Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

The fellows over at the Drug and Device Law Blog have taken time away from their usual discussions of pharmaceutical and medical device product liability litigation to reflect upon the importance of the standard of review in appellate cases.  

Recalling a former life as a clerk at the Ninth Circuit,  DDL notes that “the ‘abuse of discretion’ standard of review meant that we should get out the ‘affirmed in a heartbeat’ stamp, while a ‘de novo’ standard of review meant that there would be a serious shooting match.” 

DDL appropriately reminds appellate attorneys that the appellants wants to find a way to require de novo review, while the appellee benefits from characterizing the standard as clear error or abuse of discretion.  They also offer a handy link to the Ninth Circuit’s standard of review outline, which is updated yearly with the most recent cases defining the standard of review for various issues. 

Thanks to DDL for the timely reminder of the Ninth Circuit’s outline!

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As of April 10, new rules for judicial conduct are in effect. However,  in posting the new rules, the Ninth Circuit felt the need to remind potential complainants that while, any person can file a complaint about a federal judge’s conduct, conduct does not  mean decision. In other words, don’t grieve a judge because you don’t like the ruling.

Here are the links the Court posted about the new rules and the complaint form:

Rules of the Judicial Council of the Ninth Circuit Governing Complaints of Judicial Misconduct or Disability

Complaint Form (Complaint of Judicial Misconduct or Disability)

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The Ninth Circuit heard oral arguments at UNLV yesterday, the first time the Court has sat at the law school. The panel consisted of Chief Judge Alex Kozinski and Circuit Judges Marsha S. Berzon of San Francisco and Jay S. Bybee of Las Vegas. The arguments were held in the Thomas & Mack Moot Court Facility

 The Court heard three cases, including arguments by Federal Public Defender Franny Forsman that former Clark County commissioner Mary Kincaid-Chauncey should receive a new trial due to exclusion of witnesses offered to challenge the credibility of star prosecution witness Michael Galardi. Forsman also argued that the instructions to the jury should have required them to find Kincaid-Chauncey accepted money with the intent to vote in favor of Galardi.

The other two cases heard were Borodkin v. Omni Air International, an appeal of a summary judgment for the defense in a wrongful discharge and defamation case and another criminal matter, United States v. Flaherty.

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In Betz v. Trainer Wortham, the Ninth Circuit made small amendments to the previous opinion, in which the three panel court had held that a jury must decide whether a securities fraud plaintiff was put on inquiry notice of fraud long enough before she filed suit for the statute of limitations to have run. With such amendments, the motion for en banc rehearing is denied. Judge Kozinski writes a stinging dissent from that denial, noting that the Court places itself in “left field again”—that is, alone among all the appellate circuits—by requiring a jury to determine whether the investor was placed on inquiry notice where the facts are undisputed.  Noting here that the investor claims she had been promised zero risk on her investment, yet understood statements showing a decrease in her principal, Kozinski argues that as a matter of law, she was placed on sufficient inquiry notice to start the running of the statute.

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It must be frustrating to a judge, when, after having taken the time to plod through the briefs and evidence presented on dispositive motions, and even drafting a decision that in favor of a party, the parties settle the case—especially if the decision would have resulted in judgment for the defendants. But frustrating as this may be, the judge can’t ignore the settlement and issue its ruling.

On February 19, 2008, in In re Syncor ERISA Litigation: Pilkington v. Cardinal Health, Inc., the Ninth Circuit held the district court abused its discretion in not holding the required hearing to review the binding class action settlement reached by the parties, even though the district court had already drafted – but not entered—an order granting the defendants’ dispositive motions. Instead of holding the hearing, the district court entered judgment against the class.  

But Defendants needn’t feel too badly about their decision to settle the case. The Court also held the summary judgment itself was error, as a material issue of fact regarding whether the defendants breached their duty to conform to the prudent man standard of investment off the plan’s assets.  The Court took care to note that it has not adopted the presumption that a ESOP plan administrator acts consistently with ERISA in investing assets in employer stock.

