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

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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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 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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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 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.

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On October 2, 2007, the Ninth Circuit published two new opinions:

In U.S. v. Davis, the Ninth Circuit affirmed a restitution order requiring David to pay as restitution the costs associated with decontamination of a motel room used to manufacture methamphetamine. The Court found that the purpose of restitution is to make the victim whole, and according, costs of repair are appropriate.  However, the Court reversed and remanded that portion of the order which required Davis to pay for loss rent of the motel room, where there was no evidence that the motel lost any income, and for unsegregated costs of asbestos testing.  

In U.S. v. Lujan, the  reversed the Ninth Circuit rejected challenges to federal law requiring DNA samples be given by all persons on supervised release. The Court has previously rejected a 4^th Amendment challenge to the law. Here, the court rejects the claim that the law is a bill of attainder, as DNA sampling is not a punishment.  The Court also rejected Lujan’s claims that the law violates separation of powers.

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On September 28, 2007, the Ninth Circuit issed one new published opinion and one published order:

 In U.S v. Sullivan, the Ninth Circuit held that a community pre-release center was not an “imprisonment” under 18 U.S.C. §3624(e), and accordingly, Sullivan was not under upervised release when he failed a drug test.            

In Ramadan v. Keisler, the Ninth circuit denied a request for rehearing en banc. Nine judges dissented from the order denying rehearing en banc. The decision leaves standing the panel decision concluding the Court had jurisdiction under the REAL ID Act over immigration appeals where the issue of  “changed circumstances” is. This conclusion is contrary to that of seen circuits that have considered the same issue.

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On September 27, 2007, the  Ninth Circuit issued two new published opinions, and one published order.

In U.S. v. Bussell, the Ninth Circuit declined, for purposes of he sentencing guidelines, to impose a categorical limitation upon determining “intended loss” in bankruptcy fraud cases to the value of the concealed assets.  In the circumstances here, the facts supported the district court’s conclusion that the intended loss was equal to the amount of debt scheduled to be discharged in bankruptcy.    Similarly, the evidence supported the district court’s conclusion that the actual loss, for purpose of restitution,  was equal to the amount of debt ultimately discharged.

In Bockting v.Bayer,  the Ninth Circuit determined that the Nevada Supreme Court’s affirmance of Bockting’s conviction for sexual assault on a child was not contrary to federal constitutional law.    Judge Noonan dissented, arguing the Nevada Supreme Court improperly relied upon the trial court’s actions in admitting hearsay statements of the child, rather than upon any factual findings supporting unavailability, particularly where the trial court’s statement suggested a misunderstanding of witness unavailability.

In Li v. Keisler, where three applications for fees in immigration appeals were consolidated, the Ninth Circuit held that the 30 day period to file a request for fees under the Equal Access to Justice Act begins ninety days after issuance of an order remanding an immigration matter to the BIA. The Court found fees justified in two of the cases, but not as to Li.

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On September 25, 2007, the Ninth Circuit issued two new published opinions, and amended one previously issued opinion:

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On Thursday, September 20, 2007, the Ninth Circuit issued six new published opinions. 

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On September 19, 2007, the Ninth Circuit issued five new published opinions:

In Melendez v. Gonzales, the Ninth Circuit held that an alien may not avoid immigration consequences of a drug conviction as a time offender, when he is not a first time offender. Here, following an earlier arrest, Melendez had taken advantage of a pre-trial program under a diversion scheme that did not require him to plead guilty.  The Court held that the BIA properly regarded Melendez as one who had gotten “two bites at the ameliorative apple.”  

In Navarro-Lopez v. Gonzales, the Ninth Circuit, en banc,  held that a crime involving moral turpitude must be a crime that is 1) vile, base, or depraved and 2) violates societal moral standard s. California’s offense of “accessory after the fact” does not qualify. Accordingly, Navarro-Lopez had not been convicted of an offense involving moral turpitude, and could be eligible for cancellation of removal.            

In Menken v. Emm, the Ninth Circuit held that while domesticating a judgment in unlikely, without more, to be sufficient to confer personal jurisdiction, that act coupled with additional conduct, such as, as alleged here, attempted to exact a higher payment than the judgment amount, does established sufficient minimum contacts to confer jurisdiction.             

