1) COPYRIGHT INFRINGEMENT: Benay v. Warner Bros. Entertainment, Inc., 08-55719 (9th Cir. June 9, 2010). Aaron and Matthew Benay wrote and copyrighted a screenplay called The Last Samurai. They maintained that the creators of a film by the same name copied from their screenplay without permission. They thus sued Warner Brothers Entertainment, Radar Pictures, Bedford Falls Productions, Edward Zwick, Marshall Herskovits, and John Logan (collective "defendants"), who wrote, produced, marketed, and distributed the film. The Benays alleged copyright infringement under federal law and breach of contract under California law. The district court granted summary judgment to the defendants on the copyright and breach of contract claims. The USCA affirmed on the copyright claim but reversed and remanded on the breach of contract claims. First, it agreed with the district court that while on cursory review, the film and screenplay, might appear substantially similar, a closer examination of protectable elements, including plot, themes, dialogue, mood, setting, pace, characters, and sequence of events, exposes many more differences than similarities. The most important similarities involve unprotectable elements. They are shared historical facts, familiar stock scenes, and characteristics that flow naturally from the works' shared basic plot premise. Stripped of these unprotected elements the works are not sufficiently similar to satisfy the extrinsic test for determining whether one work is substantially similar to another. As the Benays failed to satisfy the extrinsic test, they could not survive a motion for summary judgment. Second, the screenplay and film share a number of similarities. Most notably, in both the protagonist is an embittered American war veteran who travels to Japan where he meets the Emperor, trains the Imperial Army in modern warfare, fights against the samurai, and in the end is spiritually restored. Both works are set at the time of the Satsuma Rebellion of 1877; both rely heavily on the historical figure Saigo Takamori; and both share the same title. These similarities are substantial for purposes of an implied-in-fact contract under California law. The USCA emphasized that it did not decide whether, and to what degree, these similarities are due to the use of the Benays' screenplay by the defendants. Suffice it to say that there may be evidence in the record from which a reasonable factfinder could find unauthorized use by the defendants. The USCA left to the district court on remand the task of determining whether there was unauthorized use by the defendants of elements or ideas from the screenplay. W. Fletcher (author) and Clifton, Circuit Judges, and Singleton, District Judge. S. Havens of Los Angeles, CA, for the appellants; G. Hedges of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) COPYRIGHT INFRINGEMENT / SANCTIONS: Lahiri v. Universal Music and Video Distribution Corp., 09-55111 (9th Cir. June 7, 2010). Kornarens is an attorney specializing in copyright law. He was severely sanctioned by the district court for his five-year bad faith pursuit of a frivolous copyright infringement claim. The district court awarded the defendants $247,397 in attorneys' fees and $10,808 in costs under 28 USC Sec. 1927 and the court's inherent sanctioning power. Kornarens appealed, contending that the sanctions were unwarranted and excessive. The USCA affirmed. The parties disputed whether a bad faith finding must be supported by clear and convincing evidence. However, the USCA found that it did not need to resolve this issue as the district court's bad faith finding was supported by clear and convincing evidence. The record demonstrated by clear and convincing evidence that Kornarens engaged in a pattern of bad faith litigation conduct over an extended time period. He pursued a meritless copyright infringement claim that directly resulted in excess fees and costs. Beyond question, he acted recklessly. The district court thus did not abuse its discretion in awarding reasonable and carefully considered attorneys' fees and costs. Pregerson and Beezer, Circuit Judges, and Conlon (author), District Judge. C. Cole of Pasadena, CA, for the movant-appellant; R. Frackman of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) COPYRIGHT / IMPLIED CONTRACTS: Montz v. Pilgrim Films & Television, Inc., 08-56954 (9th Cir. June 3, 2010). At issue here was whether federal copyright law preempts state-law claims alleging the unauthorized use of screenplays, videos, and other materials in the production of a cable television series. In November 2006, the plaintiffs filed a complaint in federal district court claiming that in 1981 they conceived of the concept for a new reality television program featuring a team of "paranormal investigators." As they allegedly envisioned the series, each hour-long episode would follow the team to a different real-world location where they would use magnetometers, infrared cameras, and other devices to investigate reports of paranormal activity. The complaint alleged that between 1996 and 2003, the plaintiffs presented screenplays, videos, and other materials relating to his proposed show to representatives of NBC Universal, Inc. and the Sci-Fi Channel (now the Syfy Channel), for the express purpose of offering to partner in the production, broadcast and distribution of the Concept. The representatives allegedly were not interested in the concept for the show. According to the complaint, however, NBC Universal subsequently partnered with Craig Piligian and Pilgrim Films & Television, Inc. to produce a series on the Sci-Fi Channel based on the plaintiffs' materials. The show, called Ghost Hunters, stars Jason Hawes as the leader of a team of investigators who travel across the country to study paranormal activity. The complaint alleged that the defendants engaged in unauthorized use of the plaintiffs' materials, in violation of their exclusive rights under federal copyright law. In addition, it alleged several state-law claims, two of which are relevant here: (1) that "by producing and broadcasting" Ghost Hunters, the defendants breached an "implied agreement not to disclose, divulge or exploit the Plaintiffs' ideas and concepts without the express consent of the Plaintiffs, and to share with the Plaintiffs…the profits and credit for their idea and concepts," and (2) that the defendants breached the plaintiffs' confidence "by taking the Plaintiffs' novel ideas and concepts, exploiting those ideas and concepts, and profiting therefrom to the Plaintiffs' exclusion." The district court concluded that the complaint alleged facts sufficient to state a federal copyright claims, but that federal copyright law preempted the plaintiffs' state-law breach-of-implied-contracts and breach-of-confidence claims. The court dismissed the state-law claims with prejudice and without leave to amend. In August 2008, the plaintiffs amended their copyright claim and added Universal Television Networks as a defendant. The parties, however, subsequently stipulated to voluntary dismissal of the amended copyright claim with prejudice and the district court dismissed the claim accordingly. With no remaining claims to be adjudicated, the district court entered final judgment in favor of the defendants. The USCA affirmed. As the district court correctly recognized, the complaint was deficient because it alleged state-law claims that are preempted by federal copyright law. The district court thus did not abuse its discretion by denying the plaintiffs' leave to amend. O'Scannlain (author) and Tallman, Circuit Judges, and Lefkow, District Judge. H. Miller of Los Angeles, CA, for the plaintiffs-appellants; G. Title of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) SECURITIES FRAUD: USA v. Laurienti, 07-50240 (9th Cir. June 16, 2010). Hampton Porter Investment Bankers, LLC, was a securities broker-dealer firm registered with the SEC. In the late 1990s and early 2000s, Hampton Porter's owners and top-level managers engaged in what is known as a "pump and dump" scheme. Certain publicly traded companies granted Hampton Porter (or its owners) large blocks of free, or deeply discounted, stock. In return, Hampton Porter drove up the price of these thinly traded stocks by pressuring unsuspecting clients into purchasing shares, by strongly discouraging clients from selling shares, and by refusing in some instances to execute clients' shares. Meanwhile, Hampton Porter and others who stood to benefit from the scheme sold their shares at artificially inflated prices. When the stock market fell sharply in 2000, Hampton Porter's scheme crashed with it. Hampton Porter went out of business in 2001. After an investigation, the government indicted Hampton Porter's owners, managers, and senior brokers. The indictment alleged that the defendants participated in securities fraud conspiracy, in violation of 18 USC Sec. 371, 15 USC Sec. 78j(b), and 15 USC Sec. 78ff and, by incorporation, 17 CFR Sec. 240.10b-5. The indictment alleged that the "purpose of the conspiracy was to enrich the defendants and their co-conspirators by means of the fraudulent sales of securities to the customers of Hampton Porter." The indictment alleged additional counts against individual defendants in connection with specified stock purchase for acts committed "in furtherance of the fraudulent scheme." The government's investigation uncovered overwhelming evidence that the criminal conspiracy existed and that the owners and managers were complicit. The owners and managers pleaded guilty to various charges and, in plea agreements, agreed to testify against the senior brokers who are defendants here. These senior brokers then pleaded not guilty, and the district court presided over a 14-day jury trial. Much of the testimony and documentary evidence at trial concerned the defendants' receipt of "bonus commissions" when a client purchased shares of four targeted stocks, referred to by the defendants as "house stocks." The commission structure worked as follows. On the purchase of all stocks, the clients paid a sales commission-typically $100; the brokers fully disclosed that commission, and the client's copy of the transaction ticket reflected that commission. Out of that sales commission, Hampton Porter paid its brokers a predetermined percentage, typically 50%, for a resulting regular commission of $50. However, as an incentive to the brokers to push house stocks, Hampton Porter offered brokers a "bonus commission" in addition to the regular commission. The bonus commission was typically 5% of the purchase price of the house stock. Bonus commissions were paid directly by Hampton Porter, not by the clients. Neither the brokers nor the transaction tickets disclosed to clients the existence of bonus commissions. Thus, a client's purchase of, say, $30,000 worth of stock would result in either a total commission of $50 or a total commission of $1,550-depending only upon whether the stock purchase was a house stock. In addition, bonus commissions could be lost. If, for example, the client sold shares of a house stock, the broker would lose the bonus commission earned on the original purchase of the house stock. Brokers attempted to avoid the loss of the bonus commission in several ways. First, they dissuaded clients from selling the house stock. Second, if the broker could find another client to purchase the house stock, he executed a "cross-trade" between clients. Although the specifics of the transaction were unknown to the two clients, the selling client sold his or her shares of the house stock to the purchasing client. In this way, the total number of shares owned by Hampton Porter clients as a group would be unaffected. Third, in some instances, the broker executed unauthorized purchases of the house stock by another, unsuspecting client. At trial, the government introduced overwhelming and uncontested evidence that the defendants knowingly received bonus commissions. Several of the defendants' former clients testified that the defendants used high-pressure sales tactics to persuade them to buy house stocks and that the