1) TRADEMARK INFRINGEMENT: Au-Tomotive Gold v. Volkswagen, 08-16005 (9th Cir. May 6, 2010). At issue on appeal here was whether the sale by Au-Tomotive Gold ("Auto Gold") of marquee license plates bearing Volkswagen badges purchased from Volkswagen constitutes trademark infringement, or whether the sale was protected by the "first sale" doctrine. Au-Tomotive Gold v. Volkswagen of America, 457 F.3d 1062 (9th Cir. 2006), concluded that Auto Gold's production and sale of automobile accessories bearing Volkswagen's trademarks created a sufficient likelihood of confusion such as to constitute trademark infringement. Id at 1078. That court then remanded to the district court to address Auto Gold's "first sale" and other defenses. On remand, the district court granted summary judgment and a permanent injunction to Volkswagen. The USCA affirmed, holding that the "first sale" doctrine did not provide a defense because Auto Gold's marquee license plates created a likelihood of confusion as to their origin. Auto Gold argued that the public interest is served by the competition that results from the availability of its products. However, the USCA noted that, while it may be true that Auto Gold's activities serve to reduce the price paid by consumers for marquee plates, trademark law protects trademark holders from competition that results from trademark infringement, irrespective of its effect on price. The USCA thus held that the district court correctly granted summary judgment to Volkswagen on its trademark infringement claim. Noonan and W. Fletcher (author), Circuit Judges, and Duffy, District Judge. D. Rosen of Tucson, AZ, for the appellant; G. Good of Tucson, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) COPYRIGHT INFRINGEMENT / VENUE: Brayton Purcell LLP v. Recordon & Recordon, 07-15383 (9th Cir. The opinion filed Aug. 5, 2009 has been withdrawn and superseded by the opinion filed May 28, 2010). Recordon & Recordon ("Recordon") is a San Diego-based law firm composed to two attorneys, Kathy R. Recordon and Stephen G. Recordon. Its practice is limited to Southern California; it does not have, nor in the past has it ever had, a client in the Northern District of California ("the Forum"). Recordon does not conduct any business, own any real or personal property, or maintain a mailing address or telephone listing in the Forum. The Recordons are both licensed to practice in the State of California. Brayton Purcell LLP is a law firm based in Navato, a city located within the Forum. It markets itself as a leader in elder abuse law, with a practice extending throughout California. It maintains an extensive website providing information on its elder abuse practice, which it copyrighted effective October 7, 2002. In July 2004, Recordon contracted with Apptomix, Inc. a web-design company with its principal place of business in San Diego County, to add an elder law section to Recordon's website. Recordon claims that this website "was designed for information only, was passive in nature, and was directed toward prospective clients located in San Diego County." Although Recordon's website includes only San Diego and Orange County phone numbers, the website does not restrict its promotion of the firm to Southern California or San Diego County, nor is there any indication that, as California-licensed attorneys, Recordon's practice is limited within California. Brayton Purcell discovered Recordon's website using "Copyscape," a tool that scours the internet for unauthorized use of copyrighted materials. The elder law section of Recordon's website consisted entirely of material copies verbatim from, and without attribution to, Brayton Purcell's own website. Brayton Purcell filed suit against Recordon for copyright infringement, unfair competition, false advertising, and common law misappropriation. It alleged that Recordon knowingly and purposefully directed their infringing acts to the District in which Brayton Purcell is located, knowing that Brayton Purcell is a resident of that District and would suffer any injuries in that District. Brayton Purcell further alleged that Recordon made commercial use of Brayton Purcell's website and of the copyrighted material and willfully, deliberately and knowingly used Plaintiff's copyrighted work for the purpose of promoting its business and attracting new business in the field of elder abuse law, in competition with Brayton Purcell. Recordon filed a motion seeking, alternatively, dismissal pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction, dismissal pursuant to Fed. R. Civ. P. 12(b)(3) for improper venue, or change of venue under 28 USC Sec. 1404(a). The district court denied Recordon's motion. After a settlement conference, the parties agreed to submit to binding arbitration. The arbitrator found for Brayton Purcell, and the district court entered judgment in its favor. Recordon appealed the district court's denial of its motion to dismiss for improper venue, but not also the entry of judgment on the arbitration award. The USCA noted that in copyright infringement actions, venue is proper in the district in which the defendant resides or may be found. 28 USC Sec. 1400(a). The Ninth Circuit interprets this provision to allow venue in any judicial district where, if treated as a separate state, the defendant would be subject to personal jurisdiction. Columbia Pictures Television v. Krypton Broad. Of Birmingham, 106 F.3d 289 (9th Cir. 1997), rev'd on other grounds, Feltner v. Columbia Pictures Television, Inc., 523 US 340 (1998). Because Recordon would be subject to personal jurisdiction in the Northern District of California if it were treated as a separate state, the USCA held that venue was proper and affirmed the district court's decision. Recordon satisfied the "purposeful direction" prong for specific personal jurisdiction. Because the parties did not dispute the remaining two prongs-that Brayton Purcell's claim arose out of Recordon's purposeful direction and that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice-Recordon is subject to personal jurisdiction in the Northern District of California. The USCA thus held that venue was proper in the Northern District of California pursuant to 28 USC Sec. 1404(a). Dissenting, Judge Reinhardt thought that Recordon had no connection to the Northern District other than its knowledge of Brayton Purcell's residence there, and its website was targeted entirely at potential clients in the Southern District. He thought Pebble Beach Co. v. Caddy, 453 F.3d 1151 (9th Cir. 2006) and Schwarzennegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004), were squarely on point and precluded a finding of "express aiming" in these circumstances. Schroeder, D.W. Nelson (author), and Reinhardt (dissenting), Circuit Judges. J. Zamora of Marysville, CA, for the appellant; D. Fermino of Navato, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) COPYRIGHT INFRINGEMENT: Cosmetic Ideas, Inc. v. IAC / InteractiveCorp, 08-56079 (9th Cir. May 25, 2010). Cosmetic Ideas, Inc. ("Cosmetic"), doing business as Sweet Romance Jewelry Manufacturing, created a piece of costume jewelry known as the "Lady Caroline Lorgnette" ("the necklace"). It began making and selling copies of the necklace in 1999, and continues to make and sell copies through various stores and websites. Cosmetic claims that sometime between 2005 and 2008, IAC / Interactive Corp, Home Shopping Network, Inc., HSN LP, and HSN General Partner LLC (collectively "HSN") began manufacturing and distributing copies of a "virtually identical" necklace. On March 6, 2008, Cosmetic submitted an application to the Copyright Office for registration of its copyright in the necklace, and received confirmation of receipt of the application on March 12, 2008. On March 27, 2008, Cosmetic filed a complaint alleging that HSN had infringed on Cosmetic's copyright in the necklace. Although the Copyright Office ultimately issued Cosmetic a registration certificate for its copyright in the necklace, it did not do so before Cosmetic filed its complaint. On June 2, 2008, HSN moved to dismiss for failure to state a claim and lack of subject-matter jurisdiction. HSN argued that Cosmetic did not possess a valid copyright registration when it commenced its action, and thus the court lacked subject-matter jurisdiction over the claim of copyright infringement. On June 17, 2008, the district court granted the motion to dismiss on the basis that it lacked subject-matter jurisdiction. The district court determined that Cosmetic failed to comply with the registration requirement of 17 USC Sec. 411(a), which makes registration of a copyright a prerequisite to bringing an infringement suit. It then concluded that lack of registration deprived it of jurisdiction. On appeal, Cosmetic maintained that it complied with Sec. 411(a), because it submitted a completed registration application to the Copyright Office before instituting its infringement action. HSN argued that registration occurs only after the Copyright Office has affirmatively granted a registration. The USCA reversed. Reed Elsevier, Inc. v. Muchnick, 130 S.Ct. 1237, 1241 (2010), held that, although Sec. 411(a)'s registration requirement is a pre-condition to filing a claim, it does not restrict a federal court's subject-matter jurisdiction. The district court's dismissal on the basis of lack of subject-matter jurisdiction-which must have been predicated on a conclusion that Cosmetic had not registered its copyright, was error. Also at issue was what it means to "register" a copyrighted work. Is a copyright registered at the time the copyright holder's application is received by the Copyright Office (the "application approach"), or at the time the Copyright Office acts on the application and issues a certificate of registration (the "registration approach")? The Fifth and Seventh Circuits have adopted the application approach. The Tenth and Eleventh Circuits have adopted the registration approach. The USCA was not persuaded that the plain language of the Act unequivocally supported either the registration or application approach. That ambiguity made it necessary to go beyond the Act's plain language to determine which approach better carries out the purpose of the statute. It concluded that the application approach better fulfills Congress's purpose of providing broad copyright protection while maintaining a robust federal register. First, the application approach avoids unnecessary delay in copyright infringement litigation, which could permit an infringing party to continue to profit from its wrongful acts. Section 411(a) allows a party, after applying for registration, to litigate the claim whether the Copyright Office accepts or rejects the registration. This approach avoids a legal limbo and avoids prolonging the period of infringement by allowing a litigant to proceed with an infringement suit as soon as he has taken all of the necessary steps to register the copyright at issue. Second, the registration approach could cause a party to lose its ability to sue. The Act provides a three-year statute of limitations for copyright infringement actions. Thus, under the registration approach, a plaintiff who applied for registration towards the end of the three-year period could see the statue of limitations expire during the time it took the Copyright Office to act on the application. Finally, the USCA found unpersuasive the argument that deference to the Register requires adoption of the registration approach. This argument posits that Congress structured the Act to require the Register's approval or rejection of registration before suit because it wanted the Register to determine the propriety of granting copyright registration in the first instance. However, as Nimmer explains, "the pace of litigation entails that the Copyright Office will typically have granted or refused registration during its pendency." 