what they had found, which included the substance of Ruehle's June 1, 2006 interview with Heitz and Lefler. Ruehle was present for at least some of these meetings between Irell and the Ernst & Young auditors. There is no dispute that the Irell lawyers regularly updated Ruehle and others in senior management about the progress of the equity review and their meetings and contacts with the auditors. The Equity Review revealed several accounting irregularities with respect to certain stock option grants. In January 2007, on the advice of its outside counsel and auditors, Broadcom restated it earnings as reported in its financial disclosure statements to include a total of $2.2 billion in previously undisclosed compensation expenses.

The SEC and U.S. Attorney's Office commenced formal enforcement and grand jury investigations of several company executives in relation to Broadcom's stock granting practices. In May and June 2007, with Broadcom's authorization, government investigators interviewed Irell attorneys Heitz and Lefler by telephone regarding their conversations with Ruehle in June 2006. The informa-tion they provided was summarized in FBI Form FD-302 reports of investigation and became part of the sealed record. When he learned that the government intended to use this information against him in connection with possible criminal charges, Ruehle objected and claimed that any statements to the Irell attorneys were protected by his attorney-client privilege. He also insisted, after the fact, that whatever he said to Irell could not be disclosed without his prior written consent. On June 4, 2008, a grand jury indicted Ruehle and Nicholas, Broadcom's founder, and former President and CEO, on charges of conspiracy, securities and wire fraud, and various other violation of Title 15 of the U.S. Code. The indictment alleged that beginning in or around 1999 and continuing until at least in or around 2005, Nicholas and Ruehle, among others, engaged in a fraudulent scheme and conspiracy to disguise, conceal, understate, and mischaracterize compensation expenses Broadcom was required to recognize in connection with granting its stock options to various employees. Among the allegations of wrongdoing, the indictment claimed that as part of the backdating scheme the defendants paid a former employee who threatened to expose the scheme, concealed the payoff from the Broadcom's Board and its independent auditors, and took various steps to create plausible deniability as to Broadcom's option backdating practices. The government moved ex parte for a hearing to resolve whether the statements Ruehle made to Irell lawyers in June 2006 were privileged communications. Ruehle argued that he had an individual attorney-client relationship with Irell arising from the securities lawsuits, in which he was a named defendant. In its oral ruling, the District court strongly condemned the Irell attorneys' behavior with respect to their handling of the Equity Review. It then found that Ruehle had a reasonable belief that Irell lawyers were his lawyers prior to the June 1, 2006 interview by Irell, and that he never gave informed written consent, either to the dual representation by Irell or the disclosure of privileged information to third parties, including Ernst & Young and the government. Based on this reasoning, the court ordered suppression. Finally, the court referred Irell to the California State Bar for possible discipline in light of numerous perceived violations of state rules of professional conduct.

The USCA reversed and remanded. First, there was no dispute that Broadcom had an existing attorney-client relationship with Irell and, by electing to reveal the information gathered to Ernst & Young (and later to various agencies of the U.S.), deliberately waived any corporate-attorney-client privilege it held with respect to all matters at issue. Second, the Equity Review and the civil securities suit to which Ruehle was a party, both concerned the same general subject matter as of June 1, 2006-that is, the stock option granting practice of Broadcom. Finally, the district court concluded as a fact that Ruehle reasonably believed that Irell represented him individually with respect to the ongoing civil law suits when the June 1, 2006 meeting too place. Because this factual finding was not clearly erroneous, the USCA approached the parties' arguments from the perspective that Irell had attorney-client relationship with both Broadcom and Ruehle individually. However, the district court applied a liberal view of the privilege that conflicts with the strict view applied under federal common law, which governs here. By approaching the exclusion question with a presumption that the privilege attached, the district court inverted the burden of proof, improperly placing the onus on the government to show what information was not privilege. As the party asserting the privilege, Ruehle was obliged by federal law to establish the privileged nature of the communications and, if necessary, to segregate the privileged information from the non-privileged information. With respect to the later obligation, Ruehle made no effort to identify with particularity which of his communications to the Irell attorneys were within his claimed privilege in either his public or sealed filings to the USCA. Under federal law, the attorney-client privilege is strictly con-strued. Ruehle's failure to define the scope of his claim of privilege weights in favor of disclosure; in any event, his claim could not support the overly broad, blanket suppression order entered below. Ruehle's statements to the Irell attorneys were not "made in confidence" but rather for the purpose of disclosure to the outside auditors. Fisher, Could, and Tallman (author), Circuit Judges. D. Levin of Los Angeles, CA, for the appellant; M. Umhofer of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) TAXATION: Teruya Brothers v. CIR, 05-73779 (9th Cir. Sept. 8, 2009). At issue here was whether two "like-kind" exchanges involving related parties qualified for non-recognition treatment under 26 USC Sec. 1031. Under the circumstances presented by this case, the USCA concluded that they did not and thus affirmed the judgment of the Tax Court. The USCA found that the Tax Cort did not err in determining that the transactions were structured to avoid the purposes of Sec. 1031(f)(f) as, under the guise of a like-kind exchange, the transactions allowed related parties to receive non-recognition treatment while cashing out of investments using Sec. 1031's basis-shifting provision. Precluding this type of tax result was one of Congress's primary aims in enacting Section 1031(f)(4). Reinhardt, Brunetti, and Thomas (author), Circuit Judges. R. Yuen of Honolulu, HI, petitioner; AAG N. Hochman of Washington, DC, for respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) TAXATION: USA v. Bragg, 08-10221 (9th Cir. Sept. 23, 2009). The U.S. appealed the sentence imposed on Bragg after he pled guilty to two counts of filing false quarterly employment tax returns in violation of 26 USC Sec. 7206(1). In 1999, Bragg formed Consolidated Human Resources Az., Inc. ("CHRAZ"), an Arizona corporation providing payroll and other services to clients. It also took on the clients' employees as its own and leased them back to the clients. During 2000, CHRAZ had responsibility for the employment of thousands of employees. The clients of CHRAZ paid the company the employers' share of employment taxes and the amounts that the clients withheld to cover the employees' share. These sums, amounting to $2 million, were to be paid by CHRAZ to the IRS. For the four quarters of 2000, Bragg, acting on behalf of CHRAZ, filed federal employment tax returns showing zero wages paid. For the same period, he filed state returns for CHRAZ showing over $8 million in wages paid. The federal returns were false. Bragg entered into a plea agreement, pleading guilty to filing federal employment tax returns for the quarters ending September 30, 2000 and December 31, 2000. He agreed that the tax loss was $1,202,600 and that he would make his best effort to pay that amount by the date of sentencing. On March 14, 2008, a probation officer filed Bragg's presentence report. It established that Bragg had been twice convicted of misdemeanor sex offenses, four times of driving under the influence, and once of obstruction of the mail (for diverting checks from the IRS from the rightful recipient to his own post office box). He was still on probation for the mail offense when he committed the crime at issue here. After accepting Bragg's guilty plea, the district court imposed a sentence of 36 months probation, of which two years were to be served on supervised release; payment of the $1,200,000 and a special assessment of $200. Later, the court added a fine of $20,000 to the sentence. On appeal, the USCA held that the district judge failed to explain adequately the sentence he imposed. It thus vacated the sentence and remanded with directions that the district court explain its sentence adequately. Judge Smith dissented. He thought the district judge adequately explained the sentence, did not consider any inappropriate factors, and did not abuse his discretion. In Judge Smith's view, the majority vacated a sentence with which it simply disagreed, and failed to follow the "sage advice" of precedent that should bind its review. It also confused the traditional "role of an appellate court," which is not to "substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence." Noonan (author), Berzon, and N.R. Smith (dissenting), Circuit Judges. M. Determan of Washington, DC, for the appellant; A. Colombo of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) BANKRUPCTY: In re Hoopai, 07-15868 (9th Cir. Sept. 14, 2009). Countrywide Home Loans appealed the Bankruptcy Appellate Panel's ("BAP") vacature of a bankruptcy court order awarding Countrywide $83,542 in attorneys' fees and costs pursuant to Hawaii Revised Statutes Sec. 607-14. Countrywide argued that it is entitled to the fees as an oversecured creditor pursuant to 11 USC Sec. 506(b) (2000), or as the prevailing party pursuant to Hawaii state law, Sec. 607-14. Because Sec. 506(b) governs an oversecured creditor's entitlement to attorneys' fees incurred prior to confirmation of a Chapter 13 plan and preempts state law, the USCA con-cluded that both the bankruptcy court and the BAP erred in evaluating Countrywide's fee claim as falling entirely under Hawaii law. The USCA further conclude that the debtor was the prevailing party under Sec. 607-14. It thus vacated the bankruptcy court's order, and remanded for the court to reward reasonable pre-confirmation fees to Countrywide pursuant to Sec. 605(b), and to reconsider the debtor's claim for fees as the prevailing party pursuant to Sec. 607-14. Schroeder, Paez (author), and N.R. Smith, Circuit Judges. K. Windler of Santa Monica, CA, for Countrywide Home Loans; L. Schults of Honolulu, HI, for debtor. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) BANKRUPCTY: In re Dumont, 08-60002 (9th Cir. Sept. 15, 2009). At issue here was whether the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") permits a consumer in bankruptcy to retain personal property that is subject to a security interest by continuing to make payments under his contract. The USCA held that, at least where the debtor has not attempted to reaffirm, In re Parker, 139 F.3d 668 (9th Cir. 1998), has been superseded by BAPCPA. Appellee Ford Motor Credit Company thus did not violate the discharge injunction in repossessing Dumont's vehicle. The bankruptcy court rightly held that the propriety of the appellee's actions under state law was not before it. Judge Graber disagreed with the majority's assumption that "Congress intended to make ride-through available in all circuits, or none." She found the legislative history silent on the issue. As she thought the BAPCPA amendment added only confusion, she would not overrule Parker. Goodwin, O'Scannlain (author), and Graber (dissenting), Circuit Judges. M. Doan of Carlsbad, CA, for the debtor; R. Mrocynski of Costa Mesa, CA, for appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