In Brown v. Ornoski, the Ninth Circuit denied habeas relief in a death penalty matter, finding that Brown received effective assistance of counsel at the penalty phase. While the psychologist portrayal of Brown was not positive, it was more sympathetic than that presented by the prosecution, and therefore represented a strategic choice. The Court rejected the claim that counsel should have conducted more background information, as there is little indication that exposure of the jury to the additional would have changed the outcome.             

In E. &J. Gallo v. EnCana Corp. , the Ninth Circuit held that the filed rate doctrine did not apply to transactions not subject to FERC jurisdiction. Here, Gallo’s claims included transactions not based on F$RC rates; accordingly, the District Court properly denied summary judgment.  

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On September 10, 2007, the Ninth Circuit issued four published decisions and one published order:

In Dent v. Cox Communications Las Vegas, Inc. , the Ninth Circuit held that a Dept. of Labor supervised settlement over a wage dispute, authorized by 29 U.S.C. § 216(c) and reflected in the WH-58, did not release FLSA claims for wages earned during a different period. The WH-58 executed by Dent gave notice only that he was waiving claims for the specified period. Additionally, the legislative history of §216 suggests Congress did not intend to extend such settlements to all claims, rather than to claims specifically included in the settlement. The opinion reverses a decision rendered by Judge Jones.     

In Field v. Brown, the Ninth Circuit affirmed the denial of a habeas petition challenging the constitutionality of Field’s convictions for a multitude of violent crimes, including murder, rejecting a claim of juror bias on the basis of a the presence on the jury of a man whose wife had been abducted, beaten, raped, and robbed, where the juror had disclosed that his wife had been assaulted and robbed. The Court also reversed the grant of a habeas relief as to Field’s sentence for death, finding not constitutional error in the penalty phase of his trial. The Court also rejected a claim the jury’s consideration of the foreperson’s notes on the pros and cons of the death penalty, which included biblical references. Judges Gould, McKeown and Wardlow concurred with the outcome on the conviction, but dissented as to the penalty phase issue. Judges Berzon, Reinhardt and Thomas dissented from the majority’s conclusion as to both issues.                                              

In U.S. v. Crews, in a consolidation of two appeals arising from the execution of a warrant at the same address, the Ninth Circuit held the officers were entitled to the benefit of the good faith exception to the exclusionary rule.                                                   

In Bader v. Northern Line Layers, the Ninth Circuit held that a worker’s actual worksite is the “single site of employment” for purposes of the Worker Adjustment and Retraining Notification Act (WARN) 29 U.S.C. §§2101-2109, which requires 60 days notice of a mass layoff at a single site of employment. Because more than 50 workers were no laid off from this worksite, there was no violation of WARN.

In Sarausad v. Porter, the Ninth Circuit  denied the petition fore rehearing en banc. Four judges dissented from the denial of the petition for rehearing; Judge Callahan authored the dissent. The Court also vacated its initial order concerning Sarausad’s custody, and remanded with instructions to the District Court to determine whether Sarausad should remain in custody pending the state’s determination of whether to retry him. 

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On September 6, 2007, the Ninth Circuit issued two new published opinions and two amended opinions:

In Van Duyn  v.Baker School District, the Ninth Circuit amended the opinion originally filed April 3, 2007, and published at 481 F. 3d 770. The outcome is unchanged.

In U.S. v. Atalig, the Ninth Circuit  held that the government is not required to prove which particular agency in the government has jurisdiction over the submission of false statements in order for a conviction of making false statements in violation of 18 U.S.C. § 10001.

In  U.S. v. Abbouchi, the Ninth Circuit granted the Petition for rehearing, and amended the opinion originally filed July 13, 2007. The outcome is changed in that  the District Court is instructed to resentence after reconsider the imposition of Abbouchi’s domestic violence treatment condition and its associated payment condition.

In Buone v. Kempthorne , the Ninth Circuit held that the government’s attempted transfer for a pocket of land within the Mojave National Preserve, which transfer was for the purpose of avoiding a federal injunction preventing display of a Latin cross on that land, violated the injunction.

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On August 27, 2007, the Ninth Circuit issued seven new opinions. Four are discussed below. The other three will be discussed in the next post.

