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Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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1) INTELLECTUAL PROPERTY: Ets-Hokin v. Skyy Spirits, Inc., 98-17072 (9th Cir. Aug. 18, 2000). A stylized photo of a vodka bottle by a professional photographer was entitled to copyright protection given the Copyright Act's low threshold for originality generally and the minimal amount of originality required to qualify a photograph in particular; dissenting, Judge Nelson thought the majority erred in reversing the district court's summary judgment order because there is no way the plaintiff can prove infringement given the low standard of originality for photographs; Judge Nelson agreed with the majority that under this standard the plaintiff's photograph is original, but by the same token so are the allegedly infringing photographs of the vodka bottle as they are based on slightly different angles, different shadows, and different highlights of the bottle's gold label. Hug, D.W. Nelson (dissenting), and McKeown (author), Circuit Judges. C. Ossola of Washington, DC, for the appellant; J. Kinnear of San Francisco, CA, for the appellees. (Download the full text at www.ce9.uscourts.gov/) 2) INTELLECTUAL PROPERTY / PERSONAL JURISDICTION: Bancroft & Masters, Inc. v. Augusta National, Inc., 99-15099 (9th Cir. Aug. 18, 2000). A federal district court in California had personal jurisdiction over a Georgia corporation where the complaint alleged that the defendant engaged in wrongful conduct that individually targeted the plaintiff in California; Judge Sneed concurred in the majority's decision only on the assumption that the defendant, through its letter to Network Solutions, engaged in conduct intending to effect a conversion of the "masters.com" domain name. Sneed (concurring), Schroeder (author), and Trott, Circuit Judges. D. Charkin of Morgan Hill, CA, for the plaintiff-appellant; C. Oakley of San Francisco, CA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 3) ENVIRONMENTAL LAW: Friends of the Clearwater v. Dombeck, 99-35642 (9th Cir. Aug. 16, 2000). At the time this action was commenced the U.S. Forest Service's failure to timely and properly consider the need for a Supplemental Environmental Impact Statement ("SEIS") in light of new information concerning sensitive species violated the National Environmental Policy Act; however, after the onset of this litigation, the Forest Service explicitly considered the need for an SEIS and properly concluded, based on adequate data reasonably evaluated, that no SEIS was necessary; the plaintiffs were thus not entitled to the injunctive relief they sought. Hug, Brunetti, and Gould (author), Circuit Judges. M. Fink of Eugene, OR, for the plaintiffs-appellants; AUSA N. Woychick of Boise, ID, for the defendants-appellees; B. Smith of Boise, ID, for the intervenor-defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 4) ENVIRONMENTAL LAW / TIMBER SALES: Idaho Sporting Congress Inc. v. Alexander, 99-35847 (9th Cir. Aug. 17, 2000). The government may not use Supplemental Information Reports to correct lapses in Environmental Assessments and Environmental Impact Reports required under the National Environmental Policy Act ("NEPA"); the USCA agreed with the plaintiffs that the district court's denial of their motion for a preliminary injunction was based on an erroneous interpretation of NEPA and was thus an abuse of discretion. Hug (author), Brunetti, and Gould, Circuit Judges. T. Woodbury of Boise, ID, for the appellants; T. Kim of Washington, DC, for the appellees; B. Smith of Boise, ID, for the intervenors. (Download the full text at www.ce9.uscourts.gov/) 5) ENVIRONMENTAL LAW / CLEAN-UP COSTS: Unocal Corporation v. USA, 99-55342 (9th Cir. Aug. 7, 2000). A jury's verdict in favor of an oil company in its action for reimbursement of cleanup costs incurred after its oil pipeline was ruptured by a construction contractor working on the defendant's project was valid as the oil company had presented substantial evidence at trial that the defendant or third parties were the sole cause of the spill and its consequences, that the oil company exercised due care prior to the spill and during its containment, and that it took necessary precautions to prevent foreseeable harm. Reinhardt and Berzon, Circuit Judges, and Breyer (author), District Judge. G. Bergman of Los Angeles, CA, for the appellants/cross-appellees; W. Collier of Long Beach, CA, for the appellees/cross-appellants. (Download the full text at www.ce9.uscourts.gov/) 6) ENVIRONMENTAL LAW / CLEAN-UP COSTS: Wetlands Action Network v. U.S. Army Corps of Engineers, 98-56242 (9th Cir. Aug. 21, 2000). The Army Corps of Engineers' issuance of a permit to a developer to fill 16.1 acres of federally delineated wetlands in one phase of a 600 acre development project and to mitigate the fill by creating a 51-acre freshwater wetland system, without preparing an environmental impact statement considering the consequences of the entire project was not a violation of the National Environmental Policy Act. Brunetti (author) and Wardlaw, Circuit Judges, and Sedwick, District Judge. C. Treat of Los Angeles, CA, for the appellant. C. Crandall of San Diego, CA, for the appellees; A. Hoang of Washington, DC, for appellants/cross-appellees. (Download the full text at www.ce9.uscourts.gov/) 7) ENVIRONMENTAL LAW: USA v. Ertsgaard, 99-30242 (9th Cir. Aug. 25, 2000). Commercial fisherman who violate the individual fishing quota regulations developed by the Northern Pacific Fishery Management Council are subject to prosecution under the Lacey Act; the quota regulations were promulgated under the Halibut Act. D.W. Nelson, Reinhardt (author), and Thomas, Circuit Judges. J. Smeltzer of Washington, DC, for the plaintiff-appellant; B. Doherty of Anchorage, AK, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 8) CONTRACTS / CONFLICT OF LAWS: Coufal Abogados v. AT&T, Inc., 98-56988 (9th Cir. Aug. 2, 2000). The district court properly found that Mexican law applied in this diversity case, that Mexican law did not recognize the tort of interference with a contract, and that to the extent the plaintiff's claims were cognizable as claims for "illicit behavior" under Mexican law, they were barred by the two year statute of limitations. Thompson, W. Fletcher, and Fisher (author), Circuit Judges. L. Orloff of Los Angeles, CA, for the plaintiffs-appellants; W. Campbell of Los Angeles, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 9) BANKING LAW: First Pacific Bancorp, Inc. v. Helfer, 98-55634 (9th Cir. Aug. 8, 2000). 12 USC Sec. 1821(d)(15) gives shareholders of a bank in receivership a private right of action against the Federal Deposit Insurance Corporation to compel it to provide a financial accounting in conformity with the FDIC's own accounting and reporting practices and procedures. Trott and W. Fletcher, Circuit Judges, and Molloy (author), District Judge. L. Sands of Los Angeles, CA, for the plaintiffs; A. Duross of Wash-ington, DC, for the FDIC. (Download the full text at www.ce9.uscourts.gov/) 10) TAXATION: LabelGraphics, Inc. v. CIR, 99-70164 (9th Cir. Aug. 8, 2000). Under the five-factor test established in Elliotts, Inc. v. CIR, 716 F.2d 1241 (9th Cir. 1983), the tax court appropriately determined the reasonableness of what it characterized as an "unusually high" bonus paid to the president of a closely held, single-shareholder corporation and determined that only $406,000 of the $878,913 paid to the president was reasonable compensation and thus deductible as an ordinary and necessary business expense. Lay, Tashima, and McKeown (author), Circuit Judges. G. Goldstein of Portland, OR, for the petitioner-appellant; A. Muoio of Washington, DC, for the respondent-appellee. (Download the full text at www.ce9.uscourts.gov/) 11) BANKRUPTCY / TAXATION: In re Hatton, 98-35248 (9th Cir. Aug. 10, 2000). Where a petitioner fails to file a tax return and the IRS files a substitute return for him, and the parties later enter into an installment agreement under which the petitioner will pay his outstanding federal income tax liabilities, those liabilities were not discharged in Chapter 7 bankruptcy, as the substitute return and installment agreement did not constitute the filing of a return under 11 USC Sec. 523(a)(1)(B)(i) Canby, Brunetti (author), and O'Scannlain, Circuit Judges. AUSA K Greene of Washington, DC, for the appellant; C. Allen of Tacoma, WA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 12) BANKRUPTCY: In re Fillbach, 99-15958 (9th Cir. Aug. 18, 2000). A district court can dismiss a petition filed by a litigant in an attempt to circumvent a bankruptcy court's "vexatious litigant" order. Sneed, Kleinfeld (author), and Tashima, Circuit Judges. J. Fillbach pro per. (Download the full text at www.ce9.uscourts.gov/) 13) BANKRUPTCY:In re Padilla, 98-55099 (9th Cir. Aug. 14, 2000). The petitioner's bad faith accumulation of consumer debt in anticipation of filing for bankruptcy did not constitute "cause" for the dismissal of his Chapter 7 bankruptcy petition under 11 USC Sec. 707(a); dissenting, Judge Rymer said she was persuaded by In re Zick, 931 F.2d 1124 (6th Cir. 1991), that "good faith" has long been understood as an implicit requirement in Chapter 7 bankruptcy proceedings, and that lack of good faith is a valid basis of decision in a "for cause" dismissal by a bankruptcy court; she thought the lack of good faith is manifest when a debtor racks up debts he has no ability to repay and then seeks to shield himself from creditors through bankruptcy. Rymer (dissenting) and McKeown, Circuit Judges, and Shea (author), District Judge. D. Kant of Washington, DC, for the appellant; J. McIntosh of Santa Ana, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 14) BANKRUPTCY: In re Pletz, 99-35248 (9th Cir. Aug. 10, 2000). A bankruptcy debtor's interest in property held by the debtor and his non-debtor spouse as tenants by the entirety must be valued so as to reflect the concurrent interests of both spouses; joint-life actuarial tables must be used to calculate the debtor's interest in order to reflect the concurrent interest of both spouses in the property they hold as tenants by the entirety, rather than simply value the debtor's spouses' interest as though she possessed a single life estate. Goodwin (author), Graber and W. Fletcher, Circuit Judges. J. Streinz of Portland, OR, for the appellant; M. France of Washington, DC, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 15) BANKRUPTCY:In re Roosevelt, 98-55965 (9th Cir. Aug. 10, 2000). A wife who exchanged her interest in her husband's legal education for property conveyed to her by her husband, a bankruptcy debtor, did not give property of value where the education was neither paid for with community funds nor increased her husband's earning capacity during the marriage; the husband was a medical doctor who had sought a law degree during the couple's marriage, which he intended to use in consulting on medical liability issues; Judge Reinhardt dissented from the majority's conclusion that the new bankruptcy judge did not exceed the scope of the BAP's mandate when he determined anew the nature of the properties involved in this case; Judge Reinhardt thought the jurisdiction of the bank-ruptcy court was limited by the BAP's mandate to determine the value of the wife's community interest; dissenting in part, Judge Schwarzer