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3) RESTITUTION / ATTORNEYS' FEES: Schultz v. Bourke, 08-17304 (9th Cir. Feb. 9, 2010). The action in the District Court for the Northern District of California in which Bourke sought to intervene began more than 20 years ago. Schultz was an investor in a private placement of stock in a thoroughbred horse breeding farm. When the market in thoroughbreds declined and Schultz's stock became nearly worthless, he sued several defendants in an effort to recoup his losses. One of those he sued, Bryant, was represented by Bourke. Bourke and other defendants sought to recover their attorneys' fees from Schultz. In 1994, the California district court entered judgment in favor of several defendants, including Bryant, who was awarded more than a million dollars in attorneys' fees. Bryant transferred part of his interest in the judgment to Bourke, pursuant to their retainer agreement. Schultz appealed, and meanwhile orchestrated a complex scheme to hide his assets from creditors, making him appear judgment proof. During the appeal, Bourke sold his interest in the judgment at a discount to Judgment Resolution Corporation ("JRC"), which substituted as a party. JRC's president was Frank McPeak. After remand in 1999, Schultz and JRC successfully petitioned the district court for a reduction in the principal of the judgment. The district court entered a consolidated final judgment awarding JRC $4,118,559. Sometimes later, JRC assigned its interest in the final judgment to Gloria McPeak, Frank's wife. In 2001, the United States brought a criminal action in the U.S. District Court for the Southern District of Ohio against Frank McPeak and eight other co-conspirators, alleging a conspiracy to defraud Schultz's creditors. McPeak pled guilty to conspiracy to commit wire fraud and conspiracy to impede the IRS. On June 1, 2007, the Ohio court entered a Restitution Opinion and Order identifying Bourke as one of two victims of the conspiracy and awarding him $744,424 in restitution under the Mandatory Victims Restitution Act ("MVRA"), 18 USC Sec. 3663A, which mandates that orders of restitution be entered against defendants found guilty of certain charges. The Ohio court found McPeak jointly and severally liable for the restitution owed to Bourke because McPeak had conspired with Schultz to have JRC purchase the judgment in favor of Bourke at a reduced rate, using Schultz's own hidden asserts, and then to obtain a reduction in the amount of the Final Judgment. McPeak's wife assigned the final judgment to the United States in satisfaction of McPeak's restitution obligations. The United States filed a Notice of Registration of Assignment in the Ohio court on September 24, 2007. On June 3, 2008, Bourke sought to intervene in the California litigation as a matter of right under Fed. R. Civ. P. 24(a)(2), for the sole purpose of addressing the collection and distribution of Schultz's assets. As of the date of Bourke's motion to intervene, the Unites States had taken at best extremely limited action to enforce the final judgment for the benefit of other creditors, including Bourke, who now sought by Rule 24 to take such action on his own behalf. The district court denied the motion. Bourke appealed. He sought review of the denial of his motion to intervene as of right pursuant to Rule 24(a)(2). The USCA affirmed the judgment of the district court because denial of Bourke's motion was proper under the MVRA, which gives rise to Bourke's interest in this action. Because the remedy provided in the MVRA is exclusive, Bourke may not use Rule 24 to intervene in pursuit of his interest in restitution. Schroeder and Callahan, Circuit Judges, and Lynn (author), District Judge. R. Goldstein of Miami, FL, for the proposed-intervenor-appellant; E. Smith of Beverly Hills, CA, for the plaintiff-appellee; AUSA D. Sanders of Columbus, OH, for the creditor-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) SECURITIES: Gebhart v. SEC, 08-74943 (9th Cir. Feb. 17, 2010). Alvin W. and Donna T Gebhart petitioned for review of an order by the Securities and Exchange Commission ("SEC") sustaining a disciplinary action by the National Association of Securities Dealers ("NASD"). NASD found that the Gebharts, securities salespersons, committed securities fraud in violation of Sec. 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 by making false statements to clients in connection with the sale of promissory notes used to finance the conversion of mobile homes parks to resident ownership. The SEC upheld NASD's disciplinary action, concluding that the Gebharts acted with scienter because they made "representations to their clients despite not knowing whether they were true or false." The USCA held that the SEC applied the correct scienter standard and also that substantial evidence supported the SEC's conclusion that the Gebharts acted with scienter. It thus denied the petition for review. Pregerson, Hawkins, and Fisher (author), Circuit Judges. C. Goria of San Diego, CA, for the petitioners; D. Becker of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) ENVIRONMENTAL LAW / APA: River Runners for Wilderness v. Martin, 08-15112 (9th Cir. Feb. 1, 2010). This case concerns the National Park Service's decision to permit the continued use of motorized rafts and support equipment in the Grand Canyon National Park. The plaintiffs maintained that such motorized activities impaired the wilderness character of the Canyon and that the Park Service's decision violates it management policies and various federal statutes. The plaintiffs asked the district court to set aside the decision under the Administrative Procedure Act ("APA"). The USCA concluded that the plaintiffs failed to satisfy the high threshold required to set aside federal agency actions under the APA. The plaintiffs failed to establish that the Park Service acted arbitrarily and capriciously when it adopted the 2006 Management Plan and concluded that motorized uses do not impair the soundscape of the Park with in the meaning of the Organic Act. Hug, B. Fletcher, and Hawkins, Circuit Judges. Per Curiam. J. Olson of Eugene, OR, and M. Bishop of Helena, MT, for the appellants; C. Scott and S. Kalen of Washington, DC, for the appellees; L. Potter of Denver, CO, for the defendant-intervenor-appellee, Grand Canyon Private Boaters Association. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) COMMUNICATIONS LAW / FOIA: Electronic Frontier Foundation v. Office of the Director of National Intelligence, 09-17235 (9th Cir. Feb. 9, 2010). In the wake of the September 11, 2001 terrorist attacks, the President authorized the National Security Agency ("NSA") to conduct a warrantless, electronic surveillance program on millions of American telephones. Several lawsuits were brought against cooperating telecommunications providers, but the merits of the claims in those suits are not herein at issue. This case concerns only the discussions between telecommunications carriers (including their lobbyists and attorneys) and the government, as the carriers sought retroactive liability protection for any participation in the program. The appeal here concerns the extent to which the public has the right to information about those discussions and related lobbying efforts under the Freedom of Information Act ("FOIA"). The USCA affirmed the district court's grant of summary judgment for the Electronic Frontier Foundation ("EFF") as to the release of names and email addresses under FOIA Exemption 6, though it reversed as to email addresses only for which other information identifying the agent at issue is available in the communication. This order may not necessarily result in disclosure of names for which the government also argues withholding pursuant to Exemption 3, because the USCA vacated the district court's denial of summary judgment for the government and grant of summary judgment for EFF as to FOIA Exemptions 3 and 5, and remanded for consideration of these Exemptions consistent with this opinion. Bright, Hawkins (author), and M.D. Smith, Circuit Judges. D. Letter of Washington, DC, for the defendants-appellants; M. Hofmann of San Francisco, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) COMMUNICATIONS LAW: North County Communications Corp. v. CellCo Partnership, dba Verizon Wireless-CA, 08-55048 (9th Cir. Feb. 10, 2010). This case arose from North County Communication's contention that it has a private right of action to enforce various compensation arrangements pursuant to the Federal Communications Act ("FCA"). In its complaint, North County, a competitive local exchange carrier ("CLEC"), maintained that the appellees, as commercial mobile radio service ("CMRS") providers, failed to properly compensate North County for terminating their calls on North County's network. North County challenged the district court's dismissal of its declaratory judgment claims for lack of subject matter jurisdiction. Specifically, the district court held that North County had no private right of action to enforce the compensation arrangements in federal court. On appeal, North County asserted that 47 USC Secs. 251(b)(5), 201(b), 206 and 207, as well as the implementing Federal Communications Commission ("FCC") regulation, 47 CFR Sec. 20.11, provide the requisite private right of action. The USCA held that the district court did not abuse its discretion in dismissing North County's declaratory judgment claims because North County was unable to assert a federal claim. The district court lacked subject matter jurisdiction pursuant to the Declaratory Judgment Act, as North County did not establish a private right to compensation under the FCA. The FCC has not determined that the CMRS providers' failure to pay compensation violates the FCA. Because it was ill equipped to properly resolve North County's claim in the absence of a predicate determination from the FCC, the USCA vacated the judgment and remanded the case so that North County's claims could be dismissed without prejudice. Rawlinson (author) and N.R. Smith, Circuit Judges, and Wilken, District Judge. J. Dicks of San Diego, CA, for the appellant; J. Hueston of Los Angeles, CA, and M. Fineman of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) PRIVACY ACT: Cooper v. FAA, 08-17074 (9th Cir. Feb. 22, 2010). The Privacy Act of 1974, 5 USC Sec. 552a, et seq., prohibits federal agencies from disclosing any record contained in a system of records by any means of communication to any person, or to another agency without consent of "the individual to whom the record pertains," unless the disclosure falls within one or more enumerated exceptions to the Act. The Act also creates a private cause of action against an agency for its willful or intentional violation of the Act that has "an adverse effect on an individual," and allows for the recovery of "actual damages" sustained as a result of such a violation. Secs. 552a(g)(1)(d) and 552a(g)(4)(A). The plaintiff, Stanmore Cawthon Cooper claimed to have sustained actual damages as the result of an interagency exchange of information performed as part of a joint criminal investigation by the defendants Federal Aviation Administration ("FAA"), Social Security Administration ("SSA"), and the Department of Transportation ("DOT") (collectively the "Government"). Cooper sought actual damages for non-pecuniary injuries, such as