U.S. Ninth Circuit: August 2009 News
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9th Circuit August 2009 News

Hilton v. Hallmark Cards, No. 08-55443

In a trademark infringement and state tort action by celebrity Paris Hilton against the greeting card company Hallmark for using her image and catchphrase in a birthday card without her permission, a denial of defendant's motion to strike under California's anti-SLAPP statute is affirmed where: 1) plaintiff had some probability of prevailing on the merits before a trier of fact on the issue of whether defendant's use of her image was transformative; and 2) defendant could not employ the public interest defense because its birthday card did not publish or report information.

Read Hilton v. Hallmark Cards, No. 08-55443

Appellate Information

Argued and Submitted May 6, 2009

Filed August 31, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Lincoln D. Bandlow, Spillane Shaeffer Aronoff Bandlow LLP, Los Angeles, CA

For Appellee:

Brent H. Blakely, Blakely Law Group, Hollywood, CA

In a petition for review of Respondent power administration's decision to execute an amended contract with an aluminum company, agreeing to make a payment to the aluminum company so it could purchase power from one of Respondent's competitors, the petition is granted, where the transaction was not consistent with sound business principles.

Read Pacific Northwest Generating Coop. v. Bonneville Power Admin., No. 09-70228

Appellate Information

Argued and Submitted July 7, 2009

Filed August 28, 2009

Judges

Opinion by Judge Berzon

Counsel

For Petitioners:

Erick Johnson, Lake Oswego, OR

Mark R. Thompson, Portland, OR

For Respondent:

Randy A. Roach, General Counsel, Bonneville Power Administration, Portland, OR

Timothy A. Johnson, Assistant General Counsel, Portland, OR

US v. Gallenardo, No. 07-30414

Defendant's child pornography conviction and sentence are affirmed, where 1) intrastate possession of child pornography may affect interstate commerce; 2) the prosecution had a strong case independent of the initial portions of an improperly admitted audiotape; and 3) 18 U.S.C. section 3559(e)(2) mandates a life sentence only for that specific subset of prior convictions under 18 U.S.C. section 1591 where the victim is a minor.

Read US v. Gallenardo, No. 07-30414

Appellate Information

Argued and Submitted February 2, 2009

Filed August 28, 2009

Judges

Opinion by Judge Rawlinson

Counsel

For Appellant:

Wendy Holton, Helena, MT

For Appellee:

Marcia Hurd, Assistant U.S. Attorney, Billings, MT

Yokoyama v. Midland Nat'l. Life Ins. Co., No. 07-16825

In a class action claiming that an insurance company marketed annuities through deceptive practices in violation of Hawaii's Deceptive Practices Act, the denial of class certification is reversed, where there were no individualized issues of subjective reliance under Hawaii law that would defeat commonality.

Read Yokoyama v. Midland Nat'l. Life Ins. Co., No. 07-16825

Appellate Information

Argued and Submitted November 20, 2008

Filed August 28, 2009

Judges

Opinion by Judge Schroeder

Counsel

For Appellants:

James J. Bickerton, Honolulu, HI

For Appellee:

Robert D. Phillips, Oakland, CA

Bauman v. DaimlerChrysler Corp., No. 07-15386

In an action against DaimlerChrysler based on human rights violations allegedly committed by Mercedes Benz Argentina, its subsidiary, in Argentina during the 1970s military regime, the dismissal of the action for lack of personal jurisdiction is affirmed, where a parent's control over a subsidiary must be over and above that to be expected as an incident of ownership for jurisdiction to exist on that basis.

Read Bauman v. DaimlerChrysler Corp., No. 07-15386

Appellate Information

Argued and Submitted October 21, 2008

Filed August 28, 2009

Judges

Opinion by Judge Nelson

Dissent by Judge Reinhardt

Counsel

For Appellants:

Terry Collingsworth, International Rights Advocates, Washington, DC

For Appellee:

Matthew J. Kemner, Carroll, Burdick & McDonough LLP, San Francisco, CA

US v. Guzman-Mata, No. 08-10061

Defendant's sentence for illegally reentering the U.S. is affirmed where a conviction under 8 U.S.C. section 1324(a)(1) is categorically an "alien smuggling offense" under U.S.S.G. section 2L1.2(b)(1)(A), and thus the district court properly enhanced defendant's sentence.

Read US v. Guzman-Mata, No. 08-10061

Appellate Information

Argued and Submitted February 9, 2009

Filed August 27, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

David T. Shannon, Assistant Arizona Federal Public Defender, Tuscon, AZ

For Appellee:

Celeste B. Corlett, Assistant United States Attorney for the District of Arizona, Tuscon, AZ

George Ferko, Assistant United States Attorney for the District of Arizona, Tuscon, AZ

Suever v. Connell, No. 08-15884

In an action by a putative class of persons whose financial assets escheated to the California Controller's Office pursuant to California's Unclaimed Property Law (UPL), alleging insufficient notice and mishandling of plaintiffs' property, order granting partial summary judgment to plaintiffs and defendants is affirmed in part where the Eleventh Amendment barred plaintiffs' claims for restitution.  However, the order is reversed in part where the state was not constitutionally required to pay any interest under the UPL.

Read Suever v. Connell, No. 08-15884

Appellate Information

Argued and Submitted July 13, 2009

Filed August 26, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellants:

William Wayne Palmer, Law Offices of William W. Palmer, Sacramento, CA

Daniel J. Culhane, Law Offices of William W. Palmer, Sacramento, CA

For Appellees:

Robin B. Johansen, Remcho, Johansen & Purcell, LLP, San Leandro, CA

James C. Harrison, Remcho, Johansen & Purcell, LLP, San Leandro, CA

Craig v. Educational Credit Management Corp., No. 08-15451

In an appeal from a bankruptcy court order declining to discharge debtor's student loan in bankruptcy under 11 U.S.C. section 523(a)(8) based on undue hardship, the order is vacated where it was unclear from the record how the bankruptcy court arrived at its conclusion regarding debtor's ability to make the required monthly payments.

Read Craig v. Educational Credit Management Corp., No. 08-15451

Appellate Information

Argued and Submitted June 12, 2009

Filed August 26, 2009

Judges

Opinion by Judge Trott

Counsel

For Appellant:

Kasey C. Nye, Quarles & Brady, LLP, Tucson, AZ

For Appellee:

Madeleine C. Wanslee, Gust Rosenfeld P.L.C., Phoenix, AZ

Prakash v. Holder, No. 07-72831

In a petition for review of the BIA's order removing petitioner from the U.S., the petition is denied where convictions for solicitation to commit rape by force, in violation of Cal. Pen. Code section 653f(c), and solicitation to commit assault by means of force likely to produce great bodily injury, in violation of Cal. Pen. Code section 653f(a), constitute crimes of violence under 8 U.S.C. section 1101(a)(43)(F) for immigration law purposes.