8) DEBT COLLECTION: Imperial Merchant Services v. Hunt, 07-15976 (9th Cir. Sept. 1, 2009). Imperial Merchant Services attempted to recover a service charge, pursuant to Sec. 1719 of the California Civil Code, and pre-judgment interest, pursuant to Sec. 3287 of the California Civil Code, on a returned check. The district and bankruptcy courts concluded that the remedies were exclusive and that Imperial Merchant could not recover damages under both statutes. The USCA certified that state law issue to the Supreme Court of California which replied that "the statutory damages prescribed in section 1719 are exclusive in the sense that a debt collector who recovers a service change pursuant to section 1719 may not also recover prejudgment interest under Sec. 3287." Imperial Mer-chant Services v. Hunt, No. S163577, 2009 Cal. LEXIS 8030, at *2 (Cal. Aug. 10, 2009). The USCA then resubmitted the appeal for decision, finding the reasoning of the California Supreme Court to be self-explanatory and dispositive. It thus affirmed the district court. Trott and Thomas, Circuit Judges, and Hogan, District Judge. Per Curiam. C. Garen of Palm Springs, CA, for the appellant; I. Berg of Corte Madera, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) DEBT COLLECTION: Fleming v. Pickard, 07-35979 (9th Cir. Sept. 9, 2009). Between 2002 and 2005 the plaintiffs purchased firearms, fishing gear, and general merchandise at a discount from Barnes, an employee of Ace Hardware in Oak Harbor, Washington. In 2005, Barnes was arrested for stealing items from Ace, including the goods he sold to the plaintiffs. He was convicted of the offenses and imprisoned. Ace sued Barnes to recover the merchandise or its value. Kenneth Pickard represented Barnes in the lawsuit. Ace and Barnes reached a settlement, wherein Barnes' father, Robert, paid Ace $50,000 in exchange for an assignment of all Ace's claims against third parties. Robert then assigned his rights to Jim Martyn, who, in turn, assigned the rights to M3 Holdings, Inc. M3 Holdings and Martyn, represented by Pickard, filed a tort action against the plaintiffs in state court for wrongful conversion, unjust enrichment, and violation of the Washington Criminal Profiteering Act. The complaint alleged that the plaintiffs had entered into illicit agreements with Barnes to acquire the stolen goods at discounted prices, and that they had not returned the goods to Act. At issue on appeal was whether a cause of action for tortious conversion constitutes a debt within the meaning of the Fair Debt Collection Practices Act ("FDCPA"). The USCA held that it does not. It thus affirmed the district court's judgment on the pleadings under Federal Rule Civil Procedure 12(c) dismissing the plaintiffs' FDCRA claim without prejudice to their related state law claims. Wardlaw, Paez (author), and N.R. Smith, Circuit Judges. J. Sturdevant of Bellingham, WA, for the appellants; T. Cullen of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) ENVIRONMENTAL LAW: Center for Biological Diversity v. U.S. Department of Interior, 07-16423 (9th Cir. Sept. 14, 2009). The Center for Biological Diversity, the Western Land Exchange Project, and the Sierra Club (collectively, "appellants") brought a suit against Asarco LLC, a mining company, and the Department of Interior and Bureau of Land Management (collectively "BLM"). The appellants argued that the BLM's approval of a land exchange violated the National Environmental Policy Act ("NEPA"), the Federal Land Policy and Management Act ("FLPMA"), and the Mining Law of 1872. If the proposed exchange occurs, Asarco's will take fee simple ownership of the land, and, in that event, Asarco's use of the land would not be subject to the requirements of the Mining Law. If the exchange does not occur, the land will continue to be owned by the United States and Asarco will not be permitted to conduct mining operations there unless it complies with the Mining Law. As part of the process of approving the land exchange, the BLM prepared a Final Environmental Impact Statement ("FEIS") pursuant to NEPA. In this FEIS, the BLM assumed that Asarco would carry out mining operations on the land in the same manner whether or not the land exchange occurred. Because of this assumption, the FEIS contains no comparative analysis of the environment consequences for the different alternatives proposed. The BLM made the same assumption in its Record of Decision ("ROD") approving the land exchange. The ROD, like the FEIS, contained no analysis of how the environmental consequences-and the implications for the public interest-would differ depending on whether the proposed land exchange occurs. As the BLM conducted no comparative analysis, the USCA held it had not taken a "hard look" at the environmental consequences of its proposed action in violation of Blue Mountain Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998), and that its approval of the proposed land exchange was "arbitrary and capricious" in violation of FLPMA. Webb v. Lujan, 960 F.2d 89, 91 (9th Cir. 1992). The USCA thus reversed the district court's approval of the actions of the BLM. Dissenting, Judge Tallman said that he would faithfully apply Ninth Circuit precedent and affirm the district court's summary judgment in favor of the BLM and Asarco. D.W. Nelson, W. Fletcher (author), and Tallman (dissenting), Circuit Judges. R. Flynn of Lyons, CO, for the appellants; E. Geldermann of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) ENVIRONMENTAL LAW: Rosemere Neighborhood Assoc. v. EPA, 08-35045 (9th Cir. Sept. 17, 2009). Rosemere Neighborhood Association ("RNA") appealed the district court's dismissal of its action against the U.S. Environmental Protection Agency ("EPA") on the grounds that RNA's complaint was moot. The USCA concluded that the district court erred in dismissing the case, because the voluntary cessation exception to mootness applied Rosemere's complaint is not moot. B. Fletcher, Tashima (author), and Thomas, Circuit Judges. C. Winter of Portland, OR, for the plaintiff-appellant; AUSA R. Cohen of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) ENVIRONMENTAL LAW / JURISDICTION: Provincial Government of Marinduque v. Placer Dome, Inc., 07-16306 (9th Cir. Sept. 29, 2009). The provincial Government of Marinduque, Philippines, sued Placer Dome Corporation in 2005 in Nevada state court for alleged human health, ecological, and economic damages cause by the company's mining operations on Marinduque. According to the complaint, Placer Dome severely polluted the lands and waters of Marinduque for some 30 years, caused two cataclysmic environmental disasters, poisoned the islanders by contaminating their food and water sources, and then left the province without cleaning up the mess-all in violation of Philippine law. The Province further alleged that Placer Dome received certain forms of assistance in its mining endeavors from the Philippine government. In particular, it maintained that former Philippine President Ferdinand Marcos, in exchange for a personal stake in the mining operations, eased environmental protections obstructing Placer Dome's way. Placer Dome removed the case to the federal district court for the District of Nevada on the basis of federal-question jurisdiction. Specifically, Placer Dome maintained that the cased tendered questions of international law and foreign relations. The Province moved for an order requiring Placer Dome to show cause why the action should not be remanded to the state court due to a lack of subject-matter jurisdiction. The district court denied the Province's motion, holding that federal-question jurisdiction existed under the act of state doctrine of the federal common law. Placer Dome moved to dismiss the suit for lack of personal jurisdiction and forum non con-veniens. The district court granted limited discovery on personal jurisdiction. But, before discovery was conclude the U.S. Supreme Court issued Sinochem International Co. v. Malaysia International Shipping Corp., 549 US 422, 432 (2007), announcing that district courts have latitude to rule on the threshold issue of forum non conveniens before definitively ascertaining subject-matter and personal jurisdiction. The district court stayed jurisdictional discovery, and ordered briefing on the issue of forum non conveniens. Invoking Sinochem, the district court dismissed the matter on forum non conveniens grounds in favor of a Canadian forum. In ruling on the Province's motion for reconsideration, the district court affirmed its earlier conclusion that "subject matter jurisdiction did, in fact, exist in this case, based on the acts of state doctrine." The USCA reversed. Under the act of state doctrine, "the acts of foreign sovereigns taken within their own jurisdiction shall be deemed valid." W.S. Kirkpatrick & Co. v. Environmental Tectonics Corporation, 493 US 400, 409 (1990). Founded on international law, the doctrine also serves as a basis for federal-question jurisdiction when the plaintiffs' complaint challenges the validity of a foreign state's conduct. At issue here was whether a district court had subject-matter jurisdiction over the suit, based upon the act of state doctrine, such that removal from the state to federal court was proper. Because