In Hoopai v. Barnhart, the Ninth Circuit upheld the district court’s affirmance of the ALJ’s determination that Hoopai was not eligible for social security disability payments.  While Hoopai was determined to be disabled and unable to perform his previous the ALJ’s determination that he could perform other work was supported by the record.  The ALJ was not required to see testimony of a rehabilitation counselor, because Hoopai’s nonexertional disability was not found to be sufficiently severe so as to limit the range of work permitted by the exertional disability.  The ALJ thus properly consulted the Medical-Vocational Guidelines to determine other jobs Hoopai could perform.

In U.S. v. Chase, the Ninth Circuit overturned a sentence for manufacture of methamphetamine, where the District Court had improperly denied the defendant’s request for an expert to assist in presenting evidence of the quantity of drug produced, where the Defendant’s testimony was that he had produced about a 10^th of what the government expert opined could have been produced. Here, an expert would have assisted defense counsel in cross-examining the government’s expert. The Court further found that the district court’s determination of the among of drug produced was based on a method that lacked indicia of reliability.

In Bryant v. Arizona  Attorney General, the Ninth Circuit affirmed the dismissal as untimely of Bryant’s habeas corpus petition.  The defendant argued that he was impeded from filing his petition in a time manner, since he was imprisoned in a facility that did not provide access to regulations creating the one year statue of limitations. However, the Court found that even if the filing period were tolled during the period the defendant had no access to the relevant legal authority, his petition was filed more than one year after he did have such access.

In The Access Fund v. Dept.  of Agriculture,  the Ninth Circuit affirmed  the decision of the Nevada District Court,  upholding the Forest Service’s decision to prohibit rock climbing at Cave rock at Lake Tahoe. The Court held that there is no violation of the establishment clause to protect an historically and culturally important site where the important of the site derives, in part, from its sacredness to  a particular group.

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On Thursday, August 16, the Ninth Circuit issues eight new published opinions. Four of them are provided here, and the other four were addressed in the previous post.

In Pension Fund v. Watson Pharmaceutical, the Ninth Circuit held that Appellants, members of a purported but never certified class, did not have standing to object to lead plaintiff status when lead plaintiff voluntarily dismissed the case.  The Court rejected claims that the appellants were precluded from filing their own complaint or moving to intervene.

In U.S. v. Hernandez-Acuna, the Ninth Circuit rejected a claim that a failure to hold an evidentiary hearing when rejecting a magistrate recommendation to suppress evidence violated due process.  The Court that because the relevant witnesses testified at trial, and the motion to suppress was renewed, and rejected, at trial, remand for an evidentiary hearing is not warranted.

In U.S. v. Lambert, the Ninth Circuit rejected the claim that the sentence enhancement set forth in U.S.S.G. § 2F1.1 cmt. n.5 (200) was intended to apply only where the defendant intended to exploit the generosity, trust, or charitable motives of his victim.

In  Int'l Union of Painters Local 1621 v  B&B Glass, Inc, the Ninth Circuit upheld a motion to dismiss against the union. The union sought to force B & B, a Texas company, to arbitrate claims the union has against a B & B Glass that  is an Arizona company. The union had a contract requiring arbitration with the Texas company. Evidence supported a conclusion that the Texas company had no control over the Arizona company. The Court rejected a claim that because the companies had shareholders in common, there was sufficient control, holding that the union was required to show actual management control.

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On Thursday, August 16, the Ninth Circuit issues eight new published opinions. Four of them are provided here, and the other four will be addressed in the next post.

In U.S. v. Yida the Ninth Circuit held that the consideration of the  reasonableness of the government’s efforts to procure a witness for trial must include action taken both before and after deportation, where the government knew of the desirability of the witness’s testimony prior to deportation.  Here, the government’s decision to allow the witness to leave was not reasonable. Accordingly, the witness was not unavailable for FRE 804 purposes.

In Babasa v. Lencrafters, Inc., the Ninth Circuit held that a letter received for mediation purposes could serve as notice that the amount in controversy so as to begin the running of the time for removal.

In Lewis v. Astrue, the Ninth Circuit amended the opinion originally filed on July 3, 2007 to correct the identification of counsel for the appellee.