defendants strongly discouraged the sale of house stocks. Former clients also testified to unauthorized purchases in their accounts and other illicit behavior by the defendants, such as lying and failing to carry out their express instructions. Finally, the government introduced uncontested evidence that all the defendants except Laurienti regularly executed trades without the necessary licenses. The jury found the defendants guilty on all counts. Although the jury convicted each defendant of more than one count, the district court imposed only one sentence by operation of Sentencing Guidelines Sec. 3D1.2(d), which mandates that "counts involving substantially the same harm shall be grouped together." The district court imposed sentences ranging from 30 months imprisonment to 52 months' imprisonment. Each sentence was below the corresponding Guidelines range. The district court also ordered that each defendant pay restitution in amounts ranging from approximately $300,000 to $2.7 million. The defendants appealed. The USCA affirmed the convictions, but vacated and remanded the sentences and restitution orders for resentencing and recalculation of restitution. First, the USCA noted that under Chiarella v. USA, 445 US 222 (1980), a party has a duty to disclose material "inside information" to another party only if there is a fiduciary relationship or a similar relationship of trust and confidence between the parties-at least with respect to alleged violation of Subsections (a) and (c) of Rule 10b-5. USA v. Szur, 289 F.3d 200, 211 (2nd Cir. 2002), applied the general Chiarella rule to the specific context in the present case: a broker's failure to disclose commissions. The In Szur, the Second Circuit held that when dealing with a claim of fraud based on material omissions, it is settled that a duty to disclose "arises [only] when one party has information that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them." The USCA agreed with the Second Circuit that, when a relationship of trust and confidence exists between a broker and a client, a broker must disclose all facts material to that relationship. It thus adopted the Second Circuit's approach and held that the general Chiarella rule applies to a broker's duty to disclose material information: A broker has a duty to disclose material information about a stock purchase if the broker and client have a fiduciary relationship or a similar relationship of trust and confidence. Second, the USCA acknowledged that the loss calculation need be only a reasonable estimate. In the context of this case, however, the USCA was not persuaded that the "reasonable estimate" requirement allowed it to overlook the district court's many errors, particularly because many of the errors suffered from logical defects. So long as imperfections are logical and not prone to overwhelming the final result, they are permissible. But where, as here, the imperfections are illogical, such as the failure to offset gains in certain house stocks, it is impossible to tell whether the ultimate estimate is reasonable or not. Having chosen to calculate the actual loss for a subset of victims tied to each defendant, the government could not argue that its flaws in calculation were irrelevant simply because it could have calculated loss differently. On the other hand, the government made it clear to the court and the defendants that its loss calculations could greatly exceed the loss calculations that it actually submitted to the district court. The defendants nevertheless chose to appeal the government's calculation method. Because it remanded for resentencing on an open record, the USCA said the government could present evidence concerning any calculation methods consistent with the Sentencing Guidelines, the USCA's decision, and the government ethical obligations. Silverman and Graber (author), Circuit Judges, and Scullin, District Judge. D. Riordan of San Francisco, CA, for the defendants-appellants; E. Meltzer of Washington, DC, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

5) BANKRUPCY: In re Retz, 08-60023 (9th Cir. June 4, 2010). Brendon Retz formed Timberland Construction, Inc. ("TCI") in 1994. TCI performed development and construction work in the Whitefish, Montana, area. Retz was TCI's sole shareholder. For the first few years of operations Retz kept the books for TCI. Donald Abbey had been a California real estate investor for over 35 years. He had taken part in some 10,000 real estate transactions and had interests in over 60 companies. In 2001, Abbey decided to build a multi-million dollar residence in Montana. In order to maintain control over the construction and save money on the project, he decided to form a new construction and development company with Retz. In early 2001, Retz and TCI entered into an oral agreement with Abbey to form Timberland Construction, LLC ("TCLLC"). TCLLC began operations in 2001. The TCLLC Operating Agreement, which had an effective date of July 1, 2001, was finalized and executed in March 2002 after extensive negotiations. Abby and TCI were the governing members of TCLLC. The Operating Agreement provided that Abbey would contribute $300,000 to TCLLC, while TCI would contribute all its assets and liabilities. Abby provided the first $100,000 in March 2001 and provide the remaining $200,000 upon the execution of the Operating Agreement in 2002. In May 2003, Abbey ran into Retz on the "comp" floor of the Bellagio Resort & Casino in Las Vegas, Nevada. Abbey testified that he was shocked that someone who earned only $40,000 a year had been given a complementary room at the Bellagio, and became suspicious of Retz's behavior. He thus traveled to Montana in July 2003 and spoke with representatives at several local banks about Retz and TCLLC. Abbey discovered that TCLLC had entered into partnerships and loan agreements in violation of the Operating Agreement, which required Abbey's written permission. In August 2003, Abbey brought William Matteson, an accountant with whom Abbey had worked in California, to Montana for the purpose of assessing TCLLC's financial condition and operations, ensuring Retz's compliance with the Operating Agreement, verifying that TCI had made the required contributions to TCLLC, and investigating a draft audit report prepared by Deloitte & Touche regarding potential overcharges on the Shelter Island Project. Matteson found numerous accounting irregularities in the TCLLC books and suspicious transfers between Retz and TCLLC. Retz testified that the transfers were short term loans he made TCLLC so that the company could meet its payroll obligations, followed by repayment of the loans. However, the loans and repayments were not clearly identified in the accounting system, and Matteson could not confirm that the amounts in and out of the business account matched. Due to Matteson's discoveries, Abbey began withdrawing financial support form TCLLC and shutting down the Shelter Island Project. Soon thereafter, Retz learned that Abbey was planning to file a lawsuit against him and decided to preemptively file a lawsuit against Abbey in state court. Abbey counter-sued Retz and his brother Ryan. The state court appointed a receiver for TCLLC, effective September 3, 2003. The state court litigation was subsequently stayed when Retz filed a voluntary Chapter 7 bankruptcy petition on Feb. 12, 2004. On March 8, 2005, Bankruptcy Trustee Samson and Abbey, along with several banks, filed this adversary proceeding in bankruptcy court seeking to stop Retz's discharge. After a five-day trial, the bankruptcy court found for the plaintiffs and denied Retz's discharge under 11 USC Sec. 727(a)(2)(A), (a)(2)(B), (a)(4)(A), and (a)(5). Retz appealed to the BAP, which affirmed on all four grounds, any one of which would have been sufficient to deny the discharge. Retz appealed, arguing that the bankruptcy court and the BAP erred in denying him a general discharge because: (1) there was insufficient evidence of his intent to hinder, delay, or defraud his creditors because he relied in good faith on the advice of counsel in his actions during the bankruptcy proceedings; (2) any missing documents were easily obtainable by the Trustee; (3) one of the improper transfers did not involved an asset of the debtor; and (4) Retz's failure to file his tax returns was not his fault. The USCA affirmed the bankruptcy court's denial of Retz's discharge. Retz had participated in the transfer after the date of the filing of the bankruptcy petition of North Forty Resort Corp. ("NFRC") assets to North Forty Resort, LLC, which greatly reduced the value of the bankruptcy estate's 6% ownership of the corporation, with the intent to hinder, delay, or defraud a creditor in violation of Sec. 727(a)(2)(B). Considering all the evidence presented at trial regarding the transfer of the NFRC assets, the bankruptcy court's finding that Retz intended to hinder, delay, or defraud his creditors by completing the transfer was not illogical, implausible, or without support in the record. Retz also maintained that he should not be penalized for the lack of records because all the documents were in the hands of the Receiver or Trustee, or were readily obtainable by them. He essentially maintained that the Trustee was obligated to investigate complex financial transactions and unfinished books without any help from the debtor. However, Retz failed to explain how the Trustee should have found the relevant information, if Retz himself was unable to discover it in the 28,000-plus pages of records he provided to the Trustee: "A petitioner cannot omit items from his schedules, force the trustee and the creditors, at their peril, to guess that he has done so-and hold them to a mythical requirement that they search through a paperwork jungle in the hope of finding an overlooked needle in a documentary haystack." In re Tully, 818 F.2d 106, 111 (1st Cir. 1987). Paez, Tallman (author), and M.D. Smith, Circuit Judges. W. Taleff of Great Falls, MT, for the debtor-appellant; M. Black of Missoula, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) BANKRUPCY: In re Southern California Sunbelt Developers, Inc., 08-56570 (9th Cir. June 9, 2010). Thirteen entities filed involuntary bankruptcy petitions against IBT International ("IBT") and Southern California Sunbelt Developers, Inc. ("SCSD") under Chapter 11 of the Bankruptcy Code, 11 USC Sec. 303. The bankruptcy court dismissed the involuntary petition against SCSD after finding that the petitioners' claims were the subject of a bona fide dispute. See 11 USC Sec. 303(b). It then dismissed an involuntary petition against IBT on a motion by petitioning creditors. In its response to that motion, IBT reserved its right to recover costs, attorneys' fees and damages under 11 USC Sec. 303(i) in the event the motion was granted. After the petitions were dismissed, the alleged debtors filed motions against the petitioning creditors for costs, attorneys' fees and punitive damages under Sec. 303(i). The bankruptcy court awarded $745,000 in costs and fees, including those incurred by the alleged debtors in litigating the Sec. 303(i) motions themselves (so-called "fees on fees"), and $130,000 in punitive damages-$65,000 in each action. Relying on its inherent power, the court also awarded sanctions against Donald Grammer and David Tedder, two individuals who exercised control over the petitioning creditors. The court held Grammer and Tedder jointly and severally liable for the alleged debtors' costs and attorneys' fees, including the costs and fees incurred by the alleged debtors in litigating the Sec. 303(i) motions. Grammer, Tedder and the thirteen petitioners appealed. The USCA affirmed the judgments against the 13 petitioning creditors, finding that the bankruptcy court had properly concluded that Sec. 303(i) permits an award of attorneys' fees for a Sec. 303 action as a whole, including fees incurred to litigate claims for fees and damages under Sec. 303(i)(1) and (2). The bankruptcy court also properly concluded that Sec. 303(i) permits an award of punitive damages under Sec. 303(i)(2)(B) in the absence of an award of actual