humiliation, mental anguish, and emotional distress, as a result of the unauthorized interagency disclosure of his medical information; he did not claim any pecuniary or out-of-pocket losses. Because Cooper sought damages for non-pecuniary injuries only, the district court granted summary judgment to the Government, holding that the Act allows recovery only for pecuniary damages. However, the USCA found that the term "actual damages" under the Act encompasses both pecuniary and non-pecuniary damages. In using that term, Congress clearly intended that when a federal agency intentionally or willfully fails to uphold its record-keeping obligations under the Act, and that failure proximately causes an adverse effect on the plaintiff, the plaintiff is entitled to recover for both pecuniary and non-pecuniary injuries. The USCA thus reversed and remanded to the district court. Bright, Hawkins, M.D. Smith (author), Circuit Judges. R. Cardozo of Oakland, CA, for the plaintiff-appellant; M. Hertz of Washington, DC, or the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 9) CLASS ACTIONS / ANNUITIES: Yokoyama v. Midland National Life, 07-16825 (9th Cir. The opinion in this case of Aug. 28, 2009 has been withdrawn and replace with the opinion filed Feb. 8, 2010). Defendant Midland National Life Insurance Company marketed annuities to senior citizens in Hawaii. At issue on appeal were Midland annuities sold by independent brokers between 2001 and 2005. Yokoyama purchased one of these annuities through an independent broker. He later filed this class action claiming that Midland marketed the annuities through deceptive practices, in violation of Hawaii's Deceptive Practices Act, Haw. Rev. Stat. Sec. 480-2. His complaint specifically targeted representations made in Midland's brochures, which promoted the annuities as appropriate for seniors. This action was exempted from multi-district litigation against Midland pending in the Central District of California, as it had been narrowly tailored to rely only upon Hawaii law. The district court denied class certification, holding that to succeed under the Hawaii Act, each plaintiff would have to show subjective, individualized reliance on deceptive practices in the circumstances of each plaintiff's purchase of the annuity. For that reason, the district court held that the plaintiffs could not satisfy Fed. R. Civ. Proc. 23(b)(3)'s requirements that common issues predominate over individual issues and that a class action was a superior method of adjudication. The dispositive issue on appeal was whether Hawaii's Deceptive Practices Act requires a showing of individualized reliance. The USCA reversed and remanded for further proceedings. Because the proper inquiry under Hawaii law considers the effect upon a reasonable consumer, not a particular consumer, there are no individualized issued of reliance under Rule 23. Moreover, Hawaii's state courts have made clear that Hawaii's consumer protection laws are flexible and may be enforced through the class action mechanism. The USCA expressed no opinion on the merits of the claims. Schroeder (author), Paez, and N.R. Smith, Circuit Judges. J. Bickerton of Honolulu, HI, for the appellant; R. Phillips of Oakland, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) PRODUCT DEFECTS / CLASS ACTIONS / ARBITRATION: Omstead v. Dell, Inc., 08-16479 (9th Cir. Feb. 5, 2010). The plaintiffs brought a proposed class action against Dell, asserting various claims under California state law predicated on the allegation that Dell designed, manufactured, and sold defective notebook computers. The district court granted Dell's motion to stay proceedings and to compel individual arbitration pursuant to the Terms and Conditions of Sale (the "Agreement") which the plaintiffs were required to accept at the time they purchased their notebooks. The plaintiffs refused to arbitrate individually because it was not economically feasible for them to do so, and because the arbitration forum mandated in the Agreement was "blatantly biased" against consumers. After requesting further briefing on the issue of whether the action should be dismissed, and if so, on what grounds, the district court dismissed the action for failure to prosecute pursuant to Fed. Rule Civ. Proc. 41(b). The USCA reversed the Rule 41(b) dismissal and construed it as a voluntary dismissal with prejudice under Rule 41(a)(2). The district court abused its discretion when it dismissed plaintiffs' action for failure to prosecute. The plaintiffs did not cause any unreasonable delay in the progression of the case below. In addition, the factors used in evaluating a Rule 41(b) dismissal favored the plaintiffs. The record did not support a finding that the plaintiffs' actions placed unwarranted stress on the district court's docket or prejudiced Dell. The public's interest in a resolution on the merits weighted strongly in the plaintiffs' favor, and less drastic and more appropriate alternatives were available. To avoid a useless remand for entry of a modified judgment, the USCA construed the district court's Rule 41(b) dismissal as a Rule 41(a)(2) voluntary dismissal with prejudice and considered the underlying issue, which was whether the case should have been ordered to arbitration. The USCA found the Agreement's choice-of-law provision to be unenforceable for the same reasons identified in Oestreicher v. Alienware Corp., 502 F. Supp. 2d 1061 (N.D. Cal. 2007). The class action waiver was unconscionable under California law because it satisfied the test of Discovery Bank v. Superior Court, 113 P.3d 1100, 1110 (Cal. 2005): class action waivers are unconscionable under California law if 1) "the waiver is found in a consumer contract of adhesion," 2) the contractual setting is one in which "disputes between the contracting parties predictably involve small amounts of damages," and 3) it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money. Finally, California has a materially greater interest than Texas in applying its own law. Accordingly, the validity of the arbitration provision is governed by California law. Having found the class action waiver unconscionable under California law, the only remaining question was whether the class action waiver could be served from the remainder of the arbitration provision. The USCA found that it could not be severed because the class action waiver was "central" to the arbitration provision. Because it declined "to assume the role of contract author rather than interpreter," Circuit City Stores v. Mantor, 335 F.3d 1101 (9th Cir. 2003), the class action waiver rendered the entire arbitration provision unenforceable. The district court erred when it found to the contrary and granted Dell's motion to stay proceedings and compel arbitration. The USCA thus remanded for further proceedings. Schroeder and Berzon, Circuit Judges, and Strom (author), District Judge. J. Selbin of New York, NY for the plaintiffs-appellants; P. Schlaud of Austin, TX, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) ATHLETIC OPPORTUNITIES FOR WOMEN: Mansourian v. Regents of the Univ. of California, 08-16330 (9th Cir. Feb. 8, 2010). The plaintiffs here are women who wrestled in high school and chose to attend the University of California, Davis ("UCD") so they could participate in its acclaimed wrestling program. The plaintiffs participated in varsity wrestling and enjoyed the benefits associated with varsity status: training, coaching, and laundry services; academic tutoring; insurance; and access to varsity facilities and equipment. UCD did not maintain separate wrestling teams for men and women; women wrestlers participated in the men's team, practicing with the men and receiving coaching from the men's coach. During the 2000-2001 academic year, UCD eliminated all women from the wrestling team. After students protested to UCD administrators and filed a complaint with the Office for Civil Rights, UCD agreed to let women to participate in varsity wrestling again. Their participation, however, was conditioned on their ability to beat male wrestlers in their weight class, using men's collegiate wrestling rules. Prior to their elimination from the team, women wrestlers at UCD had competed only against other women and used international freestyle rules. As a result of the new requirement that they compete against men under men's rules, the females were unable to participate on the wrestling team and lost the benefits associated with varsity status, including scholarships and academic credit. They filed this class action against UCD and several UCD officials in their individual and official capacities, on behalf of all current and future female UCD students denied equal athletic participation opportunities. They sought damages and injunctive relief under Title IX, 20 USC Sec. 1681, and also asserted equal protection claims under 42 USC Sec. 1983. Title IX has been widely recognized as the source of a vast expansion of athletic opportunities for women in the nation's schools. Nevertheless, the district court held that a university receiving federal funds could not be held liable in damages for failing effectively to accommodate the athletic interests of women unless aggrieved women first provide university officials with notice of their disadvantageous treatment and an opportunity to cure it. The USCA disagreed and reversed the district court's grant of summary judgment. It also held that the university was not entitled to summary judgment on the alternative ground that it complied with Title IV. Finally, the USCA reversed the dismissal of the equal protection claim and remanded for further proceedings. Schroeder and Berzon (author), Circuit Judges, and Shadur, District Judge. N. Farrell of San Francisco, CA, for the appellants; N. Sheehan of Sacramento, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) FALSE CLAIMS ACT: USA ex rel Haight v. Catholic
Healthcare West, 07-16857 (9th Cir. Feb. 4, 2010). Defendant Berens is
a scientist who applied for and received funding from the National Institute of
Health to research brain cancer using beagle dogs. Plaintiffs Haight and In Defense
of Animals assert that Berens made false and misleading statements in his grant
application. They alleged that he failed to disclose data showing a high rate
of failure in preliminary trials, made false statements about the extent of his
success with the research, stated a goal for the grant project that he did not
believe could be accomplished, and misrepresented another researcher's involvement
with the project. The plaintiffs thus brought this qui tam action against Berens,
Barrow Neurological Institute, St. Joseph's Hospital and Medical Center, Catholic
Healthcare West Arizona, and Catholic Healthcare West under the False Claims Act,
31 USC Sec. 3729. The United States has a statutory right to intervene in such
a suit, id. Sec.3730(b)(2), but declined. The first issue was whether the False
Claims Act's "public disclosure" jurisdictional bar, id. Sec.3703(e)(4),
precluded the suit. In an earlier appeal, the USCA held that the suit was not
barred by the fact that the plaintiffs had obtained Berens' grant application
pursuant to a Freedom of Information Act request. On remand, the district court
granted summary judgment in favor of the defendants, ruling that the plaintiffs
failed to produce evidence that the statements at issue were objectively false.
