• Federal Courts,  Federal Procedure,  Ninth Circuit

    The Ninth Circuit’s Reversion to 11-Judge En Banc Panels

    The Ninth Circuit reverted to 11-judge en banc panels at the beginning of this month after a brief experiment with 15-judge panels.  This short article at Law.com provides some limited background on the move, including comment from one circuit judge: “It was pretty unanimous that we were not gaining anything by going from 11 to 15 judges,” said 9th Circuit Judge Diarmuid O’Scannlain, who is based in Portland, Ore. O’Scannlain, an appointee of President Ronald Reagan, said, “I would have preferred to wait until the two years were up because that is what we notified the bar we would do.” The Ninth Circuit is the only circuit that does not…

  • California Court of Appeal,  Ninth Circuit,  Writ Review

    Writ Opinions

    When nearly 92% of all original proceedings in the California Court of Appeal are dismissed without written opinion (for fiscal year 2005-2006, the latest year for which statistics are provided in the 2007 Judicial Council report), it would be nice if the Court of Appeal would, in any given case, explain why that particular case made it past summary dismissal to review on the merits.  Too frequently, a writ opinion is silent on this question. I can’t offer empirical evidence, but my observation is that the Ninth Circuit addresses this issue explicitly much more consistently in its writ opinions.  This is probably because its decisions usually evaluate the Bauman factors,…

  • Federal Procedure,  Ninth Circuit,  Sentencing

    Grandstanding Does Not Equal Intent

    I watched the movie Minority Report last night.  It’s about a “precrime” department of the Washington, D.C. police department around 50 years in the future that, through the use of visions recorded from three gifted “precognitive” individuals, arrests persons for future murders they were going to commit.  The murder rate in D.C. drops to zero.  I recommend the movie, especially if you’re a sci-fi fan. Coincidentally, today the Ninth Circuit issues United States v. Jimison, case no. 06-30417 (July 16, 2007), in which Judge Kozinski frames the issue as “when a defendant can be subject to a sentencing enhancement” under U.S. Sentencing Guidelines “for possessing a firearm in connection with…

  • Federal Courts,  Ninth Circuit

    Reduce Reversals by Splitting the Ninth Circuit?

    If you’ve followed any of the debate about splitting the Ninth Circuit into two circuits, check out incoming Vanderbilt law professor Brian Fitzpatrick’s op-ed piece in the Los Angeles Times from Wednesday, in which he asserts that the Ninth Circuit’s size is partly to blame for its high reversal rate because it makes it more likely that two “extreme” judges will be assigned to the same panel: Proponents of splitting the 9th Circuit largely have been unable, however, to connect the colossal court’s size to its high rate of reversal. But there is a connection. Indeed, it can be shown mathematically that, as a court grows larger, it is increasingly…

  • Criminal Law,  Ninth Circuit

    When is a Probation Officer a Judge? When You Lie to Him.

    Opinions from the Ninth Circuit are often summed up pretty well in the first paragraph.  Yesterday’s decision in United States v. Horvath, case no. 06-30447 (July 10, 2007) is a case in point: Any person who knowingly and willfully makes a materially false statement to the federal government is subject to criminal liability under 18 U.S.C. § 1001(a).  Congress chose to exempt from liability, however, false statements submitted to a judge by a party to a judicial proceding.  18 U.S.C. § 1001(b).  We must decide whether the exception in § 1001(b) for “statements . . . submitted by [a] party . . . to a judge” encompasses a false statement…

  • Federal Procedure,  Ninth Circuit,  Sentencing

    Ninth Circuit Allows 35-Year-Old Conduct to Enhance Child Porn Conviction

    The decision begins: “This appeal tests the temporal and relational limits of prior conduct as a sentencing enhancement.”  That seems to be putting it mildly.  In U.S. v. Garner, case no. 06-10417 (June 18, 2007), the Ninth Circuit allows the defendant’s sexual abuse of his children more than 35 years ago to be considered in enhancing his sentence for attempted receipt and distribution of child pornography.  The court finds no time or relationship limitations built into the “pattern of activity involving the sexual abuse or exploitation of a minor” requirement for enhancement under section 2G2.2(b)(5) of the Sentencing Guidelines. Nothing from Ninth Circuit Blog yet (which is almost certain to…

  • Criminal Procedure,  Ninth Circuit

    Elaborate Hoax Upheld as Constitutional Seizure

    I was tied up with some things Friday and missed an early review of a Ninth Circuit opinion filed that day in which the court finds an elaborate hoax staged to seize a vehicle is constitutional. If you missed it, too, this teaser from the concurring opinion should interest you in U.S. v. Alverez-Tejeda, case no. 06-30289 (June 8, 2007); The staged collision, “theft” of the car (and all of its contents), car chase and search of Alverez-Tejeda’s apparently innocent companion had the potential to spin out of control and exceed reasonable bounds. Nonetheless, on the record before us I agree with my colleagues that the agents’ ruse stayed within…

  • Appellate Jurisdiction,  Appellate Procedure,  Federal Procedure,  Ninth Circuit