none of the referenced conduct by the foreign sovereign-in this case, the Philippine government-was essential to any of the plaintiff's cause of action, the USCA reversed the district court's exercise of subject-matter jurisdiction under the act of state doctrine. McKeown (author) and Ikuta, Circuit Judges, and Block, District Judge. N. Peck of Denver, CO, for the appellant; S. Morris of Las Vegas, NV, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) COPYRIGHT INFRINGEMENT: Art Attacks Ink. LLC v. MGA Entertainment, 07-56110 (9th Cir. Sept. 16, 2009). Art Attacks Ink, a small airbrush art business that has sold custom-made T-shirts and other items since 1983, brought suit against MGA Entertainment, Inc. for copyright, trademark, and trade dress infringement. A jury found for MGA on the trademark claim, but could not reach a verdict on the remaining claims. MGA then moved for judgment as a matter of law under Fed. R. Civ. Proc. 50(b). The district court granted the motion and Art Attacks timely appealed. The USCA found that MGA failed to timely file its Rule 50(b) motion. However, because Rule 50(b) is not jurisdiction, the timeliness argument is forfeitable. Art Attacks waived its timeliness objection by failing to raise it before the district court. On the merits, the USCA conclude that Art Attacks failed to show that MGA had access to copyrighted works and that its design acquired secondary meanings. The USCA thus affirmed the district court's grant of judgment as a matter of law as to Art Attacks' copyright and trade dress infringement claims. Pregerson (author), D.W. Nelson, and Thompson, Circuit Judges. M. Quade of San Diego, CA, for the plaintiff-appellant; C. Holden of Van Nuys, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) ERISA: Montour v. Hartford Life & Accident Insurance Co., 08-55803 (9th Cir. Sept. 14, 2009). Montour appealed the district court's order granting summary judgment in favor of Hartford Life and Accident Insurance Company in his action challenging Hartford's decision to terminate his long-term disability benefits as an abuse of its discretion. At issue was how a district court should apply the abuse of discretion standard when reviewing a decision by the administrator of an employee benefits plan governed by ERISA, when that administrator has a conflict of interest. The USCA concluded that a reviewing court must take into account the conflict of interest and that this necessarily entails a more complex application of the abuse of discretion standard. Specifically, a modicum of evidence in the record supporting the administrator's decision will not alone suffice in the face of such a conflict, since this more traditional application of the abuse of discretion standard allows no room for weighing the extent to which the administrator's decision may have been motivated by improper considerations. The USCA thus reversed and, applying the proper standard of review to the facts of the case and held that Hartford abused its discretion because its conflict of interest too heavily influenced its termination decision. It remanded to the district court for an order reinstating Montour's long-term disability benefits. W. Fletcher, Clifton (author), and M.D. Smith, Circuit Judges. B. Knypstra of Irvine, CA, for the appellants; B. Celebrezze of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) ERISA: Scharff v. Raytheon Company Short Term Disability Plan, 07-55951 (9th Cir. Sept. 9, 2009). Scharff worked for the Raytheon Company. Raytheon Company employees' contributions are held in the Raytheon Employees Disability Trust. The Company and the Trust jointly fund the defendant Raytheon Company Short Term Disability Plan. Only the Trust funds the Raytheon Company Long Term Disability Plan. Metropolitan Life Insurance Company administers, but does not insure, the Plans. ERISA governs both Plans. The Plans contained a contractual one-year statute of limitations. After MetLife denied her claim for Short Term Plan benefits, the plaintiff brought suit in federal court seeking benefits under both Plans, but she filed her action 20 days after the one-year contractual statute of limitations had lapsed. The district court dismissed the action as untimely. The USCA held that even if the doctrine of "reasonable expectations" applied here, the one-year statute of limitations met its requirements and also met the statutory and regula-tory standards for disclosure. The USCA declined to import into federal common law a California regulation requiring insurers to in-form claimants expressly of statutes of limitations that may bar their claims. The USCA thus affirmed the dismissal of the action. Judge Pregerson dissented. He did not think that an average plan participant could successfully navigate through Raytheon's labyrinthine Summary Plan Descriptions. In his view, the Summary plan Description bounces a reader between important provisions in the Disability and Administrative chapters in a way that makes it all to easy to miss the one-year deadline for filing a claim under ERISA in federal court. First, he thought that the Summary Plan Description at issue does not meet the statutory and regulatory requirements governing employee benefit plan disclosures. Those disclosures are required to be "written in a manner calculated to be understood by the average plan participant." 29 USC Sec. 1022(a). Second, even if those statutory and regulatory requirements were met, the USCA has already applied the doctrine of reasonable expectation to self-funded ERISA plans, so Judge Pregerson would hold that the one-year deadline here is unenforceable because it was not set forth in a clear, plane and conspicuous statement in the plan. Pregerson (dissenting), Graber (author), and Wardlaw, Circuit Judges. P. Sessions of Northridge, CA, for the plaintiff-appellant; A. Staples of Long Island City, NY, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) ERISA: Marin General Hospital v. Modesto & Empire Traction Company, 07-16518 (9th Cir. Sept. 10, 2009). At issue on this appeal was whether ERISA Sec. 502(a)(1)(B) completely preempts a state-law action for breach of contract, negligent misrepresentation, quantum meruit and estoppel. Because the state-law claims could not be pursued under Sec. 502(a)(1)(B), and because they rely on legal duties that are independent from duties under any benefit plan established under ERISA, the USCA held that they are not completely preempted. Because the claims were not completely preempted under Sec. 502(a)(1)(B), there was no federal question subject matter jurisdiction in federal court. Removal from state court was thus improper. D.W. Nelson, W. Fletcher (author), and Tallman, Circuit Judges. V. Brown of Burbank, CA, for the appellant; B. Post of Fresno, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) COMPUTER FRAUD: LVRC Holdings v. Brekka, 07-17116 (9th Cir. Sept. 15, 2009). LVRC Holdings, LLC filed this lawsuit in federal district court against its former employee, Christopher Brekka, his wife, Carolyn, and the couple's two consulting businesses, Employee Business Solutions, a Nevada corporation and Employee Business Solutions, a Florida corporation. LVRC alleged that Brekka violated the Computer Fraud and Abuse Act ("CFAA"), 18 USC Sec.1030, by accessing LVRC's computer "without authorization," both while Brekka was employed at LVRC and after he left the company. The district court granted summary judgment in favor of the defendants. The USCA affirmed. Because Brekka was authorized to use LVRC's computers while he was employed at LVRC, he did not access a computer "without authorization" in violation of Secs 1030(a)(2) or 1030(a)(4) when he emailed documents to himself and to his wife prior to leaving LVRC. Nor did emailing the documents "exceed authorized access," because Brekka was entitled to obtain the documents. Moreover, LVRC failed to establish the existence of a genuine issue of material fact as to whether Brekka accessed the LVRC website without authorization after he left the company. McKeown and Ikuta (author), Circuit Judges, and Selna, District Judge. T. Grace of Las Vegas, NV, for the plaintiff-appellant; N. Kirshman of Las Vegas, NV, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) RENT CONTROL: Guggenheim v. City of Goleta, 06-56306 (9th Cir. Sept. 28, 2009). Guggenheim and others brought a facial challenge to the City of Goleta's mobile home rent control ordinance. They argued that the ordinance, which effects a transfer of nearly 90% of the property value from mobile home park owners to mobile home tenants, constitutes a regulatory taking under Penn Central Transportation Co. v. New York City, 438 US 104 (1978). To determine whether a taking has occurred, the USCA had first to determine whether the mobile home park owners had standing to being the case. Second, it had to consider whether the case was ripe under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 US 172 (1985). If so, then the USCA had to determine whether the city ordinance constitutes a regulatory taking under Penn Central. The USCA also addressed challenges to the ordinance under the Due Process and Equal Protection Clauses. The district court did not address either the standing or ripeness questions due to the unusual procedural history of the case, but implicitly found that the case had been properly brought. It concluded that no taking had occurred. The USCA agreed that this case had been properly brought and was ripe for decision, but disagreed with the district court on the merits of the takings claim. Because it found that a taking had occurred, it reversed and remanded to the district court to determine what compensation was due. Finally, the USCA affirmed the district court's judgment on the due process and equal protection claims. Judge Kleinfeld agreed with the majority that the prudential ripeness requirement of Williamson County Regional Planning Commission did not preclude a decision on the merits, and agreed with the majority that the rent control ordinance would amount to a regulatory taking under Penn Central, were it not a re-enactment of one already in effect when the Guggenheims purchased the trailer park. But Judge Kleinfeld could not agree that there was a taking of anything for which the Guggenheims would be entitled to compensation, because they purchased the park after the regulatory takings that mattered. Goodwin, Kleinfeld (dissenting), and Bybee (author), Circuit Judges. M. Alpert of Santa Ana, CA, for the plaintiffs-appellants; J. Biggs of Los Angeles, CA, for the defen-dant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) WRONGFUL DEATH / PRODUCT LIABILITY: Hunter v. Philip Morris USA, 07-35916 (9th Cir. Sept. 28, 