U.S. Ninth Circuit: July 2010 News
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9th Circuit July 2010 News

Denial of Habeas Petition Vacated in Felon in Possession Matter

Porter v. Ollison, No. 07-55305, involved a state prosecution for being a felon in possession of a firearm.  The court of appeals vacated the denial of petitioner's habeas petition, on the ground that further development of the facts may ultimately show that petitioner was or was not entitled to equitable tolling because of lack of diligence or because his former attorney's egregious conduct did not prevent petitioner from filing a timely federal petition.

As the court wrote:  "James Porter III was found guilty of being a felon in possession of a firearm and sentenced by a California court to a term of incarceration of 25 years to life. In his pro se federal habeas corpus petition, Porter contends that there was insufficient evidence to support his conviction and that his trial counsel was ineffective for failing to object to certain evidence and a jury instruction. The merits of Porter's habeas petition are not before this court. The only question is whether, on preliminary review, the federal habeas petition was properly dismissed as untimely without responsive briefing and an evidentiary hearing. The principal issue is the possible application of equitable tolling based on misconduct by an attorney who resigned from the State Bar of California (the "Bar") while facing disciplinary proceedings for running a habeas corpus "writ mill." On preliminary review, it cannot be conclusively determined that the federal petition was untimely. For the reasons that follow, we vacate the district court order denying Porter's habeas petition as untimely and remand on the ground further factual development will be necessary before a conclusion can be made with respect to the timeliness of Porter's petition."

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Alliance for the Wild Rockies v. Cottrell, No. 09-35756, involved plaintiff's appeal from the denial of its motion for a preliminary injunction.  The court of appeals reversed on the grounds that 1) the "serious questions" version of the sliding scale test for preliminary injunctions remains viable after the Supreme Court's decision in Winter; and 2) plaintiff showed that there was a likelihood of irreparable harm; that there were at least serious questions on the merits concerning the validity of the Forest Service's Emergency Situation Determination; that the balance of hardships tips sharply in its favor; and that the public interest favors a preliminary injunction.

As the court wrote:  "Alliance for the Wild Rockies ("AWR") appeals the district court's denial of its motion for a preliminary injunction. AWR seeks to enjoin a timber salvage sale proposed by the United States Forest Service. Citing Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the district court held that AWR had not shown the requisite likelihood of irreparable injury and success on the merits. After hearing oral argument, we issued an order reversing the district court and directing it to issue the preliminary injunction. Alliance for Wild Rockies v. Cottrell, No. 09-35756, 2010 WL 2640287 (9th Cir. June 24, 2010). In this opinion, we now set forth the reasons for our reversal, and we take this opportunity to clarify an aspect of the post-Winter standard for a preliminary injunction."

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Brownfield v. City of Yakima, No. 09-35628, involved an action under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) based on the placement of plaintiff-police officer on administrative leave.  The court of appeals affirmed summary judgment for defendant, on the ground that employer-city did not violate plaintiff's rights under the ADA by requiring a fitness for duty exam after he repeatedly exhibited emotionally volatile behavior while serving as a police officer, his complaints regarding a coworker with whom he shared duties did not address matters of public concern, and his FMLA claim lacked merit.

Geo-Energy Partners v. Salazar, No. 08-16216, concerned a challenge to the Bureau of Land Management's decision determining that certain oil and gas leases eliminated from a contracted unit were ineligible for extensions either because they had already received two successive extensions or because a second extension would not be successive to the first.  The Ninth Circuit affirmed summary judgment for defendant on the ground that the procedures for periodic revision of units in the 1988 Amendments to the Geothermal Steam Act did not apply to pre-amendment contract provisions. 

Murray v. Principal Fin. Grp., Inc., No. 09-16664, involved an action for sex discrimination in violation of Title VII.  The Ninth Circuit affirmed summary judgment for defendant on the ground that insurance agents were independent contractors and not employees for purposes of various federal employment statutes, including the Employee Retirement Income Security Act, the Age Discrimination in Employment Act, and Title VII.

