9th Circuit October 2010 News

Appeal From Order Compelling Compliance in Criminal Appeal

In US v. Krane, No. 10-30247, intervenor's appeal from the district court's order compelling intervenor's former counsel to comply with a pretrial subpoena duces tecum issued in anticipation of the criminal trial of two former executives of intervenor, the court dismissed the appeal as moot where to fashion "effectual relief" in this case, the court would have to assess the effectiveness of a Fed. R. Crim. P. 17 pretrial subpoena as against allegations of privilege when there would be no trial.

Habeas Petition in Assault Matter

In Smith v. Mitchell, No. 04-55831, a prosecution for assault on a child resulting in death, on remand from the Supreme Court for reconsideration, the court of appeals reinstated its order reversing the district court's denial of petitioner's habeas petition, where no rational trier of fact could have found beyond a reasonable doubt that petitioner caused the child's death, and the state court's affirmance of the conviction was an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979).

Petition for Review of Removal Order Denied

In Valadez-Munoz v. Holder, No. 06-72510, a petition for review of the Board of Immigration Appeals' (BIA) dismissal of petitioner's appeal from the Immigration Judge's (IJ) order of removal, the court denied the petition where 1) the BIA did not improperly determine that petitioner had "falsely represented himself . . . to be a citizen of the United States" under 8 U.S.C. section 1182(a)(6)(C)(ii)(I); and 2) the BIA did not err when it determined that petitioner could not take advantage of the timely recantation doctrine.

Petition for Review of CPUC Order

In Global NAPs Cal., Inc. v. Pub. Util. Comm'n of Cal., No. 09-55600, a petition for review of the California Public Utilities Commission's (CPUC) order requiring it to pay Cox California Telcom, LLC in accordance with an interconnection agreement and the CPUC's order suspending petitioner's right to operate as a telecommunications provider in California, the court affirmed the denial of the petition where 1) the CPUC's characterization of petitioner's VoIP traffic as intraLATA toll traffic came from Global itself; 2) a fact hearing was unnecessary to determine whether petitioner's VoIP traffic fell within the agreement's intraLATA-toll-call provision; and 3) the CPUC did not require petitioner to pay any compensation under the federal access-charges regime.

Termination of Disability Benefits Upheld

In Muniz v. Amec Const. Mgmt., Inc., No. 09-55689, an action challenging defendant insurance company's termination of plaintiff's disability benefits, the court affirmed judgment for defendant where plaintiff did not meet his burden of proving he was "totally disabled" under the terms of the plan, and thus, the district court did not err in upholding the termination of plaintiff's disability benefits based on a lack of medical documentation supporting the determination of total disability.

Moral Turpitude Removal Affirmed

In Mendoza v. Holder, No. 06-72865, a petition for review of an order removing petitioner from the U.S., the court denied the petition where petitioner's offense of robbery under California Penal Code section 211 was a crime involving moral turpitude (CIMT) for the purposes of Immigration and Nationality Act (INA) section 212(a)(2)(A)(i)(I).

Tort Action by Fisheries Observer

In Bauer v. MRAG Americas, Inc., No. 09-17254, an action by a fisheries observer aboard a fishing boat who was injured by a cable on the vessel that snapped and hit her, the court affirmed the dismissal of the complaint where 16 U.S.C. section 1383a(e)(7)(A)'s immunity provision precluded a negligence suit by a federal observer who was injured while taking a restroom break.

Ruling in Cybersquatting Suit

In DSPT Int'l., Inc. v. Nahum, No. 08-55062, an action for "cybersquatting" and trademark infringement in violation of the Lanham Act, the court affirmed judgment for plaintiff where: 1) although there was no evidence of anything wrong with defendant's registration of the domain name at issue to himself, the evidence supported a verdict that defendant subsequently, years later, used the domain name to get leverage for his claim for commissions; 2) the designs used by defendant were sufficiently similar to those used by plaintiff; and 3) given the impossibility of precise measurements, the jury had sufficient tools for estimating defendant's damages, including financial statements bracketing the period of the loss and testimony that DSPT spent $31,572.72 recreating its website.

Capital Habeas Matter

In Williams v. Ryan, No. 07-99013, a capital habeas matter, the court affirmed in part the denial of petitioner's habeas petition, holding that the trial court was not required to appoint a mental health expert at sentencing because the defendant did not make any showing that his mental state at the time of the murder was at issue by virtue of drug use.  However, the court reversed in part where 1) the Arizona courts had discretion as to the weight to be given petitioner's drug addiction, but erred by refusing to consider it at all unless he proved it was a factor in the crime; and 2) the trial court needed to conduct an in-court evidentiary hearing on petitioner's Brady claim challenging the conviction.

