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

9th Circuit May 2010 News

Challenge to Arizona's Felon Disenfranchisement Scheme Rejected

Plus Decisions Involving Indian Tribes' Fishing Rights, Sentencing, and Age Discrimination Case

Harvey v. Brewer, No. 08-17253, concerned actions challenging Arizona's felon disenfranchisement scheme.  The court of appeals affirmed the dismissal of the action, holding that the Fourteenth Amendment permits states to disenfranchise felons, regardless of whether their offenses were recognized as felonies at common law, and requiring felons to satisfy the terms of their sentences before restoring their voting rights was rationally related to a legitimate state interest, and does not violate any of the various constitutional provisions plaintiffs rely upon.

US v. Confederated Tribes of the Colville Indian Res., No. 08-35961, involved an appeal by Indian tribes of the district court's finding that they shared joint fishing rights with another tribe at the "Wenatshapam Fishery" on Icicle Creek -- a tributary to the Wenatchee River which flows into the Columbia River -- under an 1894 agreement between the U.S. and the Yakama tribe.  The Ninth Circuit affirmed, holding that the district court's ruling was supported by historical evidence establishing that it was the intent of the 1894 negotiators to grant the Wenatchi fishing rights at Wenatshapam, that the Yakama did not sell all of their fishing rights at Wenatshapam, and that both tribes' fishing rights were non-exclusive.

In US v. Blinkinsop, No. 09-30120, the court of appeals affirmed in part defendant's sentence for receiving child pornography, on the grounds that 1) the sentencing judge did not plainly err in carefully calculating defendant's imprisonment term at the lowest end of the Guidelines range; 2) the district judge considered the 18 U.S.C. section 3553(a) factors and the totality of circumstances supporting defendant's sentence; and 3) the large number of images stored on defendant's computer and storage equipment made it reasonable to anticipate that, even if he has not engaged in covert photography yet, he might do so in the future.  However, the court vacated in part, on the grounds that 1) the district court needed to consider whether a special condition of defendant's supervised release, regarding defendant's proximity to places frequented by children during his 5-year term of supervised release, was overbroad in view of his conviction for receiving a considerable amount of child pornography yet desiring to attend school events involving his children and whether it could be revised to accommodate defendant, while complying with the goals of supervised release; and 2) banning defendant's Internet usage contravened United States v. Riley, 576 F.3d 1046, 1050 (9th Cir. 2009).

Carver v. Holder, No. 09-35084, involved an action to enforce the EEOC's determination that the Department of Justice (DOJ) discriminated against plaintiff based on his age, claiming that plaintiff was entitled to more relief than the district court previously awarded him --- i.e., both the leave awarded to him at his other jobs and the leave that would have accrued had he been re-employed by the DOJ.  The Ninth Circuit affirmed summary judgment for defendant, on the ground that plaintiff could not parse his action to increase the remedy without relitigating the liability issue in pursuing his claim in federal court.

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Court Also Addresses Criminal, Constitutional, Consumer Protection and Immigration Matters


Doyle v. Medford, No. 07-35753, involved an action alleging that a city's policy of denying health insurance coverage to retirees violated their due process rights.  The court of appeals affirmed summary judgment for defendant, holding that, under the Oregon Supreme Court's interpretation of Or. Rev. Stat. section 243.303, neither that statute nor Resolution No. 5715 created a protected property interest.

James v. Rowlands, No. 08-16642, concerned an action claiming that defendants violated plaintiff's substantive and procedural due process rights under the Fourteenth Amendment by failing to notify him of their investigation into allegations that his daughter had been molested and that someone had coerced her to change her testimony in the trial that followed.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) plaintiff had no clearly established constitutional right to be informed of the molestation investigation or of the attempts to coerce his daughter to change her testimony; 2) plaintiff's right to the information at issue was not clearly established and the officials were therefore entitled to qualified immunity; and 3) the officials did not violate plaintiff's procedural due process rights.