SEC v. Platforms Wireless Int'l Corp., No. 07-56542, concerned an action by the SEC claiming that defendants sold unregistered securities to the public and that they issued a fraudulent press release.  The court of appeals affirmed partial summary judgment for the SEC on the grounds that 1) the district court properly entered a Rule 54(b) final judgment on the Section 5 and Section 10(b) claims on which it granted summary judgment; 2) there was no genuine issue of material fact that defendant controlled the company at issue at the time of the transactions; and 3) the company was an affiliate of defendant-corporation at the time of the transactions, and the transactions did not qualify for the Rule 144(k) safe harbor.

In Truong v. Holder, No. 05-74666, a petition for review of the denial of petitioners' asylum application, the Ninth Circuit denied the petition on the grounds that 1) petitioners' assertion that the court of appeals found past persecution in an earlier opinion, and that the immigration judge and BIA were powerless to subsequently find otherwise, was meritless; and 2) there was insufficient evidence that petitioners faced past persecution at the hands of the Italian government or forces that the Italian government was unable or unwilling to control.

In US v. Rosas, No. 09-10011, the court affirmed defendant's sentence for conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana, holding that, rather than calculating the recommended sentences for failure to appear and the underlying conviction separately, the district court should account for failure to appear by enhancing the sentence for the underlying conviction pursuant to Guidelines section 3C1.1 for obstruction of justice and Guidelines section 3C1.3 for commission of an offense while on release, and the district court properly did so in this case.

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Day v. Apoliona, No. 08-16704, involved an action by native Hawaiians contending that the trustees of the Office of Hawaiian Affairs, a Hawaii state agency that administered a portion of a public trust's proceeds, breached the trust.  The court of appeals affirmed summary judgment for defendants, holding that 1) alleged violations of state laws regarding the management and disposition of funds were not necessarily breaches, under federal law, of the trust itself; and 2) nothing in the trust's terms or purposes either requires the kind of comparative analysis plaintiffs proposed or suggested that Congress intended to prohibit expenditures whose benefits may extend beyond the trust's purposes.

Mitchell v. CB Richard Ellis Long Term Disability Plan, No. 08-55277, involved an action seeking long-term disability benefits and attorneys' fees under the Employee Retirement Income Security Act (ERISA).  The court of appeals affirmed judgment for plaintiff on the grounds that 1) the district court correctly held that plaintiff was eligible for benefits under defendant's policy, and 2) defendant failed to cross-claim for indemnification from a third party in the district court action.

Rahimzadeh v. Holder, No. 08-73985, involved a petition for review of the immigration judge's (IJ) order, affirmed by the BIA, granting petitioner withholding of removal to Iran, but denying asylum from, and withholding of removal to, the Netherlands.  The court of appeals denied the petition on the ground that substantial evidence in the record supported the IJ's conclusion that petitioner failed to carry his burden to show the inability or unwillingness of Dutch authorities to provide certain protection.

Afriyie v. Holder, No. 08-72626, concerned a petition for review of the denial of petitioner's application for asylum and withholding of removal, concluding that he failed to show that the Ghanaian government was unable or unwilling to protect him and, in the alternative, that he could safely relocate in his home country.  The court of appeals granted the petition on the ground that the BIA made numerous factual errors in its "unable or unwilling" analysis, ignoring evidence favorable to petitioner, misstating petitioner's testimony, and improperly treating as irrelevant police reports made by individuals other than petitioner.

Antoninetti v. Chipotle Mex. Grill, Inc., No. 08-55867, concerned an action under the Americans with Disabilities Act claiming that defendant-Chipotle restaurant did not take sufficient action to accommodate plaintiff-customer's disability.  The court of appeals affirmed partial judgment for plaintiff on the grounds that 1) the plain language of 28 C.F.R. section 36 did not cover defendant's food preparation counter; and 2) the wall subjected plaintiff to a disadvantage that non-disabled customers did not suffer.  However, the court reversed in part on the grounds that 1) the portion of the judgment determining that Chipotle's written policy did not violate the Act and that plaintiff was not entitled to an injunction was erroneous; 2) the district court needs to reexamine and reconsider its attorney's fee award in light of the partial reversal of its judgment; and 3) plaintiff was entitled to injunctive relief against the violative restaurant policies.

