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

The Ninth Circuit reversed defendant's conviction on three counts of knowingly discharging a pollutant in violation of the Clean Water Act. Defendant's conviction stemmed from his role in orchestrating a scheme charging construction companies to dump dirt and debris on lands near the San Francisco Bay, including "wetlands" and a "tributary."The panel concluded that the Act requires the government to prove a defendant knew he was discharging material "into water." In this case, the jury instructions failed to make this knowledge element clear, and the error was not harmless. Accordingly, the panel remanded for a new trial with jury instructions that make clear the government's burden to prove that the defendant knowingly discharged fill material "into water." The panel also concluded that the regulation defining "waters of the United States" at the time of defendant's trial is not unconstitutionally vague, and that a newly promulgated 2020 regulation that substantially narrowed the definition of "waters of the United States" represents a change in the law that does not apply retroactively. View "United States v. Lucero" on Justia Law

The Ninth Circuit reversed the district court's dismissal of an indictment charging defendants with conspiracy to violate the Anti-Riot Act and three of those defendants with substantively violating the Act. The district court held that the Act was unconstitutional on the basis of facial overbreadth under the First Amendment.The panel applied Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), and concluded that most of the provisions of the Act are reasonably construed as constitutional, and defects are severable from the remainder of the Act. In this case, there was no violation of the First Amendment in the Act's overt act provisions; its definition of a riot; or in subparagraphs (1), (2), and (4) of 18 U.S.C. 2101(a), except insofar as subparagraph (2) prohibits speech tending to "organize," "promote," or "encourage" a riot, and 18 U.S.C. 2102(b) expands the prohibition to "urging" a riot and to mere advocacy. The panel explained that the Act prohibits unprotected speech that instigates (incites, participates in, or carries on) an imminent riot, unprotected conduct such as committing acts of violence in furtherance of a riot, and aiding and abetting of that speech or conduct. Once the offending language is severed from the Act, the panel concluded that the Act is not unconstitutional on its face and remanded for further proceedings. View "United States v. Rundo" on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment based on qualified immunity to a police officer in a 42 U.S.C. 1983 action brought by plaintiff, alleging that the officer used excessive force when he deployed his police dog in effecting plaintiff's arrest for driving under the influence and resisting arrest.The panel concluded that no clearly established law governed the reasonableness of using a canine to subdue a noncompliant suspect who resisted other types of force and refused to surrender. In this case, following a brief police chase, plaintiff fled to his home where he activated the remote-controlled garage door opener, remained in control of his car inside the garage for eight minutes, refused multiple commands to get out of the car, and resisted lesser force employed by officers without effect while he continued resisting. The officer released his police dog to force compliance and, even after the dog bit him, plaintiff continued to resist. The panel explained that the initial deployment of the canine and the duration of the bite did not violate clearly established law. View "Hernandez v. Town of Gilbert" on Justia Law

The Ninth Circuit reversed the district court's dismissal of a class action brought by investors with a financial services firm. Plaintiffs alleged that Edward Jones breached its fiduciary duties under Missouri and California law, but the district court concluded that it did not have subject matter jurisdiction because the Securities Litigation Uniform Standards Act (SLUSA) prevents plaintiffs from bringing their claims as a class action consisting of fifty or more persons.The panel concluded that SLUSA does not bar plaintiffs' state law fiduciary duty claims because Edward Jones's alleged misrepresentation or omission that forms the basis for plaintiffs' fiduciary duty claims is not "in connection with the purchase or sale of a covered security." In this case, plaintiffs claim that Edward Jones breached its fiduciary duties under Missouri and California law by failing to conduct a suitability analysis, and they allege that this lack of suitability analysis caused them to move their assets from commission-based accounts to fee-based accounts, which was not in their best financial interest as low-volume traders. The panel explained that the alleged failure to conduct a suitability analysis was not material to the decision to buy or sell any covered securities. Accordingly, the panel remanded for further proceedings. View "Anderson v. Edward D. Jones & Co., LP" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's dismissal of petitioner's appeal of an IJ's denial of his applications for asylum and withholding of removal from Somalia. The panel held that the restricted-residence exception applies when the country's authorities are unable or unwilling to protect the applicant from persecution by nongovernmental actors. The panel concluded that the Board erred by determining that petitioner did not qualify for a firm-resettlement exception because the persecution he suffered was perpetrated by nongovernment actors. On remand, the Board should consider whether petitioner was firmly resettled in South Africa.The panel also held that petitioner suffered past persecution in Somalia on account of a protected ground. In this case, the record evidence would compel any reasonable factfinder to conclude that petitioner suffered persecution on account of a protected ground because Al Shabaab was motived by their own political and religious beliefs, rather than petitioner's. The panel explained that Al-Shabaab's accusation that petitioner and his brother were featuring Islamically forbidden, "Satanic" films provided direct evidence of their political and religious motive. Even if the brothers did not feature the films out of their own political or religious convictions, Al-Shabaab at the very least imputed those beliefs to them. The panel also remanded to give the government an opportunity to rebut the presumption of future persecution triggered by petitioner's showing of past persecution on account of a protected ground. View "Abdi Asis Ali Aden v. Wilkinson" on Justia Law