In Estrada-Espinoza v. Gonzales, the Ninth Circuit held that California’s statutory rape offense constitutes “sexual abuse of a minor” within the meaning of 8 U.S.C. § 1101, rendering Estrada-Espinoza removable as an “aggravated felon.” Judges Thomas and Leighton concur, finding as did the majority, Afridi v. Gonzales, 442 F. 2d 1212 (9^th Cir. 2006) controlling, but asserting that Affridi was wrongly decided, as the California statutory rape offenses do not require “abuse” to have occurred. California’s age of consent is 18.  Here, the minor in question was “15 or 16” at the beginning of the relationship, which was live-in, and was conducted with knowledge of the parents of both parties and lasted for several years.   

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On Wednesday, August 15, the Ninth Circuit issued one order and certified a question to the Oregon Supreme Court:

In The Assoc. OF American Physicians & Surgeons v. Brewer, the Ninth Circuit clarified the order filed July 18, 2007 to state that the complaint  states a cause of action.

In Farmer v. Baldwin, a 12 page opinion explaining the factual background giving rise to the question, , the Ninth Circuit certified the following question to the Supreme Court of Oregon:

Whether, under its rules or practice, the Oregon Supreme Court would deem a federal question not properly raised before it, when that question had been presented by means of an attachment to a Balfour brief field in the Court of Appeals, and the attachment served as (but was not labeled as) Section B of the said brief, and the petitioner states in his petition that his reasons for seeking review are set forth in the Balfour brief.

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On Tuesday, August 14, the Ninth Circuit issued two new published opinions.

In U.S. v. Seljan, the Ninth Circuit upheld convictions of counts of attempting to engage in interstate travel for the purpose of illicit sexual intercourse, using interstate facilities to entice a minor, and possessing and producing child pornography.  The Court rejected the claim that evidence of sexually explicit letters in internationally bound packages, discovered by customs officials in routine searches at FedEx’s regional hub, should have been suppressed.   The Court upheld the search, which included opening sealed envelopes contained inside the packages, because the custom officers were engaged in an interdiction action focused on currency smuggling, for which customs officials are specifically granted the right to open any envelope. Once potentially unlawful conduct was noted, further investigation was permitted. Click here for the Appendix to the opinion, which contains the letter Seljan wrote to a girl he at least believed to be 8 years old. The opinion notes that Seljan was 87 years old at the time of sentencing

In Bickner v.  E.I. DuPont, the Ninth Circuit ruled on a number of matters of first impression involving the Price Anderson Act (PAA), a federal statute government nuclear accidents.  The case involves claims that DuPont is liable for illness arising due to DuPont’s spillage of radioiodine into an area surrounding its plant where the bomb dropped on Nagasaki was produced. The Court held that

DuPont could not invoke the government contractor defense because the PAA was  enacted before such a    defense was recognized;

DuPont could be held strictly liable;

The District Court properly applied Washington law in ruling that plaintiffs had to satisfy the “but for” test  rather than the more lenient “substantial factor” test;

Plaintiffs who filed actions outside the class could be bared by the statute of limitations if those separate actions were untimely.

                Medical monitoring claims were properly dismissed as not cognizable under the PAA.

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On Monday, August 13, the Ninth Circuit issues five new published opinions.

In Emmert Industrial Corp v. Artisan Assocs., the Ninth Circuit held that the time for filing a claim for transportation charges set forth in 49 U.S.C. § 14705 of the ICCTA apply even where the carrier has not filed a tariff.  The Court affirmed the summary judgment granted to Artisan for the claims for transportation services provided. However, the Court also held a contract underlying a third claim to be ambiguous, and reversed and remanded the summary judgment granted as to Emmert’s breach of contract claim.

In Womack v. Del Papa, a habeas appeal arising out of Nevada, the Ninth Circuit held Womack did not receive ineffective assistance of counsel when his attorney advised him a guilty plea was a his “best chance” of receiving a minimum sentence. Although Womack did not receive the minimum sentence, nothing in the record suggests the attorney’s advice was erroneous, or that Womack did know the possible sentences he could receive. 

In Im v. Gonzales, the Ninth Circuit found that the act of unlocking a cell door so that prisoners could be taken to interrogation rooms was not an act integral to persecution. Accordingly, Im, who was once employed at a prison to perform such tasks, was not ineligible for asylum under 8 C.F.R. § 208 13. 

