|
PRISONER RIGHTS
Hearns v. Terhune, June 30
Hearns claimed that
several Calipatria State Prison officials violated his Eighth Amendment
right to be free from cruel and unusual punishment when they failed to
protect him from being attacked by fellow Muslim inmates. J. Pregerson
finds that the district court erroneously held that prison officials could
not have inferred or otherwise known that the inmates who attacked Hearns
in the chapel posed a substantial risk of harm to Hearns, who raised an
inference that the prison officials created the risk and then
facilitated the attacks. Dismissal reversed.
-----------------------------------
ENVIRONMENT, AGRICULTURE
Washington Toxics v. EPA, June 29
The EPA registered
54 pesticide active ingredients that several environmental coalitions
fear may harm endangered or threatened salmon and steelhead in the waters
of the Pacific Northwest. J. Schroeder finds that the district court correctly
ordered EPA to complete consultation regarding the effects of those pesticide
registrations on threatened and endangered salmon and steelhead according
to a schedule. Because it viewed the procedural violation of the Endangered
Species Act to have been a substantial violation authorizing extraordinary
relief, the district court also correctly enjoined EPA's authorization
of any use of the pesticides within proscribed distances of salmon-supporting
waters in California, Oregon, and Washington, pending EPA's fulfillment
of its consultation obligations.
--------------------------------
FRAUD, SECURITIES
USA v. Tarallo, June 29
[Amended opinion,
petition for rehearing denied.] J. Graber holds that a defendant may commit
securities fraud "willfully," even if the defendant did not know at the
time of the acts that the conduct violated the law. We further hold that
a defendant may commit securities fraud "willfully" by intentionally acting
with reckless disregard for the truth of material misleading statements.
--------------------------------
ARBITRATION
Nagrampa v. Mialcoups, June 28
Nagrampa v. MailCoups, March 21
[Rehearing granted.]
J. O'Scannlain finds that an arbitrator must decide whether an agreement
that contains an arbitration clause is a contract of adhesion because
the issue pertains to the making of the agreement as a whole and not to
the arbitration clause specifically. "Nagrampa's failure to read the arbitration
clause, or to consult a lawyer about its ramifications, does not excuse
her from complying with its terms."
------------------------------
SPEEDY TRIAL
USA v. Vo, June 27
Vo claimed that
12 days should have been counted toward the Speedy Trial clock in his
trial for receiving methamphetamine in the mail. J. Bybee provides "a
clear rule for district courts and counsel to follow" regarding what time
is excludable from defendant's Speedy Trial calculation due to defendant's
filing of motions. The rule "puts counsel on notice from the outset as
to what is excludable, and avoids gamesmanship."
----------------------------------
JURY, MURDER
USA v. Naki, June 27
J. Noonan finds
defendant was properly convicted of premeditated first degree murder,
robbery, felony murder-kidnapping, carjacking resulting in death, felony
murder-robbery and use of a firearm during the commission of crimes of
violence; all on a Navajo Indian reservation. The circuit cannot accept
Nakai's contention that Native Americans were systematically excluded
from the jury pool.
----------------------------------
SENTENCING
Mujahid v. Daniels, June 27
J. Beezer rejects
Mujahid's claim that the Bureau's interpretation, which allows a prisoner
serving a ten-year sentence to earn a maximum of 470 days credit, contradicts
the statute's stated allowance of 54 days of credit per year
----------------------------------
IMMIGRATION, ATTORNEYS
Resendez v. Kovensky, June 27
The state court
judge informed Resendiz that his conviction could result in deportation,
but Resendiz nevertheless took his attorney's erroneous advice that the
charges would not affect his immigration status, and pled guilty. J. Trott
finds that Resendiz's state conviction cannot be construed as "custody
pursuant to the judgment of a State court” and the district court properly
construed Resendiz's § 2254 petition as a proceeding against the INS under
§ 2241.
----------------------------------
ENVIRONMENT, SPEEDY TRIAL
USA v. Barkin, June 27
J. Gibson finds
that Barkin was properly convicted and sentenced for unlawful transportation
and disposal of hazardous material without a permit and he was not prejudiced
by the five year delay between the incident and his indictment.
----------------------------------
PRISONER RIGHTS
Paulson v. Daniels, June 27
J. Thomas finds
that the Bureau of Prisons violated the Administrative Procedure Act when
it adopted an interim regulation for an early release incentive program
for federal prisoners who had successfully completed a substance abuse
program. Affirmed.
