U.S. Ninth Circuit: February 2010 News
U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

9th Circuit February 2010 News

Criminal, Judgment Collection, and Employment Matters

The Ninth Circuit decided two criminal cases, one involving the collection of a judgment debt, and another concerning the Family and Medical Leave Act (FMLA).

Office Depot Inc. v. Zuccarini, No. 07-16788, involved a judgment debtor's appeal from the district court's order appointing a receiver to take control of and auction off some of debtor's domain names in order to satisfy the judgment.  The Ninth Circuit affirmed, holding that 1) Kremen was still an accurate statement of California law, and domain names were intangible property subject to a writ of execution; and 2) domain names were personal property located wherever the registry or the registrar were located.

US v. Bright, No. 07-17027, concerned an appeal from the district court's order enforcing IRS summonses requiring production of documents, including those relating to offshore accounts, and finding defendants in contempt.  The Ninth Circuit affirmed the order in part where 1) a taxpayer cannot refuse to produce a privilege log or documents for in camera review in response to an order to show cause and then protest an insufficient opportunity to present a claim of privilege; and 2) defendants were in contempt based on their failure to produce documents related to the two previously identified offshore accounts named in the summons.  However, the court modified the order in part, because the district court's application of the foregone conclusion exception to records of two additional credit cards not named during the enforcement proceeding was clear error.

Traxler v. Multnomah Cty., No. 08-35641, involved a Family and Medical Leave Act (FMLA) action based on an allegedly wrongful termination.  The Ninth Circuit affirmed partial judgment for plaintiff in part on the ground that, under the FMLA, front pay was an equitable remedy to be determined by the court.  However, the court reversed the judgment in part because the district court erred in denying liquidated damages without making specific findings as to the employer's good faith conduct and reasonable belief that it was not violating the statute.

In US v. Gus Other Medicine, No. 09-30020, the court of appeals affirmed defendant's felony child abuse conviction, holding that 1) although federal criminal law included a misdemeanor for assault on a minor, no federal law defined and punished felony child abuse, and thus state law was properly used to define the offense; and 2) the charge of felony child abuse was not vague as applied to defendant's admitted conduct.

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Criminal and Personal Injury Cases

The Ninth Circuit decided two criminal cases and one personal injury matter.

In US v. Garrido, No. 08-10398, the Ninth Circuit affirmed defendant's drug and firearm possession conviction, on the ground that the district court did not err under Fed. R. Evid. 701 and 702 by allowing lay witnesses to testify that defendant used a gun during the robbery.  However, the court vacated defendant's sentence where the district court erred when it concluded that it had no legal authority to consider a reduction for acceptance of responsibility after defendant failed to plead guilty and contested the charge that he used and carried a firearm.

Kode v. Carlson, No. 08-36056, was a personal injury action in which the jury rendered a verdict for defendant.  The court of appeals vacated the judgment because the district court did not weigh the substantiality of the evidence presented to the jury in denying plaintiff's motion for a new trial, and the record did not demonstrate that it would necessarily be an abuse of discretion, or beyond the pale, for the district court to determine that the clear weight of the evidence required damages of at least one dollar, and that a new trial was required.

In Doody v. Schriro, No. 06-17161, a murder prosecution, the court of appeals reversed the denial of petitioner's habeas petition where: 1) the Miranda advisement provided to petitioner, which consumed twelve pages of transcript and completely obfuscated the core precepts of Miranda, was inadequate; and 2) nearly thirteen hours of relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of petitioner, rendering his confession involuntary.

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Civil Rights, Criminal and Transportation Law Cases

The Ninth Circuit issued decisions in a civil rights matter, a criminal case and a matter involving the Federal Motor Carrier Act.

