Circuit Watcher

U.S. v. Carty, 9th Cir. Mar. 24, 2008

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05-10200, 05-30120 U.S. v. Carty
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder, Stephen Reinhardt, Pamela Ann Rymer, Andrew J. Kleinfeld, Sidney R. Thomas, Barry G. Silverman, M. Margaret McKeown, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.
RYMER, Circuit Judge: We ordered rehearing en banc in these cases to clarify our sentencing law in the wake of United States v. Booker, 543 U.S. 220 (2005).¹. Carty and Zavala are consolidated for purposes of rehearing en banc.)) Events overtook us, however, when the United States Supreme Court granted certiorari in Claiborne v. United States and Rita v. United States. As the issues were similar to those in our appeals, we deferred submission pending the Court’s decisions.
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The Court rendered its opinion in Rita on June 21, 2007, holding that a court of appeals may presume that the sentence is reasonable when a district judge’s discretionary decision accords with the sentence the United States Sentencing Commission deems appropriate in the mine-run of cases. 551 U.S. ___, 127 S. Ct. 2456, 2465 (2007). Mario Claiborne’s case was mooted by his death, Claiborne v. United States, 551 U.S. ___, 127 S. Ct. 2245 (2007) (per curiam), so the Court
granted certiorari in Gall v. United States to address the question whether a sentence that amounts to a substantial variance from the Guidelines needs to be justified by extraordinary circumstances. 127 S. Ct. 2933 (2007). It held on December 10, 2007 that appellate courts must review all sentences, within and without the Guidelines range, under a deferential abuse-of-discretion standard. Gall, ___ U.S. ___, 128 S. Ct. 586, 591 (2007). On the same day, the Court held that, under Booker, the cocaine Guidelines, like all others, are advisory only and that the Guidelines, formerly mandatory, serve as one factor among several that district courts must consider in determining an appropriate sentence. Kimbrough v. United States, ___ U.S. ___, 128 S. Ct. 558, 564 (2007).
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Core principles having now been resolved by the Supreme Court, we are left with one open question presented by Carty and Zavala: whether to adopt an appellate “presumption” of reasonableness for sentences imposed within the Guidelines range. We decline to do so, although we recognize that a correctly calculated Guidelines sentence will normally not be found unreasonable on appeal. Applying Rita, Gall and Kimbrough, we conclude that there was no significant procedural error in either Carty or Zavala, and that the sentences imposed were not unreasonable. Accordingly, we affirm in each case.²
… U.S. v. Carty.

United States v. Carty, 462 F.3d 1066 (9th Cir. 2006) (ordering rehearing en banc in United States v. Zavala, 443 F.3d 1165 (9th Cir. 2006), and United States v. Carty, 453 F.3d 1214 (9th Cir. 2006 [↩]
Carty also challenges his conviction, which we affirm for reasons stated in Parts I and II of the panel opinion, and the wording of the verdict form, as to which we see no abuse of discretion and affirm for reasons stated in Part III. Carty, 453 F.3d at 1217-18, vacated, 462 F.3d 1066 (9th Cir. 2006). [↩]

Huang v. Mukasey, 9th Cir. Mar. 24, 2008

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04-73309 Huang v. Mukasey
PER CURIAM: Meihua Huang and his wife, Mingyan Qiu, natives and citizens of China, petition for review of a Board of Immigration Appeals (“BIA”) order. The order dismissed their appeal from an Immigration Judge’s (“IJ”) decision denying their application for asylum, withholding of removal, and relief under the Convention Against Torture. We grant the petition for review in part, dismiss in part, and remand for further proceedings consistent with this opinion. … Huang v. Mukasey.

