Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

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Defendants Grovo and Petersen challenge aspects of their convictions for charges related to their roles in an online bulletin board dedicated to discussing and exchanging child pornography. The court held that the evidence was sufficient to convict defendants for engaging in a child exploitation enterprise, and for conspiracy to advertise child pornography. The definition of “advertisement” under 18 U.S.C. 2251(d) presents a question of first impression in this circuit. Assuming without deciding that an “advertisement” under section 2251(d) requires some public component, the court held that advertising to a particular subset of the public is sufficient to sustain a conviction under the statute. The court emphasized that the district court's apportioning loss between defendants was sound under United States v. Paroline. Accordingly, the court affirmed defendants' convictions. The court vacated the district court’s restitution order and remanded to allow the district court to disaggregate the portion of the victim’s losses caused by the original abuse from those attributable to continued viewing of her image, consistent with the rule announced in United States v. Galan. View "United States v. Grovo" on Justia Law
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Marcus Katz contributed stock to MK Hillside, a partnership between him and his wholly owned corporation. After the IRS issued a Final Partnership Administrative Adjustment (FPAA) to MK Hillside on January 2, 2008, finding that MK Hillside was a sham, lacked economic substance, and was formed and used principally to avoid taxes, Katz petitioned the tax court contesting the finding and asserting the statute of limitations. The IRS determined that 26 U.S.C. 6501(e)(1)'s six-year statute of limitations applied because Katz’s omission of the $198,000 credit from a collar termination on his 1999 return constituted more than 25% of the gross income reported on the return. The tax court denied summary judgment, holding that a trial would be necessary to determine whether Katz in fact omitted substantial income from his 1999 return. To avoid a trial, the parties agreed to a Stipulation of Facts and a Second Stipulation of Settled Issues. Based on those stipulations, the tax court held that the period for assessing tax on the 1999 MK Hillside partnership items was open as to Katz. The court concluded that, because the tax court had jurisdiction to consider Katz's argument, it necessarily had jurisdiction to reject it, at least for purposes of the partnership proceeding. Accordingly, the court affirmed the judgment. View "MK Hillside Partners v. Commissioner" on Justia Law
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Petitioner, convicted of being a felon in possession of ammunition, seeks authorization to file a second or successive 28 U.S.C. 2255 motion raising a claim for relief predicated on Johnson v. United States. The court concluded that petitioner has made a prima facie showing that the claim he asserts in his proposed section 2255 motion relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Therefore, the court granted the application. The court clarified an issue regarding the running of the statute of limitations. The court concluded that the filing of a second or successive application in this court tolls the 1-year statute of limitations, and that the limitations period remains tolled until the court rules on the application. The one caveat is that, to trigger tolling, the application must allege the claim or claims for which authorization to file a second or successive motion is ultimately granted. View "Orona v. United States" on Justia Law
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Student and Guardian seek reimbursement from the district for the cost of Student's private education, claiming that the district failed to comply with the procedural requirements of the Individuals with Disabilities Education Act, 20 U.S.C. 1400–1491o (IDEA), and thus failed to provide a free appropriate public education (FAPE) in the least restrictive environment (LRE) for Student. The district court affirmed the ALJ's denial of reimbursement. In regard to the June 2009 individualized education program (IEP), the court agreed with the lower courts that any procedural failure on the part of the district was caused by Guardian, and that, in any event, the Jordon Intermediate School placement was a FAPE. In regard to the June 2011 IEP, the court concluded that the IDEA does not require the school district to conduct all assessments possible. In this case, the district court did not violate the IDEA by failing to assess Student for anxiety and failing to determine the baseline for Student's speech and language goals. Finally, the Buena Park placement offer was a FAPE in the LRE for Student. Accordingly, the court affirmed the judgment. View "Baquerizo v. Garden Grove USD" on Justia Law

