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MIRANDA, PROSECUTORIAL MISCONDUCT
USA v. Lopez, July 27
[Amended opinion.] Defendant never told any
border patrol agents about any threats from drug dealers that occurred
in Mexico. J. Rawlinson finds that the government's impermissible
references to Lopez's post-Miranda silence do not mandate reversal of
his conviction.
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IMMIGRATION
Morgan v. Gonzales, July 26
J. Thomas finds that the United States is not
estopped from removing an aggravated felon because the government
allegedly agreed not to deport him in exchange for his cooperation in
a federal drug prosecution.
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SPEEDY TRIAL
USA v. Sperow, July 26
J. Fisher rejects a claim by Sperow, convicted
for possession of marijuana with intent to distribute, asserting that
the post-indictment delay in his arrest amounted to a violation of his
Sixth Amendment right to a speedy trial. However, the government
fatally compromised its notice of a proposed sentence enhancement.
Vacated in part.
-------------------------------------------
CLASS ACTIONS, SECURITIES
Patrone v. Malone, July 25
A member of the class of securities holders
challenged the district court's approval of a settlement and plan of
allocation. J. Sand finds that that the notice of proposed settlement
sent to the class was inadequate under the Private Securities
Litigation Reform Act. Reversed.
-------------------------------------------
ATTORNEYS
USA v. Forrester, July 25
[Amended opinion.] The district court warned
Forrester of the dangers of self-representation, but did not inform
him of the charge against him and told him that he faced 10 years to
life in prison whereas he actually faced a potential prison term of
zero to 20 years. J. Fisher finds that the omission and the
misstatement compel the conclusion that Forrester's waiver of his
right to counsel was not knowing and intelligent and that the Sixth
Amendment was violated when he was allowed to proceed pro se.
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PLEA, CRIMINAL PROCEDURE
USA v. Castillo, July 25
[En banc.] Castillo pled guilty to one count of
being an illegal alien in possession of a firearm. Notwithstanding his
guilty plea, Castillo appealed his conviction but the government
failed to raise the plea or his plea agreement as a bar to this appeal
and instead responded to Jacobo Castillo's arguments on the merits. J.
Bybee finds that a valid plea does not deprive the court of
jurisdiction under the circumstances.
-------------------------------------------
ENVIRONMENT
Oregon Natural Resources Council Fund v. Timber Products, July 24
J. D. W. Nelson finds that the district court
properly determined that the Timbered Rock Fire Salvage and Elk Creek
Watershed Restoration Project, a plan developed by the Bureau of Land
Management to log nearly a thousand acres of protected land in
southwest Oregon after a major forest fire, violated both the Federal
Land Policy and Management Act and the National Environmental Policy
Act.
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ATTORNEY FEES
Golden Pisces v. Fred Wahl Marine Construction, July 24
Golden Pisces and OneBeacon America Insurance
Group challenged the denial of attorney fees following a successful
suit for breach of contract against Fred Wahl Marine Construction. J.
Paez finds that, under the American Rule, which applies in federal
litigation, including maritime litigation, Golden Pisces and OneBeacon
are not entitled to attorney fees absent statutory authorization, an
enforceable contractual provision, or an equitable exception to the
rule.
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CRIMINAL PROCEDURE
USA v. Castillo-Basa, July 24
Rehearing granted en banc.
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SENTENCING
USA v. Figueroa-Ocampo, July 24
J. Pregerson finds that a simple possession
offense that is punishable as a felony under state law but a
misdemeanor under federal law, like the one suffered by Figueroa-Ocampo,
is not to be considered as an aggravated felony.
-------------------------------------------
CIVIL PROCEDURE, TORT
Hamilton Materials v. Union Carbide, July 23
J. Duffy finds that any fraud claims Hamilton
Materials holds for misrepresentations associated with the purchases
of asbestos from 1965 to 1977, including those against the non-diverse
defendants, are time-barred. Hamilton Materials, a knowledgeable and
sophisticated manufacturer of asbestos products and a defendant in
hundreds of lawsuits relating to these exact issues, knew enough about
the controversy to be suspicious that the position taken by Union
Carbide was false. Thus Hamilton Materials was clearly on notice that
the court would look beyond the pleadings and would potentially
convert the motion to dismiss to a motion for summary judgment.