Pierce v. County of Orange, 9th Cir. Mar. 24, 2008

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05-55829 Pierce v. County of Orange
Before: Betty B. Fletcher, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges.
B. FLETCHER, Circuit Judge: In 2001, plaintiffs-appellants Fred Pierce, Timothy Lee Conn, Fermin Valenzuela, and Laurie D. Ellerston—pretrial detainees in Orange County’s jail facilities—initiated Pierce v. County of Orange, No. 05-55829 (D. Ct. No. 01-981), a class action suit against the County of Orange and Michael S. Carona, the county’s sheriff and agent.¹ Seeking relief under 42 U.S.C. § 1983 for violations of their Fourteenth Amendment due process rights, plaintiffs contend, in essence, that the Orange County jails are operated in an unconstitutional manner, depriving them of opportunities for exercise, unduly limiting their access to common areas, and impermissibly restricting their ability to practice religion. Plaintiffs further assert that they have been deprived of a number of the federal rights previously recognized in Stewart v. Gates, 450 F. Supp. 583 (C.D. Cal. 1978) (“Stewart”)—a decision and resulting injunctive orders (“the Stewart orders” or “the Stewart injunction”) that established standards for pretrial detention in Orange County jails. The plaintiffs seek relief for the same injuries under the California Constitution, as well as Title 15 of the California Code of Regulations (which sets minimum standards for county jails) in violation of § 815.6 of the California Government Code, and breach of § 54.1 of the California Civil Code. Finally, the plaintiffs in Pierce assert an equal protection claim under § 1983 based on the denial of equal treatment to disabled detainees, and they advance a separate claim for violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., alleging noncompliant jail facilities and denial of access to programs and services available to non-disabled detainees. On appeal, the plaintiffs also challenge a number of the district court’s pretrial procedural and evidentiary rulings.
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After a six day trial, the district court found that the plaintiffs had failed to establish any constitutional injury giving rise to relief under § 1983. The district court went on to find that the fourteen Stewart orders at issue were no longer necessary, and ordered them all terminated pursuant to the Prison Litigation Reform Act (“PLRA”),².)) 18 U.S.C. § 3626(b)(3). The district court likewise rejected plaintiffs’ equal protection and ADA claims, finding that although the County was not in “full ADA compliance, [ ] it can reasonably be expected to move toward full compliance.”
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Having conducted a thorough review of the extensive pretrial and trial record, we affirm in part and reverse in part. We affirm the district court’s pre-trial and evidentiary rulings challenged by the plaintiffs; the district court did not abuse its discretion in its pre-trial management of the case or its decisions related to the admission of evidence. On the merits, we affirm the district court’s termination of nearly all of the fourteen Stewart orders at issue. Two of those orders, however, which secure inmates housed in administrative segregation some minimal access to religious services and exercise, may not be terminated. The district court clearly erred in its finding that these two orders are unnecessary to correct a current and ongoing violation of a Federal right. We likewise conclude that, because of physical barriers that deny disabled inmates access to certain prison facilities (bathrooms, showers, exercise and other common areas), and because of disparate programs and services offered to disabled versus nondisabled inmates, the County is in violation of the ADA. … Pierce v. County of Orange.

Plaintiffs’ claims against Carona were dismissed, leaving the County as the sole defendant-appellee involved in this consolidated appeal. In a separate order, we grant Carona’s motion to dismiss the plaintiffs’ appeal as untimely with respect to him. [↩]
Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321, 1321-66 to 1321-77 (1996) (codified at 11 U.S.C. § 523 (2000); 18 U.S.C. §§ 3624, 3626 (2000); 28 U.S.C. §§ 1346, 1915, 1915A, 1932 (2000); 42 U.S.C. §§ 1997a-1997h (2000 [↩]

Whaley v. Belleque, 9th Cir. Mar. 24, 2008

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06-35759 Whaley v. Belleque
Before: Stephen Reinhardt, Circuit Judge; Cynthia Holcomb Hall, Senior Circuit Judge; Milan D. Smith, Jr., Circuit Judge.
REINHARDT, Circuit Judge: Leslie Whaley has shuttled in and out of habeas corpus and parole proceedings since 1993. In one of the most recent iterations of this procedure, the state represented in an Oregon appellate court proceeding that his constitutional challenge to his parole conditions was moot under Oregon law because he had been removed from parole and reincarcerated. Although the parole revocation was based on the very conditions that he contends are unconstitutional, Whaley did not challenge that assertion, and the Oregon court, accordingly, dismissed the appeal. The state now argues, citing Oregon case law, that Whaley’s constitutional claims were not moot. Therefore, it asserts, he was obligated to appeal the state court’s dismissal to the Oregon Supreme Court, and his failure to do so constitutes a procedural default. We hold that under Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990), the state is judicially estopped from making this argument in federal court, and remand this matter to the district court to consider the merits of Whaley’s constitutional claims. … Whaley v. Belleque.

Canyon County v. Syngenta Seeds, Inc., 9th Cir. Mar. 21, 2008

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06-35112 Canyon County v. Syngenta Seeds, Inc.
Before: William C. Canby, Jr., A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.
TASHIMA, Circuit Judge: This case involves an Idaho county’s attempt to recover damages under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, for additional monies it claims to have expended on public health care and law enforcement services for undocumented immigrants.
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Plaintiff-appellant Canyon County commenced this action against four companies and one individual under RICO’s civil enforcement provision, 18 U.S.C. § 1964(c), alleging that defendants engaged in an illegal scheme of hiring and/or harboring undocumented immigrant workers within the County, and that their actions forced the County to pay “millions of dollars for health care services and criminal justice services for the illegal immigrants.”
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The district court concluded that the County did not have statutory standing under § 1964(c) because the County did not meet the threshold requirement that a civil plaintiff be “injured in his business or property” by reason of the alleged RICO violation. Consequently, the court dismissed the County’s complaint.
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We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court. We agree with the district court that the County has failed to allege that it was injured in its business or property. We also conclude that, with respect to almost all of the defendants’ alleged RICO violations, the County cannot show that its claimed injuries were proximately caused by defendants’ conduct. For both of these reasons, the County lacks statutory standing to pursue its federal RICO claims. … Canyon County v. Syngenta Seeds, Inc.