concurred in the majority's decision except for the part remanding for the trial judge to clarify his ruling regarding the value of the wife's interest in her husband's medical practice. Reinhardt (dissenting in part) and O'Scannlain (author), Circuit Judges, and Schwarzer (dissenting in part), District Judge. H. Meeks of Covina, CA, for the defendant-appellant; R. Rapoport of Encino, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 16) BANKRUPTCY / ATTORNEYS' FEES: In re Kadjevich, 99-15367 (9th Cir. Aug. 8, 2000). A creditor's claim for attorneys' fees which arose from a prepetition fraud action against the debtor was not an administrative-expense of the bankruptcy estate. Wood, Kleinfeld, and Graber (author), Circuit Judges. J. Perkins of San Jose, CA, for the appellee; E. Berke-Dreyfuss of Oakland, CA, for the appellant. (Download the full text at www.ce9.uscourts.gov/) 17) BANKRUPTCY: In re Poole, 99-15742 (9th Cir. Aug. 25, 2000). A bankruptcy attorney who is properly admitted to practice in the U.S. District Court for the District of Arizona could not be denied fees pursuant to 11 USC Sec. 101(4) because he is not also admitted to practice by the State of Arizona. Noonan, Thomas (author), and Berzon, Circuit Judges. R. Brown of Phoenix, AZ, Chapter 13 Trustee; M. Smith pro se. (Download the full text at www.ce9.uscourts.gov/) 18) BANKRUPTCY:In re Smith, 99-56795 (9th Cir. Aug. 8, 2000). An adjournment of a bankruptcy creditors' meeting "until further notice", without specifying a new meeting date, did not "conclude" the hearing and thereby trigger the start of the 30 day period in which a claimant has to object to the debtor's claimed exemption; dissenting, Judge Reinhardt did not object to the substance of the majority's ruling on the merits regarding the debtor's claimed exemption, but to the fact that it reached the issue at all for, in Judge Reinhardt's view, the objection was untimely and should have been rejected. Reinhardt (dissenting) and O'Scannlain (author), Circuit Judges, and Schwarzer, District Judge. R. Moneymaker of Los Angeles, CA, for the appellant; S. Byrne of Arcadia, CA, for the creditors-appellees; H. Frazier of Cerritos, CA, for the trustee-appellee. (Download the full text at www.ce9.uscourts.gov/) 19) BANKRUPTCY: In re Spirtos, 98-55101 (9th Cir. Aug. 4, 2000). Under California's statute of duration, Cal. Civ. Pro. Code Sec. 683.020, the period during which a creditor may renew her judgment against a debtor is 30 days after the notice of termination or expiration of the automatic stay in the debtor's estate. Browning, Kozinski (author), and Wardlaw, Circuit Judges. M. Spirtos of Santa Monica, CA, for the appellant; R. Cher of Los Angeles, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 20) INSURANCE / BANKRUPTCY: In re KF Daries, Inc., 97-55941 (9th Cir. Aug. 25, 2000). Where California sought recovery for damage to state-owned groundwater within private party, the property owner's comprehensive general liability policy had to provide coverage if the damage occurred within the policy period, even if the insured purchased the property after the policy period and before the state made it claim; dissenting, Judge Beezer thought the California Supreme Court would not have found the insurance company liable in this case, as the California Court of Appeals has twice declined to do so. Pregerson, Beezer (dissenting), and Hawkins (author), Circuit Judges. D. Scheidemantle of Los Angeles, CA, for the appellants; P. Wilson of Glendale, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 21) ERISA: Bins v. Exxon Company, 98-55662 (9th Cir. Aug. 10, 2000). In the absence of a promise to update an employee, an ERISA fiduciary's duty to inform plan participants that the employer is considering a proposal to offer more generous retirement benefits does not extend beyond giving complete and accurate answers to the employee's questions; dissenting in part and joined by Judges O'Scannlain and McKeown, Judge Fernandez agreed with parts A and C of the majority opinion and with part B to the extent that it holds that the proper test for answering employee inquiries is the "serious consideration" test; Judge Fernandez did not agree with the "gloss" the majority put on the "senior management" element of Fisher v. Philadelphia Electric Co., 96 F.3d 1533 (3rd Cir. 1996). Hug, Browning, Schroeder, O'Scannlain, Fernandez, (dissenting in part) Kleinfeld, Hawkins, Tashima, McKeown, Wardlaw, and Fisher (author), Circuit Judges. T. Moukawsher of Groton, Connecticut for the plaintiff-appellant; J. Severson of Los Angeles, CA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 22) ERISA: Sandy v. Reliance Standard Life Insurance Co., 99-55366 (9th Cir. Aug. 22, 2000). An ERISA plan administrator's discontinuation of disability benefits is to be reviewed under the de novo standard in the absence of language conferring on the admin-istrator or fiduciary discretionary authority to determine eligibility, to construe the terms of the Plan, or to make final and binding de-terminations. Rymer (author), Kleinfeld, and Paez, Circuit Judges. J. Metzger of Laguna Hills, CA, for the plaintiff-appellant; D. Lingenbrink of Los Angeles, CA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 23) EMPLOYMENT DISCRIMINATION: Chuang v. Univ. of California Davis, 99-15036 (9th Cir. Aug. 30, 2000). A Chinese-American scientist who was promised a tenured faculty position but did not receive one despite the availability of positions for which he was qualified established a prima facie case of discrimination on the basis of race and national origin. Politz, Reinhardt (author), and Hawkins, Circuit Judges. B. Booth of Sacramento, CA, for the plaintiffs-appellants; D. Huie