 | ||
| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. | ||
| | ||
| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. | ||
| |
1) TAXATION: Adkison v. CIR, 08-70485 (9th Cir. Jan. 21, 2010). Adkison appealed the Tax Court's dismissal of his claim for relief under 26 USC Sec. 6015 for lack of jurisdiction. Section 6015(c) allows a former spouse who once filed a joint return and now, no longer married, meets certain requirements, to claim relief from joint and several liability for a tax deficiency. The Tax Court held that it lacked jurisdiction because Adkison's deficiency stemmed from a partnership interest which is the subject of an ongoing partnership proceeding under the Tax Equity and Fiscal Responsibility Act ("TEFRA") and regulated by a separate set of provisions. The USCA agreed that no remedy is available to Adkison until the TEFRA partnership proceedings have finished, although it arrived at that conclusion along a different path. Hawkins, McKeown, and Bybee (author), Circuit Judges. C. Flanders-Palmer of Seattle, WA, for the petitioner; T. McLaughlin of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) TAXATION: Sanchez v. Aerovias De Mexico, S.A., 08-55588 (9th Cir. Jan. 5, 2010). When Sanchez bought a ticket to fly from California to Mexico, the airline collected a "tourism tax" for the Mexican government from which she, and the class she would like to represent, are exempt because that tax applies only to non-Mexican citizens and she is a Mexican citizen. She sought relief for breach of contract and the implied covenant of good faith and fair dealing, as well as for unjust enrichment and money had and received from Aerovias De Mexico ("Aeromexico"). The district court concluded that her claims were preempted by the Airline Deregulation Act of 1978 and were not excepted because Aeromexico had no contractual obligation to advise passengers about the tax or their right to a refund. It thus granted judgment for Aeromexico. The USCA affirmed. There being no contractual obligation to advise passengers about Mexico's tourism tax, and not to collect it from those who are exempt, or to refund it to exempt passengers from whom it was nevertheless collected, Sanchez's claims against Aeromexico could not proceed. Sanchez made no separate argument with respect to her clams for breach of the implied covenant, unjust enrichment, or money had and received, treating them all as stemming from her claim for breach of contract. As no viable claim existed on that theory, the USCA concluded that the action was properly dismissed. Dissenting, Judge Kleinfeld thought that that Sanchez's claim was not preempted and thus that the district court's judgment should be reversed. He thought the error in the majority's opinion derived from its error in concluding that "the ticketed price included the tourism tax." It did not. As the majority apparently conceded, Sanchez's contract included the website language, "the user shall remain fully liable for all…taxes…" That meant taxes attributed to her flight. The airline collected a $22 tax from every passenger bound for Mexico, but it was undisputed that Mexico imposes this tax only on non-Mexicans. Sanchez is a Mexican citizen, so Mexico does not impose the $22 tax on her trips to Mexico. The airline collected the $22 as part of the ticket price it charged to her credit card. It did not refund it to her and has no system for doing so. Judge Kleinfeld thus thought that Sanchez was entitled to sue for breach of contract and restitution of her money. Rymer (author), Kleinfeld (dissenting), and Silverman, Circuit Judges. H. Rossbacher of Los Angeles, CA, for the petitioner; F. Silane of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 3)
ERISA / TAXATION: Charles Schwab & Co. v. Chandler, 07-15261 (9th
Cir. Jan. 22, 2010). This interpleader action involved a dispute over the ownership
of an Individual Retirement Account ("IRA") established by decedent
Wayne Wilson and held by Charles Schwab & Company ("Schwab"). Chandler,
Wayne's surviving spouse, appealed the grant of summary judgment in favor of the
named beneficiaries of the Schwab IRA-Wayne's four adult children from a previous
marriage. The District Court determined that the surviving spouse's protections
under ERISA do not apply to the Schwab IRA even though some of the funds originated
from an ERISA-protected pension plan. It also found that the Internal Revenue
Code does not impose automatic surviving spouse rights on IRAs similar to those
protections afforded under ERISA. The USCA affirmed. It rejected Chandler's claims
that she is entitled to automatic surviving spouse rights in her husband's Schwab
IRA under either ERISA or the IRC, and affirmed the District Court's grant of
summary judgment to the beneficiaries. Archer, Clifton, and M.D. Smith, Circuit
Judges. Per Curiam. S. Blair of Scottsdale, AZ, for the appellant; J. Elwell of
Phoenix, AZ, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/) 5) BANKRUPTCY: In re Deuel, 07-55266 (9th Cir. Jan. 28, 2010). This case arose out of repeated home refinancing aimed at taking advantage of rising real estate values. Debtor Jill Deuel and her ex-husband, Will Deuel, brought a condominium in California in 1999. They borrowed $106,700 from North American Mortgage Company, secured by a duly recorded deed of trust. On June 6, 2001, they refinanced, this time borrowing $122,400 from American Mortgage Express Financial Corporation, again secured by a duly recorded deed of trust. The Deuels used this loan to pay off the North American loan. The second loan was assigned to Chase Manhattan Bank ("Chase") in May 2002, and the assignment was duly recorded. The problem giving rise to this case arose from the Deuel's third loan, the second time they refinanced and drew more equity out of their condo, in 2002. This time they borrowed $136,000 from Chase Manhattan and gave Chase a deed of trust to secure their note. Somehow Chase failed to get the deed of trust recorded. What got recorded was only the deed of reconveyance from the previous loan, which was paid off in full out of the new loan. Thus, as far as anyone could tell from the county records, the condo had been paid off and there was no longer a lien against it. In 2003, Jill filed for chapter 13 bankruptcy. That case was dismissed on the motion of the chapter 13 trustee. In 2004, Jill again filed for bankruptcy, this time under chapter 7. She filed electronically. Along with her petition, she filed her schedules, listing Chase Manhattan's secured debt. Chase filed a complaint to quiet title to its lien, and prevailed in Bankruptcy Court on the theory that under Briggs v. Kent (In re Professional Investment Properties of America), 955 F.2d 623 (9th Cir. 1992), her schedules provided constructive notice to the bankruptcy trustee of Chase's unrecorded lien, and alternatively, that it was subrogated to its own previous recorded lien because it had used the new loan to pay it off. The Bankruptcy Appellate Panel ("BAP") reversed, ruling in favor of the trustee, distinguishing Professional Investment, and rejecting the subrogation theory. Chase appealed. At issue on appeal was the "strong-arm power" of the bankruptcy trustee under 11 USC Sec. 544(a)(3) in the context of an unrecorded deed of trust. The question came down to whether a bona fide purchaser for value without notice can take ahead of an unrecorded lien. Reviewing the matter de novo, the USCA found the answer to be obviously "yes." It found the BAP's reasoning to be correct and affirmed. Kozinski, Kleinfeld (author), and Rawlinson, Circuit Judges. J. Mitchel of San Diego, CA, for Chase Manhattan Bank; M. MacKinnon of San Diego, CA, for the Trustee. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) ENVIRONMENTAL LAW: Hells Canyon Preservation Council v. U.S. Forest Service, 07-35456 (9th Cir. Jan. 25, 2010). Hells Canyon Preservation Council and the Wilderness Society (collectively "HCPC") brought suit against the Forest Service, seeking a judgment declaring that: (1) the Service failed to retain the original map of the Wilderness in violation of the Hells Canyon National Recreation Area Act; (2) the Service's description of the Wilderness boundary was arbitrary and capricious in violation of 5 USC Sec. 706(2)(A); and (3) that the Service's failure to close the Lord Flat Trail to motorized vehicles was an "agency action unlawfully withheld or unreasonably delayed" under 5 USC 706(1). HCPC also sought an injunction to close the Lord Flat Trail to motorized vehicles. The Service argued that HCPC's claims were barred by the statute of limitations or doctrines of claim preclusion and standing. As neither the Hells Canyon Act nor the Wilderness Act provides a private right of action, HCPC's claims arose under the Administrative Procedure Act ("APA"). The district court held that each HCPC's claim was barred by the APA's six-year statute of limitations. The USCA affirmed, but on different reasoning. First, because HCPC did not suffered a cognizable Article III injury, and redressability is unlikely, the USCA affirmed the district court's dismissal of the map claim on the ground that HCPC lacked standing. Second, it was apparent long before 2002 that the hydrologic divide did not always establish the western boundary of the Hells Canyon Wilderness. HCPC's challenge to the boundary description was thus barred by the APA's statute of limitation. Third, the USCA thought that the timeliness of HCPC's trail claim was beside the point. Because HCPC had not identified "an ongoing failure to act," it failed to state a claim under Sec. 706(1). Judge Graber dissented in part. She would reverse the district court's dismissal of the third claim and remand for a determination of whether certain portions of the Lord Flat Road actually lie within the Wilderness area. She thought the Service ultimately might prevail on the merits of that ruling. But the majority's holding that such a determination was unavailable unduly restricts-if not eviscerates-judicial review under Sec. 706(1) for an agency's failure to act. O'Scannlain, Graber (dissenting in part), and Bybee (author), Circuit Judges. B. Brownscombe of Portland, OR, for the appellants; M. Haag of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) ENVIRONMENTAL LAW / JURISDICTION: United Farm Workers of America v. EPA, 08-35528 (9th Cir. Jan. 26, 2010). At issue on appeal was whether an appeal from a decision of the Environmental Protection Agency ("EPA") was filed in the correct court. A background issue concerns the merits of litigation over the continued use of the pesticide Azinphos-Methyl ("AZM"). The USCA's task was not to decide the merits but to ascertain the appeals process established by Congress. It held that the choice of the District Court by the United Farm Workers of America was mistaken and that the District Court correctly dismissed their suit for lack of jurisdiction. Dissenting, Judge Pregerson noted that the EPA has used a cost-benefit analysis to allow the continued use of AZM. To resolve this case the USCA had to interpret the expression "public hearing" under Sec. 16(b) of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"). Under Sec. 16(b), whether the Farm Workers should have filed for review in federal district court or in the federal court of appeals turned upon whether the EPA's notice and comment procedure amounted to a "public hearing." If there was a public hearing, the Farm Workers would have been