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Providence Yakima Med. Ctr. v. Sebelius, No. 09-35266, involved an action brought by five not-for-profit hospitals, each recipients of Medicare direct graduate medical education payments for approved family medicine residency programs.  The court of appeals vacated the district court's order finding the Secretary's methodology for calculating the hospitals' base-year per resident amounts under 42 C.F.R. section 413.86(e)(4)(I) (1989) arbitrary and capricious, holding that, because the method was "ad hoc" and did not meet the requirements of 42 U.S.C. section 1395oo(f)(1), a grant of expedited judicial review was erroneous and the district court should not have determined it had jurisdiction.

In US v. Crews, No. 09-30183, the court of appeals affirmed defendant's sentence for being a felon in possession of a firearm, holding that defendant qualified as a career offender because: 1) the statute of defendant's prior conviction contemplated bodily harm to the victim as a prerequisite to conviction; and 2) subsection (1)(b) of Oregon's second-degree assault statute clearly involved "purposeful, violent, and aggressive conduct."

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Mack v. Kuckenmeister, No. 09-15290, concerned an action in federal court seeking to interplead $500,000 in retirement pension funds formerly owned by a murder victim.  The Ninth Circuit reversed the dismissal of the action on the ground that state courts had subject matter jurisdiction to decide that a state court issued domestic relations order was a Qualified Domestic Relations Order, as defined by the Employee Retirement Income Security Act.

State of Cal. v. Hearthside Resid. Corp., No. 09-55389, involved an action by the California Department of Toxic Substance Control seeking cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act.  The court of appeals affirmed partial summary judgment for plaintiff on the ground that the owner of the property at the time cleanup costs are incurred is the current owner for purposes of determining CERCLA liability.

In US v. Thomas, No. 08-10450, the court of appeals affirmed cyclist Tammy Thomas's convictions for three counts of perjury and one count of obstruction of justice, on the grounds that 1) the jury could reasonably have concluded from all this testimony that defendant's grand jury testimony that she never received any "other products" was not literally true; 2) a reasonable jury could conclude beyond a reasonable doubt that defendant understood the question in count three of the indictment as the government understood it and that she answered falsely based on this understanding; and 3) there was sufficient evidence for the jury reasonably to conclude that defendant did not offer literally true answers in the exchange charged in count four of the indictment.

Mattel, Inc. v. MGA Ent'mt., Inc., No. 09-55673, involved an action for copyright infringement and breach of an employment agreement arising out of defendant's sale of a toy doll idea to a competitor of plaintiff instead of disclosing and assigning it to plaintiff as required by the agreement.  The Ninth Circuit vacated the district court's injunction in favor of plaintiff on the grounds that 1) the district court's imposition of a constructive trust forcing defendant-corporation to hand over its sweat equity was an abuse of discretion and must be vacated; 2) because the agreement's language was ambiguous and some extrinsic evidence supported each party's reading, the district court erred by granting summary judgment to plaintiff on this issue and holding that the agreement clearly assigned works made outside the scope of defendant's employment; and 3) the district court's error in construing the employment agreement was sufficient to vacate the copyright injunction.

Rubio v. Capital One Bank, No. 08-56544, concerned an action against a credit card provider based on its alleged violation of a "fixed" annual percentage rate condition in its solicitation materials.  The court of appeals affirmed in part the dismissal of the complaint, holding that could not assert unconscionability as an independent claim for relief.  However, the court reversed in part, holding that 1) the Schumer Box and the paragraph linked to it by an asterisk in the solicitation described the APR as "fixed" and listed only three events under which the APR could increase, and this disclosure was not clear and conspicuous; and 2) by properly alleging a Truth In Lending Act violation, Rubio has also alleged an Unfair Competition Law violation under the prong of the UCL that prohibits "unlawful" business acts or practices.

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Petition to Review BIA's Denial of Motion to Reopen Denied

Vega v. Holder, No. 07-72618, involved a petition for review of a decision of the Board of Immigration Appeals (BIA) denying petitioner's motion to reopen as untimely.  The court of appeals denied the petition on the ground that, to be timely, the motion to reopen had to be filed within 90 days of the BIA's initial merits determination, not within 90 days of the denial of petitioner's motion to reconsider.