2 Melville B Nimmer & David Nimmer, Nimmer on Copyright Sec. 7.16[B][1][a][i] (2008). Thus, should the Register determine that it wanted to reject an application already in litigation, it would still have an opportunity to appeal. Id. Furthermore, the Register's decision of whether or not to grant a registration certificate is largely perfunctory and ultimately reviewable by the courts. Therefore, there is no compelling justification for delaying the litigation until after the Register has action on an application. The two processes-registration approval by the Copyright Office and an underlying infringement case in the courts-can occur simultaneously with little or no prejudice to any involved parties. The USCA thus held that receipt by the Copyright Office of a complete application satisfies the registration requirement of Sec. 411(a). This interpretation ensures the broad copyright protection that the 1976 Act provides. It best effectuates the interests of justice and promotes judicial economy. International Kitchen Exhaust Cleaning Assn. v. Power Washers of North American, 81 F. Supp 2d 70, 72 (D.D.C. 2000). This approach also fully accomplishes the central purpose of registration-the compilation of a robust national register of existing copyrights-and at the same time avoids unfairness and waste of judicial recourses. Under the application approach, Cosmetic satisfied Sec. 411(a)'s registration requirement before it instituted this action. Cosmetic alleged in its complaint that the Copyright Office received its complete application on March 12, 2008, weeks before Cosmetic filed its complaint. Thus, Sec. 411(a) does not bar Cosmetics' infringement claim, which should proceed on its merits. Kleinfeld and Tallman, Circuit Judges, and Trager (author), District Judge. E. Cohen of Los Angeles, CA, for the plaintiff-appellant; E. Colbert of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) INTERNET CONSUMER PROTECTION: FTC v. Neovi, Inc., 09-55093 (9th Cir. May 14, 2010). The Federal Trade Commission ("FTC") has broad powers under the FTC Act to prevent businesses from engaging in unfair or deceptive practices. 15 USC Secs. 41-58. This case arose from a website managed by Neovi Data Corporation (dba Qchex.com), G7 Productivity Systems (dba Qchex.com) James Danforth, and Thomas Villwock (together "Qchex"), that created and delivered unverified checks at the direction of registered users. During its six-year run, fraudsters and con artists extensively abused the website. At issue on appeal was the reach of Sec. 5 of the Act, which empowers the FTC to prevent the use of "unfair methods of competition in or affecting commerce." 15 USC Sec. 45(a)(1). The key issue on appeal was whether Qchex was liable for causing substantial injury to consumers that was not reasonably avoidable or out-weighted by countervailing benefits. 15 USC Sec. 45(n). The district court granted summary judgment in favor of the FTC, finding that Ocex's profound lack of diligence, coupled with the affirmative acts of creating and delivering hundreds of thousands of unverified checks-over 150,000 of which were from accounts later frozen for fraud-warranted liability under the Act. Ochex was ordered to disgorge $535,358 in revenue and permanently enjoined from operating any similar business without taking appropriate, specified measures to protect consumers. The USCA affirmed. In an effort to skirt liability, Ochex maintained that because the victims of fraud already had their banking information compromised, they would have had to spend time protecting their accounts whether or not the Ochex system was instrumental in their loss. However, the USCA noted that if Ochex caused or helped to cause substantial injury to consumers, it was no defense to say that consumers nonetheless would have been harmed by someone else. In any case, it is not clear that the fraudsters would have had the means to take advantage of the victims' information without the aid of the Ochex software. Indeed, some of the frauds stemming from the Ochex system involved victims whose account information was not compromised. Ochex had not shown that there existed a material issue of fact as to whether consumer injuries were reasonably avoidable on either end of the fraudulent transaction. The FTC also met its burden of showing that consumer injury was not outweighed by countervailing benefits to consumers or to competition. The FTC offered the declaration of a law professor who had written extensively about electronic commerce, credit cards, and payment systems in support of its claim. This expert explained that the Qchex website was of limited use to an ordinary consumer because "all large banks," offer the same services at a cheaper price and with greater security. He also noted the presence of other third parties in the marketplace-such as PayPal-that provide similar services. The district court found that Qchex failed to counter the FTC expert's testimony. Qchex put forward a short declaration from one of its executives purporting to do so, but the district court found that the declaration was "the epitome of uncorroborated and self-serving testimony," and declined to rely on it to find a genuine issue of fact. The USCA found that the district court was on sound footing concluding that Qchex put forward nothing more than a few bald, uncorroborated, and conclusory assertions rather than evidence. Hawkins, Thomas, and McKeown (author), Circuit Judges. M. Mallow of Los Angeles, CA, for the appellants; L. DeMille-Wagman of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) IRANIAN TRADE EMBARGO: USA v. Mousavi, 08-50454 (9th Cir. May 5, 2010). Mousavi immigrated to the U.S. from Iran in the late 1980s, becoming a legal permanent resident in 1991 and a naturalized citizen in 1999. At times relevant to his appeal, he and his wife owned Mousavi Digital Services, a partnership that installed television satellite systems. He was also president of the Hejrat Educational Center, a non-profit organization that provided services to the Islamic community. He also ran a business that organized travel packages to Mecca for the Hajj pilgrimage by obtaining the necessary visas and arranging flights, hotels, and meals. In 2006, IRS agents discovered evidence of concealed income on Mousavi's 2002 personal and business tax returns. In the resulting investigation, agents found evidence that some of Mousavi's undisclosed income was from a Kuwait company, Al Mal Kuwaiti Company ("Al Mal"), which had entered into an agreement with Mousavi to provide consulting services related to business ventures in Iran. Based on this evidence, a grand jury returned an indictment against Mousavi in 2008, charging him with, among other things, conducting unlawful dealings with Iran in violation of the International Economic Emergency Powers Act ("IEEPA") and Iranian Transaction Regulations ("ITR"), commonly referred to as the U.S. trade embargo against Iran. At trial, the government presented evidence showing that Mousavi contracted with Al Mal to provide consulting services directed at establishing business ventures in Iran. To that end, it produced a document entitled "Agreement," signed by Mousavi and Mohammad Al Sager, Chairman and Managing Director of Al Mal. It was dated June 11, 2002. The Agreement had two attached documents: one entitled "Incentive Plan," also date June 11, 2002; and the other a letter from Al Mal's Assistance General Manager to Akbar Torkan, Chairman and Managing Director of Petroparts, Ltd. in Tehran, Iran, and dated August 25, 2002. In addition, the government presented evidence showing a course of business dealings between Mousavi and Al Mal and showing that Mousavi was a sophisticated businessman, whose ties to Iran and organization of travel in the area would have made him familiar with U.S. restrictions on trade with Iran. This evidence included Mousavi's naturalization application and resume, indicating that he grew up in Iran and was engaged in business there during the period following the embargo. He had high-level contacts in Iran and traveled to Iran regularly after moving to the United States. In addition, evidence indicated that in providing travel packages to persons traveling to Mecca for the Hajj, Mousavi arranged for clients seeking to visit Iran to get visas from the Pakistani embassy. Using that embassy is required, a government witness testified, because there is no Iranian embassy in the U.S as a result of the trade embargo and diplomatic sanctions. Mousavi likewise had to coordinate his own and others' travel to Iran through third-party countries (e.g., Kuwait) because there were no direct flights to Iran from the U.S. as a result of the embargo. The jury returned a guilty verdict on all counts. Mousavi appealed, arguing that the evidence presented at trial was insufficient to allow any rational juror to conclude beyond a reasonable doubt that he was guilty of willfully violating the ITR. Viewing the evidence in the light most favorable to the government, the USCA concluded that the evidence sufficiently supported Mousavi's conviction under 50 USC Sec. 1705 and 31 CFR Sec. 560.206. Gould and Ikuta (author), Circuit Judges, and George, District Judge. G. Harris of San Francisco, CA, for the appellant; AUSA S. De Witt of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) FOREIGN SOVEREIGN IMMUNITIES ACT / ERISA: Embassy of the Arab Republic of Egypt v. Lasheen, 08-15486 (9th Cir. May 10, 2010). Lasheen was an Egyptian national who first came to the U.S. as a visiting scholar in March 2000 and enrolled in the Embassy of Egypt's Health Care Benefits Plan (the "Plan"). Loomis, a Pennsylvania-based corporation authorized to do business in California, contracted with the Embassy's Cultural and Educational Bureau to provide administrative services for the Plan pursuant to a Benefit Services Management Agreement (the "Agreement"). The Agreement provided that "the Cultural and Educational Bureau, Embassy of Egypt" would indemnity Loomis and "hold it harmless against loss, damage, and expense, including attorneys' fees, occasioned by claims, demands or lawsuits brought against [Loomis] to recover benefits under the [Plan]." While enrolled in the Plan, Lasheen was diagnosed with liver cancer. He requested coverage for a liver transplant, but Loomis denied his request on the ground that his health problems resulted from a preexisting condition not covered by the Plan. Lasheen died in December 2000 as a result of his illness. In February 2001, Lasheen's estate sued Loomis and the Egyptian defendants in federal district court, alleging violations of ERISA. The district court entered a default judgment against the Egyptian defendants in April 2001; however, the default was set aside in July 2003 because the 60-day answer time period provided by the Foreign Sovereign Immunities Act ("FSIA"), see 28 USC Sec. 1608(d), had not run at the time the default was entered. In November 2005, Loomis filed a cross-claim against the Egyptian defendants for breach of contract and sought indemnity against Lasheen's claims. After the Egyptian defendants failed to respond to Loomis' cross-claims and again entered default judgment in favor of both Loomis and Lasheen. Loomis also filed a motion for summary judgment against Lasheen, which the district court denied. Loomis appealed the denial of the motion. However, Lasheen and Loomis later reached a settlement agreement conditioned on the district court's determination that the FSIA does not shield the Egyptian defendants from liability. Lasheen and Loomis filed a joint special motion seeking such a declaration. To enable consideration of the joint motion, the district court set aside its default judgment for the limited purpose of allowing the Egyptian defendants to oppose the motion. In February 2008, the district court concluded that the FSIA did not deprive federal courts of jurisdiction over the claims against the Egyptian defendants because the commercial activities and waiver exceptions applied. The Egyptian defendants appealed. The USCA first considered the district court's determination that the FSIA does not immunize the Egyptian defendants against Loomis' claims due to the commercial activities exception. The USCA agreed with the district court that Loomis' claims arouse out of the Egyptian defendants' commercial activities within the U.S., and thus that the Egyptian defendants were not immune. Loomis argued that the Egyptian defendants failed to indemnify it for the costs of litigation against Lasheen as required by the Agreement. By contracting with a company to manage a health benefits plan and agreeing to indemnity that company, the Egyptian defendants did not act with the powers peculiar to a sovereign, but instead acted as private players in the market. Contrary to the Egyptian defendants' assertions, it is irrelevant whether entering into the Agreement was "incidental" to sponsoring an educational program, even assuming that sponsoring an educational program is a sovereign activity. Thus, entering into the Agreement and allegedly breaching that Agreement constituted commercial activity. The USCA affirmed the district court's determination that the FSIA does not deprive the federal courts of subject matter jurisdiction over Loomis' claims against the Egyptian defendants. The USCA reversed the district court's determination that the issue of whether the FSIA immunizes the Egyptian defendants against Lasheen's claims was not before it and remand for it to make that determination in the first instance. Finally, the USCA denied the appellees' requests for costs and attorneys' fees on appeal. Schroeder, Callahan, and Lucero (author), Circuit Judges. R. Andrus of Folsom, CA, for Lasheen; J. Pierce of San Francisco, CA, for the Loomis Company; L. Castner of Los Angeles, CA, for the Embassy. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) AGE DISCRIMINATION IN EMPLOYMENT: Carver v. Holder, 09-35084 (9th Cir. May 27, 2010). Carver, a former Assistant United States Attorney, took an early buy-out from federal service in 1994. He filed a complaint under the Age Discrimination in Employment Act, 29 USC Sec. 633a, against the U.S. Department of Justice ("DOJ") after he sought to be rehired for a vacant position in 1996 with the U.S. Attorney's Office in Tacoma, Washington, and a younger person with less experience was selected to fill the vacancy. The Equal Employment Opportunity Commission ("EEOC") made a finding of age discrimination against the DOJ for its refusal to rehire Carver. The EEOC required, inter alia, that the DOJ offer Carver another AUSA position, pay him back wages and benefits he would have earned during his tenure, and issue a final report of compliance. Though Carver originally agreed with the DOJ's method of calculating back pay and benefits, he was unsatisfied when the DOJ offset his award of accrued federal sick and annual leave with leave he was awarded during his interim public employment with the State of Washington and King County. He complained about the DOJ's calculation, but the EEOC announced that it was satisfied with the payment of $262,304 to Carver and closed the file on his case. Carver then filed suit in the Western District of Washington for enforcement of the EEOC's determination, claiming that he was entitled to more-that is, both the leave awarded to him at his other jobs and the leave that would have accrued had he been re-employed by the DOJ. The district court originally denied the DOJ's motion to dismiss and held that Carver could bring suit for enforcement of the EEOC's award because the DOJ had not yet issued its final report of compliance. However, after the DOJ issued its report and sent it to the EEOC, the district court granted summary judgment against Carver, reasoning that, under 29 CFR Sec. 1614.503(g), it now lacked the ability to hear the case because Carver had received a favorable determination by the EEOC and the DOJ had fully complied with the requirements set forth in the EEOC's decision. Carver took the position that, although he was suing to expand the EEOC's monetary award, he was merely seeking to enforce the remedy. He disclaimed that he was filing a de novo civil action which could potentially reopen both the administrative finding of liability for age discrimination and the remedy ordered by the agency. Carver appealed. The USCA affirmed the district court's determination that the DOJ was entitled to summary judgment. Because the DOJ had fully complied with the EEOC's decision and hence no portion of the order remained unenforced, Carver's only remedy is to being the civil action he denies he is pursuing-a suit for de novo review of his claim. The UCA held that he could not parse his action to increase the remedy without relitigating the liability issue in pursuing his claim in federal court. Kleinfeld, Tashima, and Tallman (author), Circuit Judges. J. Carver of Seattle, WA, for the plaintiff-appellant; M. Mittet of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

8) FIRST AMENDMENT / HARASSMENT IN THE WORKPLACE: Rodriguez v. Maricopa County Community College District, 08-16073 (9th Cir. May 20, 2010). Professor Kehowski sent three emails over a distribution list maintained by the Maricopa County Community College District where he teaches math. Every district employee with an email address received a copy. The plaintiffs, a certified class of the district's Hispanic employees, sued the district, its governing board and two district administrators (the chancellor and the president) claiming that their failure to properly respond to Kehowski's emails created a hostile work environment in violation of Title VII and the Equal Protection Clause. Kehowski's first email had "Dia de al raza" as it subject line and asked, "Why is the district endorsing an explicitly racist event?" "Dia de la Raza" translates as "Day of the Race" and is celebrated by some Hispanics instead of Columbus Day. His next email, sent a week later, began, "YES! Today's Columbus Day! It's time to acknowledge and celebrate the superiority of Western Civilization." Kehowski then offered excerpts from a variety of articles. One quoted Arthur Schlesinger, Jr. as saying that "democracy, human rights and cultural freedom" are "European ideas." Another promoted a theory that "Native Americans actually committed genocide against the original white-skinned inhabitants of North America." Another article argued that "America did not become the mightiest nation on earth without distinct values and discrimination" and asserted that "our survival depends on discrimination." Two days later, Kehowski sent a third email that began, "Ad hominem attacks are the easiest to launch and the most difficult to defendant against." He quoted an email calling his messages "racist" and said: "Boogie-boogie-boo to you too! Racist? Hardly. Realistic is more like it." He then quoted an email he had received which claimed that "most thinking people believe that the European, Christian victory over the Moorish, Islamic (and African) culture in Spain is an example of a victory of a 'backward' culture over one that was more civilized." To that, Kehowski responded: "History has answered quit convincingly which cultures were backward." And he warned "If we don't pull ourselves out of the multicultural stupor, another culture with some pretty unsavory characteristics (here, here, and here) will dominate (here, here, and here). This third email linked to a website maintained by Kehowski on the district's web server. The school's technology policy encouraged faculty to develop district-hosted websites for use "as a learning tool," although faculty members also maintained sites of a personal nature. Kehowski's site declared that "the only immigration reform imperative is preservation of White majority" and urged visitors to "report illegal aliens to the INS." Like his emails, Kehowski's website quoted and linked to articles. One such article critiqued a "shallow and self-contradictory" ideology in which "race must be held meaningless only by whites." Another expressed concern that "the persistent inflow of Hispanic immigrants threatens to divide the United States in to two peoples." Prominent figures in the community condemned and distanced themselves from Kehowski's ideas, including the president of the college and the chancellor of the district. Contemporary press accounts described student protests against Kehowski and some district employees complained to the administration that Kehowski's statements had created a hostile work environment. No disciplinary action was taken against him and no steps were taken to enforce the district's existing anti-harassment policy. The plaintiffs next sought damages and other relief in federal district court on the ground that the defendants "failed to take immediate or appropriate steps to prevent Mr. Kehowski from sending Plaintiffs harassing email" and from disseminating harassing speech via his district-hosted website. The district court granted summary judgment to the president and chancellor on the plaintiffs' Title VII claim on the ground that Title VII liability does not extend to agents of the employer. But it denied summary judgment to the president and chancellor on the plaintiffs' constitutional claim, including on the issue of qualified immunity, and to the remaining defendants on both the constitutional and Title VII claims. The president and chancellor brought this interlocutory appeal, challenging the district court's ruling that they are not entitled to qualified immunity as to the alleged Equal Protection violation. The USCA reversed. It held that the defendants did not violate the plaintiffs' right to be free of workplace harassment. The district court's finding that the defendants' failure to respond to the emails created a jury question as to discriminatory purpose did not bar a grant of immunity, as the defendants may be liable unless the plaintiffs show both conduct constituting harassment and a discriminatory purpose behind the employer's failure to respond. Because the USCA found as a matter of law that the plaintiffs did not meet the first of those requirements, and therefore could not show a constitutional violation, the USCA reversed the district court's denial of qualified immunity and did not reach the plaintiffs' additional argument that the scope of the right was not clearly established. The USCA directed that the district court reconsider its ruling on the remaining defendants' summary judgment motions to ensure that they are consistent with the USCA's ruling. The USCA added that it is easy to assert that Kehowski's ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment does not allow the USCA to weigh the pros and cons of certain types of speech. Those offended by Kehowski's ideas should engage him in debate or hit the "delete" button when they receive his email. They may not invoke the power of the government to shut him up. S. O'Connor, Associate Justice (Ret.), Kozinski (author), and Ikuta, Circuit Judges. R. Cohen of Phoenix, AZ, for the appellants; D. Hinojosa of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) GENDER DISCRIMINATION / WRONGFUL TERMINATION / FIRST AMENDMENT: Anthoine v. North Central Counties Consortium, 08-16803 (9th Cir. May 14, 2010). Garcetti v. Ceballos, 547 US 410 (2006), held that public employees do not have First Amendment protections for statements made pursuant to their official duties. In this case, the USCA considered the application of Garcetti to Anthoine, a low-level employee of the North Central Counties Consortium ("NCCC") who jumped the chain of command to report directly to Freeman, the chairman of NCCC's governing board, that his immediate supervisor, Newton, had misrepresented the status of the employer's compliance with its legal obligations. Anthoine was disciplined and terminated soon thereafter. He brought various claims in federal district court, and the court granted summary judgment against him. Anthoine had maintained that he engaged in protected speech when he informed Freeman, that the NCCC was in violation of its legal obligations and that Newton had misrepresented to the board that NCCC was current in meeting those obligations. Anthoine further argued that he was then subjected to a "cascade of adverse employment actions" in retaliation for having communicated this information to Freeman. The USCA held that Anthoine had presented a triable issue of fact on his First Amendment retaliation claim and thus reversed the summary judgment on that claim. Anthoine's speech