The district court entered judgment for the defendants on August 14, 2007. Plaintiffs
filed a notice of appeal 51days later, on October 4, 2007. The USCA stayed the
appeal pending Supreme Court review of United States ex rel. Eisenstein v.
City of New York, 540 F.3d 94 (2d Cir. 2008). The Supreme Court has issued
its decision, 129 S.Ct. 2230 (2009), and the USCA now considered the defendant's
motion to dismiss this appeal as untimely. The USCA reviewed de novo whether it
has jurisdiction over the appeal. It concluded that it had to dismiss the appeal
for lack of jurisdiction because the plaintiffs filed the notice of appeal more
than 30 days after the entry of judgment. Fed. R. App. P. 4(a)(1)(A). When the
notice of appeal was filed, this appeal was timely under then-controlling circuit
law that gave the plaintiffs 60 days to file an appeal, but dismissal is now required
by an intervening Supreme Court decision ruling that the allowable time is 30
days. B. Fletcher, Canby, and Graber (author), Circuit Judges. J. Friedman
of Oakland, CA, for the plaintiffs-appellants; D. Danneman of Phoenix, AZ, for
the defendants-appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
14) IMMIGRATION: Aguilar-Ramos v. Holder, 07-70240 (9th Cir. Feb. 4, 2010). Aguilar, a 38 year old citizen of El Salvador, has been a permanent legal resident of the U.S. since he was 7 years old. In 1990, when he was 19, he pled guilty to second degree robbery. In 2003, he pled guilty to petty theft with priors. In 2005, he was charged with removability on two grounds: 1) conviction of an aggravated felony based on the 1990 robbery conviction, and 2) conviction of two crimes of moral turpitude, based on the 1990 robbery conviction and the 2003 petty theft with priors conviction. In 2006, Aguilar applied for various forms of relief from removal. At his merits hearing, he testified about his fear of being killed if returned to El Salvador. Specifically feared that the police and gangs would harass, persecute, and kill him because his multiple tattoos and status as a deportee from the U.S. would mark him as a gang member, even though he asserted he is not. Alfonso Gonzales, an expert witness on policing and gangs in El Salvador, testified about El Salvador's war on gangs and the multiple threats that tattooed criminal deportees from the U.S. face upon arrival, including: 1) imprisonment for two to six years under El Salvador's broad anti-gang legislation; 2) death or serious bodily harm in prison; 3) harassment by police and military patrols who routinely force young men to remove their shirts for tattoo inspections; and 4) death at the hands of death squads, which are comprised of off-duty police and military personnel and operate with the awareness of the government. The government introduced into the record the 2005 State Department Human Rights Country Report on El Salvador. Aguilar's counsel submitted no documentary evidence. The Immigration Judge ("IJ") found Aguilar removable on both charges and denied all applications for relief. Aguilar appealed pro se to the BIA, asserting that his counsel before the IJ was ineffective and challenging the IJ's denial of his applications for relief. The BIA dismissed the claim of ineffective assistance of counsel and denied the applications for relief under former Immigration and Nationality Act ("INA") Sec. 212(c) and the Convention Against Torture ("CAT"). The USCA granted the petition for review as to Aguilar's application for CAT relief. The IJ concluded, and the BIA agreed, that Aguilar's testimony did not meet his burden of proving that it is more likely than not that he will be tortured if removed to El Salvador. The government urged the USCA to accept that conclusion, but the USCA said it need not reach that issue. Even if the IJ correctly concluded that Aguilar's testimony, by itself, was insufficient to meet his burden under CAT, that conclusion would not be dispositive because a CAT applicant may satisfy his burden with evidence of country conditions alone. Here, it was undisputed that the Country Report on El Salvador was included in the record without objection and that Aguilar attached it to his pro se brief to the BIA. Yet, neither the IJ nor the BIA considered the Country Report in denying Aguilar relief under Cat. The failure of the IJ and BIA to consider evidence of country conditions constituted reversible error. The proper course of action was thus to remand with instructions that the BIA reconsider Aguilar's CAT claim in light of the Country Report. In addition to their failure to consider the County Report, the IJ and BIA erred in construing the term "government acquiescence" too narrowly. Government acquiescence does not require actual knowledge or willful acceptance of torture; awareness and willful blindness will suffice. There was evidence in the record to suggest that gangs and death squads operate in El Salvador, and that its government was aware and willfully blind to their existence. The USCA thus granted Aguilar's petition for review and remand for the BIA to reconsider his application for deferral of removal under CAT. On remand, the USCA said it expects the BIA will consider the Country Report and other relevant documents and apply the appropriate "awareness and willful blindness" standard to determine whether the government acquiesced in torture. The USCA next denied the petition as to Aguilar's application for relief under INA Sec. 212(c). Section 212(c) was repealed in 1996, but individuals who entered guilty pleas prior to April 1, 1997, who otherwise would have been eligible for Sec. 212(c) relief at the time of their pleas, remain eligible for relief. 8 CFR Sec. 1212.3(h). For a petitioner such as Aguilar to qualify for Sec. 212(c) relief, the ground of removal must have a statutory counterpart among the grounds for inadmissibility. 8 CFR 1212.3(f)(5). The first ground for Aguilar's removal-conviction of a "crime of violence" aggravated felony-does not have a statutory counterpart with a ground of inadmissibility; therefore the Attorney General does not have authority to waive that ground for Aguilar's removal. The AG also does not have authority to waive the second ground for Aguilar's removal-conviction of two crimes involving moral turpitude-because Aguilar did not plead to the second crime involving moral turpitude until after Congress repealed Sec. 212(c). 8 CFR Sec.1212.3(h). Finally, Aguilar's sole ineffective assistance of counsel argument on appeal was that his attorney before the IJ rendered deficient performance by failing to submit documents to corroborate the testimony of the expert witness, Gonzales, regarding the likelihood that Aguilar would experience persecution and torture if removed to El Salvador. Because it had granted the petition to review Aguilar's CAT claim, it found it did not need to reach his ineffective assistance claim, as it expects that on remand Aguilar will be permitted to introduce the omitted documentary evidence that formed the basis of his ineffective assistance claim. Pregerson (author) and Gould, Circuit Judges, and Bright, District Judge. J. Renzi of Las Angeles, CA, for the petitioner; T. Stanton of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) IMMIGRATION: Corona-Mendez v. Holder, 08-72492 (9th Cir. Feb. 3, 2010). The petitioner, a native and citizen of Mexico, began illegally entering the U.S. to work in 1956, when he was about 20 years old. At the time of his hearing before the Immigration Judge ("IJ") in the present case, he worked full-time for Mt. Vernon Nursery, and prior to that, he worked at a dairy farm for eight years. He married a lawful permanent resident, and together they had nine children, all of whom live in the U.S. and most of whom have status in the United States. The petitioner also has eight siblings, all living in the U.S. and enjoying legal status. In 1993, the petitioner was stopped by the police for driving under the influence. He was taken to jail and, while there, detained by immigration officials. He appeared before an IJ and then removed to Mexico. He returned to the U.S. in either 1993 or 1994. In 1996, he applied for and received lawful permanent resident status. He filled out the application with the assistance of his wife and son and did not indicate that he had been deported. In 2003, he applied to become a naturalized citizen but again did not indicate that he had been deported. In March 2005, he received a notice to appear before an IJ to answer changes that he was subject to removal because he procured a status adjustment by fraud or willful misrepresentation of a material fact. In August two more charges of removability were added because the petitioner had been ordered removed within the previous 10 years, and because he was an alien in the U.S. in violation of the law. He conceded removability, but argued that he was eligible for relief based on the combination of an I-212 waiver for a nunc pro tunc (retroactive) grant of permission to reapply for admission into the U.S. in conjunction with either 1) a waiver of deportability for fraud under Immigration and Nationality Act ("INA") Sec. 237(a)(1)(H), or 2) an adjustment of status predicated on a waiver of inadmissibility for fraud or willful misrepresentation of a material fact if the alien demonstrates extreme hardship to the alien's citizen or lawfully resident spouse or parent under INA Sec. 212(i). He maintained that either of these two avenues of relief would allow him to remain in the U.S. by removing his grounds of inadmissibility based on his prior deportation and misrepresentations. The IJ denied the application and ordered the petitioner removed to Mexico. The IJ declined to adjust status based on the petitioner's eligibility for a 212(i) waiver because he had not shown that his removal would result in the requisite hardship to his legal permanent resident wife. The IJ decided that, based