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

In this case, an insurance agency had a contract with an insurance company that allowed the agency to commingle collected insurance premiums with its other funds in its general operating account. The government contended that the premiums collected by the agency were the property of the insurance company and held "in trust" by the agency; it alleged that when the funds were not remitted but used for other purposes, they were embezzled by the agency's treasurer, defendant. Defendant was charged with ten counts of embezzlement of insurance premiums in violation of 18 U.S.C. 1033(b)(1) and one count of conspiracy to commit embezzlement. The court held that under long-standing Arizona law, the contract between the agency and the company, which permitted agency commingling, required monthly agency payments whether premiums were collected or not, and created a right of interest on late payments, created a creditor-debtor relationship, not a trust. The agency had contractual and fiduciary duties to the company, but was not a trustee. Because the funds in question were not held "in trust" by the agency as a matter of law, an essential element of embezzlement was lacking. Therefore, the court reversed the denial of defendant's motion for judgment of acquittal.

The State of Nevada filed a parens patriae lawsuit against Bank of America in Clark County District Court, alleging that the Bank misled Nevada consumers about the terms and operation of its home mortgage modification and foreclosure processes, in violation of the Nevada Deceptive Trade Practices Act, Nev. Rev. Stat. 598.0903-.0999. Nevada also alleged that the Bank violated an existing consent judgment in a prior case between Nevada and several of the Bank's subsidiaries, entered in Clark County District Court. The Bank removed the action to federal district court, asserting federal subject matter jurisdiction as either a "class action" or "mass action" under the Class Action Fairness Act (CAFA), 28 U.S.C. 1332(d), and as arising under federal law, 28 U.S.C. 1331. Denying Nevada's motion to remand, the federal district court concluded that it had jurisdiction over the action as a CAFA "class action," but not as a "mass action," and that it also had federal question jurisdiction because resolving the state claims would require an interpretation of federal law. The court concluded that because parens patriae actions were not removable under CAFA, and the action did not otherwise satisfy CAFA's "mass action" requirements, the district court lacked jurisdiction under CAFA. The court also exercised its interlocutory appellate jurisdiction under 28 U.S.C. 1453(c) to review the district court's determination that it had federal question jurisdiction because the complaint referenced the federal Home Affordable Mortgage Program and the Fair Debt Collection Practices Act (FDCP), 15 U.S.C. 1692 et seq. The court concluded that the district court lacked federal question jurisdiction. Because there was no basis for federal subject matter jurisdiction, the case was remanded to Nevada state court.

This appeal arose from a long-running conflict which has devolved to the present remaining dispute as to the classification of approximately 9,000 acre feet (AF) of water released between June 17 through 24 of 2004 from the Nimbus and New Melones reservoirs within California's Central Valley Project (CVP) by defendant, the U.S. Department of the Interior, acting through the U.S. Bureau of Reclamation (collectively, federal defendants). Plaintiffs, water agencies, contended that the Department of the Interior abused its discretion in failing to apply the latter June 2004 releases against the 800,000 AF of CVP yield especially designated for fish, wildlife, and habitat restoration under section 3406(b)(2) of the CVP Improvement Act, Pub. L. No. 102-575, 106 Stat. 4600. Because the court found that the water agencies have standing and the accounting which the Department of Interior conducted for the latter June 2004 releases did not constitute an abuse of discretion, the court affirmed the district court's orders granting summary judgment in favor of the federal defendants and against the water agencies.

Petitioner petitioned for review of a decision of the BIA denying his application for voluntary departure. Petitioner was convicted for disorderly conduct involving prostitution under California Penal Code 647(b) and attempting to dissuade a witness or victim under California Penal Code 136.1(c). The court held that the BIA did not err in concluding that petitioner's conviction under section 647(b) constituted a conviction of a crime involving moral turpitude. Because petitioner was convicted of two crimes involving moral turpitude, he was deportable under 8 U.S.C. 1227(a)(2)(A)(ii) and the court denied his petition for review.