As the court wrote:  "Juan Soria Vega petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his motion to reopen as untimely. Soria Vega asserts that although his motion was not filed within 90 days of the BIA's merits determination, the motion to reopen was filed within 90 days of the denial of his motion to reconsider and was therefore timely. The Attorney General contends that, to be timely, the motion to reopen had to be filed within 90 days of the BIA's initial merits determination, not within 90 days of the denial of his motion to reconsider. We agree with the Attorney General."

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In US v. Burkett, No. 09-30260, the court of appeals affirmed defendant's conviction for being a felon in possession of a firearm in violation of 18 U.S.C. section 922(g), holding that, contrary to defendant's argument that the seizure of the firearm from his coat pocket stemmed from a violation of his Fourth Amendment rights, the record developed during the suppression hearing amply supported a conclusion that the "stop and frisk" in this case was reasonable.

US v. Lewis, No. 09-10058, involved defendant's appeal from the district court's decision to dismiss his indictment for violation of the Speedy Trial Act, 18 U.S.C. section 3161, without prejudice.  The court affirmed on the grounds that ) the district court correctly found that 90 days would be the "outer boundary" of a reasonable delay for joinder, given the government's diligent efforts to obtain a witness's presence and the minimal prejudice to defendant; 2) because defendant was to be tried jointly with his codefendants, the district court properly granted a continuance; and 3) the district court balanced the applicable statutory considerations, made the requisite factual findings, and properly determined that the overall weight of the statutory considerations favored dismissal without prejudice.

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Denial of Petition in Capital Murder Matter Affirmed

In Rhoades v. Henry, No. 07-99023, a capital habeas matter, the court of appeals affirmed the denial of petitioner's petition, on the grounds that 1) the difference between what petitioner's counsel investigated and presented, and what they could have investigated and presented, is not so pronounced that the new evidence would have outweighed any one of the aggravating circumstances; 2) alleged violations of state law were not cognizable on federal habeas review; and 3) so long as any single aggravating factor found in the penalty phase was supported, alleged constitutional infirmities as to remaining ones were harmless.

As the court wrote:  "Paul Ezra Rhoades was convicted by an Idaho jury of the 1987 first degree murder, first degree kidnapping, robbery, rape, and infamous crime against nature of Susan Michelbacher. The trial court sentenced him to death on his convictions for first degree murder and first degree kidnapping; and the Idaho Supreme Court upheld his conviction, sentence, and denial of post-conviction relief. State v. Rhoades (Michelbacher), 822 P.2d 960 (Idaho 1991). The district court denied his petition for habeas corpus. Rhoades appealed, and we previously affirmed denial of relief on the conviction, Rhoades v. Henry (Michelbacher), 598 F.3d 495 (9th Cir. 2010). However, because a post-conviction petition asking the Idaho
Supreme Court to apply Ring v. Arizona, 536 U.S. 584 (2002), retroactively was then pending before the Idaho Supreme Court, we deferred submission on penalty phase issues. That court has now ruled, upholding the sentence. Rhoades v. State, ___ P.3d ___, 2010 WL 937272 (Idaho Mar. 17, 2010), reh'g denied (June 4, 2010). Accordingly, we now turn to the issues on which Rhoades seeks to overturn the district court's judgment that his sentence was not constitutionally infirm. We see no error, and affirm."

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Banuelos-Ayon v. Holder, No. 07-71667, concerned a petition for review of the denial of petitioner's application for cancellation of removal, on the ground that petitioner's prior conviction under California Penal Code section 273.5(a) was categorically a crime of domestic violence.  The court of appeals denied the petition on the ground that the BIA's conclusion regarding petitioner's prior conviction was correct.

Hernandez-Velasquez v. Holder, No. 06-75728, involved a petition for review of the Board of Immigration Appeals'("BIA") denial of petitioner's motion to reopen and reinstate proceedings, which the BIA construed as a motion to reissue its decision denying her administrative appeal.  The Ninth Circuit granted the petition on the ground that the BIA abused its discretion in failing to discuss petitioner's declaration and the attached photocopied Change of Address form in its decision, thereby failing to consider the "weight and consequences" of that evidence in its denial of her motion to reopen.

Jiang v. Holder, No. 08-73186, concerned a petition for review of the Board of Immigration Appeals' ("BIA") denial of petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").  The Ninth Circuit granted the petition in part on the ground that petitioner suffered persecution for demonstrating resistance to China's coercive population control policy.