of Sacramento, CA, for the appel-lees; (Download the full text at www.ce9.uscourts.gov/) 24) HOSTILE WORK ENVIRONMENT SUITS: EEOC v. Dinuba Medical Clinic, 98-16454 (9th Cir. Aug. 24, 2000). Each aggrieved employee represented by the EEOC in a Title VII action may receive up to the statutory cap without filing a separate suit or intervening in the EEOC's action, even if it is not certified as a class representative. Lay, D.W. Nelson, and Thomas (author), Circuit Judges. D. Llewellyn of Fair Oaks, CA, for the appellant; P. Ramshaw of Washington, DC, for the appellee; (Download the full text at www.ce9.uscourts.gov/) 25) REHABILITATION ACT: McLean v. Runyon, 99-35237 (9th Cir. Aug. 25, 2000). Absent a significant difference in factors such as status or benefits, a vacant position at the same "grade or level" under the Rehabilitation Act's implementing regulations includes a vacant position with an equivalent level of pay as an employee's current position. Noonan, Graber, and Fisher (author), Circuit Judges. M. Dehner of Portland, OR, for the plaintiff-appellant; AUSA H. Sundby of Portland, OR, for the defendants-appellees; (Download the full text at www.ce9.uscourts.gov/) 26) SANCTIONS: Cato v. Fresno, 96-17245 (9th Cir. Aug. 17, 2000). Orders imposing sanctions against an attorney pursuant to Fed. R. Civil Proc. 16(f) are not immediately appealable, but are appealable only after final judgment has been entered in the underlying action. Browning, Rymer, and Kleinfeld, Circuit Judges. Per Curiam. M. Marderosian pro per; no appearance for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 27) ATTORNEYS' FEES: Beaty v. BET Holdings, Inc., 99-55027 (9th Cir. Aug. 24, 2000). Remand was warranted where the record was ambiguous as to whether or not the district court exercised its discretion in determining reasonable attorneys' fees for the prevailing party in a successful race- and sexual-harassment law suit brought under California's Fair Employment and Housing Act. Reinhardt and Berzon (author), Circuit Judges, and Breyer, District Court. K. Klein of Los Angeles, CA, for the defendant-appellant; M. Faber of Santa Monica, CA, for the plaintiff-appellee; (Download the full text at www.ce9.uscourts.gov/) 28) LEGAL ETHICS: USA v. Talao, 99-10351 (9th Cir. Aug. 23, 2000). Under the circumstances of this case, when an employee of a corporation facing civil suit and a criminal investigation by the government initiates communications with an attorney for the government for the purpose of disclosing that corporate officers are attempting to suborn perjury and obstruct justice, California's rule against ex parte communications, Cal. R. of Professional Conduct 2-100, did not bar discussions between the employee and the attorney. Politz (author), Reinhardt, and Hawkins, Circuit Judges. J. Wagstaffe of San Francisco, CA, for the appellants; M. McNamara of San Francisco, CA, for the defendant-appellee; J. Wilson of San Francisco, CA for the petitioner; J. Philipsborn and L. Katz of San Francisco, CA for the real-party-in-interest.; (Download the full text at www.ce9.uscourts.gov/) 29) CIVIL RIGHTS / STATE ACTION: Jensen v. Lane County, 98-35866 (9th Cir. Aug. 23, 2000). A private psychiatrist is a state actor for purposes of a civil rights action when he undertakes with the County a complex and deeply intertwined process of evaluating and detaining allegedly mentally ill individuals. Goodwin (author), Graber, and Fisher, Circuit Judges. S. Pease of Eugene, OR, for the plaintiff-appellant; R. Rocker of Portland, OR, for the defendant-appellee; (Download the full text at www.ce9.uscourts.gov/) 30) CLASS ACTIONS: Lobatz v. U.S. West Cellular of California, Inc. 99-55385 (9th Cir. Aug. 25, 2000). A member of the plaintiff class has standing to timely challenge the class attorney's fee and cost award even though that award is payable by the defendant independently, and not out of the class settlement. Thompson (author), W. Fletcher, and Fisher, Circuit Judges. J. Faucher of San Diego, CA, for the objectors-appellants; J. Franklin of San Diego, CA, for the defendants-appellees; (Download the full text at www.ce9.uscourts.gov/) 31) FREEDOM OF SPEECH: Cochran v. Los Angeles, 98-56834 (9th Cir. Aug. 17, 2000). The speech of police officers is not protected when it involves internal department matters stemming from personal concerns, is conducive to racial and gender tension within the department, impairs the authority of superiors, and is not addressed to the public. Hug and Ferguson, Circuit Judges, and Restani (author), Court of International Trade Judge. J. Bogigian of Los Angeles, CA, for the appellant; M. MacCarley of Glendale, CA, for the appellees. (Download the full text at www.ce9.uscourts.gov/) 32) FIRST AMENDMENT / PROPERTY: Thomas v. Anchorage Equal Rights Commission, 97-35220 (9th Cir. Aug. 4, 2000). Sitting en banc, the USCA held that a constitutional challenge to state and municipal housing laws prohibiting discrimination on the basis of marital status brought by landlords was not ripe for review where no prospective tenant had complained to the landlords, let alone filed a complaint against them, and the landlords had not been charged with violating the law, and there was no reasonable or imminent threat of enforcement; concurring, Judge O'Scannlain wrote separately to make explicit the Circuit's new rule of ripeness and standing reached in the majority's decision: potential litigants aggrieved by existing law will be virtually unable to bring pre-enforcement challenges in this Circuit even in the most sensitive First Amendment context where the laws allegedly burden their free-dom of speech and the free exercise of their religion; dissenting, Judge Kleinfeld