Plaintiff represented a class of legal immigrants in the state of Washington adversely affected by its recent termination of a state-funded food assistance program for legal immigrants, which exclusively benefitted Washington resident aliens who became ineligible for federal food stamps following the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. 1601 et seq. Plaintiff contended that the state, by eliminating food assistance to class members while continuing to administer federal food assistance to U.S. citizens and certain qualified aliens, violated the Fourteenth Amendment's Equal Protection Clause and, by failing to provide class members adequate pre-deprivation notice and opportunity to be heard, also violated the Fourteenth Amendment's Due Process Clause. Because plaintiff failed even to allege that the State treated her less favorably than a similarly situated citizen of the State, her claim of alienage discrimination failed on the merits. The court agreed with the State that plaintiff lacked the concrete and particularized interest required for standing to claim a procedural due process violation. Consequently, plaintiff either lacked standing or would not succeed on the merits of her claims. Therefore, the court reversed the district court's order granting the motion for a preliminary injunction, vacated the injunction, and remanded for further proceedings.

Defendant appealed the district court's denial of his motion to suppress evidence obtained during a probation search. Following the court's holding in United States v. Davis, the district court held that, to support the search, the officers needed only a "reasonable suspicion" to conclude that the probationer owned, controlled, or possessed an item within the probationer's residence. Defendant contended that the greater standard of "probable cause" applied in these circumstances. Because the court's holding in Davis had not been overruled and was not clearly irreconcilable with any intervening case law, the court affirmed the judgment.

Defendant appealed from his conviction for conducting the affairs of an enterprise through a pattern of racketeering activity, conspiring to commit those acts, and committing violent crimes in aid of racketeering. Defendant contended that the district court erred when it failed to hold a competency hearing, sua sponte, to determine whether he was competent to stand trial. Based on the evidence before the district judge, including more than four years' experience with defendant, a reasonable judge in the district judge's position would not necessarily have entertained a bona fide doubt as to whether defendant had the ability to understand the nature and object of the proceedings against him and had the ability to assist in his defense. Therefore, the decision not to order a second competency hearing was within the district court's sound discretion and that discretion was not abused. Accordingly, the court affirmed the judgment.

This appeal under 42 U.S.C. 1983 challenged Arizona's execution protocol, adopted as Order 710 of the Arizona Department of Corrections (ADC) on January 25, 2012. Plaintiffs, death row inmates in Arizona, claimed that ADC's execution protocol violated the Eighth and Fourteenth Amendments. Towery and Moormann, two of the named plaintiffs with impending execution dates, moved the district court for a preliminary injunction against ADC's use of its current lethal injection protocol. The district court denied the preliminary injunction, and Towery and Moormann appealed. On the basis of the protocol approved in Dickens v. Brewer, as well as the State's undertakings as to the upcoming executions, the court affirmed the denial of the preliminary injunction, albeit on different grounds than the district court's denial.

Petitioner was convicted in 1985 of the first-degree murder of his adoptive mother and was sentenced to death. Petitioner subsequently applied for a stay of execution and permission to file a second or successive habeas petition in federal district court. Petitioner claimed that both of his lawyers in state court failed to raise a colorable claim such that either one or both effectively "abandoned" him. Petitioner also claimed that he was now mentally retarded and could not be executed for that reason. The court held that, assuming Maples v. Thomas applied retroactively, petitioner could not make a prima facie showing that his postconviction counsel abandoned him within the meaning of Maples. Moreover, the court actually considered the merits of essentially the same claim in petitioner's first federal habeas petition. Even if petitioner could conclusively show that he was currently mentally retarded, the court held that the Arizona Supreme Court's decision was not contrary to or an unreasonable application of clearly established Supreme Court precedent. Accordingly, the court denied petitioner's request to file a second habeas petition and his motion to recall the mandate. The court affirmed the district court's denial of the Rule 60(b) motion. The court found that petitioner had failed to show a strong likelihood of relief on the merits and so denied his motion for a stay of execution.

Defendant was convicted of murder and sentenced to death in 1992. Defendant subsequently filed a motion for relief from judgment seeking the opportunity to litigate the Eddings-Tennard issue as a new claim. Defendant argued that he should be permitted to pursue that claim, notwithstanding the statutory bar on second or successive habeas petitions, because his counsel had abandoned him by failing to present the claim in his amended petition. The district court denied the motion. The court need not decide whether abandonment by counsel could serve as an exception to the bar on second or successive petitions because, like the district court, the court concluded that defendant was not abandoned. Counsel did not engage in "egregious" professional misconduct or leave defendant "without any functioning attorney of record." Accordingly, the court need not decide whether defendant's attorney was negligent in failing to raise a colorable Eddings-Tennard claim. Therefore, the court held that the district court did not abuse its discretion in denying defendant's motion.