Appealing in Nevada : 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 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.

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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.

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On July 13, 2007, the Ninth Circuit issued two new published opinions, and amended two previously issued opinions.

In US Mortgage, Inc. v. Saxton, the Ninth Circuit affirmed the dismissal for failure to state a claim of a securities regulation class action brought under the guise of Arizona state law claims. 

In Tanner v. McDaniel, the Ninth Circuit rejected a habeas petition arising out of a Nevada murder conviction.  The Court was unpersuaded by Tanner’s claims that following his plea of guilty to murder, his attorney should have consulted with him regarding an appeal, as no nonfrivolous grounds for appeal were present in his case.

In Earth Island  Institute v. Hogarth, the Ninth Circuit amended the opinion originally filed April 27, 2007 by substituting a sentence.  The outcome is unchanged.

In Irons v. Carey, the Ninth Circuit amended the opinion originally filed March 6, 2007 by substituting several words.  Additionally, Judge Noonan’s concurring opinion was also amended, with several word substitutions, as well as the addition of a paragraph discussing whether habeas corpus is essential to due process.  The outcome is unchanged.

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The Court issued only one published opinion on July 12, 2007:

In U.S. v. Grace, an interlocutory appeal by the government,  the Ninth Circuit held that a district court has no authority to require the government to provide a pretrial list of nonexpert witnesses in a criminal case, and accordingly, cannot exclude witnesses not included from such a list.

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InU.S. v. Shea, the Ninth Circuit affirmed a conviction under the Computer Fraud and Abuse Act, finding the evidence sufficient. The evidence supported the government’s contention that Shea was the source of a “time bomb” program that caused damage to data contained in his former employer’s computers, where the programming was tied to his user name, he had access to the relevant files, he possessed the relatively unique skills necessary to programming involved, he had an antagonistic relationship with the company, and the timing of the programming actions was closely tied to certain unfavorable actions taken against him.

In Dunn & Black PS v. U.S., the Ninth Circuit held that sovereign immunity precludes certain claims by a law firm against the U.S. Government, where the law firm sought to collect fees earned in its successful representation of a client against the government under a contract claim.  The client’s judgment, however, had been claimed by the IRS to repay outstanding taxes. The Court held that IRA refund rules could not waive sovereign immunity, where the law firm had not made the necessary administrative claim for a refund. The Court also rejected an argument that immunity was waived by 28 U.S.C. §2410, involving lien interests, because the government had claimed an ownership interest, rather than lien interest, in the proceeds of the client’s judgment.  

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In U.S. v. Horvath,  the Ninth Circuit held that there can be no criminal liability for making a false statement to a probation officer in a presentence interview, where the probation officer is required to include the statement in the presentence report to the judge.  18 U.S.C. §1001 makes it an offense to knowingly make a materially false statement to the federal government a crime, but creates an exception where  the false statement is made to a judge in a judicial proceeding. The Court’s decision extends that exception to the presentence environment.

In Fisher v. NOS Communications, a multidistrict litigation case arising partially out of Nevada, the Ninth Circuit affirmed the dismissal of FCC and other state law tort claims, reversed the district court’s denial of remand for claims brought under Washington’s consumer protection laws, and reversed the district court’s dismissal of certain “Truth in Billing” and state law tort claims. The plaintiffs are customers of interstate telecommunications companies. Their complaints, separately filed in assorted courts, alleged claims associated with the defendants’ billing practices. The FCC claims were dismissed as the claims relied upon challenges to filed and approved tariffs. Remand was upheld where the only claims alleged were state law claims that could be determined without reference to federal law.  The Court held that the stated law claims are preempted where such  claims seek damages referencing the filed-rate, but claims that do not attack the rates nor require reference to the filed-rate are not preempted (a ruling that keeps the claims of Nevada plaintiff’s, Fisher, alive).  “Truth-in-Billing” claims predating the Truth-in-Billing the effective date of that regulation were dismissed, as the Truth-in-Billing regulations do not apply retroactively.

In U.S. v. Snellenberger, the Ninth Circuit amended the opinion originally filed April 3, 2007, and withdrew the concurring opinion originally filed by Judge Hawkins. Judge Hawkins joins in the amended opinion, which does not alter the outcome of the decision.