Avalos v. Baca, No. 07-56511, involved a an action based on alleged violations of plaintiff's rights under the Fourth and Fourteenth Amendments based on his over-detention and for defendants' efforts to procure an involuntary waiver of his civil rights claim based on his over-detention.  The Ninth Circuit affirmed summary judgment for defendants, holding that 1) plaintiff failed to show an unconstitutional custom, policy or practice of over-detention; 2) there was no actionable claim under section 1983 for procuring a coercive or involuntary waiver of a civil rights claim; 3) the district court properly granted summary judgment for defendants on plaintiff's conspiracy claims; and 4) plaintiff failed to present sufficient evidence of a RICO violation or any harm to his business or property from the alleged act of racketeering.

In US v. Jennen, No. 09-30146, the Ninth Circuit affirmed defendant's firearm possession conviction and sentence on the grounds that 1) the anonymous tip supporting the search warrant at issue included a "range of details" that were more than "easily observed facts and conditions"; 2) a failed controlled purchase did not undermine probable cause that defendant had the items sought in the warrant in his residence; and 3) Washington's crime of second degree assault with a deadly weapon was categorically a crime of violence.

American Trucking Assns., Inc. v. Los Angeles, No. 09-55749, concerned an action seeking preliminary injunctive relief against certain regulations imposed by the Port of Los Angeles, a local governing body, upon motor carriers entering the Port premises.  The district court denied injunctive relief.  The Ninth Circuit affirmed in part, holding that 1) the Port was acting out of safety concerns when it enacted each challenged requirement; and 2) the Federal Motor Carrier Act granted only the Interstate Commerce Commission, the agency charged with issuing certificates of convenience, the power to revoke motor carriers' certificates of convenience.  However, the court vacated the order in part where 49 U.S.C. section 14506(a) did not contain a safety exception.

Related Resources

Fair Labor Standards Act Decision

Cumbie v. Woody Woo, Inc., No. 08-35718, was a Fair Labor Standards Act (FLSA) action claiming unpaid wages.  The district court dismissed the complaint.

As the court of appeals wrote:  "[Defendant] Woo required its servers to contribute their tips to a "tip pool" that was redistributed to all restaurant employees.  The largest portion of the tip pool (between 55% and 70%) went to kitchen staff (e.g., dishwashers and cooks), who are not customarily tipped in the restaurant industry. The remainder (between 30% and 45%) was returned to the servers in proportion to their hours worked."

The Ninth Circuit affirmed on the ground that the restaurant did not violate the FLSA when, despite paying a cash wage greater than the minimum wage, it required its wait staff to participate in a "tip pool" that redistributed some of their tips to the kitchen staff. As noted by the court, "nothing in the text of the FLSA purports to restrict employee tip-pooling arrangements when no tip credit is taken".

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Decisions in Habeas and Privacy Act Cases

Today, the Ninth Circuit decided two capital habeas matters and one case under the Privacy Act.

In Robinson v. Schriro, No. 05-99007, a capital habeas case, petitioner appealed the district court's denial of his habeas petition.  The Ninth Circuit reversed in part and remanded for a new sentencing proceeding because: 1) the state courts arbitrarily found that petitioner committed the murder at issue in an especially cruel, heinous, or depraved manner in violation of the Eighth Amendment; and 2) petitioner received ineffective assistance of counsel at sentencing in violation of the Sixth Amendment.

In Harrison v. Gillespie, No. 08-16602, another capital habeas matter, the court of appeals reversed the denial of petitioner's habeas petition.  The court held that: 1) the state trial court abused its discretion by declaring a mistrial without first polling the jury, as requested by petitioner, in order to determine whether petitioner had been acquitted of the death penalty; and 2) due to double jeopardy concerns, the state could not seek the death penalty at a sentencing retrial, and no such penalty could be imposed by the court.

Finally, in Cooper v. FAA, No. 08-17074, plaintiff brought an action under the Privacy Act based on an exchange of information about plaintiff performed as part of a joint criminal investigation by multiple federal agencies.  The district court granted summary judgment for defendants on the ground that plaintiff alleged only nonpecuniary damages, and these were not compensable under the Act.  The Ninth Circuit reversed, holding that actual damages under the Privacy Act encompassed both pecuniary and nonpecuniary damages.