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In Johnson v. Riverside Health Care System, the Ninth Circuit upheld the dismissal of Johnson’s discrimination claims.  The court upheld the dismissal of the 42 U.S.C. § 1981 claim,  finding no hostile work environment where there was only one alleged incident of racial discrimination; other incidents, while offensive, were not shown to have arisen from racial animus rather than personal dislike.  The state law discrimination claim under California’s Unruh Act, Calf. Civil Code Act § 51,  was properly dismissed as the allegation was for employment discrimination, but the statute covered discrimination in the provision of goods and services.

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On February 11, 2008, in Certain Underwriters at Lloyds,London  v. Inlet Fisheries Inc., the Ninth Circuit held that the doctrine of uberrimae fidei continues to govern maritime insurance contracts, including vessel pollution insurance.  The doctrine requires both parties to an insurance contract to act with the utmost good faith toward each other.  This requires  each  to disclose all material information.

Here, Inlet Fisheries did not make disclosures that were deemed material to its pollution insurance policy, yet had never been requested by Lloyds. However, knowledge of the state of the company’s fleet, and its history of pollution losses, and the reasons its previous insurance had been canceled would have been relevant to Lloyds’s calculation of risk. Since Inlet did not make the disclosures, the insurance was void ab initio.

This uberrimae fidei is an interesting doctrine.  Wouldn't it be nice if it applied in politics?  Think of the elections that could be void, due to nondisclosure to voters of material facts.

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 On February 11, 2008, in Planned Parenthood v. American Coalition of Life Advocates, the Ninth Circuit held that, pursuant to FRAP 37(d),where a mandate instructs entry of judgment of a specific amount without designating the interest date for accrual of interest, the District Court does not have the authority to order the interest to accrue from the date of original judgment.  

Here, there had been an appeal of a punitive judgment award, which was reduced as excessive. The Court had remanded to the district court with instructions to enter judgment for a specific amount, without specifying a date of accrual of post-judgment interest.  The district court ordered that the interest would accrue from the date of the original judgment.  Although this was error, the Court held that its own failure to designate the date of accrual was an oversight, and accordingly, recalled and amended the earlier mandate to provide for accrual of post-judgment interest from the date of the original judgment.

Despite the happy ending for Planned Parenthood, the winner of that punitive judgment award, Judge Fisher calls this opinion “a cautionary tale for all whose judgments are subject to the requirements of Rule 37(d).”  In other words, don’t forget to ask the court to specify the interest accrual date; or seek recall immediately if the date is left out.. The Court recalled its mandate so longer after its issuance here only because it recognized that precedent in the matter had not been clear.

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A private corporation simply cannot be an arm of a state.   That's the conclusion of the Ninth Circuit in Del Campo v. American Corrective Counseling Services.  The court held, somewhat testily, that private entities are not entitled to 11th amendment immunity. 

In this consolidated case, the plaintiffs brought an assortment of state and federal fair debt collection claims against ACCS, a private corporation. ACCS operated a bad check recovery program for the Santa Clara DA.  The Court held that ACCS’s status as a private entity, not its conduct, is what determines its ineligilbity for 11^th amendment immunity.

 

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The Ninth Circuit granted a motion for en banc rehearing in Redding v. Safford Unified  School Dist. #1.  The three judge panel opinion, discussed here, had held that the strip search conducted by the school had not violated the student’s 4^th amendment rights.  

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In Silvas v. E*Trade Mortgage Corp., the Ninth Circuit upheld the dismissal of claims violations of the a Truth in Lending Act predicated on claimed violations of California’s Unfair Competition Law resulting from a refusal to refund a fee charged to lock in an interest rate after the borrowers rescinded the mortgage within the 3 day period.. The Court held the state laws were preempted by the regulations of the Office of Thrift Supervision and Home Owner’s Loan Act.