qualified as a matter of public concern. Moreover, misrepresentation to the governing board of a public entity by an employee falls squarely within the subjects of public concern delineated in Huppert v. City of Pittsburg, 574 F.3d 696, 703-04 (9th Cir. 2009). The USCA affirmed the summary judgment against Anthoine on his gender discrimination and wrongful termination claims. Goodwin and W. Fletcher (author), Circuit Judges, and Mills, District Judge. M. Adams of Redwood City, CA, for the appellant; M. Van Brussel of Sacramento, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) WORKERS COMPENSATION: Valladolid v. Pacific Operations Offshore. LLP, 08-73862 (9th Cir. May 13, 2010). At issue here was whether an employee must be injured on the outer continental shelf to be eligible for workers' compensation benefits under the Outer Continental Shelf Lands Act ("OCSLA"). Two other circuits that have considered this question have reached conflicting conclusions. Decedent Valladolid worked for Pacific Operations Offshore as a roustabout stationed primarily on one of Pacific Operations' two offshore drilling platforms. He was killed, however, on the grounds of Pacific Operations' onshore oil-processing facility when he was crushed by a forklift. His widow sought workers' compensation benefits under OCSLA and the Longshore and Harbor Workers' Compensation Act ("LHWCA"). Pacific Operations runs two offshore drilling platforms, the Hogan and the Houchin. Both are located more than three miles off the coast of California. Valladolid spent roughly 98% of his working time aboard the Hogan. As a roustabout, his work primarily consisted of cleaning and maintenance duties: picking up litter, emptying trash cans, washing decks, painting, fixing equipment, and helping load and unload the platform crane. He also spent time working at Pacific Operations' onshore oil flocculation facility, located on the California coast just 240 to 300 feet from the shore. This facility, referred to as La Conchita, received crude oil slurry from the Hogan and the Houchin via pipeline. The slurry would then be processed, separating its oil, gas, water, and solid constituents, with the oil and gas routed off site through pipelines to third parties. Valladolid performed maintenance duties at La Conchita, including painting, sandblasting, weed-pulling, cleaning drain-culverts, and operating a forklift. One of Valladolid's duties at La Conchita was to "centralize" scrap metal from various locations so that third-party scrap metal vendors could pick up the metal and haul it away. Valladolid would use a forklift to retrieve the scattered metal and transport it to a central location. The consolidation process was performed roughly once every two years. Valladolid was killed during this process when he was crushed by a forklift. The petitioner, Valladolid's widow, received death benefits under California's workers' compensation scheme. She also filed a claim for benefits under the LHWCA, both directly under the LHWCA and via the OCSLA extension to outer continental shelf workers. After informal proceedings before the local district director of the Department of Labor's Office of Workers' Compensation Programs, the matter was referred to an Administrative Law Judge who denied the petitioner's OCSLA claim on the grounds that Valladolid's injury occurred outside the geographic sites of the outer continental shelf. The ALJ denied the LHWCA claim on the grounds that Valladolid was not engaged in maritime employment, and was not injured on a maritime site. The Benefits Review Board ("BRB") upheld the ALJ's denial of the OCSLA benefits under the "situs-of-injury" test, and affirmed the denial of LHWCA benefits on the maritime situs ground. The BRB did not reach the maritime employment issue. The USCA affirmed the BRB's denial of benefits under the LHWCA. Because Valladolid's injury did not satisfy the situs requirement, and because the BRB did not reach the status issued, the USCA did not address whether Valladolid was a maritime employee. The USCA also held that the OCSLA workers' compensation provisions, 43 USC Sec. 1333(b), applies to any injury resulting from operations on the outer continental shelf, regardless of the location of the injury. An injury is "the result of" outer continental shelf operations if there is a substantial nexus between the injury and the operation. The USCA thus rejected the situs-of-injury test adopted by the BRB, and remanded for further considerations consistent with its opinion. The USCA also held that the BRB did not err in finding that La Conchita was not a maritime situs. It thus affirmed the denial of workers' compensation benefits under the LHWCA. Reinhardt and Bybee, Circuit Judges, and Selna (author), District Judge. T. Sprinkles of San Pedro, CA, for the petitioner; M. Thomas of San Francisco, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) PROPERTY / BILLBOARDS / FIRST AMENDMENT: World Wide Rush, LLC v. City of Los Angeles, 08-56454 (9th Cir. May 26, 2010). The City of Los Angeles appealed the grant of summary judgment in favor of World Wide Rush and Insite Outdoor Works LA (collectively "WWR") as well as the entry of injunctions in favor of WWR and Wilshire Center, Jamison, and Sky Tag (collectively "Sky Tag") enjoining enforcement of certain billboard regulations. At issue on appeal was whether the district court erred in concluding that the City's Freeway Facing Sign Ban constituted an unconstitutionally under-inclusive restriction on commercial speech and that the City's Supergraphic and Off-Site Ban are unconstitutional prior restraints on speech. Supergraphic billboards are large-format signs projected onto or hung from building walls; Off-site billboards display messages directing attention to a business or product not located on the same premises as the sign itself. Because the City's exceptions to the Freeway Facing Sign Ban do not undermine the City's asserted interests in enacting the Ban, and because the City Council's authority to create exceptions to the Supergraphis and off-Site Sign Ban is a permissible aspect of its inherent legislative discretion, the USCA reversed. The City also appealed the district court's order finding it in civil contempt of the injunction against enforcement of the Freeway Facing Sign Ban and the Supergraphic and Off-Site Sign Bans as to WWR's billboards. Because the USCA vacated the injunction, it also reversed the contempt order. Finally, the USCA affirmed the district court's decision to allow just one round of amendments to the pleadings as a proper exercise of its discretion. Reinhardt, Trott, and Wardlaw (author), Circuit Judges. C. Trutanich of Los Angeles, CA, for the defendant-appellant; R. Heinke of Los Angeles, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) CREDIT REPORTS / ATTORNEY FEES & COSTS: Grove v. Wells Fargo Financial California, Inc., 08-56964 (9th Cir. May 20, 2010). In spring 2006, Wells Fargo notified various credit reporting agencies that Grove was delinquent on an automobile loan. Grove disputed that he was behind in his payments and sent letters to Wells Fargo requesting that it submit correcting information to the credit reporting agencies. Grove filed a lawsuit under the Fair Credit Reporting Act ("FCRA") when Wells Fargo refused to correct the information it provided the agencies. A court-ordered mediation session did not result in a settlement, and the parties proceeded with discovery, including depositions and document production. On the eve of trial, the parties reached a settlement. Pursuant to Fed. R. Civ. Proc. 68, the district court entered the parties' stipulated judgment, which provided that Wells Fargo would submit a written request to the credit reporting agencies to delete the disputed information in Grove's credit report. It also provided that Wells Fargo would pay Grove $20,000 "plus costs incurred to date and recoverable attorney's fees." The judgment concluded that Grove was the prevailing party and that he was entitled to "recover his reasonable attorney's fees and costs in this action by filing a motion with the Court that [Wells Fargo' may contest the amount of the fees and costs to be awarded, but not Plaintiff's entitlement to the same." Pursuant to the Rule 68 judgment, Grove filed a motion in which he requested $154,578 in attorney's fees and $7,468 in costs listed as taxable under 28 USC Sec. 1920. The district court awarded Grove $154,289 in attorney's fees and denied Grove's request for taxable costs. Grove also requested $6,770 in non-taxable costs, including the cost of postage, facsimiles, travel, mediation services, and video conferencing services used in depositions. In opposition, Wells Fargo argued that Groave was not entitled to recover any costs that were not listed as taxable under 28 USC Sec. 1920. The district court agreed with Wells Fargo, concluding that it lacked discretion to award non-taxable cots, and denied Grove's request. The USCA affirmed the district court's award of attorney's fees and its rejection of Grove's claim for taxable costs pursuant to Sec. 1920. However, because the district court is authorized to award non-taxable costs as part of the attorney's fee award, the USCA reversed the rejection of Grove's claim for non-taxable costs and remand for the district court to consider Grove's claim for $6,770 in non-taxable costs. In considering Grove's request for non-taxable costs, the USCA directed that the district court apply Missouri v. Jenkins, 491 US 274 (1989), as interpreted in Trustee of the Constr. Indus. And Laborers Health and Welfare Trust v. Redland Insurance, Co., 460 F.3d 1253 (9th Cir. 2006), and determine whether it is the prevailing practice in the given community for lawyers to bill those costs separate from their hourly rates. Judge Rymer concurred with regard to taxable costs and attorney's fees, but parted company from the majority with regard to non-taxable costs. She believed that USCA cases (understandably followed by the majority) have gone off tract by relying on precedent to conclude that non-taxable costs may be awarded as attorney's fees whenever a fee-shifting statute allowing recovery of "attorney's fees" is invoked. Instead, Judge Rymer thought the court is obliged to determine in the instance of each statute individually whether Congress clearly intended to go beyond Sec. 19920, the statute that lists what costs are taxable, and in the instance of each case, to determine whether the practice in the community is for attorneys to charge particular non-taxable costs to their clients. Rymer (dissenting in part), Wardlaw (author), and N.R. Smith, Circuit Judges. R. Green of San Francisco, CA, for the appellant; J. Chilton of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) FAIR DEBT COLLECTION PRACTICES ACT: Rouse v. Law Office of Rory Clark, 09-55146 (9th Cir. May 3, 2010). This appeal presents the issue of whether a prevailing defendant in a Fair Debt Collection Practices Act ("FDCPA") case can be awarded costs without a finding that the plaintiff brought the action in bad faith and for the purpose of harassment. The FDCPA's provision on damages states in part: "On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs." 15 USC Sec. 1692k(a)(3). The district court construed this provision to mean that costs are a factor in determining the reasonableness of attorneys' fees. The USCA reversed, holding that a prevailing defendant cannot be awarded costs under the FDCPA unless the plaintiff brought the action in bad faith and for the purpose of harassment. Pregerson and Beezer, Circuit Judges, and Graham (author), District Judge. I. Chowdhury of Winnetka, CA, for the plaintiff-appellant; M. Ellis of Sacramento, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) ELECTION LAW: McComish v. Bennett, 10-15165 (9th Cir. May 21, 2010). This case challenges the constitutionality of the "matching funds" provision of Arizona's Citizens Clean Election Act which establishes a legal framework within which Arizona may provide public financing to candidates for state political offices. A candidate who chooses to participate in the Act's voluntary public financing