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Criminal and Immigration Matters

The Ninth Circuit decided two cases today, one concerning a habeas petition in a murder prosecution, and the other involving an immigration issue.

In Christian v. Frank, No. 08-17236, defendant was convicted of murder in state court and filed a habeas petition, claiming that the state trial court wrongly excluded an allegedly exculpatory confession at trial.  The district court granted the petition.

The Ninth Circuit reversed, holding that the excluded testimony at issue was materially less trustworthy than the excluded testimony in Chambers.

In Alvarez-Reynaga v. Holder, No. 08-70253, the BIA issued an order removing petitioner from the U.S. based on his felony conviction for receipt of a stolen vehicle in violation of section 496d(a) of the California Penal Code.  Petitioner filed a petition for review of the BIA's order.

The court of appeals denied the petition, holding that 1) a conviction under section 496d(a) qualified categorically as a conviction for an aggravated felony; and 2) a conviction under such statute did not categorically constitute a crime involving moral turpitude.

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Civil Rights, Criminal and Immigration Matters

The Ninth Circuit today decided criminal, civil rights and immigration matters.

Kin v. Holder, No. 05-73079, involved a petition for review of the BIA's denial of petitioners' asylum application.  The Ninth Circuit denied the petition, holding that the Immigration Judge's adverse credibility determination was supported by substantial evidence.

Zetino v. Holder, No. 08-70390, also concerned a petition for review of the BIA's denial of an asylum application.  The court of appeals denied the petition on the grounds that 1) because the court could not discover a sufficiently meaningful standard for evaluating the BIA's decision rejecting an untimely brief, it lacked jurisdiction to review petitioner's claim that the BIA abused its discretion in doing so; and 2) the proceedings were not so fundamentally unfair that petitioner was prevented from reasonably presenting his case.

Marez v. Bassett, No. 08-56035, involved an action against a municipal utility regulator alleging that the agency violated the First Amendment by engaging in adverse action against plaintiff because of his public criticism of defendant's procurement procedures.  The district court granted summary judgment to defendants.  The court of appeals reversed, holding that 1) the city did not "employ" plaintiff in his role as a Small and Local Business Advisory Committee member; and 2) there was evidence that the changes in the procurement process and plaintiff's drop in revenue, were, at least in some measure, retaliation for plaintiff's "expressive conduct."

Finally, in US v. Guerrero, No. 09-30066, defendant was convicted after a trial on drug conspiracy charges.  The court of appeals affirmed, holding that there was no evidence that race played any role in the government's decision to strike a prospective juror because neither the prosecutor nor the judge recognized her as a minority.

Editor's Note 2/19/10: The post above has been edited to reflect that the ruling in Kin v. Holder was not based on petitioners' demeanor.

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Decisions in Criminal and Securities Discipline Cases

Today, the Ninth Circuit decided two criminal appeals, one related to hearsay evidence and the other concerning a Fourth Amendment issue, and a petition for review of the SEC's sanctions against two broker-dealers.

In US v. Norwood, No. 08-30050, defendant was tried and convicted of drug and firearm possession, and his appeal raised various challenges to his trial and sentence.

The Ninth Circuit affirmed, holding that 1) an affidavit showing that defendant did not have legitimate employment was not offered to prove an element of defendant's offense, nor was it the sole evidence of any relevant fact, and thus did not violate the Confrontation Clause; 2) the prosecutor's reference to the defendant's opportunity to testify was a fair response to claims made by defendant's counsel; and 3) defendant failed to provide any persuasive rationale for why his sentence should be considered cruel and unusual under the Eighth Amendment due to the distinction between the penalties imposed for cocaine powder and cocaine base.

In US v. Borowy, No. 09-10064, defendant appealed his conviction for child pornography possession.  An officer found the computer files at issue by downloading them over a peer-to-peer sharing service.  Defendant claimed that the officer violated the Fourth Amendment by downloading the files.