Shroyer v. New Cingular Wireless Servs., Inc., No. 08-55028, involved an action claiming that Cingular Wireless, after its merger with AT&T, disregarded its obligations under plaintiff's phone service contract with AT&T by failing to provide adequate service coverage and requiring plaintiff to sign a different contract with defendant if he desired to get the service that AT&T had contracted to provide under the first agreement, and that Cingular misrepresented and omitted key facts about the consequence of the merger to the FCC.  The Ninth Circuit affirmed the dismissal of the complaint in part, on the grounds that 1) "all the advantages that only the nation's largest wireless company can provide" was a vague statement and provided nothing concrete upon which plaintiff could reasonably rely; 2) plaintiff failed to allege that he actually read or heard the alleged misrepresentations; and 3) violations of the common law of unfair competition and breach of contract did not alone violate California's Unfair Competition Law.  However, the court reversed in part, holding that plaintiff's complaint sufficiently stated a claim that Cingular breached its contract with him.

World Wide Rush, LLC v. Los Angeles, No. 08-56454, involved a First Amendment action to enjoin the enforcement of certain Los Angeles billboard regulations.  The court of appeals reversed summary judgment for plaintiffs, on the grounds that 1) the city's exceptions to the "Freeway Facing Sign Ban" did not undermine the city's asserted interests in enacting the Ban; and 2) the city council's authority to create exceptions to the "Supergraphic and Off-Site Sign Bans" was a permissible aspect of its inherent legislative discretion.

Segura v. Holder, No. 08-72062, concerned a petition for review of the BIA's order finding petitioner ineligible for relief under section 212(c) of the Immigration and Nationality Act.  The court of appeals denied the petition, on the grounds that 1) petitioner failed to assert his challenge to the Immigration Judge's authority in his appeal to the BIA; and 2) because petitioner was erroneously admitted for permanent residence, he was not lawfully admitted for permanent residence, and thus was ineligible for section 212(c) relief.

In US v. Orozco-Acosta, No. 09-50192, the court of appeals affirmed defendant's conviction and sentence for illegally re-entering the U.S. following removal, holding that 1) any doubt arising from the possibility that the government's record search was less comprehensive than the search conducted for a Certificate of Non-Existence of Record was allayed by the introduction of defendant's own sworn statement that he had not applied for permission to re-enter, as well as the arresting agent's testimony that defendant admitted that he lacked documents allowing him to be in the U.S. legally; 2) nothing in Melendez-Diaz was clearly irreconcilable with Bahena-Cardenas's holding that a warrant of removal is nontestimonial because it was not made in anticipation of litigation; 3) the jury instructions as a whole adequately presented defendant's theory of the case; and 4) the district court imposed a sentence in the middle of the Guidelines range after carefully and rationally considering the factors in 18 U.S.C. section 3553(a).

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In Lunbery v. Hornbeak, No. 08-17576, a murder prosecution, the court of appeals reversed the denial of petitioner's habeas petition, on the ground that the trial court's exclusion of the evidence of 1) a witness's admission that his partners had committed the murder and 2) another witness's drug-dealing stripped petitioner of evidence that someone other than she had probably committed the murder of her husband.

Cosmetic Ideas, Inc. v. IAC/InteractiveCorp, No. 08-56079, concerned a copyright infringement action in which the district court dismissed the action for lack of subject matter jurisdiction.  The Ninth Circuit reversed, holding that 1) although 17 U.S.C. section 411(a)'s registration requirement was a precondition to filing a claim, it did not restrict a federal court's subject-matter jurisdiction; and 2) receipt by the Copyright Office of a complete application satisfies the registration requirement of section 411(a).

Taylor v. Sisto, No. 09-15341, involved a prosecution for evading a peace officer and assault with a deadly weapon.  The court of appeals reversed the denial of petitioner's habeas petition, on the ground that the trial court's instruction, in context, created a pool of prospective jurors who were seeking to strip themselves of part of what made them human by ignoring their individual life experiences.

Sneller v. Bainbridge Island, No. 09-35056, concerned plaintiffs' appeal from a sanction award to defendants under Federal Rule of Civil Procedure 11 and 28 U.S.C. section 1927.  The court of appeals reversed, on the ground that the imposition of the sanction was error because plaintiffs effectively withdrew any claims that violated Rule 11(b) during the safe harbor period, before defendants filed their motion for sanctions.

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Anthoine v. N. Central Counties Consortium, No. 08-16803, concerned an action claiming that defendant terminated plaintiff public employee for reporting to management that his immediate supervisor had misrepresented the status of the employer's compliance with its legal obligations.  The court of appeals affirmed summary judgment for defendant in part, holding that the evidence plaintiff set forth was not specific and substantial, and did not create a triable issue of fact as to the ultimate issue of gender-based discrimination.  However, the court reversed in part, on the grounds that 1) a report regarding the agency's failure to comply with its legal obligations was clearly relevant to the public's evaluation of the agency's performance; 2) defendants did not show that plaintiff's statements were made pursuant to his official duties; and 3) proximity in time may support an inference of retaliation sufficient to survive summary judgment.