Read Prakash v. Holder, No. 07-72831

Appellate Information

Argued and Submitted July 15, 2009

Filed August 26, 2009

Judges

Opinion by Judge Clifton

Counsel

For Petitioner:

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, CA

For Respondent:

Anthony C. Payne, Senior Litigation Counsel, Office of Immigration Litigation, Washington, DC

Jesse M. Bless, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC

US v. Cardenas-Mendoza, No. 07-10553

Defendant's drug conviction is affirmed where the district court abused its discretion under the Jencks Act when it did not strike the testimony of a government agent whose grand jury testimony transcript could not be produced, but the error was harmless because the agent's testimony played only a small part in the government's case.

Read US v. Cardenas-Mendoza, No. 07-10553

Appellate Information

Argued and Submitted December 10, 2008

Filed August 26, 2009

Judges

Opinion by Judge Walker

Counsel

Francisco León, Francisco León P.C., Tuscon, AZ

For Appellee:

Diane J. Humetewa, United States Attorney, District of Arizona, Tucson, AZ

Bruce M. Ferg, Assistant United States Attorney, Tuscon, AZ

US v. Comprehensive Drug Testing, Inc., No. 05-10067

In cases arising from the federal investigation of the Bay Area Lab Cooperative (Balco) and its alleged distribution of illegal steroids to professional baseball athletes, orders quashing subpoenas seeking information regarding drug tests performed on baseball players are affirmed over the government's appeal where: 1) the government failed to timely appeal one of the orders, which determined that the government failed to segregate intermingled data, and thus the order had preclusive effect on the other pending cases; and 2) Fed. R. Crim. P. 41(g) was an appropriate means of obtaining the return of property improperly seized by the government.

Read US v. Comprehensive Drug Testing, Inc., No. 05-10067

Appellate Information

Argued and Submitted December 18, 2008

Filed August 26, 2009

Judges

Opinion by Chief Judge Kozinski

Partial Concurrence and Partial Dissent by Judge Callahan

Partial Concurrence and Partial Dissent by Judge Bea

Dissent by Judge Ikuta

Counsel

For Appellant:

Joseph Douglas Wilson, Assistant United States Attorney, San Francisco, CA

Andrew Duncan, Assistant United States Attorney, Las Vegas, NV

For Appellees:

Ethan Atticus Balogh, Coleman & Balogh LLP, San Francisco, CA

Jeffrey C. Hallam, Sideman & Bancroft LLP, San Francisco, CA

Crickon v. Thomas, No. 08-35250

In a drug prosecution, a denial of petitioner's habeas petition is reversed where the Bureau of Prisons failed to provide a rational explanation for its regulations categorically excluding prisoners with certain prior convictions from early release eligibility.

Read Crickon v. Thomas, No. 08-35250

Appellate Information

Argued and Submitted February 2, 2009

Filed August 25, 2009

Judges

Opinion by Judge Rawlinson

Counsel

For Petitioner:

Stephan R. Sady, Chief Deputy Federal Public Defender, Portland, OR

For Respondent:

Suzanne A. Bratis, Assistant United States Attorney, Portland, OR

US v. George, No. 08-30339

Defendant's conviction for failure to register as a sex offender under the Sex Offender Notification and Registration Act (SORNA) is affirmed where an individual's obligation to register is not dependent on a state's implementation of SORNA, and thus the fact that Washington had not implemented SORNA at the time of defendant's sexual abuse of a minor conviction was irrelevant.

Read US v. George, No. 08-30339

Appellate Information

Argued and Submitted June 2, 2009

Filed August 25, 2009

Judges

Opinion by Judge Thompson

Counsel

For Appellant:

Rebecca Louise Pennell, Assistant Federal Public Defender, Yakima, WA

For Appellee:

Alexander C. Ekstrom, Assistant United States Attorney, Yakima, WA

Randle v. Crawford, No. 08-15657

In a murder prosecution, dismissal of a habeas petition as untimely is affirmed where: 1) the Nevada Supreme Court's order dismissing petitioner's appeal as untimely did not constitute "the conclusion of direct review" pursuant to 28 U.S.C. section 2244(d)(1)(A); and 2) even with the benefit of statutory tolling pursuant to Section 2244(d)(2), petitioner's petition was untimely by 192 days.

Read Randle v. Crawford, No. 08-15657

Appellate Information

Argued and Submitted March 9, 2009

Submission Vacated and Deferred March 12, 2009

Resubmitted August 4, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellant:

Franny A. Forsman, Federal Public Defender, Las Vegas, NV

For Appellees:

Dennis C. Wilson, Deputy Attorney General, Las Vegas, NV

S-Yong v. Holder, No. 07-70619

In a petition for review of an order removing petitioner from the U.S., the petition is granted where there was no record documentation supporting the BIA's determination that petitioner committed a felony involving a controlled substance.

Read S-Yong v. Holder, No. 07-70619

Appellate Information

Argued and Submitted November 21, 2008

Filed August 25, 2009

Judges

Opinion by Judge Cudahy

Counsel

For Petitioner:

Kathryn M. Davis, Pasadena, CA

For Respondent:

Mary Jane Candaux, U.S. Department of Justice, Washington, DC

Aimee J. Frederickson, U.S. Department of Justice, Washington, DC

Western Radio Servs. Co. v. U.S. Forest Serv., No. 08-35186

In a Bivens action claiming that the Forest Service improperly delayed plaintiff's efforts to construct radio antennae, dismissal of the complaint is affirmed where the Administrative Procedure Act provided an adequate alternative remedy which foreclosed a remedy under Bivens.

Read Western Radio Servs. Co. v. U.S. Forest Serv., No. 08-35186

Appellate Information

Argued and Submitted May 7, 2009

Filed August 21, 2009

Judges

Opinion by Judge Ikuta

Counsel

For Appellants:

Marianne Dugan, Eugene, OR

For Appellees:

Kevin Danielson, Portland, OR

US v. Rivera-Ramos, No. 08-10174

Defendant's sentence for illegal reentry into the U.S. is affirmed where New York's definition of attempted robbery, which requires conduct that comes within a dangerous proximity to the criminal end to be attained, is no broader than the definition at common law, which requires a "substantial step towards committing the crime," and thus attempted robbery under New York law is a "crime of violence" under the Sentencing Guidelines.