    Ninth Circuit Panel Splits on Appellate Jurisdiction over Denial of FSIA Immunity Claimed via Res Judicata

    The Ninth Circuit tackles a question of appellate jurisdiction in Gupta v. Thai Airways International, case no. 04-56389 (May 30, 2007).  The riddle — which the majority overlooks until it responds to the dissent — arises from the intersection of res judicata and the “collateral order” exception to the final judgment rule. Thai Airways contended in its motion to dismiss for lack of subject matter jurisdiction in the district court that it was immune from suit under the Foreign Sovereign Immunities Act (the airline is 76% owned by the Thai government) .  The airline contended that an identical state court action brought by Gupta was res judicata on this issue…

  • Appellate Procedure,  Federal Procedure,  Ninth Circuit

    The Proper Action When an Appeal is Mooted

    Offering a concise lesson on when a moot federal appeal should be dismissed and when it shouldn’t is the Ninth Circuit’s decision in NASD Dispute Resolution, Inc. v. Judicial Council of the State of California, case no. 02-17413 (May 30, 2007).  Fearing that new standards for California arbitrators imposed by the Judicial Council would make its arbitrations in California more difficult, NASD and the New York Stock Exchange sought a declaratory judgment that the California standards were preempted by federal securities laws, could not constitutionally be applied to the plaintiffs’ arbitration programs, and were not applicable to those programs as a matter of state law.  The district court dismissed the…

  • Equal Protection,  Ninth Circuit

    Processing Irony in a Ninth Circuit Equal Protection Case

    Circuit Judge Berzon hooked me with this opening paragraph of U.S. v. Trimble, case no. 06-30298 (May 30, 2007): The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904. This appeal to the Ninth Circuit was over a traffic ticket. Specifically, the penalty imposed for the violations as a result of the form of ticket used. Notwithstanding the minor nature of the offenses, the case implicates a major constitutional doctrine — equal protection. Trimble was ticketed on a military base. The officer who wrote Trimble’s ticket did so on a brand new form that imposed…

  • Federal Procedure,  Ninth Circuit

    Child Pornographer Remains Anonymous In Ninth Circuit Ruling – and Limits His Restitution Exposure by Exploiting Developing World Victims (Updated)

    Appellate Law & Practice and Decision of the Day both report on what the latter calls a “remarkable decision” today from the Ninth Circuit. Both write about the fact that in United States v. Doe, case no. 05-50474 (May 29, 2007), the Ninth Circuit allows the defendant — a child pornographer who pleaded guilty to molesting and photographing young teen boys on his trips outside the U.S. — to remain anonymous in the disposition of the appeal. Both bloggers recognize that anonymity was probably a condition of the defendant’s guilty plea (although the decision never says). Decision of the Day is appalled that the circuit judges would allow this, especially…

  • Habeas Corpus,  Ninth Circuit

    Conflict with Appellate Counsel Doesn’t Merit Habeas Relief

    In Foote v. Del Papa, case no. 06-15094 (May 22, 2007), the Ninth Circuit holds that a state criminal defendant’s “irreconcilable conflict” with appellate counsel does not, in itself, entitle the state defendant to habeas relief. Foote filed suit against his assigned attorney and the public defender’s office a month after his arraignment, claiming that his assigned defender’s handling of the case deprived him of his Constitutional rights. The public defender’s office moved to withdraw, claiming the lawsuit created a “clear conflict of interest.” After sentencing, the state trial court granted the request of Foote’s retained counsel to assign the public defender to represent Foote on appeal. Foote’s direct appeal…

  • Ninth Circuit,  Trademark

    Rockin’ the Boat after a Trademark Settlement

    The ephemeral nature of trademark litigation comes out in Abercrombie & Fitch Co. v. Moose Creek, Inc., case no. 06-56774 (May 22, 2007). In 2004, Moose Creek sued Abercrombie, alleging that Abercrombie’s silhouette moose trademark infringed Moose Creek’s moose trademarks. Abercrombie, of course, claimed there was no likelihood of confusion between the marks. The same year, while the action was pending, Abercrombie started using a new “outline” moose trademark in addition to its silhouette moose mark. The parties settled the lawsuit with an agreement that allowed each of them to continue using their marks. After the case settled, Moose Creek started using two new moose trademarks, and now it was…

  • Copyright,  Internet Law,  Ninth Circuit

    More Googlelaw

    Perfect 10 publishes photographs of nude women and owns the copyrights in those images.  Google displays thumbnails of those images in its image search results.  Perfect 10 says this is infringement and obtains a preliminary injunction against the practice, but the Ninth Circuit, in Perfect 10, Inc. v. Amazon.com, Inc., case no. 06-55405 (May 16, 2007), reverses. The most written about aspect of the decision is the court’s finding that Google’s display of thumbnail images in its image search results constitutes a non-infringing “fair use” of the images.  Since Perfect 10 failed to show that it was likely to overcome Google’s fair use defense, the court reverses the grant of…

  • Appellate Blogs,  First Amendment,  Internet Law,  Judges,  Ninth Circuit

    Legal Blogosphere Reacts as Ninth Circuit Puts the Brakes on CDA Immunity for Online Services