Insanity Verdict Affirmed

In US v. Vela, No. 08-50121, a prosecution for assault on a federal officer, the court affirmed the jury's verdict finding defendant not guilty by reason of insanity, holding that 1) defendant's arguments were foreclosed by the Ninth Circuit's decision in United States v. Jim, 865 F.2d 211 (9th Cir. 1989), where the court held that 18 U.S.C. section 111 was a general intent crime; and 2) section 111 did not violate Apprendi.

Petition for Review of Aggravated Felony-Based Removal Granted

In Teposte v. Holder, No. 08-72516, a petition for review of a decision of the Board of Immigration Appeals (BIA) dismissing petitioner's appeal of an Immigration Judge's (IJ) order of removal based on a conviction of an aggravated felony, the court granted the petition where the California offense of shooting at an inhabited dwelling or vehicle was not categorically a crime of violence as that term was defined in 18 U.S.C. section 16(b).

Child Molestation Habeas Petition

In McNeal v. Adams, No. 08-16472, a child molestation prosecution, the court affirmed the denial of petitioner's petition for writ of habeas corpus, holding that 1) the state-court findings that petitioner's Sixth Amendment right to counsel was not violated under the Strickland prejudice inquiry were not contrary to, or an unreasonable application of, clearly established federal law; and 2) counsel was not needed to help petitioner understand the legal issues because no basis existed for denying the motion at issue.

Challenge to Arizona Proposition 200

In Gonzalez v. Arizona, No. 08-17094, an action raising the questions whether Arizona Proposition 200 violated the Voting Rights Act, was unconstitutional under the Fourteenth or Twenty-fourth Amendments of the Constitution, or was void as inconsistent with the National Voter Registration Act (NVRA), the court affirmed judgment for defendants in part where Arizona's polling place photo identification requirement did not violate the Fourteenth Amendment's Equal Protection Clause.  However, the court reversed in part where the NVRA superseded Proposition 200's voter registration procedures, and Arizona's documentary proof of citizenship requirement for registration was therefore invalid.

Female Genital Mutilation-Related BIA Review Petition

In Edu v. Holder, No. 06-72609, a petition for review of the Board of Immigration Appeals' (BIA) denial of petitioner's application for deferral of removal under the Convention Against Torture (CAT), and from its denial of her motion to reopen, the court granted the petition in part where there was no basis for returning petitioner to a country where she must either give up her appropriate political behavior or face a substantial risk of torture.

Murder Conviction Affirmed

In US v. Redlightning, No. 09-30122, the court affirmed defendant's conviction for murder on Native American land with premeditation and in the perpetration or attempted perpetration of sexual abuse, holding that 1) defendant did not confess as the result of an unlawful arrest; 2) defendant was not "in custody" for Fifth Amendment purposes during the questioning until he confessed to the sexual assault and murder; and 3) the government's conduct did not result in an unreasonable delay of the arraignment.

Robbery and Bombing Prosecution

In US v. Berry, No. 08-35002, a robbery and bombing prosecution, the court affirmed the denial of petitioner's habeas petition where 1) Jackson allowed a district court to treat a 28 U.S.C. section 2255 motion as a motion for a new trial under Rule 33; and 2) when the prisoner's section 2255 motion fell outside this time period, the district court could still treat it as a Rule 33 motion if the government waived any objection to Rule 33 timeliness.

Civil Rights Action by Day Laborers

In La Asociacion de Trabajadores de Lake Forest v. Lake Forest, No. 08-56564, an action alleging that the City of Lake Forest police ran all the day laborers looking for work off the public sidewalks, the court affirmed in part the dismissal of the action and the denial of attorney's fees to a settling plaintiff where one plaintiff failed to assert any factual allegations in its complaint that it was forced to divert resources to help another association because of the defendants' actions.  However, the court reversed in part where the settling plaintiff had achieved "prevailing party" status.

Unordered Merchandise Statute Action

In Sanford v. MemberWorks, Inc., No. 09-55502, an action under the Unordered Merchandise Statute, as well as state-law claims for conversion, unjust enrichment, and fraud, arising out of plaintiffs' alleged billing for membership in a product discount program, the court affirmed the dismissal of the complaint where 1) plaintiff's claims in this action arose out of the same allegations in her state-court case against defendant, which plaintiff had settled; 2) it was not unreasonable to expect the party who placed the phone calls to defendant to have personal knowledge of the relevant facts, and thus the district court properly denied plaintiff's motion to amend to state a RICO claim; and 3) nothing defendant allegedly mailed to plaintiffs fit within the definition of "merchandise."