on the "negative factors" in his case, including his multiple misrepresentations and convictions for driving under the influence, even if the petitioner were eligible for a 212(i) waiver based on extreme hardship, he should be denied the waiver as a matter of discretion. The BIA affirmed the IJ's decision to deny the waiver as a matter of discretion. Without a 212(i) waiver, the petitioner was ineligible for an adjustment of status and his request to reenter nunc pro tunc was denied because granting such relief would not completely resolve his case. As for the avenue of relief based on the Sec. 237(a)(1)(H) waiver of fraud, the IJ found, and the BIA affirmed, that the petitioner was not otherwise admissible due to his prior deportation and thus that the Sec. 237(a)(1)(H) waiver was unavailable. On appeal to the USCA, the petitioner argued that he should be able to "stack" his waivers to remove all grounds of inadmissibility. The USCA disagreed and denied the petition for review in part, and dismissed in part for lack of jurisdiction. Cudahy (author), Rawlinson, and Callahan, Circuit Judges. A. Salazar of Seattle, WA, for the petitioner; M. Hertz of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) IMMIGRATION: Nunez v. Holder, 06-70219 (9th Cir. Feb. 10, 2010). Nunez, a native and citizen of Mexico, entered the U.S. without inspection in 1993, at the age of 15. While in the U.S., he met and married his wife, a U.S. citizen, with whom he has three U.S. citizen children. In 2003, the Department of Homeland Security began removal proceedings against him on the ground that he was present in the U.S. without having been lawfully admitted or paroled. He conceded removability, but applied for cancellation of removal pursuant to 8 USC Sec. 1229b(b)(1), on the basis that his removal would result in exceptional and extremely unusual hardship to his wife and children. In 2004, one day before the hearing on Nunez's application for cancellation was to be held, the government filed a motion to pretermit. It argued that Nunez was statutorily ineligible for cancellation because he had been convicted of two crimes of moral turpitude during the past ten years: petty theft in 1995 and indecent exposure in 2003. The government's only evidence of the petty theft conviction was an FBI report indicating that Nunez had been arrested and charged with petty theft on May 25, 1995. The report did not indicate the disposition of the charge. A single conviction for a crime involving moral turpitude is not a statutory bar to cancellation of removal if the maximum penalty does not exceed one year's imprisonment, and if the individual is sentenced to six months or less. 8 USC Sec. 1182(a)(2)(A)(ii). Two convictions, however, render an alien ineligible for cancellation. 8 USC Sec. 1229b(b)(1)(C). At the hearing, the Immigration Judge ("IJ") questioned Nunez about the petty theft charge. He admitted that he had been arrested after a store security guard accused him of stealing a pair of pants and that he had subsequently appeared in court and paid a $100 fine. The IJ concluded that this testimony sufficed to establish a prior conviction for petty theft. The IJ determined that petty theft and indecent exposure, as proscribed by California Penal Code. Sec. 314, are crimes of moral turpitude and that Nunez was statutorily ineligible for cancellation on the basis of the two convictions. The IJ then concluded the hearing, without hearing any of Nunez evidence that the removal would result in exceptional and extremely unusual hardship to his U.S. citizen family. The Board of Immigration Appeals ("BIA") affirmed the IJ's decision ordering Nunez removed to Mexico. The BIA agreed that Nunez had been convicted of two crimes of moral turpitude and that he was thus statutorily ineligible for cancellation of removal under Sec. 1229b(b)(1)(B). However, concluding that Sec. 314 covers a broader range of offenses than the generic definition of crimes of moral turpitude, the USCA held that indecent exposure is not categorically a crime of moral turpitude. The USCA thus granted the petition and remanded. Judge Bybee dissented. He noted that Gonzales v. Duenas-Alvarez, 549 US 183, 193 (2007), instructs that to find that California's indecent exposure state is a crime outside the generic definition of a crime involving moral turpitude "requires more than the application of legal imagination to a state statute's language.…it requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of [the] crime." But "legal imagination" and "theoretical possibilities" were, Judge Bybee thought, the "warp and woof of the majority's decision. He thought that without any record on which to base its judgment, the majority dismissed conduct as "relatively harmless" and merely "provocative insults and tasteless pranks" that California courts have found to be lewd. The majority's collateral attack on these convictions was, Judge Bybee thought wholly inappropriate in this context and, at best, revisionist history. Whatever Nunez did to get himself convicted of indecent exposure, Judge Bybee thought one could be fairly confident that it involved more than being a nude dancer at a bar or a "tasteless prank." Because he though that Nunez's conviction for indecent exposure under Sec. 314 was categorically a crime involving moral turpitude, he would uphold the BIA's decision and deny the petition. Reinhardt (author), Bybee (dissenting), and M.D. Smith, Circuit Judges. C. Franke of San Mateo, CA, for the petitioner; R. LeFevre of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 17) IMMIGRATION: Zetino v. Holder, 08-70390 (9th Cir. Feb. 18, 2010). Zetino, a native and citizen of El Salvador, petitioned for review of a Board of Immigration Appeals ("BIA") decision upholding an Immigration Judge's denial of his applications for asylum and withholding of removal. At issue on appeal was whether the USCA has jurisdiction to review for abuse of discretion the BIA's discretionary denial of a petitioner's motion to accept an untimely brief. The USCA held that it lacked jurisdiction over this part of the petition because there is no meaningful standard against which to judge the agency's exercise of discretion. It then denied the remaining challenges on the merits. Zetino's due process rights were not violated and substantial evidence supported the BIA's decision that Zetino had not demonstrated a nexus between the harm he feared and a protected ground. Judge Lawson concurred in part and in the judgment. He parted company with the majority's conclusion that the USCA lacked jurisdiction to review the BIA's denial of the petitioner's motion to accept an untimely brief. He noted that the BIA's authority to accept late briefs plainly is committed to its discretion by 8 CFR Sec. 1003.3(c)(1). There is, he said, no act of Congress that restricts the jurisdiction of circuit courts from reviewing decisions under this regulation. In addition, Supreme Court precedent does not support the proposition that an agency in the executive Branch can regulate the jurisdiction of the federal courts, nor does its provide support for the idea that judicial review is barred as a result of the absence of governing standards in the regulation. Judge Lawson would hold that the USCA has jurisdiction to review the BIA's decision not to accept the petitioner's late brief. He would also conclude that the BIA did not abuse its discretion. Hall and Tallman (author), Circuit Judges, and Lawson (concurring), District Judge. N. Frenzen of Los Angeles, CA, for the petitioner; S. Lee of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) IMMIGRATON: Alvarez-Reynaga v. Holder, 08-70253 (9th Cir. Feb. 19, 2010). Alvarez-Reynaga, a native and citizen of Mexico, was admitted to the U.S. as a lawful permanent resident in 1981. He was later convicted of a felony violation of California Penal Code Sec. 496d(a) for his receipt of a stolen vehicle. He received a sentence of one year and four months. Still later, when attempting to return to the U.S. from Mexico, he was stopped at the border due to an outstanding warrant for his arrest unrelated to his previous conviction. He was paroled into the U.S. at that time but became the subject of removal proceedings, based upon the earlier conviction. The Immigration Judge ("IJ") ordered that he be removed for having been convicted of an aggravated felony and for having been convicted of a crime involving moral turpitude, pursuant to 8 USC Sec. 1227(a)(2)(A)(iii) and 8 USC Sec. 1182(a)(2)(A)(i)(I). The IJ based these conclusions on his determination that a convicton under Sec. 496d(a) fit within the generic definition of a "theft offense." The IJ further held that Alvarez-Reynaga was ineligible for relief in the form of cancellation of removal under 8 USC Sec.1229b(a), due to his conviction for an aggravated felony. The Board of Immigration Appeals ("BIA") affirmed and adopted the IJ's decision. It agreed that Sec. 496d(a) constituted a categorical match with the generic definition of a "theft offense." On appeal, Alvarez-Reynaga presented the questions of whether a conviction under that statute qualifies categorically as a conviction for an aggravated felony, and whether it qualifies categorically as crime involving moral turpitude. The USCA held that a conviction for receipt of a stolen vehicle under Sec. 496d(a) categorically constitutes a conviction for an aggravated felony. But, it also held that a conviction under Sec. 496d(a) does not categorically constitute a crime involving moral turpitude as it does not require an intent to permanently deprive the owner of property as required by Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009). Even under the modified categorical approach, Alvarez-Reynaga's conviction was not for a crime involving moral turpitude. There was no evidence that his offense involved an intent to deprive the owner of possession permanently, just as there was none in Castillo-Cruz. The USCA's first holding independently made Alvarez-Reynaga removable under 8 USC Sec. 1227(a)(2)(A)(iii) and ineligible for cancellation or removal under 8 USC Sec. 1229b(a)(3). The USCA thus denied the petition for review. Silverman, Clifton (author), and M.D. Smith, Circuit Judges. B. Connolly of San Jose, CA, for the petitioner; AAG G. Katsas of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) IMMIGRATON: Kin v. Holder, 05-73079 (9th