Defendants Thompson and Fincher appealed their convictions and forfeiture provisions of their sentences for charges related to their involvement in an "advance pay" scheme with a third coconspirator. The Ninth Circuit concluded that there was no constructive amendment of the indictment where the indictment alleged all of the elements of conspiracy to commit wire fraud in violation of 18 U.S.C. 1343 and 1349. In this case, defendants were tried and convicted of the crime charged, and there was no reason to include in the jury instructions the surplusage relating to the 18 U.S.C. 371 crime that was not charged.The panel also concluded that because the forfeiture judgment against defendants amounted to joint and several liability contrary to Honeycutt v. United States, 137 S. Ct. 1626 (2017), the panel must vacate and remand it. In Honeycutt, the Supreme Court held that, in a conspiracy, a defendant may not, for purposes of forfeiture, be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. On remand, the district court should make findings denoting approximately how much of the proceeds of the crime came to rest with each of the three conspirators. The panel explained that though no forfeiture judgment was issued against the third coconspirator, neither Thompson nor Fincher can be subjected to forfeiture of amounts that came to rest with the third coconspirator, since those amounts were not proceeds that came to rest with them. The panel concluded that the forfeiture judgments must be separate, for the approximate separate amounts that came to rest with each of them after the proceeds were divided among them. View "United States v. Thompson" on Justia Law

The Ninth Circuit certified the following question to the Supreme Court of Nevada: For purposes of a fraudulent concealment claim, and for purposes of a consumer fraud claim under NRS 41.600, has a plaintiff suffered damages if the defendant’s fraudulent actions caused the plaintiff to purchase a product or service that the plaintiff would not otherwise have purchased, even if the product or service was not worth less than what the plaintiff paid? View "Leigh-Pink v. Rio Properties, LLC" on Justia Law

Plaintiff made a Freedom of Information Act (FOIA) request after the FAA notified him that he was ineligible for an Air Traffic Control Specialist position based on his performance on a screening test called the Biographical Assessment. At issue is FOIA's Exemption 5, which provides that FOIA's disclosure requirements do not apply to "interagency or intra-agency memorandums or letters that would not be available by law to a party . . . in litigation with the agency."The en banc court joined six of its sister circuits in adopting the consultant corollary to Exemption 5, and held that the term "intra-agency" in 5 U.S.C. 552(b)(5) included, at least in some circumstances, documents prepared by outside consultants hired by the agency to assist in carrying out the agency's functions. The en banc court explained that the relevant inquiry asks whether the consultant acted in a capacity functionally equivalent to that of an agency in creating the document or documents the agency sought to withhold. In this case, the FAA properly withheld two of the three documents at issue under that exemption. However, the en banc court held that the FAA did not establish that the remaining document is protected by the attorney work-product privilege, and the agency failed to show that it conducted a search reasonably calculated to locate all documents responsive to petitioner's FOIA request. Accordingly, the en banc court vacated the district court's entry of summary judgment for the FAA and remanded for further proceedings. The en banc court denied plaintiff's motion for judicial notice. View "Rojas v. Federal Aviation Administration" on Justia Law

The Ninth Circuit affirmed the Bankruptcy Appellate Panel's judgment affirming the bankruptcy court's determination that a debtor was entitled to a homestead exemption under Washington law. The panel adopted in full the BAP's well-reasoned opinion on March 23, 2020 and attached it as an appendix. The BAP concluded that the debtor, who occupied the homestead on the petition date, was entitled to her homestead exemption despite the fact that she moved out shortly thereafter and neither re-occupied the property nor filed a declaration of non-abandonment within six months of moving out. View "Klein v. Anderson" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision holding that petitioner's 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code 11350 qualifies as a "controlled substance offense," thereby rendering him removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(B)(i).Although California Health and Safety Code 11350, by its terms, applies to a broader range of "controlled substance[s]" than the narrower federal definition that governs under section 237(a)(2)(B)(i), the panel agreed with the BIA that petitioner's conviction nonetheless qualifies under the so-called "modified categorical" approach to analyzing prior convictions. Applying this approach, the panel concluded that section 11350 is a "divisible" statute that defines multiple alternative offenses, depending upon which controlled substance was possessed. In this case, because petitioner's conviction under section 11350 was for possession of cocaine, and because cocaine qualifies as a "controlled substance" under the applicable federal definition, it follows that petitioner was convicted of an offense "relating to a controlled substance" within the meaning of section 237(a)(2)(B)(i). Therefore, the panel concluded that petitioner was properly ordered to be removed from the United States. View "Lazo v. Wilkinson" on Justia Law