correct to file in the court of appeals. If there was not, the Farm Workers were correct to file in the District Court. The Farm Workers, Judge Pregerson noted, correctly determined that the court of appeals lacked jurisdiction to hear their challenge to the EPA's order because the only evidentiary material presented to the EPA was in the form of written comments. The Farm Workers concluded that this limited process did not constitute a public hearing. However, the district court dismissed for lack of jurisdiction, holding that the court of appeals was the appropriate forum because the EPA's notice and comment procedure constituted a "public hearing." The majority would affirm the district court's ruling that the EPA's solicitation of written comments from the public is a "public hearing" under Sec. 16(b) and that the Farm Workers should have filed their challenge to the EPA's order in the court of appeals. Judge Pregerson thought that when Congress chose the phrase "public hearing" in Sec. 16(b), it intended, as with other administrative proceedings, that where a quasi-judicial "public hearing" takes place challenges should be reviewed by the court of appeals where an adequate record already exists and no fact finding remained. Where the factual record is inadequate and where no quasi-judicial "public hearing" has taken place, Congress intended to allocate jurisdiction to the district court for the development of the record. In this case, there was no public hearing, but only the submission of written comments to the agency. The district court would conduct a public hearing, take the testimony of witnesses, rule on challenges to the evidence submitted, and render a decision based on the court's factual findings and on the applicable law. Thus Judge Pregerson thought the district court had jurisdiction. He also thought added that, the text of the FIFRA and prior court decisions interpreting Sec. 16(b) reveal that a "public hearing' refers to a quasi-judicial process, not the mere solicitation of written comments from the public. Thus, he thought the Farm Workers were correct in seeking review of the EPA's order in district court. Finally, he thought that the merits of this case, although not at issue on appeal, warrant close inspection of proper jurisdiction to ensure that the Farm Workers have a forum for their complaint. The majority had construed Sec. 16(b) in such a way as to preclude review of this case. Pregerson (dissenting), Noonan (author), and Bea, Circuit Judges. K. Boyles of Seattle, WA, for the appellants; R. Tenpas of Washington, DC, for the appellees; B. Weinberg of Washington, DC, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) PATENT INFRINGEMENT / ASSET FREEZING TRO: U.S. Philips Corp. v. KBC Bank, N.V., 08-56296 (9th Cir. Jan. 12, 2010). U.S. Philips Corporation appealed the district court's April 28, 2008 order granting non-party intervenor KBC Bank's motion to modify a preliminary injunction freezing the assets of the underlying defendants. The appeal derived from a patent infringement action filed in 2005 in federal district court by Philips against KXD Technology and its affiliates (the "KXD defendants"). On July 31, 2007, the district court found that the KXD defendants were "in the process of liquidating and concealing their assets," and granted Philips a TRO freezing the defendants' assets. The terms of the TRO prohibited the KXD defendants and "all persons in active institutions, brokerages, or others in possession or control of their assets" from directly or indirectly transferring, concealing, secreting, distributing, disposing of, shipping in any way or otherwise hiding assets and making the assets unavailable to Philips. Philips deposited a $50,000 surety bond with the Clerk of Court as a condition for entry of the TRO. See Fed. R. Civ. Proc. 65(c). On Sept. 1, 2007, the district court entered a preliminary judgment incorporating the terms of the asset-freeze TRO. However, on the same date it also entered a default judgment against the KXD defendants which imposed a permanent injunction prohibiting KXD defendants from infringing Philips' patents and awarded Philips treble compensatory damages in the amount of $87,765, 249. However, the default judgment did not incorporate the terms of the TRO or preliminary injunction, and it did not impose an ongoing asset freeze on KXD defendants. Why the district court entered a preliminary injunction on the same day it entered a default judgment was not clear, and although it ordered the $50,000 bond returned to Philips, it did not state its unequivocal intent to dissolve the preliminary injunction. The KXD defendants kept accounts in Singapore and U.S. branches of KBC Bank ("KBC"). Between August 1, 2007 and October 26, 2007-after the TRO had been entered-funds were transferred into those accounts. In total, $2.6 million was transferred. Some of these transfers may have violated the terms of the TRO, but Philips never sought relief in the district court to enforce the terms of the TRO. KBC maintained that, despite the TRO, preliminary injunction, and default judgment entered against the KXD defendants, KBC's contractual and equitable rights, triggered by possession of the $2.6 million in funds, entitled it to "set off" the $2.6 million in funds against $2.86 million in debts owed to KBC by the KXD defendants. KBC's alleged contractual setoff right rested on a 2006 agreement between KBC and certain KXD defendants. Whether or not KBC had an equitable right of setoff depends on what jurisdiction's banking laws govern the deposited funds. Philips insists that the TRO, preliminary injunction, and default judgment entitled it to the $2.6 million, and that this entitlement was not subordinated to KBC's asserted contractual and equitable setoff rights. On March 31, 2008, KBC intervened in the underlying lawsuit between Philips and the KXD defendants, moving to modify the district court's Sept. 17, 2007 preliminary injunction to permit the bank to exercise its setoff rights regarding the $2.6 million in sequestered funds. The district court granted the KBC's motion. Philips appealed. On appeal, KBC argued that Philips' appeal was moot because the TRO and preliminary injunction automatically terminated on Sept. 17, 2007, when the default judgment was entered. Alternatively, KBC argued that the district court did not abuse its discretion in modifying the TRO and preliminary injunction because KBC's equitable and contractual setoff rights were superior to any rights Philips-a mere judgment creditor-could acquire to the $2.6 million in funds. Philips argued that the preliminary injunction remained in effect, and that in any event, the district court's modification order was an inequitable nunc pro tunc modification of the TRO and preliminary injunction that improperly vitiated whatever rights Philips acquired under those orders. The USCA vacated and remanded. Philips was awarded a default judgment against all defendants in the underlying action on Sept. 17, 2007. The preliminary injunction against the KXD defendants dissolved at that time. For that reason, it seemed to the USCA incorrect to entertain arguments about whether the district court's subsequent modification order was permissible. At the time the district court entered that order, there was no preliminary injunction to be modified. However, the USCA rejected KBC's argument that the dissolution of the preliminary injunction rendered moot this appeal. The district court entered an order modifying the preliminary injunction at KBC's behest. That modification order is still in effect. However, a modification order entered after a preliminary injunction has dissolved is void ab initio, because at that time there was no preliminary injunction to be modified. A district court cannot prospectively modify an injunction that is not in effect, nor may a district court modify a preliminary injunction nunc pro tunc retroactively to expand or vitiate rights the parties have already accrued under the injunction. If the preliminary injunction is dissolved, then a modification of that preliminary injunction cannot stand, because it was entered in error. The district court's modification order was not entered until April 28, 2008, after the preliminary injunction had dissolved because of the entry of final judgment. The modification order was thus void and the USCA vacated it. Finally, the question whether Philips had a right as a judgment creditor superior to KBC's rights to funds that originated from the KXD defendants could not be resolved until factual disputes were resolved at an evidentiary hearing. That hearing must arise in the course of a proceeding brought by the parties to adjudicate explicitly their claims to the funds. Such a proceeding was not yet before the USCA. The USCA vacated the modification order and remanded on an open record for any further proceedings. Gould (author) and Bea, Circuit Judges, and Molly, District Judge. S. O'Keefe of Newport Beach, CA, for the appellant; T. Richardson of Los Angeles, CA, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) EMPLOMENT LAW: Caviness v. Horizon Community Learning, 08-15245 (9th Cir. Jan. 4, 2010). Horizon Community Learning Center, a private, non-profit corporation, operates a charter school in Arizona. It employed Caviness as a high school physical education and health teacher, as well as a track coach for six year. In February 2006, a female student filed a grievance against Caviness alleging that "the student-teacher boundary had been crossed." Horizon put Caviness on paid administrative leave and initiated an investigation. In March 2006, Horizon's Board held a hearing regarding the student's allegations, at which Horizon, but not Caviness, questioned the student. Evidence elicited at the hearing indicated that the student and Caviness had been communicating via telephone and that she "had a crush on him." When she learned that Caviness had an adult girlfriend, she became upset and retaliated against Caviness by filing the grievance. The Board determined that Caviness had exercise questionable judgment regarding the extent of his personal communications with the student and thus decided not to renew his teaching contract. The Board decided to keep him on paid administrative leave until the end of his term of employment-June 2006. In April 2006, Pieratt, a Horizon official, wrote Caviness and sent copies to the Horizon Board members and the Arizona Dept. of Education. Caviness alleged that this letter "contained numerous false and defamatory statements and private information which Pieratt misused to purposely place…Caviness in a bad light." In July 2006, Caviness applied for a position as a teacher and coach with Mesa School District. Mesa decided not to hire him after it asked Pieratt to rate his ability and knowledge as a teacher, and Pieratt "declined to rate him since the [Horizon] Board had taken the action of non-renewing his contract." Caviness alleged that Pieratt's statement to Mesa was "purposely false and incomplete and was intended to harm" Caviness, since Pieratt knew that Caviness had an excellent 6-year record as a teacher and coach and it was reasonable and appropriate for Pieratt to respond accordingly rather than decline to provide him information. In August 2006, Caviness' attorney wrote Horizon informing it that a Horizon employee had called Caviness a "pedophile." The letter demanded "written representations from Horizon that