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In U.S. v. Jernigan, the Ninth Circuit granted a new trial, where the prosecution failed to inform the defense that crimes committed by a suspect matching the defendant’s description continued while she was in custody.

 In Crater v. Galaza, the Ninth Circuit again finds the Anti-Terrorism and Effective Death Penalty Act constitutional, rejecting a claim that the Act effectively suspends all privileges of writs of habeas corpus. The Court agreed with the Fourth and Seventh Circuits in finding that the ct merely alters the standards on which writs issue.   The Court rejected a claim that the Act infringes upon federal court power by requiring consideration of whether a state court’s appellate decision was not “contrary to” or “an unreasonable application of” U.S. Supreme Court decisions.

In Abebe v. Gonzales, the Ninth Circuit denied a petition seeking to prevent removal of an alien due to conviction of an offense of sexual misconduct with a minor. The Court joined the First, Third, Fifth and Seventh Circuits in finding that a statute need no longer be interpreted to apply an exception to exclusion to prevent removal.

In Loma Linda University v. Leavitt, the Ninth Circuit held that the Provider Reimbursement Review Board may order reimbursement for a provider’s cost allowable under the Medicare regulations, but excluded from the provider’s cost report. The Court joined with the First Circuit in reaching this conclusion, and disagrees with the Seventh’s Circuit’s resolution of this issue.

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In U.S. v. Ruiz-Chairez, the Ninth Circuit affirmed a level 16 sentence enhancement for the offense of being in the U.S. after being deported. The Court rejected an equal protection claim based on the fact that the underlying basis of the enhancement, prior convictions of drug trafficking and a crime of violence, would result in a lower enhancement level for offenses other than presence in the U.S. after deportation.   

In U.S. v. Forrester, the Ninth Circuit reversed the conviction of Forrester, finding him improperly advised where, when warned of the dangers of self-representation,  he was not informed of the charge against, and was advised that he faced ten years in prison, when the maximum penalty was actually twenty years.  In the same opinion, the Court affirmed the conviction of Dennis Louis Alba, finding that computer surveillance analogous to a pen register, and not a search for Fourth Amendment purposes.  

In U.S. v. Moran, the Ninth Circuit amended the opinion originally filed April 2, 2007 by deleting the word “tax” where it appeared before “schemes.”  The Court also inserted a footnote.  The outcome was unchanged.

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 In U.S. v Juvenile Male, the Ninth Circuit reversed the transferal of  a juvenile to adult prosecution, holding the district court’s factual findings regarding the juvenile’s social environment clearly erroneous, as, in reviewing the factors mandated by 18 U.S.C. § 5032,  the district court found there the juvenile had not suffered from domestic violence in his upbringing, contrary to the evidence.

In U.S. v. Ensign, the Ninth Circuit upheld the district court’s decision refusing to permit the defendant to be represented by an attorney seeking admission pro hac vice. The Court held the denial did not violate the defendant’s sixth amendment right to counsel, and the attorney had no standing to appeal the decision..

In Andrews v. Cervantes,  the Ninth Circuit substituted language in the opinion previously filed on June 26, 2007. The outcome was unchanged.

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   In Lewis v. Astrue, the Ninth Circuit affirmed the ALJ’s determination that the claimant was not eligible for supplemental security insurance, finding the decision as a whole indicated the ALJ had considered all the evidence.

In Perfect 10, Inc. Visa Int’l., the Ninth Circuit upheld the dismissal of claims based upon the defendants’ processing of credit card payments from websites alleged t violated plaintiffs intellectual property rights. The Court held that processing of credit cards payments does not constitute a material infringement of copyright violations.   

In U.S v Gonzalez, the Ninth Circuit upheld the imposition of a nine-level sentence enhancement to a charge of interference with a flight crew member, where the evidence supported a finding that the defendant’s conduct constituted a threat to the crew, passengers, and aircraft.

In Schroeder v. Tilton, the Ninth Circuit denied an application for habeas, holding that application of a California evidentiary rule allowing evidence of prior sexual misconduct to be admitted in a trial involving other charges, did not violate the prohibition against ex post facto laws, even thought the evidentiary rule did not exist at the time of the prior offenses.