Read US v. Rivera-Ramos, No. 08-10174

Appellate Information

Argued and Submitted April 14, 2009

Filed August 21, 2009

Judges

Opinion by Judge Reinhardt

Counsel

For Appellant:

Roger H. Sigal, Tucson, AZ

For Appellee:

Angela W. Woodridge, Assistant United States Attorney, Tucson, AZ

US v. Saavedra-Velazquez, No. 08-10078

Defendant's sentence for illegal reentry into the U.S. is affirmed where an attempted robbery under California law is coextensive with the same offense at common law, and therefore the California offense was a "crime of violence" under the Sentencing Guidelines.

Read US v. Saavedra-Velazquez, No. 08-10078

Appellate Information

Argued and Submitted April 14, 2009

Filed August 21, 2009

Judges

Opinion by Judge Reinhardt

Special Concurrence by Judge Reinhardt

Counsel

For Appellant:

Michael K. Powell, Assistant Federal Public Defender, Reno, NV

For Appellee:

Ronald C. Rachow, Assistant United States Attorney, Reno, NV

Rutti v. Lojack Corp., No. 07-56599

In an action under the Fair Labor Standards Act seeking compensation for the time plaintiff spent commuting to worksites in defendant's vehicles, summary judgment for defendant is affirmed in part where use of an employer's vehicle for commuting is not compensable, but reversed in part where the transmissions plaintiff sent to defendant at the end of the working day may be compensable.

Read Rutti v. Lojack Corp., No. 07-56599

Appellate Information

Argued and Submitted February 4, 2009

Filed August 21, 2009

Judges

Opinion by Judge Callahan

Partial Concurrence and Partial Dissent by Judge Hall

Partial Concurrence and Partial Dissent by Judge Silverman

Counsel

For Appellants:

John Glugoski, Righetti Law Firm, San Francisco, CA

For Appellee:

Peter D. Holbrook, Los Angeles, CA

Dan Chammas, McDermott Will & Emery LLP, Los Angeles, CA

Joye v. Franchise Tax Bd., No. 07-15676

In an action seeking an order declaring that the debtors' state tax obligations from the year 2000 were discharged at the conclusion of their Chapter 13 bankruptcy proceeding in 2004, summary judgment for the state tax board is reversed where only taxes incurred post-petition may be treated as postpetition claims under 11 U.S.C. section 1305(a).

Read Joye v. Franchise Tax Bd., No. 07-15676

Appellate Information

Argued and Submitted October 24, 2008

Filed August 21, 2009

Judges

Opinion by Judge Wallace

Dissent by Judge Graber

Counsel

For Appellants:

Robert N. Kolb, Antioch, CA

For Appellee:

Randall P. Borcherding, Supervising Deputy Attorney General, San Francisco, CA

Kristian D. Whitten, Deputy Attorney General, San Francisco, CA

US v. Brandau, No. 06-10512

In a disorderly conduct prosecution, an order requiring defendant to be shackled at his pretrial appearance is vacated and the matter is remanded to a district judge outside the Eastern District of California to conduct an evidentiary hearing regarding the present shackling practice, to determine whether the action was moot.

Read US v. Brandau, No. 06-10512

Appellate Information

Argued and Submitted April 15, 2009

Filed August 21, 2009

Judges

Opinion by Judge Reinhardt

Counsel

For Appellants:

Robert Warren Rainwater, Eugene, OR

For Appellee:

Stanley Albert Boone, United States Attorney, Fresno, CA

Rodriguez v. Hayes, No. 08-56156

In an action seeking a writ of habeas corpus on behalf of plaintiff and a class of aliens detained for more than six months without a bond hearing while engaged in immigration proceedings, a denial of class certification is reversed where: 1) 8 U.S.C. section 1252(f) did not bar the proposed class from receiving injunctive relief; and 2) the constitutional issue at the heart of each class member's claim for relief is common to all proposed class members.

Read Rodriguez v. Hayes, No. 08-56156

Appellate Information

Argued and Submitted May 5, 2009

Filed August 20, 2009

Judges

Opinion by Judge B. Fletcher

Counsel

For Appellant:

Peter J. Eliasberg, American Civil Liberties Union Foundation of Southern California, Los Angeles, CA

Ahilan T. Arulanantham, American Civil Liberties Union Foundation of Southern California, Los Angeles, CA

For Appellee:

Gregory G. Katsas, Assistant Attorney General, Civil Division, Washington, DC

Gjon Juncaj, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC

Movsesian v. Victoria Versicherung AG, No. 07-56722

In an action seeking benefits under insurance policies by descendants of Armenians persecuted by the Ottoman Empire, denial of defendants' motion to dismiss the complaint is reversed where Section 354.4 of the California Code of Civil Procedure, which extends the statute of limitations until 2010 for claims arising out of life insurance policies issued to "Armenian Genocide victims," interferes with the national government's conduct of foreign relations.

Read Movsesian v. Victoria Versicherung AG, No. 07-56722

Appellate Information

Argued and Submitted December 8, 2008

Filed August 20, 2009

Judges

Opinion by Judge Thompson

Dissent by Judge Pregerson

Counsel

For Appellants:

Neil Michael Soltman, Mayer Brown LLP, Los Angeles, CA

For Appellees:

Brian S. Kabateck, Kabateck Brown Kellner LLP, Los Angeles, CA

Dreiling v. Am. Online, Inc., No. 08-35095

In a shareholder derivative action seeking disgorgement of profits from AOL corporation's sale of its InfoSpace stock, summary judgment for defendant-AOL is affirmed where the relationship between defendant and InfoSpace did not create a beneficial stock ownership situation such that defendant was an insider.

Read Dreiling v. Am. Online, Inc., No. 08-35095

Appellate Information

Argued and Submitted May 7, 2009

Filed August 19, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Richard E. Spoonemore, Sirianni Youtz Meier & Spoonemore, Seattle, WA

For Appellee:

Dane H. Butswinkas, Williams & Connolly LLP, Washington, DC

R. Hackney Wiegmann, Williams & Connolly LLP, Washington, DC

US v. Harrison, No. 08-10391

Defendant's assault conviction is affirmed in part where, although the prosecutors engaged in improper questioning during cross-examination and improper vouching during closing arguments, the court could not say the prosecutors' misconduct affected the outcome of the district court proceedings.  However, defendant's conviction is reversed in part where the jury instruction on one count defined "force" out of the statute entirely by equating it with physical intimidation.

Read US v. Harrison, No. 08-10391

Appellate Information

Argued and Submitted May 13, 2009

Filed August 19, 2009

Judges

Opinion by Judge Kozinski

Partial Concurrence and Partial Dissent by Judge Bybee

Counsel

For Appellant:

Peter C. Wolff, Jr., Office of the Federal Public Defender, Honolulu, HI

For Appellee:

Lawrence L. Tong, Assistant United States Attorney, Honolulu, HI

Von Saher v. Norton Simon Museum of Art, No. 07-56691

In an action against a museum seeking the return of paintings believed to have been looted by Nazis, dismissal of the complaint is reversed and remanded where: 1) Cal. Civ. Proc. Code section 354.3, which extends the statute of limitations until 2010 for actions for the recovery of Holocaust-era art, infringes on the national government's exclusive foreign affairs powers; but 2) it was possible that plaintiff may be able to bring her action within the three-year statute of limitations set forth in Cal. Civ. Proc. Code section 338.

