9th Circuit January 2011 News

Asylum Petition Granted

In Clairmont v. Sound Mental Health, No. 09-35856, a petition for review of the BIA's order affirming an Immigration Judge's denial of petitioner's claims for asylum and withholding of removal, the court granted the petition where petitioner's delay in filing her asylum application was due to the "extraordinary circumstance" of fraudulent deceit by an immigration consultant, and this circumstance directly related to her failure to file the application within the one-year deadline.

Civil Rights Action Regarding Traffic Stop

In Liberal v. Estrada, No. 08-17360, an action for violations of plaintiff's civil rights arising from a traffic stop and subsequent events, the court affirmed the district court's order denying summary judgment based on qualified immunity to defendants where 1) it was not a reasonable mistake for defendant-officer to believe that windows that are rolled down and that cannot be viewed at all are in fact rolled up and tinted; and 2) the traffic stop was unlawful because it did not rest on a reasonable suspicion that a violation of law had occurred.

Petition for Review of Removal Order Granted

In Li v. Holder, No. 06-73365, a petition for review of a Board of Immigration Appeals decision affirming an immigration judge's denial of petitioner's application for asylum, withholding of removal, and relief under the Convention Against Torture, the court granted the petition where 1) there was a lack of substantial evidence to base adverse credibility on the finding that petitioner was not a Christian; and 2) there was a lack of substantial evidence to base adverse credibility on the finding that petitioner was evasive or inconsistent.

Crack Conviction Affirmed

In US v. Wilkinson, No. 10-6024, the court affirmed defendant's conviction for possessing with intent to distribute five grams or more of a mixture containing cocaine base, where the stop at issue was proper because the "collective knowledge" doctrine--under which the legality of the detention of a suspect by an officer can be supported by information possessed by a fellow officer who requests the detention, even if the requesting officer does not communicate the information to the other officer--applies to traffic stops for misdemeanors as well as stops for felonies.

Crack Possession Conviction Affirmed

In US v. Polly, No. 08-6048, the court affirmed defendant's crack cocaine possession conviction where 1) the traffic stop at issue was objectively justifiable based on the traffic violations that the officer observed; 2) the district court correctly concluded that the search was justified by the vehicle exception to the warrant requirement; and 3) because defendant did not challenge the lawfulness of his appeal waiver itself, enforcing the waiver as to his claim that the district court improperly applied the obstruction of justice sentence enhancement did not result in a miscarriage of justice.

Habeas Petition in Aggravated Murder Case Denial Affirmed

In Miller v. Or. Bd. of Parole, No. 07-36086, an aggravated murder prosecution, the court affirmed the denial of petitioner's habeas petition seeking an early parole hearing where 1) the Oregon early parole statute created a liberty interest in early eligibility for parole; but 2) the Oregon Board of Parole did not violate petitioner's due process rights when it denied him that eligibility.

Action Regarding Damage to Interstate Carriage

In Mason & Dixon Intermodal, Inc. v. Lapmaster Int'l LLC, No. 09-17833, a diversity action regarding damage to goods in interstate carriage, the district court's order granting approval of the parties' good-faith settlement under California law is affirmed where 1) to the extent that the additional burden of a generally applicable state law did not appreciably affect a shipper's grounds for or measure of recovery against a carrier, it could not affect a carrier's calculus in setting rates, and therefore could not conflict with the Carmack Act's purpose; and 2) because plaintiff and third-party defendant were joint tortfeasors under California law, the district court did not err in applying Cal. Civ. Proc. Code section 877 and 877.6 to bar plaintiff from asserting claims for indemnity and contribution against third-party defendant after the district court granted the motion to dismiss the claims pursuant to a good faith settlement.

Professional Malpractice Action

In Parmalat Capital Fin. Ltd. v. Bank of Am. Corp., No. 09-4302, an action against an accounting firm for professional malpractice and fraud, which was removed from Illinois state court, the court affirmed in part the district court's dismissal of the action based on pending bankruptcy proceedings where 1) an 11 U.S.C. section 304 proceeding is a case for the purposes of subject matter jurisdiction under 28 U.S.C. section 1334(b); and 2) so long as the estate at issue in a section 304 proceeding, wherever located, may conceivably be affected by the state law actions, those state law actions are "related to" the section 304 case.  However, the court vacated in part where the district court needed to consider whether abstention was mandatory.

Denial of Petition for Review of Moral Turpitude-Based Removal

In Baraket v. Holder, No. 09-0739, a petition for review of the BIA's order pretermitting petitioner's application for cancellation of removal, the court denied the petition where petitioner committed acts between October 2001 and December 2001 that constituted a crime involving moral turpitude, and the BIA therefore properly pretermitted his application for cancellation of removal on the grounds that, within the meaning of 8 U.S.C. section 1229b(a)(2), he had not continuously resided in the U.S. for seven years after his lawful entry in May 1996.