U.S. v. Gianelli, 9th Cir. Mar. 20, 2008

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07-10233 U.S. v. Gianelli
Before: William C. Canby, Jr., David R. Thompson, and Milan D. Smith, Jr., Circuit Judges.
THOMPSON, Senior Circuit Judge: In May of 1987, Ronald J. Gianelli (“Gianelli”) pleaded guilty to one count of mail fraud, 18 U.S.C. § 1341 (“mail fraud”), in the Northern District of California. As part of his sentence he was ordered to pay restitution to the federal government in the amount of $125,000. Gianelli did not appeal that judgment.
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Gianelli now appeals a May 2007 district court order reinstating an October 17, 2001 Order Imposing Payment Plan aimed at collecting the remaining amount of restitution owed. Gianelli contends that the government is barred from enforcing the restitution judgment because ten years from the date of that judgment passed on May 13, 1997, and California state law precludes enforcement of a judgment after that period of time. He further argues that the original $125,000 restitution amount was improper because it was not predicated upon the government’s actual loss, as required by Hughey v. United States, 495 U.S. 411 (1990).
We have jurisdiction under 28 U.S.C. § 1291. We conclude that Gianelli waived the right to appeal the amount of the restitution order by failing to file a direct appeal, and we affirm the district court’s May 1, 2007 order reinstating the October 17, 2001 payment plan. … U.S. v. Gianelli.

New Hampshire Ins. Co. v. C’Est Moi, Inc., 9th Cir. Mar. 20, 2008

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06-55031 New Hampshire Ins. Co. v. C’Est Moi, Inc.
Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson, Circuit Judge, and Miriam Goldman Cedarbaum,¹ Senior District Judge.
KOZINSKI, Chief Judge: We consider the doctrine that’s on everyone’s lips: uberrimae fidei. … Uberrimae fidei is a “longstanding federal maritime doctrine” that “applies to marine insurance contracts.” … The parties didn’t attempt to contract out of uberrimae fidei, and C’Est Moi misrepresented material facts in the insurance policy application. NHIC was therefore entitled to rescind the policy, so the district court correctly granted NHIC summary judgment. New Hampshire Ins. Co. v. C’Est Moi, Inc.

The Honorable Miriam Goldman Cedarbaum, Senior United States District Judge for the Southern District of New York, sitting by designation. [↩]

Harrison v. Ollison, 9th Cir. Mar. 20, 2008

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06-55470 Harrison v. Ollison
Before: J. Clifford Wallace, Thomas G. Nelson, and Sandra S. Ikuta, Circuit Judges.
IKUTA, Circuit Judge: A federal prisoner challenging the legality of a sentence must generally do so by a motion pursuant to 28 U.S.C. § 2255. However, when a motion under § 2255 is “inadequate or ineffective to test the legality” of a prisoner’s detention, see id., a prisoner may bring a habeas petition under 28 U.S.C. § 2241. This appeal requires us to determine whether the petitioner, Dave Harrison, was entitled to bring his habeas petition under § 2241. Before reaching that question, we must determine whether Harrison needs a certificate of appealability, see 28 U.S.C. § 2253(c), before he can appeal the district court’s dismissal of his § 2241 petition for lack of jurisdiction. … we affirm the decision of the district court dismissing Harrison’s petition for lack of jurisdiction. Harrison v. Ollison.

U.S. v. Davenport, 9th Cir. Mar. 20, 2008

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06-30596 U.S. v. Davenport
Before: William C. Canby, Jr., Susan P. Graber, and Ronald M. Gould, Circuit Judges.
GOULD, Circuit Judge: Winston Davenport appeals the district court’s denial of Davenport’s motion to withdraw his guilty plea and the sentence that the district court imposed on him for one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). After the district court denied Davenport’s motion to withdraw his guilty plea, Davenport received a 78-month sentence of incarceration for each of the two counts, to be served concurrently, as well as concurrent life terms of supervised release for each count.
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In this opinion we address whether Davenport’s conviction for both 18 U.S.C. § 2252A(a)(2), or receipt of child pornography, and 18 U.S.C. § 2252A(a)(5)(B), or possession of child pornography, offends double jeopardy when the conduct underlying both offenses is the same.¹ We have jurisdiction pursuant to 28 U.S.C. § 1291, and we determine that Davenport’s simultaneous conviction for both receipt and possession of child pornography violates the Fifth Amendment’s prohibition on double jeopardy. We reverse and remand to the district court for further proceedings consistent with this opinion. … U.S. v. Davenport.