----------------------------------
ENVIRONMENT
Berg v. Norge, June 24
The Bergs claimed
that Maytag was liable for contribution pursuant to CERCLA, and Alaska's
mirroring statute, for a portion of the costs incurred in remediation
resulting from the discovery of percholoroethylene emanating from sewer
lines in the ground connected to the Bergs' dry cleaning business J. Alarcon
remands for a determination of liability after Alaska's Supreme Court
held that a manufacturer of a useful product can be held liable under
the Alaska Statute, if it was intended to direct a hazardous substance
into a city sewer system.
-------------------------------------
BANKRUPTCY
Muegler v. Benning, June 24
Muegler was convicted
of fraud and tried to avoid paying his victims compensatory and punitive
damages, based on a civil judgment, by filing for bankruptcy protection.
J. Lay finds that because Muegler's debt to his creditors was procured
by fraud, he may not discharge it in bankruptcy. Affirmed.
-------------------------------------
IMMIGRATION
Singh v. Gonzalez, June 24
Singh was ordered
removed, in abstentia, after he voluntarily withdrew his asylum application
and left the US. J. Lay finds that a petitioner who first departs the
US, then becomes the subject of removal proceedings, returns, and files
a motion to reopen, is not barred by the immigration statute that bars
an applicant from filing a petition to reopen after the petitioner has
departed the country and removal proceedings have already been
filed.
-------------------------------------
THEFT, DOUBLE JEOPARDY
USA v. Camacho, June 24
Camacho, a federal
civilian employee serving as an Air Reserve Technician in the 749th Aircraft
Maintenance Squadron at the Travis Air Force Base in California, stole
a home entertainment system from the Base Exchange. J. Paez finds that,
despite his sanction for theft by the squadron commander, Camacho may
be tried for misdemeanor theft by the US Attorney without violating double
jeopardy.
------------------------------------
EMPLOYMENT
Botello v. Gammick, June 23
Botello claimed
that after he brought to light abuses in the Washoe County District Attorney's
sexual assault response program, District Attorney Gammick and another
prosecutor retaliated against him for his protected First Amendment activity.
J. Fisher finds that the district court improperly dismissed Botello's
complaint based on absolute prosecutorial immunity, because certain prosecutorial
acts were outside the scope of their prosecutorial functions and not closely
associated with the judicial process. Thus the prosecutors were not shielded
by absolute immunity, and the County was not entitled to absolute immunity.
----------------------------
CIVIL RIGHTS
Kennedy v. Ridgefield, June 23
Plaintiff sued the
city after she and her now-deceased husband were shot while they slept
by a neighbor they had accused of molesting their daughter. J. Browning
concludes that the circuit has jurisdiction to determine whether the trial
court erred when it held that Officer Shields was not entitled to qualified
immunity for unreasonably creating a false sense of security in plaintiffs
by agreeing to give plaintiffs advanced notice of advising the molester's
family of the allegation that he sexually molested the daughter, and assuring
plaintiffs of a neighborhood patrol. On the merits, Officer Shields violated
plaintiff's constitutional rights.
----------------------------
CIVIL PROCEDURE
Fields .v Legacy Health, June 22
Plaintiffs claimed
in federal court that Legacy negligently failed to diagnose Laura Fields'
cervical cancer after a Pap smear, and then sued in state court as well.
J. Gould finds that the Oregon federal district court correctly applied
Oregon's statutes of limitations and repose to dismiss the suit with prejudice.
The circuit cannot toll Oregon's wrongful death statute of limitations
or apply the Uniform Conflict of Laws-Limitations Act's "escape clause"
to permit his Washington suit to go forward. Also, the Oregon statutes
of limitations and repose do not violate the United States Constitution
or the Oregon Constitution.
------------------------------------
SEARCH, Wiretaps
USA v. Gonzalez, June 22
Defendants operated
an alien smuggling operation with the use of their public bus company
based on wiretap evidence that the lower court eventually suppressed.
J. D. W. Nelson finds that the lower court did not err when it held a
Franks hearing to determine whether an application for a wiretap was fraudulent
or misleading, that the wiretap issued for the company headquarters failed
to meet the statutory necessity requirement and that two defendants had
standing to seek suppression. Affirmed.