-------------------------------------------
PROPERTY, CONSTITUTION
Vacation Village v. Clark County, Nevada, July 23
J. Smith finds that the owners of real property
near McCarran International Airport in Las Vegas, Nevada have stated
an inverse condemnation claim against Clark County for the county's
enforcement of zoning ordinances that impose, respectively, height and
use restrictions that constitute takings under the Nevada
Constitution.
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IMMIGRATION, CIVIL PROCEDURE
Mantanong v. Gonzales, July 23
Magtanong's attorney used the carrier DHL to send
a petition for review by overnight delivery 29 days after the final
order of removal, but the petition did not arrive and was not filed
until 31 days after the final order of removal. Per curiam, the
circuit finds that the petition must be barred as untimely for failure
to meet the 30 day time limit.
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IMMIGRATION
Muradin v. Gonzales, July 23
The Board of Immigration Appeals agreed with the
immigration judge that the harm respondent testified he suffered and
the fears in the future have not been adequately established to be on
account of actual or imputed political opinion, membership in a
particular social group, or any other protected ground. The
immigration judge, however, did not address Muradin's claim that he
was persecuted because he belonged to a particular social group and
only addressed the merits of Muradin's imputed political opinion
claim. In light of the failure to address this argument, and the
Board's reliance on the immigration judge's order, the circuit remands
for additional investigation or explanation. J. Bright finds that the
record contains no evidence that a political opinion has been imputed
to Muradin by virtue of his mother's membership in an organization
supporting the rights of Armenian soldiers. Finally, the Board
erroneously found that Muradin had not been tortured while in the
military and that the conditions in Armenia did not support the
conclusion that Muradin would more likely than not be tortured upon
his return.
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EVIDENCE
Winzer v. Hall, July 23
Defendant was convicted by a Los Angeles County
jury on two counts of making a terrorist threat by saying "I'll smoke
you and your daughter" while appearing to indicate that he had a gun
in the waist band of his pants. J. Molloy finds that the conviction
cannot stand because the statement and gesture were proven through the
testimony of a police officer, who interviewed the two victims at
their home more than five and a half hours after defendant left. Based
on the officer's testimony about the victims' demeanor, and despite
the exclusion of their 911 call as "one of the calmest" the court had
ever heard, the California courts erroneously found that the victims'
statements to the officer were spontaneous and thus exceptions to
hearsay. Reversed.
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EMPLOYMENT
Poland v. Chertoff, July 20
Plaintiff claimed that he was fired in
retaliation for claims of age discrimination by the Special Agent in
Charge of his customs office in Portland. J. Gould finds that the
Customs Service unlawfully retaliated against Poland for filing EEOC
complaints. However, the district court erroneously held that the
Customs Service's transfer of Poland amounted to a constructive
discharge and should not have awarded damages to Poland on a
constructive discharge theory. On remand, Poland can amend his
complaint to seek the remedies available under his retaliation theory.
-------------------------------------------
EDUCATION, ADMINISTRATIVE LAW
Katasi v. Las Virgenes USD, July 19
In a case where the parents of a young autistic
boy battled with a middle school over the placement of their son in an
individualized education program, J. Fisher reaffirms the principle
that plaintiffs must exhaust administrative remedies before filing a
civil lawsuit if they seek relief for injuries that could be redressed
to any degree by the IDEA's administrative procedures.
-------------------------------------------
IMMIGRATION
Singh v. Gonzales, July 19
[Rehearing granted in part.] Singh claimed that
neither he nor his attorney learned of a Board of Immigration Appeals
adverse decision until well after the time for Singh to file an appeal
with this court had lapsed. J. Fisher finds that the Board stated that
the decision "was correctly mailed? to Singh's attorney, but provided
no explanation of how the panel reached this conclusion and failed to
address affidavits from Singh and his attorney that claimed neither
received notice of the decision.