Travel with Intent to Engage in Illicit Sexual Conduct Conviction Affirmed

In US v. Weingarten, No. 09-2043, the court reversed Defendant's conviction for travel with intent to engage in illicit sexual conduct where travel by a U.S. citizen between two foreign countries absent any territorial nexus to the U.S., did not constitute "travel[] in foreign commerce" within the meaning of 18 U.S.C. section 2423(b).

Denial of Motion to Intervene Reversed

In The Wilderness Society v. US Forest Serv., No. 09-35200, an appeal from the denial of a motion to intervene, the court reversed where, when construing motions to intervene of right under Fed. R. Civ. P. 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of National Environmental Policy Act (NEPA) actions, and to determine whether a putative intervenor demonstrates the "significantly protectable" interest necessary for intervention of right in a NEPA action, the operative inquiry should be, as in all cases, whether "the interest is protectable under some law," and whether "there is a relationship between the legally protected interest and the claims at issue."

Sex Trafficking Conviction Partially Affirmed

In US v. Doss, No. 07-50334, the court affirmed in part defendant's conviction and life sentence for sex trafficking of children, transportation of minors into prostitution, conspiracy to commit those offenses, and two counts of witness tampering where 1) the jury reasonably found that defendant's remarks were intended to encourage a witness to lie when she was to provide testimony; and 2) even if some of the government's comments were improper vouching, the government's unobjected-to comments did not rise to the level of plain error resulting in a miscarriage of justice.  However, the court vacated in part where 1) the evidence at trial established only that defendant appealed to his wife to exercise her marital privilege not to testify against him; and 2) the district court needed to conduct a new sentencing proceeding to determine, applying a beyond-a-reasonable-doubt standard, whether defendant's prior sex conviction indeed involved a minor under the federal definition.

Dismissal of Appeal From Interlocutory Tax Order

In Comm'r. of Int'l. Rev. v. JT USA, LP, No. 09-70219, the IRS's appeal from a tax court's interlocutory order in a partnership tax proceeding, the court dismissed the appeal where the court lacked appellate jurisdiction under either the practical finality doctrine or the collateral order doctrine.

Action Regarding Police Cruiser Accident

In Howell v. Boyle, No. 09-36153, an action for injuries plaintiff sustained when defendant, a police officer, struck her with his police cruiser as she walked across a highway, the court certified the following questions to the Supreme Court of Oregon: 1) is plaintiff's negligence action constitutionally protected under the Oregon constitution's remedy clause, Or. Const. art. I, section 10, irrespective of the jury's finding of comparative negligence? To what extent, if any, do the common law defenses to contributory negligence of last clear chance, the emergency doctrine, and gross negligence effect this determination? 2) If plaintiff's action is protected, is $200,000 an unconstitutional emasculated remedy despite the jury's finding of comparative negligence? To what extent, if any, do the common law defenses to contributory negligence of last clear chance, the emergency doctrine, and gross negligence effect this determination?

Bank Robbery Conviction Affirmed

In US v. Lindsey, No. 09-50459, the court affirmed defendant's bank robbery conviction and sentence, holding that 1) defendant's Batson rights were not violated because he was not denied due process or tried before a biased jury; 2) a good faith, erroneous denial of a peremptory challenge does not require automatic reversal; and 3) the evidence was sufficient for a rational jury to conclude that defendant conspired to rob the bank.

Attorney's Fees Order Affirmed

In Perez v. Cate, No. 09-17185, prison officials' order from an attorney's fees order in a prison reform litigation, the court affirmed where, because the Supreme Court had determined that, for purposes of 42 U.S.C. section 1988, the phrase "reasonable attorney's fee" encompassed separately billed paralegal services, paralegal fees were subject to the same cap under the Prison Litigation Reform Act as attorney's fees.

Murder and Firearm Convictions Affirmed

In US v. Begay, No. 07-10487, the court affirmed defendant's first-degree murder and using a firearm during a crime of violence in violation where there was sufficient evidence to establish premeditation because: 1) the jury could reasonably infer that defendant got a gun from under the back seat and then returned to shoot the victims; 2) the jury could reasonably infer that defendant had enough time to become fully conscious of his intent to kill and to consider the killing; and 3) defendant failed to meet his burden of production with respect to the issue of whether he was provoked to kill.

Action for Police Entering Home Without Warrant

In Huff v. City of Burbank, No. 09-55239, an action against four officers who entered plaintiffs' home without a warrant, the court affirmed in part summary judgment for defendant where two officers entered the residence because they reasonably believed they had been given consent.  However, the court reversed in part where any belief that the officers or other family members were in serious, imminent harm would have been objectively unreasonable.