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In Costco Wholesale v. Hoen, the Ninth Circuit upheld the District Court’s determination that Washington’s requirements that liquor sellers post their pricing, and hold such prices for 30 days violates the Sherman Antitrust Act.  The Court found that Washington’s goals of promoting temperance did not save the statutes, as Washington failed to establish the “post and hold” requirements actually do promote temperance, and therefore, the state’s interests do not outweigh those of the Antitrust Act.  The Court overturned the district court’s finding that other liquor regulations also violated the Sherman Anti-trust Act, finding that once the post-hold requirements were severed, the other regulations, such as prohibiting volume discounts or credit sales to wine and beer retailers were unilateral restraints.

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In Solis v. Beltran, the Ninth Circuit reversed the summary judgments entered against Solis, due to the failure to give Solis, a pro se prisoner, notice of the procedural requirements for response to a summary judgment motion. The Court affirmed the summary judgment of the § 1986 claim as untimely. The Court reversed the district court’s judgment entered following a bench trial as the court had erroneously denied the request for a jury trial and such error was not harmless. The Court held that a properly filed demand for jury trial satisfies all requirements.  Jury trial cannot be deemed waiver by a failure to file jury instructions or special verdict forms.

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Today the Ninth Circuit upheld the NLRB’s exoneration of the Aladdin on certain anti-union charges, and found that Arizona’s specialty license plate program violated an anti-choice group’s First Amendment rights.

In Local Joint Exec. Bd. of Las Vegas v. NLRB, the Ninth Circuit upheld the NLRB’s decision reversing the decision of the ALJ that had held Aladdin Gaming, LLC to have engaged in illegal surveillance of labor activities. The Court upheld the Board’s adoption of a three part test to determine whether activities constitute illegal surveillance that considers the indicia of coerciveness during observation, the employer’s distance from employees while observing, and whether the employer engaged in coercive behavior during its observation.  In this case, the conduct consisted of two individual members of management offering opinions and advice regarding union promises while union organizers were talking to employees.  The Board found there was no evidence of coercive conduct.

In Arizona Life Coalition,  Inc. v. Stanton, the Ninth Circuit held that the Arizona License Plate Commission violated the plaintiff’s first amendment rights when it denied the request for a special organization license pledge that contained the message “Choose Life.”  The Court found that Arizona had created a limited public forum for nonprofits by offering its specialty license plate program.  The Court rejected the claim that the license plate program created an endorsement by the state of the views presented on specialty plates.

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Today marks a change for Appealing in Nevada.

Faithful readers have perhaps noticed a certain lack of attention given to the 9th circuit recently. This is not, of course, due to a lack of interest on my part, but instead, a lack of time. 

Alas, realities, including the tremendous energy of that Court in producing published opinions, and the demands of my own work, have made it challenging for me to review and report on all of its published opinions. After considerable reflection, I have decided to redefine my focus to better fit my own practice, as well as to avoid duplication of efforts made by other bloggers.

For example, the criminal law related decisions by the 9th Circuit are discussed in a very timely and thorough fashion by the Ninth Circuit Blog, which offers commentary by federal public defenders. Frankly, they do a much better job of pointing out the significance of the criminal law decision than I do anyway. There are also a number of blogs offering updates and commentary on immigration law, including The Immigration Law Blog, Greg Siskind’s Blog, and the Immigration Profs Blog. Again, their expertise in the area no doubt makes their commentary more valuable than mine.

Accordingly, henceforth my coverage of the Ninth Circuit will focus on the civil decisions dealing with federal law, and those decisions from diversity cases  that are relevant to Nevada. 

Of course, that doesn’t mean I won’t mention any other types of decisions I find particularly interesting.  