The court of appeals affirmed on the grounds that 1) because defendant lacked a reasonable expectation of privacy in the shared files at issue, the officer's use of a keyword search to locate those files did not violate the Fourth Amendment; 2) the officer had probable cause to download the files at issue because their filenames suggested that they contained child pornography; and 3) given the strength of the government's case, the benefit that defendant obtained by pleading guilty, and his focus on negotiating a lesser prison term, defendant did not demonstrate that the district court's Fed. R. Crim. P. 11 error affected his substantial rights.

Finally, in Gebhart v. SEC, No. 08-74943, the SEC sustained a National Association of Securities Dealers disciplinary sanction against petitioners-securities salespersons for making false statements to clients in connection with the sale of promissory notes used to finance the conversion of mobile home parks to resident ownership.  Petitioners petitioned for review of the SEC's order on the ground that the SEC failed to find that petitioners acted with scienter.

The Ninth Circuit denied the petition, holding that the SEC considered all of the evidence bearing on petitioners' actual state of mind, including their extreme departure from ordinary standards of care, and found that they were consciously aware of the risk that their statements were false.

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US v. Edwards

In US v. Edwards, No. 08-30055, the government appealed from a sentence of probation and restitution imposed on defendant, who pled guilty to bankruptcy fraud and making a false statement to a bank.  Defendant cross-appealed the restitution order on the ground that it was barred by collateral estoppel.

As stated in the decision:  defendant "filled out a loan application in Montana and indicated that he had significant assets," but "did not disclose the $3 million FDIC obligation arising from his [prior] Arizona conviction."

The Ninth Circuit affirmed the sentence on the grounds that 1) collateral estoppel did not preclude the restitution order because, although compensation to defendant's victims was the general issue in defendant's prior bankruptcy proceeding, the issue was not identical to the issue in the criminal proceedings; and 2) the sentence was not substantively unreasonable because the district court did not abuse its discretion when it considered defendant's history and circumstances.

Related Resources

Full Text of US v. Edwards

N. County Comms. Corp. v. Cal. Catalog & Tech., No. 08-55048

In an action by a competitive local exchange carrier alleging that defendants, as commercial mobile radio service (CMRS) providers, failed to properly compensate plaintiff for terminating their calls on plaintiff's network, dismissal of the complaint for lack of jurisdiction is affirmed where plaintiff did not have a private right of action to seek compensation from CMRS providers in federal court.

Read N. County Comms. Corp. v. Cal. Catalog & Tech., No. 08-55048

Appellate Information

Argued and Submitted April 17, 2009

Filed February 10, 2010

Judges

Opinion by Judge Rawlinson

Counsel

For Appellant:

Joseph G. Dicks and Christopher J. Reichman, Dicks & Workman, San Diego, CA

For Appellee:

John Hueston and Laura W. Brill, Irell & Manella, Los Angeles, CA

Nunez v. Holder, No. 06-70219

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 granted where indecent exposure under section 314 of the California Penal Code is not categorically a crime of moral turpitude.

Read Nunez v. Holder, No. 06-70219

Appellate Information

Argued and Submitted April 19, 2007

Filed February 10, 2010

Judges

Opinion by Judge Reinhardt

Dissent by Judge Bybee

Counsel

For Petitioner:

Cheryl Franke, San Mateo, CA

For Respondent:

Ronald E. LeFevre, Office of the District Counsel, Department of Homeland Security

Eric Warren Marsteller and Jocelyn Lopez Wright, Office of Immigration Litigation, Department of Justice, Washington, DC

Bull v. San Francisco, No. 05-17080

In a 42 U.S.C. section 1983 action making a Fourth Amendment facial challenge to San Francisco's policy requiring a strip search of all arrestees who were to be introduced into San Francisco's general jail population for custodial housing, denial of summary judgment to defendants based on qualified immunity is reversed where the balance between the need for the strip search policy, due to contraband problems in the jail system, and the invasion of personal rights that the search entailed, weighed in favor of the jail system's institutional concerns.