it had instructed all of its agents and employees to cease and desist from making any further false and defamatory statements to anyone." In his reply, Pieratt did not address these demands. Caviness claims that another Horizon teacher subsequently defamed him by also calling him a "pedophile." On December 21, 2006, Caviness sent a request to Pieratt for a "name-clearing" hearing "arising from defendant's conduct and/or failure to act subsequent to the March 24, 2006 hearing, and his right [to freedom of] association." When Horizon did not respond, Caviness filed a complaint under 42 USC Sec. 1983 in district court, alleging that Horizon, acting under color of state law, deprived Caviness of his liberty interest in finding and obtaining work without due process in making several false statements about him in connection with his employment which caused serious damage to his standing and associations in the community or imposed on him a stigma that has interfered with his freedom to take advantage of other employment opportunities, without providing him with notice or a name-clearing hearing. He also alleged that Horizon violated his First Amendment right to freedom of association "by ordering him not to freely associate at certain public events." The district court sua sponte asked whether Horizon was a state actor for purposes of Sec. 1983, and directed the parties to submit memoranda in support of federal subject matter jurisdiction. It then granted Horizon's motion requesting that this briefing be treated as a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6). On Dec. 17, 2007, the district court granted Horizon's motion to dismiss. It rejected Caviness' arguments that Horizon was a state actor because of its statutory characterization as a "public school," and because it performed a public function in providing public education. Because there was "no evidence, with respect to Caviness' specific employment claims, that Horizon acted in concert or conspired with state actors, was subject to government coercion or encouragement, or was otherwise entwined or controlled by agency of the State, the district court held that Horizon was not functioning as a state actor in executing its employment decisions regarding Caviness. Because the allegations in Caviness' complaint were insufficient to raise a reasonable inference that Horizon was a state actor and thus acted under color of state law in taking the alleged actions after Caviness was terminated, the USCA affirmed the district court's judgment. At issue on appeal was whether Horizon was a state actor under 42 USC Sec. 1983 when it took certain employment-related actions with respect to a former teacher, Caviness. The district court held that Horizon and Pieratt were not functioning as state actors in these circumstances. Because the allegations in Caviness' complaint were insufficient to raise a reasonable inference that Horizon was a state actor and thus acted under color of state law in taking the alleged actions after Caviness was terminated, the USCA affirmed. Trott, McKeown, and Ikuta (author), Circuit Judges. D. Larkin of Tempe, AZ, for the appellant; S. Odegard of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) LABOR LAW / FIRST AMENDMENT: McDermott v. Ampersand Publishing, 08-56202 (9th Cir. Jan. 26, 2010). The NLRB's Regional Director, James McDermott, appealed the district court's denial of temporary injunctive relief under Sec. 10(j) of the National Labor Relations Act. The district court had held that "a significant risk of a First Amendment violation" would arise if Ampersand Publishing, (dba The Santa Barbara News-Press), were forced to reinstate employees discharged for union activity directed at pressuring the newspaper's owner and publisher to refrain from exercising editorial control over news reporting. Weighing the equitable factors generally applicable to a claim for interim injunctive relief in light of the greater burden needed to grant an injunction threatening to infringe First Amendment rights, the district court denied the petition. The USCA affirmed. The First Amendment protects the right of newspapers to control their content. The aim of the employees' campaign to secure representation by the Graphic Communications Conference, International Brotherhood of Teamsters appears to have been to block or limit the influence of the owner and publisher of the News-Press over the content of the news sections of the paper and to focus that authority in the employees themselves, as reporters and editors. The USCA held that the district court correctly required a heightened showing of equitable need under Ninth Circuit caselaw, as the interim relief sought by the government in support of union activity aimed at obtaining editorial control posed a threat of violating the First Amendment rights of the News-Press. Applying the Supreme Court's recent guidance on the standard for granting preliminary injunctions, the USCA further determined that the district court did not abuse its discretion in declining to order the interim relief sought by the Regional Director. See Overstreet v. United Bhd. of Carpenters, Local Union No. 1506, 409 F.3d 1199 (9th Cir. 2005); Miami Herald Publishing Co. v. Tornillo, 418 US 241, 243 (1974). Dissenting, Judge Hawkins thought the majority relied on cases in which the party seeking an injunction was attempting to enjoin speech, claiming that its result necessarily follows from cases reviewing a decision forcing a union to cease expressing its views through banners, seeking to compel a newspaper to publish content from a political candidate, or reviewing an order requiring a newspaper to resume publishing a weekly column to which it objected. But, Judge Hawkins thought this was not such a case, as the injunction here only sought reinstatement for terminated employees. It did not enjoin speech, but addressed retaliatory terminations and disciplinary actions the News-Press took only after union organizing began. The injunction addressed terms and conditions of employment and left the News-Press's right to publish its desired content entirely intact. Under the injunction, the News-Press was and is free to insist on total editorial control in labor negotiations, leaving it able to lockout employees who do not agree to such terms. Because the majority began by accepting the notion that who a newspaper employs necessarily determines its content, it found the News-Press exempt from the labor laws other employers must follow. Instead, Judge Hawkins said he would recognize that the scope of the injunction is limited to reinstatement only, and under the injunction the News-Press would still be able to publish its paper as it sees fit. In failing to make this distinction, the district court applied an incorrect standard and analysis, abusing its discretion. Judge Hawkins would reverse and direct the district court to issue and enforce the injunction sought by the NLRB. Hawkins (dissenting), Clifton (author), and M.D. Smith, Circuit Judges. R. Meisburg of Washington, DC, for the petitioner; F. Virjee of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) WORKERS' COMPENSATION: United States Life Insurance Co. v. Superior National Insurance Co., 07-55938 (9th Cir. Jan. 4, 2010). United States Life Insurance Company ("US Life") contractually agreed to reinsure the workers' compensation risks insured by five California insurers between May 1, 1998, and January 1, 2003. This reinsurance contract contained an arbitration provision. The insurers later declared bankruptcy. They will be referred to as the Superior Insurance Companies in Liquidation ("SNICIL"). The California Insurance Commissioner became SNICIL's liquidator. Ten years ago, on November 29, 1999, US Life requested arbitration, seeking 1) rescission or reformation of the reinsurance contract because SNICIL misrepresented the reserves during the underwriting process and 2) damages for SNICIL's bad-faith performance. SNICIL agreed to arbitrate, seeking a declaration that the reinsurance contract was valid, a ruling that US Life was to perform its contractual obligations, and damages. The panel, which consisted of an arbitrator appointed by each party and a neutral arbitrator selected by the parties' arbitrators, bifurcated the arbitration into two phases. Phase I addressed rescission and reformation claims. After holding extensive hearing, the panel entered a Final Interim Award that found no basis for rescission. However, the panel reformed the reinsurance contract so that US Life became liable for only 90% of the risks insured by SNICIL's underlying policies because of SNICIL's failure to be forthright during the contract formation period. The panel awarded SNICIL interest on this 90% amount "at a rate equal to the average of the 2 and 5 Year Treasury Notes as posted in the Wall Street Journal. US Life sought vacatur of the Final Interim Award. The district court denied US Life's petition, and the USCA affirmed in U.S. Life Ins. Co. v. Ins. Comm'r, 160 Fed. App'x 559 (9th Cir. 2005). Phase II proceeded to determine whether SNICIL engaged in improper claims handling that resulted in bills to US Life in excess of the amounts due under the reinsurance agreement. A Phase II organizational meeting was held on April 14, 2005. Rather than review each of the 98,901 June 30, 2004 claims, US Life's expert selected 500 of the 12,604 contested claims files for an audit. SNICIL's expert used this same sample to conduct its audit. Prior to Phase II's evidentiary hearings, SNICIL's party arbitrator advised the parties that he had terminal cancer, but that he wished to continue as an arbitrator. The parties elected to continue with the arbitration proceeding with SNICIL appointing an alternative arbitrator to observe and potentially replace SNICIL's party arbitrator. The parties agreed that Phase II would be governed by Protocols Governing the Presentation of Evidence (the "protocols"). In March 2005, the panel listened to the parties' Phase II evidence and arguments for 13 days. After the hearings, it advised the parties that it was unable to reach a decision regarding the quality of SNICIL's clams handling and, more pointedly, US Life's reinsurance contract obligations given the parties divergent expert opinions. To rectify this "stalemate," the panel advised that it would retain two workers' compensation claims-handling experts to review the submitted bills. On December 6, 2006, the panel issued its Phase II Interim Award, finding that all amounts billed prior to June 30, 2004, were properly due. The panel determined, in addition to the Phase I Final Interim Award interest requirement, that US Life was to disgorge its actual investment earnings on all monies due under the reinsurance agreement as of June 30, 2004 bills with 30 days of bills. On February 18, 2007, the panel issued its Final Arbitration Award, requiring US Life to pay all bills submitted before Dec. 6, 2006, along with Phase I interest and Phase II disgorgement. In addition, US Life was required to pay all post-December 6, 2006 bills within 30 days of receipt. US Life brought an action in district court to vacate this award. SNICIL answered and filed a separate action to confirm the award. After consolidating the two actions, the district court upheld the arbitration award. US Life appealed. At issue on appeal was whether the arbitration panel violated the Federal Arbitration Act ("FAA"), 9 USC Secs. 2-16. The process employed by the panel, which included an ex parte meeting with panel-retained workers' compensation experts, was unusual; however, after deferentially reviewing the panel's award, the USCA determined that the arbitration process provided the parties with a fundamentally fair arbitration and that the arbitration award rested on a plausible interpretation of the governing arbitration documents. The USCA thus affirmed the arbitration award in favor SNICIL. Graber and Clifton, Circuit Judges, and Shea (author), District Judge. A. Amer of Redwood Shores, CA, for the petitioner; M. Grignon of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 12)