Challenge to Resolution Denouncing Catholic Church

In Catholic League for Religious & Civil Rights v. San Francisco, No. 06-17328, an action by Catholics and a Catholic advocacy group against San Francisco on account of an official resolution denouncing their church and doctrines of their religion, the court affirmed the dismissal of the action where 1) adherents to a religion have standing to challenge an official condemnation by their government of their religious views, and official urging by their government that their local religious representative defy their church; but 2) the district court correctly dismissed the plaintiffs' lawsuit because duly-elected government officials had the right to speak out in their official capacities on matters of secular concern to their constituents.

Alter Ego Action Against Bankrupt Company's Shareholders

In Ahcom, Ltd. v. Smeding, No. 09-16020, an action against the shareholders of a bankrupt corporation, the court reversed the dismissal of the complaint where a creditor of a corporation in bankruptcy has standing to assert a claim against the corporation's sole shareholders on an alter ego theory.

Career Offender Sentence Affirmed

In US v. Mitchell, No. 08-50429, the court affirmed defendant's sentence as a career offender under section 4B1.1 of the Sentencing Guidelines following his guilty plea to distributing 52.4 grams of crack cocaine, on the ground that, even in cases where a defendant is being sentenced under the Guidelines as a career offender, the sentencing court may depart downward to account for the disparity between treatment of crack cocaine and powder cocaine in the Guidelines.

In In re: Gonzales, No. 08-72188, a petition for a writ of mandamus to stay petitioner's district court federal capital habeas proceedings under Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003), the court granted the petition where, although petitioner's exhausted claims were record-based or legal in nature, he is entitled to a stay pending a competency determination.

Civil Rights Action

In Smith v. Almada, No. 09-55334, an action for false arrest, malicious prosecution, and suppression of exculpatory evidence, and raising a substantive due process claim for deprivation of familial relations, the court affirmed summary judgment for defendant where 1) the changes suggested by plaintiff to defendant's warrant application did not compel the conclusion that "a neutral magistrate would not have issued the warrant"; and 2) even after correcting for the allegedly false and omitted information in defendant's warrant application, probable cause supported plaintiff's arrest for arson.

Capital Habeas Matter

In Earp v. Cullen, No. 08-99005, a capital habeas matter, the court affirmed in part the denial of petitioner's habeas petition where the record belied petitioner's allegations of insufficient investigation of possible mitigating circumstances.  However, the court reversed in part where the district court erred by permitting a witness to anticipatorily claim the Fifth Amendment privilege because the court believed that she was going to testify untruthfully.

In US v. Lozano, No. 09-30151, the court affirmed defendant's conviction for attempted possession of marijuana with intent to distribute, holding that 1) the district court did not abuse its discretion in concluding that all of the Rule 404(b) requirements were met and thus that Rule 404(b) did not forbid admission of the evidence; 2) a postal inspector had reasonable suspicion to detain the mailed package at issue; and 3) the transportation of the package from Barrow to Anchorage, Alaska without probable cause did not make the detention unreasonable.

FOIA Request

In American Small Bus. League v. US Small Bus. Admin., No. 09-16756, a request under the Freedom of Information Act (FOIA) to compel Defendant United States Small Business Administration (SBA) to produce Verizon Wireless cell phone records that the agency no longer possessed, the court affirmed summary judgment for defendant where 1) the SBA did not actually possess the records in July 2008, and SBA had no obligation either to retain the records or to seek the records once they were no longer in its possession; and 2) Verizon did not maintain the phone records pursuant to a records-management contract with SBA.

Appeal from Prison Reform Injunction by Arizona Sheriff Joe Arpaio

In Graves v. Arpaio, No. 08-17601, Maricopa County, Arizona sheriff Joe Arpaio's appeal from the district court's order requiring him to take affirmative measures to address conditions in Maricopa County jails that violated the Eighth and Fourteenth Amendments, the court affirmed the order where 1) it was not an abuse of discretion for the district court to hear evidence on both rights and remedies at one hearing; 2) the district court did not clearly err in finding that air temperatures above 85° F greatly increased the risk of heat-related illnesses for individuals who took psychotropic medications; and 3) there was no error in ordering prospective relief to address inadequate food.

Denial of Disability Insurance Benefits Affirmed

In Luna v. Astrue, No. 08-16852, plaintiff's appeal from a denial of disability insurance benefits, the court affirmed the district court's affirmance of the denial, holding that the district court did not err when it remanded the case to the Commissioner of Social Security for further factual proceedings rather than for payment of benefits.

Equal Access to Justice Act Attorney's Fee Case

In Western Watersheds Proj. v. Interior Bd. of Land Apps., No. 09-35708, plaintiff's appeal from the district court's denial of attorney's fees to plaintiff under the Equal Access to Justice Act (EAJA), the court affirmed where EAJA fees were not available to plaintiff because its environmental claims were brought in a grazing permit renewal proceeding.