damages under Sec. 303(i)(2)(A). The USCA also affirmed in part and reversed in part the judgments against Grammer and Tedder. The bankruptcy court properly held Grammer and Tedder jointly and severally liable for the costs and attorneys' fees the debtors incurred in obtaining dismissal of the involuntary petitions. However, the bankruptcy court erred in holding Grammer and Tedder liable for the debtors' costs and fees incurred on the Sec. 303(i) motions themselves. Schroeder, Fisher (author), and N.R. Smith, Circuit Judges. T. Dressler of Los Angeles, CA, for the appellants; W. Burd of Santa Ana, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) ENVIRONMENTAL LAW: Arizona Cattle Growers Association v. Salazar, 08-15810 (9th Cir. June 4, 2010). In 1993 the Mexican Spotted Owl was listed as a threatened species under the Endangered Species Act ("ESA"). The listing decision prompted a series of lawsuits alternately seeking to compel the FWS to designate critical habitat for the owl and, following the FWS's designation of habitat, attacking that designation. The first lawsuit was in 1995 to compel the FWS to designate critical habitat and resulted in the FWS's issuing a final rule designating 4.6 million acres of critical owl habitat, a designation that was challenged in court and revoked in 1998. After another lawsuit was filed to compel the FWS to designate habitat, the FWS proposed a rule in 2000 to designate 13.5 million acres of critical habitat and in 2001 the agency promulgated a final rule that again designated 4.6 million acres. That rule was later struck down and, rather than propose a new rule, the FWS reopened the comment period on the rule it proposed in 2000. In 2004 the FWS designated 8.6 million acres of critical habitat. It is this designation, the 2004 Final Rule, that the Arizona Cattle Growers Association challenged in the current action. The Association moved for summary judgment to set aside the 2004 Final Rule as invalid on several grounds, only two of which were appealed. First, it argued that the FWS impermissibly treated areas in which no owls are found as "occupied" under the ESA and, in so doing, bypassed the statutory requirements for designating unoccupied areas. Second, the Association challenged the FWS's determination of the economic impacts of the designation, arguing primarily that the FWS applied an impermissible "baseline" approach that did not account for economic impacts of the critical habitat designation that are also attributable to the listing decision. The district court rejected the Association's arguments and granted the appellees' cross-motion for summary judgment. The Association appealed, arguing that the FWS unlawfully designed areas containing no owls as "occupied" habitat and that the FWS calculated the economic impacts of the designation by applying an impermissible "baseline" approach. The USCA affirmed. It found no fault with the FWS's designation of habitat for the Mexican Spotted Owl. The FWS did not impermissibly treat unoccupied areas as "occupied," and it permissibly applied the baseline approach in analyzing the economic impact of the critical habitat designation. The FWS permissibly interpreted the word "occupied" in the ESA to include areas where the owl was likely to be present and that, applying this definition, the FWS designated only "occupied" areas. B. Fletcher (author), Canby, and Graber, Circuit Judges. N. James of Phoenix, AZ, for the plaintiff-appellant; A. Mergen of Washington, DC, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

8) ENVIRONMENTAL LAW / CERCLA: USA v. APW North America, 08-55996 (9th Cir. June 2, 2010). The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") requires certain polluters to pay for cleaning up contaminated sites. After identifying a contaminated site, the federal EPA and state environmental agencies typically negotiate with potentially responsible parties ("PRPs") over their shares of the responsibility for cleanup ("response") costs. CERCLA allows PRPs to seek contribution from one another in order to apportion response costs equitably, but CERCLA bars contribution claims against PRPs that have obtained administrative or judicially approved settlements with the government. CERCLA thus provides an incentive for PRPs to settle by leaving non-settling PRPs liable for all of the response costs not paid by the settling PRPs. At issue here was a question that has split the federal courts: May a non-settling PRP intervene in litigation to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from the settling PRP? The USCA joined the Eighth and Tenth Circuits in holding that the answer is "yes." The USCA found that the Applicants have a right to intervene under Fed. R. Civ. Proc. 24(a)(2) and Sec. 113(i) of CERCLA to protect their interests in contribution and in the fairness of the proposed consent decree. Under Rule 24(a)(2), Applicants bear the burden of showing that their interests are not adequately represented by the existing parties. Under Sec. 113(i), the government bears the burden of showing the non-settling PRPs' interests are adequately represented. The USCA held that, under either standard, the interests of the non-settling PRPs were not adequately represented by the existing parties. It thus reversed and remanded for further proceedings consistent with its opinion. Hall, W. Fletcher, (author), and Clifton, Circuit Judges. M.A. Thurston of Washington, DC, for the plaintiffs-appellants; B. Langa of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) ENVIRONMENTAL LAW: Butte Environmental Council v. U.S. Army Corps of Engineers, 09-15363 (9th Cir. June 1, 2010). After years of researching potential sites for economic development, the City of Redding, California, decided to construct a business park on a 678-acre site located on protected wetlands along Stillwater Creek, and started to draft an environmental impact statement ("EIS"). The site contained critical habitat for several species listed under the Endangered Species Act ("ESA") under the jurisdiction of the Secretary of the Interior, including the threatened vernal pool fairy shrimp, the endangered vernal pool tadpole shrimp, and the threatened slender Orcutt grass. These ESA-listed species occupy the site's vernal pools-shallow depressions that fill with rainwater in the fall and winter and then dry up in the spring. Their critical habitat also consists of unoccupied upland areas that serve as important sources of nutrients in the vernal pool ecosystem. In February 2005, with an eye to satisfying the conditions of both the Clean Water Act ("CWA") and the ESA, the City issued a draft Environmental Impact Statement ("EIS") regarding the proposed development. This draft EIS served as a precursor to the City's eventual application to the Army Corps of Engineers for a Sec. 404 permit, which the City was required to obtain because the proposed development would entail the discharge of dredged or fill material into protected wetlands. 33 USC Sec. 1344. The document also served to address the effects of the proposed development on ESA-listed species, which the City was required to protect because the project would involve the expenditure of federal grant money. The Corps reviewed and commented on the City's draft EIS. It stated that the City's proposed site did not appear to be the least environmentally damaging practicable alternative, as there may be less environmentally damaging alternatives for this project-alternatives that have fewer impacts to water while still meeting the project's purpose and need appear to exists. The Corps argued that the screening criteria used for selecting practicable alternative were too restrictive to determine the least environmentally damaging practicable alternative and eliminate reasonable alternatives such as "alternative 4"-a site the City had rejected because a 100-acre parcel could not be developed there without filling or altering a 8,3000-foot-long tributary. Finally, the Corps noted that "further efforts to address and reduce direct, indirect, secondary and cumulative impacts within the preferred and alternative project sites appear to be practicable." The EPA made similar comments in April and June of 2005. Like the Corps, the EPA questioned the City's rejection of alternative 4, arguing that the City had not "articulated a compelling need for a contiguous 100-acre parcel as a centerpiece of the project. Skeptical that a business park would be "impracticable unless conceived as a single geographic entity," the EPA urged the City to consider developing several smaller, "disaggregated" parcels instead of a single large one. After considerable give-and-take, the Corps at last concluded that the proposed site was the least environmentally damaging practicable alternative. In its view, the City had clearly shown that there was no practicable alternative site available, including no "practicable alternatives having less adverse impact on the aquatic ecosystem." It also concluded that issuance of the Sec. 404 permit would not be contrary to the public interest. It thus granted the City's application. The U.S. Fish and Wildlife Service ("FWS") conducted a separate review of the project. It acknowledged that "the proposed project would contribute to a local and range-wide trend of habitat loss and degradation," and "to the degradation and reduction of the acreage of the remaining listed vernal pool species habitat." Nevertheless, the FWS concluded that the project, as proposed, "is not likely to jeopardize the continued existence of the … vernal pool fairy shrimp, vernal pool tadpole shrimp, and slender Orcutt grass." The FWS further concluded that "the proposed project would not result in the adverse modification or destruction of critical habitat" for those species. In June 2008, the Butte Environmental Council, a nonprofit environmental organization, filed suit against the Corps and the FWS in federal district court. It sought judicial review under the Administrative Procedure Act of the Corps' decision to issue a permit for the City's proposed project and the FWS's biological opinion that the project would not adversely modify the critical habitat for endangered and threatened species. The district court granted summary judgment in favor of the agencies and the City. It held that the Corps was neither arbitrary no capricious when rationally concluding that the site was the least environmentally damaging practicable alternative, and that the FWS's biological opinion stated "a rational connection between the facts found and the conclusion reached." The USCA affirmed. At issue on appeal was whether the decisions of the Corps and EPA approving the construction of the business park on protected wetlands in California were arbitrary and capricious. Congress enacted the CWA to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 USC Sec. 1251(a). The Supreme Court has upheld as reasonable the Corps' interpretation of the CWA "to require permits for the discharge of fill material into wetlands adjacent to the 'waters of the United.'" USA v. Riverside Bayview Homes, Inc. 474 US 121, 139 (1985). The Corps may issue a permit pursuant to Sec. 404 of the CWA only if conditions set forth in implementing regulations developed by the Corps and the EPA are met. 33 USC Sec. 1344(b). These regulations provide that "no discharge of dredged or fill material shall be permitted if there is a practical alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environment consequences." 