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VETERANS
Nehmer v. US Department of Veterans Affairs, July 19
Veterans Affairs issued a regulation that found
chronic lymphocytic leukemia was a disease that was associated with
dioxin, used as the defoliant Agent Orange during the Vietnam War, and
thus service-connected. However, Veterans Affairs VA did not
readjudicate the prior claims of Vietnam veterans suffering from that
ailment or pay them retroactive benefits. J. Reinhardt finds that the
Department erroneously asserted that, even though service-connected,
an earlier consent decree did not apply to diseases the agency
determined to be service-connected after the sunset date of the Agent
Orange Act. "This case involves our government's treatment of veterans
who contracted serious ailments as a result of their exposure to Agent
Orange in the course of the military's use of that toxic chemical as a
defoliant during the Vietnam War. It is a disturbing story, and the
performance of the VA has contributed substantially to our sense of
national shame."
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SENTENCING
USA v. Bibler, July 19
[Amended opinion.] J. Fletcher holds that the
appeals court lacks jurisdiction to hear defendant's challenge to her
80-month sentence for drug convictions because defendant waived her
right to appeal as a part of her plea and no appeal waiver applies.
Affirmed.
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DUI, INEFFECTIVE ASSISTANCE
Hemmerle v. Schriro, July 19
Hemmerle, convicted of second-degree murder and
endangerment after running a red light and killing another motorist
while operating his vehicle under the influence of alcohol, claimed
that his trial attorney told him to testify that he saw signs at
Toolie's Bar that stated that the bar would call a cab if a patron
felt he was too intoxicated to drive home. The false testimony
backfired, Hemmerle claimed, when the jury used the evidence as proof
that he had an indifference to human life because he saw the sign and
did not ask the bar for a ride. However, J. O'Scannlain finds that he
allowed his time to seek review in the Supreme Court expire.
-------------------------------------------
IMMIGRATION
Hadera v. Gonzales, July 18
J. Ferguson finds that the immigration judge
erroneously designated Ethiopia as Hadera's country of origin in the
face of the immigration judge's determination that "It may well be, as
respondent argues, that he is stateless."
-------------------------------------------
ELECTIONS
Association of American Physicians and Surgeons v. Brewer, July 18
[Rehearing granted.] A Political Action Committee
that desired to make independent campaign expenditures in statewide
elections in Arizona feared that the exercise of the PAC's First and
Fourteenth Amendment rights "will be deprived" by the Arizona Citizens
Clean Elections Act. J. Noonan holds that the Political Action
Committee was disbanded after the case was dismissed by the district
court and thus plaintiff's stated intentions are purely hypothetical.
Dismissed as moot.
-------------------------------------------
CONSUMER LAW, CONTRACT
Douglas v. USDC Central District of California, July 18
Talk America changed the terms of an agreement
plaintiff made with AOL for telephone services after Talk America
bought that portion of AOL's company. Per curiam, the circuit finds
that a long distance telephone service provider may not change the
terms of a service contract by merely posting a revised contract on
its website. The district court thus erroneously held that Douglas was
bound by the terms of the revised contract when he was not notified of
the changes. The district court erroneously applied California law of
both procedural and substantive unconscionability.
-------------------------------------------
SEARCH
USA v. Diaz-Castaneda, July 18
J. Fisher finds that a license plate check by a
law enforcement officer that reveals information about a person's car
ownership, driver status and criminal record does not constitute a
search under the Fourth Amendment. Thus Diaz-Castaneda's Fourth
Amendment rights were not violated when a Clackamas County Deputy
Sheriff stopped the truck in which Diaz- Castaneda was a passenger,
asked him for identification and checked his driver's license or
Oregon identification card with radio dispatch.
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IMMIGRATION
USA v. Diaz-Luevano, July 18
Per curiam, the circuit finds that that an
alien's physical removal is what matters for purposes of criminal
sanctions, regardless of the procedure employed; removals pursuant to
reinstated orders of removal thus count for purposes of sentence
enhancements for reentry by a previously deported felon.