2009). Francis, an Alaska resident and citizen, died at age 52 from lung cancer. As his survivor and on behalf of his estate, Hunter brought a wrongful death lawsuit in Alaska state court against the three appellees: Philip Morris USA, a Virginia corporation that produces, markets, and distributes cigarettes; Altria Group, the parent of Philip Morris USA; and the Alaska Commercial Company ("ACC"), an Alaska corporation that sells merchandise, including cigarettes manufactured by Philip Morris, in stores throughout Alaska. Hunter alleged that Francis' death resulted from defective products sold by the appellees. Her complaint included claims of fraud and misrepresentation, products liability, failure to warn, deceptive advertising, breach of warranty, conspiracy, and addiction defectiveness. Philip Morris and Altria removed the case to the U.S. District Court for the District of Alaska. They maintained that Hunter's state law claims against ACC were preempted by congressional policy not to remove tobacco from the market and that ACC thus was fraudulently joined, resulting in complete diversity of citizenship. Philip Morris and Altria then filed a motion to dismiss Hunter's complaint pursuant to Federal Rule Civil Procedure 12(b)(6) for failure to state a claim. Hunter moved to remand, asserting that her complaint adequately pleaded a strict products liability claim against ACC under Alaska state law. She argued that ACC was not fraudulently joined and consequently, that total diversity between plaintiff and all defendants did not exist. The district court denied Hunter's motion to remand. It agreed with Philip Morris and Altria that Hunter's state product liability claim against ACC was preempted because it would result in an effective ban on cigarettes, in contravention of congressional policy. Accordingly, Hunter had stated no possible claim against ACC. The district court thus concluded that ACC was fraudulently joined, resulting in diversity of citizenship. The court denied Hunter's motion for reconsideration and then granted the 12(b)(6) motion to dismiss, reasoning that Hunter had failed to identify the specific products Francis used and the alleged defects in the products, and that any product liability claims were preempted by the congressional intent not to ban the sale of cigarettes. The district court then entered final judgment for the appellees. On appeal, the USCA held that the district court erroneously allowed the defendants-appellees to achieve diversity jurisdiction by its incorrect finding that the plaintiffs-appellants' state law claims were preempted and constituted fraudulent joinder. Because the district court should have remanded the action to state court, the USCA vacated the judgment and remanded with instructions to remand the action to state court. D.W. Nelson, Tashima (author), and Fisher, Circuit Judges. D. Bauermeister of Anchorage, AK, for the plaintiff-appellant; J. Phillips of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) VETERAN CARE: Gossett v. Czech, 06-16973 (9th Cir. Sept. 9, 2009). Gossett, a committed inmate at Napa State Hospital, appealed the district court's summary judgment in his 42 USC Sec. 1983 action alleging that Czech, the Hospital's trust officer, unlaw-fully took a portion of his Department of Veterans Affairs ("VA") benefits each month and applied the money to partially defray the costs of Gossett's care at the Hospital. Gossett claimed that this reimbursement violated the statutory provision that makes benefits earned by U.S. military veterans "exempt from the claims of creditors." 38 USC Sec. 5301(a)(1). He also claimed on appeal that Czech violated certain conditions and specified procedures contained in the regulations implementing this statute. See 38 CFR Secs. 13.58, 13.71. The USCA affirmed and held that Sec. 5301(a)(1), when read in combination with pertinent regulations such as Sec. 13.71, does not prohibit direct payments of VA benefits to a state hospital for ongoing veteran patient care. While it recognized the importance of shielding VA benefits from the claims of creditors, the USCA also recognized that the purpose of those benefits was for the care and maintenance of veterans. The USCA said its holding is consistent with this legislative goal and also prevents the "somewhat perverse result" of taxpayers "picking up the bill" twice for the case of an incompetent veteran. W. Fletcher, Clifton, and M.D. Smith (author), Circuit Judges. Gossett pro se; C. Lifland of Los Angeles, CA, amicus curiae for Gossett; DAG H.T. Gower of San Fran-cisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) RECOVERY OF ART STOLEN BY NAZIS: Cassirer v. Thyssen-Bornemisza Collection Foundation, 06-56325 (9th Cir. Sept. 8, 2009). Cassirer filed this action in federal district court against Spain and the Thyssen-Bornemisza Collection Foundation to recover a Camille Pissarro painting now on display at the Foundation's museum in Madrid. Cassirer alleged that the painting was taken from his grandmother in violation of international law in 1939 by an agent of Nazi Germany. On appeal, Spain and the Foundation challenged the district court's denial of their respective motions to dismiss for lack of (1) personal jurisdiction, (2) standing, (3) a justi-ciable case or controversy, and (4) subject matter jurisdiction based on sovereign immunity. The USCA dismissed the appeal with re-gard to the appellants' challenges to person jurisdiction, standing and the existence of a justiciable case or controversy. It found it lacked appellate jurisdiction as there has been no final judgment and the issues are not immediately appealable under the collateral order doctrine. However, under the collateral order doctrine, the USCA found jurisdiction to consider the issue of sovereign immunity. It considered for the first time whether the expropriation exception of the Foreign Sovereign Immunities Act, 28 USC Sec. 1605(a)(3), applies when the foreign state (against whom a claim is made) is not the entity that expropriated the property in violation of international law. The USCA held that it does, and that advertising and promotional activity, purchase and sale of goods and services, and the exchange of artwork with persons and entities, all within the U.S., were sufficient to constitute commercial activity in the U.S. under Sec. 1605(a)(3). Finally, based on guidance in Sarei v. Rio Tinto, PLC, 550 F.3d 822, 932 (9th Cir. 2008) (en banc) (plurality opinion), the USCA remanded to the district court to determine, in the first instance, whether the circumstances of this case warrant judicial im-position of an exhaustion requirement. Judge Ikuta disagreed in part because in her view the USCA should not take it upon itself to write an exhaustion requirement into the Foreign Sovereign Immunities Act when Congress chose not to. In enacting the Act, Congress created uniform and clear standards for litigants seeking to bring lawsuits against foreign sovereigns, and there is no indication that Congress contemplated that courts would impose an additional exhaustion requirement on litigants. In addition, Ninth Circuit case law on prudential exhaustion in the context of the Alien Tort Statute is both inapposite and non-binding. Because imposing a judge-made exhaustion requirement here is contrary to Congressional intent and does nothing more than create a trap for the unwary, Judge Ikuta dissented. T.G. Nelson, Ikuta (dissenting in part), and N.R. Smith (author), Circuit Judges. W. Barron of New York, NY, and T. Stauber of Los Angeles, CA, for the defendant-appellant; S. Dunwoody of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) FIRST AMENDMENT: Nurre v. Whitehead, 07-35867 (9th Cir. Sept. 8, 2009). Nurre sought to perform an instrumental version of "Ave Maria" at her public high school's graduation ceremony. Whitehead, the school district superintendent, declared that the piece could not be played at the ceremony because it could be seen as endorsing religion. Nurre sued Whitehead in both her individual and official capacities for alleged violations of Nurre's First and Fourteenth Amendment rights. On appeal, she challenged the dismissal of her civil rights claims brought under 42 USC Sec. 1983. The USCA concluded that Supreme Court precedent and the law of the Circuit counseled it to find that there was no violation of Nurre's constitutional rights. It thus affirmed the district court's ruling. Dissenting in part, Judge Smith wrote separately because he disagreed with the majority's conclusion that banning the playing of an instrumental version of the musical number "Ave Maria" at her high school's graduation ceremony was a reasonable restraint of freedom of expression. He would hold that, in prohibiting Nurre and here classmates from playing their selected piece of music, the School District misjudged the Establishment Clause's requirements and, in so doing, violated Nurre's First Amendment rights. Judge Smith was concerned that, if the majority's reason on this issue becomes widely adopted, the practical effect would be for public school ad-ministrators to chill-or even kill-musical and artistic presentations by their students in school sponsored limited public for a where those presentations contain any trace of religious inspiration, for fear of criticism by a member of the public, however extreme that person's views may be. Beezer, Tallman (author), and M.D. Smith (dissenting in part), Circuit Judges. W.T. Vander Well of Bellevue, WA, for the appellant; M. Patterson of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) IMMIGRATION: Kazarian v. USCIS, 07-56774 (9th Cir. Sept. 4, 2009). Kazarian, a 34-year-old native and citizen of Armenia, filed an application for an employment-based immigrant visa for "aliens of extraordinary ability" (Form I-140) contending that he was an alien with extraordinary ability as a theoretical physicist. The U.S. Citizenship & Immigration Service ("USCIS") denied the petition. Kazarian appealed the denial to the Administrative Appeals Office ("AAO"). It found that Kazarian failed to establish any of the necessary criteria for an "extraordinary ability" visa and dismissed the appeal. Having exhausted his administrative remedies, Kazarian filed a complaint in federal district court. It granted the USCIS's motion for summary judgment. The USCA affirmed, agreeing with the district court that the USCIS's denial of an "extraordinary ability" visa was not arbitrary, capricious, or contrary to law. Dissenting, Judge Pregerson noted that Kazarian received his Ph.D. in theoretical physics from Yerevan State University and, since arriving in the U.S. has continued research and teaching in this field. He participated in a research group headed by