40 CFR Sec. 230.10(a). Under the regulations, "an alternative is practicable if it is available and capable of being done after taking into consideration costs, existing technology, and logistics in light of overall project purposes. Id. Sec. 230.10(a)(2). The USCA found none of the Council's arguments that the Corps' decision was arbitrary and capricious to be persuasive. O'Scannlain (author), Trott, and Paez, Circuit Judges. D. Mooney of Davis, CA, for the plaintiff-appellant; K. Kastorf of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) ENVIRONMENTAL LAW: Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Dept. of Interior, 07-16336 (9th Cir. June 18, 2010). The plaintiffs, Te-Moak Tribe of Western Shoshone of Nevada, a federally-recognized Indian tribe, the Western Shoshone Defense Project ("WSDP"), and the Great Basin Mine Watch ("GBMW") appealed the district court's denial of their motion for summary judgment, and its grant of summary judgment to the U.S. Department of the Interior ("DOI"), the Bureau of Land Management ("BLM"), several officers of the BLM, and intervenor Cortez Gold Mines, Inc. ("Cortez"). The plaintiffs maintained that the BLM's approval of Cortez's amendment to a plan of operations for an existing mineral exploration project in Nevada, the Horse Canyon/Cortez Unified Exploration Project ("HC/CUEP"), violated the National Historic Preservation Act ("NHPA") and the Federal Land Policy and Management act ("FLPMA"). The USCA affirmed the district court's summary judgment with respect to the plaintiffs' NHPA and FLMA claims. However, because the BLM approved the exploration project in violation of NEPA, the USCA reversed the district court as to that matter and remanded so that the district court could enter summary judgment in favor of the plaintiffs on this NEPA claim and, in turn, remand the matter to the BLM for further proceedings. Thomas and Paez (author), Circuit Judges, and Ezra, District Judge. R. Flynn of Lyons, CO, for the petitioners; R. Tenpas of Washington, DC, for the respondents; R. Tuchman of Denver, CO, for the respondent-intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) ANTITRUST / PRICE FIXING: Shames v. California Travel and Tourism Commission, 08-56750 (9th Cir. June 8, 2010). The California Travel and Tourism Commission ("CTTC") is a "nonprofit mutual benefit corporation" created by state legislation to expand and develop California's tourism industry. In 2006, the passenger rental car industry proposed changes to state bill A.B. 2592 which were subsequently enacted. See Cal. Civil Code Sec. 1936.01. Under the bill, the passenger rental car industry became the fifth tourism industry category under the CTTC scheme and agreed to pay a high assessment fee, thereby greatly increasing the CTTC's budget. In exchange for this increased funding, the passenger rental car industry would be allowed to "unbundled" fees charged to customers and to itemize such fees separately from the base rental rate. The adopted changes allowed the companies to "pass on some or all of the assessment to customers." Sec. 13995.65(f). The plaintiffs maintained that this led to the imposition of two specific fees on rental car customers. First, pursuant to an agreement between the passenger rental car industry and the CTTC, a 2.5% tourism assessment fee was added to the cost of a car rental which, in turn, helped fund the CTTC. The plaintiffs alleged that the CTTC then colluded with the passenger rental car industry, fixing rental car prices by passing on the 2.5% tourism assessment fee to customers. Second, the passenger rental car industry "unbundled" the already-existing airport concession fee charged to customers to pay airports for the right to conduct business on airport premises; this fee has traditionally amounted to 9% of the rental price. The bill permitted the passenger rental car industry to charge this concession fee separately from the base rental rate. According to the plaintiffs, the CTTC also colluded with the passenger rental car industry in passing the 9% concession fee on to customers as a uniform add-on charge. The Plaintiffs alleged that these agreements between the rental car companies and the CTTC constituted price fixing of rental car rates in violation of the Sherman Act Sec. 1. The plaintiffs also argued that the CTTC committed a host of California's Bagley-Keene Open Meeting Act violations, specifically, failing to adhere to detailed notice requirements and impermissibly holding closed session meetings. Granting the CTTC's Rule 12(b)(6) motion to dismiss, the district court dismissed all claims against the CTTC, finding that it was entitled to state action immunity from antitrust liability and declining to exercise supplemental jurisdiction over the remaining Bagley-Keene Act state law claims. The district court also held that the dismissed claims against the CTTC were adequately severable from the pending claims against the passenger rental care companies and entered final judgment for the CTTC. The plaintiffs appealed the dismissal of their claims against the CTTC, alleging that the CTTC engaged in antitrust price-fixing in violation of the Sherman Act Sec. 1, and improper meeting practices in violation of the Bagley-Keene Open Meeting Act. The USCA affirmed. It agreed with the district court that the CTTC was shielded from antitrust liability under the "state action immunity" doctrine, and had properly declined to exercise supplemental jurisdiction over the Bagley-Keene claims. The standard to apply in analyzing whether the CTTC's alleged conduct was pursuant to a "clearly articulated" state policy is to examine whether the agency acted pursuant to its statutory authority, and, if so, whether the anticompetitive conduct was foreseeable given that statutory authorization. The USCA also agreed with the district court's conclusion that the CTTC's alleged anticompetitive conduct constituted an authorized and reasonable foreseeable result, and thus satisfied the first prong of California Retail Liquor Dealers Association v. Medcal Aluminum, Inc., 445 US 97 (1943), as being conduct pursuant to a "clearly articulated state policy." Medcal's second prong ensures that private price-fixing agreements with little or no state involvement do not displace "the national policy in favor of competition." 445 US at 106. The Medcal court was primarily concerned that without adequate state supervision, private parties would act to further their own interests as opposed to the interests of the state. Id. See also Patrick v. Burget, 486 US 94, 101 (1988) (stating that without active state supervision, "there is no realistic assurance that a private party's anticompetitive conduct promotes state policy, rather than merely the party's individual interests." However, when municipalities and other state entities (as opposed to purely private actors) are acting under the direction of state law, the Court has held that they do not need to satisfy Midcal's active state supervision prong. Town of Hallie v. City of Eau Claire, 471 US 34, 46 (1985). Despite the mix of public and private interests at play, looking at the totality of the circumstances, the CTTC possesses enough of the qualities of a state agency, coupled with state oversight in the form of the governor-appointed commissioners and Secretary, to hold that the CTTC is exempt from Midcal's "active state supervision" requirement. The USCA thus affirmed the district court's determination that the CTTC is entitled to state action immunity from antitrust suit. Finally, the USCA found that the district court's dismissal of the Bagley-Keene Open Meeting Act claim was not an abuse of discretion as the district court properly exercised its discretion and declined to employ supplemental jurisdiction, reasoning that it had already "dismissed the only federal claim against the CTTC," and noting that the Act "may implicate questions better addressed by the California courts in the first instance." Hawkins (author), Thomas, and McKeown, Circuit Judges. R. Fellmeth of San Diego, CA, for the plaintiffs-appellants; W. Cameron of Sacramento, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) LABOR LAW / JURISDICTION: Addington v. US Airline Pilots Association, 09-16564 (9th Cir. June 4, 2010). This case arose out of a bitter seniority dispute precipitated by the merger of US Airways and America West Airlines ("AWA"). Following the merger, the companies' respective seniority lists had to be integrated to create a single list for the merged airline. The US Airways pilots ("East Pilots") and the AWA pilots ("West Pilots"), who were both represented by the Air Line Pilots Association ("ALPA"), began exploring methods of integration pursuant to ALPA's policy regarding mergers. The East Pilots generally had been hired earlier and favored a strict date-of-hire system, while the West Pilots sought a seniority system that would take into consideration the relative pre-merger strength of their airline over US Airways. Ultimately the union submitted the internal dispute to arbitration. The East Pilots, who were dissatisfied with the seniority integration proposal ALP arrived at through the union's internal arbitration, led a successful effort to decertify ALPA and to replace it with a new union, US Airline Pilots Association ("USAPA"). Headed by an East Pilot, USAPA was constitutionally committed to pursuing date-of-hire principles, in contrast to ALPA, whose merger policy committed it to pursuing the arbitrated seniority list. Certain West Pilots brought this action against the newly-certified union alleging that USAPA breached its duty of fair representation ("DFR") by negotiating a contract that would impermissibly favor the East Pilots at the expense of the West Pilots. A jury fund that the union had breached its DFR, and the district court, after a bench trial on the remaining equitable issues, granted the West Pilot plaintiffs an injunction against USAPA. On appeal, USAPA maintained that the district court never had jurisdiction because the West Pilots' claim was not ripe. The USCA agreed. Although no published case has expressed addressed when a DFR claim based on a union's negotiation of a Collective Bargaining Agreement ("CBA") become ripe, the USCA applied the general principles underlying the ripeness doctrine and took guidance from decisions regarding the related issue of when a DFR claim accrues for statute of limitations purposes in the context of the administration of a CBA. The USCA thus concluded that the plaintiffs' DFR claim was not yet ripe. This case presented contingencies that could prevent effectuation of USAPA's proposal and the accompanying injury. At this point, neither the West Pilots nor USAPA could be certain what seniority proposal ultimately would be acceptable to both USAPA and the airline as part of a final CBA. Likewise, it was not certain that proposal would be ratified by the USAPA membership as part of a new single CBA. Not until the airline responds to the proposal, the parties complete negotiations, and the membership ratifies the CBA will the West Pilots actually be affected by USAPA's seniority proposal-whatever USAPA's final proposal ultimately is. Because these contingencies make the claim speculative, the issues are not yet fit for judicial decision. The USCA also concluded that withholding judicial consideration does not work a direct and immediate hardship on the West Pilots. Dissenting, Judge Bybee agreed with much of the majority opinion and concurred that, in general, the court should not decide DFR challenges until "after a contract has been agreed upon." But, this is an unusual case and, in Judge Bybee's view, an exception to the general rule that the court evaluate the DFR based on the fairness of the actual representation as memorialized the CBA. Here, the absence of a CBA is itself powerful evidence of a DFR violation. The issues are concrete and were well developed in district court proceedings that included a jury trial (for damages) and a bench trial (for equitable relief). Judge Bybee thus would hold that the case is ripe for decision. He would decide the appeal on the merits. Tashima (author), Graber, and Bybee (dissenting), Circuit Judges. A. Jacob of Phoenix, AZ, for the appellant; L. Seham of White Plains, NY, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) ERISA / ATTORNEYS' FEES: Simonia v. Glendale Nissan / Infiniti Disability Plan, 09-56025 (9th Cir. June 24, 2010). Simonia appealed the district court's denial of his motion for attorneys' fees under ERISA. See 29 USC Sec. 1132(g). The USCA affirmed the district court's grant of summary judgment in favor of his former employer's health care plan in Simonia v. Glendale Nissan / Infiniti Disability Plan, No. 09-55569, 2010 WL 1896455 (9th Cir. May 12, 2010). The USCA stayed consideration of his attorneys' fees appeal pending the Supreme Court's disposition of Hardt v. Reliance Standard Life Insurance Co., No. 09-448, 2010 WL 2025127, at *3 (May 24, 2010). District court must now determine whether an ERISA fee claimant has achieved "some degree of success on the merits" before awarding fees under Sec. 1132(g). Id. But the Supreme Court expressly declined to foreclose the possibility that, once a court has determined that a litigant has achieved some degree of success on the merits, it may then evaluate the traditional five factors under Hummell v. S.E. Rykoff & Co., 634 F.2d 446 (9th Cir. 1980), before exercising its discretion to grant fees. Because it continues to believe that "district courts should have guidelines to apply in the exercise of their discretion under Sec. 1132(g)," Hummell, 634 F.2d at 453, the USCA held that district courts must consider the Hummell factors after they have determined that a litigant has achieved "some degree of success on the merits." Even assuming that Simonia achieved some degree of success on the merits, the USCA agreed with the district court's conclusion that fees are nonetheless inappropriate after applying the Hummell factors. The USCA thus affirmed the denial of fees to Simonia. O'Scannlain and Tallman (author), Circuit Judges, and Lefkow, District Judge. C. Fleishman of Northridge, CA, for the plaintiff-appellant; D. Maquire of Los Angeles, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