In AmerisourceBergen Corp. v. Roden, the Ninth Circuit held that abstention was not required, reversing the dismissal of a diversity case by the district court. The Court disapproved of the District Court’s balancing of Younger factors, rather than determining whether each factor is satisfied. The Court also clarified that all four of the Younger factors must be satisfied before abstention may occur: 1) a state initiated proceeding is ongoing; 2) that proceeding implicates an important state interest with implications beyond the case itself; 3) the federal litigant is not barred from litigating federal constitutional questions in that proceeding; and 4) the federal action would no enjoin the state proceeding. Diversity action may proceed. Here, the ongoing state proceeding did not concern important state issues; additionally, the federal action would not require the state action to be enjoined.  The Court suggested that AmerisourceBergen’s switch to federal court might have been motivation but its continuing lack of success in the state court, and expressed regret that the District court’s obligation to exercise jurisdiction it has had required the expense to which the parties had been put, as well as for the use of resources in two overburdened court systems, and

In Gulla v. Gonzales, the Ninth Circuit held the Immigration Judge abused his discretion in denying asylum, where the denial was because 1) Gulla had traveled through 3 countries before arriving at the US; 2) Gulla was in good health and not of tender age when he arrived, and 3) Gulla used forged passports  to reach the U.S border.  The IJ failed to balance favorable and negative factors, and gave reasons for the decision the Court described as “not rational.”

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On Friday, August 10, 2007, the Ninth Circuit issued four new published opinions, one amended opinion, and one order for en banc rehearing:

In U.S. v. Aukai, the Ninth Circuit held that the reasonableness of searches of passengers flying on commercial airlines does not depend, in whole or in part, upon consent of the passenger.  Aukai was in such a hurry to catch his flight that he apparently forgot not only his ID, but also that he carried a pipe and methamphetamine. His lack of ID left him subject to additional searches, including a hand-held magnetometer.  The bulge of his pipe in his pants pocket was noticed. Although he announced he no longer wished to board a flight when he was asked to reveal the item, the search continued. The Court held that  allowing a search to end because a passenger declines to fly “makes little sense in a post-0/11 world” as potential terrorists would otherwise have “multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found.”

In Cedars-Sinai v. National League of Postmasters, the Ninth Circuit reversed the dismissal in favor of NLP, finding that the hospital’s claims for payment for services rendered was no a claim for medical benefits preempted by the Federal Employees Health Benefit Act (FEHBA), but instead, a contractual claim. FEHBA’s administrative dispute mechanisms were not intended to apply to such contractual claims, but instead, were intended to benefit persons covered under the plan.

In U.S. v. Garcia, the Ninth Circuit reversed  4 of the 18 counts on which Garcia was convicted of conspiring to traffic in distribution of methamphetamine, where there was no evidence of Garcia supplying the methamphetamine at issue in those counts.  The Court remanded 2 additional convictions, where the District Court had granted a motion for acquittal to a codefendant, on the basis that a coconspirator had no longer been part of the conspiracy.  The Court affirmed the sentence enhancements applied to Garcia, as the evidence supported his role as a leader of the conspiracy, and the allegation that he recruited minors to joint the conspiracy. In the consolidated appeal, the Court reversed and remanded a sentence imposed for drug trafficking of a codefendant of Garcia, where the District Court held it could not consider the defendant’s drug conviction as a mitigating factor in sentencing.

In Giles v. GMAC, in consolidated appeals of two diversity matters raised under Nevada law,  the Ninth Circuit reversed both district courts.  The Yerington Ford matter is reversed as the court misapplied Nevada’s economic loss rule.  The opinion thus reverses the decision published at 359 F. Supp. 2d 1075 (D. Nev. 2004).  The Giles Chevrolet case is reversed as the District Court misapplied Nevada’s preclusion law.

In Vacation Village v. Clark County,  the Ninth Circuit amended the opinion originally filed July 23, 2007.  The outcome is unchanged.

In Plumlee v. Masto, the Ninth Circuit ordered            the matter to be reheard on banc, and ordered that the 3-judge panel decision previously issued in the case shall not be cited as precedent, except as adopt by the Court en banc.

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On Monday, August 6, 2007, the Ninth Circuit issued four published opinions:

In U.S. v. Bolanos-Hernandez, the Ninth Circuit held that a California conviction of an assault with intent to commit rape is a conviction of a crime of violence for purposes of sentence enhancement, as it requires at least the attempted application of more physical force than that required to achieve sexual penetration. The court also rejected the defendant’s claims that the court made improper factual findings, finding that the defendant had admitted the fact of his previous deportation.