Establishment Clause Action Regarding Religious Homeless Shelter

In Community House, Inc. v. Boise, No. 09-35780, an action against the City of Boise and the Boise City Council, alleging, among other things, that the anticipated lease of a building to a homeless shelter violated the First Amendment's anti-Establishment Clause and the federal Fair Housing Act (FHA), the court reversed the denial of summary judgment based on qualified immunity, holding that 1) the Mayor and the members of the City Council were entitled to absolute legislative immunity for their actions in promoting and approving the lease; and 2) certain other individual defendants were entitled to qualified immunity because at the time the City approved the lease and sale, a reasonable official would not have known that such actions would violate the Establishment Clause or the FHA.

Sentence for Reentry After Deportation Affirmed

In US v. Garcia-Jimenez, No. 09-50304, the court affirmed defendant's sentence following his guilty plea to one count of being an illegal alien found in the U.S. after deportation where the district court properly: 1) calculated defendant's criminal history category under the Sentencing Guidelines, adding two criminal history points under U.S.S.G. section 4A1.1(d), which requires additional points "if the defendant committed the instant offense while under any criminal justice sentence, including . . . parole"; and (2) added one criminal history point under U.S.S.G. section 4A1.1(e), which requires additional points "if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under [U.S.S.G. section 4A1.1](a)."

In Telesaurus VPC, LLC v. Power, No. 09-15446, a dispute between providers of mobile radio services wherein plaintiff alleged violations of the Federal Communications Act (FCA), the court affirmed the dismissal of the complaint where 1) the complaint did not allege facts sufficient to establish that defendant was a "common carrier" subject to suit under the FCA, 47 U.S.C. sections 206-07; and 2) plaintiff's claims under Arizona law for conversion, unjust enrichment, and intentional interference with prospective economic advantage are expressly preempted by section 332(c)(3) (A) of the FCA, which preempts state regulation of market entry.

In Johnson v. Rancho Santiago Comm. Coll. Dist., No. 08-56963, an action challenging a public project labor agreement as preempted by the National Labor Relations Act (NLRA) and the Employee Retirement Income Security Act (ERISA) and as violative of their rights to substantive and procedural due process and to equal protection, the court affirmed summary judgment for defendants where 1) entering into the agreement constituted market participation not subject to preemption by the NLRA or ERISA; 2) the agreement did not violate the plaintiffs' liberty interest in pursuing their careers as electricians; and 3) the agreement was rationally related to the district's legitimate interest in preventing labor disruptions.

In Luchtel v. Hagemann, No. 09-35446, an action claiming that defendant-officers lacked probable cause to arrest her, and that excessive force was used by the officers, the court affirmed summary judgment for defendants where 1) under the circumstances defendants were entitled to subdue plaintiff, to arrest her, and to get her to a hospital for assessment; and 2) there was no genuine dispute from the evidence that plaintiff posed a threat to herself, her neighbors, and the officers.

Alaska Coercion Conviction Is Not "Crime of Violence"

In Cortez-Guillen v. Holder, No. 09-72358, a petition for review based on petitioner's removal from the U.S. due to his commission of a "crime of violence," the court granted the petition where petitioner's Alaska "coercion" conviction did not necessarily equate with a federal "crime of violence."

Alien Smuggling Conviction Affirmed

In US v. Flores-Blanco, No. 09-50040, the court affirmed defendant's alien smuggling conviction where 1) the district court did not err either in its handling of a co-defendant's invocation of the Fifth Amendment privilege against self-incrimination or in its admission of evidence of prior bad acts by defendant; and 2) there was sufficient evidence to uphold defendant's conviction, as an aider and abettor, of bringing an unauthorized alien to the U.S., as well as his conspiracy conviction.

Indian Cigarette Sale Taxation Case

In Nisqually Indian Tribe v. Gregoire, No. 09-35725, an action claiming that the State of Washington breached a contract with plaintiff Indian tribe by entering into an agreement with another tribe, governing taxation of cigarettes at Frank's Landing in Washington, the court affirmed summary judgment for defendants where 1) plaintiff had no private right of action to enforce the statutes governing the parcel of land at issue; and 2) plaintiff's agreement with Washington did not grant it the exclusive right to sell cigarettes at Frank's Landing.

In Kirk v. Carpeneti, No. 09-35860, a challenge to Alaska's merit selection system, brought by a group of individuals seeking to establish the principle that all participants in the judicial selection process must either be popularly elected, or be appointed by a popularly elected official, the court affirmed the dismissal of the action where there was no such constitutional requirement.