In US v. Broussard, No. 09-10331, the court of appeals affirmed defendant's sentence for violating the terms of his supervised release, on the grounds that 1) in determining the class of felony for purposes of 18 U.S.C. section 3559(a), the court looked to the statutory maximum, not the guidelines maximum; and 2) the maximum sentence authorized by the statute of conviction was the upper limit on a district judge's discretion.

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Narayan v. EGL, Inc., 07-16487, concerned an action seeking unpaid overtime wages, business expenses, meal compensation and unlawful deductions from wages under the California Labor Code.  The court of appeals reversed summary judgment for defendants on the ground that, under California's multi-faceted test of employment, there existed at the very least sufficient indicia of an employment relationship between the plaintiffs and defendant such that a reasonable jury could find the existence of such a relationship.

In US v. Avila-Anguiano, No. 09-10160, the Ninth Circuit affirmed defendant's sentence for hostage taking on the ground that U.S.S.G. section 2K2.4(b) referred to the statute in effect at the time the crime was committed, rather than the one in effect at the time of sentencing.

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In re: Anonymous Online Speakers, No. 09-71265, involved an action claiming that defendant orchestrated an Internet smear campaign via anonymous postings and videos disparaging plaintiff and its business practices.  The court of appeals denied defendant's petition for a writ of mandamus directing the district court to vacate its order requiring the disclosure of the identity of the three speakers at issue, holding that the district court weighed appropriate considerations and, given the decision to disclose the speakers' identities even under the strictest test outlines in Cahill, there was no clear error.

Perdomo v. Holder, No. 06-71652, concerned a petition for review of the Board of Immigration Appeals' ("BIA") affirmance of the immigration judge's ("IJ") order denying asylum, withholding of removal, and relief under the United Nations Convention Against Torture ("CAT").  The Ninth Circuit granted the petition, holding that the BIA failed to apply both prongs of the Hernandez-Montiel definition to petitioner's claim that women in Guatemala constituted a particular social group, and because the BIA's decision was inconsistent with its own opinions in Matter of Acosta, 19 I. & N. Dec. at 233-34, and In re C-A-, 23 I. & N. Dec. at 955.

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Ineligibility for Cancellation of Removal Affirmed

Padilla-Romero v. Holder, No. 07-72492, involved a petition for review of the Board of Immigration Appeals ("BIA") decision affirming the Immigration Judge's ("IJ") decision holding petitioner statutorily ineligible for cancellation of removal.  The court of appeals denied the petition, holding that the inclusion in 8 U.S.C. section 1229b(b)(1)(A) of an express requirement that an alien's period of continuous physical presence be "immediately preceding" the application for cancellation of removal did not undermine the court of appeals' interpretation of section 1229b(a)(1), because that section, when read as a whole and in the context of the definition of "lawfully admitted for permanent residence," was sufficiently clear that such additional text would be superfluous.

As the court wrote:  "Rafael Padilla-Romero, Jr., petitions for review of the Board of Immigration Appeals ("BIA") decision affirming the Immigration Judge's ("IJ") decision holding him statutorily ineligible for cancellation of removal. We deny the petition for review."

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Bluetooth SIG Inc. v. US, No. 08-35312, involved an action seeking a refund of income tax, penalties, additions, and interest paid for 2000-2002 under 28 U.S.C. section 1346(a) and I.R.C. section 7422.  The Ninth Circuit affirmed summary judgment for defendant, on the ground that plaintiff engaged in a business of the sort ordinarily engaged in for profit, and provided non-incidental services for particular members, and therefore was not entitled to the I.R.C. section 501(c)(6) exemption.

Breiner v. Nev. Dept. of Corrs., No. 09-15568, concerned an action challenging the State of Nevada's policy of hiring only female correctional lieutenants at a women's prison.  The Ninth Circuit reversed summary judgment for defendants, on the grounds that 1) Title VII protected the ability to pursue one's own career goals without being discriminated against on the basis of race or sex, even if others of the same race or sex were not subject to disadvantage; and 2) defendants did not show that "all or nearly all" men would tolerate sexual abuse by male guards, or that it is "impossible or highly impractical" to assess applicants individually for this qualification.