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Today, the Ninth Circuit issued four published opinions:

In U.S. v. Zimmerman, the Court reversed the district court’s determination that Zimmerman’s objections to the taking of a blood sample for purposes of providing the required DNA sample were not religious. The District Court had so found because the Roman Catholic Church, in which Zimmerman was reared, does not forbid blood draws. However, a sincere religious belief need not be based on a mainstream religious view. The Court remanded for determination of the scope of Zimmerman’s belief, including whether other forms of DNA sampling would not violate any such beliefs, as well as the determination of the sincerity of Zimmerman’s beliefs. If the beliefs are religious and sincere, then the court must determine whether DNA sampling serves a compelling state purpose, or whether another form of sampling would serve.

 In PAE Government Services, Inc. V MPRI, Inc., the Curt reversed the district curt’s dismissal of an amended complaint.  The district court had found the allegations in the amended complaint to be inconsistent with those in the original, which had been dismissed, and found the amended complaint to be a sham.  The 9h Circuit held that a district is not authorized to make such determinations at that stage in the proceedings.  Noting that complaints are not required to be verified, and that pleading in the alternative is permitted, the Court held absent a showing that there was bad faith, nothing in the federal rules prohibit a party from making successive, contradictory pleadings.  The Court affirmed the dismissal of the promissory estoppel claim, as such a claim is not permitted in Virginia, the choice of law under the contract the plaintiff sought to enforce.

In Iasu v. Smith,  the Court affirmed the district court’s determination that if had no jurisdiction to determine Iasu’s claim that, because he has a colorable claim for citizenship, removal proceedings must be halted.  The court noted that Iasu could move to reopen his removal proceedings to present his claim that he is actually a citizen.   Because his claim of citizenship could thus be reviewed, the REAL ID Act does not violate the Suspension Act in Iasu’s case.

In K & N Engineering v. Bulat, The Ninth Circuit held that where a plaintiff has elected to pursue statutory, rather than actual damages in a trademark infringement case, the statute, 11 U.S.C. § 1117, does not provide for an award of attorneys fees. Accordingly, the award of fees by the district court was an abuse of discretion

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Today, the Ninth Circuit issued only one published opinion:

In U.S. v. Biagon, the Court held that the defendant’s right to allocate was not infringed by the district court’s refusal to seal the courtroom. The defendant did not follow the procedure to seal  the courtroom, nor was the request tied to a desire to allocate in private. The defendant did actually allocate, and nothing indicate he was refraining from saying more. Finally, the district court was aware of the extent of his cooperation.

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December 10, 2007

Sparkman v. Commissioner Of Internal Revenue

Humanitarian Law Project v. Mukasey

Hale v. U.S. Trustee

December 11, 2007

SEC v.. Shaw

Byrd v. Lewis

Intern’l Union Of Painters, Local 1621 v. B&B Glass, Inc.

Dukes v. Wal-Mart Store

December 12, 2007

U.S. v. SOLTERO   

U.S. v. Moreland

December 13, 2007

Global Horizons, Inc. v. U.S. Department Of Labor            

Toufighi v. Mukasey

Fair Housing Council v. Roommates.Com, Llc

December 14, 2007

Ditto v. Curdy

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December 3, 2007

In Re: Wind & Wave; North Sports v. Knupfer

Bolt V. Usa

Tekle V. U.S. - Appendix

Blanchard V. Morton School

Tekle V. Usa

Avila-Sanchez V. Mukasey

Perfect 10, Inc. V. Amazon

Arizona Health Care V. Mcclellan

Action Apartment Association V. Santa Monica Rent Control

Goodstein V. Industrial Indemnity

Continue Reading...

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November 26, 2007

Miller v. Thane Int'l.

November 27, 2007

Soremekun v. Thrifty Payless, Inc.

Summers v. Delta Airlines, Inc.

Vatyan v. Mukasey

Doe v. Woodford

November 28, 2007

Ufo Chuting Of Hawaii, Inc. v. Smith

Beaty v. Schriro

California Department Of Toxic v. Alco Pacific, Inc.