Davenport’s other claims relating to the denial of his motion to withdraw his guilty plea and to his sentence are the subject of a separate, unpublished memorandum disposition filed contemporaneously with this opinion. [↩]

U.S. v. Soto, 9th Cir. Mar. 19, 2008

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07-30011 U.S. v. Soto
Before: William C. Canby, Jr., Susan P. Graber, and Ronald M. Gould, Circuit Judges.
The petition for panel rehearing is GRANTED. The memorandum disposition filed on November 28, 2007, is withdrawn and the Clerk is ordered to file the attached opinion in its place. New petitions for rehearing and petitions for rehearing en banc may be filed.
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PER CURIAM: Defendant Jose Martin Soto appeals his conviction for possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a). He argues that the district court violated Carter v. Kentucky, 450 U.S. 288 (1981), and James v. Kentucky, 466 U.S. 341 (1984), by failing to give his requested instruction that the jury make no adverse inference from his constitutionally protected choice not to testify. We hold that any error was harmless beyond a reasonable doubt. We also reject Defendant’s other challenge to the jury instructions. We therefore affirm. … U.S. v. Soto.

U.S. v. Davis, 9th Cir. Mar. 19, 2008

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06-10527 U.S. v. Davis
Before: Stephen Reinhardt, John T. Noonan, and Raymond C. Fisher, Circuit Judges.
PER CURIAM: We issued a limited remand in this case with instructions to the district court to take two specific actions: 1) strike the conviction and the sentence as to count four; and 2) determine, in accordance with United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), whether the district court would have imposed the same sentence had it been aware that the Sentencing Guidelines were advisory rather than mandatory. See United States v. Davis, 138 F. App’x. 914, 915 (9th Cir. 2005).
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On remand, the district court struck the conviction and the sentence as to count four. The court also declared that it would not have imposed a different sentence on Davis had it known that the Sentencing Guidelines were advisory. The district court then went on, however, to reconsider Davis’s sentence as to count three, increasing it substantially.
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Where this court expressly limits the scope of remand, the district court is without authority to reexamine other sentencing issues on remand. United States v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994). In this case, the district court exceeded its authority when it increased Davis’s sentence on count three. We therefore vacate Davis’s sentence and instruct the district court to reimpose his original sentence, except that no sentence shall be imposed on count four. No adjustment shall be made with respect to any other count.¹
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VACATED AND REMANDED for the sole purpose of resentencing as provided in this opinion. U.S. v. Davis.

Because the district court lacked authority to resentence Davis except in accordance with the instructions contained in the limited mandate, we do not consider Davis’s other challenges to the sentence. [↩]

Marceau v. Blackfeet Hous. Auth., 9th Cir. Mar. 19, 2008

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04-35210 Marceau v. Blackfeet Hous. Auth.
Before: Harry Pregerson, Susan P. Graber, and Ronald M. Gould, Circuit Judges.
The opinion filed on July 21, 2006, slip op. 8071, and appearing at 455 F.3d 974 (9th Cir. 2006), is replaced in part and adopted in part by the amended opinion filed concurrently with this order. Further petitions for rehearing and petitions for rehearing en banc may be filed.
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GRABER, Circuit Judge: Plaintiffs are members of the Blackfeet Indian Tribe who bought or leased houses built under the auspices of the United States Department of Housing and Urban Development (“HUD”). The houses had wooden foundations. The wood had been pressure-treated with toxic chemicals. Plaintiffs allege that the use of wooden foundations caused their houses to deteriorate and that the chemicals in the wood have caused, and continue to cause, health problems for those who live in the houses. On behalf of a class of persons similarly situated, Plaintiffs sued HUD, the Secretary of HUD, the Blackfeet Tribal Housing Authority and its board members (“the Housing Authority”) under several theories. The district court dismissed the entire complaint under Federal Rule of Civil Procedure 12(b)(6).
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On rehearing, we hold: (1) the Housing Authority forfeited its claim to tribal exhaustion and, in any event, waived its tribal immunity; (2) the government did not undertake a trust responsibility toward Plaintiffs to construct houses or maintain or repair houses; and (3) Plaintiffs alleged sufficient facts to state claims against HUD under the Administrative Procedure Act (“APA”). We readopt our earlier opinion¹ with respect to Plaintiff’s breach of contract claims. Accordingly, we affirm the district court’s dismissal of the case except as to Plaintiffs’ claims against the Housing Authority and its board members and Plaintiffs’ claims under the APA. As to those claims, we reverse and remand for further proceedings. …
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PREGERSON, Circuit Judge, dissenting: I concur in the majority’s rulings on tribal immunity and the Administrative Procedure Act. I dissent with regard to the majority’s analysis of federal trust responsibility, and write separately on that issue. … Marceau v. Blackfeet Hous. Auth.