In Sherman v SEC, the Ninth Circuit amended the opinion originally filed March 23, 2006. The outcome is unchanged.

In Foote v. Del Papa, the Ninth Circuit  amended the opinion previously filed.  That previous opinion, on which I reported here, seems to have been withdrawn from the court’s website. The outcome is apparently unchanged.

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The Ninth Circuit issued two opinions, and amended two opinions on Monday”

In The Lands Council v. Mcnair the Ninth Circuit reversed the dnial of a preliminary injunction to halt the Mission Brush Project, which would allow selective logging of more than 3000 acres in the Idaho Panhandle Forest.  The Court held the Lands Council was likely to succeed on the merits because of the lack of evidence that the Forest service’s strategy is likely to improve the old-growth habitat over time.   Additionally, although the risk of economic harm from delaying the project is high, including placing several dozen jobs at risk, in a community where unemployment is already high, the Court determined the balance of the hardships tipped in favor of the risk of environmental harm.

In Schoenfeld v. Quamme, the Ninth Circuit reversed the dismissal of a personal injury claim against the federal government, arising from injuries received in a traffic accident on a military based. The claims against the government were based upon  the failure to repair a previously damaged guardrail. The district court had determined that the Feres doctrine, which limits claims related to limitary service by military personnel, barred the claim under the Federal Torts Claim Act.  In reversing, the Court found that Schoenfeld’s activities at the time of the accident, occurring while he was on liberty, did not implicatge military duty or discipline, and accordingly, should not fall within the Feres bar.

In U.S. v. Jeremiah, the Ninth Circuit the Ninth Circuit changed a few words in the opinion originally filed on May 24, 2007. The outcome is unchanged. 

In Lambright v. Schriro, the Ninth Circuit changed a few words in the opinion originally filed on May 11, 2007. The outcome is unchanged.

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In U.S. v. Diaz, the Ninth Circuit upheld a search conducted while executing an arrest warrant.  The officers entered Diaz’s home to execute the warrant, but Diaz was not present. The Court found that the evidence, including past experience with Diaz by the officers, supported the reasonable belief by the officers that Diaz would be found within the home was at home at the time they entered. The Court rejected the argument that a reasonable belief that the suspect is present must be supported by specific evidence indicting presence; probably cause can be supported by circumstantial evidence.

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In Lopez v. Stewart, the Ninth Circuit upheld the denial of habeas in a death penalty case out of Arizona.  Lopez was convicted of child abuse and felony murder. Although there is apparently no dispute that Lopez had no intent to kill his son, the sentencing court found no mitigating factors in Lopez’s favor.  The Ninth Circuit found that Lopez had received meaningful appellate review in the state court, and had failed to exhaust certain of his ineffective assistance of counsel issues. However, the Court did expand the Certificate of Appealability to include ineffective assistance with regarding to investigation and presentation of mitigation evidence.

Judge Thomas dissented, finding that both the sentencing court and the Arizona Supreme Court were objectively unreasonable in failing to consider the lack of mens rea as a specific mitigating factor.

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Tuesday’s other opinion from the Ninth Circuit also involved the unusual service offered by the Portland police.  However, in U.S. v. Ankeny , the Ninth Circuit refused to suppress, despite a far more outrageous example of the Portland police department crossing a line. 

While Mr. Washington, see previous post, was treated with courtesy throughout the time during which he was being unlawfully seized, Ankeny, the defendant here, physically suffered at the hands of a gang of officers executing a valid search warrant.   Even though the police stormed the house, essentially performed a no-knock without authorization, causes thousands of dollars in damage, and caused 1^st and 2d burns on the defendant, near whom a flash bang device thrown by police exploded, the evidence was no suppressed because a failure to obtain a “no-knock” component to an otherwise valid warrant cannot justify suppression under Hudson v. Michigan, 126 S.Ct. 2159 (2006), and because the arguably unreasonable nature of the search did not actually  lead to discovery of the evidence.