MEDICAL MALPRACTICE / SUCCESSIVE SUMMARY JUDGMENT MOTIONS: Hoffman v. Tonnemacher,
08-16166 (9th Cir. Jan. 21, 2010). Hoffman sued Memorial Medical Center under
the Emergency Medical Treatment and Active Labor Act ("EMTALA") after
an emergency room physician failed to diagnose her bacterial infection. The district
court granted in part and denied in part the defendant's pretrial motion for summary
judgment, and the surviving claim went to trial. The jury deadlocked, and the
district court declared a mistrial. Subsequently, the district court allowed the
defendant to file another summary judgment motion which, this time, the court
granted. On appeal, Hoffman challenged the propriety of allowing this successive
summary judgment motion. The USCA held that the district court has discretion
to entertain successive motions for summary judgment and that the district court
did not abuse its discretion in this instance. Tashima, Graber (author),
and Bybee, Circuit Judges. K. Little of Fresno, CA, for the plaintiff-appellant;
L. Krieger of Los Angeles, CA, for the defendant-appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/) 14) EDUCATION LAW / ATTORNEYS' FEES: Weissburg v. Lancaster School District, 08-55660 (9th Cir. Jan. 14, 2010). The Weissburgs brought an action for attorneys' fees against Lancaster School District under the Individuals with Disabilities Education Act ("IDEA"), on behalf of their child, Edward. Edward is a seven-year-old child with developmental disabilities who is eligible for special education under the IDEA. In 2005, the school district issue an assessment that classified Edward as mentally retarded, but concluded that he did not display autistic behavior. During the 2005-2006 and 2006-2007 school years, the Weissburgs repeatedly challenged this classification with the school district because the Weissburgs' psychologist had concluded that Edward was autistic, but not mentally retarded. When the school district declined to change Edward's classification from mentally retarded to autistic, the Weissburgs filed a due process complaint under 20 USC Sec. 1415(b)(6)(A), in which they requested a private assessment of Edward's disability classification at public expense. The school district declined to provide a private assessment, but conducted its own "comprehensive assessment" of Edward's disability on June 14, 2006. After conducting this assessment, the school district concluded that Edward was not autistic and maintained that he qualified for special education under the IDEA as mentally retarded. Shortly thereafter, the school district filed a due process complaint to obtain a determination that its assessments of Edward's classification and educational needs were appropriate. Its complaint was consolidated with the Weissburgs' complaint. After a consolidated due process hearing, an Administrative Law Judge concluded that the June 14, 2006 assessment was appropriate, but that the disability classification was "flawed" because Edward should have been eligible for special education under both the mental retardation and autism classifications. Despite the misclassification, the ALJ determined that Edward had not been denied a free and appropriate public education ("FAPE"). Thus, even though he was not classified as autistic, as he should have been, he nonetheless received the educational benefits to which he was entitled under IDEA. The first issue on appeal was whether the ALJ's conclusion that the school district misclassified Edward qualified the Weissburgs for attorneys' fees under the IDEA as a prevailing party, even though Edward was not denied a FAPE. The USCA held that the Weissburgs were a prevailing party as the change in disability classification legally entitled Edward to instruction by teachers qualified to teach students with both mental retardation and autism. Although Edward did, in fact, receive instruction by a qualified teacher, prior to the ALJ's decision, the school district refused to recognize his classification as autistic, and thus his legal right to such instruction. Second, the USCA considered whether the Weissburgs were ineligible for attorneys' fees under the IDEA because Edward's grandmother, a practicing attorney, represented him. The USCA declined to extend its bright-line rule that prohibits attorney-parents from receiving attorneys' fees to situations where a more distant relative represents the child. The USCA thus held that the Weissburgs were eligible for attorneys' fees even though Edward was represented by his grandmother. The USCA reversed the district judgment in favor of the school district and remanded for a calculation of the fee award. Pregerson (author), Reinhardt, and Wardlaw, Circuit Judges. D. Weissburg of Marina del Rey, CA, for the plaintiffs-appellants; C. Grogan of Bakersfield, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) CIVIL RIGHTS: Clouthier v. County of Contra Costa, 07-16703 (9th Cir. Jan. 14, 2010). The Couthiers brought this action under 42 USC Sec. 1983, alleging that a mental health specialist, two sheriff's deputies, and the County of Contra Costa violated the Fourteenth Amendment due process rights of their son, Robert, by failing to prevent his suicide while he was in pretrial detention. On the evening of July 26, 2005, after an argument with his father, Robert became violent, destroyed a china cabinet, and jumped through a plate glass window, resulting in lacerations to his body and severe bleeding. The father called the police and signed a citizen's arrest for battery. Robert was extremely upset about being taken into custody. As he was taken into the ambulance, he hit his head against the side of the ambulance several times. He was booked into the Martinez Detention Facility ("MDF") where he was evaluated by Hanaway, a Contra Costa County Mental Health Specialist. Robert told Hanaway several times that he was suicidal, and wanted to be "unconscious for the rest of his life." Hanaway described Robert as "despondent, hopeless, suicidal" and "one of the most suicidal inmates she had ever seen." She also described Robert's history of suicide attempts. She placed him in a "safety cell and had him wear a suicide smock, a stiff garment that cannot be fashioned into a noose. She also restrained his ankles and began noting his status ever 15 minutes in an Observation Log. She then advised the mental health workers, including Margaret Blush, and the deputies in the intake area that Robert was "truly suicidal" and "the real deal." Hanaway subsequently transferred Robert to Observation Room 7, one of the rooms in M-Module equipped with large windows through which Sheriff Deputies could monitor the occupant. Hanaway spoke to Matt Foley, the deputy on duty in M-Module at the time, and told him that Robert was suicidal and had been suicidal all day, "had numerous prior attempts," and needed to be on 15-minute checks. As documented in the Observation Log, Foley checked on Robert every 15 minutes for the next five hours, until Robert was take off the Observation Log. Before she left her shift, Hanaway gave a copy of her notes to Blush and told her that Robert "had been very suicidal throughout the day and that [Hanaway] felt that he needed to be in the observation room and that he needed to be observed and [Blush] needed to look in on him." Hanaway the left the MDF around 6:30 pm on July 27. Around 7 pm the same evening, Blush spoke with Robert for "less then five minutes." She then informed Foley that Robert could be given regular prison clothes and a blanket but that he was not to be given utensils or personal hygiene items. She also told Foley that Robert could be removed from the 15 minute Observation Log, and she made an entry to that effect in the log. She testified that she took Robert off the Observation Log because in her view, the risk of suicide had decreased, although she was uncertain whether it had disappeared. She explained that in her "clinical judgment" Robert was improving and would benefit from having normal jail clothes and bedding and could be further evaluated by mental health staff the following day. However, Blush also agreed that Robert was not "out of the woods" yet. Foley later testified that Blush did not instruct him to keep Robert in the Observation Room and still later that he could not remember if Blush directed him to keep Robert in the Observation Room. Foley did not write down Blush's alleged instruction to keep Robert in the Observation Room in the "Red Book," a log the deputies kept to inform one another of important events, or otherwise communicate an instruction to the next deputy on duty. Regardless of whether Blush instructed Foley to keep Robert in the Observation Room, Foley did not move him from the room, and he remained there when Foley left work on July 27. Foley returned on July 28 to find Robert still in the Observation Room. Per M-Module standard practice, Foley continued to check on Robert every 30 minutes. Foley ended his duty at 9:30 pm on the evening of July 28 with Robert still in the Observation Room. Foley did not return to work until August 1 when Robert had already been moved into the M-Module general population. Foley testified that he had no reason to question Robert's transfer into the general population. Robert's cellmate, Watkins, testified that Robert sat on his bunk and tied his sheet into a knot on one end. Foley went to Robert's cell to let Watkins out for recreational time. He told Robert that he could not come out right then, but would return to take him out. Roughly 30 minutes later, Foley and a nurse went to Robert's cell and found him hanging by the neck from the knotted sheet. Foley administered CPR and Robert was taken to the County Hospital. After being removed from life support ten days later, Robert died. His parents filed suit under 42 USC Sec. 1983 against Blush, Steele, Foley, and the County. They alleged that the individual defendants violated Robert's constitutional right to due process under the Fourteenth Amendment due to the officials' deliberate indifference to Robert's serious medical needs. They also alleged that Robert's death was caused by the County's established policies, its failure to train employees, and its ratification of the officials' illegal actions. After discovery, the defendants moved for summary judgment, which the district court granted on the merits as to each defendant. The USCA affirmed the district court's grant of summary judgment as to the two deputies and the County, but reversed as to the mental health specialist because there were genuine issues of material fact as to whether she was deliberately indifferent to a substantial risk of serious harm to Robert. It held that the district court did not err in holding that the individual defendants could not be held liable for failing to prevent Robert's