Action to Recover Gambling Debt

In Las Vegas Sands, LLC v. Nehme, No. 09-16740, an action by a casino to recover a gambling debt, the court reversed summary judgment for plaintiff where the district court abused its discretion in excluding from evidence 1) a letter from one of defendant's attorneys that predated his unpaid marker by seven months and that requested, on defendant's behalf, that plaintiff cancel and not renew, under any circumstances, his credit line; and 2) a U.S. Postal Service return receipt, dated three days after the letter, that recited someone at plaintiff may have received the attorney's letter before defendant signed the marker.

Sexual Orientation Discrimination Action

In Dawson v. Entek Int'l, No. 09-35844, an action for sexual orientation discrimination, the court reversed summary judgment for defendant where plaintiff produced circumstantial evidence of retaliatory discharge and sexual orientation hostile work environment, such that resolution of this action by summary judgment was error.

Dismissal of Habeas Petition Affirmed

In Lakey v. Hickman, No. 09-15940, a murder prosecution, the court affirmed the dismissal of petitioner's habeas petition where: 1) statutory tolling is unavailable for the 267 days at issue here because petitioner's final state habeas petition was deemed untimely under California law; and 2) even giving petitioner the benefit of equitable tolling for the time period prior to the court's decision in Pace, petitioner's subsequent 141-day delay rendered his federal petition untimely by at least 128 days.

Challenge to Cross-Gender Strip Search

In Byrd v. Maricopa Sheriff's Dept., No. 07-16640, a civil rights action by a pretrial detainee claiming that he was subjected to a cross-gender strip search of his genital area, the court affirmed in part judgment for defendant where the complaint's allegations failed to state an equal protection claim because they asserted only allegedly harmful treatment and mentioned nothing about disparate treatment, much less about the specific jail policy or gender classification in general.  However, the court reversed in part where the scope of the intrusion in this case far exceeded searches the court had previously sanctioned and weighed in favor of a finding of unreasonableness.

Felon in Possession Appeal Dismissed

In US v. Harris, No. 09-50113, the court dismissed defendant's appeal from his sentence for being a felon in possession of a firearm and ammunition where defendant validly waived his right to challenge a sentence within a Guideline range, even if his sentence included the "crime of violence" enhancement.

Challenge to Forcible DNA Testing

In Hamilton v. Brown, No. 09-15236, an action claiming that California state prison inmates could not constitutionally be required to provide blood samples for DNA identification under California's DNA and Forensic Identification Database and Data Bank Act, the court affirmed the dismissal of the complaint where the Fourth Amendment did not preclude the collection of blood samples from prison inmates for DNA identification.

Appeal by Liquidators of Eurofed Bank

In US v. Liquidators of Euro. Fed'l. Credit Bank, No. 09-10116, an appeal by several persons appointed as "Liquidators" of Eurofed Bank by an Antiguan court to assist in the collection and distribution of Eurofed's assets to its rightful, law-abiding owners, from a forfeiture order in favor of the U.S. government, the court reversed where 1) judicial estoppel barred the government from arguing that Liquidators could not raise their legal claims challenging forfeitability; and 2) a final judgment against the government in a civil forfeiture proceeding acted as res judicata against a criminal forfeiture proceeding with respect to the same property when the claims in the latter proceeding arose from the same transactional nucleus of facts.

Petition for Review of Denial of Cancellation of Removal

In Rosas-Castaneda v. Holder, No. 10-70087, a petition for review of the BIA's denial of petitioner's application for cancellation of removal, the court granted the petition where both before and after the REAL ID Act, including at the time Sandoval-Lua was decided, the burden of proof was, is, and remains on the alien, and thus in this particular respect the REAL ID Act merely codified existing law.

ADA Action by Blind Bar Exam Taker

In Enyart v. Nat'l. Conf. of Bar Examiners, Inc., No. 10-15286, an action by a legally blind law school graduate under the Americans with Disabilities Act, seeking to take the Multistate Professional Responsibility Exam and the Multistate Bar Exam using a computer equipped with assistive technology software known as JAWS and ZoomText, the court affirmed a preliminary injunction for plaintiff where 1) the district court did not abuse its discretion in holding that plaintiff demonstrated a likelihood of success on the merits; and 2) plaintiff demonstrated irreparable harm in the form of the loss of opportunity to pursue her chosen profession.

Establishment Clause Challenge to War Memorial

In Trunk v. City of San Diego, No. 08-56415, an Establishment Clause challenge to a cross on a war memorial, the court reversed summary judgment for defendants where the district court erred in declaring the memorial to be primarily non-sectarian, because a few scattered memorial services before the 1990s did not establish a historical war memorial landmark such as those found in Arlington Cemetery, Gettysburg, and the Vietnam Veterans Memorial in Washington, D.C.