In Porter v. Jones, the Ninth Circuit held that threats to prosecute operators of  “vote-swapping” websites violates the first amendment. Vote-swapping was an enterprise by which adherents who vote in “swing-states” would agree to vote for mainstream candidates, in return for promises by voters in “safe” states to vote for fringe candidates. The purposes of such vote swapping is to allow the fringe candidates to achieve enough national votes to qualify for federal funding for the party, while not endangering the chances of the mainstream candidates.   The Court found that threats by California’s then Secretary of State, Bill Jones to prosecute the website operators were not sufficiently tailored to serve the state’s legitimate purpose of preventing voter fraud.  However, the Court found that Jones was entitled to qualified immunity in this § 1983 action, as the unconstitutionality of halting vote swapping was not clearly established in 2000.  

In Northern California River Watch v. City of Healdsburg, the Ninth Circuit withdrew the opinion previously filed on August 10, 2006, reported at 457 F.2d 1023. The outcome is unchanged.

In U.S. v. Riedl, the Ninth Circuit rejected a Petition for writ of error coram nobis.  Reidl, who was convicted of and served her sentence for five counts of money laundering, sought to challenge the constitutionality of the statute under which she was convicted.  The Court held that Reidl had waited too long to raise her constitutional challenge, and gave no valid reason for her delay. The Court also rejected Reidl’s claim that she need show delay only in rebuttal to a laches argument, which would require the government to show it was prejudiced by the delay.

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On Friday, August 3, 2007, the Ninth Circuit issued three published opinions:

In U.S. v. Moses, the Ninth Circuit held that a man-made diversion of a stream, with water flow for two months out of the year is part of the “waters of the United States” for purposes of the Clean Water Act. The path of the stream, while dry, remains part of the waters. Placement of pollutant into the dry stream bed can support a verdict for discharge of a pollutant. The opinion, authored by Judge Fernandez, surges with a steady flow of watery allusions.

In Vargas-Hernandez v. Gonzales, an appeal of removal, the Ninth Circuit rejected a claim that the Petitioner’s due process rights were violated by a biased Immigration Judge. The Court found the Petitioners’ attempt to remand the matter so he could claim entitlement to stay as the spouse of a citizen had been untimely, and dismissed the portion of the appeal based upon Petitioner’s claimed that he had committed the offense underlying his removal as a juvenile, where he had been tried and convicted as an adult.

In U.S. v. Valenzuela, the Ninth Circuit rejected a claim that sentence enhancement for possession of a weapon during commission of a felony was improper where the underlying felony was trafficking in stolen weapons.  The Court found the evidence supported the conclusion that Valenzuela was emboldened in his criminal activity by his possession of the weapons.

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On Wednesday, August 1, 2007, the Ninth Circuit issued two published opinions:

In U.S. v. Larson , the Ninth Circuit held that a defendant’s right to confront witnesses is violated when he is precluded from cross-examining a witness regarding favorable treatment received from authorities in return for testimony.   The Court "clarified" that review of confrontation claims regarding exclusion of an area of inquiry requires de novo review, while review of limitations on cross-examination made because of concerns for harassment, prejudice, confusion, etc., will be for an abuse of discretion.  Here, the denial of cross examination of witnesses regarding the mandatory life sentences they would have received without giving testimony was harmless error. 

This opinion joined by four judges, had a concurrence with another four, and a dissent of seven, and is getting lots of attention.  Greg May at The California Blog of Appeal has collected blog commentary on the case  at More on U.S. v. Larson.

Far less controversial is U.S. v. Goetzke, where, in a per curiam decision, the Ninth Circuit held that an attempt to persuade, induce, entice, or coerce a minor into sexual activity can occur, even though the defendant does not actually have contact with the intended victim.  Here, the defendants letters to the intended child victim never actually reached the victim, having initially been intercepted by the child’s mother.  The subsequent correspondence, which included Goetzke’s expressed hope that the child would allow sexual activity, occurred between the Goetzke and authorities posing as the child.

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On Friday, July 27, the Ninth Circuit issued one amended opinion:

In U.S. v. Lopez, the Ninth Circuit amended the opinion originally filed November 30, 2006 by making number word changes, adding a discussion of the defendant’s Apprendi claim in which the majority found that Lopez admitted his prior conviction. The amended opinion also includes a concurrence by Judge Wardlow, who disagrees that the prior conviction was admitted by Lopez, but otherwise agrees with the outcome. The affirmance of the conviction and sentence is unchanged.  