scheme relinquishes his right to raise private campaign contributions. Instead, he receives an initial grant of funds from the state to spend on his campaign. The challenged provision ensures that if the participating candidate has an opponent who is not participating in the public financing system and whose campaign expenditures or contributions exceed a threshold set by the Act, he receives additional matching funds from the states. Six past and future candidates for Arizona public office who have, or plan to, run privately-financed campaigns, as well as two political action committees who fund such candidates, brought suit to enjoin the Act's matching funds provision, alleging that it violates their rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. These plaintiffs claimed that the matching funds provision severely burdened their exercise of protected political speech by punishing them for making, receiving or spending campaign contributions. As nonparticipating candidates, if they exceed the Act's matching funds threshold, they will trigger the disbursement of matching funds to their opponents. They allege that their fear of triggering matching funds to their opponents has caused them to curb their campaign fundraising or spending, thereby chilling their speech. They also claimed that because the Act treats candidates differently based on whether or not they participate in the public financing scheme, it denied them the equal protection of the law. The district court held that the matching funds provision of the Act violates the First Amendment. It did not reach the plaintiffs' equal protection claim. After determining that the matching funds provision of the Act could not be severed from the Act as a whole, the district court granted the plaintiffs' motion for summary judgment, issued a declaratory judgment that the Act violates the first Amendment, and enjoined its enforcement. Applying Supreme Court precedent analyzing campaign finance laws under the First Amendment, the USCA concluded that the matching funds provision of the Act imposes only a minimal burden on First Amendment rights. It survives intermediate scrutiny because it bears a substantial relation to the State's important interest in reducing quid pro quo political corruption. Because the Act conforms to the requirements of the First Amendment and must be upheld, the USCA reversed. It declined to address the plaintiffs' equal protection claim in the fist instance; instead, it remanded to the district court so that it may consider the issue. Concurring, Judge Kleinfeld noted that the Arizona public financing scheme does not limit speech directly or indirectly. The only Supreme Court case touching at all closely upon the issues is Davis v. Federal Election Commission, 128 S.Ct. 2759 (2008), and Davis has to be distinguished because the scheme in that case affected contributions limits and this scheme does not. No Ninth Circuit case speaks to the constitutionality of the Arizona scheme or anything like it. Arizona thus is not constitutionally barred from using the scheme. Kleinfeld (concurring), Tashima (author), and Thomas, Circuit Judges. N. Dranias of Phoenix, AZ, for the plaintiffs-appellees; W. Maurer of Seattle, WA, for the plaintiffs-intervenors-appellees; M. O'Gracy of Phoenix, AZ, for the defendants-appellants; B. Phillips of Los Angeles, CA, for the defendant-intervenor-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) ELECTION LAW / DISENFRANCHISEMENT OF FELONS: Harvey v. Brewer, 08-17253 (9th Cir. May 27, 2010). Arizona's Constitution provides: "No person who is adjudicated an incapacitated person shall be qualified to vote at any election, nor shall any person convicted of treason or felony, be qualified to vote at any election unless resorted to civil rights." Ariz. Const. Art. VII, Sec. 2. Arizona statutes give effect to this constitutional provision by suspending the voting rights of any person convicted of a felony, Ariz. Rev. Stat. Sec. 13-904(A)(1), and automatically restoring those rights to any person convicted of only one felony, provide he: "1. Completes a term of probation or receives an absolute discharge from imprisonment," and "2. Pays any fine or restitution imposed." Ariz. Rev. Stat. Sec. 13-912(A). The plaintiffs brought suits challenging Arizona's disenfranchisement scheme. First, they argued that disenfranchisement for felonies not recognized as such at common law violates the Equal Protection Clause of the Fourteenth Amendment. While they acknowledged that Sec. 2 of the Fourteenth Amendment insulates felon-disenfranchisement schemes from equal protection challenges to some extent, see Richardson v. Ramirez, 418 US 24 (1974), they argued that Sec. 2 only permits disenfranchisement for common-law felonies. In their view, disenfranchisement for statutory felonies not recognized at common law has no affirmative sanction in Sec. 2 and violates the Equal Protection Clause. Three of the plaintiffs also argue that conditioning the restoration of the right to vote upon the payment of their criminal fines and restitution violates various provisions of the U.S. and Arizona Constitutions. In particular, they maintained that this repayment condition violates the Equal Protection Clause of the Fourteenth Amendment, the Twenty-Fourth Amendment's bar against poll taxes, the Privileges or Immunities Clause in both the federal and Arizona Constitutions, and the Arizona Constitution's provision mandating free and equal elections. The defendants' motions to dismiss were granted, and the plaintiffs raised the same arguments on appeal. The USCA affirmed. The Fourteenth Amendment permits States to disenfranchise felons, regardless of whether their offenses were recognized as felonies at common law. Requiring felons to satisfy the terms of their sentences before restoring their voting rights is rationally related to a legitimate state interest, and does not violate any of the various constitutional provisions plaintiffs rely upon. O'Connor, Associate Justice (Ret.) (author), Kozinski, and Ikuta, Circuit Judges. J. Cosgrove of Menlo Park, CA, for the plaintiffs-appellants; T. Goddard of Phoenix, AZ, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) IMMIGRATION: Jiang v. Holder, 08-73186 (9th Cir. May 24, 2010). Jiang a native an citizen of China, sought review of the Board of Immigration Appeals' denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). At issue on appeal was whether the BIA's conclusion that Jiang has not demonstrated persecution for "other resistance to a coercive population control program" under the Immigration and Nationality Act ("INA") Sec. 101(a)(42) was supported by substantial evidence. Because the BIA expressly found Jiang credible, the USCA considered whether the BIA correctly applied the law to the record before it, including Jiang's credible testimony. Because it found that Jiang had suffered persecution for demonstrating other resistance to China's coercive population control policy, the USCA granted the petition in part and remanded to the BIA. In reaching its conclusion the USCA deferred to the Attorney's General's interpretation of INA Sec. 101(a)(42) in Matter of J-S-, 24 I&N Dec. 520 (A.G. 2008). Under J-S, a spouse of an individual who has undergone forcible abortion or sterilization may present proof of such treatment to evidence persecution. The USCA reaffirm that, for purposes of Sec. 101(a)(42), a spouse includes an individual whose marriage would be recognized but for the enforcement of China's coercive population control policy, as well as an individual whose marriage is officially recognized by Chinese authorities. Because any reasonable adjudicator would be compelled to conclude that Jiang established past persecution for "other resistance" to the population control policy, the USCA concluded that Jiang is entitled to the protections of Sec. 101(a)(42). On remand, the BIA shall, on behalf of the Attorney General, exercise discretion regarding whether to grant asylum. Pregerson, Reinhardt, and Wardlaw (author), Circuit Judges. H. Sklar of Los Angeles, CA, for the petitioner; J. Segall of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

17) IMMIGRATION: Rivera-Cuartas v. Holder, 07-74999 (9th Cir. May 20, 2010). Rivera-Cuartas, a longtime lawful permanent resident of the U.S. was convicted under Arizona Revised Statutes Sec. 13-1405 for performing oral sex on a 16 year old boy. He was sentenced to three years probation. In removal proceedings, the Immigration Judge ("IJ") found him deportable for having been convicted of the aggravated felony of "sexual abuse of a minor" as defined under 8 USC Sec. 1101(a)(43)(A). At issue on appeal was whether Sec. 13-1405, which criminalizes sexual conduct with a minor under the age of 18, constitutes an aggravated felony for the purposes of immigration law. As it found that Sec. 13-1405 did not meet the federal generic offense of "sexual abuse of a minor," the USCA held that it is not an aggravated felony and granted the petition for review. On its face, Sec. 13-1405 did not meet the definition for statutory rape crimes set forth in Estrada-Espinoza v, Mukasey, 546 F.3d 1147, 1159 (9th Cir. 2008) (en banc), for two reasons: (1) it lacked the age difference requirement; and (2) was broader than the generic offense with respect to the age of the minor because the statute applies to persons under 18 years of age. As a result, the conduct proscribed in Sec. 13-1405 exceeds the generic offense. In addition, as Sec. 13-1405 lacks the age difference requirement, the modified categorical approach does not apply. As explained in Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007), when the crime of conviction is missing an element of the generic crime altogether, the modified categorical approach is inapposite because the court can never find that a jury was actually required to find all the elements of the generic crime. Section 13-1405 also does not meet the generic definition of "sexual abuse of a minor" under the framework of USA v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009), as it lacked the element of "abuse." The statute "does not expressly include physical or psychological abuse of a minor as an element of the crime," not does it "criminalize only conduct that is per se abusive, because it is not limited to conduct targeting younger children." Payayo-Garcia v. Holder, 589 F.3d 1010, 1015 (9th Cir. 2009). Section 13-1405 thus is not an aggravated felony. In his opening brief, Rivera-Cuartas "concedes" that his offense constitutes a crime involving moral turpitude and argues that his crime is subject to the petty offense exception at 8 USC Sec. 1182(a)(2)(A)(ii)(II). But the government charged him only with removability as an aggravated felon, and the IJ and BIA ordered removal on that basis alone. The government did not charge removal on the moral turpitude charge or any other ground of removability. The USCA thus vacated Rivera-Cuartas' removal order without remanding for further proceedings. Rymer and McKeown (author), Circuit Judges, and Fawsett, District Judge. E. Kreider of Tucson, AZ, for the petitioner; N. Friedman of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) MUSLIM HEADSCARFS AND RELIGIOUS RIGHTS: Khatib v. County of Orange, 08-56423 (9th Cir. May 3, 2010). On June 29, 2006, Khatib and her husband pleaded guilty to a misdemeanor violation of California welfare law. They were placed on probation on the condition that they complete 30 days of community service by a date certain. Two days before that date, they appeared in court seeking an extension. However, the court revoked their probation and ordered them held in custody in the courthouse pending disposition later that day of the violation. When Khatib was processed into the courthouse holding cell, officers required over her objection that she remove her headscarf for security reason. To do so allegedly violated her religious beliefs by forcing her with an uncovered head to confront strangers, including men to whom she was not related. As the federal district court would later note, "Appearing in the presence of male non-family members without a hijab