------------------------------------
DEATH PENALTY, ATTORNEYS
Bradley v. Henry, June 22
Defendant shot and
killed a man with a sawed-off shotgun when she was 18 as she attempted
to carjack him. J. Noonan finds that she was denied due process of law
at a critical stage in her criminal trial with harm to her ability to
defend herself in her capital case because the lower court erroneously
ruled on her multiple requests for substitution of counsel. Reversed.
------------------------------------
IMMIGRATION
Armentero v. INS, June 21
The circuit finds
that Armentero is fugitive from custody and thus the "fugitive disentitlement"
doctrine precludes him from pursuing this appeal.
----------------------------------
SECURITIES
In re Daou Systems, June 21
In re Daou Systems, February 2
[Amended opinion,
petition for rehearing denied.] J. Brunetti finds that investors' complaint,
"although lengthy and often repetitive," states a sufficiently particularized
claim for accounting fraud under the heightened pleading standards of
the Private Securities Litigation Reform Act. The lower court's decision
to the contrary is reversed.
----------------------------------
BANKING, PRIVACY
American Bankers v. Lockyear, June 20
J. W. Fletcher finds
that the federal Fair Credit Reporting Act preempts some aspects of the
California Financial Information Privacy Act, commonly known as "SB1,"
insofar as it regulates the exchange of information among financial institutions
and their affiliates. The lower court's decision to the contrary is reversed.
------------------------------------
SEARCH
USA v. Sears, June 20
Due to police error
in preparing a warrant for distribution, the warrant contained eight words
not reviewed by a neutral magistrate. J. W. Fletcher finds that the words
“or nearby” (twice) and “but not limited to,” undisputedly expanded the
scope of the search and violated the particularity requirement of the
Fourth Amendment but the Fourth Amendment violation was not flagrant,
and the invalid portions of the warrants were relatively insignificant.
Thus blanket suppression was not required. Reversed.
-------------------------------------
BANKRUPTCY ATTORNEYS
Scott v. US Trustee, June 17
J. Rawlinson finds
that Congress had the power to promulgate the Bankruptcy Code sections
that govern bankruptcy petition preparers and those regulations are not
unconstitutionally vague or overbroad. Also, the bankruptcy court correctly
found that Scott violated the Code by engaging in deceptive or unfair
conduct in the preparation of bankruptcy petitions and by charging excessive
fees. The court passes on whether Scott engaged in the unauthorized practice
of law, whether the unauthorized practice of law itself is a violation
of § 110.
----------------------------------
TERRORISM
USA v. Rahmani, June 17
USA v. Rahmani, June 17
[Withdrawn and replaced
opinion.] Defendants were charged with providing material support the
People’s Mojahedin Organization for Iran, which among other things held
US hostages in Iran in 1979 and worked with Saddam Husseign in the 1980's
and 1990s. J. Kleinfeld finds the lower court erred when it dismissed
the terrorist designation statute as unconstitutional. Leaving the determination
of whether a group is a "foreign terrorist organization" to the Executive
Branch, coupled with the procedural protections and judicial review afforded
by the statute, is both a reasonable and a constitutional way to make
such determinations. Reversed.
----------------------------------
HABEAS
Brambles v. Duncan, June 17
The district court
did not tell Brambles that if he dismissed his habeas petition to pursue
his unexhausted state claims, that his federal claims may become time-barred.
J. Thompson concludes that while the district court failed to inform the
pro se Brambles of all of the consequences of having his entire petition
dismissed, the court did not actively mislead Brambles, and no extraordinary
circumstances existed beyond his control that would account for his failure
to timely file.
|
IMMIGRATION, FIREARMS
USA v. Bravo-Musquiz, June 16
Prior to the time
of defendant's illegal possession of the firearm, INS had initiated removal
proceedings against him for being illegally in the US and he had been
released on an immigration bond. J. Hug finds defendant's release on that
bond changed his status so that he was no longer an "alien illegally or
unlawfully in the United States."
-------------------------------------
SEARCH
USA v. Combs, June 16
On first impression,
J. Wardlaw finds that police acted reasonably when they did not physically
"knock" on defendant's door when executed a knock and announce search
warrant for the home, because when police arrived, defendants were in
the highly flammable process of cooking methamphetamines.
-------------------------------------
AMENDED OPINION
USA v. Ruelas, June 16
[Amended opinion.]