Couch v. Telescope Inc., No. 08-56357, involved defendants' appeal from the district court's order denying defendants' motion to dismiss plaintiffs' claim that defendants conducted an illegal lottery under California Penal Code section 319 and thereby violated California's unfair business practices law.  The court of appeals dismissed the appeal, on the ground that the district court expressly, and correctly, found that defendants had failed to demonstrate a substantial ground for difference of opinion.

Love v. Sanctuary Records Group, Ltd., No. 07-56008, concerned an action by former Beach Boys member Mike Love against former member Brian Wilson for trademark infringement based on the promotion campaign for Wilson's solo album.  The court of appeals affirmed the dismissal of the action on the ground that the Lanham Act and California's common law right of publicity did not apply extraterritorially to events occurring in Great Britain.

Small v. Operative Plasterers' & Cement Masons' Int'l. Assn., No. 08-56668, involved an action by a union against a contractor alleging violation of wage and hour laws and tortious interference with contract.  The Ninth Circuit affirmed the district court's injunction against state court proceedings pending a decision by the National Labor Relations Board, on the ground that, because any favorable resolution of the state lawsuits would directly conflict with the Board's section 10(k) determinations, under Local 32 and Bill Johnson's, the union's suits had an illegal objective.

Toyota Motor Sales, USA, Inc. v. Tabari, No. 07-55344, concerned a trademark infringement action by Toyota based on defendants' use on their website of copyrighted photography of Lexus vehicles and the circular "L Symbol Design mark."  The court of appeals vacated judgment for plaintiff, holding that 1) the district court's injunction was plainly overbroad because it prohibited domain names that on their face dispel any confusion as to sponsorship or endorsement; and 2) because there was no risk of confusion as to sponsorship or endorsement, plaintiffs' use of the Lexus mark was fair.

In US v. Brooks, No. 08-10301, the court of appeals affirmed defendants' convictions for child sex trafficking and interstate transportation of minors for purposes of prostitution, holding that 1) the considerable similarity between the police's observations and the victim's description was sufficient to lead a person of reasonable caution to conclude that defendant was one of the men who had brought the victims to and from California for purposes of prostitution; 2) a comparison of the elements of the two statutes at issue showed that the indictment was not multiplicitous; and 3) an officer's training and experience qualified her as an expert on the business of prostitution and the relationships between pimps and prostitutes.  However, the court vacated defendants' sentences on the ground that U.S.S.G. section 2G1.3(b)(1)(B)applied only to defendants who exploited a pre-existing parent-like position of authority that defendant simply did not possess.

In US v. Chavez, No. 09-50434, the court of appeals affirmed defendant's sentence of 15 months' incarceration for narcotics convictions, on the grounds that 1) the "parsimony clause" of 18 U.S.C. section 3553(a) did not set a separate statutory maximum for Sixth Amendment purposes; and 2) the sentencing judge reviewed the section 3553(a) factors and concluded that 15 months' imprisonment was sufficient but not greater than necessary.

In US v. Evans-Martinez, No. 09-10098, the court of appeals affirmed in part defendant's sentence for sexual abuse of a child, sexual exploitation of children, and witness tampering, on the grounds that the district court did not err when it granted the government's motion for a downward departure but failed to announce the extent of that departure and to calculate a new Guidelines sentencing range before it considered the 18 U.S.C. section 3553(a) sentencing factors and imposed an above-Guidelines sentence.  However, the court vacated in part on the ground that the district court erred when it used the mandatory minimum sentence for one count as the starting point for sentencing all counts.

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In Betz v. Trainer Wortham & Co., No. 05-15704, a securities fraud action, the court granted defendants' motion to remand the case to the district court following the Supreme Court's decision vacating the Ninth Circuit's earlier opinion, on the grounds that 1) the district court had procedures available to it relating to the scope of the record and the determination of facts which are not available to us; and 2) once the district court made its decision and a final order was presented, the matter could again be appealed to the Ninth Circuit if either party sought further review.