Read Von Saher v. Norton Simon Museum of Art, No. 07-56691

Appellate Information

Argued and Submitted December 8, 2008

Filed August 19, 2009

Judges

Opinion by Judge Thompson

Dissent by Judge Pregerson

Counsel

For Appellant:

Lawrence M. Kaye, Herrick, Feinstein LLP, New York, NY

For Appellees:

Fred Anthony Rowley, Jr., Munger, Tolles & Olson LLP, Los Angeles, CA

US v. Alba-Flores, No. 08-50135

Defendant's drug importation sentence is affirmed where defendant's prior California convictions were not expunged for purposes of the Sentencing Guidelines, because under California law the convictions in question could still be used at a later time in a variety of circumstances.

Read US v. Alba-Flores, No. 08-50135

Appellate Information

Argued and Submitted July 7, 2009

Filed August 18, 2009

Judges

Opinion by Judge Fernandez

Dissent by Judge Kozinski

Counsel

For Appellant

Roseline D. Feral, San Diego, CA

For Appellee:

Joseph J.M. Orabona, U.S. Attorney's Office, San Diego, CA

US v. Hector, No. 08-30271

In a child pornography prosecution, defendant's sentence is vacated where the district court was required to use its discretion in determining whether to vacate defendant's receipt conviction or his possession conviction to avoid double jeopardy concerns.

Read US v. Hector, No. 08-30271

Appellate Information

Argued and Submitted June 5, 2009

Filed August 18, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

John Rhodes, Assistant Federal Defender, Federal Defenders of Montana, Missoula, MT

For Appellee:

Cyndee L. Peterson, Assistant United States Attorney, Missoula, MT

William W. Mercer, United States Attorney, Missoula, MT

Matylinsky v. Budge, No. 08-15459

In a murder prosecution, denial of a habeas petition is affirmed where petitioner offered no evidence indicating that defense counsel was unreasonable or ineffective for selecting his chosen trial strategy, as the strategy was intended to and did prevent petitioner from receiving the death penalty.

Read Matylinsky v. Budge, No. 08-15459

Appellate Information

Argued and Submitted May 5, 2009

Filed August 18, 2009

Judges

Opinion by Judge Tallman

Counsel

For Appellant:

Franny A. Forsman, Office of the Federal Public Defender, Las Vegas, NV

John C. Lambrose, Office of the Federal Public Defender, Las Vegas, NV

For Appellees:

Catherine Cortez Masto, Office of the Nevada Attorney General, Reno, NV

Amy E. Crowe, Office of the Nevada Attorney General, Reno, NV

US v. Reyes, No. 08-10047

In a case involving convictions which represented the first criminal convictions for a stock option backdating practice that was widespread in the late 1990s, former Brocade CEO's conviction is reversed due to prosecutorial misconduct in making a false assertion of material fact to the jury in closing argument. Other defendant's conviction is affirmed because sufficient evidence existed to convict her, but her sentence is vacated because it improperly included an obstruction of justice enhancement for which reprehensibility lay primarily with her lawyer.

Read US v. Reyes, No. 08-10047

Appellate Information

Argued and Submitted May 12, 2009

Filed August 18, 2009

Judges

Opinion by Judge Schroeder

Counsel

For Appellants:

Seth P. Waxman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC

For Appellee:

Amber Rosen, United States Attorney, San Jose, CA

EEOC v. Boeing Co., No. 07-16903

In a sex discrimination action by the EEOC, summary judgment for defendant-employer is reversed where the EEOC introduced adequate evidence from which a reasonable jury could conclude that the reasons defendant advanced to justify its employment actions were pretextual.

Read EEOC v. Boeing Co., No. 07-16903

Appellate Information

Argued and Submitted March 6, 2009

Filed August 18, 2009

Judges

Opinion by Judge Hawkins

Counsel

For Appellant:

Anne Noel Occhialino, Equal Employment Opportunity Commission, Washington, DC

For Appellee:

Tibor Nagy, Jr., Ogletree, Deakins, Nash, Smoak & Stewart, Tucson, AZ

Erica K. Rocush, Ogletree, Deakins, Nash, Smoak & Stewart, Tucson, AZ

US v. Thongsy, No. 08-30198

Defendant's conviction for possession of a firearm in furtherance of a felony is affirmed where: 1) the evidence was sufficient to show the requisite nexus between the firearm and the drug operation; and 2) the district court erred in instructing the jury to find that defendant possessed the firearm "during and in relation to the crime" instead of "in furtherance of" the crime, but the error was harmless because the evidence demonstrating that defendant used the pistol to facilitate the criminal activity was overwhelming.

Read US v. Thongsy, No. 08-30198

Appellate Information

Argued and Submitted May 5, 2009

Filed August 17, 2009

Judges

Opinion by Judge Ikuta

Counsel

For Appellant:

Robert M. Stone, Medford, OR

For Appellee:

Karen J. Immergut, Assistant United States Attorney, Medford, OR

Judith R. Harper, Assistant United States Attorney, Medford, OR

Rialto v. W. Coast Loading Corp., No. 08-55474

In an action challenging the EPA's administration of unilateral administrative orders under the Comprehensive Environmental Response, Compensation, and Liability Act, the dismissal of the complaint is affirmed, where the jurisdiction-stripping provision contained in 42 U.S.C. section 9613(h) deprived the District Court of jurisdiction.

Read Rialto v. W. Coast Loading Corp., No. 08-55474

Appellate Information

Argued and Submitted June 3, 2009

Filed August 14, 2009

Judges

Opinion by Judge Graber

Counsel

For Appellant:

Raymond B. Ludwiszewski, Gibson Dunn & Crutcher, LLP, Washington, DC

Michael K. Murphy, Gibson Dunn & Crutcher, LLP, Washington, DC

For Appellee:

Sambar N. Sankar, United States Department of Justice, Environment & Natural Resources Division, Washington, DC

US v. Jackson, No. 08-30231

In a drug distribution prosecution, the denial of Defendant's motion to reduce his sentence is affirmed, where Defendant's sentence was based on the statutory mandatory minimum, not on a Sentencing Guidelines range that was affected by Amendment 706 to the Guidelines.