-------------------------------------
ENVIRONMENT
Arc Ecology v. US Air Force, June 15
A decade after the
US vacated its occupation of Clark Air Force Base and Subic Naval Base
in the Philippines, plaintiffs sought to compel the U.S. government to
perform a preliminary assessment and cleanup of the contamination under
the Comprehensive Environmental Response, Compensation, and Liability
Act. J. Callahan finds that CERCLA does not provide for extraterritorial
application. Dismissal affirmed.
-------------------------------------
ENVIRONMENT
Arcadia v. EPA, June 15
The EPA established
a total maximum daily load that limited the amount of trash that can be
discharged into the Los Angeles River, and then approved California's
separately established total maximum daily load, which was deemed to supersede
the federal standard. J. Canby finds that the EPA is authorized by the
Clean Water Act to approve the state's superceding limits on trash discharge
into the LA River.
-------------------------------------
COMMERCE
Bassidji v. Goe, June 16
J. Berzon finds
that an American citizen's guarantees of payments that furthered a trade
agreement with an Iranian company are covered by the Executive Order that
prohibits trade with Iran, and thus the guarantees are unenforceable as
a result.
-------------------------------------
IMMIGRATION
Theagene v. Gonzalez, June 15
J. Pogue concludes
that the circuit has jurisdiction to review Theagene's nationality claim,
but service in the armed forces is not itself sufficient to ground a claim
for nationality and Theagene's other claims also lack merit. Dismissed.
-------------------------------------
IMMIGRATION
USA v. Savala-Mendez, June 15
Defendant attempted
to cross into the US at the Alaska-Canada Border by crossing the true
border line and proceeding ahead a few hundred yards to the border inspection
station. J. Kleinfeld finds that an alien who crosses the border at a
designated location and proceeds directly in the manner designated by
the government to the border station where he then presents himself to
the authorities has not been "found in" the US for the purposes of illegal
reentry. Zavala-Mendez is entitled on remand to acquittal.
-------------------------------------
IMMIGRATION, JURY
USA v. Belo-Bahena, June 15
J. Paez finds that
the evidence warranted a jury instruction regarding official restraint
and the instruction given wholly failed to cover the theory defendant
presented. Remanded.
--------------------------------------
ANTITRUST
Freeman v. Lasky, Haas and Cohler, June 14
J. Kozinski finds
that defendants' discovery violations were not the type of action that
is exempted from the Noerr-Pennington doctrine's prohibition against using
a lawsuit as the basis for antitrust claims. Dismissed.
-------------------------------------
IMMIGRATION
Perez-Enriquez v. Gonzalez, June 14
Perez-Enriquez v. Gonzalez, June 14
[Withdrawn and replaced
opinion.] J. Callahan rejects petitioner's claim that he may not be removed
as an alien who was inadmissible at the time of his adjustment of status
because his adjustment of status took place on the date he applied for
lawful permanent residence. The adjustment of status did not occur until
his immigration status was adjusted to lawful permanent resident.
--------------------------------
SMUGGLING
USA v. Munoz, June 14
J. Tashima finds
that Munoz was properly convicted of bringing illegal aliens to the US
without presentation to an immigration officer after two Chinese nationals
were found under the floorboard of her van as she crossed the border.
However, the government the government must prove that she intended to
derive a financial benefit from transport of the aliens. Smuggling conviction
affirmed, financial gain conviction reversed.
--------------------------------
EMPLOYMENT, RETIREMENT
Boyd v. Bell, June 10
Boyd claimed that
he was knocked unconscious during a preseason game in August 1980, and
that despite having temporary blindness in his right eye during the game,
he continued to play. J. Beezer finds that because Boyd failed to mention
any head trauma or brain injury in his prior application for benefits
for degenerative joint problems, the lower court properly denied his request
for head trauma related benefits
-------------------------------
IMMIGRATION, CIVIL RIGHTS
Sissoku v. USA, June 13
J. Berzon finds
that it was clearly established, at the time INS Agent Rocha detained
Sissoko, that his possession of a valid advance parole document and his
temporary resident status entitled him to re-enter the US, after attending
his father's funeral, and precluded detaining him as an inadmissible arriving
alien, even once his legalization applications were denied. Denial of
qualified immunity affirmed.