Ta Chong Bank Ltd. v. Hitachi High Techs. Am., Inc., No. 08-17007, involved a complaint asserting several claims against Hitachi High Technologies America, Inc. based on plaintiff-bank's interest in the accounts receivable of a third party, pursuant to certain factoring agreements entered into by those entities.  The court of appeals affirmed the dismissal of the complaint, on the ground that the claims were based solely on plaintiff's interest in the third party's accounts receivable, which the bankruptcy court had determined to be property of the third party's bankruptcy estate.

In US v. Graf, No. 07-50100, the court of appeals affirmed defendant's convictions for conspiracy, mail fraud, misappropriation, conducting unlawful monetary transactions, and obstruction of justice, holding that defendant did not hold a personal attorney-client privilege with respect to his communications with the subject attorneys, and thus his communications with those attorneys could be disclosed to the government.

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Lee v. Lampert, No. 09-35276, involved a prosecution for sexual abuse of a child.  The court of appeals reversed the grant of petitioner's habeas petition, holding that 1) there is no actual innocence exception serving as a gateway through AEDPA's statute of limitations to the merits of a petitioner's constitutional claims in original petitions; and 2) the Schlup exception never applies to federal statutes of limitations because AEDPA created such limitations later.

In Mindys Cosmetics, Inc. v. Dakar, No. 09-55134, a trademark infringement action, the court of appeals affirmed the denial of defendant's California anti-SLAPP motion, holding that defendant made a prima facie showing that the suit against him "arose from" a protected act under the anti-SLAPP statute, but plaintiff made a sufficient showing under the second part of the inquiry to withstand defendant's motion to strike under the anti-SLAPP statute.

In US v. Johnson, No. 08-10147, the court of appeals affirmed defendants' mail fraud convictions, holding that 1) defendants' courtroom behavior, although eccentric at times, would not have justified, let alone required, the involuntary deprivation of their constitutional right to represent themselves; 2) it was not an abuse of discretion for the district court to conclude that a prior judge's rulings did not display a "deep-seated favoritism or antagonism that would make fair judgment impossible"; and 3) the district court's instructions were not findings of fact.

Wilkinson v. Torres, No. 09-35098, concerned a 42 U.S.C. section 1983 action based on alleged excessive force by the police involving a fatal shooting.  The court of appeals reversed the denial of summary judgment based on qualified immunity, holding that defendant was entitled to qualified immunity because his use of force was reasonable as a matter of law.

Related Resources

  • Full Text of Lee v. Lampert, No. 09-35276
  • Full Text of Mindys Cosmetics, Inc. v. Dakar, No. 09-55134
  • Full Text of US v. Johnson, No. 08-10147
  • Full Text of Wilkinson v. Torres, No. 09-35098

Challenge to Bureau of Prisons Rule, and Immigration Matter

Kittel v. Thomas, No. 09-35630, concerned a habeas petition challenging a Bureau of Prisons ("BOP") rule that categorically excluded from an early release incentive program prisoners whose offenses of conviction involved firearms possession.  The court of appeals affirmed the dismissal of the petition, on the ground that petitioner's claims were moot, and an order stating that Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008), applied to petitioner would simply reiterate a fact that was not in dispute.

Cortez-Pineda v. Holder, No. 08-72314, involved a petition for review of a decision of the Board of Immigration Appeals ("BIA") dismissing petitioner's appeal of an Immigration Judge's ("IJ") denial of his applications for special rule cancellation of removal, asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT").  The Ninth Circuit denied the petition, holding that 1) the government should not be held to have made a binding judicial admission about petitioner's entry date because the government vigorously disputed the entry date during the November 2006 evidentiary hearing after notice was given to petitioner that the issue was in dispute, and petitioner never expressly objected on the grounds of judicial admission, instead stipulating to an evidentiary hearing on the issue; and 2) the IJ's adverse credibility determination and denial of asylum relief are supported by substantial evidence.

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Appeal from Partial Summary Judgment in Wage Matter Dismissed

Solis v. Jasmine Hall Care Homes, Inc., No. 08-15223, involved an action to enjoin violations of the Fair Labor Standards Act, alleging that defendants willfully violated overtime compensation requirements.  The court of appeals dismissed defendants' appeal from partial summary judgment for plaintiff, holding that the partial summary judgment did not constitute a final decision.

As the court wrote:  "This is an appeal from a partial summary judgment. We dismiss the appeal for lack of jurisdiction under the final decision rule."

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