Judge Reinhardt dissented, arguing that the suppression was warranted by “the extreme use of excessive force,” which rendered the search unreasonable. Reinhardt felt that facts showed “a lack of professionalism and disdain for the rights of individuals on the part of some law enforcement officers” unlikely to be cured by the threat of a § 1983 action.  Reinhardt fears the majority ruling creates a blanket exception to the exclusionary rule whenever the officers have a valid warrant.

Reinhardt’s description of the conduct as unprofessional is an understament.  Electric Lawyer notes the facts of the case are truly shocking, with which I agree.  Indeed,  with the enthusiastic text message of officers gloating over the property damage and the  injuries suffered by the defendant, and declaring a “good time had by all,” the Portland police come off sounding like teenagers enthusing over the latest violent video game.

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In U.S. v. Washington,  the Ninth Circuit held that a defendant’s consent to a search was not voluntary, as he reasonably believed he had no choice by to permit the search. The state conceded the investigatory stop was not supported by reasonably suspicion, but had claimed the search of the defendant’s car, which yielded a gun, had been by consent. Reviewing the totality of the circumstances, the Court held Washington’s belief that he was not free to leave, and had no choice by to consent to the search, was reasonable.

Important factors in the defendant’s belief that he was not free to leave were the officer’s authoritative manner, as well as the city’s recent, highly publicized shootings of African American males during traffic stops. Following these incidents, the Portland, Oregon Police Department apparently created some pamphlets to advise its citizens, especially its African American citizens,  how to avoid being shot by the police during a stop. Among the tips: “follow the officer’s instructions” and “if ordered, comply with the procedures for a search.”  

Decision of the Day asserts that the opinion turned ordinary Fourth Amendment Analysis on its head, because it focused on the defendant’s safety, rather than the officer’s.   I don’t agree that the Ninth’s analysis here was particularly out of the ordinary, as the focus of fourth amendment analysis is generally the reasonable belief of the defendant. 

But I would agree that the Portland police’s views of protection and service seem quite skewed.

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 In U.S. v. Garner, the Ninth Circuit upheld a sentence enhanced due to conduct committed approximately 35 years before. 

Garner was convicted of two counts of attempted receipt of child pornography and six counts of possession of child pornography, and received a sentence of 262 months. Based on Garner’s admission that he had sexually abused his children or step children some 35 years before, his sentence included an enhancement for a “pattern of activity involving the sexual abuse of exploitation of a minor” as permitted by U.S.S.G. § 2G2.2. The Court noted that commentary to the sentencing guidelines made clear that the “pattern of activity” need not be conduct concurrent with the charged offense.

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In Murdoch v. Castro, the Ninth Circuit held that exclusion of a letter in which a testifying co-defendant told his attorney he was not present at the scene of the murder was not error.  The issue required a balance of the co-defendant’s right to counsel and the defendant’s right to impeach the co-defendant’s testimony, which contradicted the contents of the letter.  Here, the witness had been impeached with inconsistencies in prior testimony , as well as motive, and the letter would thus have had minimal impact.

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In U.S. v. Freeman, the Ninth Circuit held that allowing a drug agent to give both expert testimony regarding the meaning of slang terms and lay testimony regarding the interpretation to be given other expressions used was harmless error. Admission of the testimony of why a defendant acted in a certain way was error, but the error was harmless in light of the entirety of the evidence.

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In U.S. v. Strong, the Ninth Circuit held that commitment for treatment and restoration of a defendant found incompetent to stand trial is constitutional. Strong was committed under 18 U.S. § 4241(d), which mandates institutionalization of all defendants found incompetent to stand trial. Because the statute has a definite term of commitment for no longer than four months, it comports with due process requirements.

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That pesky habit of Oregon of packing all sorts of additional ways to commit crimes in its statutes has resulted in another successful sentencing challenge arising from offenses committed in Oregon.

In U.S. v. Beltran-Munguia,  the Ninth Circuit held Oregon’s 2d degree sexual assault offense was not a “crime of violence” under  the Federal Sentencing Guideline’s enhancement scheme. Or at least, not as crime of violence is defined when enhancing a sentence for the offence of illegally entering or remaining in the U.S.   