Cir. Feb. 18, 2010). Prak and Kin (the "petitioners") are natives and
citizens of Cambodia. They petitioned for review of the Board of Immigration Appeals'
final order affirming the Immigration Judge's adverse credibility finding as to
each petitioner. As a result of an unfavorable credibility determination, the
IJ found the petitioners ineligible for asylum, withholding of removal, and relief
under the U.N. Convention Against Torture. The BIA affirmed the IJ's adverse credibility
findings. The IJ had made an adverse credibility determination as to both Prak
and Kim in part because there were numerous inconsistencies among their testimony,
with the testimony of Cambodian Senator Thach, and with documentary evidence submitted
by the petitioners. In reviewing the IJ's determination, the BIA specifically
noted two inconsistencies: 1) Kin's testimony that Prak was at home when he was
arrested by Cambodian authorities, meaning that she would have been in prison
when Kin was arrested; and 2) Thach's testimony that he never petitioned a Cambodian
court for either petitioner's release and Kin's written declaration that Thach
filed a complaint with the Supreme Court of Cambodia for Kin's release. It was
proper for the BIA to consider these inconsistencies when making credibility findings
as to Kin and Prak. These findings constituted substantial evidence in support
of the BIA's adverse credibility determinations. They went to the truthfulness
of the circumstances surrounding the petitioners' arrests and the intervention
needed to obtain their releases from prison. They thus go to the heart of each
claim for asylum. Because the adverse credibility findings were supported by substantial
evidence, the petitioners failed to carry their burden of showing entitlement
to relief. The USCA thus denied the consolidated petition for review. Kleinfeld
and Tallman (author), Circuit Judges, and Lawson, District Judge. A. Karakalos
of Ventura, CA, for the petitioners; M. Taylor of Washington, DC, for the respondent.(Download
the full text of this decision at www.ce9.uscourts.gov/)
21) CIVIL RIGHTS / OVER-DETENTIONS: Mortimer v. Baca, 07-55393 (9th Cir. Feb. 5, 2010). The plaintiffs brought this action under 42 USC Sec. 1983 against Los Angles County Sheriff Baca, in his official capacity. They alleged that their civil rights were violated when they were kept in custody by the Sheriff's Department for periods of time ranging from 26 to 29 hours after the court had authorized their releases, and that their over-detentions were the result of a policy of deliberate indifference to their constitutional rights. The USCA found that its prior opinion, Berry v. Baca, 379 F.3d 764 (9th Cir. 2004), did not preclude the district court from considering the defendant's motion for summary judgment on the merits. The USCA held that nothing in Berry precluded the district court from considering defendant's motion for summary judgment on its merits because (1) Berry does not hold that the plaintiffs were entitled to have their allegations regarding a policy of deliberate indifference determined by a jury, 2) even if Berry is interpreted to contain such a suggestion, the "law of the case" would not apply because the issue was not actually determined by the panel, and (3) even if the "law of the case" would otherwise apply, this case fell within the exception to that doctrine for instances in which substantially different evidence is adduced at the subsequent proceeding. Reviewing the matter de novo, the USCA then held that the district court properly granted the defendant's motion for summary judgment because the proffered evidence did not support a finding of deliberate indifference. As it noted in Brass v. County of Los Angeles, 328 F.3d 1192, 1200 (9th Cir. 2003), the plaintiffs may well have a due process right to be released within a reasonable time after the basis for their detentions have ended. However, for liability to attach to Baca in his official capacity, the plaintiffs had to show that their over-detentions were the result of polices-or lack of policies-that sum to deliberate indifference. Wardlaw and Callahan (author), Circuit Judges, and Beistline, District Judge. M. Yagman of Venice Beach, CA, for the appellants; D. Lawrence of Glendale, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 22) CIVIL RIGHTS / OVER-DETENTIONS: Avalos v. Baca, 07-56511 (9th Cir. Feb. 24, 2010). After Avalos was over-detained by the Los Angeles Sheriff's Department ("LASD"), he filed this action against officers of the LASD in their official and individual capacities. He asserted claims pursuant to 42 USC Sec. 1083 for alleged violations of his rights under the Fourth and Fourteenth Amendments based on his over-detention and for the defendants' efforts to procure an involuntary waiver of his civil rights claim based on his over-detention. Avalos also alleged claims of conspiracy and violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). The district court granted summary judgment in favor of the defendants. The USCA concluded that 1) the plaintiff failed to show an unconstitutional custom, policy or practice of over-detention, 2) there was no actionable claim under Sec. 1983 for procuring a coercive or involuntary waiver of a civil rights claim, 3) the district court properly granted summary judgment for the defendants on the plaintiff's conspiracy claims, and 4) the plaintiffs failed to present sufficient evidence of a RICO violation or any harm to his business or property from the alleged act of racketeering. Thus while there appeared to be no doubt that Avalos was improperly over-detained by the LASF, the district court properly concluded that he failed to make a prima facie showing for relief under Sec. 1983 or RICO. Accordingly, the USCA affirmed the district court's grant of summary judgment in favor of the defendants. Wardlaw and Callahan (author), Circuit Judges, and Beistline, District Judge. M. Yagman of Venice Beach, CA, for the plaintiff-appellant; D. Lawrence of Glendale, CA, for the defendants-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) STRIP SEARCH OF ARRESTEES: Bull v. City and County of San Francisco, 05-17080 (9th Cir. Feb. 9, 2010). The San Francisco Sheriff's Department oversees six county jails, through which some 50,000 individuals are booked and processed each year. To address a serious problem of contraband smuggling in the jails, Sheriff Hennessey instituted a policy requiring the strip search of all arrestees being introduced into San Francisco's general jail population for custodial housing. In a class action challenging this policy on its face, District Judge Breyer held that it violated the Fourth Amendment rights of the persons searched, and denied Sheriff Hennessey qualified immunity. Hennessey, the S.F. Sheriff's Department, and the City and County of San Francisco brought this interlocutory appeal, challenging the denial of qualified immunity. A divided USCA panel affirmed the district court's ruling, Bull v. City & County of San Francisco, 539 F.3d 1193 (9th Cir. 2008). The USCA then granted a rehearing en banc. Sitting en banc, it concluded that San Francisco's policy did not violate the plaintiffs' constitutional rights. It thus reversed the district court's denial of Sheriff Hennessey's motion for summary judgment based on qualified immunity, and in doing so necessarily reversed the district court's grant of plaintiffs' motion for partial summary judgment as to Fourth Amendment liability. San Francisco's policy requiring strip searches of all arrestees classified for custodial housing in the general population was facially reasonable under the Fourth Amendment, notwithstanding the lack of individualized reasonable suspicion as to the individuals searched. Judge Kozinski, joined by Judge Gould, concurred. He thought there was a time in our constitutional history when one might have argued that the Fourth Amendment required individualized suspicion for every search and an appropriate constitutional balance as to each individual. If that was ever the case, it is not so now: The government is entitled to search classes of individuals based on a balance struck for the class as a whole, regardless of whether there's reasonable suspicion-or any suspicion at all-as to any particular member. While concurring in the majority's opinion in full, Judge Kozinski concurred on the separate ground that he did not believe that Circuit judges, as inferior federal judges, have the authority to grant plaintiffs the relief they sought. Judge Thomas dissented, joined by Judges Wardlaw, Berzon, and Rawlinson. In holding unconstitutional strip searches under a policy mandating routine body cavity searches of everyone arrested in San Francisco and classified for the general jail population, regardless of how petty the offense, the district court had faithfully applied a quarter century of Ninth Circuit law, which was consistent with the law of all but one other Circuit. Under that nearly uniform interpretation of constitutional law, a body cavity strip search of a detainee is only justified by individualized reasonable suspicion that the search will bear fruit. If jailers have no reasonable suspicion, the search must be categorically reasonable based on empirical evidence that the policy is necessary. Jailors are entitled to strip searches those whose arrest charges, criminal history, probation status, or suspicious