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On Wednesday, July 25, the Ninth Circuit issued two published decisions, and amended one previously issued decision:

In U.S. v. Castillo, an en banc decision, the Ninth Circuit held that it has jurisdiction to hear an appeal of a conviction resulting from a valid guilty plea. The Court held that only Congress can give of take away jurisdiction of the circuit courts; no agreement by the parties can do so. The Court overruled its own precedent inconsistent with that position.

In Petrone v. Malone, the Ninth Circuit held that a notice of settlement that including a estimate of average settlement amount per share that was based upon an undisclosed assumption that fewer than 100% of shareholders would file claims was inadequate under the PSLRA.

In U.S. v. Forrester, the Ninth Circuit amended the opinion originally filed on July 6, 2007.  The outcome was unchanged.         

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The Ninth Circuit today issued four published opinions”

In U.S. v. Castillo-Basa, the Ninth Circuit rejected the sua sponte call for rehearing en banc. Five judges dissented from the rejection of the rehearing, asserting that the Court’s decision essentially held that where a defendant convincing lies at his trial, he may not thereafter be prosecuted for perjury.

In U.S. v. Figueroa-Ocampo, the Ninth Circuit remanded for resentencing where sentence enhancement for an immigration offense had been based upon a crime that, while a felony under California law, was only a misdemeanor under federal law. The Court held that an “aggravated felony” for immigration offense sentencing enhancement must be for a crime that would be a felony under federal law. 

In Oregon Natural Resources v. Timber Products Co.,.the Ninth Circuit affirmed the district court’s invalidation of the Timbered Rock Fire Salvage and Elk Creek Watershed Restoration Project

In Golden Pisces, Inc. v. Fred Wahl Marine Construction, Inc., the Ninth Circuit affirmed the district court’s denial of an award of attorneys, where no statute, contract or equitable principal support such an award. The court noted that the American Rule, which limits an award of attorney fees to where one of those three conditions justifies such an award, applies in marine litigation.

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In Hamilton Materials v. Union Carbide Corp., the Ninth Circuit affirmed the dismissal as time barred of Hamilton’s claims that Union Carbide misled it regarding the dangers of asbestos products.  The court held that a reasonably person, particularly a sophisticated manufacturer of asbestos that had been sued hundred of times because of asbestos dangers, would have suspected union Carbide’s alleged duplicity long before.

In Vacation Village Inc.. v. Clark County, Nevada, the Ninth Circuit relied on the Nevada Supreme Court opinion of McCarren Int’l Airport v. Sisolak  137 P.3d 1110 (Nev. 2006), to hold an ordinance limiting construction heights resulted in a per se regulatory taking of airspace.  The Court found that ordinances that prevent result in a physical invasion of airspace constitute a taking under Nevada’s constitution.  An ordinance that merely limited the property to certain uses, however, is not a per se regulatory taking.

In Winzer v. Hall, the Ninth Circuit reversed and remanded with instructions to issue a writ of habeas, finding that admission of the a hearsay statement that the defendant threatened the victim was a violation of the confrontation clause.  The statement, made by the alleged victim to a police officer 5 ½ hours after the threat, was not properly admitted under the spontaneous utterance exception to the hearsay rule, where the victim had made such a calm 911 call between the time of the threat and the statement, that the court deemed it proper to deny admission of the 911 call.

In Magtanong v. Gonzales the Ninth Circuit dismissed the appeal as untimely filed, refusing to make allowance where the overnight carrier used by the Petitioner let him down and took two days to deliver, instead of one.  The court named the carrier as DHL.

In Muradin v. Gonzales, the Ninth Circuit remanded the matter for determination of whether Muradin’s persecution at the hands of the Armenian government was due to his membership of a particular social group.  The Court also vacated the BIA’s order denying Muradin eligibility for relief under the Convention Against Torture. The Court affirmed the BIA’s finding that Muradin had failed to establish his persecution was due to imputation of his mother’s political opinions. 