November 29, 2007

Sekiya v. Gates

Alvarado v. Table Mountain

Chaly-Garcia v. Usa

U.S. v. Brooks

In Re Keith Thomas

Bias v. Moynihan

U.S. v. Kriesel

November 30, 2007

Duran Gonzales v. Homel& Security

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November 19, 2007

Gardner v. Mega Life & Health

Grigoryan v. Keisler

U.S. v. Garcia

November 20, 2007

Wah Chang v. Duke Energy Tradidng

Fisher v. City Of San Jose

November 21, 2007

J&J Celcom v. At&T Wireless

Nascimento v. Dummer

Barragan-Lopez v. Mukasey

There Were No Opinions Issued On November 22 or 23.

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November 14, 2007

Center for Biological Diversity v. National Highway Traffic Safety Administration

Scheehle v. Justices Of The Supreme Court Of Arizona

Sissoko v. Rocha

November 16, 2007

Sprint Pcs Assets v. City Of Palos

Al-Haramain Islamic v. Bush

Hepting v. At&T Corportation

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On November 14, 2007, the Ninth Circuit issued one published decision:

In California Pro-Life Council, Inc. v. Randolph, the Ninth Circuit held that California’s Political Reform act.. The Court found that the statute’s definition of “contributions” was narrowly tailored to serve the government’s conceded compelling interest. However, the Court found the statute’s imposition of political action committee-like requirements on “recipient committees” was not sufficiently narrow to survive strict scrutiny, (which standard applied due to law of the case).

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On November 13, 2007, the Ninth Circuit issued two published orders:

In Natural Resources Defense Council, Inc. v. Winter,  the Ninth Circuit vacated its previously issued stay of a preliminary injunction precluding the use of sonar during exercise, effective ten days from the date of the order or completion of a current exercise, whichever is earlier, and remanded with instructions to the District Court to conduct hearings and issue and appropriately tailored injunction by January 4, 2008.

In Busch v. Woodford,  the Court withdrew the opinion issued August 29, 2007, with a promise of a modified opinion at a later date.

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On November 9, 2007, the Ninth Circuit issued one published opinion and one published orders:

 In Doran v. 7-Eleven, Inc., the Ninth Circuit held that a plaintiff has standing to challenge alleged ADA violations not personally experienced by the plaintiff, where the violations the plaintiff did experience prevented the plaintiff form personally discovering those violations. Thus, here, where the plaintiff’s was prevented access by inadequate disabled parking and wheelchair ramp, other violations discovered by his expert may also be challenged. The Court also affirmed a ruling that failure to allow a disabled patron access to an employee only restroom is not a violation of the ADA.

 In Montalvo v. Spirit Airlines, the Ninth Circuit amended a typographical error, and  added a case number of one of the consolidated appeals, Hind v. Southwest Airlines, Case No,. 05-17181, to the opinion originally filed  October 4, 2007.

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On November 8, 2007, the Ninth Circuit issued three published decisions:

In Alaska v. EEOC, the Ninth Circuit dismissed as barred by the 11^th Amendment a suit brought by two former employees of the Alaska Governor’s office.  The Court found that GERA, 42 U.S.C. §§ 2000e-16a, et seq., was enacted without findings by Congress of the existence of state discrimination against employees who are personal staff of elected officials, a class previously exempted from discrimination law protections. The lack of findings results in the inability to find that GERA was a proportionate response to an identified evil.

In Khaligh v. Hadaegh, the Ninth Circuit affirmed Khaligh v. Hadeagh, 338 B.R. 817 (B.A.P. 9^th Cir. 2006), for the reasons stated in that opinion.

In U.S. v. Gamboa-Cardenas, the Ninth Circuit held that “safety valve relief,” which allows a reduced sentence for certain offenses where the defendant meets specific criteria, does not apply to the offense of possession with intent to distribute cocaine while aboard a vessel.  The Court rejected the argument that the government was estopped to argue the safety valve did not apply to the offense as to three defendants, two of whom raised it for the first time on a appeal, and the third who failed to show detrimental reliance. However, the Court found that Gamboa-Victoria had failed to exercise his right to testify at trial in reliance upon the government’s assurance that the safety valve would apply.