14) FEDERAL CAMPAIGN FINANCE LAW: USA v. O'Donnell, 09-50296 (9th Cir. June 14, 2010). O'Donnell is alleged to have contributed $26,000 of his money in 2003 to the Edwards for President Campaign through 13 individuals-primarily employees of his law firm as well as some of his relatives. According to the indictment, O'Donnell arranged for these individuals to donate $2,000 ostensibly in their own names but with the understanding that he would either advance them funds or reimburse them after the donation was made. In accord with these allegations, the grand jury charged O'Donnell with, inter alia, contributing in the names of others in violation of 2 USC Sec. 441f. The district court dismissed the Sec. 441f counts, and the government appealed. The USCA reversed. At issue on appeal was whether Sec. 441f proscribes only "false name" contributions or, as the government contends, it also prohibits "straw donor" contribution. Section 441f of the Federal campaign finance law says that "no person shall make a contribution in the name of another person." The USCA held that this law prohibits a person from providing money to others to donate to a candidate for federal office in their own names, when in reality they are merely "straw donors." Goodwin, Canby, and Fisher (author), Circuit Judges. AUSA C. Ewell of Los Angeles, CA, for the plaintiff-appellant; G. Terwilliger of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) FIRST AMENDMENT: Blair v. Bethel School District, 08-35895 (9th Cir. June 14, 2010). Since 1999, Blair has served as a publicly elected member of the Bethel School District School Board. There are four other Board members, who are also publicly elected. Members of the Board elect their own president, vice president, and legislative representative. Blair served in each position over the years. Defendant Seigel was hired as superintendent of the District in 2000. Blair had been a persistent critic of Seigel almost from the beginning, repeatedly impugning his integrity and competence. For example, early in Seigel's first term, Blair apparently insinuated to the Board and to the State Auditor that Seigel was defrauding the school district by requesting reimbursement for his moving expenses when in fact Seigel had been moved by the military. Blair is apparently the only Board member who is dissatisfied with Seigel, and since 2005 he has consistently voted against renewing Seigel's contract. On September 25, 2007, the Board voted 4-1 to extend Seigel's contract and to raise his pay. Blair was the lone dissenter. The next day, he explained his dissenting vote to a newspaper reporter, who then quoted Blair in a story saying, "My biggest issue with the superintendent is trust. … I have too many examples to say he's doing a good job." These statements to the reporter were the last straw for his fellow Board members. On October 9, 2007, they voted to remove him as vice president. Blair then sued the School District, Seigel, and the other Board members under 42 USC Sec. 1983. He alleged that he had been retaliated against for exercising his First Amendment rights to free speech and petition. The district court granted summary judgment for the defendants, finding that Board's action did not prevent Blair from continuing to speak out, vote his conscience, and serve his constituents as a member of the Board. The USCA agreed with this finding and with the district court's more general conclusion that the First Amendment does not shield public figures from the give-and-take of the political process. To be sure, the First Amendment protects Blair's discordant speech as a general matter; it does not, however, immunize him from the political fallout of what he says. Rawlinson and Callahan, Circuit Judges, and Burns (author), District Judge. P. Lindenmuch of Tacoma, WA, for the plaintiff-appellant; W. Coats of Tacoma, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) FIRST AMENDMENT: Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, 06-55750 (9th Cir. June 9, 2010). The facts giving rise to the controversy in this case can be traced back to ACORN v. City of Phoenix, 798 F.3d 1260, 1273 (9th Cir. 1986), where the Association of Community Organization for Reform Now ("ACORN"), a non-profit political action organization, raised First and Fourteenth Amendment challenges to a Phoenix ordinance that read: "No person shall stand on a street or highway and solicit, or attempt to solicit, employment, business or contributions from the occupants of any vehicle." Id. at 1262. According to ACORN, the challenged ordinance deterred its members from "tagging." Tagging "involves an individual stepping into the street and approaching an automobile when it is stopped at a red traffic light. The individual asks the occupants of the vehicle for a contribution to ACORN and distributes a slip of paper, or 'tag,' providing information about ACORN and its activities." Id. The Ninth Circuit determined that the restrictions imposed by the Phoenix ordinance were content neutral, narrowly tailored to serve a significant government interest, and left open ample alternative channels of communications. Id. at 1267-71. The court thus concluded that the ordinance was a reasonable time, place, or manner restriction which did not violate ACORN's First Amendment rights. Id. at 1273. The court also rejected ACORN's argument that the ordinance was facially overbroad because it would deter not only ACORN's tagging at intersections, but also persons soliciting "on the sidewalks of Phoenix, during parades or demonstrations, or on streets closed to vehicle traffic." Id. at 1272. Because the ordinance was narrow, and prohibited "only solicitation in the streets 'from the occupants of any vehicle,'" the court concluded that ACORN's over-breadth argument ran "completely contrary to the language of the ordinance," id. at 1273. Some eight months after the Phoenix case was decided, Redondo Beach's city attorney proposed that Redondo Beach adopt an ordinance "identical to" the one just approved in the Phoenix case. A memorandum from the city attorney to the mayor explained that "the City has some extreme difficulties with persons soliciting employment from the sidewalks along the Artesia corridor over the last several years. … There can be little question that traffic and safety hazards occur by this practice." A later memorandum by the same city attorney stated that the "ordinance was designed to alleviate sidewalk congestion and traffic hazards which occurred when large numbers of person congregated on the sidewalks during the rush hours to obtain temporary employment." Using the City of Phoenix decision as guide in drafting its own ordinance, Redondo Beach enacted Redondo Beach Municipal Code Sec. 3-7.1601. On November 16, 2004, Comite de Jornaleros de Redondo Beach ("Comite") and the National Day Laborer Organizing Network (NDLON") filed the present suit in district court. Comite identifies itself as "an unincorporated association comprised of day laborers who … regularly seek work in the City of Redondo Beach." NDLON identifies itself as "a nationwide coalition of day laborers and the agencies that work with day laborers." Their complaint alleged that the Redondo Beach ordinance deprived them and other of free speech rights guaranteed by the First and Fourteenth Amendments, and sought injunctive monetary, and declarative relief under 42 USC Sec. 1983 and 28 USC Sec. 2201. The district court issues a TRO, and later a preliminary injunction barring enforcement of the Redondo Beach ordinance. Both plaintiffs and Redondo Beach moved for summary judgment. The district court held that the Redondo Beach ordinance was content neutral, but was nevertheless invalid because it (1) was not "narrowly tailored to promote [Redondo Beach's] interests in traffic flow and safety," and (2) "failed to establish the existence of ample alternative channels of communication." 475 F. Supp. 2d 952, 966-68 (C.D. Cal. 2006). The district court thus granted the plaintiffs' motion for summary judgment, permanently enjoined Redondo Beach from enforcing its ordinance, and ordered that "all fines, penalties, or records of infractions" of the ordinance "be rescinded or removed and restitution provided." Id. at 97. The district court subsequently granted Redondo Beach's motion to stay the order granting partial relief pending resolution of the appeal. It also awarded attorneys' fees to the plaintiffs pursuant to 42 USC Sec. 1988. The USCA reversed. It held that the Redondo Beach ordinance was no more broad than the Phoenix ordinance. Citing the Phoenix case, and cases affirming its central holding, the USCA held that the Redondo Beach ordinance is a reasonable time, place, or manner restriction. The district court erred in determining that it was not bound by the Phoenix decision, and, as a result, erred in holding that the Redondo Beach ordinance was not narrowly tailored and did not leave open ample alternative channels of communication. The USCA also held that the Redondo Beach ordinance is not unconstitutionally vague. Because the USCA reversed the district court's summary judgment in favor of the appellees and held that the appellants are entitled to summary judgment in their favor, the USCA reversed the district court's award of attorneys' fees to the appellees. Judge Wardlaw dissented from the majority's hold that the Redondo Beach ordinance is a valid time, place, and manner restriction upon speech occurring on the City's sidewalks and other public ways-the most traditional of public fora. She thought the ordinance was facially overbroad and violative of well-established principles of the Circuit's First Amendment jurisprudence. Wardlaw (dissenting) and Ikuta (author), Circuit Judges, and Beistline, District Judge. P. Hwang of San Francisco, CA, for the appellee; J. Fleming of Los Angeles, CA for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) IMMIGRATION / HIV / AIDS: Almaraz v. Holder, 08-74497 (9th Cir. June 22, 2010). Lopez, a native and citizen of Guatemala, entered the U.S. in 1999. In 2004, he was charged with removability by the Dept. of Homeland Security as an alien present in the U.S. without having been admitted or paroled. At his hearing, Lopez admitted the allegations against him and conceded removability. However, he argued that he was eligible for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), on the basis of an event that occurred in 1984. Lopez testified that ten armed men attacked him and his family in his home in Guatemala in 1984 when he was 14 years old. They beat