Dr. Kip Thorne at the California Institute of Technology. Dr. Thorne submitted a letter in support of Kazarian's visa application. Kazarian volunteers his teaching services at Glendale Community College and has authored and published his own physics textbook. He has received strong words of praise from colleagues at Yerevan State University, Glendale Community College, and the California Institute of Technology. His contributions in the U.S. have been undoubtedly valuable. Forcing him to depart the U.S. would, Judge Pregerson thought, be wasteful and make one think that there is something haywire in our system. Pregerson (dissenting), D.W. Nelson (author), and Thompson, Circuit Judges. R. Sarkisian of Glendale, CA, for the appellant; C. Kuhn of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) IMMIGRATION: Verdugo-Gonzales v. Holder, 06-73733 (9th Cir. Sept. 14, 2009). The petitioner sought review of an order that he be removed from to Mexico. He was held ineligible for cancellation of removal because he had previously been convicted of an aggravated felony. He argued that his felony conviction for receipt of stolen property under Sec. 496(a) of the California Penal Code did not constitute an aggravated felony, but the USCA concluded that a conviction under that statute categorically qualified as an ag-gravated felony for these purposes. The USCA thus denied the petition for review. Silverman, Clifton (author), and M.D. Smith, Cir-cuit Judges. K. Wilkes of San Francisco, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) IMMIGRATION: Castillo-Cruz v. Holder, 06-70896 (9th Cir. Sept. 17, 2009). The petitioner sought review of a BIA order affirming an Immigration Judge's ("IJ") decision to pretermit his application for cancellation of removal. The IJ found that the petitioner had been convicted of two crimes of moral turpitude, petty theft and receipt of stolen property, rendering him inadmissible under 8 USC Sec. 1182(a)(2)(A)(2)(i)(I) and ineligible for cancellation of removal under Sec. 1229b(b)(1)(C). The IJ found that his criminal convictions, because they were for crimes of moral turpitude, interrupted ten years of continuous physical presence required for cancel-lation of removal under Sec. 1229b(d)(1). The IJ also found that the petitioner's criminal convictions precluded him from showing "good moral character" during the ten-year period, which the IJ stated should be calculated from the date the petitioner first entered the United States. The USCA affirmed the IJ's determination that the petitioners' conviction for petty theft constituted a crime of moral turpitude, but reversed with respect to the receipt of stolen property determination. It further reversed with respect to the IJ's good moral character determination. The petitioner's single conviction for petty theft may fall within the petty offenses exception. If it does, the petitioner would not be subject to the "stop time" rule of Sec. 1229b(d)(1) precluding him from establishing the requisite period of continuous presence. The USCA thus remanded to the BIA so it could decide in the first instance whether the petty theft conviction fell within the petty offenses exception, and so that it could resolve any other issues regarding the petitioner's application for cancellation of removal. Schroeder and Reinhardt (author), Circuit Judges, and Pollak, District Judge. C. Nichol of San Francisco, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) IMMIGRATION: Landin-Molina v. Holder, 05-73677 (9th Cir. Sept. 1, 2009). At issue here was an alien's eligibility to adjust to lawful permanent resident status via the "grandfathering" regulations implementing Sec. 245(i) of the Immigration and Nationality Act, 8 USC Sec. 1255(i). Adjustment of status is generally available only to aliens who were inspected and admitted or paroled into the United States; however, under Sec. 1255(i), certain aliens who entered the U.S. without inspection may apply for adjustment of status. Section 1255(i) expired on April 30, 2001, and, at present, its benefits are available only to aliens who qualify as having been "grand-fathered" into the provisions. This appeal involves two natives and citizens of Mexico who entered the U.S. unlawfully. Petitioner Landin argued that he is grandfathered by virtue of his marriage to Ojeda, who adjusted her status as a grandfathered alien. However, the grandfathering provision does not help Landin because his marriage occurred after Ojeda adjusted to lawful permanent resident status. She thus did not impart grandfathered status to Landin. Petitioner Estrada argued that she was grandfathered based upon her registration for the Replenishment Agricultural Worker ("RAW") program. However, she was not grandfathered because being a registrant for the RAW program does not satisfy the requirement of having filed an application for labor certification. The USCA thus denied both petitions. Trott, McKeown (author), and Ikuta, Circuit Judges. N. Suriel of Phoenix, AZ, and C. Todd of Mill Valley, CA, for the petitioners; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) IMMIGRATION: Delgado-Hernandez v. Holder, 08-70789 (9th Cir. Sept. 9, 2009). The petitioner sought review of a final order of removal based on the Board of Immigration Appeals' determination that his conviction for attempted kidnapping under Califor-nia Penal Code Sec. 207 was an aggravated felony because categorically a crime of violence. The USCA agreed and denied the peti-tion. This conclusion followed from the USCA's long-standing case law deeming convictions under similar kidnapping statutes to be crimes of violence. See for instance USA v. Williams, 110 F.3d 50, 52-53 (9th Cir. 1997). Hawkins, McKeown, and Bybee, Circuit Judges. Per Curiam. J. Lasso of Westlake Village, CA, for the petitioner; T.B. Stanton of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) IMMIGRATION: Turcios v. Holder, 05-72258 (9th Cir. Sept. 29, 2009). Turcios petitioned for review of the Board of Immigration Appeals' denial of his motion to reconsider its rejection of his appeal of an Immigration Judge's decision as being untimely filed. Finding that it lacked jurisdiction to review the petition, the USCA dismissed. Turcios is a citizen of Nicaragua. In October 2003, removal proceedings were commenced against him. The notice to appear alleged that Turcios was admitted to the U.S. as a lawful per-manent resident in 1968, sought to reenter in 2003, was paroled into the U.S. for deferred inspection, and had his parole revoked in October 2003. Turcios was previously convicted of sale of cocaine, felony spousal abuse, resisting arrest, and eight separate instances of petty theft while in the United States. The notice to appear indicated that he was removable under 8 USC Secs. 1182(a)(2)(A)(i)(I) and (II) for his convictions for a crime relating to a controlled substance, and a crime involving moral turpitude. At the hearing before the IJ, Turcios admitted all of his convictions and conceded removability. The IJ issued the order of deportation. On the order, the IJ instructed that any appeal to the BIA was "due by 12/23/04." On December 22, 2004, one day before the notice of appeal was due, Turcios' counsel delivered the notice to Federal express for overnight delivery. However, the notice of appeal was not received by the BIA until December 27, 2004. The BIA entered an order dismissing the appeal as untimely. Turcios filed a motion before the BIA to reconsider its decision and reopen his proceedings. His motion explained that the notice was delivered late due to severe winter weather conditions. He attached a letter from Federal express indicating that the late delivery was due to the winter weather. In March 2005, the BIA denied the motion to reconsider because the motion merely offered an explanation for late delivery and did not expose an error of fact or law in the prior decision. Turcios appealed. He challenged only the BIA's denial of discretionary relief of reconsideration of its prior decision dismissing the untimely notice of appeal. He did not raise any constitutional challenges, nor did he raise any questions of law as contemplated by the REAL ID Act. Since the BIA's denial of Turcios' motion to reconsider was an excuse of routine discretion, the USCA dismissed for lack of jurisdiction. See Irigoyen-Briones v. Holder below for Judge Kleinfeld's dissent. Siler (author), Kleinfeld (dissenting), and M.D. Smith, Circuit Judges. M. Robles of San Francisco, CA, for the petitioner; A. Hausman of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) IMMIGRATION: Irigoyen-Briones v. Holder, 07-71806 (9th Cir. Sept. 29, 2009). The petitioner sought review of the Board of Immigration Appeal's denial of his motion to reconsider its rejection of his appeal of an Immigration Judge's decision as being un-timely filed. The petitioner sought to excuse the late filing as having been caused by an overnight delivery service's failure to deliver the notice until the day after the BIA's 30-day deadline. He argued that the BIA's determination that it lacked jurisdiction to extend the appeal filing deadline conflicts with the decision in Oh v. Gonzales, 406 611, 613 (9th Cir. 2005), which held on similar facts that the deadline is subject to exceptions in "rare circumstances." In response, the Attorney General asserted that the BIA's subsequent decision in In re Liadov, 23 I&N Dec. 990 (BIA 2006), which expressly addressed and rejected the Oh holding, is the governing authority. Because 8 CFR Sec. 1003.38(b) is ambiguous regarding the BIA's jurisdiction to consider late filings, and because the BIA's interpre-tation in Liadov is not plainly erroneous or inconsistent with the language of the regulation, the USCA concluded that Supreme Court precedent required it to give deference to the BIA's construction of Sec. 1002.38(b). It thus affirmed the BIA's denial of the petitioner's motion to reconsider its rejection of his appeal of the IJ's decision as being untimely filed. Judge Kleinfeld dissented. Judge Kleinfeld dissented, filing the same dissent here and in Turcios v. Holder above because the two cases raised identical legal issues in materially similar factual and legal contexts. The issue in both cases was whether the BIA ought to have considered an appeal that was sent in time to arrive before the deadline, and was guaranteed by the shipper to arrive in time, but got stamped at the BIA headquarters the day after the due date. The merits were not at issue, just lateness. Judge Kleinfeld noted that the issue of lateness affects innumerable cases and that it is a matter of chance whether an alien attempting appeal falls into this pit. Although the BIA interprets the statutes and regulations