agreed with Judge O'Scannlain that under the law as it stood before this case was decided, the plaintiffs here would have had standing and their case was ripe; however, Judge Kleinfeld thought they still do, under controlling Supreme Court law on standing. Hug, Browning, Pregerson, O'Scannlain (concurring), Fer-nandez, Rymer, Kleinfeld (dissenting), Tashima, Graber, McKeown (author), and W. Fletcher, Circuit Judges. C. Groh and J. Grace of Anchorage, AK, for the appellants; K. Clarkson of Anchorage, AK, for the appellees. (Download the full text at www.ce9.uscourts.gov/) 33) SOCIAL SECURITY BENEFITS: Newman v. Apfel, 98-56397 (9th Cir. Aug. 2, 2000). The Social Security Commissioner had discretion to determine that no reliable or currently available information existed for current-month calculations of an individual's Supplemental Security Income benefits; dissenting, Judge Reinhardt, thought that in the name of equity, the Social Security Commissioner has been administering the law in an arbitrary manner that benefits nobody and unnecessarily causes significant harm to a substantial number of aged, blind, and disabled individuals. Reinhardt (dissenting) and O'Scannlain (author), Circuit Judges, and Schwarzer, District Judges. G. McIntyre of Los Angeles, CA, for the plaintiff-appellant; F. Hunger of Washington, DC, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 34) SOCIAL SECURITY BENEFITS: McCarthy v. Apfel, 98-15238 (9th Cir. Aug. 15, 2000). The production of an initial determination letter from the Commissioner of the Social Security Administration to the claimant identifying overpayments made to the claimant was not substantial evidence of the amount of the overpayments. O'Scannlain and Wardlaw, Circuit Judges, and Byrne (author), District Judge. J. Reyer of Sparks, NV, for the plaintiff-appellant; D. Anderson of San Francisco, CA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 35) SOCIAL SECURITY BENEFITS: Schneider v. Commissioner of the Social Security Administration, 99-35634 (9th Cir. Aug. 21, 2000). An administrative law judge erred in failing to consider lay evidence in the form of letters from the applicant's friends which demonstrated that the applicant's condition met the criteria in the medical Listing of Impairments for SSI benefits. Ferguson (author), Graber, and W. Fletcher, Circuit Judge. K. Tassinari of Eugene, OR, for the plaintiff-appellant; V. Blais of Seattle, WA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 36) NATIVE
AMERICAN LAW: USA v. 103 Electronic Gambling Devices,
99-15675 (9th Cir. Aug. 29, 2000). Mere techno-logic aids to bingo
(e.g., the electronic game called "MegaMania") are not themselves gambling
devices under the Johnson Act, 15 USC Secs. 1171-1178. Kleinfeld,
Tashima, and Berzon (author), Circuit Judges. S. Lewis of Tulsa,
OK, for the plaintiff; L. Phillips of Los Angeles, CA, for the claimant.
(Download the full text at www.ce9.uscourts.gov/)
38) IMMIGRATION LAW: Alfaro-Reyes v. INS, 97-70443 (9th Cir. Aug. 3, 2000). Section 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 divests the court of appeals of jurisdiction to hear claims of constitutional error on direct appeal. Wallace, Trott, and Gould (author), Circuit Judges. J. Bejar of San Diego, CA, for the petitioners; K. Larson of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 39) IMMIGRATION LAW: Luu-Le v. INS, 97-70595 (9th Cir. Aug. 3, 2000). A conviction under Arizona law for possession of drug paraphernalia constitutes a violation "relating to a controlled substance" for purposes of deportation; accordingly, Sec. 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 precludes the USCA from reviewing the BIA's determination that the petitioner is ineligible for Immigration & Nationality Act Sec. 212(c) relief. Wallace, Trott (author), and Gould, Circuit Judges. J. Stanton of Honolulu, HI, for the petitioners; C. Bither of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 40) IMMIGRATION LAW: Chand v. INS,98-70541 (9th Cir. Aug. 2, 2000). The petitioner, a Hindu Indian from Fiji, who demonstrated that he was persecuted in the past due to his race and religion, and who was entitled to a presumption that he will be persecuted in the future, is eligible for asylum; the reasons that compelled the USCA's holding that the petitioner is eligible for asylum, would also compel any reasonable factfinder to conclude that he is entitled to withholding of deportation. Politz, Reinhardt (author), and Hawkins, Circuit Judges. M. Gadda of San Francisco, CA, for the petitioner; N. Friedman of Washington, DC, for the respon-dent. (Download the full text at www.ce9.uscourts.gov/) 41) IMMIGRATION LAW: USA v. Zamora-Hernandez, 99-50068 (9th Cir. Aug. 2, 2000). A district court does not abuse its discretion in denying a defendant's pre-trial request for a continuance in order to obtain a complete transcript of his earlier trial when the delay does not prevent the defendant from presenting any evidence in his defense; dissenting, Judge Nelson thought that without a complete transcript of the first trial, the defendant could not prepare for his second trial or be ready to impeach the credibility of the government's eyewitnesses based on their prior testimony. D.W. Nelson (dissenting), Beezer (author), and T.G. Nelson, Circuit Judges. M. Winter of San Diego, CA, for the defendant-appellant; AUSA M. Skerlos of San Diego, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 42) IMMIGRATION LAW: Shah v. INS, 98-70845 (9th Cir. Aug. 15, 2000). A discrepancy of dates on the petitioner's husband's death certificate which could be attributed to typographical error, and did not enhance the petitioner's claims of persecution, was not a proper basis for an adverse