is a serious breach of faith and deeply humiliating and defiling experience." Later that day the Superior Court Judge returned her to his courtroom, reinstated her probation, gave her additional time to complete her community service, and awarded her one day credit for time served in the "Orange County Jail." She was then returned to the holding area from which she was released later that afternoon. Khatib sued the County of Orange, California and some of its officials, alleging a violation of the Religious Land Use and Institutionalized Person Act ("RLUIPA"). The gravamen of her complaint was that she was required against her Muslim religious beliefs and practice to remove her "hijab," or headscarf, in public while she was held on two occasions between 9am and 4:30pm in an Orange County Superior Court holding cell pending the disposition by the court of her probation violation. The district court dismissed with prejudice her complaint pursuant to Fed. R. Civ. P. 12(b)(6), on the ground that a courthouse holding cell is not an "institution" ad defined by RLUIPA. The USCA affirmed. Section 2000cc-1 of RLUIPA prohibits any government from imposing "a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in Sec. 1997 of the Prison Litigation Reform Act ("PRLA"). Section 1997 describes in relevant part the term "institution" as follows: (1) The term "institution" means any facility or institution - (A) Which is owned, operated, or managed by, or provides services on behalf of any State of political sub-division of a State; and (b) which is … (ii) a jail, prison, or other correctional facility; [or] (iii) a pretrial detention facility." The USCA noted that a courthouse holding cell is not directly addressed in the statute. It then held on the basis of the text of the statute construed in the light of its purpose that it is not. The purpose of courthouse confinement is not to correct, to punish, to deter, or to rehabilitate, but simply to provide a secure transient environment for persons in custody while they are in the courthouse awaiting trial or other judicial proceedings. In the language of the statue, these persons may be confined in a hold cell but they are not confined to it. Section 1997(1)(B)(ii) covering jails, prisons and other correctional facilities is inapposite. Courthouse holding cells are not pretrial detention facilities either. A courthouse holding cell is a place where prisoners are temporarily held during proceedings-there is nothing "pretrial" about them. Once inside the courthouse, a prisoner is no longer in a pretrial detention facility, but in the institution of the courthouse itself as part of the judicial branch of the government, not the executive. To hold otherwise would be tantamount to holding that the court-room itself is a "pretrial detention facility" for persons in custody up until the moment that the trial or other proceeding begins. And, the court's discretionary award of credit to Khatib for one day served in the "Orange County Jail" does not convert the holding cell facility in the courthouse into the Orange County Jail. Dissenting, Judge Kozinski thought that the RLUIPA covered prisoners held in certain kinds of institution-defined to include both correctional facilities (such as prison and jails) and pretrial detention facilities, and a facility used for holding prisoners prior to trial is a pretrial detention facility. Khatib was held in a facility where prisoners are routinely detained awaiting trial and other court appearances. She was thus held in a facility covered by RLUIPA and was entitled to its protection. Kozinski (dissenting), Trott (author), and Wardlaw, Circuit Judges. B. Kieffer of Irvine, CA, for the plaintiff-appellant; D. Lawrence of Santa Ana, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) IMMIGRATION: Uppal v. Holder, 07-72614 (9th Cir. The opinion of Aug. 11, 2009 has been withdrawn and superseded by the opinion filed May 21, 2010). Uppal, a native and citizen of India, petitioned for review of the BIA's order dismissing his appeal. He maintained that the BIA erred in concluding that he had committed a crime which categorically involved moral turpitude, thus rendering him inadmissible at the time of his adjust of status, and subject to removal. The USCA agreed and granted the petition. Uppal had entered the U.S. illegally in February 1997. He was granted asylum in 1998 and accorded status as a permanent resident in 2004. On April 11, 2006, the Department of Homeland Security issued Uppal a Notice to appear, charging him as removable under 8 USC Sec. 1227(a)(1)(A), alleging that he was inadmissible at the time of his entry and/or adjustment of status on two grounds: (1) he had been convicted of a crime involving moral turpitude, and (2) he attempted to obtain immigration benefits through fraud or misrepresentation of a material fact. See 8 USC Sec. 1182(a)(2)(A)(i)(I); (a)(6)(C)(i). Specifically, the Notice alleged that on Feb. 21, 1995, Uppal was convicted of aggravated assault in violation of Sec. 268 of the Canada Criminal Code and deported from Canada to India as a result. The Notice also alleged that Uppal's application for asylum made no mention of this conviction or his status as a Canadian permanent resident. On receiving the Notice, Uppal filed a formal motion to terminate the removal proceedings. Without holding an evidentiary hearing the IJ issued a final order denying the motion. Uppal's conviction under Sec. 268 of the Criminal Code of Canada, the IJ held, constituted a categorical crime involving moral turpitude ("CIMT"). The IJ also concluded that Uppal had committed immigration fraud by concealing both the conviction and his status as a Canadian permanent resident from U.S. immigration officials. Under BIA and USCA case law, an assault statute not involving a specific intent to injure or a special trust relationship and not requiring that the assault cause death or even serious bodily injury cannot qualify as a CIMT. The BIA may have misconstrued the statutory elements. Whether it did or not, it applied a CIMT analysis inconsistent with USCA and BIA case law. The USCA thus granted the petition and remanded for application of the modified categorical approach. The USCA also held that on remand the BIA may reach the immigration fraud issue it has not yet addressed. Thompson, Berzon (author), and N.R. Smith, Circuit Judges. M. Robles of San Francisco, CA, for the petitioner; T. Kleinert of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) IMMIGRATION: Partap v. Holder, 05-75777 (9th Cir. May 10, 2010). Partap, a native and resident of India, petitioned for review of a BIA decision affirming an IJ's denial of his claim for cancellation of removal and denying his motion to remand. The USCA denied the petition for review. Partap maintained that that the BIA erred in holding that his then-unborn daughter did not constitute a qualifying relative under 8 USC Sec. 1229b(b)(1)(D). That provision requires non-permanent resident applicants for cancellation of removal to demonstrate "that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the U.S. or an alien lawfully admitted for permanent residence." The term "child" for purposes of cancellation or removal is defined in 8 USC Sec. 1101(b)(1). The USCA noted that it has previously rejected a "functional approach to defining the term "child" and has noted that the section: "simply does not contemplate the cancellation of removal based on the hardship to be suffered by a 'de facto' child. Rather, cancellation of removal is appropriate only if the detailed statutory definition of 'child' is met. In addition, Sec. 1229b(b)(1)(D) requires that the qualifying relative be "a citizen of the United States." Citizenship status requires birth in the U.S. or naturalization, under both the Constitution and the governing statute. See U.S. Const. amend. XIV, Sec. 1 and 8 USC Sec. 1401(a) (conferring citizenship on "a person born in the United States, and subject to the jurisdiction thereof.") Moreno-Morante v. Gonzales, 490 F.3d 1172, 1176-78 (9th Cir. 2007). Fernandez, Thomas, and Callahan, Circuit Judges. Per Curiam. M. Robles of San Francisco, CA, for the petitioner; R. LeFevre of San Francisco, CA for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

21) IMMIGRATION: Kim v. Holder, 06-73415 (9th Cir. May 3, 2010). Kim petitioned for review of a BIA decision ordering his removal. Kim belongs to a group of hundreds of persons of Korean descent who received fraudulent green cards through the criminal conspiracy of a former INS officer, Leland Sustaire. Because the government proved that Kim is removable, and because Kim lack standing to raise his equal protection challenge to the waiver of admissibility provided at 8 USC Sec. 1182(k), the USCA denied the petition for review in part and dismissed in part. In denying the petition, the USCA did not countenance the immigration officer's conduct and was cognizant of the upheaval cause by this scam. Nevertheless, it said it falls to the executive branch rather than courts to address the fallout. Wallace, Graber, and McKeown (author), Circuit Judges. D. Dyson of San Francisco, CA, for the petitioner; L. Williams of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) IMMIGRATION: Casares-Castellon v. Holder, 05-76788 (9th Cir. May 4, 2010). Casares-Castellon petitioned for review of a BIA order affirming an IJ's decision deeming his timely-filed application for relief under former Immigration and Nationality Act Sec. 212(c), 8 USC Sec. 1182(c) (repealed 1996), abandoned for failure to submit documents supporting his requests for relief within the time prescribed. Casares also petitioned for review of the IJ's decision deeming his application for cancellation of removal pretermitted. The USCA granted the petition for review and remanded for further proceedings. Casares had argued that the BIA misinterpreted 8 CFR Sec. 1003.31(c) in its non-precedential decision affirming the IJ's decision to deem his application for former Sec. 212(c) relief abandoned for failure to timely submit court-requested documentation. The USCA agreed with Casares. Kleinfeld and Thomas, Circuit Judges, and Stafford, District Judge. Per Curiam. J. Bennett of El Cerrito, CA, for the petitioner; K. Melmik of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) IMMIGRATION: Federiso v. Holder, 08-74792 (9th Cir. May 19, 2010). At issue here was whether an individual whose mother is a U.S. citizen continues to be the son of a citizen of the United States, as set forth at 8 USC Sec. 1227(a)(1)(H)(i), after his mother's death. The USCA held that he does. Federiso is a Filipino national. His mother, who was also a Filipino national, moved to the U.S. and became a U.S. citizen. Federiso applied to the U.S. Embassy in Manila for a visa for entry to the U.S. with the intent to remain permanently. The State Department prioritizes visa applications made by "the unmarried sons or daughters of citizens of the United States." 