Read Bull v. San Francisco, No. 05-17080

Appellate Information

Argued March 26, 2009

Submitted April 10, 2009

Judges

Opinion by Judge Ikuta

Concurrence by Judge Kozinski

Concurrence by Judge Graber

Dissent by Judge Thomas

Counsel

For Appellants:

Dennis J. Herrera, Danny Chou, and David B. Newdorf, San Francisco City Attorney's Office, San Francisco, CA

For Appellees:

Mark E. Merin and Cathleen A. Williams, Law Office of Mark E. Merin, San Francisco

In a Freedom of Information Act (FOIA) action involving information on discussions between telecommunications carriers and the government over the carriers' potential liability for participating in the National Security Agency's post-9/11 warrantless, electronic surveillance program, summary judgment for plaintiff is affirmed in part where FOIA Exemption 6 did not protect the information sought because there was a strong public interest in disclosure of the identity of individuals who contacted the government to protect telecommunications companies from legal liability for their role in government surveillance activities.  However, the judgment is vacated in part where: 1) the district court did not address FOIA Exemption 3 due to confusion in the parties' summary judgment briefing; and 2) the district court failed to make a fact-specific inquiry regarding the applicability of FOIA Exemption 5.

Read Electronic Frontier Found. v. Office of the Dir. of Nat'l Intelligence, No. 09-17235

Appellate Information

Argued and Submitted January 12, 2010

Filed February 9, 2010

Judges

Opinion by Judge Hawkins

Counsel

For Appellants:

Douglas N. Letter and Scott McIntosh, United States Department of Justice, Civil Division, Washington, DC

For Appellee:

Marcia Hofmann, San Francisco, CA

US v. Vongxay, No. 09-10072

Defendant's conviction for being a felon in possession of a firearm is affirmed where: 1) 18 U.S.C. section 922(g)(1) does not violate defendant's Second Amendment right to bear arms; 2) section 922(g)(1) did not violate the equal protection guarantee of the Fifth Amendment; and 3) for purposes of a claim that he was unconstitutionally searched, defendant's act of raising his hands to his head constituted implied consent to search.

Read US v. Vongxay, No. 09-10072

Appellate Information

Argued and Submitted January 12, 2010

Filed February 9, 2010

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Daniel J. Broderick and Douglas J. Beevers, Assistant Federal Defenders, Fresno, CA

For Appellee:

Lawrence G. Brown and Elana S. Landau, Assistant United States Attorney, Fresno, CA

Schultz v. US, No. 08-17304

In an appeal from the district court's denial of appellant's motion to intervene as of right in a securities fraud action, the order is affirmed where appellant was improperly attempting to enforce a restitution order in a parallel criminal action in a manner outside the scope of 18 U.S.C. section 3664(m)(1)(B).

Read Schultz v. US, No. 08-17304

Appellate Information

Argued and Submitted December 11, 2009

Filed February 9, 2010

Judges

Opinion by Judge Lynn

Counsel

For Appellant:

Richard M. Goldstein, Goldstein, Tanen & Trench, P.A., Miami, FL

For Appellee:

Evan Jason Smith, Esquire, Brodsky & smith, LLC, Beverly Hills, CA

Mansourian v. Regents of the Univ. of Cal., No. 08-16330

In a 42 U.S.C. section 1983 and Title IX action against a university arising after the university required women on the co-ed wrestling team to compete against men under men's rules, summary judgment for defendants is reversed where: 1) plaintiffs were not required to give the university notice of, and an opportunity to rectify, the specific violation to make out a Title IX claim; 2) the record did not contain undisputed facts showing a history and continuing practice of program expansion that was responsive to women's interests; and 3) as plaintiffs were students and therefore subject to the policy that allegedly discriminated on the basis of sex at the time they filed their complaint, their section 1983 claim was not time-barred.