suicide unless they had a punitive intent, which in the context of failing to prevent harm requires a determination whether they were deliberately indifferent to a serious risk of harm. Here Robert's parents adduced sufficient evidence to create a genuine issue of material fact as to whether Blush was deliberately indifferent to a substantial risk of serious harm to Robert, and therefore the district court erred in granting Blush's motion for summary judgment. Because a reasonable official would have known such conduct amounted to a constitutional violation, Blush was not entitled to qualified immunity. The district court did not err in granting summary judgment in favor of Foley and Steele either, because the Clouthiers failed to adduce sufficient evidence to create a genuine issue of material fact as to whether Foley and Steele were deliberately indifferent to a substantial risk of serious harm. With regard to their claim against the County, the Clouthiers failed to adduce sufficient evidence to create a genuine issue of material fact as to whether Robert's death was due to a long-standing custom or practice, an act of omission that amounted to deliberate indifference, or actions the County adopted as policy when it failed to discipline its employees. The district court thus properly granted the County's motion for summary judgment. Judge Block concurred in the majority opinion in all respects save one: he did not think that Foley was entitled to summary judgment and that the majority's conclusion with respect to Foley resolved issues that should be decided by a jury. Judge Block was satisfied that a jury could reasonably find that Foley's failure to communicate Blush's instructions crossed the line between negligence and deliberate indifference. According to Captain Pascoe, deputies are expected to use the Red Book to pass important information to future shifts. A factfinder could determine that Blush's instruction was a key suicide prevention measure; indeed, the failure to implement it arguably paved the way for Robert's suicide. Thus, if a jury were to find that Blush told Foley that Robert was not to be taken out of the Observation Room, Judge Block said he could not understand why the majority should rule that as a matter of law that Foley's failure to pass that information on to subsequent shifts was mere negligence. In addition, if a jury were to determine that Foley was a trained deputy charged with the responsibility of implementing a key suicide prevention measure (i.e., passing on instructions given by a mental health professional that a detainee at risk of suicide was to remain in the Observation Room), qualified immunity would not attach because such an officer could not reasonably have thought it was lawful to do nothing in response to such an instruction. McKeown and Ikuta (author), Circuit Judges, and Block (dissenting in part), District Judge. S. Casper of Walnut Creek, CA, for the appellant; J. Holmes of Martinez, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) CIVIL RIGHTS: Mattos v. Maui County, 08-15567 (9th Cir. Jan. 12, 2010). Maui police officers Agarano, MacKnight, Kunioka, and Aikala appealed the district court's order denying their motion for summary judgment on the basis of qualified immunity in this 42 USC Sec. 1983 action. The district court found that there were material questions of fact as to whether the police officers' use of a Taser on Jayzel Mattos was constitutionally reasonable. It thus found that summary judgment was inappropriate. The USCA held that, even taking the facts in the light most favorable to the plaintiffs, the officers did not violate her constitutional rights. She failed to offer specific facts that would establish the existence of an element essential to her case-namely, that the force used was constitutionally unreasonable. The USCA held that the use of a Tazer under these circumstances did not violate the Fourth Amendment. It thus reversed and remanded. Kozinski, Bybee, and Callahan, Circuit Judges. Per Curiam. B. Mato of Maui, HI, for the defendants-appellants; E. Seitz of Honolulu, HI, for the plaintiffs-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) CIVIL RIGHTS: Crowe v. County of San Diego, 05-55467 (9th Cir. Jan. 14, 2010). This civil rights action arose from the investigation and prosecution of innocent teenagers for a crime they did not commit. Michael Crowe, Aaron Houser, and Joshua Treadway were wrongfully accused of the murder of Michael's 12-year old sister Stephanie. After hours of grueling, psychologically abusive interrogation-during which the boys were isolated from their families and had no access to lawyers-they were indicted on murder charges. A year later, DNA testing revealed Stephanie's blood on the shirt of a transient, Richard Tuite, who had been seen in the Crowes' neighborhood on the night of the murder and reported by several neighbors for strange and harassing behavior. The shirt had been collected as part of the initial investigation, but never tested. Charges against the boys were dropped, and Tuite was convicted of Stephanie's murder. Michael, Aaron, Joshua, and their families filed a complaint against multiple individuals and government entities involved in the investigation and prosecution of the boys. The complaint alleged constitutional violations under the Fourth, Fifth, and Fourteenth Amendments, as well as defamation. The district court entered summary judgment for the defendants as to the majority of the plaintiffs' claims. The Crowes and Housers appealed the bulk of those orders and several defendants cross-appealed the district court's denial of summary judgment on qualified immunity grounds. The USCA reversed the district courts grant of summary judgment as to: (1) Michael and Aaron's Fifth Amendment claims and their Fourteenth Amendment substantive due process claims; (2) Michael's Fourth Amendment claim that the police lacked probable cause to arrest him; (3) Aaron's Fourth Amendment claim that the warrant authorizing the search of his home was not supported by sufficient probable cause; (4) all otherwise surviving Fourth Amendment claims against Detective McDonough of the Oceanside Police Department; (5) all otherwise surviving claims against Dr. Blum, a clinical psychologist; (6) the Crowes' deprivation of familial companionship claims based on Michael's arrest; and (7) all otherwise surviving claims against the Cities of Escondido and Oceanside. The USCA also affirmed the district court's grant of summary judgment as to: (1) Aaron's Fourth Amendment claims that the police lacked probable cause to arrest him; (2) Michael's claim that the police violated his Fourth Amendment rights in strip-searching him; (3) the Houser's deprivation of familial companionship claim; (4) Michael and Aaron's defamation claims against Deputy District Attorney Summer Stephan based on statements she made during an appearance on a news program shortly after the indictment against the boys were dismissed and which allegedly implied the boys had killed Stephanie; (5) and Aaron's defamation claim against Blum. The USCA also affirmed the district court's denial of summary judgment as to: (1) claims by Cheryl and Stephen Crowe, and their child Shannon that the police violated their Fourth Amendment rights by strip searching them; (2) Cheryl and Stephen's Fourth Amendment claims that the warrant authorizing police to draw blood samples were not supported by probable cause; (3) Cheryl and Stephan's Fourth Amendment claims of wrongful detention; and (4) the Crowe's deprivation of familial companionship claims based on the placement of Michael and Shannon in protective custody. The USCA remanded for further proceedings. Trott, Thomas (author), and Fisher, Circuit Judges. M. Silverman and J. Williams of San Diego, CA, for the plaintiffs-appellants; J. Sansone and D. Field of San Diego for the defendants-appellants.(Download the full text of this decision at www.ce9.uscourts.gov/) 18) FELON VOTING RIGHTS: Farrakhan v. Gregoire, 05-15582 (9th Cir. Jan. 5, 2010). The plaintiffs, minority citizens of the State of Washington who lost their right to vote pursuant to the state's felon disenfranchisement provisions, filed this action in 1996 challenging those provisions on the ground that, due to racial discrimination in the state's criminal justice system, the automatic disenfranchisement of felons results in the denial of the right to vote on account of race in violation of Sec. 2 of the Voting Rights Act ("VRA"). Earlier, the USCA reversed the district court's grant of summary judgment to the defendants. Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003), cert denied, 543 US 984 (2004) ("Farrakhan 1"). On remand, the district court again granted summary judgment to the defendants. The USCA now reversed again and granted summary judgment to the plaintiffs. The USCA said it was bound by Farrakhan 1's holding that Sec. 2 of the VRA applies to Washington's felon disenfranchisement provisions. The plaintiffs showed that the discriminatory impact of Washington's felon disenfranchisement provision attributable to racial discrimination in Washington's criminal justice system, and, thus, that the disenfranchisement provision violates Sec. 2 of the VRA. Dissenting, Judge McKeown noted that, in granting the plaintiffs summary judgment, the majority charted territory that no other Circuit has dared to explore, and that the First, Second, and Eleventh Circuits have all concluded that challenges to felon disenfranchisement laws are not cognizable under the VRA. While she did not dispute the continuing validity of Farrakhan 1, Judge McKeown thought that the felon disenfranchisement challenge did not fit comfortably within the VRA. In part because the holding of Farrakhan 1 set the USCA apart from the other circuits, she thought the USCA should be particularly mindful before reversing the district court and invalidating felon disenfranchisement in Washington. The majority, she thought, failed to act with appropriate caution. Reinhardt, Tashima (author), and McKeown (dissenting), Circuit Judges. R. Hay good of New York, NY, for the plaintiffs-appellants; C. Murphy of Olympia, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 19)
NATIVE AMERICAN LAW: Upper Skagit Indian Tribe v. Washington, 07-35061
(9th Cir. Jan. 5, 2010). This case arose out of, and is a sub-proceeding of USA
v. Washington, 384 F.Supp. 312 (W.D. Wash. 1974) ("Decision 1"),
where Judge Boldt determined the usual and accustomed fishing grounds ("U&A")
for Puget Sound tribes. Invoking the district court's continuing jurisdiction,
the Upper Skagit Indian Tribe filed a request for a determination that Saratoga
Passage and Skagit Bay on the eastern side of Whidbey Island are not within the
Suquamish Tribe's U&A. On cross-motions for summary judgment, the district
court held that Judge Boldt did not intend to include those areas in Suquamish's
U&A, and thus granted summary judgment in favor of Upper Skagit. This ruling
did not have the effect of re-adjudicating Suquamish's U&A or diminishing
it, for the Suquamish never had the right to fish in those areas. Judge Kleinfeld
dissented. In his view continually revisiting Judge Boldt's decades-old opinions
(and the limited record supporting them) in an attempt to discern what he thought
the customs of multiple people were in the 1850s and earlier, besides being extremely
burdensome and expensive, is, he thought, a fundamentally futile undertaking.