--------------------------------
AGRICULTURE, HUNTING
Spoklie v. Montana, June 13
Defendant's "alternative
livestock" ranches were closed after the passage of an initiative that
banned fee shooting, a practice by which members of the public, many of
them from out of state, pay to shoot a pre-selected animal on the ranch
under the supervision of a guide. J. W. Fletcher finds that the lower
court properly barred constitutional challenges to the initiative because
the claims had been previously dismissed in state court.
-------------------------------
PROSECUTORIAL MISCONDUCT
USA .v Weatherspoon, June 13
USA v. Weatherspoon, May 6
[Withdrawn and replaced
opinion.] J. Shadur finds that the prosecutor's vouching for prosecutorial
witnesses during the closing arguments affected the jury's fair consideration
of the evidence in the record
-------------------------------
CONSPIRACY
USA v. Holler, June 13
J. Hall finds that
where, as here, the criminal acts are committed in the US, the fact that
defendant intends to distribute contraband outside of the US does not
divest this court of jurisdiction. Remanded for resentencing.
-------------------------------
IMMIGRATION, EVIDENCE
USA v. Bahena-Cardenas, June 13
J. Hall finds that
evidence was sufficient to convict defendant of having reentered the US
after having been deported for selling heroin and defendant's absence
from his hearing, due to a car accident induced coma, did not prejudice
defendant, who was represented by counsel. Also, the lower court properly
precluded a defense expert, who claimed to be an expert in Mexican transborder
culture, from testifying.
-------------------------------
IMMIGRATION
Chen v. Gonzalez, June 10
Chen v. Ashcroft, August 10
[Petition for rehearing
denied.] J. Thomas finds that the Board of Immigration Appeals erred in
its application of its own streamlining regulations and thus erred when
it summarily affirmed the immigration judge's decision to deny a Chinese
student relief under the Chinese Student Protection Act, passed after
the Tiananmen Square protests.
-------------------------------
PRISONER RIGHTS
Huftile v. MIssio-Fonseca, June 13
The magistrate judge
concluded that Heck v. Humphrey barred Huftile's suit because he challenged
the validity of a mental health assessment underlying his civil commitment,
and because that commitment had not been reversed on direct appeal, expunged
by executive order, declared invalid, or called into question. J. W. Fletcher
finds that the favorable termination rule of Heck applies to Sexually
Violent Predator determinations. Thus the district court properly dismissed
his civil rights action against the doctor assigned to evaluate him for
commitment.
----------------------------
IMMIGRATION
Marcos v. Gonzalez, June 9
Petitioner, a volunteer
HAM radio operator from the Philippines Civilian Home Defense Forces who
would anonymously report sightings of communist rebels to the government
over his HAM radio, fled the country after his identity was revealed and
his life was threatened. J. Paez finds that the immigration judge's adverse
credibility determination is not supported by evidence that he had used
his dead brother in law's address on his derivative relative visa because
his sister filled out the form and he merely signed it.
----------------------------
ATTORNEYS, CIVIL PROCEDURE
Barton v. USDC Central District of California,
June 9
Four plaintiffs,
members of a class that sued GlaxoSmithKline over damages caused by its
Paxil medication, joined the suit after reading an Internet questionnaire
posted by class counsel. J. Kleinfeld finds that the district court properly
refused to compel plaintiffs to produce four of their responses to the
questionnaire. Affirmed.
----------------------------
FORFEITURE
USA v. Deep Sea Fisheries, June 9
J. Silverman finds
that the owner of a vessel who takes King crab from Russian waters in
violation of the Lacey Act is subject to forfeiture and is not entitled
to the innocent owner defense because, under the Civil Asset Forfeiture
Reform Act, the innocent owner defense cannot be asserted when the forfeited
property is illegal to possess.
----------------------------
CIVIL RIGHTS
Alperin v. Vatican Bank, June 9
Alperin v. Vatican Bank, April 18
Plaintiffs sought
to recover losses suffered at the hands of a Nazi puppet regime during
World War II. J. McKeown finds that, although the parties have multiple
procedural and substantive challenges to overcome down the road, they
are entitled to their day, or years, in court on the claims that are not
barred by the political question doctrine.
----------------------------
PLEA
USA v. Davis, June 9
J. Breyer finds
that a district court has discretion to permit a defendant to withdraw
his guilty plea prior to sentencing when the district court finds that
defense counsel "grossly mischaracterized" defendant's possible sentence,
but also finds that the mischaracterization here did not actually prejudice
defendant.