Read Mansourian v. Regents of the Univ. of Cal., No. 08-16330

Appellate Information

Argued and Submitted October 8, 2009

Filed February 8, 2010

Judges

Opinion by Judge Berzon

Counsel

For Appellants:

Noreen Farrell, Debra Smith and James C. Sturdevant, San Francisco, CA

For Appellees:

Nancy J. Sheehan, Sacramento, CA

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

In an action alleging deceptive representations in defendant's brochures, which promoted certain annuities as appropriate for seniors, a denial of class certification is reversed where the Hawaii Deceptive Practices Act did not require individual showings of reliance on the alleged misrepresentations.

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

Appellate Information

Argued and Submitted November 20, 2008

Filed February 8, 2010

Judges

Opinion by Judge Schroeder

Counsel

For Appellant:

James J. Bickerton, Honolulu, HI

For Appellee:

Robert D. Phillips, Oakland, CA

Waggy v. Spokane County, No. 09-35133

In a 42 U.S.C. section 1983 action claiming that county prosecuting attorneys and a county violated plaintiff's constitutional right to be free from arrest without probable cause, summary judgment for defendants is affirmed where: 1) the prosecutor's motion for a bench warrant essentially constituted the initiation of new judicial proceedings against plaintiff for violating the terms of his community placement, and was not an investigative act; and 2) plaintiff pointed to no county policy or custom that caused his alleged injury.

Read Waggy v. Spokane County, No. 09-35133

Appellate Information

Argued and Submitted December 10, 2009

Filed February 5, 2010

Judges

Opinion by Judge Tallman

Counsel

For Appellant:

Richard D. Wall, P.S., Spokane, WA

For Appellees:

Hugh T. Lackie and Heather C. Yakely, Evans, Craven & Lackie, P.S., Spokane, WA

Omstead v. Dell, Inc., No. 08-16479

In a proposed class action alleging that Dell designed, manufactured, and sold defective notebook computers, dismissal of the action for failure to prosecute is reversed where: 1) plaintiffs did not cause any unreasonable delay in the progression of their case; and 2) a choice-of-law provision is unenforceable, and a class action waiver pursuant to which Dell obtained an order compelling arbitration was unconscionable under California law because it satisfied the Discover Bank test, and California had a materially greater interest than Texas in applying its own law.

Read Omstead v. Dell, Inc., No. 08-16479

Appellate Information

Argued and Submitted October 7, 2009

Filed February 5, 2010

Judges

Opinion by Judge Strom

Counsel

For Appellants:

Jonathan D. Selbin and Kristen E. Law, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, NY

Cynthia B. Chapman and Cory S. Fein, Caddell & Chapman, Houston, TX

For Appellee:

Paul Schlaud, Kim E. Brightwell, and Matt Frederick, Reeves & Brightwell, LLP, Austin, TX

Mortimer v. Baca, No. 07-55393

In a 42 U.S.C. section 1983 action alleging that plaintiffs were wrongfully detained in jail for periods of time ranging from twenty-six to twenty-nine hours after the court had authorized their releases, summary judgment for defendant is affirmed where: 1) the district court was not foreclosed on a prior remand from reviewing defendant's proffered evidence concerning deliberate indifference and ruling on the motion for summary judgment on its merits; and 2) given the Los Angeles Sheriff's Department's many affirmative efforts to remedy the problem, the evidence in the record did not support a finding of a policy of deliberate indifference.

Read Mortimer v. Baca, No. 07-55393

Appellate Information

Argued and Submitted August 7, 2009

Filed February 5, 2010

Judges

Opinion by Judge Callahan

Counsel

For Appellants:

Marion R. Yagman and Joseph Reichmann, Yagman & Yagman & Reichman, Venice Beach, CA

For Appellee:

David D. Lawrence, Michael D. Allen and Justin W. Clark, Franscell, Strickland, Roberts & Lawrence, O.C., Glendale, CA

Aguilar-Ramos v. Holder, No. 07-70240

In a petition for review of the BIA's order dismissing petitioner's claim of ineffective assistance of counsel and denying his applications for relief under former Immigration and Nationality Act section 212(c) and the Convention Against Torture, the petition is granted in part where the failure of the Immigration Judge and BIA to consider evidence of country conditions constituted reversible error.  However, the petition is denied in part where the Attorney General did not have authority to waive the grounds for petitioner's removal.