him and one of his sisters and searched his house for weapons. The men also questioned his family about their involvement with guerrillas. When the men left, they took Lopez's parents with them. He said he never saw them again. He later learned that his uncle had also been attacked and kidnapped the same night. After the incident he moved from his village to Guatemala City. The Immigration Judge ("IJ") found that Lopez was not eligible for asylum because his application was not filed within one year of his arrival in the U.S. and he had not established that there were exceptional circumstances sufficient to overcome this time bar. Because Lopez had lived safely in Guatemala City for 13 years after the incident, and the civil conflict in Guatemala had been resolved, the IJ denied his withholding of removal and CAT claims as well. Lopez was granted voluntary departure. Lopez's appeal to the BIA was dismissed in 2005 and he did not seek review. However, three years later, he filed a motion to reopen based on new evidence. His motion explained that he was diagnosed with HIV and was "afraid to return to Guatemala because of widespread violence against [people] living with HIV and the fact that if he [were] forced to return he would not have [proper] access to medicine." The BIA denied this motion in October 2008. The USCA also denied the petition. First, it found Lopez's motion to reopen time-barred because it was not filed within 90-days of the BIA's 2005 decision. The fact that Lopez was diagnosed with HIV did not alone satisfy the requirement of 8 CFR Sec. 1003.2(c)(3)(ii). He was diagnosed with HIV in 2001, several years before his immigration hearing. He argued that he was afraid to mention at the hearing that he had HIV because he thought it would frustrate his efforts to remain in the United States. This belief was grounded, in part, on his view that people with HIV are stigmatized in Guatemala and live in constant fear of retaliation. Although it found Lopez's hesitation to reveal his diagnosis understandable, the USCA said that did not render old information suddenly new. Evidence of the diagnosis was available to be presented at the hearing, Lopez's failure to do so notwithstanding. Second, even if the diagnosis qualified as new information because the stigma occasioned a delay in reporting, a change in Lopez's health is a change in his personal circumstances, not a change in circumstances arising in the country of nationality. Even if a change in personal circumstances is sufficient to file a successive asylum petition under 8 USC Sec. 1158(a)(2)(D), a change in country conditions still must be demonstrated if the accompanying motion to reopen is untimely. Finally, Lopez urged the USCA to consider his HIV positive status in light of the Dominican Republic - Central America - U.S. Free Trade Agreement ("CAFTA"), which he argued qualifies as a material change in circumstances arising from his country of nationality. Lopez argued that a party to CAFTA may restrict third party access to confidential data "concerning safety or efficacy," with the result that the development and availability of generic medicines for HIV / AIDS will be significantly delayed. Lopez maintained that the price brand name versions of such medicines, if they are even available in Guatemala, will be exorbitantly high and he will be unable to afford treatment if he is removed to Guatemala. The USCA did not discount the possibility that such a result could qualify as a material change in country conditions sufficient to grant a motion to reopen, but held that it need not address that issue here as the BIA found that Lopez failed to establish that the passage of CAFTA was material to his claims. The documents he submitted-even if accepted as true-were inconclusive. In addition, there was no support in the record Lopez's claim that the enactment of CAFTA constituted a form of governmental persecution against people with HIV / AIDS. The USCA thus concluded that the BIA determinations that Lopez's arguments were speculative and unsupported by evidence in the record were neither arbitrary, irrational, nor contrary to law. The BIA did not abuse its discretion by denying Lopez's untimely motion to reopen. Thompson and McKeown (author), Circuit Judges, and Timlin, District Judge. R. Rodriguez of Seattle, WA, for the petitioner; I. Gould of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) IMMIGRATION: Mendoza v. Holder, 08-71007 (9th Cir. June 2, 2010). Mendoza has been a lawful permanent resident of the U.S. since 1993. In 2003, he was convicted of shoplifting in violation of Arizona law and possession of a controlled substance with intent to distribute in violation of Utah law. After realizing that it had made a clerical error by convicting Mendoza of possession with intent to distribute, the Utah court corrected the conviction to simply possession. Meanwhile, the Department of Homeland Security ("DHS") had initiated removal procedures against him in 2004 based on the theory that his conviction was a crime relating to a controlled substance and that it was an aggravated felony. The DHS did not use the shoplifting conviction as the basis for the 2004 immigration proceedings. After Mendoza submitted the corrected conviction for simple possession, the Immigration Judge ("IJ") held that he had not been convicted of an aggravated felony and was thus eligible for cancellation. The DHS did not appeal that decision. In 2006, Mendoza had another encounter with the law and was convicted of solicitation to possess marijuana for sale in violation of Arizona law. The DHS served him with a second Notice to Appear, asserting that he was subject to removal from the U.S. for having been convicted of two crimes of moral turpitude pursuant to 8 USC Sec. 1227(a)(2)(A)(ii). The two convictions were the 2003 shoplifting conviction and the 2006 conviction for solicitation to possess marijuana for sale. The IJ found that the doctrine of res judicata barred the DHS from using the shoplifting conviction and thus terminated the removal proceedings. The DHS appealed. The Board of Immigration Appeals ("BIA") sustained the appeal. It held that res judicata did not apply and that Mendoza was removable. It remanded for further proceedings. Before the IJ, Mendoza requested that his case be terminated because his shoplifting conviction had been vacated in the meantime. The IJ found that the conviction was vacated for rehabilitative purposes only and remained applicable as one of two crimes of moral turpitude. The IJ thus ordered Mendoza removed to Mexico. The USCA denied Mendoza's petition for review. The vacatur of the conviction for shoplifting in Arizona was for rehabilitative purposes and thus the government could use that conviction in Mendoza's subsequent removal proceeding. Hug (author) and Bybee, Circuit Judges, and Gwin, District Judge. J. Pope of Phoenix, AZ, for the petitioner; A. Anderson of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) IMMIGRATION: USA v. Villavicencio-Burruel, 09-50204 (9th Cir. June 14, 2010). Villavicencio-Burruel was ordered removed in 2006 following proceedings before an immigration judge. After removal, he returned to the U.S. without permission. In 2008, he was indicted for illegal reentry following deportation in violation of 8 USC Sec. 1326, and for making false claims that he had U.S. citizenship in violation of 18 USC Sec. 911. He was convicted and sentenced to 33 months in custody and three years of supervised release. He appealed his conviction and the government cross-appealed the sentence. The USCA affirmed the conviction, vacated the sentence, and remanded for resentencing. It reviews de novo a district court's denial of a motion to dismiss the indictment under 8 USC Sec. 1326 when the motion is based on an alleged deprivation of due process in the underlying removal proceedings. To prevail in a collateral attack on the underlying removal order in a motion to dismiss, Villavicencio, as a threshold matter, had to show that he exhausted his administrative remedies. However, he conceded that he did not exhaust his administrative remedies and urged the court to excuse his non-exhaustion, contending that due process requires that noncompliance with Sec. 132(d)'s exhaustion requirement will only bar a collateral attack on a prior removal order if the defendant's waiver of the administrative appeal was considered and intelligent. The USCA was not persuaded. Villavicencio never waived his right to appeal to the BIA at all; rather his counsel expressly reserved that right twice during the removal hearing but declined to exercise that right before expiration of the time to appeal. The USCA also reviewed Villavicencio's Confrontation Clause claims de novo. He argued that the warrant of removal is testimonial and that the government's reliance on the warrant to prove that he was physically removed from the U.S. violated his constitutional right to confront an adverse witness. The USCA noted that it has previously held that a warrant of removal is non-testimonial and that its admission does not violate the Confrontation Clause. Villavicencio's conviction thus stood. Finally, the USCA addressed the government's cross-appeal of the sentence. It maintained that the district court erred by concluding that Villavicenciao's conviction for making criminal threats under California Penal Code Sec. 422 is not categorically a conviction for a "crime of violence" within the meaning of Sentencing Guidelines Sec. 2L1.2. Thus, the controlling issue for purposes of the cross-appeal was whether Sec. 422 is a "crime of violence" under Sec. 2L1.2. To decide this issue, the USCA applied the categorical analysis set out in Taylor v. USA, 495 US 575, 602 (1990). Under Taylor, "in order for a violation of the state statue to qualify as a predicate offense, the full range of conduct covered by the state statute must fall within the scope of the federal statutory provision." To demonstrate that the predicate offense criminalizes conduct outside of the generic definition of a crime of violence, a defendant "must at least point to his own case or other cases in which the state courts in fact did apply the statue in the special (non-generic) manner for which he argues." Villavicencio argued that Sec. 422 is not categorically a crime of violence under Guideline Sec. 2L1.2 because Sec. 422 reaches threats to property. The USCA was not persuaded by this argument. A threat to damage property or to commit a crime, without more, cannot meet the subjective- and objective- intent elements required of Sec. 422. Evaluating the plain text of Sec. 422, and finding no case where the application of Sec. 422 was inconsistent with the generic definition of a crime of violence, the USCA held that a conviction for making a criminal threat under Sec. 422 is categorically a conviction for a crime of violence under Guideline sec. 2L1.2. Canby, Gould (author), and Ikuta, Circuit Judges. AUSA B. Castetter of San Diego, CA, for the plaintiff-appellee / cross-appellant; K. Hughes of San Diego, CA, for the defendant-appellant / cross-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) IMMIGRATION: Shin v. Holder, 06-73782 (9th Cir. June 11, 2010). At issue here was a non-citizen's eligibility for a waiver of inadmissibility under Sec. 212(k) of the Immigration and Nationality Act ("INA"). Section 212(k) applies to "immigrants who were unaware of their ineligibility for admission and who could not have discovered the ineligibility by exercise of reasonable diligence." Senica v. INS, 16 F.3d 1013, 1014 (9th Cir. 1994). The Shins, both citizens and nationals of South Korea, are siblings who unknowingly obtained lawful permanent residence through the criminal conspiracy of a former officer of the Immigration and Naturalization Service ("INS"), Leland Sustaire. In removal proceedings, the Shins sought a Sec. 212(k) waiver of inadmissibility due to the invalid immigrant visas that were procured for them by their mother through the Sustaire scheme. The BIA found the Shins ineligible for Sec. 212(k) relief because they never possessed valid immigrant