----------------------------
CIVIL RIGHTS, ATTORNEY FEES
Thomas v. Tacoma, June 8
Thomas was the only
successful plaintiff of ten in a suit against Tacoma police for civil
rights violations. J. McKay finds the lower court improperly denied attorney
fees to Thomas based on his claim for which the jury awarded punitive
damages but correctly denied defendants request for attorney fees for
the dismissed claims brought by the remaining plaintiffs.
----------------------------
LABOR
Overstreet v. United Brotherhood of Carpenters
and Joiners, June 8
A building trades
union held aloft large banners announcing a "labor dispute" so that they
were visible to customers of businesses that deal with certain contractors
who do not have union contracts. J. Berzon finds the district court properly
refused the Director of the National Labor Relations Board's request to
enjoin the signs.
-------------------------------------
IMMIGRATION
Albillo-De Leon v. Gonzalez, June 8
Petitioner's motion
for relief from deportation was purportedly filed by a person who claimed
to be an attorney but who was truly unlicensed to practice law and never
filed the motion. J. Pregerson finds that his claim is subject to equitable
tolling. Vacated.
------------------------------------
HABEAS, Tolling
Shannon v. Newland, June 8
J. O'Scannlain finds
that equitable tolling does not apply to a California prisoner's untimely
habeas petition, when it is filed long after his conviction but shortly
after a decision by the California Supreme Court clarifying the state's
criminal law in a way potentially favorable to his federal constitutional
claim.
----------------------------------
CONSTITUTION
Charter v. USDA, June 16
The circuit finds
that the US Department of Agriculture's beef "checkoff" program promulgated
under the Beef Promotion and Research Act funds the Government's own speech,
and thus the district court correctly ruled that the Act is not susceptible
to a facial First Amendment compelled-subsidy challenge. However, the
US Supreme Court recently left open the possibility of an as applied challenge.
Remanded.
|
ALIEN SMUGGLING
USA v. Burt, June 8
Burt was stopped
for smuggling aliens, but released when she told the border patrol agents
who arrested her that she had information about a future semi-tractor
trailer smuggling operation. Burt was arrested again by different agents
and the original border agents denied that Burt was collecting information
for them. J. Bright finds Burt has raised an issue as to whether the lower
court should have instructed the jury that Burt was entitled to a public
authority defense.
-------------------------------------
SEX OFFENDER
Jackson v. CA Department of Mental Health, June
8
Jackson v. California Department of Mental Health,
February 28
[Amended opinion.]
Before Jackson filed his habeas petition that challenged his Sexually
Violent Predator's Act his confinement term expired, and he voluntarily
recommitted himself. J. Kozinski finds that because Jackson did not show
that he had standing to challenge the state court's jurisdiction to order
his confinement as a Sexually Violent Predator, the district court lacked
jurisdiction to consider his habeas petition.
------------------------------------
ATTORNEY FEES, ARBITRATION
Campbell v. Allied Van Lines, June 7
The lower court
awarded attorney fees to shippers who successfully sued carriers of household
goods under the Carmack Amendment. J. Beezer rejects claims by moving
companies' claim that there is no statutory basis to support the attorney
fee award to shippers who brought a court action without first engaging
in available arbitration.
------------------------------------
IMMIGRATION
Kelava v. Gonzalez, June 7
On first impression,
J. Hawkins finds that Kelava, a Croatian national, is ineligible for a
discretionary waiver of inadmissibility or cancellation of removal for
having engaged in terrorist activity and rejects Kelava's claim that it
is impermissibly retroactive to deny him eligibility for previously available
discretionary relief. Affirmed.
-------------------------------------
CIVIL RIGHTS
Genzler v. Longanbach, June 7
[Withdrawn and replaced
opinion.] Genzler sued San Diego officials after he was prosecuted for
homicide. J. W. Fletcher finds that the lower court properly denied immunity
because issues remain as to whether they were engaged in advocacy intimately
associated with the judicial process when they interviewed a key witness,
Sky Blue Flanders. However, there is no genuine dispute that their supervisors'
involvement in prosecutorial decisions was advocacy intimately associated
with the judicial process.
---------------------------------
EDUCATION
Wong v. UC Regents, June 7
Wong v. UC Regents, August 18
[Amended opinion,
petition for rehearing denied.] Wong claimed that defendants discriminated
against him when they failed to accommodate his learning disability so
that he could maintain his grades at UC Davis medical school. J. Clifton
finds that the evidence does not establish a genuine issue as to whether
Wong qualified as "disabled." Wong has not demonstrated that he is substantially
limited in major life activities. The lower court properly excluded expert
witnesses that were identified by Wong after a deadline set by the district
court for identifying expert witnesses.