behavior create a reasonable justification for believing that the person arrested might be concealing contraband in a body cavity. That interpretation, Judge Thomas maintained, was consistent the leading Supreme Court case on the topic, Bell v. Wolfish, 441 US 520, 559 (1979), which required "balancing the need of the particular search against the invasion of personal rights that the search entails." Judge Thomas thought that the majority swept away 25 years of jurisprudence, giving jailors the unfettered right to conduct mandatory, routine, suspicionless body cavity searches on any citizen who may be arrested for minor offenses, such as violating a leash law or a traffic code, and who posed no credible risk for smuggling contraband into the jail. Under its reconfigured regime, the majority discards Bell's requirement to balance the need for a search against individual privacy and instead blesses a uniform policy of performing body cavity searches on everyone arrested and designed for the general jail population, regardless of the triviality of the charge or the likelihood that the arrestee is hiding contraband. Judge Graber specially concurred in the result: although she agreed with Parts I and II of the dissent, she parted company with its conclusion in Part III that the unconstitutionality of San Francisco's strip-search policy was clearly established at the time of the events in question. The most relevant case, Bell, approved an across-the-board policy to strip-search inmates following every contact visit with an outsider. By definition, a newly arrested person, similarly, has just been an outsider. Moreover, as the dissent acknowledged, some categories of pretrial detainees (such as those with a criminal record and those arrested for violent offense and drug offences) do pose a significant risk of bringing contraband into the jail. Those categories of people may, constitutionally, be strip-searched before entering the general jail population. That procedure protects people like the named plaintiffs who unwillingly find themselves in the same facility as more dangerous detainees. Finally, no prior Ninth Circuit case is sufficiently similar to the present one to signal unequivocally that the San Francisco policy was improper. Kozinski (concurring) Rymer, Thomas (dissenting), Graber (concurring), Wardlaw, Gould, Berzon, Rawlinson, Clifton, Ikuta (author), and N.R. Smith, Circuit Judges. D. Herrera of San Francisco, CA, for the appellants; M. Merin of San Francisco, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 24) SEARCH & SEIZURE: USA v. Borowy, 09-10064 (9th Cir. Feb. 17, 2010). FBI Agent Mitchell logged onto LimeWire, a publically available peer-to-peer file-sharing computer program to monitor trafficking in child pornography. He conducted a keyword search in LimeWire using "Lolitaguy," a term known to be associated with child pornography. From the list of results returned by this search, Mitchell identified known images of child pornography using a software program that verifies the "hash marks" of files and displays a red flag next to known images of child pornography. At least one of these files was shared through what was later determined to be Borowy's IP address. Using the "browse host" feature of LimeWire, Mitchell viewed a list of the names of all of the approximately 240 files being shared from Borowy's IP address, several of which were explicitly suggestive of child pornography and two of which were red-flagged. Mitchell downloaded and viewed seven files from Borowy's IP address, four of which were child pornography. Prior to downloading the files, Mitchell did not have access to the files' contents. Execution of a search warrant resulting from Mitchell's investigation led to the seizure of Borowy's laptop computer, CDs, and floppy disks. Forensic examination of these items revealed more than 600 images of child pornography, including seventy-five videos. Borowy moved to suppress this evidence, arguing that Mitchell's activities in locating and downloading the files from LimeWire constituted a warrantless search and seizure without probable cause that violated Borowy's Fourth Amendment rights. Borowy argued that because he had purchased and installed a version of LimeWire that allows a user to prevent others from downloading or viewing the names of files on his computer and because he attempted to engage this feature, he had a reasonable expectation of privacy in the files. However, for whatever reason, this feature was not engaged when Mitchell downloaded the seven files from Borowy's computer, and there was no restriction on Mitchell's assessing those files. The district court refused to suppress the evidence, finding that Mitchell's conduct was not a search under the Fourth Amendment and that Mitchell had probable cause to download the files. Borowy conditionally pleaded guilty to the possession of child pornography under 18 USC Sec.2252A(a)(5)(B), reserving his right to appeal the suppression decision. The plea memorandum, the district court, and counsel for both the government and the defense initially informed Borowy that the maximum term of supervised release for this crime was not more than three years. However, at the beginning of Borowy's sentencing hearing, the district court and Borowy's attorney correctly noted that the relevant statute calls for a period of supervised release ranging from five years to life. See 18 USC Sec. 3583(k). Borowy conceded that he made no objection at sentencing that he had been misinformed as to the supervised release term. He was sentenced to 45 months of imprisonment followed by lifetime supervised release. He appealed the denial of his motion to suppress and sought to vacate his guilty plea because of a violation of Rule 11 of the Federal Rules of Criminal Procedure. He argued that the evidence recovered by Mitchell was unconstitutionally obtained. He further argued that, because he was misinformed as to the term of supervised release to which he was subject, his guilty plea should be vacated. The USCA affirmed. Borowy argued that the use of a "forensic software program" that is unavailable to the general public to confirm that the files contained child pornography rendered Mitchell's conduct an unlawful Fourth Amendment search. The USCA disagreed. Borowy had already exposed the entirety of the contents of his files to the public, negating any reasonable expectation of privacy in those files. Borowy also argued that by downloading the files to examine their contents, Mitchell seized them without probable cause in violation of the Fourth Amendment. However, the USCA found that it did not need to resolve whether downloading a file constitutes a seizure because the district court had properly ruled that Mitchell had probable cause. As the district court noted, the file names for at least five of the files were explicitly suggestive of child pornography. The list of these file names was obtained by searching for a term known to be associated with child pornography and two of the files were red-flagged as known child pornography. In light of this information, the district court correctly held that Mitchell had probable cause to download the files. B. Fletcher, Canby, and Graber, Circuit Judges. Per Curiam. AFPD M. Powell of Reno, NV, for Borowy; AUSA E. Olson of Reno, NV, for the USA. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) FELONS IN POSSESSIONS OF FIREARMS / SECOND AMENDMENT RIGHTS: USA v. Vongxay, 09-10072 (9th Cir. Feb. 9, 2010). Vongxay was arrested outside the After Dark Nightclub, a known venue of gang activity and violence located within an area patrolled by Officer Campos of the Fresno Police Department. The club was a known hangout for two gangs: the Asian Crips and the Tiny Rascals. Based on his experience and training, Campos knew that these gang members typically dressed in blue L.A. Dodgers clothing. He testified that the two gangs engaged in "constant shootings at each other, armed with guns," and that they caused "disturbances." On the night of Vongxay's arrest, Campos approached the club in a marked vehicle. He saw a group of Asian males loitering in front of the club dressed in the blue athletic apparel commonly worn by members of the gangs. As soon as the group noticed him they began to retreat out of the parking lot and funnel into the club. After calling for backup, Campos drove around the block and re-approached the club on foot. By that time, the same group had again gathered outside. The first person Campos encountered was Vongxay. As Campo asked Vongxay about his presence at the club, he noted that Vongxay appeared to be concealing something under his waistband. Thinking he was armed, Campos positioned himself behind Vongxay and asked him if he had any weapons. Vongxay said that he did not. Campos then asked Vongxay if he could search him for weapons. Vongxay did not verbally respond, but "placed his hands on his head." Campos then began the search by feeling Vongxay's waistband and immediately felt the frame of a large handgun. Vongxay attempted to pull away, a struggle ensured, and a loaded semiautomatic handgun fell from Vongxay's waistband. Vongxay continued to fight, bring Campos to the ground. It took the assistance of additional officers and a taser gun to overpower and arrest Vongxay. He was charged and convicted of being a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1). On appeal, he challenged his convictions on three grounds. First, he argued that Sec. 922(g)(1) violates the Second Amendment. Second, he argued that Sec. 922(g)(1) violates his right to equal protection under the Due Process Clause of the Fifth Amendment. And, finally, he argued that the arresting officer's search violated his Fourth Amendment right to be free from unreasonable searches and seizures. The USCA affirmed the judgment of the district court on all of Vongxay's claims. The USCA noted that there