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On Tuesday, Nov. 6, the Ninth Circuit issued three published decisions.

U.S. v. Sherburne

Fidelity Exploration v. U.S.

Irons v. Carey

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On Monday, Nov. 6, the Ninth Circuit issued six published decisions.

Perfumebay.Com, Inc. v. EBay,Inc.

Hanna v. Keisler

U.S. v. Gonzales

Lewis v. United States Of Education

Financial Management Advisers v. American International Specialty Line Insurance Company

U.S.  v. Cope

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On Friday, Nov. 2, the Ninth Circuit issued one published decision.

In Rebilas v. Keisler, the Ninth Circuit held that Arizona’s offense of public sexual indecency to a minor includes conduct that falls outside the federal definition of attempted sexual abuse to a minor. The Court noted that the offense could be committed even though the minor was oblivious to the offender’s conduct. As the details available of Rebilas’s conviction did not show that he had committed attempted sexual abuse of a minor, the conviction was not for an aggravated felony for purposes of removal.

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I've fallen behind in my review of Ninth Circuit Cases.  I'll publish links now, and update with descriptions in the next few days.

On Thursday, Nov. 1, the Ninth Circuit issued eight published decisions.

In Re: Wind And Wave; North Sports v. Knupfer

US v. Gooch

Outdoor Media Group v. City Of Beaumont

Skaff v. Meridien North America Beverly Hills, Llc

Beck v. United Food Commercial Workers Union, Local 99

Get Outdoors II, LLC v.. City Of San Diego

Crown Point Development v. City Of Sun Valley

Medley v. Runnels

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On October 31, 2007, the  Ninth Circuit issued three published decisions         

In U.S. v. Preciado, the Ninth Circuit , per curiam,  affirmed the enhancement of Preciado’s sentence, where she brought her four children along with on her attempt to smuggle marijuana into the U.S. from Mexico.   Circumstantial evidence showed that Preciado had time to arrange child care, and also had child caregiver available to her. In those circumstances, the district court could plausibly infer that the presence of the children was intended to enhance her chances of making her border crossing appear to be a family visit.

In U.S. v Hernandez-Vasquez, the Ninth Circuit clarified standards related to orders permitting the involuntary medication of a defendant for purposes of return him to competency. Such orders are permitted under Sell v. United States, 539 U.S. 166 (2003), relying on Washington v. Harper, 494 U.S. 210 (1990)(holding that dangerousness of undedicated inmate justifies government in medicating inmate involuntarily).  The Court adopted a standard of review of Sell orders holding that a district court’s determination of the seriousness of the crime is subject to de novo review, while the remaining Sell factors are reviewed for clear error. The Court also held that such an order must be specific as to permitted medications and dosages, and must set forth a time period for a physician to report back to the court as to status and effect of the treatment. The order here failed to have the necessary specificity, and was therefore vacated, with remand to the district court.

In Suntharalinkam v Keisler, the Ninth Circuit amended the order previously field on October 18, 2007, permitting the withdrawal of the Petition for Review. Judge Kozinski’s dissent to the order permitting withdrawal remains intact.

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The Ninth Circuit issued no published decisions on October 29.

On October 30, 2007, the Ninth Circuit issued one new published decisions and amended a previously issued opinion:

In Jordison v. Keisler, the Ninth Circuit amended the opinion filed on September 4, 2007. The outcome is unchanged.

In Desert Outdoor v. City Of Oakland, the Ninth Circuit upheld an Oakland ordinance regulation outdoor advertising. The ordinance banning freeway-visible advertising signs applied only to commercial speech; the fact that it except time and temperature signs did not transform it to apply to noncommercial speech. The District Court had found the time and temperature exception unconstitutional, and severed. Oakland had not appealed that decision, but this opinion makes clear time and temperature signs are not commercial speech. Oakland had deleting a potentially constitutionally invalid provision from the ordinance prior to the court’s ruling, rendering a challenge of it moot.