Marceau v. Blackfeet Hous. Auth., 455 F.3d 974 (9th Cir. 2006). [↩]

Miller v. Thane Int’l Inc., 9th Cir. Mar. 18, 2008

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05-56043 Miller v. Thane Int’l Inc.
Before: Barry G. Silverman, Kim McLane Wardlaw, and Jay S. Bybee, Circuit Judges.
The opinion filed November 26, 2007 and published at 508 F.3d 910 is superceded by the amended opinion below. … The Petition for Rehearing and Suggestion of Rehearing En Banc are DENIED. No further petitions for rehearing may be filed.
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WARDLAW, Circuit Judge: Class plaintiffs appeal the district court’s judgment, following a bench trial, in favor of Thane International, Inc. and its officers and directors (collectively, “Thane International”) on plaintiffs’ action brought under Section 12(a)(2) of the Securities Act of 1933 (the “Act”), 15 U.S.C. § 77l(a)(2) and under Section 15 of the Act, 15 U.S.C. § 77o, alleging control person liability against individual defendants. We must decide whether Thane International misrepresented to investors that it would list its shares on the NASDAQ National Market System (“NASDAQ”), and if so, whether those misrepresentations were material. The district court answered “no” to both questions. We have jurisdiction under 28 U.S.C. § 1291. We hold that the district court clearly erred when it found that Thane International did not misrepresent that it would list the merged company’s shares on the NASDAQ. We also hold that these misrepresentations were material. We therefore reverse and remand for further proceedings. … Miller v. Thane Int’l Inc.

James River Ins. Co. v. Hebert Schenk, P.C., 9th Cir. Mar. 18, 2008

admin — Wed, 19 Mar 2008 04:50:16 +0000

06-15622 James River Ins. Co. v. Hebert Schenk, P.C.
Before: William C. Canby, Jr., David R. Thompson, and Milan D. Smith, Jr., Circuit Judges.
MILAN D. SMITH, JR., Circuit Judge: In this appeal we decide whether the district court erred in granting summary judgment to a professional liability insurer on a claim seeking a declaration of no coverage, and on counterclaims for breach of contract and bad faith under Arizona law. The insurer argued that it could permissibly refuse to provide for its insured’s defense against a legal malpractice lawsuit because the insured failed to mention the possibility of the lawsuit in the insurance application. The district court agreed and held that Arizona Revised Statutes § 20-1109 permits a denial of coverage because the insured’s omission constitutes legal fraud. The court rejected the counterclaims because the insurer provided for the malpractice defense. We reverse and remand for trial. … James River Ins. Co. v. Hebert Schenk, P.C.

U.S. v. Approximately 64,695 Pounds of Shark Fins, 9th Cir. Mar. 17, 2008

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05-56274 U.S. v. Approximately 64,695 Pounds of Shark Fins
Before: Stephen Reinhardt, Raymond C. Fisher, and Richard R. Clifton, Circuit Judges.
REINHARDT, Circuit Judge: This case arises from a civil complaint brought by the U.S. Government for the forfeiture of 64,695 pounds of shark fins found on board the King Diamond II (“KD II”), a United States vessel. Claimant-Appellant Tai Loong Hong Marine Products, Ltd. (“TLH”) owned the shark fins. TLH, a Hong Kong company, had chartered the KD II and ordered it to meet foreign fishing vessels on the high seas, purchase shark fins from those vessels, transport the fins to Guatemala, and deliver them to TLH. The Government seized the fins pursuant to the Shark Finning Prohibition Act (“SFPA”), which makes it unlawful for any person aboard a U.S. fishing vessel to possess shark fins obtained through prohibited “shark finning.” 16 U.S.C. § 1857(1)(P)(ii). TLH does not contest that, on its behalf, the KD II purchased the fins at sea from foreign vessels that engaged in shark finning. Instead, it argues that the KD II is not a fishing vessel under 16 U.S.C. § 1802(18)(B), and for that reason the forfeiture of the shark fins it possessed would violate due process. We agree that neither the statute nor the regulations provided fair notice to TLH that it would be considered a fishing vessel under § 1802(18)(B). We therefore reverse the judgment of forfeiture and remand for further proceedings consistent with this opinion. … U.S. v. Approximately 64,695 Pounds of Shark Fins.