---------------------------------
IMMIGRATION
Timbreza v. Gonzalez, June 7
The circuit grants
petitioner's request for voluntary dismissal.
---------------------------------
SEARCH
USA v. Marquez, June 7
J. Tallman finds that
an airport screening procedure that subjects passengers to a handheld
magnetometer wand scan, in addition to the standard walkthrough magnetometer
and x-ray luggage scan, is constitutionally reasonable where the passenger
is randomly selected for more intrusive screening upon or before entering
the Transportation Security Administration security checkpoint. Denial
of suppression affirmed.
---------------------------------
CIVIL PROCEDURE, ATTORNEYS
Mothershed v. Justices of the Supreme Court,
June 6
After attorney Mothershed,
licensed in Oklahoma, practiced and lived in Arizona, both states brought
disciplinary proceedings and disbarred him from the practice of law. J.
O'Scannlain finds that Mothershed may not collaterally attack the disciplinary
proceedings in state court. The district court correctly concluded that
it lacked subject matter jurisdiction over Mothershed's civil rights and
state law tort claims against the Arizona defendants, all of which are
premised upon his failure to receive a summons. However, "a general attack
on a state's admissions rules may be heard by lower federal courts," thus
the district court erroneously held that it lacked subject matter jurisdiction
over Mothershed's First Amendment and antitrust claims against the Arizona
defendants.
---------------------------------
LABOR
Valles v. Ivy Hill, June 6
Plaintiffs sued
their employer for failure to provide them and other unionized employees
with adequate meal periods and rest breaks in violation of California's
Labor Code and wage regulations. Ivy Hill removed the action to federal
court on the ground that the meal period claims were completely preempted
by federal labor law. J. Reinhardt finds that the lower court erred when
it refused plaintiff's request to remand to state court. Reversed.
---------------------------------
ATTORNEYS
USA v. Harrington, June 6
Harrington appealed
pro se the district court's denial of his “Motion for Appointment of Counsel”
in connection with a motion for a new trial. J. Schroeder holds that Harrington
was not entitled to appointed counsel because his motion was filed after
his direct appeal, and thus was the equivalent of a collateral attack
for which counsel is not appointed as of right. Also, the motion for a
new trial is denied on the merits.
---------------------------------
ATTORNEYS, CRIMINAL PROCEDURE
USA v. Sandoval-Lopez, June 6
Defendant was caught
with 15 pounds of heroin and defense counsel managed to obtain a remarkably
favorable agreement to plead to a superseding information with statutory
maximums of four and three years respectively, thereby avoiding the risk
of a much longer sentence for possession with intent to distribute. J.
Kleinfeld finds that the lower court erred when it dismissed his appeal,
which claimed that counsel refused his request to appeal the plea. "The
client has the constitutional right to bet on the possibility of winning
the appeal and then winning an acquittal, just as a poker player has the
right to hold the ten and queen of hearts, discard three aces, and pray
that when he draws three cards, he gets a royal flush."
---------------------------------
ENERGY
Air-conditioning and Refrigeration Institute
v. Energy Resources Conservation and Development Commission, June 3
J. Thomas finds
that federal law does not preempt California's appliance regulations that
require appliance manufacturers to submit data about their appliances
to California's Energy Resources Conservation and Development Commission,
mark their appliances with basic information such as brand name and energy
performance, and be subjected to related compliance and enforcement rules.
---------------------------------
IMMIGRATION
Thomas v. Gonzalez, June 3
Plaintiffs were
harassed in South Africa due to their relationship to a former Apartheid
"Boss." J. Wardlaw holds that family membership may constitute membership
in a "particular social group," and thus confer refugee status on a family
member who has been persecuted or who has a well-founded fear of future
persecution on account of that familial relationship. Reversed.
-----------------------------------
BANKRUPTCY
Cossu v. Jefferson Pilot Securities, June 3
Cossu sold exempt
securities without informing his current employer, which eventually had
to settle claims against Cossu based on the impermissibly sold securities.
J. Hawkins finds that the bankruptcy court correctly determined that Jefferson
Pilot had a bankruptcy claim against Cossu, pursuant to a contractual
indemnity provision signed when Cossu was hired. However, the court erroneously
determined the amount it awarded to Jefferson Pilot on that claim.