visas and were not "otherwise admissible" within the meaning of the statute. The USCA reversed the BIA and remanded for a ruling on the Shins' application for relief, finding that nothing in 8 USC Sec. 1182(k) precludes the Shins from seeking a waiver of inadmissibility. The Shins were inadmissible under the specific statutory provision referenced within Sec. 212(k) because they had no valid immigrant visa and, apart from the visa defect, they were otherwise admissible. This reading of the statute gave meaning to the threshold clauses of the statue. Compliance with the statutory requirements rendered the Shins eligible for a waiver of inadmissibility. Judge Wallace dissented from the majority's opinion as he doubted that it represented the plain meaning of Sec. 1182(k). He favored remanding to the BIA so that the agency entrusted with the administration of the immigration laws could first address the question of statutory interpretation presented here. Wallace (dissenting), Graber, and McKeown (author), Circuit Judges. J. Marandas of Lake Oswego, OR, for the petitioner; A. Igoe of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) IMMIGRATION / SENTENCING: USA v. Buzo-Zepeda, 09-50190 (9th Cir. June 25, 2010). Buzo-Zepeda is a citizen of Mexico and an alien. In July 2006, he was convicted in California on a state drug trafficking offense and sentenced to 270 days in county jail followed by three years' formal probation. Following his conviction, he was deported from the U.S. on two separate occasions: September 2006 and July 2007. In May 2008, the Los Angeles Police Department arrested him for contempt of court for violating a permanent gang injunction. At that time, Buzo-Zepeda was still on probation for the state drug trafficking conviction. The state court revoked his probation and sentenced him to an additional term of imprisonment of 194 days. In order that he might serve this additional time in the county jail without contravening California Penal Code Sec. 19.2 (which allows a maximum term of confinement in county or city jail of no more than one year), Buzo-Zepeda "waived back" his original time served, asking the court to ignore the fact he had already been sentenced to 270 days in the country jail. While he was serving this additional sentence, the federal prosecutor charged him with being an alien found in the U.S. following deportation, in violation of 8 USC Sec. 1326. Buzo-Zepeda pleaded guilty to the charge on January 9, 2009. At the sentencing hearing, the district court found that Buzo-Zepeda had been sentenced to more than 13 months imprisonment for his California drug trafficking charge. He was thus subject to a three point increase pursuant to Sentencing Guidelines Secs. 4A1.1(a) and 4A1.2(k). He argued at sentencing and on appeal to the Ninth Circuit, that he could not be considered to have been sentenced to more than 365 days imprisonment on his state conviction, as a matter of California law. The sentencing court rejected this contention. At issue on appeal was a question of law: whether California's statutory cap on jail sentences and subsequent California case law, allowing the "waiver" of previous jail time served (in order to circumvent California's cap on the amount of time a defendant may spend in a city or county jail), affect the federal criminal history calculation under Sec. 4A1.1. See People v. Johnson, 147 Cal. Rptr. 55 (Ct. App. 1978) (creating a procedure wherein a sentencing court could circumvent the statutory cap on the total amount of time a defendant could be imprisoned in a country or city jail). The USCA held that a "Johnson waiver" in California state court has no effect on the determination of whether a defendant qualifies for a point increase under Sec. 4A1.1. A "Johnson waiver" is a unique California state court procedure, wherein the defendant voluntarily forfeits the credit for time already served in jail, so that the state sentencing court may impose additional time in jail on the conviction (as opposed to sending the defendant to prison) without violating California Penal Code Sec. 19.2. Guidelines Sec. 4A1.1 requires that a defendant previously sentenced to a term of imprisonment exceeding one year and one month be assessed an additional three points to his criminal history score. The USCA concluded that whether or not a defendant has "waived back time," under a "Johnson waiver," has no relevance to the term of imprisonment calculation under Guidelines Sec. 4A1.1. The USCA thus affirmed the sentence imposed by the district court. Schroeder, Fisher (author), and N.R. Smith, Circuit Judges. DFPD D. Chen of Los Angeles, CA, for the defendant-appellant; AUSA G. Cardona of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) FORFEITURE: In re Jordan, 09-72379 (9th Cir. June 1, 2010). Jordan and others sought a writ of mandamus ordering the district court to direct the government to return motorcycles seized in connection with a criminal investigation. The USCA denied the petition. Mandamus is not warranted where the petitioner fails to show that the district court clearly erred. The only issue on appeal was whether the district court clearly erred in determining that, when the government has failed to provide notice of a seizure in accordance with 18 USC Sec. 983(a)(1)(A), 983(a)(1)(F) does not compel the government to return seized property before initiating a judicial forfeitures proceeding. The petitioners conceded that the Ninth Circuit has not addressed this issue before. The district court had surveyed decisions from other circuits, which were divided, before concluding that the statute does not require the return of seized property. The USCA found that the district court did not clearly err in that determination. Moreover, the petitioners failed to show that they had "no other adequate means" to achieve the return of their motorcycles. The USCA noted that the petitioners could litigate the civil judicial forfeiture action. They maintained that such relief is not an adequate substitute for the immediate return of the motorcycles pursuant to Sec. 983(a)(1)(F) because a forfeiture action would not conclude for another two to three years. To demonstrate that other relief is not adequate, however, the petitioners had to show that they will suffer a greater harm than "the mere cost and delay that are regrettable, yet normal, features of our imperfect legal system." Calderon v. U.S. Dist. Court, 163 F.3d 530, 535 (9th Cir. 1998), overruled on other grounds by Woodford v. Garceau, 538 US 202, 205 (2003). The petitioners could also request the immediate return of their motorcycles under 18 USC Sec. 983(f)(1). But, they argued that such a request would be futile because the district court retains the discretion as to whether to grant relief under Sec. 983(f)(1). The USCA noted that an alternative remedy need only be available, not guaranteed. B. Fletcher, Pregerson (author), and Graber, Circuit Judges. E. Honig of Marina Del Ray, CA, for the petitioners; AUSA S. Welk of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) PERFORMANCE ENHANCING DRUGS / PERJURY: USA v. Bonds, 09-10079 (9th Cir. June 11, 2010). In 2001, Barry Bonds hit 73 home runs for the San Francisco Giants. Also in 2001, as well as in prior and succeeding years, BALCO Laboratories in San Francisco recorded, under the name "Barry Bonds," positive results of urine and blood for performance enhancing drugs. In 2003, Bonds swore under oath he had not taken performance enhancing drugs. The government thus tried to prosecute him for perjury. But to succeed it had to prove that the tested samples BALCO recorded actually came from Bonds. The government tried to prove the source of the samples with the indisputably admissible testimony of a trainer, Greg Anderson, that Bonds identified the samples as his own before giving them to Anderson, who took them to BALCO for testing. Anderson refused to testify, however, and was jailed for contempt of court. The government then offered the testimony of the BALCO employee, James Valente, to whom Anderson gave the samples. Valente would testify Anderson brought the samples to the lab and said they came from Bonds. But the district court ruled that this was hearsay that could not be admitted to establish the truth of what Valente was told. Fed. R. Evid. 802. The government thus brought an interlocutory appeal seeking to establish that the Anderson statements fell within an exception to the hearsay rule. The district court also ruled that because Anderson's statements were inadmissible, log sheets on which BALCO recorded the results of the testing under Bonds' name, were also inadmissible to prove the samples were Bonds'. The government challenged that ruling as well. The USCA reviewed for abuse of discretion and affirmed. The district court excluded BALCO log sheets purportedly showing Bonds testing positive for steroids because even if the log sheets qualified as business records, they were not relevant because the government could not link the samples to Bonds without Anderson's testimony. That is, they could not in fact relate to Bonds unless the data was authenticated as relating to Bonds. The log sheets were business records reflecting that BALCO recorded test results in the name of Barry Bonds. The records themselves, however, go no further toward showing that the actual samples came from Bonds than Valente's testimony about what Anderson told him. If anything the logs, when offered for the truth of the identification of the sample donor, created an additional level of hearsay rather than removing one. The district court did not abuse its discretion in refusing to admit the log sheets as evidence that the samples listed were Bonds. Judge Bea dissented. He thought that although the statements in question appeared to be hearsay, they are not hearsay under Fed. R. Evid. 801(d) because they are statements of "admissions" of a party-opponent. The statements are not hearsay, Judge Bea said, for two reasons that were incorrectly rejected by the district court and then again by the majority. First, Anderson was Bonds' agent and his statement to Valente concerned a matter within the scope of his agency and made during the existence of his agency. Second, Anderson was authorized by Bonds to identify the samples as coming from Bonds under Rule 801(d)(2)(C). As it was normal and necessary to make sure accurate test results were procured, Anderson was impliedly authorized to identify the samples as coming from Bonds. Because Anderson made these statements for the purpose of insuring accuracy of the test results, they were imputed to party-opponent Bonds as authorized admissions, and were admissible in evidence against him under Rule 801(d)(2)(C). Judge Bea thought the district court also made several errors of law in granting Bonds' motion in limine, the most egregious of which was to hold that independent contractors are not agents as a matter of law. The majority compounded these errors by acknowledging that the district court had erred, and then improperly reviewing the district court's legal conclusion under a deferential standard of review. The correct approach, Judge Bea thought, was first to identify whether the district court erred in identifying the correct legal standard or in applying the correct legal standard to the facts of a case. If the district court so erred, then the USCA does not defer to how it decided the case; rather, it reverses, unless the error was harmless. See USA v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc). Here no one claimed that barring this evidence from admission was harmless error. Less egregious, but equally prejudicial in result, was the failure of the district court to identify and apply the correct rule of law to determine whether Anderson was authorized by Bonds to identify his samples to BALCO. Rather than consider the totality of the task entrusted by Bonds to Anderson-procure tests and their results-the district court characterized Anderson as solely a trainer and delivery courier. Failure properly to consider the task entrusted to Anderson by Bonds resulted in legal error