Ponce v. Felker, No. 08-56218, involved a murder prosecution, in which the court of appeals affirmed the denial of petitioner's habeas petition, on the ground that, at the time of petitioner's appeal, it was neither contrary to, nor an unreasonable application of, clearly established federal law for the California appellate courts to rule that the forfeiture exception did not require proof of an intent to make the witness unavailable.

Jiang v. Holder, No. 08-73186, concerned a petition for review of the denial of petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture.  The court of appeals granted the petition, holding that petitioner suffered persecution for demonstrating resistance to China's coercive population control policy.

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McComish v. Bennett, No. 10-15165, involved a challenge to the constitutionality of the "matching funds" provision of Arizona's Citizens Clean Elections Act.  The court of appeals reversed summary judgment for plaintiff, on the ground that the Act survived intermediate scrutiny because it bore a substantial relation to the State's important interest in reducing quid pro quo political corruption.

As the court wrote:  "This is a challenge to the constitutionality of the "matching funds" provision of Arizona's Citizens Clean Elections Act, Ariz. Rev. Stat. § 16-952. The Act establishes a legal framework within which the State of Arizona may provide public
financing to candidates for state political offices. A candidate who chooses to participate in the Act's voluntary public financing scheme relinquishes her or his right to raise private campaign contributions. Instead, she or he receives an initial grant of funds from the state to spend on her or his campaign. The challenged provision ensures that if the participating candidate has an opponent who is not participating in the public financing system and whose campaign expenditures or contributions exceed a threshold set by the Act, she or he receives
additional matching funds from the State."

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Rivera-Cuartas v. Holder, No. 07-74999, involved a petition for review of the BIA's order removing petitioner from the U.S.  The court of appeals granted the petition, on the ground that Arizona Revised Statutes section 13-1405, which criminalizes sexual conduct with a minor under eighteen years of age, did not constitute an aggravated felony for the purposes of immigration law.

Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., No. 08-16073, concerned a Title VII action claiming that defendant public university administrators failed to take immediate or appropriate steps to prevent a professor from sending allegedly racially harassing emails.  The court of appeals reversed the denial of qualified immunity, holding that plaintiffs' objection to the professor's speech was based entirely on his point of view, and it was axiomatic that the government could not silence speech because the ideas it promoted were thought to be offensive.

Maxwell v. Roe, No. 08-55534, involved a murder prosecution, in which the court of appeals reversed the denial of petitioner's habeas petition, on the ground that the trial court's holding that petitioner was competent to stand trial, in light of the evidence before the trial court at the time of petitioner's 1998 trial, was an unreasonable determination of the facts and an unreasonable application of the Supreme Court's clearly established law in Pate and Drope.

Grove v. Wells Fargo Fin. California, Inc., No. 08-56964, involved plaintiff's appeal from the district court's award of fees and costs in plaintiff's Fair Credit Reporting Act (FCRA) action against a bank.  The Ninth Circuit affirmed in part, holding that: 1) plaintiff failed to comply with the local rules governing motions for taxable costs; and 2) given plaintiff's failure to meet his burden to show that the fees sought were at prevailing rates, the district court acted within its discretion when it adopted defendant's suggested hourly rates and rejected plaintiff's.

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Edwards v. Wells Fargo & Co., No. 06-16892, involved an action against Wells Fargo Bank under the Fair Credit Billing Act, a subpart of the Truth in Lending Act, and under the Nevada Unfair Consumer Practices Act, based on credit card billing disputes.  The court of appeals affirmed summary judgment for defendant, holding that plaintiff was not a "consumer" within the meaning of Regulation Z because he was not the obligor under the credit card agreement.

Leu v. Int'l. Boundary Comm'n., No. 07-35949, concerned a takings claim against the International Boundary Commission and the U.S. Boundary Commissioner in his official capacity.  The Ninth Circuit vacated the district court's denial of the current Boundary Commissioner's motion to quash filings by a previous Boundary Commissioner, on the ground that the former Commissioner lacked Article III standing to appeal from the district court's order.