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On Monday, October, 29, 2007, the Ninth Circuit issued two published opinions:

In Ellett v. Goldberg , the Ninth Circuit held that a failure to provide the debtor’s accurate social security number in the notice to a creditor of the bankruptcy filing  results in a lack of proper notice, preventing a discharge. Here the creditor did not attend the creditor’s meeting or make a claim to be included in the Chapter 13 plan because of the inaccurate social security number.

In Our Children's Earth Foundation v. EPA , the Ninth Circuit held that while the decision whether to revise effluent guidelines under the Clean Water Act, 33 U.S.C. § 1251(a), is discretionary with the EPA, the agency does not have discretion to ignore technology-based criteria in favor of hazard based criteria. The Court found that technology-based effluent guidelines were central to the requirements of the Clean Water Act’s and its subsequent amendments.  The Court also held that only challenges to the EPA’s non-discretionary acts may be brought by the citizen suit provision from in § 505 of the Clean Water Act.

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On Oct. 25, 2007, the Ninth Circuit issued one published decision:

In U.S. v. Banks, the Ninth Circuit reversed the convictions for a crime of violence in aid of racketeering, due to erroneous instructions.  The Court held the jury was erroneously instructed that it could convictif it “at least one of Defendant’s purposes” in employing the violence was related to maintaining his position in his gang. While a gang related purpose need not be the sole purpose, it must be a substantial purpose. Here, while there was sufficient evidence to support a conclusion that Banks acted to maintain or further his position, there was also considerable evidence that he acted out of personal dislike for his intended victim. The Court rejected the Banks’ challenges to his other convictions. 

This opinion is well worth reading simply for the description of Banks’s spectacularly unsuccessful attempts to harm his victim.  

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Note - There were no 9^th Circuit decisions on Oct. 23.

On Oct. 24, 2007, the Ninth Circuit issued one published decision:

In U.S. v. Salazar-Lopez, the Ninth Circuit held that an Apprendi error occurred in the defendant’s trial for having been found present in the U.S. following removal, as Defendant’s indictment had not included an allegation that he had been removed following a felony conviction. While such allegation and proof is not needed for the conviction, it is required to apply certain enhanced sentencing.  However, the error was harmless, as the record supporting the fact of removal after the conviction was “overwhelming and uncontroverted.”

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On Oct. 22, 2007, the Ninth Circuit issued two published decisions, and one published order:

In U.S. V. Perez-Perez, the Ninth Circuit affirmed the sentence imposed for illegal re-entry after being deported. . The Court held that the sentencing court is not required to address a defendant’s reasons for a downward departure from sentencing guidelines, but must only give reasons for the sentence imposed.

In U.S .v. Rodriguez-Guzman, the Ninth Circuit held that California’s statutory rape law, California Penal Code § 261.5(c), which sets the age of consent at 18,  is overly inclusive, and cannot be consider a categorical crime of violence under the sentencing guidelines.  The majority reasoned that as the vast majority of the states, the federal law, and the Model Penal Code define the age of consent for purposes of statutory rape at 16 so that California’s definition exceeds the common and accepted definition. The Court held that statutory rape is a per se crime of violence.

In Barajas v. Wise, the Ninth Circuit granted the motion for panel rehearing, withdrew the opinion published at 481 F.3d 734 (9^th Cir. 2007) and resolved the matter in an unpublished decision.

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On Oct. 19, 2007, the Ninth Circuit issued two published decision:

In U.S. v. Soltero, the Ninth Circuit partially affirmed Soltero’s sentence and remanded for a change in some details. The Court held the district court's failure to determine whether Soltero had reviewed the presentence report was error, but harmless here where Soltero did not state he had not reviewed it, and did not identify any detail therein he disputed. The Court also affirmed the requirement that Soltero pay for his drug treatment while on supervised release, with the parole officer given discretion to determine his ability to pay, and with the requirement that Soltero not associate with the “Delhi Street Gang.” However, requirements that he use his “true legal name” which prevent him from using the surname Soltero, his step-father’s name, was order rephrased to require him to use Soltero. The requirement that, while on supervised release, he not asociate with “any known member of any . . . disruptive group” was impermissibly vague.  