To be a crime of violence other than those listed by name in the guidelines (2L1.2(b)(1)(A)(ii)), the use, or attempted or threatened use of physical force against the victim must be a necessary element of the crime. However, a perpetrator can commit 2d degree sexual assault in Oregon without force. For example, a victim may appear to consent, but be legally incapable of doing so due to minority, mental incapability, physical helplessness due to intoxication, etc. For the same reason, the offense is not “forcible sex offense.”

The Court notes that the definition of crime of violence differs in other parts of the sentencing guidelines. Thus, in U.S. v. Riley, 183 F.3d 1155 (1999), a rape statute that also criminalizes “nonconsensual but not necessarily forceful sex,” was held to be a crime of violence. The section of the guidelines at issue there, §4B1.2(a) included a catchall “involves a serious potential risk of physical injury to another.”

Judge Berzon authored the opinion. Judges Rymer and Tallman concurred, each noting that precedent bound them to do so. Tallman went further, and questioning the adherence to legal form over substance and the Court’s “zeal to be good legal technicians.”

The same week, the court issued U.S. v. Grisel, which similarly held that Oregon’s 2d degree burglary statute was not a categorical burglary offense because of the expansive way in which it might be committed. See my report on that case.

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FBI agent’s infiltration of NAMBLA not unconstitutional

In U.S. v. Mayer, the Ninth Circuit rejected the claim an FBI agent’s undercover membership in the North American Many Boy/Love Association (NAMBLA) violated Mayer’s constitutional rights.   The agent maintained the membership for a number of years, gradually gaining the trust of other members, learning their names and predilections.  This knowledge enabled the agent to suggest to defendant a trip to Mexico where Mayer would be able to have a “special friend” provided to him.  The agent sent a link to a website with such offerings, without revealing, of course, that the website was a fake created by the FBI.  Mayer booked a trip, and traveled to San Diego, where he and others were arrested and charged with travel with intent to engage in illicit sexual conduct.   The Court rejected Mayer’s proposed agent provocateur doctrine, under which an agent could not infiltrate a first-amendment protected organization and provoke illegal conduct, noting that any constitutional violations that might arise already had adequate remedies. 

The captivating aspect of this opinion is the description of the agent’s progress in the organization, such as participating in a Christmas card program that sent holiday greetings to imprisoned pedophiles, and, ironically, serving on the privacy committee, for which he even wrote a policy statement. The agent also volunteered to host the 2005 NAMBLA conference.  Mayer’s arrest ended that volunteer position, and, sadly, the conference had to be canceled.    Mayer offered this example in support of his claims that the infiltration violated constitutional rights since it interfered with the organization’s activities.  The Court was slightly more impressed with this argument than with others made by Mayer, but only slightly.

As a fiction writer, I sometimes feel disheartened when I read cases like this.  I have a damn good imagination, but I could never have thought this up.  And if I had written a story like this, it would undoubtedly be rejected as implausible.

NAMBLA “U.S. v. Mayer”  “agent provocateur” “1^st amendment” “4th amendment” “5^th amendment”

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In Gruver v. Lesman Fisheries, the Ninth Circuit held that the admiralty court had jurisdiction over a case arising from personal injuries received in a physical confrontation arising from a dispute over wages for a commercial fisherman.  The fight occurred on board a ship due to leave the next morning for a fishing expedition. The parties stipulated that the fight occurred on a ship floating on navigable waters, a location requirement for admiralty jurisdiction.  The parties also agreed that the fight had the ability to disrupt maritime commerce.  The disagreement arose over the “connection” requirement for jurisdiction.  

The Court held the matter giving rise to the fight, the wage dispute, showed a substantial relationship to traditional maritime activity, as it involved a failure to pay wages for services performed aboard a commercial vessel.  The Court rejected defendant’s claim that the fight, rather than the underlying cause of the fight, was the appropriate focus of this second part of the connection requirement.

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In U.S. v. Narvaez-Gomez, the Ninth Circuit vacated the sentence imposed for illegal reentry of an alien after removal.  The defendant’s sentence had been enhanced because he’d been convicted of discharge of a firearm at a residence under California penal Statute 246, which could be a reckless offense.  However, the enhancer was for a crime of violence, which requires intentional use of force.