Read US v. Jackson, No. 08-30231

Appellate Information

Argued and Submitted April 7, 2009

Filed August 14, 2009

Judges

Opinion by Judge Tashima

Counsel

For Appellant:

Michael Donahoe, Federal Defenders of Montana, Helena, MT

For Appellee:

William W. Mercer, United States Attorney, Billings, MT

Ransom v. MBNA Am. Bank, N.A., No. 08-15066

In an appeal from the Bankruptcy Court's refusal to approve Debtor's Chapter 13 plan, the Bankruptcy Court's order is affirmed, where an above-median income debtor seeking bankruptcy relief under Chapter 13 may not deduct from his projected disposable income a vehicle "ownership cost" for a vehicle he owns free and clear.

Read Ransom v. MBNA Am. Bank, N.A., No. 08-15066

Appellate Information

Argued and Submitted June 9, 2009

Filed August 14, 2009

Judges

Opinion by Judge Trott

Counsel

For Appellant:

Christopher P. Burke, Chris P. Burke & Associates, Las Vegas, NV

For Appellee:

Jeremy T. Bergstrom, Miles, Bauer, Bergstrom & Winters LLP, Henderson, NV

William Andrew McNeal, Becket & Lee LLP, Malvern, PA

US v. Riley, No. 08-50009

Defendant's child pornography sentence is vacated in part, where a condition of defendant's supervised release stating that he could not access via computer any material that related to minors was overly broad, imposing a far greater deprivation of liberty than reasonably necessary to achieve the legitimate goals of supervised release.

Read US v. Riley, No. 08-50009

Appellate Information

Argued and Submitted March 12, 2009

Filed August 13, 2009

Judges

Opinion by Judge Berzon

Counsel

For Appellant:

Kurt Mayer, Deputy Federal Public Defender, Los Angeles, CA

For Appellee:

Anne C. Gannon, Assistant United States Attorney, Santa Ana, CA

Thomas P. O'Brien, United States Attorney, Santa Ana, CA

Stoot v. Everett, No. 07-35425

In a 42 U.S.C. section 1983 action alleging a wrongful interrogation, summary judgment for defendants is affirmed in part where the pertinent law on plaintiff's Fourth Amendment claim was not clearly established at the time of the violations. However, the ruling is reversed in part where defendants coerced incriminating statements from plaintiff in violation of the Fifth Amendment.

Read Stoot v. Everett, No. 07-35425

Appellate Information

Argued and Submitted March 12, 2009

Filed August 13, 2009

Judges

Opinion by Judge Berzon

Counsel

For Appellants:

Michael J. Andrews, Cogdill Nichols Rein Wartelle Andrews, Everett, WA

For Appellees:

Robert L. Christie, Christie Law Group, PLLC, Seattle, WA

Van Asdale v. Int'l. Game Tech., No. 07-16597

In an action under the whistleblower-protection provisions of the Sarbanes-Oxley Act for wrongful discharge, summary judgment for defendants is reversed where plaintiffs' statements to management reported conduct that definitively and specifically related to shareholder fraud.

Read Van Asdale v. Int'l. Game Tech., No. 07-16597

Appellate Information

Argued and Submitted March 12, 2009

Filed August 13, 2009

Judges

Opinion by Judge Bybee

Counsel

For Appellants:

Margo Piscevich, Piscevich & Fenner, Reno, NV

Mark J. Lenz, Piscevich & Fenner, Reno, NV

For Appellee:

Richard G. Campbell Jr., Armstrong Teasdale LLP, Reno, NV

Lance P. Maiss, Armstrong Teasdale LLP, Reno, NV

George v. Bay Area Rapid Transit, No. 07-15661

In an action under the Americans with Disabilities Act against a public transit authority for failure to accommodate sight-impaired passengers, judgment for plaintiffs is reversed where the authority complied with Department of Transportation regulations, and had no obligations beyond doing so.

Read George v. Bay Area Rapid Transit, No. 07-15661

Appellate Information

Argued September 11, 2008

Submitted August 5, 2009

Filed August 13, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellants:

Patricia Barbosa, Law Offices of Paul L. Rein, Oakland, CA

For Appellee:

Joseph Hearst, Berkeley, CA

Clement Glynn, Glynn & Finley LLP, Walnut Creek, CA

Sierra Forest Legacy v. Rey, No. 07-16892

In an action challenging the Forest Service's effort to fund fire prevention activities by awarding logging contracts, the denial of a preliminary injunction is reversed where the district court failed to assess the factors of irreparable harm, balancing of equities and the public interest, in the context of the narrow relief sought by plaintiffs.

Read Sierra Forest Legacy v. Rey, No. 07-16892

Appellate Information

Argued and Submitted March 1, 2008

Filed August 13, 2009

Judges

Opinion by Judge Fisher

Counsel

For Appellants:

Gregory C. Loarie, Earthjustice, Oakland, CA

Michael R. Sherwood, Earthjustice, Oakland, CA

For Appellees:

Ronald J. Tenpas, Acting Assistant Attorney General, San Francisco, CA

James L. Rosen, USDA Office of the General Counsel, San Francisco, CA

U-Haul Int'l., Inc. v. Lumbermens Mut. Cas. Co., No. 07-16187

In an action involving insurers' coverage obligations for certain insurance claims, judgment for plaintiffs is affirmed where the district court did not abuse its discretion in admitting into evidence certain computer-generated summaries of payments made on insurance claims.

Read U-Haul Int'l., Inc. v. Lumbermens Mut. Cas. Co., No. 07-16187

Appellate Information

Argued and Submitted January 15, 2009

Filed August 12, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellants:

Michael C. Bruck, Williams Montgomery & John Ltd., Chicago, IL

Alyssa M. Campbell, Williams Montgomery & John Ltd., Chicago, IL

For Appellees:

Bruce M. Friedman, Rubin, Fiorella & Friedman LLP, New York, NY

Fregozo v. Holder, No. 05-71268

In a petition for review of the BIA's denial of petitioner's application for cancellation of removal, the petition is granted where petitioner's conviction under California Penal Code section 273a(b) was not categorically a "crime of child abuse" within the meaning of the Immigration and Nationality Act.

Read Fregozo v. Holder, No. 05-71268

Appellate Information

Argued and Submitted February 12, 2009

Filed August 12, 2009

Judges

Opinion by Judge Berzon

Counsel

For Petitioner:

Samuel Uchenna Ogbu, Emeziem & Ogbu, APC, Emeryville, CA

For Respondent:

Jem C. Sponzo, U.S. Department of Justice, Washington, DC

Peter D. Keisler, U.S. Department of Justice, Washington, DC

US v. Monghur, No. 08-10351

In a prosecution for being a felon in possession of a firearm, denial of defendant's motion to suppress evidence is reversed where defendant did not waive his Fourth Amendment expectation of privacy in a closed container in which federal law enforcement discovered the firearm at issue.