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On Wednesday, July 18, 2007, the Ninth Circuit issued four new published opinions, and one published order.:

In Douglas v. USDC Central District, the Ninth Circuit, in a per curiam decision, held that a service provider may not change the terms of its service by merely posting a revised contract on its website; a contract cannot be unilaterally changed. Here, the district court had ordered arbitration, but he arbitration clause had been among the unilateral changes to the contract. The Court issued a writ of mandamus vacating the order compelling arbitration. 

In U.S. v. Diaz-Leuvano, the Ninth Circuit clarified that its decision in Morales-Izqueirdo v. Gonzales, 486 F. 3d 484 (9^th Cir. 2007) did not overrule U.S. v. Luna-Madellagna, 315 F.3d 1224 (9th Cir. 2003). Physical removal continues to be a valid bases for sentence enhancement.

In Hadera v. Gonzales, the Ninth Circuit remanded the matter to the BIA to redetermine Hadera’s country of removal, as the designated country, Ethiopia, was merely the country where Hadera’s parents were born; he had no other connection to that nation.

In U.S. v. Diaz-Castaneda, the Ninth Circuit held that a license plate check that reveals the person’s car ownership, driver status, and criminal record is not a search for fourth amendment purposes.

In Ass’n of American Physicians & Surgeons v Brewer, the Ninth Circuit granted the petition for rehearing of Plaintiff-Appellant Dean Martin.

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On Tuesday, July 17, the Ninth Circuit issued three new published opinions, and amended two opinions:

In Ball v. Rodgers, the Ninth Circuit dismissed claims by a class of elderly Medicaid beneficiaries suing the State f Arizona for alleged failures to provided adequate community and home based care, as 42 U.S.C. §1396(a)(30)(A) does not provided individual rights enforcement under § 1983. However, the court upheld other claims brought under the “free choice” provisions, § 1396(n)(2)(C)and (d)(2)(C), holding such rights may be enforced through a §1983 action.

In U.S. v. Jenkins, the Ninth Circuit upheld the dismissal of an indictment for vindictive prosecution. Jenkins had twice been arrested for alien smuggling, stating each time she had been paid to drive the car containing illegal aliens  across the border. She was later prosecuted for marijuana smuggling, and testified in her own behalf, stating she believed the car she had been paid to drive contained illegal aliens, as had happened on two previous occasions prior to the marijuana smuggling After her testimony, the government filed the alien smuggling charges. The Court agreed with the district court that the timing of the charges, suggested retaliation for Jenkins testifying on her own behalf.

In Ministry of Defense v. Elahi, the Ninth Circuit made several amendments to the opinion originally filed on May 30, 2007. The outcome is unchanged.

In Edgerly v. City & County of San Francisco, the Ninth Circuit held that Edgerly was entitled to judgment as a matter of law on his §1983 claim for an arrest made without probable cause, reversing the district court’s grant of judgment to the defendants.

In U.S. v. Sine, the Ninth Circuit made several amendments to the opinion originally filed on May 1, 2007. The outcome is unchanged.

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On Monday, July 16, 2007, the Ninth Circuit issued three new published opinions, and substituted a new opinion for one previously issued:

In Orn v. Astrue, the Ninth Circuit held that the evidence presented by the claimant had established his entitlement to SSI benefits. The Court held that the ALJ improperly disregarding the testimony of two treating physicians and the claimant in finding the claimant of performing sedentary work.

In U.S. v. Jimison, the Ninth Circuit held that a statement, made under stress by the defendant, that he might “go Rambo” was insufficient evidence to support a sentence enhancement based upon an intent to use firearms in a shoot out with police. Ge Kozinski’s opinion includes quotes from the film 12 Angry Men.

In yet another change in Benitez v. Garcia, the Ninth Circuit withdrew its opinion originally filed on January 22, 2007 (which had replaced one filed May 23, 2006 )and amended on February 8, 2007. The outcome is changed: Benitez is denied habeas relief. The Venezuelan government relinquished custody of Benitez without extracting an agreement to limit his sentence.  Accordingly, even though the treaty between the countries permits Venezuela to extract a promise that a sentence of death or life imprisonment will not be imposed, where custody is relinquished without such an agreement, the state may impose a life sentence.

In R.B. v. Napa Valley Unified, the Ninth Circuit upheld a decision that R.B. was not entitled to special education services. The Court held that a procedural violation of the IDEA does not violate FAPE where the child has failed to establish eligibility for special education services.