U.S. v. Holland, 9th Cir. Mar. 17, 2008

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06-30258 U.S. v. Holland
Before: David R. Thompson, Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges.
Order: The Opinion filed September 4, 2007, slip op. 11411, and appearing at 501 F.3d 1120 (9th Cir. 2007), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.
BYBEE, Circuit Judge: Russell Laroy Holland appeals his conviction and sentence for mailing threatening communications and threatening the President of the United States. He maintains that the district court judge who imposed the sentence should have recused himself after Holland obtained the judge’s home telephone number and left at least one threatening message prior to his sentencing. We hold that the district judge reasonably construed Holland’s threatening phone message as an attempt to manipulate the court system which did not warrant his sua sponte recusal. Accordingly, we affirm the judgment. … U.S. v. Holland.

U.S. v. Bruno, 9th Cir. Mar. 13, 2008

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06-15225 U.S. v. Bruno
Before: Jerome Farris, Robert R. Beezer, and Sidney R. Thomas, Circuit Judges.
BEEZER, Circuit Judge: Roy Bruno (“Bruno”) and Miguel Camacho (“Camacho”) (collectively, “Claimants”) appeal the magistrate judge’s order granting summary judgment in favor of the government in its civil forfeiture action against $493,850 in U.S. currency and one 1993 Ford F-350 truck. We affirm. … U.S. v. Bruno.

Porter et al v. Jones et al, 9th Cir. Mar. 13, 2008

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06-55517 Porter et al v. Jones et al
Before: Raymond C. Fisher and Richard R. Clifton, Circuit Judges, and Ricardo S. Martinez, District Judge.¹
ORDER: Judges Fisher and Clifton voted to deny the petition for rehearing en banc and Judge Martinez so recommends. … The petition for rehearing en banc, filed August 27, 2007, is denied. …
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KLEINFELD, Circuit Judge, with whom Circuit Judges O’SCANNLAIN and BEA join, dissenting from denial of rehearing en banc:
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I respectfully dissent.
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This case is about whether the First Amendment protects from prosecution people who buy votes. Instead of cash, or beer and cigars, the buyers offered promises. The special twist, a very important one, was that the purpose of the scheme was to effectuate what amounted to people voting in states other than their own. The not very special twist is that instead of standing around the polling place to buy votes, or chartering buses to bring voters to other states, the scheme used internet sites to enable people to exchange promises. The deals were in the form, “if you promise to vote for my preferred candidate in your state, I will promise to vote for your preferred candidate in my state.” …Porter et al v. Jones et al.

The Honorable Ricardo S. Martinez, United States District Judge for the Western District of Washington, sitting by designation. [↩]

Alvarez v. Hill, 9th Cir. Mar. 13, 2008

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06-35068 Alvarez v. Hill
Before: Raymond C. Fisher, Ronald M. Gould and Sandra S. Ikuta, Circuit Judges.
FISHER, Circuit Judge: We revisit in this appeal the longstanding principle that federal complaints plead claims, not causes of action or statutes or legal theories. Blackie Alvarez (“Alvarez”) brought suit alleging that prison officials substantially burdened his religious exercise by denying him various accommodations. Those officials (“appellees”) now insist that Alvarez’s failure to specifically plead in his complaint a violation of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), see 42 U.S.C. § 2000cc-1, bars his argument that the district court erred in not analyzing his religious exercise claims under RLUIPA, which establishes a more protective standard than does the First Amendment. They are plainly incorrect. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part and remand. … Alvarez v. Hill.

U.S. v. Lewis, 9th Cir. Mar. 13, 2008

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05-10692 U.S. v. Lewis
Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins, and Kim McLane Wardlaw, Circuit Judges.
WARDLAW, Circuit Judge: Beau Lee Lewis appeals the district court’s decision to dismiss without prejudice his indictment for violation of the Speedy Trial Act (“STA”), 18 U.S.C. § 3162(a)(2). On Lewis’s prior appeal, we found that one discrete period of pretrial delay had violated the STA, did not reach the other asserted STA violations, and remanded for a determination of whether the dismissal of the indictment should be with or without prejudice. United States v. Lewis, 349 F.3d 1116, 1121 (9th Cir. 2003) (“Lewis I”). Lewis correctly contends that the district court misconstrued the scope of our mandate by considering only the one period of delay we found to violate the STA before dismissing the indictment without prejudice. … Dissent by Judge O’Scannlain … U.S. v. Lewis.