-------------------------------------------
MEDICAID
Ball v. Rodgers, July 17
A certified class of elderly, physically
disabled, and developmentally disabled Medicaid beneficiaries claimed
that Arizona fails to provide adequate home- and community-based
health care services in violation of several provisions of the federal
Medicaid Act. J. Berzon finds that although the district court
originally concluded that Arizona violated the Medicaid Act's "equal
access" provision, the circuit has since held that the provision does
not accord Medicaid recipients individual rights enforceable under
section 1983. However, the district court correctly held that Arizona
violated two other Medicaid Act subsections, known as the "free
choice" provisions, for which Medicaid recipients possess enforceable
individual rights.
-------------------------------------------
CIVIL PROCEDURE, IMMUNITY
Ministry of Defense and Support for the Armed Forces of the Islamic
Republic of Iran v. Elahi, July 17
[Amended opinion.] Elahi attempted to collect on
a default judgment he holds against Iran by seeking to attach a $2.8
million judgment obtained in a contract dispute by the Iranian
Ministry of Defense and Support of the Armed Forces of the Islamic
Republic of Iran. The district court held that that the Ministry had
waived its immunity from attachment by submitting to the jurisdiction
of the court. J. Fisher upholds the lower court on the alternative
theory that the judgment is subject to attachment under the Terrorism
Risk Insurance Act.
-------------------------------------------
CIVIL RIGHTS, ATTORNEY FEES
Edgerly v. City and County of San Francisco, July 17
J. Paez finds that the lower court improperly
found that police did not violate Edgerly's rights when they arrested
him for trespass at a public housing complex. Police had no right to
search Edgerly at jail and were not entitled to qualified immunity for
the arrest or search. However, the lower court properly dismissed
claims against the supervisor who authorized the issuance of a
trespass citation and properly awarded the supervisor attorney fees.
Reversed in part.
-------------------------------------------
EDUCATION
R. B. v. Napa Valley USD, July 17
R. B. was born to a mother who abused cocaine
heroin and alcohol. J. Gonzalez finds that the state education hearing
officer properly determined, without the aid of R. B.'s teacher or
therapist from private school, that R. B. did not have a serious
emotional disturbance that entitled the parents to reimbursement of
private school tuition.
-------------------------------------------
PROSECUTORIAL MISCONDUCT
USA v. Sine, July 17
[Amended opinion.] Utah lawyer Wesley Sine helped
run a pyramid scheme that defrauded victims of more than two million
dollars by reassuring individuals that they lent money to a legitimate
real estate investor and that millions of dollars in legitimate
collateral protected them from default. During his criminal trial, J.
Berzon finds that the government improperly and repeatedly referred to
the derogatory character assessments of an Ohio court, which dismissed
Sine's Ohio state court filings against his co-conspirator that
asserted he too had been misled as to the value of the collateral.
However, the error was harmless in light of the evidence of guilt.
-------------------------------------------
SMUGGLING
USA v. Jenkins, July 17
Jenkins, who was apprehended twice for attempting
to cross the U.S.-Mexico border while driving a vehicle containing
undocumented aliens, claimed in her own defense that she believed the
vehicle in which she had been a passenger contained illegal aliens,
not marijuana, because she had been paid on two previous occasions to
smuggle aliens, not marijuana. J. Canby finds that the prosecutor's
conduct created the appearance of vindictive prosecution because the
alien smuggling charges were brought only after Jenkins exercised her
right to testify in her own defense at her separate marijuana
smuggling trial.
-------------------------------------------
SOCIAL SECURITY
Orn v. Astrue, July 16
Orn has been diagnosed with several disorders,
including asthma, severe chronic obstructive pulmonary disease,
diabetes, sleep apnea and morbid obesity. J. Fletcher finds that the
administrative law judge did not give "specific, legitimate reasons
that are based on substantial evidence in the record" for the
dismissal of the opinions of Orn's two treating physicians. The
administrative law judge also failed to credit Orn's testimony, which
if credited, would reveal that Orn is indeed disabled.
-------------------------------------------
CRIMINAL PROCEDURE, SENTENCING
Benitez v. Garcia, July 16
[Withdrawn and replaced opinion.]. Defendant was
extradited from Venezuela, for the murder of a man involved in an
altercation with his brother, on assurances from the US that defendant
would not serve life term or be subject to the death penalty. Per
curiam, the circuit finds that the lower court properly sentenced
defendant to "15 to life" upon his return to the country. Venezuela
could have refused extradition of Benitez until the United States
agreed to the sentencing limitation. Instead, Venezuela relinquished
custody.