    Yesterday’s Ninth Circuit decision in Fair Housing Council v. Roommates.com, LLC, case no. 04-56916 (May 15, 2007) has the digital legal world abuzz . . . as one should expect of the latest decision on the scope of immunity afforded to online services by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c). In this case, two municipal fair housing councils sued Roommates.com, an online clearinghouse for those seeking to obtain roommates or move in as one. They alleged that the website published discriminatory roommate preferences in violation of the Fair Housing Act and various state laws. The district court found Roommates immune under the CDA and granted summary judgment…

  • Federal Courts,  Jurisdiction,  Ninth Circuit

    Claim Challenging Removal of Cross from County Seal Fails in Ninth Circuit

    In 2004, under legal threat from the American Civil Liberties Union, Los Angeles County removed from its official seal an image of a cross (which shared the seal with the Roman goddess Pamona, engineering instruments, a Spanish galleon, a tuna, a cow, oil derricks, the Hollywood Bowl, and two stars representing the area’s motion picture and television industries).  It replaced the cross with a depiction of the first Spanish mission established in the county (which depiction did not include a cross), and made other changes to the seal.  Plaintiff Ernesto R. Vasquez, an employee of the County of Los Angeles, filed suit in federal court under 42 U.S.C. § 1983,…

  • Appeals,  Federal Procedure,  Ninth Circuit

    FRCP Amendments Approved and Transmitted to Congress

    The Supreme Court approved amendments to the Federal Rules of Civil Procedure and transmitted those amendments to Congress on April 30.  They will take effect December 1, 2007 unless Congress legislates their rejection, modification, or deferral.  Rules 1-86 were “restyled” — revised with the intent to make them easier to read and understand without substantively changing them.  For example, rule 59, governing new trial motions, is amended so subsection (a) is changed from a single, lengthy paragraph into paragraphs (a)(1)(A), (a)(1)(B), and (a)(2).  Not only easier on the eyes, but much easier to comprehend. The amendments contain substantive changes as well, but none directly relating to the rules regarding entry…

  • Criminal Law,  Federal Procedure,  Ninth Circuit

    A Chemistry Lesson Resolves an Issue of First Impression in a Drug Case

    In U.S. v. Hollis, case no. 05-30611 (May 7, 2007), the Ninth Circuit holds that under the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), under which “any fact [other than the fact of a prior conviction] that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt,” a defendant charged with distribution of a controlled substance (21 U.S.C. § 841(a)) cannot be subject to the higher sentencing standard for distribution of a “cocaine base” with a prior felony drug conviction (21 U.S.C. § 841(b)(1)(A)) unless the government pleads and proves that the cocaine base…

  • Federal Procedure,  Ninth Circuit

    New FRAP and Ninth Circuit Rules Available

    The Ninth Circuit website has posted the latest version (May 2007) of the Federal Rules of Appellate Procedure and Local Circuit Rules.  They can be downloaded here. Maybe I shouldn’t look a gift horse in the mouth, but it would be nice if the PDF file had internal links to make it a little easier to jump from one rule to another referenced within it, or from the table of contents to the listed rule.  But this PDF file is a nice resource nonetheless.

  • Federal Procedure,  Ninth Circuit

    The Ninth Circuit’s Split Personality on Deadline for Removal

    Professor A. Robert Benjamin of the University of Richmond School of Law runs a blog every federal practitioner should love. The Split Circuits blog is a fine resource on — you guessed it — splits among the federal circuits. In a post earlier this month, Professor Benjamin pointed out a split of authority within the Ninth Circuit on the deadline for removing a state court lawsuit to federal court. Under 28 U.S.C. § 1446(b), the notice of removal must be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such…

  • Criminal Law,  Federal Procedure,  Ninth Circuit,  Sentencing

    Ninth Circuit: Prior Conviction of Any Age May be Used to Enhance Sentence for Illegal Entry

    Joining the Tenth and Eleventh Circuits, the Ninth Circuit holds that there is no limit on the age of convictions that may be used under section 2L.1.2 of the 2003 Sentencing Guidelines to enhance a sentence on a conviction for entering or remaining in the United States illegally. The defendant in this case was apprehended in 2003 and the trial court correctly considered convictions from 1972 and 1976. The case is United States v. Olmos-Esparza, Ninth Circuit case no. 06-50276 (April 24, 2007). UPDATE: Jon Sands at Ninth Circuit Blog gives his detailed take on the case here. CORRECTION: The author at Ninth Circuit Blog is Steve Kalar, posting here.

  • Appellate Jurisdiction,  Appellate Procedure,  Bankruptcy,  Federal Procedure,  Ninth Circuit

    When is a Bankruptcy Court Order an Appealable Final Judgment?

    The Ninth Circuit gives a good summary of the rules applicable to this question in In re Brown, case no. 05-15605 (April 26, 2007). The court held that a minute order granting a creditor’s motion for summary judgment in an adversary action was an interim order that did not constitute a final judgment and thus did not trigger the time for debtor to appeal. The case gives excellent guidance for evaluating the language of an order and the procedural posture of the case as aids in determining appealability.