Federiso v. Holder, No. 08-74792, involved a petition for review of the BIA's denial of petitioner's application for waiver of removal.  The court of appeals granted the petition, on the ground that an individual whose mother is a U.S. citizen continues to be "the son . . . of a citizen of the United States," as set forth at 8 U.S.C. section 1227(a)(1)(H)(i), after his mother's death.

In US v. Gallaher, No. 09-30193, a capital murder prosecution, the Ninth Circuit affirmed the denial of defendant's motion to dismiss his superseding indictment, on the ground that the plain text of 18 U.S.C. section 1111(b) mandated that the court of appeals continue to categorize first degree murder as a crime punishable by death.

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Summary Judgment on Rail Worker's FELA Claim Reversed

Schmidt v. Burlington N. & Santa Fe Ry. Co., No. 08-35845, concerned an action raising a negligent injury claim under the Federal Employers Liability Act (FELA) based on injuries suffered by plaintiff-railroad worker.  The Ninth Circuit reversed summary judgment for defendant, on the ground that plaintiff presented adequate evidence for a rational jury to find that defendant could control critical aspects of plaintiff's daily work, including those aspects that may have caused his injury.

As the court wrote:  "John Schmidt appeals the district court's grant of summary judgment in favor of Defendant Burlington Northern and Santa Fe Railway Company (BNSF) on his negligent injury claim under the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51 et seq. The district court found Schmidt did not present adequate evidence to show he was employed by BNSF. We disagree, and conclude Schmidt's evidence raises a triable issue of fact as to whether BNSF was his employer."

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Peterson v. Cal., No. 09-15633, involved an action claiming that California Proposition 115 (Prop. 115), the Crime Victims Justice Reform Act, violated plaintiff's constitutional rights under the Fourth, Sixth, and Fourteenth Amendments.  The court of appeals affirmed judgment on the pleadings for defendant, holding that 1) Prop. 115 did not deprive plaintiff of his Sixth Amendment right to confront the witnesses against him at a preliminary hearing; and 2) the preliminary hearing was not required to include the right of confrontation in order to satisfy the requirements of due process.

As the court wrote:  "Neil Peterson appeals the district court's grant of judgment on the pleadings to the County of Nevada in his 42 U.S.C. § 1983 action. Peterson alleged that California Proposition 115 ("Prop. 115"), the Crime Victims Justice Reform Act, violates his constitutional rights under the Fourth, Sixth, and Fourteenth Amendments to the United States Constitution. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm."

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In US v. Castagana, No. 08-50057, the court of appeals affirmed defendant's conviction for committing threats and hoaxes in violation of 18 U.S.C. section 1038(a)(1), holding that section 1038(a)(1) contained no specific intent element, and thus the government was not required to prove that defendant specifically intended the recipients of his letters reasonably to believe that they contained anthrax.

FTC v. Neovi, Inc., No. 09-55093, involved an action by the FTC arising from a website managed by defendants that created and delivered unverified checks at the direction of registered users.  The court of appeals affirmed summary judgment for plaintiff, on the grounds that 1) a single violation of the FTC Act may have more than one perpetrator; 2) defendants' business practices might have served to assist others in illicit or deceptive schemes, but the liability under the FTC Act that attached to defendants was not mediated by the actions of those third parties; and 3) defendants did not show that there was a material issue of fact as to whether consumer injuries were reasonably avoidable on either end of the fraudulent transactions.

Adam Bros. Farming, Inc. v. County of Santa Barbara, No. 09-55315, concerned an action against the County of Santa Barbara and several of its employees in federal court, alleging that the county had, through a false wetland delineation, temporarily taken plaintiffs' land without providing just compensation in violation of the Fifth Amendment.  The court of appeals affirmed the dismissal of the complaint, on the ground that plaintiffs' claim was  based on the same underlying factual circumstances as the claims it raised in state court.

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Evans v. US Dept. of Interior, No. 08-35938, involved an appeal by the Tulalip Tribes from an order of the district court denying them the right to intervene in an action brought by the  Snohomish Tribe of Indians to achieve federal recognition of the Snohomish Tribe.  The court of appeals affirmed, on the ground that the recognition of the Snohomish Tribe, if it occurred, would have no effect on its own treaty rights or the treaty rights of the Tulalip Tribes.