Read Aguilar-Ramos v. Holder, No. 07-70240

Appellate Information

Argued and Submitted November 4, 2009

Filed February 4, 2010

Judges

Opinion by Judge Pregerson

Counsel

For Petitioner:

Jeffrey S. Renzi, Squires, Sanders & Dempsey L.L.P., Los Angeles, CA

For Respondent:

Timothy Bo Stanton and Regan Hildebrand, United States Department of Justice, Washington DC

US ex rel. Haight v. Catholic Healthcare W., No. 07-16857

In a False Claims Act action claiming that defendant-medical researcher made false statements in a grant application, plaintiffs' appeal from summary judgment for defendants is dismissed where plaintiffs filed a notice of appeal more than 30 days after the district court's summary judgment order.

Read US ex rel. Haight v. Catholic Healthcare W., No. 07-16857

Appellate Information

Argued and Submitted November 3, 2009

Filed February 4, 2010

Judges

Opinion by Judge Graber

Counsel

For Appellants:

Jeremy L. Friedman, Law Office of Jeremy L. Friedman, Oakland, CA

For Appellees:

Dale A. Danneman, Lewis and Roca LLP, Phoenix, AZ

Corona-Mendez v. Holder, No. 08-72492

In a petition for review of the BIA's denial of petitioner-Mexican native's application for a waiver of removal, the petition is denied where the BIA correctly held that petitioner was not eligible for multiple waivers of removability and inadmissibility.

Read Corona-Mendez v. Holder, No. 08-72492

Appellate Information

Argued and Submitted October 14, 2009

Filed February 3, 2010

Judges

Opinion by Judge Cudahy

Counsel

For Petitioner:

Antonio Salazar, Seattle, Washington, for the petitioner.

For Respondent:

Michael F. Hertz, Carol Federighi, and Mona Maria Yousif, U.S. Department of Justice, Washington, DC

ProShipLine Inc. v. Aspen Infrastructures Ltd., No. 08-35337

In an action to secure a maritime attachment, district court's order denying plaintiff's motion to compel defendant to post security in lieu of garnishment is affirmed where a district court lacks the legal capacity under the Admiralty Rules to order a party to post security in lieu of garnishment.  However, the district court's order equitably vacating plaintiffs' Rule B writ and exonerating security posted for that writ is reversed where the district court abused its discretion by concluding that it was bound by res judicata to vacate the writ to conform with the Southern District of New York's decision to vacate the writ involved in a related action pending there.

Read ProShipLine Inc. v. Aspen Infrastructures Ltd., No. 08-35337

Appellate Information

Argued and Submitted December 7, 2009

Filed February 3, 2010

Judges

Opinion by Judge Beezer

Counsel

For Appellants:

Steven V. Gibbons, Gibbons & Associates, P.S., Seattle, WA

For Appellees:

Robert J. Bocko, Keesal, Young & Logan, Seattle, WA

US v. Loew, No. 09-30032

Defendant's sentence for interstate harassment is affirmed where the district court's inherently factual determination that defendant induced a co-conspirator's restraint of the victim was not illogical, implausible, or without support in the record, and thus the district court properly applied a "restraint of the victim" enhancement.

Read US v. Loew, No. 09-30032

Appellate Information

Argued and Submitted December 7, 2009

Filed February 2, 2010

Judges

Opinion by Judge Tallman

Counsel

For Appellant:

Greg S. Silvey, Silvey Law Office, Kuna, ID

For Appellee:

Richard A. Friedman, Gary G. Grindler and Lanny A. Breuer, United States Attorney's Office, Boise, ID

US v. Ressam, No. 09-30000

In the government's appeal of defendant's sentence in connection with his plot to carry out an attack against the U.S. by detonating explosives at the Los Angeles International Airport on December 31, 1999, the sentence is vacated where the district court committed procedural error in failing to address specific, nonfrivolous arguments raised by the government in imposing a sentence that was well below the advisory Sentencing Guidelines range.