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Rolando Mora-Huerta, a Mexican national, was denied a visa application by a consular officer on the ground that he was a “gang associate” who intended to enter the United States to engage in unlawful conduct. Plaintiff, Mora's wife and a United States citizen, filed suit challenging the consular officer's decision. The court held that, under Marks v. United States, and the court's recent en banc decision in United States v. Davis, Justice Kennedy's concurrence in Kerry v. Din is the controlling opinion. Under the Din concurrence, the facially legitimate and bona fide reason test has two components. First, the consular officer must deny the visa under a valid statute of inadmissibility. Second, the consular officer must cite an admissibility statute that “specifies discrete factual predicates the consular officer must find to exist before denying a visa,”or there must be a fact in the record that “provides at least a facial connection to” the statutory ground of inadmissibility. Applying that opinion to this case, the court concluded that the consular officer gave a facially legitimate reason to denying Mora's visa because he cited a valid statute of inadmissibility and a bona fide factual reason that provided a facial connection to the statutory ground of inadmissibility: the belief that Mora was a gang associate. Accordingly, the court affirmed the district court's dismissal of the complaint. View "Cardenas v. Lynch" on Justia Law
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Petitioner filed suit under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., challenging the agencies' decision to change how they operated the Albeni Falls Dam during the winter months. The environmental assessment (EA) here concludes that no environmental impact statement (EIS) is required because the proposed action will not “result in any new significant impacts to the human environment.” The court concluded that NEPA only requires the preparation of an EIS when a proposed federal action is major. In this case, actions taken with respect to winter dam management since 1995 reinforce the conclusion that there was no change to the status quo. Because the period when the agencies held winter lake levels constant did not change the operational status quo, neither does the decision to revert to flexible winter operations. The court also concluded that, because the decision adopting flexible winter operations does not trigger NEPA’s requirement to publish an EIS, this and petitioner’s other challenges to the EA’s finding of no significant impact are moot. The court rejected petitioner's challenge to the BPA's failure to prepare a supplemental EIS. Accordingly, the court denied the petition for review. View "Idaho Conservation League v. BPA" on Justia Law
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Petitioner Frank O. Loher, convicted of sexual assault and given an extended-term sentence, filed a petition for habeas relief. The district court in Loher VI granted the writ on all three of Loher’s claims: (1) that the trial court violated Loher’s constitutional rights by forcing him to testify; (2) that Loher’s appellate counsel rendered ineffective assistance for failing to raise the forced testimony issue; and (3) that the enhancement of his sentence based on judge-found facts violated Apprendi v. New Jersey. The district court ordered Hawaii to release or retry Loher and then the district court stayed that order pending this appeal. The court concluded that the Hawaii ICA’s rejection of Loher’s Brooks v. Tennessee claim was not objectively unreasonable; the court rejected Loher’s challenges to the creation of the post-conviction record and to the Hawaii ICA’s reliance on the facts found on remand; because Hawaii has failed to argue this independent ineffective-assistance-of-appellate-counsel (IAAC) issue specifically and distinctly, it has waived its challenge to the district court’s grant of relief; and the State’s failure to object and its affirmative invitation to adopt the magistrate’s recommendation constitute waiver of its challenge to Loher’s Apprendi claim. Accordingly, the court affirmed in part, reversed in part, and remanded with instructions. View "Loher v. Thomas" on Justia Law
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Plaintiff, a Wiccan, petitioned on behalf of himself and some thirty fellow Wiccan inmates that the prison recognize Wicca as a bona fide religion and afford its followers the same rights accorded to inmates of other faiths. The parties entered into a comprehensive settlement agreement (the 1997 Agreement). The parties subsequently entered into another settlement agreement, which the district court adopted as a consent decree (2011 Decree). The decree reaffirmed the promises the CDC made in the 1997 Agreement and provided plaintiff with additional privileges. At issue on appeal is the district court's decision to terminate the consent decree based on defendants' substantial compliance. The court accorded no special deference in reviewing the district court's exercise of discretion when the district court had supervised the consent decree only two years of the twenty-year history of the case. The court concluded that the district court committed numerous errors in terminating a consent decree that had been carefully crafted over the course of two decades; the district court applied the wrong legal standard and found substantial compliance without giving due attention to the various exacting obligations embodied in the decree, and without considering whether the purpose of the decree had been served; the district court improvidently refused to hold an evidentiary hearing to resolve material factual disputes about whether defendants had complied with the decree; and the district court also encouraged noncompliance by finding that defendants had violated the consent decree, yet refusing to grant any meaningful relief. The court held that under no circumstances should the district court consider terminating a decree unless and until there has been a substantial period of substantial compliance - in this case no less than a year - with every one of its terms. Accordingly, the court vacated the district court's order and reinstated the 2011 consent decree, remanding for further proceedings. View "Rouser v. White" on Justia Law

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After Renee Tillman filed suit against her law firm, arbitration proceeded for a time until Tillman ran out of funds. The arbitration was then terminated and now the parties disagree about what should now happen to Tillman’s federal court case against the firm. The court concluded that Tillman's case “has been had in accordance with the terms of the agreement,” so it is no longer appropriate to stay the proceedings below; the district court appropriately excused Tillman’s failure to pay for arbitration on the grounds of financial incapacity; and, under these circumstances, the court held that the FAA does not require dismissal of Tillman’s case. Rather, Tillman's case should go forward in federal court and thus the court remanded with instructions on how to proceed. View "Tillman v. Rheingold firm" on Justia Law

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Defendants, husband and wife, were convicted of charges related to their role as ordained ministers in the Hawaii Cannabis Ministry. Defendants admit to using and distributing large quantities of cannabis, but claim that in doing so they were merely exercising their sincerely held religious beliefs. The court agreed that the government has a compelling interest in mitigating the risk that cannabis from the Ministry will be diverted to recreational users, and that the facts of this case demonstrate that mandating defendants' full compliance with the Controlled Substances Act (CSA), 21 U.S.C. 801 et seq., would help to advance this compelling interest to a meaningful degree. Furthermore, the government could not achieve its compelling interest in mitigating diversion through anything less than mandating defendants' full compliance with the CSA. Therefore, defendant's statutory free exercise rights have not been violated and the court rejected their defense under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. The court rejected the wife's claim that she should be exempted from prosecution, even if her husband is not, because he was the founder and leader of the Ministry. The court also rejected defendants' claim that RFRA’s intersection with the CSA violates the Fifth Amendment’s prohibition on vague criminal laws. RFRA cannot be unconstitutionally vague because it is not a penal statute or anything like one. Likewise, the rule of lenity is equally untenable. The court further concluded that defendants' contention that their indictments should be dismissed on the theory that the CSA’s classification of marijuana as a Schedule I controlled substance violates the Due Process Clause of the Fifth Amendment is foreclosed by the court's precedent. Finally, the district court did not abuse its discretion in issuing wiretaps obtained in the course of investigating defendants and the Ministry, and the district court did not clearly err in denying defendants a Franks hearing. Accordingly, the court affirmed the judgment. View "United States v. Christie" on Justia Law
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