Emery v. Clark, No. 08-55249, concerned a habeas petition relating to a murder prosecution.  The court of appeals certified the following questions to the California Supreme Court:  1) Does California's criminal street gang enhancement statute, in particular the element of "specific intent to promote, further, or assist in any criminal conduct by gang members" in California Penal Code section 186.22(b)(1), require proof that the defendant specifically intended to promote, further, or assist in other criminal gang activity, apart from the offense of conviction?  2) Is gang expert testimony tied to the facts of the case - regarding the centrality of "respect" in gang culture, and how the defendant's use of lethal force to avenge a minor slight to a member of an affiliated gang would enhance the "respect" he gets from other gang members, raise his status within the gang hierarchy, and teach the community not to interfere with even the most minor criminal activities of his fellow gang members -- sufficient to satisfy the requirement that the murder was committed with the "specific intent to promote, further, or assist in any criminal conduct by gang members" within the meaning of section 186.22(b)(1)?  3) Does evidence that the defendant committed the attempted robbery and murder in concert with the brother of a young gang member, whom the victim allegedly "disrespected," satisfy the requirement that the crimes were committed with the specific intent to "assist in any criminal conduct by gang members" within the meaning of section 186.22(b)(1)?

Valladolid v. Pac. Ops. Offshore, LP, No. 08-73862, concerned a petition for review of the denial of workers' compensation benefits under the Outer Continental Shelf Lands Act (OCSLA) and the Longshore and Harbor Workers' Compensation Act (LHWCA) based on an injury on an offshore drilling platform.  The court of appeals granted the petition in part, holding that 1) the most natural reading of the OCSLA provided coverage for any injury caused by outer continental shelf operations regardless of where the injury occurred; 2) Congress intended to provide LHWCA coverage regardless of the applicability of state law; and 3) the OCSLA claimant must establish a substantial nexus between the injury and extractive operations on the shelf.  However, the court denied the petition in part, on the ground that petitioner was not entitled to LHWCA benefits, on the ground that the drilling platform's use as a convenient dumping ground for scrap metal did not convert it into a maritime situs.

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Attorney-Client Privilege Issue in Employment Case

Hernandez v. Tanninen, No. 09-35085, involved plaintiff's petition for a writ of mandamus challenging a decision finding that any attorney-client or work product privilege between plaintiff and his prior attorney was waived and ordering the production of all thirty-five documents referenced in a privilege log.  The court of appeals granted the writ, on the grounds that 1) plaintiff only waived privilege with respect to his communications with prior counsel about defendant, as well as counsel's communications and work product relating to counsel's interaction with defendant, and thus the district court clearly erred in finding a blanket waiver of the attorney-client and work product privileges as to the entire case; and 2) the district court's order finding a blanket waiver was "particularly injurious" to plaintiff's interests.

As the court wrote:  "Rolando Hernandez appeals the district court's decision
finding that any attorney-client or work product privilege between Hernandez and his prior attorney, Gregory Ferguson, was waived and ordering the production of all thirty-five documents referenced in a privilege log."

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Case Involving Inmate's Exhaustion of Administrative Remedies

Harvey v. Jordan, No. 07-15023, concerned an action claiming that corrections officers used excessive force and violated plaintiff-inmate's due process rights in the course of removing him from his cell.  The court of appeals affirmed the dismissal of the action in part, on the ground that, because plaintiff did not file a grievance until well after the applicable fifteen-day period had ended, he did not properly exhaust his administrative remedies on the excessive force claim.  However, the court reversed in part, holding that an inmate had no obligation to appeal from a grant of relief, or a partial grant that satisfied him, in order to exhaust his administrative remedies, and it was not his responsibility to ensure that prison officials actually provide the relief that they promised.

As the court wrote:  "Plaintiff Quillie Harvey is a prisoner at Salinas Valley State Prison. Prison officials used pepper spray to extract him from his cell on July 29, 2004, during a building-wide search of all prisoners' cells. This appeal involves two claims arising from that cell extraction."

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Partap v. Holder, No. 05-75777, involved a petition for review of the BIA's decision affirming an immigration judge's denial of petitioner's claim for cancellation of removal and denying his motion to remand.  The court of appeals affirmed the denial of the petition, on the grounds that 1) petitioner's unborn daughter did not meet the statutory definition of "child" in 8 U.S.C. section 1101(b)(1) at the time of his hearing before the immigration judge, and the BIA therefore did not err in determining that the unborn child was not a qualifying relative for purposes of cancellation of removal; and 2) because petitioner did not tender any evidence showing "exceptional and extremely unusual hardship," the BIA did not abuse its discretion in declining to enter a remand order.