Lanier v. City of Woodburn, 9th Cir. Mar. 13, 2008

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06-35262 Lanier v. City of Woodburn
Before: Pamela Ann Rymer and Richard A. Paez, Circuit Judges, and Cormac J. Carney,¹ District Judge.
RYMER, Circuit Judge: This appeal requires us to decide whether the City of Woodburn’s policy requiring candidates of choice for city positions to pass a pre-employment drug test as a condition of the job offer is constitutional, facially or as applied to Janet Lynn Lanier, the preferred applicant for a part-time position as a page at the Woodburn Library. The district court held that it was not. We agree that Woodburn’s policy is unconstitutional as applied because the City failed to demonstrate a special need to screen a prospective page for drugs, and affirm on this basis. By the same token, Lanier did not show that the policy could never be constitutionally applied to any City position. We reverse the district court’s order to the extent it implies otherwise, and remand for its declaratory judgment to be clarified so that it is consistent with our holding. … Lanier v. City of Woodburn

The Honorable Cormac J. Carney, United States District Judge for the Central District of California, sitting by designation. [↩]

Lemus-Galvan v. Mukasey, 9th Cir. Mar. 11, 2008

admin — Wed, 12 Mar 2008 04:00:20 +0000

04-72651 Agency Lemus-Galvan v. Mukasey
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima and M. Margaret McKeown, Circuit Judges.
McKEOWN, Circuit Judge: Gustavo Lemus-Galvan seeks review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) denial of deferral of removal under the Convention Against Torture (“CAT”). Notwithstanding that Lemus-Galvan was ordered removed on the basis of an aggravated felony, we have jurisdiction over his deferral of removal claim under the CAT. See Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007). … Lemus-Galvan v. Mukasey.

Budnick v. Town of Carefree, 9th Cir. Mar. 11, 2008

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06-15841 Federal Budnick v. Town of Carefree
Before: William C. Canby, Jr., David R. Thompson, and Milan D. Smith, Jr., Circuit Judges.
MILAN D. SMITH, JR., Circuit Judge: Plaintiffs-Appellants, F.G. Budnick, and the development company of which he is the chief executive officer, Tempo, Inc. (collectively, Budnick), sued Defendants-Appellees, the Town of Carefree and four Town Council members (collectively, Carefree) after Carefree denied Budnick’s request for a Special Use Permit (SUP) to build a multi-level continuing-care retirement community in Carefree. Budnick claimed that by denying the SUP, Carefree had violated the Fair Housing Amendments Act of 1988 (FHAA), the Americans with Disabilities Act (ADA), 42 U.S.C. § 1983, the Rehabilitation Act, and Budnick’s rights to due process and equal protection under the Fourteenth Amendment. The district court granted summary judgment in Carefree’s favor on all claims. Budnick now appeals the district court’s grant of summary judgment on his FHAA claim. We affirm the decision of the district court. … Budnick v. Town of Carefree.

Mustanish v. Mukasey, 9th Cir. Mar. 11, 2008

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04-74290 Agency Mustanish v. Mukasey
Before: Jerome Farris and Milan D. Smith, Jr., Circuit Judges, and H. Russel Holland,¹ District Judge.
MILAN D. SMITH, JR., Circuit Judge: In this appeal, we consider Petitioner Jess Mustanich’s (Mustanich) petition for review of a final order of removal by the Board of Immigration Appeals (BIA). Mustanich was convicted of burglary and subsequently ordered removed under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien who committed an aggravated felony. He seeks to terminate his removal proceedings on the ground that he is a United States citizen, arguing that although he did not file an application for naturalization prior to the applicable statutory deadline, the United States is equitably estopped from denying his citizenship because the Government’s own affirmative misconduct precluded a timely filing. We reject this argument and deny the petition on the authority of INS v. Pangilinan, 486 U.S. 875 (1988), which established that citizenship cannot be conferred by estoppel where the statutory requirements for naturalization have not been satisfied. … Mustanish v. Mukasey.

The Honorable H. Russel Holland, Senior United States District Judge for the District of Alaska, sitting by designation. [↩]

Manta v. Chertoff, 9th Cir. Mar. 11, 2008

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07-55353 Habeas Manta v. Chertoff
Before: Jerome Farris and Milan D. Smith, Jr., Circuit Judges, and H. Russel Holland,¹ District Judge.
MILAN D. SMITH, JR., Circuit Judge: Petitioner-Appellant Christina Manta appeals the dismissal of her petition for a writ of habeas corpus. Since 1999, Greece has sought the extradition of Crystalla Kyriakidou pursuant to the Treaty of Extradition Between the United States of America and the Hellenic Republic (the Treaty). The United States filed a Complaint for Extradition against Kyriakidou, whom the government believes is the same person as Christina Manta. After an extradition hearing, a magistrate judge granted the request for extradition based on two foreign charges of fraud. Seeking relief from the extradition order, Manta petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2241. We affirm the district court’s dismissal of Manta’s habeas petition. … Manta v. Chertoff.