In US. v. Salcio, where the defendant appeals his conviction for possession of child pornography, the Ninth Circuit avoiding making a determination whether a jury may determine, based solely on the images themselves, whether images depict minors. There was sufficient other evidence, including a detective’s testimony that he recognized and interviewed one of the child victims depicted in the images, and including defendants admissions that he sought out child pornography, to support the jury’s conclusion that the images were of a minor.

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On Thursday,  October 18, 2007, the Ninth Circuit issued one published order.

In Suntharalinkam v.. Keisler, the Ninth Circuit accepted the unopposed motion to withdraw the appeal, and withdrawal of the 3panel decision. Judge Kozinski dissented for about 18 pages, decrying the practice of accepting a motion to withdraw after cases have been argued and submitted. Here, the assumption appears to be that the question asked at oral argument suggested a likely outcome unfavorable to the appellant and to his amici. Judge Kozinski questioned the voluntariness of the withdrawal, and urged the Court to take measures to insure the action was, indeed, a reflection of the will of the appellant.

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On Wednesday, October 17, 2007, the Ninth Circuit issued one published opinion, and two published orders.

In Acosta v. Hill, the Ninth Circuit held that where a jury found that an officer’s actions were reasonable, and therefore, not excessive force, there was no error in the trial court’s failure to give a separate instruction on deadly force. The Court noted that Scott v. Harris, 127 S.Ct. 1769 (2007), which held there is no separate “unconstitutional deadly force issue” governed the issue.

In Beltran v. Santa Clara County and in Navajo Nation v. United States Forest Service, the Ninth Circuit ordered that the matters be reheard en banc.

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On October 16, 2007, the Ninth Circuit issued one published decision.

In Ahmed v. Keisler,  the Ninth Circuit overturned the BIA’s decision that Ahmed had failed to establish his eligibility for refugee status. Ample evidence supported Ahmed’s claims of political oppression and persecution, including three instances of physical harm inflicted by the Bengali army or police

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On Monday, October 15, 2007, the Ninth Circuit issued six published opinions and one published order. 

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On Thursday, October 11, the Ninth Circuit issued six published decisions.  More later

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On Wednesday,, October 10, 2007, the Ninth Circuit issued four published opinions.

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On October 9, 2007, the Ninth Circuit issued three published opinions and two published orders:

In Quintero-Salazar v.. Keisler, the Ninth Circuit held that California Penal Code § 261.5(d) is not categorically a crime involving moral turpitude for purposes of removal under immigration law. This offense is for engaging in intercourse with a minor who under 16years of age when the perpetrator is more than 21 years old.The Court pointed out that commission of this offense could reasonably involve a relationship between a college sophomore and a high school junior, which relationship might have commenced while both were still in high school. Such an offense is not categorically one that is inherently base, vile, depraved or so far contrary to moral law as to give rise to outrage.

In Guglielmino v. Mckee Foods, the Ninth Circuit held that where a complaint does not state a specific total amount in controversy, the proper burden of proof for purposes of remand to state court after removal is proof by a preponderance of he evidence that the amount in controversy is more than $75,000.  

In Morgan v. United States District Court For The District Of Arizona, the Ninth Circuit held that when rejecting a sentence bargain plea agreement, the district court must provide individualized reasons for rejecting he agreement, based upon the specific facts and circumstances involved. Here, the district court rejected the agreement simply because the judge did not approve of sentence bargain agreements.  

In Phillips v. Hust, the Ninth Circuit ordered that the September 14, 2007 denial of the Petition for Rehearing and denial of the Petition for Rehearing en Banc be published.              

In U.S. v. Mitchell, the Ninth Circuit granted a motion to amend an opinion to remove a reference to a specific Assistance U.S. Attorney.