The Court affirmed the underlying conviction, even though a confession was obtained without proper Miranda warnings, and then, after warnings were given, another confession was obtained.  The latter confession was admitted at trial. The Court determined this was not a deliberate “two-step interrogation process barred by Missouri v. Seibert because the personnel taking the confessions changed, and several hours passed between confessions.

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In Gautt v. Lewis, the Ninth Circuit granted the petition for habeas where the defendant had been charged with a sentence enhancement under one statute, but sentenced under another statute. As a result, the defendant was sentenced under a 25 year to life enhancement, instead of a 10 year enhancement.

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In U.S. v. Grisel, the Ninth Circuit held that a conviction for second degree burglary as defined by the State of Oregon is not a categorical burglary offense for purposes of applying the Armed Career Criminal Act of 1984 (ACCA).  To be a predicate felony under the ACCA, the state crime must fit the generic federal crime.  Congress failed to define “burglary,” resulting in the Supreme Court requiring that a generic definition of burglary be used, limiting the crime to unlawful entry into a “building or structure.”  Oregon’s definition of “building” for 2d degree burglary  includes “booth, vehicle, boat, aircraft, or other structure adapted for overnight accommodations of persona.” Or. Rev. Stat. § 164.205(1).   Because second-degree burglary in Oregon includes offenses outside the generic federal definition of burglary, it cannot be a categorical offense for purposes of the ACCA. Because the offense is not a categorical burglary offense, the case was remanded for determination of whether the facts underlying the conviction satisfy the federal burglary definition.

This decision overrules the Court’s  previous decision of U.S. v. Cunningham,  911 F. 2d 361 (9^th Cir. 1990).  

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In U.S. v. Kayser, the Ninth Circuit reversed a tax evasion conviction due to the district court’s failure to give the defendant’s theory of defense instruction. Two judges on the panel found both the law and evidence supported the defendant’s claim that he was entitled to offset his personal income tax with “unreported” tax deductions, even though he had, in fact, reported them, but as deductions from his business income.  

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In U.S. v. Lenihan,  the Ninth Circuit held that a waiver of counsel in a misdemeanor prosecution was constitutional, even though the defendant had not been warned of the dangers and disadvantages of self representation. The ruling is in keeping with Iowa v. Tovar, 541 U.S. 77 (2004), making such warnings unnecessary for misdemeanor offenses provided the waiver was knowing, but overturns previous Ninth Circuit decisions requiring advisement.

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In U.S. v. Trimble, in Ninth Circuit held that imposing additional fines upon a person charged with traffic offenses on federal land solely because a new, rather than old form was used in writing the ticket violated the offenders right to equal protection. Here, the traffic citations were written on new forms that imposed a service charge. However, because the government failed to provide enough of the new forms, the old forms, without the service charge, were still in use. 

The amount in question was $75.00. Trimble was represented on appeal by the federal pubic defender; a U.S. attorney, of course, represented the federal government.  As the author of the opinion, Judge Berzon, noted, “our constitutional principles protect against monetary injuries large and small.”

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In U.S. v. Doe, the Ninth Circuit held that a U.S. citizen convicted of child molestation committed outside the U.S. may be required to pay restitution, including counseling, education cots, and a management fee to an organization advocating for and providing services to the child victims. The court expressly noted the bargain the defendant received in having chosen third world victims, thereby incurring third world counseling costs. The restitution award for eight victims was less than $17,000 total. The Court vacated certain of the supervised release conditions, due to lack of notice of nonstandard conditions.

Note that this defendant managed to keep his criminal conviction under seal. The footnotes explain the “John Doe” procedure, without giving the reasons for anonymity..

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In addition to U.S. v. Curtin, discussed in the previous post, the Ninth Court issued the following opinions yesterday:

In Gama Puga v. Chertoff, the Ninth Circuit dismissed the petition for habeas brought by an alien who had been removed. The petitioner claimed for the first time in his petition he had received ineffective assistance of counsel with respect to his asylum application. Applying the theory of prudential exhaustion, the Court dismissed by applying the theory for failure to exhaust administrative remedies. Allowing a claim of ineffective assistance of counsel to be raised for the first time in a petition for judicial review would encourage the bypass of administrative scheme.