The Honorable H. Russel Holland, Senior United States District Judge for the District of Alaska, sitting by designation. [↩]

Trans-Tec Asia v. M/V Harmony Container, 9th Cir. Mar. 11, 2008

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06-55355 Federal Trans-Tec Asia v. M/V Harmony Container
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima and M. Margaret McKeown, Circuit Judges.
McKEOWN, Circuit Judge: Like many maritime cases, this case involves a foreign-flagged vessel that sailed in and out of United States ports. And, like many maritime cases, because of the geographic scope of the high seas,1 United States law may, in some cases, be applicable to transactions beyond our country’s territorial waters and borders. And, like many maritime cases, the suit here arose against the vessel while it was docked in a United States port. The question we consider is whether a foreign supplier, by supplying fuel to a foreign-flagged vessel in a foreign port under an agreement that United States law applied to the transaction, may obtain a maritime lien under the Federal Maritime Lien Act, 46 U.S.C. § 31301 et seq. … Trans-Tec Asia v. M/V Harmony Container.

Surrell v. Cal. Water Serv. Co., 9th Cir. Mar. 11, 2008

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06-15400 Federal Surrell v. Cal. Water Serv. Co.
Before: Dorothy W. Nelson and Stephen Reinhardt, Circuit Judges, and Louis F. Oberdorfer,¹ Senior District Judge.
OBERDORFER, Senior District Judge: Rosetta Surrell brought numerous federal and state discrimination and retaliation claims against her employer, California Water Service Co. (“Cal Water”), and her former supervisor, Yvonne Pile-Cox (“Cox”). The district court granted summary judgment to both Defendants. We affirm. … Surrell v. Cal. Water Serv. Co..

The Honorable Louis F. Oberdorfer, Senior United States District Judge for the District of Columbia, sitting by designation. [↩]

Clement v. City of Glendale, 9th Cir. Mar. 11, 2008

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05-56692 Civil Rights Clement v. City of Glendale
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld and Richard C. Tallman, Circuit Judges.
KOZINSKI, Chief Judge: We determine the extent to which the Due Process Clause of the Fourteenth Amendment requires a state to provide notice before it may tow a vehicle parked in violation of state registration laws, if the owner has dutifully complied with an alternate form of registration. … Clement v. City of Glendale.

U.S. v. Rodriguez, 9th Cir. Mar. 10, 2008

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07-10217 U.S. v. Rodriguez
Before: William C. Canby, Jr., David R. Thompson, and Milan D. Smith, Jr., Circuit Judges.
MILAN D. SMITH, JR., Circuit Judge: Defendant-Appellant Jose A. Rodriguez appeals from the district court’s denial of his motion to suppress incriminating statements that he claims National Park Rangers obtained in violation of his Miranda rights. The district court held that, under Davis v. United States, 512 U.S. 452, 462 (1994), the Rangers did not have a duty to stop questioning Rodriguez because he did not unambiguously and unequivocally assert his right to silence in response to the Park Ranger’s Miranda warning. We reverse, and hold that the “clear statement” rule of Davis applies only after the police have already obtained an unambiguous and unequivocal waiver of Miranda rights. Prior to obtaining such a waiver, however, an officer must clarify the meaning of an ambiguous or equivocal response to the Miranda warning before proceeding with general interrogation. … U.S. v. Rodriguez

Shafer v. Astrue, 9th Cir. Mar. 10, 2008

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05-16507 Shafer v. Astrue
Before: Harry Pregerson, Eugene E. Siler, Jr.,¹ and Carlos T. Bea, Circuit Judges.
BEA, Circuit Judge: Patricia D. Shafer (“Shafer”) appeals the district court’s order denying her motion for attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in a social security disability action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We hold the district court abused its discretion in denying Shafer’s motion because the government’s defense of the procedural errors in the administrative law judge’s opinion was not substantially justified. Accordingly, we reverse the district court’s order and remand for a determination of the amount of attorneys’ fees. … Shafer v. Astrue

The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the Sixth Circuit, sitting by designation. [↩]

U.S. v. Crampton, 9th Cir. Mar. 10, 2008

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06-30219 Order and Amended Opinion U.S. v. Crampton
Before: David R. Thompson, Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges.
Opinion by Judge Kleinfeld.
The petition for rehearing is DENIED. …
The petition for rehearing en banc is DENIED. …
KLEINFELD, Circuit Judge: We construe aspects of the law criminalizing possession of firearms by felons and the Armed Career Criminal Act. … U.S. v. Crampton

9th Cir. Mar. 7, 2008

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05-16549 Federal Kendall v. Visa USA, Inc.
05-17436 Federal Int’l Bhd. of Teamsters v. North Am. Airlines
06-35148 Federal Lussier v. Dollar Tree Stores