Action Based on Denial of Insurance Benefits

In Fier v. Unum Life Ins. Co. of Am., No. 09-17520, an action based on the denial of benefits to plaintiff under two insurance policies that he purchased from defendant life insurer, the court affirmed judgment for defendant where 1) the policy unambiguously served to terminate "disability benefits" at the time an insured person earned greater than eighty percent of his pre-disability earnings; and 2) the terms "dismemberment by severance" were unambiguous and required "actual, physical separation."

First Sale Doctrine Issue in Copyright Matter

In UMG Recordings, Inc. v. Augusto, No. 08-55998, an action for copyright infringement in violation of section 501 of the Copyright Act, which entitled copyright owners to institute an action for infringement of the exclusive right to distribute copies of the copyrighted work (specially produced phonorecords), the court affirmed summary judgment for defendants where the mailing at issue effected a sale of the promotional music discs to the recipients for purposes of the first sale doctrine.

Excessive Force Action

In Hooper v. Cty. of San Diego, No. 09-55954, an action alleging that defendant-officers used excessive force, the court reversed summary judgment for defendant where success in plaintiff's section 1983 claim that excessive force was used during her arrest would not necessarily imply or demonstrate the invalidity of her conviction under Cal. Penal Code section 148(a)(1).

Marijuana Conspiracy Convictions Affirmed

In US v. Montes, No. 08-10539, the court affirmed defendants' marijuana conspiracy convictions where the district court could adequately make its determination without the benefit of an evidentiary hearing regarding whether an article regarding federal marijuana policy influenced the outcome of the trial.

Denial of Proposition 8 Intervention Motion

In Perry v. Schwarzenegger, No. 10-16751, an appeal by the County of Imperial, its Board of Supervisors, and a Deputy Clerk for the County from the denial of their motion to intervene in the case concerning the constitutionality of California's Proposition 8, the court dismissed the appeal where none of the Imperial County movants demonstrated a "significant protectable interest" at stake in this action.

Defective Construction Action

In Albano v. Shea Homes Ltd. Pshp., No. 09-15808, an action asserting defective construction claims against a developer, the court certified the following questions to the Arizona Supreme Court, 1) does the filing of a motion for class certification in an Arizona court toll the statute of limitations for individuals, who are included within the class, to file individual causes of action involving the same defendants and the same subject matter?; 2) if so, does this class-action tolling doctrine apply to statutes of repose, and more specifically, to the statute of repose for construction defects set forth in Arizona Revised Statute section 12-552?; 3) if the doctrine applies to statutes of repose, and specifically Arizona Revised Statute section 12-552, may a court weigh the equities of the case in determining whether, and to what extent, an action is tolled?

Appeal from Tax Fraud Sentence Dismissed

In US v. Chaudhry, No. 09-10381, the government's appeal from the district court's decision not to impose a provisional sentence for defendant's tax fraud, the court dismissed the appeal where  the court lacked appellate jurisdiction to review a district court's decision not to impose a provisional sentence until the defendant was competent to be sentenced.

Illegal Reentry Sentence Affirmed

In US v. Contreras-Hernandez, No. 09-50009, the court affirmed defendant's sentence for being an alien found in the United States after a previous deportation, solicitation of murder was an "aggravated felony" for purposes of 8 U.S.C. section 1236(b)(2) and a "crime of violence" for purposes of sentencing guideline 2L1.2(b)(1)(A)(ii).

Firearm Possession Conviction Affirmed

In US v. Anaya-Acosta, No. 09-50610, the court affirmed defendant's conviction for being an illegal alien in possession of a firearm and ammunition where the issuance of a departure control order did not modify an alien's immigration status and was not equivalent to being paroled into the U.S.

The Ninth Circuit Court of Appeals ruled last Thursday that the Electronic Frontier Foundation (EFF) can pursue a Fourth Amendment claim against the federal government for collaborating with telecommunications companies in a warrantless wiretapping program.

Retired-District Judge Vaughn Walker originally dismissed EFF’s claim as a “general grievance,” rather than an actionable claim, several years ago, reports Wired.

Partial Grant of Petition for Review of BIA Decision

In Rizk v. Holder, No. 06-74213, a petition for review of the immigration judge's (IJ) and Board of Immigration Appeals' (BIA) rejection of petitioner's asylum claim on the basis of an adverse credibility determination, the court granted the petition in part where the BIA's decision did not resolve petitioner's wife's appeal.  However, the court denied the petition in part where the court could not say that "any reasonable adjudicator would be compelled to conclude" that petitioner was credible.