credibility finding in this case. Pregerson, Ferguson (author), and Wardlaw, Circuit Judges. G. Sarin of Los Angeles, CA, for the petitioners; J. Smiley of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 43) IMMIGRATION LAW: Albillo-Figueroa v. INS, 98-71239 (9th Cir. Aug. 4, 2000). On an issue of first impression, the USCA held that a conviction for possession of counterfeit obligations of the United States in violation of 18 USC Sec. 472, is an offense "relating to…counterfeiting" for purposes of Sec. 101(a)(43)(R) of the Immigration & Nationality Act. B. Fletcher, Hawkins (author), and Thomas, Circuit Judges. M. Franquinha of Phoenix, AZ, for the petitioners; A. Norwood of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 44) IMMIGRATION LAW: Garcia v. INS, 99-70206 (9th Cir. Aug. 22, 2000). Under 8 USC Sec. 1252b(a)(2)(A), the petitioners received adequate notice of their deportation hearing where the INS personally served notice of the hearing on their counsel. Wallace, Sneed, and Schroeder, Circuit Judges. Per Curiam. D. Ungar of San Francisco, CA, for the petitioners; Q. Vu of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 45) IMMIGRATION LAW: Barapind v. Reno, 99-16668 (9th Cir. Aug. 28, 2000). The BIA acted within the scope of its authority in holding the adjudication of the petitioner's asylum application in abeyance pending the resolution of his parallel extradition proceedings in federal district court. Lay, D.W. Nelson, and Thomas (author), Circuit Judges. K. Snell of San Francisco, CA, for Barapind; C. Bither of Washington, DC, for Reno. (Download the full text at www.ce9.uscourts.gov/) 46) IMMIGRATION LAW: Hernandez-Montiel v. INS, 98-70582 (9th Cir. Aug. 24, 2000). An alien who suffered police harass-ment and rape for being a gay man with a female sexual identity had a well-founded fear of future persecution and was entitled to asylum and withholding of deportation; concurring, Judge Brunetti agreed with the majority's conclusion, but also not with the majority's reasoning in reaching that conclusion. Brunetti (concurring) and Tashima (author), Circuit Judges, and Schwarzer, District Judge. R. Gerber of San Diego, CA, for the petitioner; A. Loughran of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 47) IMMIGRATION LAW: Lim v. INS, 98-70683 (9th Cir. Aug. 29, 2000). An alien who received death threats in his homeland but carried on there without harm and without fleeing for six years does not demonstrate past persecution. Goodwin (author), Schroeder, and Alarcon, Circuit Judges. M. Lim pro per; A. Crowley of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 48) CRIMINAL CONTEMPT: USA v. Galin, 99-50356 (9th Cir. Aug. 23, 2000). An attorney was properly found in criminal contempt for knowingly, intentionally, and repeatedly, violating a district court's ground rules for the conduct of a jury trial; the USCA rejected the contention that obstruction of justice is a prerequisite to criminal contempt against an attorney defendant a criminal defendant. Schroeder, T.G. Nelson, and Wardlaw, Circuit Judges. Per Curiam. N. Lewin of Washington, DC, for the contemnor-appellant; S. Rao of Washington, DC, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 49) FIREARMS / RESTRAINING ORDERS / DUE PROCESS: USA v. Kafka III, 99-30305 (9th Cir. Aug. 23, 2000). The USCA affirmed the defendant's conviction for possession of a firearm while under a domestic violence restraining order in violation of 18 USC Sec. 922(g)(8); it rejected defendant's contention that Sec. 922(g)(8) violates due process because it does not require notice to persons subject to state domestic violence restraining orders that they are prohibited from possessing firearms under federal law. Hug, Brunetti (author), and Gould, Circuit Judges. T. Monagham of Yakima, WA, for the appellant; AUSA S. Winiker of Yakima, WA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 50) CONFLICT OF INTEREST: USA v. Henke, 99-10015 (9th Cir. Aug. 25, 2000). The prosecution's use of a former co-defendant, with whom the current defendants' attorneys had an attorney-client relationship arising from a joint defense agreement, as a key witness at trial, created a conflict of interest that impaired defense counsel's ability to defend their clients; concurring, Judge Beezer stated that because the district court's error prejudiced both defendants and was not harmless, he would reverse the defendants' conviction and remand for a new trial, and because this ground is sufficient to order such relief, he would not address the other issues raised on appeal. Schroeder, Beezer (concurring), and Trott, Circuit Judges. Per Curiam. N. Wilder of San Francisco, CA, for the defendants-appellants; AUSA L. Gray of San Francisco, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 51) SEARCH & SEIZURE: USA v. Twilley, 99-50338 (9th Cir. Aug. 14, 2000). Evidence seized in a vehicle search that led to the defendant's conviction, but which had been the product of a traffic stop not supported by reasonable suspicion, had to be suppressed. Ferguson, Boochever (author), and Reinhardt, Circuit Judges. J. Martin of Los Angeles, CA, for the appellant; AUSA T. Warren of Los Angeles, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 52) SEARCH & SEIZURE: USA v. Knights, 99-10538 (9th Cir. Aug. 3, 2000). When a person on "summary probation" under California law has consented to warrantless searches of his home as a condition of probation, those searches must be conducted for probation purposes and not be mere subterfuge for an investigation search. Canby, Reinhardt, and Fernandez (author), Circuit Judges. AUSA M. Boersch of San Francisco, CA, for the plaintiff-appellant; AFPD H. Fox of