Read US v. Ressam, No. 09-30000

Appellate Information

Argued and Submitted December 7, 2009

Filed February 2, 2010

Judges

Opinion by Judge Alarcon

Dissent by Judge Fernandez

Counsel

For Appellant:

Mark N. Bartlett and Helen J. Brunner, Assistant United States Attorneys, Seattle, WA

For Appellee:

Thomas W. Hillier, II and Lissa W. Shook, Federal Public Defender, Seattle, WA

US v. Terrell, No. 08-10560

Defendant's firearm possession sentence is affirmed where all of defendant's prior Arizona convictions fit into the Armed Career Criminal Act's (ACCA) residual clause in that they involved conduct that presented a serious potential risk of physical injury to another.

Read US v. Terrell, No. 08-10560

Appellate Information

Argued and Submitted December 7, 2009

Filed February 2, 2010

Judges

Opinion by Judge Bybee

Counsel

For Appellant:

Daniel R. Drake, Drake Law, PLC, Phoenix, AZ

For Appellee:

Karla Hotis Delord, Assistant U.S. Attorney, Phoenix, AZ

Mahach-Watkins v. Depee, No. 08-15694

In a 42 U.S.C. section 1983 action involving a deadly shooting by police, the district court's award of $136,687.35 in attorney's fees to plaintiff (following $1 nominal damages awards on two claims) is affirmed where: 1) the legality of state-sanctioned force resulting in death constituted an important legal issue; and 2) the award would likely deter the officer from future unconstitutional conduct.

Read Mahach-Watkins v. Depee, No. 08-15694

Appellate Information

Argued and Submitted July 14, 2009

Filed February 1, 2010

Judges

Opinion by Judge Fletcher

Counsel

For Appellants:

David Warren Hamilton, S. Michelle Inan, Office of the California Attorney General, Oakland, CA

For Appellees:

Tory M. Pankopf, Law Offices of Tory M. Pankopf, Reno, NV

Mary Helen Beatificato, Beatificato & Associates, Rancho Santa Margarita, CA

River Runners for Wilderness v. Martin, No. 08-15112

In a petition for review of the National Park Service's decision to permit the continued use of motorized rafts and support equipment in Grand Canyon National Park, the petition is denied where: 1) certain Park Service policies challenged by plaintiffs did not prescribe substantive rules, nor were they promulgated in conformance with the procedures of the Administrative Procedure Act; and 2) a subsequent management plan was not arbitrary and capricious for failing to remove motorized uses in the Colorado River Corridor immediately.

Read River Runners for Wilderness v. Martin, No. 08-15112

Appellate Information

Argued and Submitted June 10, 2009

Filed February 1, 2010

Judges

Per Curiam

Counsel

For Appellants:

Julia A. Olson, Wild Earth Advocates, Eugene, OR

Matthew K. Bishop, Western Environmental Law Center, Helena, MT

For Appellees:

Charles R. Scott, Attorney, United States Department of Justice, Washington, DC

US v. Napulou, No. 08-10190

In an appeal from the district court's order revoking defendant's supervised release and imposing additional conditions on her release, the order is vacated in part where: 1) the restriction on associating with persons with misdemeanor convictions was not reasonably related to the risk that defendant would reoffend; and 2) there was insufficient evidence that repeatedly incarcerating defendant for desiring to maintain a relationship with her "life partner" would best serve the interests of rehabilitation or deterrence, or would afford greater protection to the public.

Read US v. Napulou, No. 08-10190

Appellate Information

Argued and Submitted February 13, 2009

Filed February 1, 2010

Judges

Opinion by Judge Reinhardt

Counsel

For Appellant:

Fernando L. Cosio, Honolulu, HI

For Appellee:

Florence T. Nakakuni, Assistant U.S. Attorney, Honolulu, HI