Embassy of the Arab Republic of Egypt v. Lasheen, No. 08-15486, concerned an ERISA action against various Egyptian government entities and persons based on the denial of health benefits.  The court of appeals affirmed in part the district court's determination that it possessed subject matter jurisdiction over the Egyptian defendants under both the commercial activities exception and the waiver exception to the Foreign Sovereign Immunities Act, on the ground that entering into an agreement with a U.S. plan administrator and allegedly breaching that agreement constituted commercial activity by Egypt.

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Eagle v. Yerington Paiute Tribe, No. 08-16786, involved a habeas petition challenging petitioner's conviction of criminal child abuse in the tribal court for the Yerington Paiute Tribe.  The court of appeals affirmed the denial of the petition, on the ground that Indian status, although a requirement for tribal jurisdiction, was not an element of the crime charged.

Reynolds v. Thomas, No. 08-35810, concerned a habeas petition claiming that the Federal Bureau of Prisons ("BOP") erred by refusing to issue an order under 18 U.S.C. section 3621(b) that retroactively (nunc pro tunc) designated the Montana state prison where petitioner served his state sentence as the place where he began serving his federal sentence.  The Ninth Circuit affirmed the denial of the petition, holding that 1) the BOP had the authority to decline to make a nunc pro tunc designation of a state prison notwithstanding a state court's contrary order; and 2) the district court did not clearly err in determining that petitioner was under the primary jurisdiction of the state at the time of his federal conviction.

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Trademark Infringement Action Involving Volkswagen

Au-Tomotive Gold Inc. v. Volkswagen of Am., Inc., No. 08-16005, concerned a declaratory judgment action involving whether the sale by plaintiff of marquee license plates bearing Volkswagen badges purchased from Volkswagen constituted trademark infringement, or whether the sale of the plates was protected by the "first sale" doctrine.  The court of appeals affirmed summary judgment for defendants, holding that the "first sale" doctrine did not provide a defense because plaintiff's marquee license plates create a likelihood of confusion as to their origin.

Noteably, however, the court of appeals stated, "We do not base our holding on a likelihood of confusion among purchasers of the plates. Rather, we base it on the likelihood of post-purchase confusion among observers who see the plates on purchasers' cars."

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Porter v. Winter, No. 07-17120, concerned an action challenging the amount of attorney's fees awarded to him in Title VII administrative proceedings.  The court of appeals reversed the dismissal of the complaint for lack of subject matter jurisdiction, holding that, under New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), federal courts have subject matter jurisdiction over claims brought solely to recover attorney's fees incurred in Title VII administrative proceedings.

Florer v. Congregation Pidyon Shevuyim, No. 07-35866, involved an action under 42 U.S.C. section 1983 and the Religious Land Use and Institutionalized Persons Act claiming that defendants improperly denied or substantially burdened his access to Jewish religious materials and services.  The Ninth Circuit reversed summary judgment for defendants, on the ground that there was a genuine issue whether defendants were willful participants in joint action with prison officials to determine eligibility for access to Jewish materials and services.

Collins v. Runnels, No. 08-17299, involved a prosecution for first degree murder and second degree robbery.  The court of appeals affirmed the denial of petitioner's habeas petition, on the ground that clearly established Supreme Court precedent binding on the states did not require trial severance where a co-defendant presented a mutually antagonistic defense, because the cases upon which defendant relied for this argument did not bind the states, so the decision of the California Court of Appeal was not contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court.

In US v. Mousavi, No. 08-50454, the Ninth Circuit affirmed defendant's convictions for willfully providing services to Iran in violation of the International Economic Emergency Powers Act (IEEPA), and the Iranian Transaction Regulations (ITR), commonly referred to as the U.S.'s trade embargo against Iran, on the grounds that 1) the relevant provision of the ITR prohibited "any transaction or dealing in or related to" providing "[g]oods, technology or services" to Iran or its government, whether directly or indirectly; and 2) the Supreme Court had not interpreted "willfulness" in criminal statutes to require the government to prove that a defendant was aware of a specific licensing requirement.