---------------------------------
TRIBAL LAW
Skokomish Indians v. Tacoma Public Utilities,
June 3
Skokomish v. Tacoma Public Utilities, March 9
{Amended opinion,
petiton for rehearing denied.} [En Banc.] J. Kozinski finds that an Indian
tribe may not bring claims against the United States under the Federal
Tort Claims Act for violation of a treaty, or against a city and a public
utility under a treaty and 42 U.S.C. § 1983.
-----------------------------------
INSURANCE, ATTORNEY FEES
Gerling Global Reinsurance v. Garamendi, June
3
Gerling Global Reinsurance v. Garamendi, March
10
[Amended opinion.]
Plaintiffs challenged the Holocaust Victim Insurance Relief Act, which
requires the disclosure of certain information pertaining to Holocaust-era
insurance policies written in Europe. J. Goodwin finds that plaintiffs
are prevailing parties entitled to attorney fees.
-----------------------------------
IMMIGRATION
Limon v. Gonzalez, June 3
Limon v. Gonzalez, April 19
[Withdrawn opinion.]
The Board of Immigration Appeals held that an alien was not eligible for
a waiver of inadmissibility under a "section 212(k) waiver." J. Hawkins
finds that the circuit has jurisdiction to review the eligibility determination
but finds that Limon was not eligible for the waiver because she did not
exercise reasonable diligence to ascertain her admissibility. Petition
denied.
-----------------------------------
SEARCH
USA v. Fay, June 3
J. Noonan finds
that Fay's roommate had authority to consent to the search of her own
apartment and point out a duffle bag where defendant kept his firearm
and police properly obtained a warrant based on the outline of the gun
seen through the duffle bag's material. Suppression was properly denied.
-----------------------------------
HABEAS
Collier v. Bayer, June 3
J. B. Fletcher holds
that the particular application of Nevada's time limits and tolling provisions
in Collier's case was not adequately established prior to his appeal.
Thus the lower court erroneously dismissed his habeas petition.
-----------------------------------
CONSTITUTION
Menotti v. Seattle, June 2
Menotti v. Seattle, June 2 – Appendix
J. Gould finds that
an emergency order, which prohibited access to portions of downtown Seattle,
Washington, during the 1999 World Trade Organization (WTO) conference,
is a constitutional time place and manner restriction. However, the ordinance
may have been unconstitutionally applied. Reversed.
-----------------------------------
MURDER
Juan v. Allen, June 2
J. Gould finds that
detectives did not violate Miranda or obtain a coerced confession in violation
of the Fifth Amendment. However, the California Court of Appeal decision
that upheld the murder conviction of Juan H. was an unreasonable application
of the Fourteenth Amendment requirement that the prosecution present evidence
sufficient to prove every element of a crime beyond a reasonable doubt.
------------------------------------
IMMIGRATION
Castro-Perez v. Gonzalez, June 1
J. Thompson holds
that the record does not compel a reasonable factfinder to find that Castro-Perez
established that her ground of alleged persecution, rape by the man she
dated in Honduras, is a crime the Honduran government is unable or unwilling
to control. Thus, her petition for asylum and for withholding of removal
is denied.
-----------------------------------
SENTENCING
USA v. Ameline, June 1
USA v. Ameline, June 1
In Booker, the US
Supreme Court left unresolved the question of what relief is to be afforded
to a defendant who did not raise a Sixth Amendment challenge prior to
sentencing. J. Rawlinson finds that when faced with an unpreserved Booker
error that may have affected defendant's substantial rights, and the record
is insufficiently clear to conduct a complete plain error analysis, a
limited remand to the district court is appropriate to ascertain whether
the sentence imposed would have been materially different had the sentencing
court known the guidelines were advisory.
-----------------------------------
CONFRONTATION
Bockting v. Bayer, June 1
Bockting v. Bayer, February 22
[Amended opinion.]
Bockting's conviction for sexual abuse and life sentences stemmed from
a trial in which the only witness to a sexual assault of his daughter,
his six-year old stepdaughter, did not testify at trial but whose interview
with a detective was admitted as key evidence. J. McKeown finds that the
admission of the interview violated defendant's right to confront the
witnesses against him. The US Supreme Court's ruling in Crawford applies
retroactively because it announces a new rule.
|