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SENTENCING, FIREARMS
USA v. Jimison, July 16
Defendant fled from police and stole firearms
from a ranch house. Soon after arriving at another friend's house,
Jimison called the owner of guns, apologized and made arrangements to
return them. He also safely locked the guns in the trunk of the car
and departed, leaving the car and guns at the friend's house. J.
Kozinski finds that, under these circumstances, there was insufficient
evidence to conclude that Jimison formed a firm intent to have a
shootout with law enforcement.
-------------------------------------------
ENVIRONMENT
Earth Island Institute v. Hogarth, July 13
[Amended opinion.] The National Oceanographic and
Atmospheric Administration sought to broaden the definition of
acceptable tuna fishing technique to include corralling dolphins in
order to catch the tuna that congregate below dolphin herds. Plaintiff
claimed this technique does great, possibly irreparable harm to the
dolphin population. The district court found that the Administration
repeatedly failed to heed both Congressional intent and a prior ruling
of the appellate court. J. Schroeder holds that the Agency failed to
conduct statutorily-mandated studies and that the best available
scientific evidence does not support the agency's Final Finding, which
had been improperly influenced by political concerns. Affirmed.
-------------------------------------------
SECURITIES
US Mortgage v. Saxton, July 13
Plaintiffs claimed that defendants committed
violations of Arizona law through the incorporation of false financial
information into Saxton's regulatory filings, on which plaintiffs
relied to make several loans and grant several loan-related
concessions to Saxton and its affiliates. J. Smith finds that, once
defendants removed the case to federal court, the lower court properly
dismissed the suit for failure to conform to the Securities Litigation
Uniform Standards Act.
-------------------------------------------
PAROLE
Irons v. Carey, July 13
[Amended opinion.] J. Reinhardt finds that that
Irons' crime was cruel and vicious, and thus cannot say that there was
not "some evidence" to support the Board's determination that Irons
was unsuitable for parole under California law. However the California
Board of Prison Terms appeared to give little or no weight to evidence
of rehabilitation to reach its conclusion that Irons presently
constituted a danger to society and thus was unsuitable for parole.
"We hope that the Board will come to recognize that in some cases,
indefinite detention based solely on an inmate's commitment offense,
regardless of the extent of his rehabilitation, will at some point
violate due process, given the liberty interest in parole that flows
from the relevant California statutes." The district court erroneously
granted habeas relief to Irons.
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INEFFECTIVE ASSISTANCE
Tanner v. McDaniel, July 13
Tanner, who pleaded guilty to the murder of his
wife and to forcing his twelve year old step son to have oral sex with
him, claimed counsel and the court failed to inform him of his right
to appeal after he pleaded guilty to murder and sodomy. J. Tashima
finds that Flores-Ortega broke no new ground in holding that
reasonably effective performance requires a defense attorney to
discuss an appeal with her client whenever there is a rational basis
to think that her client should appeal. That obligation already
followed from Strickland's general standard for evaluating
professional competence. Tanner has not shown that his counsel was
deficient in failing to consult with him regarding an appeal.
-------------------------------------------
SEARCH
USA v. Abbouchi, July 13
Defendants were convicted for transferring false
identification by way of UPS. J. Pregerson finds that a customs
inspection conducted at UPS's regional sorting hubs like the one at
Louisville, Kentucky, takes place at the functional equivalent of the
border.
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CRIMINAL PROCEDURE, ENVIRONMENT
USA v. Grace, July 12
Grace committed criminal acts related to the
improper disposal of asbestos-contaminated vermiculite spanning 26
years and created at least 1,200 victims and 230 potential witnesses.
J. Fisher finds that the government has supplemented its initial
conclusory certification with enough specificity to demonstrate the
materiality of the proffered witnesses and studies to support circuit
jurisdiction on interlocutory appeal. On the merits, the district
court exceeded its authority to the extent that the court ordered the
government to disclose a pretrial list of its nonexpert witnesses.