Read US v. Monghur, No. 08-10351

Appellate Information

Argued and Submitted May 4, 2009

Filed August 11, 2009

Judges

Opinion by Judge Tallman

Counsel

For Appellant:

Jason F. Carr, Assistant Federal Public Defender, Las Vegas, NV

For Appellee:

Robert L. Ellman, Assistant United States Attorney, Las Vegas, NV

Uppal v. Holder, No. 07-72614

In a petition for review of the BIA's order removing petitioner from the U.S. based on his commission of a crime of moral turpitude, the petition is denied where the crime of aggravated assault under Canadian law may involve moral turpitude even in the absence of an explicit element of evil intent.

Read Uppal v. Holder, No. 07-72614

Appellate Information

Argued and Submitted February 10, 2009

Filed August 11, 2009

Judges

Opinion by Judge Thompson

Partial Concurrence and Partial Dissent by Judge Berzon

Counsel

For Petitioner:

Martin Avila Robles, San Francisco, CA

For Respondent:

Tiffany Walters Kleinert, Assistant United States Attorney General, Washington, DC

Mueller v. Rogers, No. 07-35554

In a 42 U.S.C. section 1983 action claiming that defendant-officer wrongfully removed a sick infant from the custody of her parents, summary judgment for plaintiff is reversed where there was a genuine issue of material fact as to whether defendant was confronted with imminent danger to the infant at the time in question.

Read Mueller v. Rogers, No. 07-35554

Appellate Information

Argued and Submitted September 15, 2008

Filed August 10, 2009

Judges

Opinion by Judge Trott

Partial Concurrence and Partial Dissent by Judge Wallace

Counsel

For Appellant:

Michael E. Rosman, Center for Individual Rights, Washington, DC

For Appellee:

Kirtlan G. Naylor, Naylor & Hales, P.C., Boise, ID

Malkandi v. Holder, No. 06-73491

In a petition for review of petitioner's application for withholding of removal under the Convention Against Torture, the petition is denied where the government met its burden of showing that it had "reasonable grounds" to regard petitioner as "a danger to national security," and thus the BIA's decision was supported by substantial evidence.

Read Malkandi v. Holder, No. 06-73491

Appellate Information

Argued and Submitted April 9, 2008

Filed September 19, 2008

Amended August 10, 2009

Judges

Opinion by Judge McKeown

Counsel

For Appellant:

Frederic C. Tausend, Kirkpatrick & Lockhart Preston Gates Ellis, LLP, Seattle, WA

For Appellee:

Peter D. Keisler, Assistant Attorney General, Washington, DC

Michael P. Lindemann, Assistant Director, Washington, DC

Richter v. Hickman, No. 06-15614

In a murder case, petitioner's habeas petition is granted where defense counsel performed inadequately by failing to consult with a forensic expert, and this resulted in prejudice because the available forensic testimony would have contradicted the prosecution's explanation of the events that transpired.

Read Richter v. Hickman, No. 06-15614

Appellate Information

Argued and Submitted December 17, 2008

Filed August 10, 2009

Judges

Opinion by Judge Reinhardt

Dissent by Judge Bybee

Counsel

For Appellant:

Cliff Gardner, Oakland, CA

For Appellee:

Harry Joseph Colombo, Deputy Attorney General, Sacramento, CA

John G. McLean, Supervising Deputy Attorney General, Sacramento, CA

Boyd v. San Francisco, No. 07-16993

In a 42 U.S.C. section 1983 action alleging excessive force by police, judgment for defendants is affirmed where evidence of decedent's animosity toward the police was relevant to show that he was trying to provoke a police shootout, rather than trying to surrender, in order to commit "suicide by cop."

Read Boyd v. San Francisco, No. 07-16993

Appellate Information

Argued and Submitted July 14, 2009

Filed August 7, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellants:

Jay B. Shapiro, Forman & Associates, San Rafael, California

For Appellees:

Blake P. Loebs, San Francisco City Attorney's Office, San Francisco, CA

Scott D. Wiener, San Francisco City Attorney's Office, San Francisco, CA

Armstrong v. N. Mariana Islands, No. 07-16126

In an action against a U.S. territory seeking recovery of income tax rebates and accrued interest under the territorial tax code, dismissal of the complaint is affirmed where the rebate provisions of the tax code provided the legal basis for plaintiff's rebate claims and thus the claims did not "arise under federal law" under 28 U.S.C. section 1331.

Read Armstrong v. N. Mariana Islands, No. 07-16126

Appellate Information

Argued and Submitted November 18, 2008

Filed August 7, 2009

Judges

Opinion by Judge Paez

Counsel

For Appellant:

Alexis Ann Fallon, Fallon Law Offices, Saipan, MP

For Appellee:

Gregory Baka, Deputy Attorney General, Office of the Attorney General, Saipan, MP

Madden v. Cowen & Co., No. 07-15900

In a securities fraud action for misleading plaintiffs in connection with the sale of a closely held corporation to a publicly traded acquirer, the dismissal of the complaint is reversed where the non-applicability of the "Delaware carve-out" in the Securities Litigation Uniform Standards Act is a prerequisite to the district court's removal jurisdiction.

Read Madden v. Cowen & Co., No. 07-15900

Appellate Information

Argued and Submitted November 21, 2008

Filed August 7, 2009

Judges

Opinion by Judge Ikuta

Counsel

For Appellants:

Phillip Borowski, San Francisco, CA

For Appellees:

Linda Goldstein, Covington & Burling LLP, New York, NY

J.L. v. Mercer Island Sch. Dist., No. 07-35716

In an action claiming that defendant-school district failed to provide plaintiff with a free appropriate public education as required by the Individuals with Disabilities in Education Act (IDEA), judgment for plaintiff is reversed where: 1) there is no plausible way to read the definition of "transition services" in an amendment to the IDEA as changing the free appropriate public education standard; and 2) the district court erred by addressing claims that plaintiff had failed to exhaust.

Read J.L. v. Mercer Island Sch. Dist., No. 07-35716

Appellate Information

Argued and Submitted December 10, 2008

Filed August 6, 2009

Judges

Opinion by Judge Beezer

Counsel

For Appellant:

James J. Dionne, Dionne & Rorick, Seattle, WA

For Appellees:

Howard C. Powers, Seattle, WA

Gordon v. Virtumundo, Inc., No. 07-35487

In an action against an online marketer for sending unsolicited e-mail (i.e. spam), summary judgment for defendants-spammers is affirmed where: 1) plaintiff was not an "Internet access service" provider within the meaning of the CAN-SPAM Act; and 2) plaintiff was not "adversely affected by" spam e-mail solely by virtue of receiving a large amount of commercial e-mail.