That the USCA now reverses itself underscores the futility of the court's moving
forward and demonstrates why Judge Boldt's 1974 decree and its implementation
process continuing this case in perpetuity, should be brought to an end. O'Scannlain,
Rymer (author), and Kleinfeld (dissenting), Circuit Judges. M. Hansen
of Suquamish, WA, for the appellant; A. Salter of Seattle, WA, for the appellee;
R. Berley of Seattle, WA, for the intervenor. (Download
the full text of this decision at www.ce9.uscourts.gov/) 21) IMMIGRATION: Shrestha v. Holder, 08-74751 (9th Cir. Jan. 5, 2010). Shrestha is a native and citizen of Nepal who was admitted to the U.S. as a nonimmigrant student on a temporary basis in November 1998. He attended college until December 2001. An immigration enforcement agent served him in April 2007 with a notice to appear at a hearing. Through counsel, Shrestha conceded removability but applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). He maintained that in Nepal he was beaten by Maoists with a rod and bamboo sticks after they came to his family house to recruit him, and that he is afraid Maoists might again attack him and force him to join them. He later filed a declaration in support of his application for relief, describing his confrontations with Maoists in more detail. The IJ denied relief. It found that Shrestha's asylum claim was time barred and that he was not credible because, in response to questions concerning his problems with Maoists, he was at times unresponsive, and his testimony was neither detailed nor consistent; it was also uncorroborated by a statement from his parents, with whom he had regular communication. The IJ also denied relief on the basis of materially changed country conditions in light of recent political developments in Nepal including a peace accord between the Maoists and the Nepalese government. Finally, the IJ denied relief because Shrestha could be expected to relocate elsewhere in Nepal given that he had no problems with Maoist during the time he was living with his uncle. As to Shrestha's CAT claim, the IJ concluded that he had not shown that there was a "clear probability of the risk of torture" should he return to Nepal. The USCA dismissed Shrestha's petition for review as to his asylum claim, and denied his petition for review of the agency's rejection of his withholding of removal and CAT claims. Gould (author) and Tallman, Circuit Judges, and Benitez, District Judge. P. Cantor of Tukwila, WA, for the petitioner; AAG T. West of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) IMMIGRATION: Vasquez-Hernandez v. Holder, 05-74392 (9th Cir. Jan. 6, 2010). The petitioner, a native and citizen of Mexico, entered the U.S. illegally in July 1988. On Aug. 8, 2002, he was convicted of violating California Penal Code Sec. 273.5 (corporal injury to a spouse). The trial court sentenced him to 14 days in jail, 8 hours of community service, and 3 years probation. Under Sec. 273.5, the sentence could not have exceeded one year. On Aug. 9, 2002, the INS charged him as being removable under 8 USC Sec. 1182(a)(6)(A)(i), as an alien present in the U.S. without being admitted or paroled. He conceded removability. In August 2004, an Immigration Judge ("IJ") pretermitted the petitioner's request for cancellation of removal, finding that he was statutorily ineligible for cancellation of removal under 8 USC Sec. 1229b(b) because he had been convicted of domestic violence as defined in 8 USC 1227(a)(2)(E). The IJ denied the petitioner's motion to reopen, finding that the petty offense exception in 8 USC Sec. 1182(a)(A)(ii) did not apply to his conviction. The IJ thus found the petitioner statutorily ineligible for cancellation of removal. The BIA affirmed. The USCA denied the petition for review. The conviction for corporal injury to a spouse under Cal. Penal Code Sec. 273.5 is an offense described in Sec. 1227(a)(2). Regardless of whether his conviction meets the requirements of the petty offense exception in Sec. 1182(a)(2)(A)(ii), the petitioner is statutorily ineligible for cancellation of removal. T.G. Nelson (author), J.S. Bybee, and M.D. Smith, Circuit Judges. R. Jacobs of Downey, CA, for the petitioner; L. Jentzer of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 23) IMMIGRATION: Retuta v. Holder, 04-74855 (9th Cir. Jan. 7, 2010). Retuta petitioned for review of a BIA decision affirming an IJ's order that he was removable under 8 USC Sec. 1227(a)(2)(B)(i) because he had been convicted of a controlled substance violation. At issue was whether the minute order that the government relied upon, and which contained acronyms, is sufficiently clear evidence of a criminal conviction in removal proceedings in light of USA v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc) (finding minute orders sufficient evidence of a convictions during federal sentencing proceedings). The USCA held that the minute order herein at issue was sufficient to establish by clear, unequivocal, and convincing evidence that Retuta pled guilty to the charge of possession of a controlled substance and received a sentence of a suspended fine. Also at issue was whether 8 USC Sec. 1101(a)(48)'s definition of "conviction" includes a judgment that withholds an adjudication of guilt and imposes a sanction other than incarceration-namely a small fine-and simultaneously suspends or stays execution of that sanction. The USCA held that an unconditional, suspended non-incarceratory sanction that has no present effect is not a punishment, penalty, or restraint of liberty under Sec. 1101(a)(48). The government thus failed to prove that Retuta was "convicted" of a controlled substance offense and, accordingly, he had not been shown subject to removal. Because the Government presented no evidence sufficient to establish that Retuta was subject to removal, the USCA granted the petition for review, reversed the order of removal, and remanded to the BIA for disposition consistent with its opinion. W. Fletcher and Clifton, Circuit Judges, and Pollak (author), District Judge. J. Bennett of El Cerrito, CA, for the petitioner; B. Beier of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) IMMIGRATION: Baghdasaryan v. Holder, 05-72416 (9th Cir. Jan. 13, 2010). Baghdasaryan is a native and citizen of Armenia. He sought review of the BIA's decision affirming an IJ's denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). He had been threatened, harassed, fined, detained, and beaten because he opposed the systemic government corruption, including the extortion of bribes, perpetrated by General H. Hakopian, a politician and government official. The USCA granted Baghdasaryan's petition in part and remanded. It found that the BIA's denial of asylum was not supported by substantial evidence. It remanded with instructions for the BIA to determine whether the mistreatment Baghdasaryan experienced on account of his political opinion rose to the level of persecution. It also remanded for the BIA to consider whether Baghdasaryan is eligible for withholding of removal. Pregerson (author), Reinhardt, and Wardlaw, Circuit Judges. S. Sedaghat of Encino, CA, for the petitioner; B. Martin of San Francisco, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 25) IMMIGRATION: Singh v. Holder, 07-73792 (9th Cir. Jan. 8, 2010). Singh, a native and citizen of India, entered the United States in 1992. Three years later, he married Medina, a U.S. citizen, and thus was able to adjust his status to conditional permanent resident. To remove the conditional status, Singh and Medina had to file a joint petition before the second anniversary of Singh's having obtained lawful status. Such a petition must state that the marriage is proper and was not entered into for immigration purposes. They filed a timely joint petition, but when they appeared for an interview before an INS officer, Medina signed a sworn statement declaring that the couple had married for the sole purpose of obtaining immigration benefits. She then withdrew her signature from the joint petition. The next day the INS served Singh with a Notice of Appear, charging that he was removable under INA Sec. 237(a)(1)(D)(i), 8 USC Sec. 1227(a)(1)(D)(i), because his conditional permanent resident status had been terminated. Singh filed a second petition seeking a waiver the joint filing requirement. It was denied, as was a third petition seeking waiver of the joint filing requirement. Singh then conceded removability before an Immigration Judge ("IJ") and the parties stipulated that the only issue for review was the district director's denial of a hardship waiver. The IJ held a merits hearing and issued a decision denying Singh's application for a hardship waiver. Although the IJ found Singh credible, he concluded that Singh had not shown that extreme hardship would result if he were removed. The BIA conducted a de novo review and affirmed the IJ's decision. The USCA found jurisdiction to review the BIA's extreme hardship determination under INA Sec. 242(a)(2)(B)(ii). It further found that even if the IJ erred in evaluating the evidence concerning hardship, his errors were rendered harmless by the BIA de novo review, and the BIA did not err. Because it found that the BIA did not err in holding that Singh's removal would not result in extreme hardship, the USCA denied Singh's petition for review. Schroeder and Berzon (author), Circuit Judges, and Strom, District Judge. M. Robles of San Francisco, CA, for the petitioner; E. Marsteller of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Coyt v. Holder, 05-77080 (9th Cir. Jan. 20, 2010). At issue here was whether the BIA may deem a motion to reopen or reissue withdrawn by operation of law when the government removes a petitioner before the BIA has ruled on the motion. The USCA held that it cannot do so and thus granted the petition for review. The BIA erred in refusing to entertain Coyt's motion as it relied on a regulation what was invalid as applied to a forcibly removed petitioner. Fernandez and Thomas (author), Circuit Judges, and Aldrich, District Judge. R. Jobe of San Francisco, CA, for the