-------------------------------------------
ATTORNEY FEES, GOVERNMENT
Dunn & Black PS v. USA, July 11
J. O'Scannlain finds that a law firm cannot bring
an action against the United States to recover attorney fees from
monies that the firm's client was awarded as a result of a settlement
with the Federal Highway Administration, but that the client never
received because the IRS requested that payment be withheld to offset
unpaid tax liabilities. The firm failed to satisfy the requirements
for a waiver of sovereign immunity.
-------------------------------------------
CRIMINAL PROCEDURE, ATTORNEYS
USA v. Shea, July 11
Shea was convicted for intentionally causing
damage to a "protected computer" without authorization. J. Hall
rejects Shea's claims that the government presented no evidence that
he committed a criminal act on the date alleged in the indictment and
that the district court improperly denied his request for substitute
counsel.
-------------------------------------------
COMMUNICATIONS
Fisher v. NOS Communications, July 10
Customers of defendants, telecommunications
companies offering interstate service, were subject to federally filed
tariffs and sued to recover the difference between the charges
incurred at the rates billed by defendants and the charges incurred at
the rates billed by a previous carrier. J. Wallace finds that
plaintiffs' Federal Communications Act claims were a direct challenge
to the filed rate, and consequently barred by the filed-rate doctrine.
However, Sound Travel's claim under the Washington Consumer Protection
Act can be maintained without reference to federal law.
-------------------------------------------
SENTENCING
USA v. Snellenberger, July 10
[Amended opinion.] J. Ferguson finds that a
minute order, coupled with a charging document, is not sufficient to
establish a prior crime of violence for purposes of a sentence
enhancement.
-------------------------------------------
CRIMINAL PROCEDURE, PROBATION
USA v. Horvath, July 10
Any person who knowingly and willfully makes a
materially false statement to the federal government is subject to
criminal liability under 18 U.S.C. 1001(a), but Congress chose to
exempt from criminal liability, false statements submitted to a judge
by a party to a judicial proceeding. J. Graber finds that the
exemption encompasses a false statement submitted to the judge in a
presentence report, when defendant made the false statement to the
probation officer during defendant's presentence interview, rather
than to the judge directly, but only when the probation officer is
required by law to include such a statement in the report and to
submit the report to the judge.
-------------------------------------------
HEALTHCARE
Loma Linda University Medical Center v. Leavitt, July 9
In a dispute over reimbursement under the
Medicare program, J. Rymer finds that the Provider Reimbursement
Review Board has jurisdiction over a Medicare provider's appeal of a
cost that was allowable under the Medicare regulations even though the
provider failed to include the cost in the cost report submitted to
the fiscal intermediary.
-------------------------------------------
IMMIGRATION
Abebe v. Gonzales, July 9
J. D. W. Nelson finds that the Board of
Immigration Appeals correctly found that an Ethiopian, convicted of
lewd and lascivious conduct on a child, was ineligible to apply for
discretionary relief from removal under former section 212(c) of the
Immigration and Nationality Act because the ground of deportability
charged by the government, an aggravated felony that defines the term
to include "sexual abuse of a minor crimes," lacks a comparable ground
of inadmissibility under the new immigration statute.
-------------------------------------------
JUDICIARY, DEATH PENALTY
Crater v. Galaza, July 9
J. O'Scannlain rejects a constitutional challenge
to the Anti-terrorism and Effective Death Penalty Act brought by
another habeas petitioner convicted of murder in a California state
court. The circuit rejects defendant's claim that a provision of AEDPA,
which limits the grounds for federal habeas relief for prisoners
convicted in state court, violates the Suspension Clause and
interferes with the independence of federal courts under Article III.
-------------------------------------------
PROSECUTORIAL MISCONDUCT
USA v. Jernigan, July 9
Although the prosecution knew after Jernigan's
arrest that other nearby banks had been robbed by a similarly
diminutive, Hispanic female with poor skin, the prosecution failed to
relay the information to defense counsel. J. B. Fletcher finds that
evidence of another possible robber, who fit Jernigan's description
and who had robbed banks while Jernigan was in custody, was material
to Jernigan's guilt. Reversed.