Oakland, CA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 53) SEARCH & DETENTION / RACIAL PROFILING: Choi v. Gaston, 98-56854 (9th Cir. Aug. 8, 2000). A Korean plaintiff who was arrested and detained in a police search for a younger, taller, and similarly, but not identically, dressed Vietnamese suspect offered sufficient evidence to present a jury question regarding whether the police had reasonable suspicion to stop him or probable cause to arrest him, or instead acted on the basis of racial profiling. Browning, Noonan (concurring), and Silverman, Circuit Judges. Per Curiam. M. Yagman of Venice, CA, for the appellant; M. Gordon of Anaheim, CA, and L. Pape of Los Angeles, CA, for the ap-pellees. (Download the full text at www.ce9.uscourts.gov/) 54) EVIDENCE: USA v. Pena-Gutierrez, 99-50057 (9th Cir. Aug. 11, 2000). When the government has the name and address of a foreign witness, but makes no effort to contact that witness in his native country, the witness is not "unavailable" for purposes of Federal Rule of Evidence 804(a); here, however, the district court's ruling to the contrary was harmless error. Thomas, Silverman, and Wardlaw (author), Circuit Judges. FPD M. Garcia of San Diego, CA, for the appellant; AUSA D. Drosman of San Diego, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 55) EVIDENCE: USA v. Alatorre, 99-50587 (9th Cir. Aug. 16, 2000). Although it may be appropriate in some cases to conduct a separate pretrial hearing outside the presence of the jury to assess preliminary issues of relevance and reliability of experts, a separate hearing, as opposed to an evidentiary determination during trial, is not required in order to fulfill the "gatekeeping" function outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993), General Electric Co. v. Joiner, 522 US 136 (1997), and Kumho Tire Company v. Carmichael, 526 US 137 (1999). Trott, Fernandez, and McKeown (author), Circuit Judges. FPD C. Go-mez of San Diego, CA, for the defendant-appellant; AUSA J. Puleo of San Diego, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 56) CRIMINAL PROCEDURE: USA v. Rivera-Sanchez, 99-10243 (9th Cir. Aug. 2, 2000). When a defendant was convicted on a single count violation of 8 USC Sec. 1326(a) for illegal reentry after deportation, but the indictment and judgment allege that he violated both Sec. 1326(a) and 8 USC Sec. 1326(b)(2), which does not define a separate punishable offense, the reference to Sec. 1326(b)(2) should be struck as a clerical error. B. Fletcher, Alarcon (author), and Hawkins, Circuit Judges. S. McNamara of Tucson, AZ, for the appellant; AUSA R. Gordon of Tucson, AZ, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 57) JURY INSTRUCTIONS:Patterson v. Gomez, 99-15530 (9th Cir. Aug. 16, 2000). Under the circumstances of this case, a jury instruction that required the jury to presume the defendant to be sane at the guilty phase of his murder trial, violated the Due Process Clause of the Fourteenth Amendment and was not harmless error. Sneed, Pregerson, and W. Fletcher (author), Circuit Judges. C. Bonneau of Sacramento, CA, for the petitioner-appellant; S. Cross of Sacramento, CA, for the respondent-appellee. (Download the full text at www.ce9.uscourts.gov/) 58) INEFFECTIVE ASSISTANCE OF COUNSEL: USA v. Nunez, 98-50084 (9th Cir. Aug. 16, 2000). A defendant waives the right to argue on direct appeal that he was denied effective assistance of counsel at sentencing where he had waived the right to appeal his sentence. Wallace (author), Pregerson, and Thomas, Circuit Judges. D. Katz of Los Angeles, CA, for the defendant-appellant; AUSA L. Aouate of Santa Ana, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 59) RIGHT TO COUNSEL: Baker v. City of Blaine, 98-35378 (9th Cir. Aug. 9, 2000) (The opinion of March 6, 2000 in this case has been withdrawn.) A state criminal defendant was not deprived of his Sixth Amendment right to counsel during a misdemeanor arraignment where he pleaded guilty to the charge, did not appeal or otherwise contest the resulting conviction, and nothing occurred during the arraignment that was material to later trial proceedings; the USCA found that the record left little doubt that the defendant's "was well aware" of his right to counsel; dissenting, Judge Canby viewed the state court decision as either contrary to, or an unreasonable application of Supreme Court law, or both, as that law is set forth in Johnson v. Zerbst, 304 US 458 (1938), Von Moltke v. Gil-lies, 332 US 708 (1948), and Faretta v. State of California, 422 US 806 (1975). Canby (dissenting), Brunetti, and O'Scannlain (author), Circuit Judges. S. McCloud of Seattle, WA, for the petitioner; M. Elich of Bellingham, WA, for the respondent-appellee. (Download the full text at www.ce9.uscourts.gov/) 60) SENTENCING:USA v. Nelson, 99-10127 (9th Cir. Aug. 16, 2000). A defendant need not prove his eligibility for "safety valve" relief under USSG Sec. 5C1.2 by more than a preponderance of the evidence. Bright (author), Pregerson, and W. Fletcher, Circuit Judges. FPD F. Forsman of Las Vegas, NV, for the appellant; K. Landreth of Las Vegas, NV, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 61) SENTENCING: USA v. Carter, 99-50388 (9th Cir. Aug. 9, 2000). Under Fed. R. Crim. Proc. 32, a sentence must be vacated where the district judge failed to explicitly resolve disputed factual issues in a presentence report relied upon for sentencing purposes. Thompson, W. Fletcher (author), Fisher, Circuit Judges. M. Treman of Santa Barbara, CA, for the defendant-appellant; AUSA C. Olmedo of Los Angeles, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 62) SENTENCING: USA v. Nanthanseng, 99-30137 (9th Cir. Aug. 7, 2000). The societal interests threatened by a conspiracy to