seems to be a consensus that, even given the Second Amendment's individual right to bear arms, Second Amendment rights can be reasonably restricted. Denying felons the right to bear arms is consistent with the explicit purpose of the Second Amendment to maintain "the security of a free State." U.S. Constitution, Amendment II. Finally, the USCA observed that most scholars of the Second Amendment agree that the right to bear arms was inextricable tied to the concept of a virtuous citizenry that would protect society through the defensive use of arms against criminals, oppressive officials, and foreign enemies alike, and that the right to bear arms does not preclude laws disarming the unvirtuous citizens (e.g. criminals). See Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemporary Problems, 143, 146 (1986); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995). The USCA thus held that Sec. 922(g)(1) does not violate the Second Amendment as applied to Vongxay, a convicted felon. The USCA next found the distinction between felons and non-felons grounded in both historical and modern understandings of the purpose of the Second Amendment. The USCA thus held that Sec. 922(g)(1) does not violate the equal protection guarantee of the Fifth Amendment. Finally, the district court found that Vongxay's act of raising his hands to his head constituted implied consent to search. It also found that "there were no threats, coercion or otherwise." Considering the totality of the circumstances, the USCA did not find that the district court's finding of consent was clearly erroneous. It thus affirmed the denial of Vongxay's motion to suppress. Bright, Hawkins, and M.D. Smith (author), Circuit Judges. D. Broderick of Fresno, CA, for the defendant-appellant; AUSA E. Landau of Fresno, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) FELONS IN POSSESSIONS OF FIREARMS: USA v. Terrell, 08-10560 (9th Cir. Feb. 2, 2010). Terrell was convicted of one count of being a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1). The district court enhanced his sentence under the Armed Career Criminal Act ("ACCA"), 18 USC Secs. 921-31, which raises the mandatory minimum sentence for convicted felons in possession of a firearm who have three previous convictions for a violent felony. 18 USC Sec. 924(e)(1). Terrell maintained that the prior convictions relied upon for the enhancement-sexual assault under Arizona law, second-degree burglary under Arizona law, and second-degree burglary under Missouri law-do not qualify as violent felonies under the ACCA. The USCA held that all of these prior offenses fit categorically within the ACCA's residual clause in that they involve conduct that presents a serious potential risk of physical injury to another. Id. Sec. 924(e)(2)(B)(ii). The USCA thus affirmed the district court's decision to enhance Terrell's sentence. Tashima, Graber, and Bybee (author), Circuit Judges. D. Drake of Phoenix, AZ, for the defendant-appellant; AUSA K. Delord of Phoenix, AZ, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 27) FELONS IN POSSESSIONS OF FIREARMS / SEARCH & SEIZURE / SENTENCING: USA v. Jennen, 09-30146 (9th Cir. Feb. 24, 2010). Jennen was convicted of being a felon in possession of a firearm and ammunition in violation of 18 USC 922(g), and was sentenced to 37 months in prison. Jennen had entered a conditional guilty plea for this offense, and permissibly appealed the district court's denial of his motion to suppress evidence obtained by law enforcement during a search of his residence. He also appealed his sentence. The USCA affirmed. Jennen argued that the search warrant was not based on probable cause because the information leading to the warrant was unreliable and uncorroborated and the because a second, failed controlled purchase of methamphetamine from Jennen at his residence-attempted after the warrant was issued undermined probable cause. The Spokane Police Department ("SPD") had received an anonymous tip that Jennen and his girlfriend were using illegal drugs, including methamphetamine and cocaine, in the presence of their children. The tip disclosed the place where Jennen resided, that Jennen had weapons and cameras and seemed to know when police were doing and would usually disappear accordingly, and that Jennen bragged about keeping dynamite under his home. The USCA found that the tip met the standard of USA v. Morales, 252 F.3d 1070 (9th Cir. 2001). First, the anonymous tip included a "range of details" that were more than "easily observed facts and conditions." See Morales, 252 F.3d at 1076. The anonymous tip described how Jennen and his girlfriend were doing drugs in the presence of children. It disclosed where Jennen resided; the types of drugs, including methamphetamine and cocaine, being used; that Jennen possessed weapons; and that he had cameras and seemed to know when the police were coming. Second, the tip described the continuing illegal conduct (Jennen and his girlfriend "do drugs" and "have weapons [and] cameras") and where that illegal conduct would take place in the future (at Jennen's residence). Third, important details disclosed in the tip were corroborated by a confidential informant ("CI") used to do a controlled purchase of methamphetamine at Jennen's residence: Jennen, along with his girlfriend and their children, was residing where the tip indicated, Jennen had firearms and surveillance cameras, and Jennen had drugs. The USCA also disagreed with Jennen's contention that the information obtained through the controlled purchase was not reliable for establishing probable cause because the CI had been arrested for crimes of dishonest and was being compensated by the SPD. The mere fact that the CI received compensation and was arrested for crimes of dishonest is not dispositive given the additional information provided in the affidavit tat bolstered the CI's credibility. The affidavit described how the CI had "assisted…in past investigations that resulted in the arrest and convictions of subjects dealing in controlled substances" and that "this CI has been proven reliable." The state judicial officer properly issued the warrant because the state judicial officer had "a substantial basis for finding probable cause." USA v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir. 2002). Jennen next argued that the second, failed controlled purchase undermined probable cause supporting the warrant. The USCA again disagreed. Even in light of the intervening failed controlled purchase, "nothing…changed the facts upon which the original affidavit was based and which gave the agents probable cause to believe that articles subject to seizure were in the [residence]." USA v. Nepstead, 424 F.2d 269, 271 (9th Cir. 1970). The second controlled purchase, though it did not result in the CI obtaining methamphetamine, showed only that Jennen had no methamphetamine that he was willing to sell at that time once his suspicion was aroused, and did not exculpate Jennen from his apparent involvement in a continuing drug scheme. Given the totality of the circumstances, the second, failed controlled purchase did not undermine probably cause that Jennen had the items sought in the warrant in his residence. Nor, as Jennen maintained, was there an unreasonable delay in the execution of the warrant. The warrant was executed six days after it was issued. Because there was no unreasonable delay in executing the warrant and the facts underlying the magistrate's determination of probable cause did not materially change, there was no need, as Jennen argued, for the SPD to confer with a judicial officer to see if probably cause still existed. The district court did not err in denying Jennen's motion to suppress. Jennen's convicton on his conditional guilty plea thus stands. Finally, challenging the sentence he received, Jennen argued that the district court erred in determining that his prior confiction for second degree assault with a deadly weapon constituted a "crime of violence." However, the USCA held that Washington's crime of second degree assault with a deadly weapon is categorically a crime of violence. Gould (author), and Tallman, Circuit Judges, and Benitez, District Judge. M. Campbell of Spokane, WA, for the defendant-appellant; AUSA R. Skibbie of Spokane, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) TERRORIST TRIALS / SENTENCING: USA v. Ressam, 09-30000 (9th Cir. Feb. 2, 2010). Ressam, an Algerian national, entered Canada on a false passport. He was caught by Canadian immigration personnel and divulged his true name. He then applied for refugee status with Canadian Immigration, indicating on his refugee application that he left Algeria in 1993 after having been arrested and jailed for 15 months for trafficking arms to terrorists in Algeria. His request for refugee status in Canada was denied in 1995, as was his appeal from that denial. A moratorium on deportation from Canada to Algeria, however, allowed Ressam to stay in Canada under conditions set by Citizenship and Immigration Canada ("CIC"). Ressam failed to comply with these conditions, and on May 4, 1998, CIC issued a warrant for his arrest. Canadian authorities were unable to arrest Ressam, however, as at the time he was attending a terrorist training camp in Afghanistan. On March 17, 1998, he had traveled under the name "Benni Noris" from Montreal to Karachi, Pakistan where he met with Abu Zubeida, the "master terrorists" in charge of the Afghan terrorist training camps. Ressam then crossed the border into Afghanistan. While he was training in Afghanistan, fatwahs were issued, including one by Sheikh Omar Abdel Rahman, directing terrorists to fight Americans and hit their interests everywhere. Ressam and five other terrorists were part of a cell charged with carrying out an operation against an airport or consulate in the U.S. before the end of 1999. The plan was for cell members to travel separately