-------------------------------------------
DRUG OFFENDER, SEARCH
USA v. Forrester, July 6
Defendants were charged with conspiracy to
operate a large Ecstasy-manufacturing laboratory. The circuit finds
that the district court carefully warned Forrester of the dangers of
self representation, but erroneously failed to inform him of the
charge against him and told him that he faced 10 years to life in
prison whereas he actually faced a potential prison term of zero to 20
years. The omission and the misstatement rendered Forrester's waiver
of his right to counsel not knowing and intelligent and the Sixth
Amendment was violated when he was allowed to proceed pro se. Further,
the computer surveillance that enabled the government to learn the
to/from addresses of his e-mail messages, the IP addresses of the
websites that he visited and the total volume of information
transmitted to or from his account was analogous to the use of a pen
register.
-------------------------------------------
FRAUD
USA v. Moran, July 6
Per curiam, the circuit finds that the district
court properly allowed expert testimony that certain financial
transactions that defendants participated in were "shams," gave proper
Pinkerton instructions to the jury and permissibly admitted a
codefendant's computer records as coconspirator statements. However,
the court erroneously excluded Mrs. Moran's testimony as to outside
expert opinions she had received about the legality of the Morans' tax
schemes because this testimony would have comprised a critical element
of the Morans' good faith defense.
-------------------------------------------
SENTENCING
USA v. Chairez, July 6
J. Schroeder finds that the sentencing commission
properly treated a felon like Ruiz, who was convicted of being found
in the United States after having been previously deported, more
severely than a felon who is convicted of a different crime. 16 level
sentence enhancement affirmed.
-------------------------------------------
ATTORNEYS TAX
USA v. Ensign, July 5
When Ensign was convicted for the willful failure
to file tax returns, her attorney Oscar Stilley, admitted in Arkansas
but not admitted to the district court's bar or the Arizona bar, asked
the district court to allow him to proceed pro hac vice as Ensign's
attorney but the court declined. J. Callahan finds that the district
court properly declined to allow Stilley to represent Ensign pro hac
vice and that Stilley lacks standing to appeal the district court's
orders.
------------------------------
JUVENILE LAW
USA v. Juvenile Male, July 5
The state sought to transfer an 18 year old
Native American boy to an adult facility for the murder he committed
when he was fifteen. Per curiam, the circuit finds that the lower
court made a clearly erroneous finding with regard to the defendant's
social background: the district court's determination that defendant
experienced "no domestic violence while living with his grandparents"
is contrary to the record. Also, to describe defendant's social
background, the district court compared defendant to other Native
American youths rather than making an individualized assessment of the
juvenile's special circumstances, as required under the Federal
Juvenile Delinquency Act.
------------------------------
CRIMINAL PROCEDURE, PRISONER RIGHTS
Andrews v. Cervantes, July 5
Andrews v. Cervantes, June 26
[Amended opinion.] Due to three previously
dismissed frivolous appeals, Andrews was required to pre-pay $350
before he leveled another challenge to the conditions of his
confinement J. Berzon finds that the district court should have
allowed Andrews's lawsuit to proceed in forma pauperis because he
sufficiently alleged an "imminent danger of serious physical injury"
through claims that the prison fails to screen inmates with contagious
diseases and intermixes them with the general population. Reversed.
------------------------------
SECURITIES
Sherman v. SEC, July 3
Sherman, the attorney for several defendants in
an enforcement action brought by the Securities and Exchange
Commission and in other actions in which those defendants were
parties, filed a Chapter 7 bankruptcy petition that the SEC sought to
dismiss. J. Berzon finds that the SEC has standing because the agency
retained a pecuniary interest as a creditor in some of the Shermans'
debt, an interest not extinguished by the settlement agreement between
Sherman and the Receiver. In addition, the case is not moot, because
dismissal could have had an impact on the parties despite the grant of
a discharge order while the appeals were pending. Finally, the
bankruptcy court properly refused to dismiss the petition for cause.
Other provisions of the Bankruptcy Code address the misconduct that
the SEC argued constituted "cause" to justify dismissal.