as requiring that filing deadlines be strictly enforced, the BIA also acknowledges that it has the authority to relieve litigants from the consequences of late filing for "exceptional circumstances." The BIA, in both cases, followed its decision in In re Liadov, which held that "short delays by overnight delivery services" are not "extraordinary," so "appellants must take such possibilities into account and act accordingly. The only place notices of appeal can be filed is Falls Church, Virginia, so evidently "act accordingly" means fly to one of the D.C. area airports or send the notice at some unknown and unpredictable time prior to the deadline so that the BIA would think the delivery service delay "extraordinary." The BIA held that even though it lacks authority to extend the 30 days deadline, it does have authority to "certify a case to itself under 8 CFR Sec. 1003.1(c), where a case presents exceptional circumstances. Oddly, the BIA does not provide for any means of filing notices of appeal other than showing up at Falls Church, Virginia or sending the papers by post office or private delivery service. Federal court generally provide for electronic case filing and the Fed. Rules of Civ. Proc. Expressly address electronic filing. In Judge Kleinfeld's view the principle of constitutional avoidance requires that the statute and regulations be construed if possible to require that such notices of appeal be deemed timely. In the absence of such a construction, the Board's rigid position denies aliens due process of law. Siler, Kleinfeld (dissenting), and M.D. Smith (author), Circuit Judges. C. Nichol of San Francisco, CA, for the petitioner; C. Canter of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) IMMIGRATION: Aguilar-Turcios v. Holder, 06-73451 (9th Cir. Sept. 29, 2009). The petitioner, a native and citizen of Honduras and a lawful permanent resident alien of the U.S., sought review of the Board of Immigration Appeals' order finding him removable as an alien convicted of an aggravated felony. After entering the U.S. in 1996 and joining the U.S. Marine Corps four years later, the petitioner began accessing pornographic websites on his computer workstation at the Marine Corps Miramar Air Station in San Diego. He had searched for and downloaded images of pre-teen girls engaged in sexually explicit activity. He saved some of the im-ages onto disks for his person use at home. He also borrowed a laptop from a friend on which he downloaded child pornography. He was charged before a court martial with two counts of violating the Uniform Code of Military Justice ("UCMJ"). The first count al-leged a violation of Art. 92 of the UCMJ, which requires members of the military to obey all lawful orders. Specifically, he was charged with violating a standing order that Department of Defense computers not be used in a manner that would reflect adversely on the military-including accessing pornography. The second count alleged a violation of Art. 134 of the UCMJ (conduct unbecoming a Marine) for accessing and downloading images of minors engaged in sexually explicit activities. The charging document was pellucid on a critical fact: the petitioner used the same computer, identified in the charging document by serial number and the relevant time period, to access the pornographic websites alleged in the Article 92 count and to download the child pornography alleged in the Article 134 count. The petitioner pled guilty to both charges. The BIA subsequently found the petitioner removable as an alien convicted of an aggravated felony. The USCA reviewed de novo whether the petitioner had been convicted of an aggravated felony within the meaning of federal law. It held that the petitioner's conviction for violating Article 92 of the UCMJ was not a conviction for committing an aggravated felony. Accordingly, he was not deportable as an alien convicted of an aggravated felony. The USCA thus granted his petition for review and remanded to the BIA with instructions to terminate the proceedings and order the government to release him. Dissenting, Judge Bybee noted that the majority relied on the statement in Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc) that the USCA can never apply the modified categorical approach "when the crime of conviction is missing an element of the generic crime altogether." Judge Bybee dissented from the majority's application of that statement to the facts of this case because the petitioner certainly had been convicted of a crime that contained all the necessary elements of 18 USC Sec. 2252(a)(2)(4). Moreover, he questioned the USCA's reliance on Navarro-Lopez's broad claim that the USCA may never look to the modified categorical approach where the statute is missing an element of the generic crime. He thought that adopting such a strict rule was ill-considered, unnecessary, and in conflict with prior Ninth Circuit cases as well as the decisions of sister circuits. Judge Bybee would adopt the flexible approach enumerated by the Supreme Court that simply analyzes whether the factfinder necessarily found the defendant guilty of the requisite elements of the generic crime. T.G. Nelson (author), Paez, and Bybee (dissenting), Circuit Judges. D. Landry of San Diego, CA, for the petitioner; S. Wong of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

31) IMMIGRATION: Khan v. Holder, 07-72586 (9th Cir. Sept. 9, 2009). Khan sought review of a Board of Immigration Appeals ("BIA") decision affirming an Immigration Judge's denial of his application for asylum and withholding of removal. The BIA adopted the IJ's finding that Khan was ineligible for both forms of relief because he had engaged in terrorist activity. Finding that the IJ properly applied the terrorism bar in the Immigration and Nationality Act, the USCA denied the petition for review. Concurring, Judge Nelson agreed with the majority that the petition should be denied as Khan had solicited funds for the Jammu Kashmir Liberation Front, an organization dedicated to the establishment of an independent Kashmir, and one Khan reasonably should have known was a terrorist organization. However, Judge Nelson wrote separately to state her belief that it is foreseeable that interpreting the statute without ref-erence to international law occasionally will lead to anomalous and unintended results, and the availability of individual waivers is, at best, an inadequate piecemeal solution. She thus agreed with Khan that international law sometimes will be relevant in determining whether to apply the terrorist bar. Khan had sufficiently raised the issue of international law and Judge Nelson thought it worthy of consideration. D.W. Nelson (concurring), W. Fletcher (author), and Tallman, Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; J. Menkin of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) IMMIGRATION / CIVIL FORFEITURE: USA v. Lam, 08-35221 (9th Cir. Sept. 8, 2009). The federal government maintained that Lam participated in a scheme in violation of 8 USC Sec. 1324(a) that helped illegal aliens procure Oregon driver's licenses. Section 1324(a) criminalizes harboring or bringing illegal aliens into the United States. On February 20, 2004, the government filed a civil forfeiture complaint in federal district court under 28 USC Sec. 1355 against assets allegedly traceable to the criminal activity charged in the state court proceeding. The district court issued a warrant for arrest in rem and seizure. A month later, the government obtained an indictment against Lam charging him with ten counts of encouraging aliens to reside in the United States unlawfully, in violation of 8 USC Sec. 1324(a)(1)(A)(iv), by facilitating their unlawful acquisition of Oregon driver's licenses. The government then filed an amended civil forfeiture complaint specifying additional assets seized from Lam's home and his safe deposit box. The amended com-plaint was supported by an affidavit from an agent of the Immigration and Customs Enforcement Service who had investigated the driver's license scheme. The court then issued an amended warrant for arrest in rem and seizure. It held that there was probable cause to believe that the assets were traceable to violations of Sec. 1324(a) and were thus subject to forfeiture under 18 USC Sec. 981(a)(1)(C). After it became apparent that Lam had become a fugitive, the district court, acting under 28 USC Sec. 2466, struck Lam's claim to his assets in the civil forfeiture proceeding. Through an attorney, Lam appealed, arguing that the district court lacked jurisdiction over the civil forfeiture action under Sec. 1355 and that Sec. 2466 does not apply to fugitives from state criminal proceed-ings. The USCA affirmed. The district court had jurisdiction over the government's civil forfeiture action under Sec. 1355(a). In addi-tion, the USCA held that Sec. 2466(a) applies to fugitives from both state and federal criminal proceedings. The USCA thus affirmed the district court's order striking Lam's claim to his seized assets. W. Fletcher (author), Bea, and Ikuta, Circuit Judges. A. Potter of Portland, OR, for the appellee; S. Sady of Portland, OR, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

33) IMMIGRATION / SENTENCING: USA v. Grajeda, 07-50387 (9th Cir. Sept. 21, 2009). Grajeda, a Mexican citizen, was indicted on one count of illegal reentry in violation of 8 USC. 1326. He was convicted, sentenced, and appealed the 78-month sentence imposed following his guilty plea. The district court applied a 16-level enhancement to Grajeda's offense level based on a determination that Grajeda had been previously convicted of assault with a deadly weapon or by means likely to produce great bodily injury under California Penal Code Sec. 245(a)(1), and that this was a "crime of violence" under Guideline Sec. 2L1.2(b)(1)(A)(ii). At issue was whether a prior conviction for a violation of Sec. 245(a)(1) qualified as a crime of violence under Sec. 2L1.2(b)(1)(A)(ii). The USCA held that it did. It also rejected Grajeda's claims that the district court failed to resolve disputed factual issues concerning his prior convictions, as required by Fed. R. Crim. Proc. 32(i), and that the district court erred by enhancing his sentence on the basis of prior convictions that were neither alleged in the indictment nor proven beyond a reasonable doubt. The USCA thus affirmed the sentence, but remanded for the district court to delete the reference in the judgment to 8 USC Sec. 1326(b) as a crime of conviction. Fisher and Paez (author), Circuit Judges, and Robart, District Judge. V. Brunkow 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/)