to Canada where they would meet and carry out bank robberies to finance their operation in the United States. Other cells were planning operations in Europe and the Persian Gulf against the U.S. and Israeli interests to be carried out before the year 2000. In February 1999, Ressam returned to Canada, still traveling as Benni Noris and now carrying $12,000 in cash, a chemical substance called "Hexamine," which is used as a booster in the manufacture of explosives, and a notebook with instructions on how to put together explosives. In the spring of 1999, French authorities were investigating of radical Islamic fundamentalists living in Montreal who were believed to be providing support to Islamic terrorist organizations in Europe. The Montreal cell was involved in stealing passports and other identification documents and sending them to cells in Europe to allow fellow Islamic terrorists to travel internationally. The French asked to interview Ressam but Canadian authorities were unable to locate him because he was living under his false name, Benni Noris. Ressam next selected his target, the Los Angeles International Airport ("LAX"), knowing that many civilians would die as a result of his bomb. He traveled to Vancouver, B.C., where he prepared his explosives, and then boarded a car ferry to Port Angeles, Washington. Upon boarding the ferry, a Canadian inspector searched Ressam's car but failed to check the wheel well in the trunk where Ressam had hidden his explosives. However, upon leaving the ferry in Port Angeles, Ressam was questioned by U.S. Customs Inspector Diane Dean. She detected nervousness and directed Ressam to a secondary inspection area where the explosives were discovered. But, believing the contraband to be narcotics, the inspectors did not handle the items as carefully as they would have handle explosives. As the inspectors reached into the wheel well to remove the items, Ressam ducked down behind the protection of the police car door. An explosive expert later determined that the materials found in Ressam's car were capable of producing a blast 40 times greater than that of the usual car bomb. Ressam was convicted by a jury on nine counts of criminal activity in connection with his plot to carry out an attack against the U.S. by detonating explosives at the LAX on the eve of the new Millennium, December 31, 1999. His crimes of conviction carried an advisory Sentencing Guidelines range of 65 years to life in prison, and a statutory maximum penalty of 130 years in prison. In 2001, following his conviction, Ressam entered into a plea agreement with the government. Under the terms of that agreement, the government would recommend a reduced sentence in exchange for Ressam's "truthful and complete cooperation." Initially, Ressam provided information to law enforcement officials of the U.S. and other countries concerning the organization, recruitment, and training activities of al-Qaeda. He also testified against one of his co-conspirators, Mokhtar Haouari. However, after providing assistance to the government for a while, Ressam decided to cease cooperating and began recanting his prior testimony. Judge John C. Coughenour of the District Court for the Western District of Washington sentenced Ressam to 22 years in prison to be followed by 5 years of supervised releases. (During the sentencing hearing, Ressam wondered if the Government might be willing to let him live in the United States after his release from prison.) Both sides appealed. Ressam challenged his conviction while the government challenged the reasonableness of the sentence. On appeal, the USCA vacated Ressam's conviction as to Count Nine and remanded for resentencing without addressing the merits of the government's arguments. USA v. Ressam, 474 F.3d 597 (9th Cir. 2007). The parties appeal. The U.S. Supreme Court reversed the USCA's decision and affirmed Ressam's conviction on Count Nine. USA v. Ressam, 128 S.Ct. 1858, 1862 (2008). Upon remand, the USCA vacated the 22-year sentence, holding that the district court failed to determine the applicable Sentencing Guidelines range at the beginning of sentencing, as required by USA v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc). USA v. Ressam, 538 F.3d 1166, 1167 (9th Cir. 2008). Upon remand, the district court again imposed the sentence of 22 years in prison, followed by 5 years of supervised released. The government appealed, maintaining that when the relevant 18 USCA Sec. 3553(a) factors are applied to the facts of this case, the sentence Judge Coughenour imposed was insufficient to accomplish the purpose of the statute, which directs that "the court shall impose a sentence sufficient but not greater than necessary" to accomplish the purpose of Sec. 3553(a)(2). The USCA again vacated the sentence and again remanded for resentencing, but this time by a different district court judge. It concluded that the district court had committed procedural error in failing to address specific, non-frivolous arguments raised by the government, or otherwise justify the extent of its downward departure in imposing a sentence well below the advisory Guidelines. The district judge also failed to consider potential national security consequences for the public if Ressam were released after only 22 years in prison-at which time he would be only 53 years old. Finally, the USCA concluded: "The district judge's previously expressed views appear too entrenched to allow for the appearance of fairness on remand. For these reasons, the USCA directed that the case be reassigned to a different judge for resentencing." Dissenting, Judge Fernandez thought that even if the USCA disagreed with District Judge Coughenour's sentence, it had to give it "due deference" under USA v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). He further thought the majority was wrong in suggesting that the district court's decision suffered from procedural deficiencies, noting that even the government's brief did not assert that. Alarcon (author), Fernandez (dissenting), and Clifton, Circuit, Circuit Judges. AUSA M. Bartlett of Seattle, WA, for the plaintiff-appellant; T. Hillier of Seattle, WA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 29) DEATH PENALTY / DOUBLE JEOPARDY: Harrison v. Gillespie, 08-16602 (9th Cir. The prior opinion in this case has been withdrawn and replaced by the opinion filed Feb. 22, 2010). The State of Nevada prosecuted Harrison for murder, and the jury returned a guilty verdict. The State than sought the death penalty, which required proof of two additional facts beyond a reasonable doubt: that at least one aggravating circumstance existed, and that there were no mitigating circumstdances sufficient to out-weigh the aggravating circumstances. Nev. Rev. Stat. Sec. 175.554(3). The jury was permitted to impose a sentence of death only lf it made both findings unanimously. Hollaway v. State, 6 P.3d 987, 996 (Nev. 2000) (en banc). If it made both findings, it also had the option to sentence the defendant to a non-capital sentence: life without parole, life with parole, or a fixed term with parole. Nev. Rev. Stat. Sec. 200.030(4). If the jury determined that there were no aggravating circumstances, it was free to choose only one form or another of the three non-capital sentences. Id. The jury reported its inability to agree on a sentence, and the notes of two jurors indicated that the jury was deadlocked between life with the possibility of parole and life without the possibility of parole. Harrison requested that the members of the jury be polled to determine 1) whether they had unanimously found that there were no aggravating circumstances and 2) whether they had unanimously found that the mitigating circumstances outweighed the aggravating circumstances. If the answer to either question had been yes, the poll would have established that Harrison had been acquitted of the death penalty, and the Double Jeopardy Clause of the Fifth Amendment would have prohibited the State from seeking that penalty during Harrison's sentencing retrial. However, the prosecution objected to Harrison's request, and the trial judge denied it. She then dismissed the jury and declared a mistrial. The USCA reversed and remanded with instructions. It concluded that there was no manifest necessity to declare a mistrial without first polling the jury to determine whether Harrison had been acquitted of the death penalty. The USCA thus held that the trial court abused its discretion by denying Harrison's polling request. Because no alternative would adequately protect Harrison's rights under the Double Jeopardy Clause, the USCA instructed that the State may not seek the death penalty at a sentencing retrial, and no such penalty may be imposed. Judge Silverman dissented. He noted that the foreperson told the judge in open court, without contradiction, that the jury was deadlocked on the issue of punishment. There is, he added, no court case anywhere holding that the constitution requires a state trial judge to ask more specific questions about the status of the jury's unfinished deliberations in a sentencing matter entrusted to its discretion. In the face of the jury's return of the unsigned punishment verdict forms, plus the foreman's statement that the jury was at an impasse as to the sentence, the trial judge did not abuse her discretion in declaring a mistrial and ordering a new sentencing trial. Judge Silverman thus thought that because a retrial on sentencing would not violate Harrison's right against double jeopardy, Sattazahn v. Pennsylvania, 537 US 101, 109 (2003), the district court correctly denied the petition for writ of habeas corpus. Hug, Reinhardt (author), and Silverman (dissenting), Circuit Judges. J. Thomas of Las Vegas, NV, for the petitioner; S. Owens of Las Vegas, NV, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)
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