----------------------------------
COPYRIGHT
Perfect 10 v. Visa International, July 3
Plaintiff claimed that defendants should be
secondarily liable for their continued efforts to process credit card
payments to websites that infringe Perfect 10's intellectual property
rights after being notified by Perfect 10 of infringement by those
websites. J. Smith finds that Perfect 10 failed to state a claim upon
which relief could be granted.
----------------------------------
SOCIAL SECURITY
Lewis v. Astrue, July 3
J. Wallace finds that, even assuming that the
administrative law judge erroneously neglected to list Lewis's
bursitis at Step 2 of the analysis of his disability, any error was
harmless because the judge extensively discussed Lewis's bursitis at
Step 4 of the analysis, observing that "claimant also had left-sided
greater trochanteric bursitis."
----------------------------------
TERRORISM, THREATS, SENTENCING
USA v. Gonzales, July 3
Southwest airline passenger Gonzalez became
hysterical, demanded that his plane land, made statements about a bomb
and, according to a flight attendant, said, "I'm blowing the plane
up." The crew and passengers tried to subdue him and he eventually was
handcuffed and the plane was diverted back to Las Vegas. J. McKeown
finds that the district court properly imposed a nine-level sentence
enhancement for reckless endangerment of the aircraft because his
conduct was a threat not only to crew and passengers but to the
aircraft. 27-month sentence affirmed.
----------------------------------
EVIDENCE, CRIMINAL PROCEDURE
Schroeder v. Tilton, July 3
The Supreme Court previously ruled that some, but
not all, rules of evidence have an impermissible retroactive effect if
used in criminal trials where the conduct at issue took place before
the rule of evidence was adopted. J. McKeown finds that a California
state trial court did not violate the Ex Post Facto Clause when it
admitted evidence of prior sexual misconduct under Evidence Code
section 1108.
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ATTORNEYS
Foote v. Del Papa, July 3
J. Wallace finds that no Supreme Court case has
held that an "irreconcilable conflict" between defendant and his
appointed appellate counsel violates the Sixth Amendment. Nor has the
Supreme Court held that a defendant states a Sixth Amendment claim by
alleging that appointed appellate counsel had a conflict of interest
due to the defendant's dismissed lawsuit against the public defenders
office and appointed pre-trial counsel. Foote's "conflict of interest"
claim thus fails.
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TORT, IMMUNITY, GOVERNMENT
Schoenfeld v. Quamme, July 2
Schoenfeld lost his leg while a passenger in his
roommate's car when the car crashed into a previously damaged, but
unrepaired, guardrail on a military base. J. Wardlaw finds that the
Feres doctrine, which immunizes the government from suit for injuries
arising incident to military service, does not bar Schoenfeld's claim
against the government under the Federal Tort Claims Act. Reversed.
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ENVIRONMENT
The Lands Council v. McNair, July 2
The lower court refused to halt the Mission Brush
Project, under which the US Forest Service planned to allow the
selective logging of 3,829 acres of forest in the Idaho Panhandle
National Forests to restore portions of the forest to historic
conditions. J. Ferguson finds that the district court erroneously held
that Lands Council was unlikely to prevail on the claims and that the
balance of hardships favored the Forest Service. Reversed.
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RESTITUTION, CRIMINAL PROCEDURE
USA v. Jeremiah, July 2
USA v. Jeremiah, May 24
[Amended opinion.] Defendant claimed that the
district court lacked jurisdiction to revoke supervised release when
he failed to pay restitution because he was arrested without a valid
warrant and denied a preliminary hearing. J. Callahan rules that,
contrary to defendant's claim that the warrant was not based on sworn
facts, the warrant stated that the allegations were declared under
penalty of perjury. Even if the arrest warrant was invalid, illegal
arrest or detention does not void a subsequent conviction. Defendant
waived the preliminary hearing issue when he failed to raise the issue
below. Affirmed.
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INEFFECTIVE ASSISTANCE
Lambright v. Schriro, July 2
Lambright v. Schriro, May 11
[Amended opinion.] During a hearing on
defendant's ineffective assistance of counsel at sentencing claim, the
circuit finds that the trial court erroneously applied an "explanatory
nexus" test to possibly mitigating evidence. The United States Supreme
Court previously rejected the test as a means of evaluating possibly
mitigating evidence. Reversed. |