In U.S. v. Dang, the Ninth Circuit held that the Department of Homeland Security’s regulation requiring a determination that good moral character be assessed in naturalization proceedings is neither unconstitutional nor ultra vires. 

In U.S. v. Jeremiah, the Ninth Circuit upheld the revocation of supervised release. The Court rejected the defendant’s claims that his arrest was invalid, that he was denied a preliminary hearing, that there was insufficient evidence to revoke his supervise release and that the conditions imposed upon his new sentence of supervised release were improper.

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In U. S. v Curtin, acting en banc, the Ninth Circuit reversed a conviction for traveling across state lines for the purpose of enticing a minor. The issue in the case was whether 5 e-stories consisting of graphic text descriptions of adult/child sexual activity contained on the Curtin’s PDA were properly admitted into evidence. Curtin was arrested following a sting in which he arranged to meet with his IM chat partner, who had purported to be a 14 year old girl.

The Court determined the stories were relevant to rebut Curtin’s defense that he believed himself to be conversing with an adult woman who wanted to participated in his father/daughter incest fantasy. The stories revolved around tales of minor daughters having sexual relations with their fathers, not adult woman engaging in such activity.  Of particular relevance was the parallel between the activities in the stories, and Curtin’s messages to his intended victim regarding the activities he hoped to engage in with “her.”

However, reversal was required because of the inadequate determination by the district court as to whether the reading material was more prejudicial than probative.   Rather than reading through the stories themselves, the district court relied upon an offer of proof. The district court candidly admitted to having been able to get no further than part way through the second story. 

Five judges concurred in the reversal, but disagreed that reading material is relevant to show intent.   The concurring opinion asked whether  possessing a copy of DVDs of The Thomas Crown Affair would be relevant to show intent to rob a bank (obviously, the concurrence refers to the 1968 version of the film) or Dirty Harry to show intent to deprive a person of their constitutional rights. Judge Kleinfeld states  “The trial court should have managed the admission of evidence so as to allow the government to prove Curtin’s intent and purpose, but protect him from being convicted for his execrable taste in reading material and repulsive fantasies.”

Rulings like this can make one glad not to be a judge. Essentially, on remand, Judge Jones will be required to read all of the pornographic stories involving children having sex with adults the prosecution hopes to admit.

I believe in the 1st amendment, and therefore, would not support any attempt to outlaw such stories, because  no real child is injured or exploited in the creation of the story.   No thought police, please.  Nor do I think that a choice in reading material is generally very probative to prove intent – I own too many murder mysteries to favor that view. 

Nevertheless, this is a case where the particular defense probably opened the door to the admission of the evidence.  

And  I sincerely pity any person, judge or otherwise, who is forced to read the content described here. Even knowing that the presumed 14 year old was actually a male detective in his ‘40’s, I found reading the opinion, with its quotes of   Curtin’s IMs with the person he believed to be a 14 year old, difficult to stomach –

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 In U. S. v. Sandoval-Sandoval, the Ninth Circuit upheld a conviction for unlawful reentry by a previously deported alien. The Court rejected the defendant’s claims that a fingerprint exemplar should have been suppressed, since the district court had granted a motion to compel a second fingerprinting, mooting the motion to suppress the first. The Court also rejected the claim that an abstract of judgment cannot be used to support a factual finding regarding a previous sentence imposed.

The Ninth Circuit amended its previous opinion in Baker v. Exxon Mobile Corp, but did not change the  outcome.  The petitions for rehearing and en banc rehearing were denied.

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In Foote v. Del Papa,  the Ninth Circuit affirmed Nevada’s Federal District Court Judge Jones’s decision denying the petition for habeas relief.    The defendant had filed a lawsuit against his trial counsel, leading to the withdrawal of that attorney, and appointment of private counsel.  That lawsuit had been dismissed by the time the defendant was convicted and sentenced, whereupon the public defender was appointed to represent him on appeal. The defendant sought habeas relief, stating that a conflict of interest had existed with his appellate counsel The Court held that trial counsel’s irreconcilable conflict arising from the since dismissed lawsuit did not create an irreconcilable conflict with a appellate public defender.