petitioner; E. Marsteller of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) IMMIGRATION: Anaya-Ortiz v. Holder, 03-74666 (9th Cir. The opinion filed Jan. 27, 2009 has been withdrawn and replaced with the opinion of Jan. 25, 2010). The INS placed the petitioner, a native and citizen of Mexico, in removal proceedings due to his conviction for the crime of possession of a firearm by a felon, a violation of California Penal Code Sec. 12021(a)(1). The Immigration Judge ("IJ") agreed with the INS and found Anaya removable. The petitioner then sought two forms of relief from removal: cancellation of removal under 8 USC Sec. 1229b and withholding of removal under 8 USC Sec. 1231(b)(3)(A). The IJ determined that the petition was ineligible for cancellation of removal because he had been convicted of an aggravated felony, but granted him a continuance to allow him to apply for withholding of removal. After receiving Anaya's application for withholding of removal, the IJ reconvened a hearing to determine the petitioner's eligibility. At that hearing, the petitioner admitted that he pleaded guilty to being a felon in possession of a firearm on March 21, 2001. The predicate offense to his felon-in-possession conviction was a prior conviction for driving under the influence in violation of California Vehicle Code Sec. 23153(b), for which he was sentenced to one year in jail. According to his testimony before the IJ, Anaya drove into a house while driving drunk. The collision caused part of the house's sheetrock wall to collapse on an elderly woman who lived inside, causing injuries to her shoulder and leg. The IJ held that the petitioner had been convicted of a "particularly serious crime" and was thus ineligible for withholding of removal under 8 USC Sec. 1231(b)(3)(B)(ii). He also held that the petitioner was ineligible for relief under the Convention Against Torture and ordered him removed. The BIA affirmed and dismissing the petitioner's appeal. The USCA denied the petition for review. It rejected the petitioner's argument that the IJ and BIA improperly determined that he had been convicted of a "particularly serious crime." The IJ and BIA did not err in relying on the petitioner's testimony at the removal hearing, nor did they apply an erroneous legal standard. The USCA also rejected the petitioner's argument that the IJ and BIA erred in holding that he was not eligible for withholding of removal in a separate memorandum disposition. Berzon and Ikuta (author), Circuit Judges, and Singleton, District Judges. G. Finn of Indio, CA, for the petitioner; J. Keeney of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) IMMIGRATION: Velasco-Cervantes v. Holder, 08-73295 (9th Cir. Jan. 27, 2010). Velasco-Cervantes, a native and citizen of Mexico, petitioned for review of the BIA's dismissal of her appeal of an IJ's decision denying her petitions for asylum, withholding of removal and relief under the Convention Against Torture. She maintained that she was entitled to relief because she was forced to serve as a material witness on behalf of the government against illegal smugglers. The USCA denied Velasco's petition. She failed to demonstrate that former material witnesses for the government constitute a particular social group. Government material witnesses are often involuntarily recruited for the task. Moreover, they cannot be defined with "sufficient particularity," because any person of any origin can be involuntarily placed in that role for any type of legal proceeding. The USCA noted that its decision here is in accord with Ninth Circuit precedent holding that government informants also do not constitute a particular social group. See 8 USC Sec. 1101(a)(42)(A) and Soriano v. Holder, 569 F.3d 1162, 1166 (9th Cir. 2009). Beezer (author), Gould, and Tallman, Circuit Judges. R. Rodriguez of Seattle, WA, for the petitioner; J. Meyer of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) IMMIGRATION: Kawashima v. Holder, 04-74313 (9th Cir. The opinion of July 1, 2008 is withdrawn and replaced by this opinion filed Jan. 27, 2010). This is the USCA's third published opinion in this case. After its second opinion, the government petitioned for rehearing en banc. While that petition was pending, the Supreme Court granted certiorari in Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. 2008), cert. granted, 129 S.Ct. 988 (2009). After the Court issued its opinion, Nijhawan v. Holder, 129 S.Ct. 2294 (2009), the USCA ordered the parties to file supplemental briefs on Nijhawan's impact on the instant case. At issue was whether Mr. Kawashima's conviction for subscribing to a false statement on a tax return in violation of 26 USC Sec. 7206(1) and Mrs. Kawashima's conviction for aiding and assisting in the preparation of a false tax return in violation of 26 USC Sec. 7206(2) constitute "aggravated felonies" that subject them to removal under the immigration laws. 8 USC Sec. 1101(a)(43)(M) defines an "aggravated felony" to include "an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in Sec. 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000." 8 USC Sec. 1101(a)(43)(M)(i)-(ii). First, the USCA declined to adopt the Third Circuit's interpretation of Subsection (M)(i). Accordingly, the USCA reaffirm that tax offenses not covered by Subsection (M)(ii)'s specific reference to Sec. 7201 qualify as aggravated felonies under Subsection (M)(i) where the loss exceeds $10,000. Second, based on the evidence in the administrative record, the USCA concluded that clear and convincing evidence supported the BIA's determination that Mr. Kawashima's conviction under Sec. 7206(1) constitutes an aggravated felony as described in Subsection (M)(i) because it involved "fraud or deceit" and because his offense resulted in a loss to the government in excess of $10,000. Accordingly, the USCA denied Mr. Kawashima's petition for review of the BIA's affirmance of the IJ's order. Third, the USCA found that a conviction under Sec. 7206(2) necessarily "involves fraud or deceit" and thus satisfies the first element of an aggravated felony as described in Subsection (M)(i). As for the second element, in Nijhawan, the petitioner argued that an immigration court deciding whether an aggravated felony meets Subsection (M)(i)'s $10,000 threshold should look only to the "charging documents, jury instructions, and any special jury finding (if one has been requested). If there was a guilty plea (and no trial) the subsequent court should examine the written plea documents or the plea colloquy. Thus, the BIA is not limited to only those documents which a court applying the modified categorical approach may review. Given this, the government maintained that the USCA should remand the case to the BIA so that the agency may determine, in the first instance, what additional types of evidence it may consider under this newly announced standard and so that the government may have the opportunity to introduce evidence to meet this stand. The USCA agreed, finding the case ripe for remand. Finally, the USCA addressed whether the BIA erred in denying the Kawashimas' motion to reopen. The USCA concluded that the BIA did not err in applying the 90-day filing deadlines for general motions to reopen pursuant to 8 CFR Sec. 1003.2(c)(2) and in denying Mr. Kawashima's motion to reopen as untimely because it was filed almost eight months later. The USCA thus denied Mr. Kawashima's petition for review of the BIA's denial of the motion to reopen. Since it granted Mrs. Kawashima's petition for review, it dismissed her motion to reopen as moot. O'Scannlain (author), Leavy, and Callahan, Circuit Judges. J. Wood of Los Angeles, CA, for the petitioner; N. Freedman of Washington, DC, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/) 30) IMMIGRATION: Esquivel-Garcia v. Holder, 07-70640 (9th Cir. Jan. 28, 2010). The petitioner, a native and citizen of Mexico, was found removable for having entered the U.S. without inspection on or about October 1, 1992. He conceded removability and applied for adjustment of status, cancellation of removal, and, in the alternative, voluntary departure. On appeal, he sought review of the Board of Immigration Appeals' denial of his requests for cancellation of removal, adjustment of status and voluntary departure. The USCA granted the petition for review of the denial of the request for cancellation of removal. Under the intervening decision in Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1129-30 (9th Cir. 2007), an alien who seeks to prove eligibility for cancellation of removal can meet his or her initial burden by pointing to an inconclusive record of conviction. The petitioner did that in this case. The record of conviction was inconclusive because it did not disclose the nature of the controlled substance, and the petitioner's testimony that he thought the substance was heroin did not alter the record of conviction. Under Sandoval-Lua the government has the burden of proving that the controlled substance the petitioner possessed was heroin or some other controlled substance under 8 USC Sec. 1182(a)(2)(A)(i)(II). The government did not do this, because neither it, nor the IJ, nor the BIA had the benefit of Sandoval-Lua. The USCA thus remanded to the BIA for further proceedings consistent with Sandoval-Lua. The USCA next denied the petition for review of the denial of the requests for adjustment of status and for voluntary departure and denied the petitioner's ineffective assistance of counsel claim, as the petitioner could raise that issue in a motion to reopen. Thompson (author) and Silverman, Circuit Judges, and Bolton, District Judge. S. Rivera of Los Angeles, CA, for the petitioner; D. Schor of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) BORDER INVESTIGATORY STOP: USA v. Palos-Marquez, 08-50498 (9th Cir. Jan. 19, 2010). At issue here was whether an in-person tip by an unidentified informant provided reasonable suspicion to support border patrol agents' investigatory stop of a vehicle. The USCA held that such a tip could have significant indicia of reliability, and in light of the totality of