Read Gordon v. Virtumundo, Inc., No. 07-35487

Appellate Information

Argued and Submitted December 9, 2008

Filed August 6, 2009

Judges

Opinion by Judge Tallman

Counsel

For Appellant:

Timothy J. Walton, Walton & Rose, LLP, Palo Alto, CA

For Appellees:

Derek Newman, Newman & Newman, Attorneys at Law, LLP, Seattle, WA

Randall Moeller, Newman & Newman, Attorneys at Law, LLP, Seattle, WA

Upper Skagit Tribe v. Jamestown S'Klallam Tribe, No. 07-35061

In an action by an Indian tribe claiming that another tribe was fishing outside of its adjudicated grounds, summary judgment for plaintiff is reversed where an injunction issued earlier in the same case was properly interpreted to place the disputed fishing grounds in defendant's territory.

Read Upper Skagit Tribe v. Jamestown S'Klallam Tribe, No. 07-35061

Appellate Information

Argued and Submitted October 21, 2008

Filed August 6, 2009

Judges

Opinion by Judge Kleinfeld

Counsel

For Appellant:

Michelle Hansen, Suquamish Tribe, Office of Tribal Attorney, Suquamish, WA

For Appellees:

Harold Chesnin, Office of the Tribal Attorney, Seattle, WA

Andrew H. Salter, Salter Joyce Ziker, PLLC, Seattle, WA

US v. Vanderwerfhorst, No. 07-30336

Defendant's child pornography sentence is affirmed where: 1) defendant's enhanced sentence was a clear example of a "variance" from, and not a "departure" within, the Sentencing Guidelines scheme; and 2) the district court properly considered a wide variety of information at sentencing that could not otherwise be considered at trial.

Read US v. Vanderwerfhorst, No. 07-30336

Appellate Information

Argued and Submitted January 23, 2009

Filed August 6, 2009

Judges

Opinion by Judge Tallman

Counsel

For Appellant:

Paula Semmes Deutsch, Federal Public Defender's Office, Seattle, WA

Corey Endo, Federal Public Defender's Office, Seattle, WA

For Appellee:

Vincent T. Lombardi, Office of the United States Attorney, Seattle, WA

Talamantes v. Levya, No. 06-55939

In a 42 U.S.C. section 1983 action against jail guards for permitting an attack on plaintiff, dismissal of the complaint is reversed where only those individuals who are prisoners (as defined by 42 U.S.C. section 1997e(h)) at the time they file suit must comply with the exhaustion requirements of 42 U.S.C. section 1997(a).

Read Talamantes v. Levya, No. 06-55939

Appellate Information

Argued and Submitted January 16, 2009

Filed August 6, 2009

Judges

For Appellant:

Jeff Dominic Price, Santa Monica, CA

For Appellees:

John J. Collins, Law Offices of Collins, Collins, Muir & Stewart, LLP, South Pasadena, CA

Douglas Fee, Law Offices of Collins, Collins, Muir & Stewart, LLP, South Pasadena, CA

Mielewczyk v. Holder, No. 07-74246

In a petition for review of an order removing petitioner from the U.S., the petition is denied where, because the statute of conviction by its own terms was a state law "relating to a controlled substance" and petitioner's conviction involved heroin (a controlled substance as defined in 21 U.S.C. section 802(6)), the BIA correctly found petitioner removable.

Read Mielewczyk v. Holder, No. 07-74246

Appellate Information

Argued and Submitted February 2, 2009

Filed August 5, 2009

Judges

Opinion by Judge Wardlaw

Counsel

For Petitioner:

Sarah K. Jezairian, Snell & Wilmer LLP, Tucson, AZ

For Respondent:

Stuart S. Nickum, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC

Milner v. US Dep't of the Navy, No. 07-36056

In a Freedom of Information Act action seeking locations and potential blast ranges of military explosive ordnance, judgment for defendant is affirmed where the information sought was predominantly used for the internal purpose of instructing agency personnel on how to do their jobs, and was thus exempt from disclosure.

Read Milner v. US Dep't of the Navy, No. 07-36056

Appellate Information

Argued and Submitted March 12, 2009

Filed August 5, 2009

Judges

Opinion by Judge Tallman

Dissent by Judge W. Fletcher

Counsel

For Appellant:

David S. Mann, Gendler & Mann, LLP, Seattle, WA

Keith P. Scully, Gendler & Mann, LLP, Seattle, WA

For Appellee:

Peter A. Winn, Assistant United States Attorney, Seattle, WA

In a challenge to a Forest Service rule repealing the nationwide protections of its Roadless Rule and inviting states to pursue varying rules for roadless area management, judgment for plaintiffs is affirmed where it was unreasonable for the Forest Service to assert that the environment, listed species, and their critical habitats would be unaffected by this regulatory change.

Read People of the State of Cal. v. U.S. Dep't of Agriculture, No. 07-15613

Appellate Information

Argued and Submitted October 20, 2008

Filed August 5, 2009

Judges

Opinion by Judge Beezer

Counsel

For Appellants:

Ronald J. Tenpas, United States Department of Justice, Washington, DC

David C. Shilton, United States Department of Justice, Washington, DC

For Appellees:

Claudia Polsky, California Department of Justice, Oakland, CA

Hardy Myers, Office of the Oregon Attorney General, Salem, OR

Brayton Purcell LLP v. Recordon & Recordon, No. 07-15383

In a copyright infringement action, denial of defendant's motion to dismiss for improper venue is affirmed where defendant would be subject to personal jurisdiction in the Northern District of California if that district were treated as a separate state, and thus venue was proper in that district.

Read Brayton Purcell LLP v. Recordon & Recordon, No. 07-15383

Appellate Information

Argued and Submitted October 21, 2008

Filed August 5, 2009

Judges

Opinion by Judge Nelson

Counsel

For Appellant:

Jacob D. Zamora, Law Office of Jacob D. Zamora, Marysville, CA

For Appellee:

David W. Fermino, Brayton Purcell LLP, Novato, CA

Owino v. Napolitano, No. 08-56392

In a habeas petition challenging petitioner's civil detention pending removal proceedings, denial of the petition is reversed for further consideration of whether, in light of the current circumstances and the resolution of petitioner's related appeal in Owino v. Holder, petitioner faces a significant likelihood of removal to Kenya once his judicial and administrative review process are complete.

Read Owino v. Napolitano, No. 08-56392

Appellate Information

Filed August 4, 2009

Judges

Per Curiam

US v. Garcia-Villegas, No. 08-50503

Defendant's conviction for illegally attempting to enter the United States is affirmed where defendant's admission of alienage was sufficiently corroborated by the testimony of witnesses who observed him climbing over the border fences from Mexico.