34) CRIMINAL LAW: Al-Kidd v. Ashcroft, 06-36059 (9th Cir. Sept. 4, 2009). Abdullah al-Kidd, a U.S. citizen was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport's substation, and interrogated. Over the next 16 days, he was confined in high security cells lit 24 hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. He was eventually released from custody by court order, on the condition that he live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer and consent to home visits throughout the period of supervision. Al-Kidd maintained that he was arrested and confined because former Attorney General John Ashcroft, subordinates operating under policies promulgated by Ashcroft, and others with the Department of Justice, unlawfully used the material witness statute, 18 USC Sec. 3144, to investigate or preemptively detain him. However, a federal grand jury in Idaho had indicted Sami Omar Al-Hussayen for visa fraud and making false statements to U.S. Officials. The Idaho U.S. Attorney's Office submitted an application to a magistrate in the District of Idaho seeking al-Kidd's arrest as a material witness in the Al-Hussayen trial. Appended to the application was an affidavit by FBI Agent Mass describing two contacts al-Kidd had with Al-Hussayen: al-Kidd had received "in excess of $20,000" from Al-Hussayen (although the affidavit did not say what that payment was for), and al-Kidd "met with Al-Hussayen's associates" after returning from a trip to Yemen. It also contained evidence of al-Kidd's contacts with officials of the Islamic Assembly of North America ("IANA"), an organization with which Al-Hussayen was affiliated. Al-Hussayen's indictment describes IANA as organized for the purpose of proselytizing and disseminating radical Islamic ideology for the purpose of indoctrination, recruitment of members, and the instigation of act of violence and terrorism. The affidavit ended with the statement: "due to al-Kidd's demonstrated involvement with the defendant … he is believed to be in possession of information germane to this matter which will be crucial to the prosecution." The affidavit further stated that al-Kidd was scheduled to take a one-way flight to Saudi Arabia on March 16, 2003 from Dulles International Airport. Al-Kidd was subsequently arrested at the airport pursuant to a material witness warrant. Ashcroft maintained that he is entitled to absolute and qualified immunity against al-Kidd's claims. The USCA held that on the facts pled Ashcroft is not protected by either kind of immunity. It held that al-Kidd's Fourth Amendment rights were violated when he was arrested and imprisoned without charges. It then denounced the government's post-9/11 practice of detaining Americans under the material witness statute as "repugnant" and "a painful reminder of some of the most ignominious chapters of our national history." Judge Bea dissented in part. He noted that the sole reason the majority provided for stripping Ashcroft of his official immunity is that, although he and his subordinates had sufficient evidence to arrest al-Kidd as a material witness in the prosecution of a suspected terrorist under the applicable statute, they had acted with a forbidden state of mind: They "really" arrested him not to testify against the indicted terror suspect, but to investigate al-Kidd himself. Thus, the majority permits al-Kidd to seek redress from the wallet of a federal cabinet-level official for injuries al-Kidd alleged he suffered when he was detained-pursuant to a warrant signed and issued by a neutral federal magistrate judge-as a material witness in the governments prosecution of an indicted terrorist suspect. Judge Bea did not believe that the majority's holding comported with the Supreme Court's instructions regarding official immunity and Fourth Amendment law. He also dissented from the majority's resolution of al-Kidd's claim that Ashcroft was personally liable for the inclusion of claimed material misrepresentation and omissions in the affidavit supporting the material witness warrant on which al-Kidd was detained. He thought that Al-Kidd's complaint did not state facts sufficiently plausible to show that Ashcraft was personally responsible for the claimed falsities. Thompson, Bea (dissenting in part), and M.D. Smith (author), Circuit Judges. R. Loeb of Washington, DC, for the defendant-appellant; L. Gelernt of New York, NY, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) SEARCH & SEIZURE: USA v. Lemus, 08-50403 (9th Cir. Sept. 22, 2009). Lemus appealed the district court's denial of his motion to suppress incriminating evidence discovered during a warrantless search of his apartment following his arrest. Even assuming that there were no articulable facts which would warrant a reasonable prudent police officer to believe that Lemus' apartment harbored an individual posing a danger to those on the arrest scene, the USCA nevertheless affirmed the district court's denial of the suppression motion. Because the area in which the police officers discovered the incriminating evidence immediately adjoined the plaice of arrest, the officers were justified in conducting a search of that area without either probable cause or reasonable suspicion, Maryland v. Buie, 494 US 325, 334 (1990), and anything in plain view that they discovered in the course of that search could be seized without violating the Fourth Amendment, Horton v. California, 496 US 128, 136-37 (1990). Gould, Rawlinson, and Bybee (author), Circuit Judges. AUSA K. Hoffman of San Diego, CA, for the appellee; J. Warren of San Diego, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

36) SENTENCING: USA v. Sipai, 08-10300 (9th Cir. Sept. 24, 2009). Sipai appealed from the district court's denial of his motion for reduction of sentence under 18 USC Sec. 3582(c)(2). The district court held that it lacked jurisdiction to reduce Sipai's sentence. The USCA agreed. Because the sentencing court rejected Sipai's applicable guidelines range, and reduced Sipai's sentence pursuant to the 18 USC Sec. 3553 factors, any further reduction would not be consistent with the Sentencing Commission's policy statements. Under USA v. Leniear, 574 F.3d 668, 674 (9th Cir. 2009), consistency with the policy statements is a mandatory condition on such a sentencing reduction. The USCA thus affirmed the district court's denial of Sipai's motion. Hug (author) and Bea, Circuit Judges, and Edmunds, District Judge. R. Silbert of Oakland, CA, for the appellant; AUSA T. Brown of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

37) SENTENCING: USA v. Bride, 08-30266 (9th Cir. Sept. 8, 2009). Bride appealed the district court's denial of his motion to re-duce his sentence under 18 USC Sec. 3582(c)(2). Bride's sentence was imposed pursuant to a binding plea agreement entered into un-der Federal Rule of Criminal Procedure 11(c)(1)(C). The USCA held that the district court lacked authority to reduce Bride's sentence because the sentence, which was eleven years shorter than the low end of the applicable advisory Guidelines range, was not "based on a sentencing range that has subsequently been lowered by the Sentencing Commission. B. Fletcher (author), Tashima, and Thomas, Circuit Judges. J. Holmes of Seattle, WA, for the defendant-appellant; AUSA H. Brunner of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) SUPERVISED RELEASE: USA v. Watson, 08-10385 (9th Cir. Sept. 23, 2009). Watson, a member of the San Francisco "Eddy Rock" street gang, pled guilty to carjacking pursuant to a plea agreement containing a waiver of the right to appeal. He appealed anyway, challenged a condition of his supervised release barring him from entering San Francisco without the prior approval of his probation officer. He maintained that the district court did not provide the necessary notice before issuing this condition and that the condition itself violates his "constitutional rights to travel and move, to freedom of association, to intimate association with his family and related rights." A waiver of the right to appeal does not bar a defendant from challenging an illegal sentence. However, the USCA con-cluded that the disputed supervised release condition directed Watson to stay out of San Francisco during the term of his supervised released unless he obtains permission from his probation officer is not unlawful. It is reasonably tied to the court's stated aims of reha-bilitation and deterrence and is no more restrictive than reasonably necessary to serve those purposes. Nor did the USCA find there any of the other circumstances that cause a waiver to appeal to be ineffective. The language of Watson's plea agreement waiver encom-passes this appeal and the waiver was knowingly and voluntarily made given the circumstances surrounding the agreement. The USCA thus dismissed the appeal. Silverman, Clifton (author), and M.D. Smith, Circuit Judges. J. Russoniello of San Francisco, CA, for the plaintiff-appellee; S. Sugarman of San Francisco, CA, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

39) DEADLOCKED JURIES / HABEAS CORPUS: Smith v. Curry, 07-16875 (9th Cir. Sept. 8, 2009). Smith was convicted in the Superior Court of Sacramento County, California, of burglarizing the home of an aging couple, robbing them, and forcing oral copulation on the wife. He received a determinate term of 20 years followed by a term of 25 years to life. Evidence at trial included DNA evidence implicating Smith. Smith attempted to discredit this evidence through an expert witness. Other key evidence included the post-arrest statements of Smith himself and of Hinex, his partner in crime. On the third day of deliberations, the jury first informed the trial judge that it could not reach a verdict on the oral copulation charge. When the jury returned deadlocked a second time, the court gave a charge modeled after an "Allen charge." On the fifth day, one of the jurors wrote the judge a note explaining that he thought the DNA evidence was tainted. The court then, over defense counsel's objection of coercion, instructed the jury to look at the "consisten-cies and inconsistencies" between Smith's and Hinex's post-arrest statements to the police. The court went on to summarize the state-ments, and to explain what, in the court's view, were the key portions of those statements the jury should consider. The court made no reference to other relevant evidence bearing on the significance of the consistencies and inconsistencies. The jury returned a guilty verdict against Smith on the copulation charge about one hour later. The California Court of Appeal affirmed the conviction, and the California Supreme Court denied review. Smith filed his first federal habeas petition pro se, and the district court appointed counsel. The district court then granted relief on the jury coercion claim, but denied relief