8 USC Sec. 1153(a)(1). During his visa application process, Federiso indicated-falsely-that he was unmarried. He was issued a visa, immigrated, adjusted to lawful permanent resident status, and began his life in the United States. Fifteen years later, the government initiated removal proceedings against him. It alleged, and Federiso conceded, that he violated 8 USC Sec. 1182(a)(6)(C)(i) which forbids procuring a visa by willfully misrepresenting a material fact. Federiso requested relief under Sec. 1227(a)(1)(H)(i), which gives an immigration judge the discretion to waive the removal of an immigrant who procured a visa through willful misrepresentation. Only an alien who "is the spouse, parent, son, or daughter" of a U.S. citizen or lawful permanent resident is eligible to apply for a Sec. 1227(a)(1)(H)(i) waiver. The removal proceedings dragged on for years. After the proceedings had been initiated, but before the hearing on Federiso's request for Sec. 1227(a)(1)(H)(i) relief, his mother died. The IJ held that Federiso was still eligible to apply for the Sec. 1227(a)(1)(H)(i) waiver. The IJ then examined a long list of equities in Federiso's favor and granted the waiver. The BIA interpreted Sec. 1227(a)(1)(H)(i) differently and held that to be eligible for the waiver, "an alien must establish a qualifying relationship to a living relative." The BIA thus vacated the IJ's decision and ordered Federiso removed to the Philippines. The USCA reversed and remanded, finding that statute required only that Federiso be the son of a U.S. citizen and eligible to apply for the waiver. Friedman, D.W. Nelson (author), and Reinhardt, Circuit Judges. A. Vasquez of Pasadena, CA, for the petitioner; C. Parascandola of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) IMMIGRATION: Segura v. Holder, 08-72062 (9th Cir. May 26, 2010). Segura sought review of a BIA's decision finding him ineligible for relief under Sec. 212(c) of the Immigration and Nationality Act. The BIA reasoned that Segura was ineligible because he had not been lawfully admitted to the U.S. for permanent residence. The USCA dismissed in part and denied in part Segura's petition for review. Due to Segura's prior felony conviction for a controlled substance offense, he was ineligible for permanent resident status at the time he filed his application for an adjustment of status. See 8 USC Sec. 1255a(b)(1)(C)(ii). He thus was never "lawfully admitted for permanent residence" as is required by Sec. 212(c), notwithstanding any mistake by immigration officials in granting Segura permanent resident status. The BIA did not err in finding Segura ineligible for Sec. 212(c) relief. O'Scannlain and Tallman (author), Circuit Judges, and Block, District Judge. J. Clason of Fresno, CA, for the petitioner; J. Segall of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) IMMIGRATION / SENTENCING: USA v. Orozco-Acosta, 09-50192 (9th Cir. May 26, 2010). On June 25, 2008, a border patrol agent discovered Orozco-Acosta, a Mexican national, just north of the U.S.-Mexico border in a desolate area frequented by aliens illegally crossing into the United States. Orozco-Acosta admitted to the agent that he was a Mexican citizen and had no documents allowing him to be in the U.S. legally. He also later gave a sworn statement indicating that he had been deported earlier that year and had not sought permission to re-enter. A federal grand jury indicted him for being found in the U.S. following removal, in violation of 8 USC Sec. 1326. Prior to trial, the government moved in limine to introduce a warrant of removal to establish that Orozco-Acosta had been deported from the U.S. on January 26, 2008. The government also sought to introduce a certificate of non-existence of record to show that there was no record that Orozco-Acosta had ever applied for, or been granted, permission to re-enter the U.S. following his removal. The district court overruled Orozco-Acosta's objections that admission of these documents would violate his rights under the Sixth Amendment Confrontation Clause, and both documents were admitted into evidence at Orozco-Acosta's trial. The jury also heard the testimony of Agent Holmes, the custodian of Orozco-Acosta's Alien Registration File ("A-File"). An A-File contains paper records concerning an alien's immigration status, including records of removal and applications for re-entry. Holmes testified that his review of Orozco-Acosta's A-File, as well as an agency computer data-base, C.L.A.I.M.S., disclosed no documentation that Orozco-Acosta had applied for permission to re-enter the United States. The jury found Orozco-Acosta guilty of violating Sec. 1326. The district court then sentenced him to 71 months in prison, followed by three years of supervised release, and ordered a $100 assessment. On appeal, Orozco-Acosta maintained that the admission into evidence of a certificate of non-existence of record and of a warrant of removal violated his rights under the Sixth Amendment's confrontation Clause. He also challenged the district court's refusal to give a requested jury instruction and argued that his sentence was procedurally and substantively unreasonable. The USCA affirmed Orozco-Acosta's conviction and sentence. It found that because Orozco-Acosta was convicted of violating Sec. 1326, he properly was given a base offense level of eight and the Guidelines provide for a sixteen-level upward adjustment if the defendant previously was deported after a crime of violence. Orozco-Acosta had been deported after being convicted of California Penal Code Sec. 288(a), which criminalizes lewd and lascivious acts upon a child under the age of fourteen. In USA v. Medina-Villa, 567 F.3d 507, the USCA reaffirmed that Sec. 288(a) is a "crime of violence for Guideline Sec. 2L1.2(b)(1)(A)(ii). Orozco-Acosta's claim that the district court erred by applying the 16-level crime-of-violence enhancement was thus foreclosed by USCA precedent. The USCA also concluded that Orozco-Acosta's sentence was substantively reasonable. The district court imposed a sentence in the middle of the Guidelines range after carefully and rationally considering the factors in 18 USC Sec. 3553(a). The district court emphasized the need to protect the public in light of the seriousness of Orozco-Acosta's prior Sec. 288(a) convicton. In determining whether he posed a continuing threat to the public, the district court was entitled to make reasonable inferences about the import of the women's underwear found in his pocket and his incredible explanation for its presence. The district also cited the fact that Orozco-Acosta previously had been deported form the U.S. ten times, and that his advanced age had not stopped him from illegally entering the U.S. in the present offense. In light of these considerations, the district court's Guidelines range was not an abuse of discretion. Canby (author), Gould, and Ikuta, Circuit Judges. AUSA M. Gardner of San Diego, CA, for the plaintiff-appellee; AFPD J. Fife of San Diego, CA, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) WARRANTLESS SEARCH & SEIZURE: USA v. Struckman, 08-30463 (9th Cir. May 4, 2010). Around midday on December 7, 2004, three uniformed police officers entered the fenced-in backyard of a private home in a residential neighborhood of Portland. Guns drawn, but without a warrant, one officer scaled the fence while another kicked open a padlocked gate leading into the backyard. The only information they had at that time was (1) a call from a neighbor reporting that the owners were at work and that a white male wearing a black jacket, age unknown, had thrown a red backpack over the fence and climbed into the backyard; and (2) their visual confirmation that a red backpack was lying against a porch in the backyard and that the person they saw in the yard, who turned out to be Struckman, was a white male wearing a black jacket, which he allowed to fall to the ground after being confronted by the officers. The officers' first statements to Struckman were to order him to get down on the ground. Struckman's first statement to the offices was that he lived at the house. As it turned out, he did, but the officers only found that out after Struckman was arrested and they had searched the backpack, finding an unloaded gun. By that time, the officers had also learned that Struckman was a former felon. They arrested him as a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1). He was ultimately found guilty by a jury and sentenced to 17 years in prison. The USCA reversed the district court's order denying Struckman's motion to suppress the gun and, because that gun was critical to Struckman's conviction, it vacated the conviction. It found that the officers' warrantless actions violated Struckman's Fourth Amendment rights. Farris, D.W. Nelson, and Berzon (author), Circuit Judges. J. Wieselman of Lake Oswego, OR, for the appellant; AUSA K. Robinson of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) PYRAMID SCHEMES / RESTITUTION: USA v. Moreland, 05-30541 (9th Cir. May 3, 2010). For his participation in a fraudulent pyramid scheme that, from November 1997 to May 2000, swindled approximately 2,500 people out of more than $73 million, Moreland was convicted of mail and wire fraud, money laundering, and conspiracy to commit mail and wire fraud and money laundering. On remand, the district court had imposed a revised sentence of 18 years in prison and ordered Moreland to pay restitution to his victims in the amount of slightly over $36 million. Moreland again appealed his conviction, this time on the grounds that he had involuntarily waived his right to counsel and received ineffective assistance of counsel, and that the district court erred in not granting an adequate continuance, the prosecution committed misconduct resulting in a violation of his due process rights, and insufficiency of the evidence. Finally, Moreland appealed the imposition of restitution because the district court failed to comply with the time frame outlined in Sec. 3664(d)(5) of the Mandatory Victims Restitution Act. The USCA noted that the Supreme Court decision in USC v. Santos, 128 S.Ct. 2020 (2008), required it to reversed Moreland's convictions under Counts 26 and 27, and to vacate his sentence and remand for resentencing. The USCA affirmed in all other respects. First, the USCA found that the record undermined Moreland's assertion that his waiver was conditioned on specific assurances from the district court regarding the level of participation he could expect from standby counsel. The district judge engaged in a lengthy discussion with Moreland, ensuring that he understood the charges against him and the disadvantages or representing himself. The judge strongly urged Moreland to obtain counsel. Nevertheless, Moreland insisted on representing himself. The district judge concluded that his waiver was voluntary and direct Attorney Hurvitz to continue serving as standby counsel. In continuing Hurvitz's participation as standby counsel, the district judge did not promise any specific degree of assistance. Rather, he explicitly noted that the role of standby counsel was undefined. Moreover, if Moreland did not believe that standby counsel was living up to his expectations, he had ample opportunity to waive his right to self-representation and request the district court to appoint full counsel. At no point did the district court lead Morehouse to believe that he would receive substantial assistance with his case from standby counsel. Thus, Moreland's waiver of his right to counsel was knowing and intelligent. Second, Moreland claimed that he was denied effective assistance of counsel. He made four arguments in support of this claim: (1) his trial counsel failed to investigate his mental health; (2) his trial counsel failed to request an adequate continuance; (3) his trial counsel failed to object to the district court's limitation of Moreland's direct examination; and, finally, (4), his trial counsel failed to object to questions regarding the veracity of witnesses on cross-examination and to the prosecution's statements during closing arguments regarding Moreland's veracity. But the USCA found that the record was not sufficiently developed to permit determination of this issue. For example, defense counsel had not had an opportunity to explain his actions. The record was also undeveloped with regard to Moreland's purported mental health defense, as the government had not conducted its own psychological evaluation. Without that evaluation, the USCA said it was unable to determine whether prejudice resulted from the trial counsel's failure to investigate. The USCA thus declined to consider Moreland's ineffective assistance of counsel claims on direct appeal, but noted that he could pursue those claims in collateral proceedings. Third, Moreland maintained that the district court erred in failing to grant an adequate continuance. The district court had granted a two-week continuance over Moreland's objection. But Moreland argued that it should have sua sponte granted a lengthier continuance to allow his trial counsel adequate time to prepare. The USCA found no abuse of discretion here because any need for a continuance was Moreland's fault. The district court had repeatedly advised Moreland to withdraw his waiver of counsel and accept representation. For example, he