the circumstances here, there was reasonable suspicion to justify the stop. The stop occurred on Otay Lakes Road five miles north of the US/Mexican border. As Border Patrol Agent Staunton drove around a sharp bend in that road, he saw a dark-colored Dodge Ram pickup truck traveling west in his eastbound lane. It was attempting to pass a west-bound UPS truck. Staunton veered to avoid a collision with the pickup, which passed him and continued west. Staunton testified that the pickup was traveling" faster than normal" give road conditions. When the UPS truck passed Staunton, its driver gestured to get Staunton's attention regarding the pickup. Staunton testified that his knowledge of the area's connection with alien smuggling and the atypically fast speed at which the pickup was traveling, coupled with the UPS driver's gesture, caused him to suspect that the pickup might be loaded with contraband. He radioed Border Patrol Agents Simon and Martinez, who were situated further west on the road, to be on the lookout for the pickup that was "driving erratically [and] that almost ran [him] off the road." Within seconds, Simon radioed to Staunton that he had a visual of the truck. One minute later, the UPS driver pulled over at Simon's location and reported that he had seen the pickup load up with several suspected illegal aliens. Simon immediately radioed back to Staunton, informing him of the UPS driver's report. Simon did not obtain the UPS driver's name or license plate number. Staunton then put a call out over the radio to agents in the area, describing the make and model of the pickup and the UPS driver's report. Within minutes, Agent Padron saw the pickup traveling west on the road at a high rate of speed. When the pickup stopped at the traffic light, an unmarked car of plain clothes Border Patrol agents pulled alongside it, and reported that its occupants looked "nervous and shaky." Some five minutes after Padron first saw the pickup, he and other agents initiated the stop. They found four illegal aliens in the pickup, plus Palos-Marquez who was driving. Palos-Marquez was subsequently charged in a five-count indictment with transportation of illegal aliens and aiding and abetting the commission of that crime in violation of 8 USC Secs. 1324(a)(1)(A)(ii) and (v)(II). He moved to suppress the fact that illegal aliens were found in the pickup by arguing that the agents lacked reasonable suspicion to initiate the stop. After an evidentiary hearing, the district court stated that in the words of Agent Staunton the area was notorious for alien smuggling and in close proximity to the border. Those facts, combined with the pickup's near head-on collision with Staunton and the UPS driver's gesturing, put Staunton on notice that Palos-Marquez "could be a load driver." Taking into account Staunton's initial suspicions, coupled with the UPS driver's "highly reliable" report to the Border Patrol agents that he had seen the pickup driver "taking on a load of individuals," the district court held there was "more than reasonable suspicion" to justify the stop. It thus denied the motion to suppress. The USCA reaffirmed its holding in USA v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir. 1978), that "information from a citizen who confronts an officer in person to advise that a designated individual…is committing a specific crime" displays significant indicia of reliability. Because the UPS driver's tip had such indicia of reliability, and in light of the notoriety of the area for alien smuggling, the pickup's high rate of speed, and its occupants' nervous demeanor, there was more than enough evidence to "paint a picture that would create in the mind of a trained border patrol agent a reasonable suspicion that the [vehicle's occupants were] engaged in criminal activity." USA v. Guzman-Padilla, 573 F.3d 865, 882 (9th Cir. 2009). The stop thus did not violate the Fourth Amendment. Schroeder, Berzon, and Ikuta (author), Circuit Judges. E. Guzman of San Diego, CA, for the appellant; D. Katz of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) INVESTMENT PONZI SCHEMES: USA v. Tredwell, 08-50562 (9th Cir. Jan. 28, 2010). A jury convicted Treadwell, Sluder, and Saturday ("defendants") of wire fraud and conspiracy to commit wire fraud under 18 USC Secs. 371 and 1343 on charges arising from a Ponzi scheme in which more than 1,700 investors lost over $40 million. At trial, the government alleged that beginning in 2001, Treadwell and Sluder setup a series of companies, including Quest International ("Quest"), Wealth Builders Club ("WBC"), Learn Waterhouse, Inc. ("LWI"). Between 2001 and 2005, they pitched these companies to prospective investors. Their pitch was simple: temporarily "loan" money to these investment companies, and in exchange you will be rewarded with very large financial returns, and with no risk. The "loans" were to pay returns of 50% interest per month and 2% interest compounded monthly. The defendants claimed that their companies were making investments with "the top three banks in the United States," had "clients in twenty-nine countries," made investments guaranteed by the U.S. government, had invested $2 billion in a gold mine in Mexico, and were working on a billion-dollar Columbus-era "find" on the bottom of the ocean. The government alleged, and the defendants did not dispute, that over course of the four-year investors "loaned" over $50 million to the defendants' companies. The purported investments did not exist. By the time the scheme collapsed, more that 1,700 investors had lost their "investments." At trial, the government's expert testified that after analyzing Quest, WBC, and LWI bank records, the only sources of funds in the accounts were investor deposits. Evidence suggested that as regulators in Florida and Alabama began investigating the scheme, Treadwell and Sluder attempted to evade legal action by moving the investment program offshore under the guise of a new company, "Grande Belgravia." Videotaped conversations between an FBI informant and Treadwell captured Treadwell's attempt to pay the informant in exchange for not talking to the FBI. Treadwell was sentenced to 300 months' imprisonment, followed by 3 years of supervised release and a mandatory restitution order of $44,872,152. The court calculated for Sluder an advisory Guidelines range of 324 to 405 months' imprisonment and for Saturday a range of 135 to 168 months imprisonment. Both calculations included the same 22 point upward adjustment for losses from fraud between $20 million and $50 million that was imposed on Treadwell. However, in considering the 18 USC Sec. 3553(a) factors, the district court found that the amount of loss had a disproportionate effect on Sluder's and Saturday's recommended Guideline ranges. It sentencing variation for Sluder was "the equivalent" of a five-level downward departure. The variation for Saturday was "the equivalent" of a seven-level downward departure. Sluder was sentenced to 188 months' imprisonment followed by 3 years' supervised release and a mandatory restitution order of $44,872, 152. Saturday was sentenced to 63 months' imprisonment, followed by 3 years' supervised release and a mandatory restitution order of $22,536,076. The USCA affirmed. It found no error in the district court's "intent to defraud" jury instructions which had been taken from the Ninth Circuit Model Criminal Jury Instruction 3.17. That model instruction states that "intent to defraud is an intent to deceive or cheat," and "a defendant's belief that the victims of the fraud will be paid in the future or will sustain no economic loss is no defense to the crime." That instruction is consistent with applicable Supreme Court precedent and with the pattern jury instruction used in many circuits. A jury found that Sluder and Saturday, through misrepresentation, intentionally deprived their victims of the opportunity to decide for themselves, on the basis of true and accurate information, whether or not to invest in companies like Qwest, WBC, and LWI. That is all that an "intent to defraud" under 18 USC Sec. 1343 requires. There was no plain error in the jury instructions which, as a whole, fairly presented the elements of intent to defraud upon which Sluder's and Saturday's wire fraud convictions depended. Sluder and Saturday also maintained that the amount of loss found by the district court-which resulted in a 22 level increase in their Guidelines ranges-required clear and convincing evidence because it had a "disproportionate impact" on their sentences. The USCA disagreed. It has repeatedly held that sentencing determinations relating to the extent of a criminal conspiracy need not be established by clear and convincing evidence. Although "disproportionate impact" may require a clear and convincing standard of proof, the touchstone underlying this heightened burden of proof is due process. Due process concerns were absent here. The jury convicted Sluder and Saturday of conspiracy to commit wire fraud. The district court's amount-of-loss finding was based on the evidence presented at trial on the conspiracy charge, and Sluder and Saturday could not contend that they were denied adequate procedural protection in contesting that evidence. The distinction between a quantity determination and uncharged criminal conduct places a defendant convicted of conspiracy on a fundamentally different plane than a defendant who has not been convicted of conspiracy. USA v. Harrison-Philpot, 978 F.2d 1520, 1523. Gould (author) and Bea, Circuit Judges, and Molly, District Judge. D. Zugman J.Ferrara, and K. Leff of San Diego, CA, for the defendants-appellants; AUSA W. Cole of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)
|
| Readers of 9th Circuit Update can receive online access to the full texts of Ninth Circuit published decisions on the same day such decisions are announed by the Court. Decisions are usually online by 10:00 a.m. Docket Sheets are also online, but Memoranda Decisions are not. This service can be reached at: www.ce9.uscourts.gov/ © 2000 - 2010. 9th Circuit Online. All rights reserved. |