under Rule 801(d)(2)(C). Judge Bea thus thought that the district court's decision to exclude Anderson's foundational statements regarding the provenance of the blood and urine samples that Anderson brought to BALCO should be reversed. Those statements are admissible in evidence under Rules 801(d)(2)(C) and 801(d)(2)(D). However, Judge Bea did not also think that the USCA should hold the BALCO logs and test results admissible in evidence at this point. Bonds raised before the district court several other reasons why that evidence should not be admitted in evidence. The district court did not reach these issues as it had decided that Anderson's statements were inadmissible. Schroeder (author), Reinhardt, and Bea (dissenting), Circuit Judges. B. Valliere of San Francisco, CA, for the plaintiff-appellant; D. Riordan of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) SENTENCING: USA v. Gamboa, 09-30217 (9th Cir. June 11, 2010). Gamboa appealed from the denial of his petition for a writ of audita querela. He argued that the district court erred in determining that a writ of audita querela was unavailable to him to challenge his sentence. The USCA affirmed, concluding that the district court did nor err in determining that it lacked the authority to consider the merits of the petition, as the writ of audita querela presented a claim regarding the legality of his sentence that is cognizable under 28 USC Sec. 2255. The USCA affirmed, concluding that under the law of the Ninth Circuit, a federal prisoner may not challenge his or her sentence pursuant to a petition for a writ of audita querela if the requested relief and be obtained under Sec. 2255. Alarcon (author), W. Fletcher, and Rawlinson, Circuit Judges. J. Zulauf of Seattle, WA, for the defendant-appellant; AUSA M. Morggan of Seattle, WA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

25) RESTITUTION / TAXATION: USA v. Batson, 09-50238 (9th Cir. June 21, 2010). For three years Batson operated a tax return preparation business that falsified tax returns in order to precipitate underserved tax refunds. She was indicted on one count of conspiracy to commit tax fraud in violation of 18 USC Sec. 371, six counts of willfully aiding and assisting in the preparation of fraudulent tax returns in violation of 26 USC Sec. 7206(2), and two counts of making a false statement to a government agent in violation of 18 USC Sec. 1001(a)(2). Batson subsequently pled guilty to one count of aiding and assisting in the preparation of a single fraudulent tax return, the loss caused by that conduct apparently being somewhere between $4,571 and $8,028. Batson stipulated in her plea colloquy that the taxpayers for whom she had prepared returns collectively received at least $965,673 in refunds to which they were not entitled. The district court sentenced Batson to 12 months of imprisonment followed by 12 months of supervised release as well as a fine of $6,000 and a special assessment of $100. The court reserved decision on the issue of restitution, indicating that it would amend the order of judgment and commitment to include an order of restitution if necessary. Meanwhile, the government reduced its request for restitution from $965,673 to $176,854, an amount representing only those overpayments not amendable to collection from the payees by the Internal Revenue Service. Some three months later, the district court issued an amended order of judgment and commitment identical to its predecessor in all respects except for the addition of a condition of supervised release requiring Batson to pay restitution in the amount of $176,854. Batson appealed. The appeal presents a question of first impression in the Ninth Circuit, namely whether federal courts may order restitution as a condition of supervised release for offenses set forth in The Internal Revenue Code. Having been subject to such an order, Batson argued that the authority of the federal courts to order restitution is limited to restitution authorized or required by the Victim and Witness Protection Act ("VWPA") and the Mandatory Victims Restitution Act ("MVRA"), neither of which included restitution for violations of the IRC. The USCA rejected Batson's contention and held that the district court was authorized to order restitution for a violation of the IRC as a condition of supervised release by 18 USC Sec. 3563(b)(2), which grants courts broad discretion to order restitution as a condition of probation, and Sec. 3583(d), which makes that grant applicable to supervised release. The USCA agreed with Batson, however, and the government conceded, that restitution so ordered must be limited to the offense of conviction when, as here, that offense does not involve an element of a "scheme, conspiracy, or pattern of criminal activity." 18 USC Sec. 3663A(a)(2). For this reason, the USCA vacated the restitution order and remanded to the district court for the limited purpose of determining the proper amount of restitution due for the offense of conviction and for entry of an order accordingly. Canby (author), Hall, and O'Scannlain, Circuit Judges. AUSA J. Chou of Los Angeles, CA, for the plaintiff-appellee; DFPD K. Young of Los Angeles, CA, for the defendant-appellant.(Download the full text of this decision at www.ce9.uscourts.gov/)

26) HABEAS CORPUS: Murdoch v. Castro, 05-55665 (9th Cir. June 21, 2010). Murdoch was convicted in California state court of first-degree murder with a robbery-murder special circumstance. He was sentenced to life imprisonment without parole. The California Court of Appeal affirmed the conviction, and denied Murdoch's habeas petition. The California Supreme Court then denied Murdoch's petition for review. Before trial commenced, the prosecutor had informed the court that a prosecution witness and participant in the crime, Dino Dinardo, wrote a letter to his attorney claiming that Murdoch was not involved in the crime and that he, Dinardo, had been coerced into implicating Murdoch. The state court ruled that Murdoch could not have access to the letter because it was protected under California's attorney-client privilege. Murdoch then filed a federal habeas petition, which the district court dismissed. On Murdoch's first appeal, the USCA vacated the order denying Murdoch's habeas petition and remanded to the district court stating: "Today, we address a situation where a substantial showing has been made that, depending upon the content of Dinardo's letter the Confrontation Clause and attorney-client privilege are potentially at odds-a set of facts the Supreme Court has not yet examined. Its precedents, however, clearly provide that evidentiary privileges or other state laws must yield if necessary to ensure the level of cross-examination demanded by the Sixth Amendment. Murdoch v. Castro, 365 F.3d 699, 702 (9th Cir. 2004) ("Murdoch I"). The USCA then ruled that if the contents of Dinardo's letter "are as generally described by the prosecutor and as Murdoch believes," then Murdoch "has arguably met his burden" of showing that the jury might have received a significantly different impression of Dinardo's credibility had Murdoch been able to pursue his proposed line of cross examination. Id. at 705. General impeachment for bias implicated Dinardo's reliability to a lesser extent than actual statements inconsistent with his testimony, such as those which the letter purportedly contained. Id. Without knowing the contents of the letter, however, the USCA could not determine whether Murdoch's confrontation rights had been violated. The USCA thus remanded to the district court with instructions that it obtain the letter, inspect it in camera, and determine whether the state court's decision to deny Murdock access to the letter violated Murdoch's Sixth Amendment right of confrontation. Id. at 706. On remand, the magistrate judge, in his report and recommendation, found that there was no constitutional violation because the letter's intrinsic probative value was low, given that, of the four factual assertions in the letter, "trial testimony rebutted the first three, and half of the forth." Thus, the exclusion of the letter from evidence did not substantially diminish Murdoch's right to effective cross examination. The magistrate judge also concluded that the decision to exclude the letter was subject to harmless error analysis, and that under the standard of Brecht v. Abrahamson, 507 US 619, 637 (1993), there was no "grave doubt" as to whether the jury would have reached a different result had the letter been admitted. While acknowledging that "Dinardo's testimony was crucial," the magistrate judge found that "Dinardo's prior inconsistent statement was inextricably linked with other statements which either conflicted with other evidence or were demonstrably false." He thus concluded that any errors resulting from the exclusion of the letter was harmless. The district court adopted the magistrate judge's findings and recommendation and denied Murdoch's habeas petition. On Murdoch's second appeal, a divided three-judge Ninth Circuit panel affirmed the district court's denial of habeas relief. Murdoch II, 489 F.3d 1063. The majority pointed out that it was bound under the "law of the case" doctrine by the Murdoch I holding that, "under the right set of facts, Supreme Court precedent suggests the Sixth Amendment right to confrontation could support admission of the letter, even against a valid claim of attorney-client privilege." Id. at 1068. Although the Murdoch I court had not explicitly held that it was clearly established under Supreme Court law that the Confrontation Clause might support the introduction of the letter as evidence, the majority in Murdoch II interpreted this as a necessary implication of Murdoch I that was binding on the panel as the law of the case. Id at 1068 & n.2. The panel then held that Murdoch was able to cross-examine Dinardo effectively despite not having access to the letter, and that therefore the Sixth Amendment did not require that the letter be released to him. Id. at 1069-70. The USCA then granted Murdoch petition for rehearing en banc. Sitting en banc, it held that because the Supreme Court has not clearly established whether and in what circumstances the attorney-client privilege must give way in order to protect a defendant's Sixth Amendment confrontation rights, the California state court could not have unreasonably applied clearly established Supreme Court law when it denied Murdoch access to the letter. To the extent Murdoch I holds otherwise, the USCA overruled it. The USCA thus affirmed the district court's judgment. Concurring, Judge Silverman thought this case was built on a false premise-that there was somehow a conflict between Dinardo's right to claim the attorney-client privilege under California law and Murdoch's federal constitutional right of confrontation. Judge Kozinski, joined by Judges Fletcher and Wardlaw, and also by Judges Thomas and McKeown in part, dissented. He said: "If it wasn't for bad luck, Murdoch wouldn't have no luck at all. He's wakin' up this mornin' in jail when there's strong proof he ain't done nothing wrong." Judge Kozinski said he would "certainly defer to a jury's contrary verdict if it had seen this evidence and convicted Murdoch after a fair trial, presided over by a fair judge, followed by an appeal where the justices consider all of [Murdoch's] constitutional claims. But Murdoch had none of these." Judge Thomas, joined by Judge McKeown, also dissented separately. He thought that, for the reasons articulated by Judge Kozinski, the California Court of Appeals decision was an objectively unreasonable application of clearly established federal law, as determined by the U.S. Supreme Court in a series of cases. He thus joined that part of Judge Kozinski's dissent. Kozinski (dissenting), Kleinfeld, Tashima (author), Thomas (dissenting), Silverman (concurring), McKeown, Wardlaw, W. Fletcher, Callahan, Ikuta, and N.R. Smith, Circuit Judges. S. Amster of Van Nuys, CA, for the petitioner-appellant; DAG R. Maline of Los Angeles, CA, for the respondents-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)