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The Ninth Circuit issues three opinions today:

In Spry v. Thompson, the Ninth Circuit held that state programs expanding medical coverage to populations ineligible for Medicaid are not bound to the same premium and copayments offered under Medicaid.  The decision determines that, while a deviation from Medicaid requirements generally requires a waiver from the Secretary of Health and Human Services, that waiver is not required where the deviations are for person ineligible for Medicaid.

In U.S. v. Meiners,  the Ninth Circuit upheld the fifteen year sentence imposed following the defendant’s plea of guilty to four counts of advertising child pornography. The Court rejected the 8^th amendment challenge, finding the offense to be one that threatens to cause grave harm to society.

In Saravia-Paguada v. Gonzales, the Ninth Circuit denied a petition to review an order of deportation. The petitioner is a legal permanent resident (LPR) who came to the U.S. as a child. He was twice prosecuted for drug related offenses, 1988 and 1992, and served a total time of incarceration of six years and five months. Deportation proceedings were commenced in 1990, but he had sought discretionary relief. However, between the time of is two prosecutions, an amendment to immigration laws eliminated discretionary relief from deportation for anyone who has served more than five years on a felony conviction. Petitioner’s second conviction resulted in his exceeding the five year limit.  

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In U.S. v. Smiskin,  the Ninth Circuit held that a notification requirement imposed by the State of Washington for  anyone transporting cigarettes without tax stamps violated the 1855 treaty with  the Yakima Tribe. ATF officers had raided a home located on the Yakima reservation and seized more than 4000 cartons of untaxed cigarettes which had been transported from a reservation in Idaho.  While tribes are exempt from cigarette taxation for cigarettes sold on the reservation to tribe members, the State of Washington required that anyone transporting untaxed cigarettes through the state must notify the state in advance. No notification had been given for the seized cigarettes. The Court held that the notification requirements violation a provision of the Yakima Treaty of 1855 granting tribe members the right to travel the public highways.  As no notification was required, the Smiskins lawfully possessed the untaxed cigarettes, requiring dismissal of the indictment.

The Court rejected the government’s claim that tribal compliance with such regulations must be enforced, or the more dangerous contraband, such as narcotics, would be freely traded on reservation land.. The Court noted that the cigarette regulations were imposed fro taxation purposes, rather than public safety goals. Additionally, the Yakima tribe, who had intervened in the action, had indignantly denied it had ever asserted the right for it or its members to traffic in narcotics.

In U.S. v. Bibler, another criminal ruling issued to day, the Ninth Circuit amended its previous opinion through some textual changes, without altering the outcome.

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In U.S. v. Carson, the Ninth Circuit held that the offense of second degree assault, as defined by the state of Washington, was a crime of violence. Defendant’s previous conviction for that offense had been used as a sentence enhanced for his federal conviction. An element of the prior offense is that the defendant “knowingly inflict bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture.” The Court held the prior conviction was properly considered to determine the defendant was eligible for career offender enhancement.  

In my days as a staff attorney, we’d would have called this case a slam dunk.

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In U.S. v. Gomex-Mendez, the Ninth Circuit held that the California offense of unlawful sexual intercourse with a minor under age 16 by a person over the age of 21 was properly considered to be “statutory rape,” a crime expressly considered to be a crime of violence for purposes of sentence of enhancement.  The Court rejected the defendant’s argument that because California did not allow for the defense of a reasonable belief that the minor was over 16, the crime should not be considered statutory rape.  The Court reasoned that a state crime need only include the elements of the generic offence to be considered for sentence enhancement purposes; possible defenses are not relevant to that inquiry.

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Beware of dog for time sensitive shipments

In U.S. V. Hoang,  the Ninth Circuit held that temporary detention of a package that does not  interrupt its scheduled delivery does not violate the fourth amendment prohibition against unreasonable  search and seizure.  The package here was diverted for about ten minutes while a federal narcotics dog sniffed it and other packages, all randomly chosen.  The government conceded no reasonable suspicion supported the choice of this package.  However, the ten minute diversion did not interfere with the carrier’s ability to delivery the package in a timely manner. Accordingly, no 4^th amendment violation occurred.  

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