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In Casares-Castellon v. Holder, No. 05-76788, the court of appeals granted petitioner's petition for review of the BIA's order deeming petitioner's timely-filed application for relief under former INA section 212(c), 8 U.S.C. section 1182(c) (repealed 1996), abandoned for failure to submit documents supporting his request for relief within the time prescribed, on the ground that 8 C.F.R. section 1003.31(c) plainly limited any waiver to the actual application or document not timely filed.

In US v. Struckman, No. 08-30463, the court of appeals reversed defendant's firearm possession conviction, on the ground that exigent circumstances did not justify the police's warrantless arrest and entry into defendant's backyard, and thus the firearm should have been suppressed, because police officers must either obtain a warrant or consent to enter before arresting a person inside a home or its curtilage or make a reasonable attempt to ascertain that he is actually a trespasser before making the arrest.

In US v. Stever, No. 09-30004, the court of appeals reversed defendant's drug conspiracy conviction, on the grounds that 1) the evidence as to which defendant requested discovery, if it existed, tended to show that a Mexican drug trafficking organization (DTO), not defendant, planted the marijuana at issue; and 2) the combination of this discovery ruling and the in limine exclusion of all evidence about Mexican DTOs violated his Sixth Amendment right to present a defense.

Hayward v. Marshall, No. 06-55392, involved a habeas petition challenging the denial of petitioner's parole.  The Ninth Circuit affirmed the denial of the petition, on the grounds that 1) a prisoner must obtain a certificate of appealability from administrative decisions such as denial of parole and prison transfer; 2) in the absence of state law establishing otherwise, there was no federal constitutional requirement that parole be granted in the absence of "some evidence" of future dangerousness or anything else; and 3) there was some evidence of petitioner's future dangerousness.

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In US v. Moreland, No. 05-30541, the Ninth Circuit affirmed in part defendant's convictions for mail and wire fraud, money laundering, and conspiracy to commit mail and wire fraud and money laundering, on the grounds that 1) defendant's waiver of his right to counsel was not conditioned on specific assurances from the district court regarding the level of participation he could expect from standby counsel; 2) defendant's ineffective assistance claims were more appropriate for collateral proceedings; 3) the district court did not abuse its discretion in granting only a two-week continuance because the need for a continuance was defendant's fault; 4) even though the prosecution's questioning was improper, it did not amount to plain error; 5) the prosecutor's statements in closing argument were reasonable based on the evidence; and 6) the prosecution did not waive its right to seek restitution.  However, the court reversed certain convictions, and defendant's sentence, holding that the money laundering jury instructions should have defined proceeds as profits.

In Kim v. Holder, No. 06-73415, the Ninth Circuit denied petitioners' petition for review of the BIA's order of removal, on the grounds that 1) the government proved petitioners' removability by clear and convincing evidence; and 2) petitioners lacked standing to assert their equal protection claim because they did not belong to the class of returning lawful permanent residents who were allegedly similarly situated to applicants for admission.

US v. Rich, No. 08-30153, concerned a prosecution for securities fraud, bank fraud, wire fraud, mail fraud, money laundering, obstruction of justice, and filing a false tax return, following defendant's death.  The Ninth Circuit ordered the restitution order against defendant abated where the restitution order encompassed monies beyond the proceeds of defendant's fraud.  However, the court of appeals directed the district court to retain jurisdiction over the receivership created to preserve the proceeds of the fraudulent scheme where, because of his stipulation to a permanent receivership, defendant could not, after death had abated his conviction, challenge the receiver's power to repay victims.

Khatib v. Cty. of Orange, No. 08-56423, involved an action alleging a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA) because correctional officers required plaintiff, against her Muslim religious beliefs and practice, to remove her "hijab," or headscarf, in public.  The court of appeals affirmed the dismissal of the complaint, holding that a courthouse holding cell was not an "institution" as defined by RLUIPA.

In US v. Coronado, No. 09-50154, the court of appeals vacated defendant's firearm possession sentence, on the ground that a conviction under a statute proscribing grossly negligent conduct, even though it involves an intentional and potentially dangerous act, was not a "crime of violence" within the meaning of U.S.S.G. section 4B1.2(a).

In Rouse v. Law Offcs. of Rory Clark, No. 09-55146, a Fair Debt Collection Practices Act action, the court of appeals vacated the district court's award of costs to defendants following judgment in their favor, on the ground that a prevailing defendant cannot be awarded costs under the FDCPA unless the plaintiff brought the action in bad faith and for the purpose of harassment.

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