on Smith's other claims. The state appealed the judgment granting the petition on the jury coercion claim, and Smith cross-appealed the court's denial of his other claims. The USCA affirmed in all respects. Supreme Court precedent spanning more than a century permits a trial judge to instruct a deadlocked jury about its duty to deliberate, but bars the judge from trying to force or coerce a verdict. The district court here granted the writ of habeas corpus, because the district court concluded that the state trial court violated that rule when the trial judge, having learned the identity of the holdout juror and the specific evidence troubling that juror, instructed the jury to focus on particular evidence supporting conviction. The USCA reached the same conclusion and affirmed the grant of habeas relief. It held that the state Court of Appeal's decision upholding the instruction was an unreasonable application of established Supreme Court law. Judge Smith concurred in Part I of the majority opinion, but dissented from Part II because he thought the majority misapplied the exceptionally deferential standard of review required by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). He noted that with the AEDPA standard of review, Congress set the bar exceptionally high to ensure that federal courts afford the utmost deference to state court adjudications. Thus, a federal court may not grant habeas relief from a state court conviction unless it concludes that the state court's adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings." 28 USC Sec. 2254(d). Judge Smith also noted that it is clearly established that a criminal defendant being tried by a jury is entitled to the uncoerced verdict of that body. Lowenfield v. Smith, 484 US 231, 241 (1988). He did not disagree with the majority's general assessment that, given the trial judge's knowledge of the holdout juror's concerns, the trial court's supplemental instructions and the manner in which the judge selectively commented on the evidence likely affected the jury's verdict. Thus, he thought the California Court of Appeal was simply wrong in concluding that the trial judge's comments on the evidence were "scrupulously fair" and not coercive. But, he added, to grant relief under the AEDPA, it is not enough for the USCA to conclude that the state court decision is wrong. It also must be objectively unreasonable. But in this case, Judge Smith thought the majority failed to give proper deference to the state court by conflating error (even clear error) with unreasonableness. Schroeder (author), Berzon, and N.R. Smith (dissenting in part), Circuit Judges. D. Porter of Sacramento, CA, for the petitioner; D. Eldridge of Sacramento, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)

40) HABEAS CORPUS / DEATH PENALTY: Hamilton v. Ayers, 06-99008 (9th Cir. Sept. 18, 2009). Hamilton, a California death row inmate, appealed from the district court's denial of his pre-AEDPA petition for a writ of habeas corpus challenging his 1982 conviction and death penalty sentence for multiple counts of first-degree murder. The USCA denied Hamilton's claims for relief as to the guilt phase. However, it concluded that his trial counsel was constitutionally ineffective at the penalty phase for failing to investigate and present to the jury the wealth of classic mitigating evidence that was available to him. The USCA thus reversed and remanded for issuance of the writ, unless the State elects to re-prosecute the penalty phase. Because it granted relief based on the ineffective assis-tance claim, it did not reach Hamilton's claim for prosecutorial misconduct at the penalty phase. The USCA found that Hamilton's counsel failed to investigate a substantial amount of available mitigating evidence concerning Hamilton's horrific childhood and mental illness, and thus could not possibly have made a strategic decision as to a mitigation defense. Counsel compounded these errors by presenting only one witness, Hamilton's mother, whose testimony was likely more harmful than helpful. "Counsel's duty is not discharged merely by presenting some limited evidence. Rather, a penalty phase ineffective assistance claim depends on the magnitude of the discrepancy between what counsel did investigate and present and what counsel could have investigated and presented." Stankewitz v. Woodford, 365 F.3d 706, 716 (9th Cir. 2004). It is difficult to imagine a more significant discrepancy than that between the portrait painted at the penalty phase of a man whose childhood was "unfortunate" but largely unmarred, and that of a child who was raised in the presence of incest, rape, and violence, suffered from mental illness, and was shuffled from home to home. Although this classic mitigating evidence was available to defense counsel at the time of trial, it was only revealed years after Hamilton was sentenced to death. The USCA thus held that Hamilton was denied effective assistance of counsel. It reversed the district court's judgment and remanded with instructions to issue the writ and return the case to the Tulare County Superior Court to reduce Hamilton's sentence to life imprisonment without the possibility of parole, unless the State pursues a new sentencing proceeding within a reasonable amount of time, as determined by the district court. The USCA affirmed the denial of habeas relief as to guilty phase issues. Wardlaw (author), W. Fletcher, and Paez, Circuit Judges. K. Hart of Fresno, CA, for the petitioner; DAG C. Chatman of Sacramento, CA, for the re-spondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

41) HABEAS CORPUS / DEATH PENALTY: Schad v. Ryan, 07-99005 (9th Cir. Sept. 11, 2009). Schad was convicted in Arizona state court in 1979 for the murder of Lorimer Grove. He was sentenced to death. After his first conviction and sentence were reversed by the Arizona Supreme Court on collateral review, he was re-tried in 1985 and again convicted of first-degree murder and sentenced to death. His direct appeal and state habeas proceedings from his second trial lasted for the next 12 years, and his federal habeas proceedings in district court for 9 years after that. After the district court denied Schad's federal habeas petition on all grounds, he filed this appeal raising seven principal contentions. Three pertained to his conviction and four to the imposition of the death sentence. The challenges to the conviction included a claim of a Brady violation in the state's failure to disclose impeachment material relating to the credibility of a prosecution witness; a claim of ineffective assistance during the guilt phase of trial; and a challenge to the sufficiency of the evidence in support of first-degree murder. Schad's four challenges to the sentence included claims of ineffective assistance during the penalty phase, application of an unconstitutionally narrow standard for determining the admissibility of mitigating evidence, improper use of a prior conviction to establish two aggravating factors, and insufficiency of the evidence underlying a third aggravating factor. With respect to the conviction, the important issue involved the State's admitted failure to produce letters written in 1979 by a detective and a prosecutor to assist the State's witness, Duncan, in an unrelated California prosecution. With respect to the sentence, the key issue was whether the district court erred by denying the claim of ineffective assistance of counsel at the penalty phase without holding an evidentiary hearing to consider substantial additional mitigating evidence. The district court ruled that Schad failed to exercise diligence in bringing the new evidence out during his State habeas proceedings, but it did so without appropriate consideration of the many reasons Schad offered for his inability to produce the mitigating evidence during the State proceedings. The USCA affirmed the district court's denial of habeas relief for the conviction. However, with respect to sentencing, it concluded that the district court applied the wrong diligence standard to deny Schad an evidentiary hearing on his sentencing ineffectiveness claim. The USCA vacated the district court's denial of habeas relief and remanded for the court, using the correct diligence standard to determine whether an evidentiary hearing is warranted on Schad's claim of ineffective assistance at the penalty phase of his trial for failure to present material mitigating evidence. Judge Rymer concurred in the majority's opinion except as to it decision to remand for an evidentiary hearing on diligence and, in turn, on the merits of Schad's claim of ineffective assistance of counsel at sentencing. She thought that if a state prisoner can show that he tried to develop facts in state post-conviction proceedings in support of an ineffective assistance of counsel claim, he should be able to proceed in federal court on newly developed evidence because the principles of comity underlying 28 USC Sec. 2254(e)(2) will not be offended. But those principles will be offended if a state prisoner let's opportunity pass by without giving the state courts that convicted and sentenced him first crack at a claim that his constitutional rights were violated in the process. Given that Schad had notice during post-conviction proceedings of the need to develop facts about his family background to support his claim of ineffective assistance of sentencing counsel, the information available at the time, together with the opportunity afforded to develop that information in four years, with 34 extension and with all the funding requested, Judge Rymer agreed with the district court that Schad failed to show he was diligent in efforts to investigate and present those facts in state court. The district court properly applied the governing standard from Williams v. Taylor, 529 US 420, 435 (2000): whether Schad made "a reasonable attempt, in light of the information available at the time, to investigate and pursue" his constitutional claim. Its analysis did not stop with the predicate question whether the factual basis was actually developed in state court. Rather, its focus was on the notice, information, time and resources available to Schad, as well as on the causes for delay. Judge Rymer said she would not remand for an evidentiary hearing on diligence that was neither requested nor required. As Schad did not develop the factual basis for his ineffective assistance claim in state court proceedings, no evidentiary hearing on the merits of that claim may be held. Schroeder, Reinhardt, and Rymer (dissenting in part), Circuit Judges. Per Curiam. K. Henry of Nashville, TN, for the petitioner; J. Anderson of Phoenix, AZ, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)