distribute drugs and the societal interests threatened by a conspiracy to possess and sell stolen firearms are not "closely related" for purposes of USSG Sec. 3D1.2; having failed to show that his offenses threatened closely related societal interest and thus construc-tively involved the same victim, as Sec. 3D1.2 requires, the defendant perforce failed to establish that the district court erred in refus-ing to group his offenses for purpose of apply USSG Sec. 3D1.3. Reavley, Hall, and O'Scannlain (author), Circuit Judges. P. Camiel of Seattle, WA, for the defendant-appellant; AUSA J. Lord of Seattle, WA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 63) SENTENCING: USA v. Michael, 99-10365 (9th Cir. Aug. 17, 2000). On an issue of first impression, the USCA held that a cellular phone can qualify as a dangerous weapon when represented by the defendant to be a gun. Lay, D.W. Nelson (author), and Thomas, Circuit Judges. J. Graves of Las Vegas, NV, for the defendant appellant; AUSA M. Parrella of Las Vegas, NV, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 64) SENTENCING: USA v. Valensia, 99-10170 (9th Cir. Aug. 1, 2000). The district court did not err in applying the preponderance of the evidence standard in making its factual determinations regarding sentence enhancements, because the contested enhancements, based on uncharged acts or conduct, did not have an extremely disproportionate effect on the length of the defendant's sentence. Alarcon (author), Tashima, and Silverman, Circuit Judges. P. Milrod of Fresno, CA, for the defendant appellant; AUSA W. Shipley of Fresno, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 65) HABEAS CORPUS / SUCCESSIVE MOTIONS: Lorentsen v. Hood, 99-35147 (9th Cir. Aug. 11, 2000). The USCA held that under any of the standards employed by sister circuits, the petitioner in this case could not invoke successfully the "escape hatch" of 28 USC Sec. 2255 and thus, under any reading of the statutes, he was not entitled to proceed under 28 USC Sec. 2241 and the dis-trict court did not have jurisdiction over his petition; the USCA expressly did not decide if a federal prisoner can invoke the "inadequate-or ineffective-remedy" escape hatch in order to avoid Sec. 2255's ban on second or successive motions based on intervening statutory decision. Noonan, Graber (author), and Fisher, Circuit Judges. AFPD M. Levine of Portland, OR, for the petitioner-appellant; AUSA T. Flynn of Sacramento, CA, for the respondent-appellee. (Download the full text at www.ce9.uscourts.gov/) 66) HABEAS CORPUS: James v. Giles, 98-56751 (9th Cir. Aug. 4, 2000). A district court erred in failing to provide a habeas cor-pus petitioner an opportunity to amend his petition by deleting unexhausted claims, thereby permitting substantive consideration of his properly exhausted claim filed within the limitations period. Canby (author) and W. Fletcher, Circuit Judges, and Sedwick, District Judge. V. Wefald of Pasadena, CA, for the petitioner-appellant; D. Wilson of Los Angeles, CA, for the respondents-appellees. (Download the full text at www.ce9.uscourts.gov/) 67) SUPERVISED RELEASE: USA v. Sesma-Hernandez, 99-10491 (9th Cir. Aug. 2, 2000). In a revocation of supervised release proceeding, it was harmless error for a district judge to exclude possibly relevant but weak evidence, where the evidence of violations of the conditions of the supervised release was clear; Judge Reinhardt concurred because constrained to do so by USA v. Daniel, 209 F.3d 1091 (9th Cir.), amended by case No. 99-10268, slip op. 7235 (9th Cir. July 7, 2000); however, Judge Reinhardt wrote separately to express his concern about the "lawless state of the law in our circuit concerning the necessity of findings in probation revocation proceedings, and to suggest that en banc consideration of this question is warranted in view of our disregard of controlling Supreme Court precedent." Canby, Reinhardt (concurring), and Fernandez (author), Circuit Judges. AFPD J. Carr of Las Vegas, NV, for the defendant-appellant; AUSA W. Ayers of Las Vegas, NV, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 68) PAROLE: Marquez-Perez v. Rardin, 98-56048 (9th Cir. Aug. 10, 2000). The Parole Commission may not delegate its discretionary authority to reopen cases to a "case analyst"; here, in so far as the USCA could determine from the record, the Parole Commission failed even to consider the petitioner's request for reconsideration of his parole date, instead allowing that function to be per-formed by a case analysts. Reinhardt (author) and O'Scannlain, Circuit Judges, and Schwarzer, District Judge. M. Shein of Atlanta, Georgia, for the appellant; E. Artson of Los Angeles, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 69) PRISONERS' RIGHTS: Gilmore v. California, 98-15198 (9th Cir. Aug. 4, 2000). The termination provisions of the Prison Litigation Reform Act of 1995, which require termination of prospective relief in prison conditions cases, are constitutional but a district court cannot terminate or refuse to grant prospective relief necessary to correct current and ongoing violations of prison conditions so long as the relief is limited to the constitutional minimum. Bright, B. Fletcher (author), and Thompson, Circuit Judges. D. Specter of San Quentin, CA, for the plaintiffs-appellants; D. de Kercor of San Francisco, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) MEMORANDA
1) TAXATION
/ IRC Sec. 174: Sheehy v. CIR, 99-70301 (9th Cir.
Aug. 17, 2000) (unpublished). Alarcon, O'Scannlain, and Gould, Circuit
Judges.
2) ADMIRALTY
/ ENVIRONMENTAL LAW: Kure Shipping S.A. v. Louisiana Pacific Corp.,
99-16835
(9th Cir. Aug. 15, 2000) (unpublished). Schroeder, Hawkins,
and Fisher, Circuit Judges.
|