Read US v. Garcia-Villegas, No. 08-50503

Appellate Information

Argued and Submitted May 6, 2009

Filed August 4, 2009

Judges

Opinion by Judge Noonan

Concurrence by Judge Graber

Counsel

For Appellant:

James M. Chavez, San Diego, CA

For Appellee:

George V. Manahan, San Diego, CA

Mangum v. Action Collection Serv., Inc., 08-35191

In an action against collection agencies under the Fair Debt Collection Practices Act (FDCPA) for distributing plaintiff's private information, summary judgment for defendants is affirmed in part where: 1) the FDCPA does not confer a right of action against a third party that received confidential information; and 2) plaintiff had no constitutional right of privacy in the checks at issue. However, the ruling is reversed in part where plaintiff filed her action within the FDCPA's statute of limitations.

Read Mangum v. Action Collection Serv., Inc., 08-35191

Appellate Information

Argued and Submitted June 2, 2009

Filed August 4, 2009

Judges

Opinion by Judge Fernandez

Concurrence by Judge O'Scannlain

Counsel

For Appellant:

DeAnne Casperson, Holden, Kidwell, Hahn & Crapo, P.L.L.C., Idaho Falls, ID

For Appellees:

Blake G. Hall, Anderson Nelson Hall Smith P.A., Idaho Falls, ID

Todd R. Erikson, Todd R. Erikson, P.A., Idaho Falls, ID

US v. Fraire, No. 08-35191

In a prosecution for driving under the influence (DUI), denial of defendant's motion to suppress is affirmed where a momentary checkpoint stop of all vehicles at the entrance of a national park, aimed at preventing illegal hunting -- which is minimally intrusive, justified by a legitimate concern for the preservation of park wildlife and the prevention of irreparable harm, directly related to the operation of the park, and confined to the park gate where visitors would expect to briefly stop -- is reasonable under the Fourth Amendment.

Read US v. Fraire, No. 08-35191

Appellate Information

Argued and Submitted July 14, 2009

Filed August 4, 2009

Judges

Opinion by Judge Silverman

Counsel

For Appellant:

Daniel J. Broderick, Federal Defender, Fresno, CA

Douglas J. Beevers, Assistant Federal Defender, Fresno, CA

For Appellee:

Larry G. Brown, Acting United States Attorney, Fresno, CA

Mark J. McKeon, Assistant United States Attorney, Fresno, CA

Bressi v. Ford, No. 06-74297

In a 42 U.S.C. section 1983 action claiming that defendant-officers stopped plaintiff at an illegal roadblock, summary judgment for defendants is affirmed in part where clearly established law did not render the roadblock unconstitutional. However, the ruling is reversed in part where the roadblock functioned not merely as a tribal exercise, but also as an instrument for the enforcement of state law.

Read Bressi v. Ford, No. 06-74297

Appellate Information

Argued and Submitted November 20, 2008

Filed August 4, 2009

Judges

Opinion by Judge Canby

Counsel

For Appellant:

David J. Euchner, Tucson, AZ

For Appellees:

Roger W. Frazier, Gust Rosenfeld P.L.C., Tucson, AZ

Gerald S. Frank, Assistant United States Attorney, Tucson, AZ

Owino v. Holder, No. 06-74297

In a petition for review of an order removing petitioner from the U.S., the petition is granted where the Immigration Judge failed to comply with the REAL ID Act's provision allowing the judge to "determine[] that the applicant should provide evidence which corroborates otherwise credible testimony."

Read Owino v. Holder, No. 06-74297

Appellate Information

Argued and Submitted June 23, 2009

Filed August 4, 2009

Judges

Per Curiam

US v. Reed, No. 06-50040

Defendants' drug convictions and sentences are affirmed where: 1) the government's application to wiretap defendants' calls satisfied the necessity requirement; 2) the district court did not err in finding that the government had not intercepted telephone calls on a line for which there was no court order; 3) the government was not required to seal call data content and it timely sealed the wiretap recordings; and 4) the government did not violate the statutory wiretap monitoring requirements of 18 U.S.C. section 2518(5).

Read US v. Reed, No. 06-50040

Appellate Information

Argued and Submitted October 24, 2008

Filed August 4, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Robinson D. Harley, Jr., Santa Ana, California

For Appellee:

Shannon P. Ryan, Assistant United States Attorney for the Central District of California, Los Angeles, CA

SEIU, United Healthcare-Wkrs. West v. NLRB, No. 07-73028

In a petition for review of an NLRB order finding that petitioner-union committed an unfair labor practice by failing to give ten days' notice before beginning a concerted refusal to work under Section 8(g) of the National Labor Relations Act, the petition is denied where an individual's exercise of the right to decline particular overtime work is not the same as a collective refusal to do any overtime work.

Read SEIU, United Healthcare-Wkrs. West v. NLRB, No. 07-73028

Appellate Information

Argued and Submitted February 13, 2009

Filed August 3, 2009

Judges

Opinion by Judge Schroeder

Counsel

For Appellant:

David Rosenfeld, Alameda, CA

For Appellee:

Julie Broido, National Labor Relations Board, Washington, DC

In a securities fraud action by the Commodity Futures Trading Corporation (CFTC), summary judgment for plaintiff is reversed where neither subsection 2(c)(2)(B) nor subsection 6c(b) of the Commodity Exchange Act grants the CFTC jurisdiction over discretionary trading accounts in foreign currency options.

Read Commodity Futures Trading Comm. v. White Pine Futures Corp., No. 07-56629

Appellate Information

Argued and Submitted March 4, 2009

Filed August 3, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Dirk T. Metzger, San Diego, CA

For Appellee:

Nancy R. Page, Assistant General Counsel, Commodity Futures Trading Commission, Washington, DC

Terry S. Arbit, General Counsel, Commodity Futures Trading Commission, Washington, DC

US v. Benford, No. 07-50210

Defendant's armed robbery conviction and sentence are affirmed where: 1) the absence of defense counsel from a short pretrial conference at which the pre-existing trial date was confirmed and at which nothing else of substance happened did not constitute per se ineffective assistance; and 2) the sentencing court's incorporation of a "brandished" finding in the presentence report and the court's statement at sentencing that defendant had "turned and pointed the handgun at [the teller]," which was "an absolutely harrowing experience for the victims," sufficed to support application of the seven-year minimum sentence provided for in 18 U.S.C. section 924(c)(1)(A)(ii).

Read US v. Benford, No. 07-50210

Appellate Information

Argued and Submitted June 1, 2009

Filed August 3, 2009

Judges

Opinion by Judge Graber

Counsel

For Appellant:

Tarik S. Adlai, Law Offices of Tarik S. Adlai, Pasadena, CA

For Appellee:

Anne C. Gannon, Assistant United States Attorney, Santa Ana, CA