told Moreland "if you exclude Mr. Hurvitz early on, then turn to him later, he's going to be severely handicapped, in ways he wouldn't be if he were your attorney right from the beginning." But Moreland insisted on relying on Mueller, a co-participant in the criminal enterprise and an unlicensed lawyer, as his legal counsel. Moreland did not request representation until two months before trial. When Moreland finally did accept counsel, he opposed his trial counsel's expressed desire for a continuance and prevented trial counsel from requesting more time to prepare. He even opposed the two-week continuance granted sua sponte by the district court. Consequently, Moreland was clearly to blame for both the delay and for the district court not granting a longer continuance. Fourth, Moreland argued that his due process rights were violated because the government committed prosecutorial misconduct by questioning him about the veracity of two prosecution witnesses during cross-examination and by casting doubt upon his veracity during closing arguments. Moreland did not object at trial. Upon review, the USCA concluded that Moreland's due process rights were not violated. Even though the prosecution's questioning was improper, it did not amount to plain error. As the government pointed out, the prosecution presented more than 75 witnesses in this case. Moreover, the two improperly questioned witnesses testified regarding matters of minor importance to the case. In fact, Moreland himself admitted that another witness, an IRS agent, was the prosecution's key witness. In the context of this long and complicated trial, in which witness credibility was not paramount, the prosecution's questioning of Moreland regarding those two non-essential witnesses did not prejudice his defense, affect his substantial rights, or diminish the integrity of the judicial proceedings. Moreland next argued that his due process rights were violated by the prosecution's statement during closing argument regarding Moreland's veracity. The prosecutor had referred to Moreland as a liar several time throughout his closing argument and pointed out specific examples of contradictory testimony pointing to the conclusion that Moreland was not telling the truth. However, the USCA found that the prosecutors statements were reasonably based on the evidence, which the prosecutor demonstrated by carefully walking the jury through the evidence and pointing out inconsistencies. Therefore, based on the case law, the prosecutor's statements regarding Moreland's credibility were not improper. Moreover, the prosecutor's statement did not affect Moreland's substantial rights. Even if the prosecutor's statement were improper, Moreland had to show that they affect the outcome of his trial. However, the government presented strong independent evidence that Moreland knowingly engaged in a massive fraud. Additionally, the district court properly instructed the jury that "arguments and statements by lawyers are not evidence" and what the lawyers say in their closing arguments is not evidence. As a result, Moreland did not show that the prosecutor's statements during closing arguments affected the outcome of the proceedings. Hug (author), McKeown, and W. Fletcher, Circuit Judges. J. Gross of Seattle, WA, for the defendant-appellant; AUSA A. Friedman of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) FRAUD / RESTITUTION: USA v. Rich, 08-30153 (9th Cir. May 3, 2010). At issue here was whether the estate of a criminal defendant who dies pending appeal of his fraud convicton must continue to pay restitution to victims. Rich operated Pac Equities, a real estate investment firm. As president of the firm, he solicited investors with promises of high annual returns and low loan-to-value ratios, touting his prior successes. However, Pac Equities was a Ponzi scheme. Over the course of several years, Rich and Pac Equities defrauded over 300 individuals of approximately $16 million. A grand jury charged Rich and co-defendant Pac Equities in a 27 count superseding indictment with securities fraud, bank fraud, wire fraud, mail fraud, money laundering, obstruction of justice, and filing a false tax return. After indictment, Rich violated his pre-trial release conditions by spending over $600,000, part of it in a Las Vegas casino. He subsequently agreed to the appointment of a temporary receiver both to preserve the assets held by or seized from the defendants and to distribute them to victims of his scheme. The magistrate judge, the government prosecutor, and the defense counsel all signed the temporary receivership stipulated order, dated March 14, 2006, over 18 months prior to the trial. A few months later, the temporary receivership was converted to a permanent receivership through a permanent receivership stipulated order dated October 24, 2006 ("Receivership Order") signed by counsel for both parties and the magistrate judge. After his permanent appointment, the receiver began recovering and disposing of property. By April 2, 2007, some seven months before Rich's trial commenced, the receiver had returned nearly $3 million of seized assets to victims. After a ten-day trial, a jury found Rich guilty of 26 of the 27 counts of the superseding indictment. It also returned special forfeiture verdicts finding that all the property described in the superseding indictment derived from the fraudulent scheme, and was forfeitable. Three months later, after the trial but before sentencing, the permanent receiver returned an additional $3 million to victims from the seized assets for a total of $5,818,009. On May 7, 2008, the district court sentenced Rich to a 236-month term of imprisonment and ordered him to pay a special fee assessment of $2,400, or $100 on each count on which he was convicted. It also ordered Rich and Pac Equities, jointly and severally, to pay restitution of over $10 million dollars ("Restitution Order"), the amount of the loss to investors remaining after deducting funds already returned to victims or held by the Receiver. Rich timely appealed but before his appeal could be heard, he passed away. He counsel moved to abate and to dismiss the appeal and all criminal proceedings, which the government opposed. A USCA motions panel denied the motions "without prejudice to renewing the arguments in the merits briefs." Rich challenged the denial of his motions to abate the conviction and all criminal proceedings. On appeal, the government argued that abating the Restitution Order frustrates the purposes of the Victim and Witness Protection Act and Mandatory Victim Restitution Act. In the government's view, those statutes are aimed at compensating the victims of crime. To abate restitution orders, consequently, give the defendant's heirs a "windfall" at the expense of suffering victims. But, the USCA noted that abstract policy concerns do not trump statutory text. In addition, abatement does not necessarily benefit the heirs of the defendant at the expense of the defendant's victims. On the contrary, nothing precludes the victims from bringing a separate civil action to prevent any improper benefit to the defendant's estate. The USCA thus remanded to the district court with directions to vacate the indictment, the judgment of conviction, the sentence, the special fee assessment, and the Restitution Order, but to retain jurisdiction over all matters relating to the Receivership Order. O'Scannlain (author) and N.R. Smith, Circuit Judges, and Wolle, District Judge. K. Bons of Eugene, OR, for the defendant-appellant; AUSA K. Zusman for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) EXCESSIVE FORCE / DUE PROCESS: Harvey v. Jordan, 07-15023 (9th Cir. May 11, 2010). Harvey is a prisoner at Salinas Valley State Prison. Prison officials used pepper spray to extract him from his cell on July 29, 2004, during a building-wide search of all prisoners' cells. This appeal involves two claims arising from that cell extraction. First, Harvey alleged that the use of chemical sprays was excessive and has caused him to suffer long-term health problems. He maintained that he mistakenly attributed those problems to a cold until a prison medical worker informed him of the true cause on September 14, 2004. He filed a grievance five days later, but prison officials rejected it as untimely. Second, Harvey alleges that he was denied due process in connection with a disciplinary charge for refusing to comply with the cell search. Prison officials failed to hold a hearing on the charge within the time allotted by prison rules. When Harvey filed a grievance complaining about the delay and requesting access to the videotape of the extraction, the prison officials granted the relief he requested, informing him in writing that a hearing would be provided and that he would be permitted to view the tape prior to the hearing. The decision was labeled a partial grant of the grievance because Harvey had stated that in the alternative he requested that the charge be dismissed. Five months later, Harvey complained that the hearing still had not been held and that he still had not been given the opportunity to view the tape. Prison officials construed that complaint as an appeal of their prior decision, and rejected it as untimely. Harvey brought suit in federal district court. The defendants moved to dismiss his excessive force and due process claims for failure to exhaust administrative remedies under the Prison Litigation Reform Act, and the district court granted the motion. Harvey appealed that ruling. The USCA affirmed the dismissal of Harvey's excessive force claim, reversed the dismissal of his due process claim, and remanded for further proceedings consistent with the USCA opinion. Friedman, D.W. Nelson, and Reinhardt (author), Circuit Judges. M. Lapple of San Diego, CA, for the plaintiff-appellant; T. McDonough of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) COMPETENCE TO STAND TRIAL: Maxwell v. Roe, 08-55534 (9th Cir. May 20, 2010). A criminal defendant has a constitutional due process right not to be tried or convicted while incompetent to stand trial. This right not only assures that a defendant has the present ability to consult with counsel, to understand the nature and object of the proceedings against him, and to aid in the preparation of his defense, Dusky v. USA, 362 US 402 (1960), it is "fundamental to an adversary system of justice." Drope v. Missouri, 420 US 162, 172 (1975). Here, Maxwell appealed from the district court's judgment denying his petition for a writ of habeas corpus. He argued that at the time of his January 1998 state court trial for first degree murder he was incompetent to stand trial and that the state court denied him due process in failing to hold, sua sponte, a competency hearing. At the time of trial, Maxwell had a history of mental illness, frequently refused to take his prescribed antipsychotic medications, was unable to verbally or physically control himself in the courtroom, and exhibited increasingly paranoid and psychotic behavior that impaired his communication with defense counsel and reasoning regarding his defense. Furthermore, during the trial, Maxwell attempted suicide and spend a substantial portion of the trial involuntarily committed to a hospital psychiatric ward. Despite these circumstances, the trial judge never doubted Maxwell's competence. Because it concluded that the state appellate court's decision to affirm the trial court's finding that Maxwell was not entitled to a hearing on his competence was based on an unreasonable determination of the facts in light of the evidence known by the trial judge at the time of trial and an unreasonable application of federal law as established by Drope, and Pate v. Robinson, 383 US 375 (1966), the USCA reversed and remanded with directions to grant a write of habeas corpus directing the state to provide Maxwell with a new trial in a reasonable amount of time or release him. Pregerson, Noonan, and Paez (author), Circuit Judges. P. Ford of San Diego, CA, for the plaintiff-appellant; R. Cartwright-Ladendorf of San Diego, CA, for the respondent-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)