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

Defendant entered a conditional guilty plea to one count of attempted entry after deportation in violation of 8 U.S.C. 1326(a) and (b). On appeal, defendant claimed that the Immigration and Naturalization Act (INA) precluded any meaningful judicial review of an expedited removal order, including review of a collateral challenge to such an order in a section 1326 action; under United States v. Mendoza-Lopez, some meaningful review of the order was constitutionally required before the order could be used as a predicate to a criminal proceeding; and therefore, because the statue precluded review, expedited removal orders could not be used as predicates in section 1326 prosecutions. The court held that defendant was entitled to judicial review of the predicate expedited removal orders underlying his section 1326 prosecution but failed to show any prejudice resulting from the alleged procedural flaws in the proceedings that resulted in those orders. Therefore, the court affirmed the district court's denial of defendant's motion to dismiss his indictment and the subsequent conviction and sentence.

Appellant appealed his conviction on various counts related to transporting and harboring illegal aliens. Appellant challenged the district court's decision to admit into evidence videotaped deposition testimony of detained material witnesses pursuant to 18 U.S.C. 3144. For the first time on appeal, defendant argued that the statute was facially invalid and that the court erred by permitting the government to admit the depositions into evidence at trial without any showing of a witness's unavailability. Appellant also argued that the magistrate judge failed to comply with the statue and that certain procedural requirements of Federal Rule of Criminal Procedure 15 and General Order 05-34 of the United States District Court for the District of Arizona were unmet. The court held that the bulk of appellant's claims were meritless. The court did agree that the district court plainly erred by permitting the government to introduce the now-contested depositions into evidence without a showing of unavailability. The court, however, declined to accord appellant any relief because the court was not persuaded that "the error seriously affect[ed] the fairness, integrity, or public reputation of [the] proceedings." Therefore, the court affirmed the district court's judgment of conviction.

Plaintiffs, a class of economically vulnerable Arizonians who receive public health care benefits through the state's Medicaid agency, sued the U.S. Secretary of Health and Human Services (Secretary) and the Director of Arizona's medicaid agency (director)(collectively, defendants), alleging that the heightened mandatory co-payments violated Medicaid Act, 42 U.S.C. 1396a, cost sharing restrictions, that the waiver exceeded the Secretary's authority, and that the notices they received about the change in their health coverage was statutorily and constitutionally inadequate. The court affirmed the district court's conclusion that Medicaid cost sharing restrictions did not apply to plaintiffs and that Arizona's cost sharing did not violate the human participants statute. The court reversed the district court insofar as it determined that the Secretary's approval of Arizona's cost sharing satisfied the requirements of 42 U.S.C. 1315. The court remanded this claim with directions to vacate the Secretary's decision and remanded to the Secretary for further consideration. Finally, the court remanded plaintiffs' notice claims for further consideration in light of intervening events.

While handcuffed in the back seat of a patrol car, Everardo Torres (Everardo) was mortally mounded when a Madera City Police Officer shot him in the chest with her Glock semiautomatic pistol, believing it at the time to be her Taser M26 stun gun. Everardo's family filed this survival action under 42 U.S.C. 1983, asserting excessive force in violation of the Fourth Amendment and subsequently appealed from an adverse grant of summary judgment. The court held that, while a jury might ultimately find that the officer's mistake of weapon to have been reasonable, it was inappropriate for the district court to reach this conclusion in the face of material facts in dispute. The court held that, at this stage in the proceeding, the officer had not shown an entitlement to qualified immunity and summary judgment was therefore improperly granted.

Plaintiff and his children (plaintiffs) brought a 42 U.S.C. 1983 suit against defendants for damages resulting from plaintiff's unlawful arrest. Plaintiff was arrested as he stood outside a fair selling promotional tickets for $5 that he had received for free from a radio station. At issue was whether the district court properly granted summary judgment in favor of defendants on the grounds of qualified immunity. The court agreed with the district court that there was no probable cause to arrest plaintiff and his right to be free from unlawful arrest was violated. The court held, however, that the district court's grant of summary judgment on the grounds of qualified immunity for an unlawful arrest was reversed where all reasonably competent officers would have agreed that plaintiff was not committing a crime because there was no scalping law in Nevada; it was simply not a crime to sell tickets to a fair; plaintiff's t-shirt, which had the logo of the radio station, did not suggest fraud; and the ticket buyers were not duped by the sale. The court also held that plaintiffs' substantive due process right to family integrity was not violated where the facts of the case did not come close to rising to the level of conduct that shocked the conscience. Accordingly, the court affirmed the district court's claim on this issue.

Defendant appealed his conviction for failing to register as a sex offender and challenged the legality of the Attorney General's interim regulation for failure to comply with the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. In United States v. Valverde, the court held that for persons such as defendant, who were convicted of sex offenses prior to the Sex Offender Registration and Notification Act's (SORNA), 42 U.S.C. 16911, 16913, enactment, SORNA's registration requirements did not become effective until August 1, 2008, because the Attorney General's interim regulation did not comply with the APA. Accordingly, the court reversed and remanded this case for dismissal of the indictment.

Defendant appealed his misdemeanor convictions, after retrial, of three counts of violating 18 U.S.C. 1382. Defendant's charges arose from his protest activities on Ocean Avenue, which was a public road that crossed the Vandenberg Air Force Base (VAFB). On appeal, defendant argued that his retrial violated the proscription against double jeopardy, that there was insufficient evidence to convict, and that his conviction violated his First Amendment rights. The court found that in all three incidents, defendant was within the physical limits of the public road easement corresponding to Ocean Avenue, a fact which the government did not challenge. The court held that because the government did not have an exclusive right of possession over Ocean Avenue, defendant's presence and protest activities could not constitute violations of section 1382 under the court's precedent.

A former public high school student alleged that his history teacher violated his rights under the Establishment Clause by making comments during class that were hostile to religion in general, and to Christianity in particular. At issue was whether the teacher was entitled to qualified immunity. The court affirmed the district court's conclusion that the teacher was entitled to qualified immunity. The court also held that because it was readily apparent that the law was not clearly established at the time of the events in question, and because the court could resolve the appeal on that basis alone, the court declined to pass upon the constitutionality of the teacher's challenged statements.

Appellant was the target of a grand jury investigation seeking to determine whether he used secret Swiss bank accounts to evade paying federal taxes. The district court granted a motion to compel appellant's compliance with a grand jury subpoena dueces tecum demanding that he produce certain records related to his foreign bank accounts. The court declined to condition its order compelling production upon a grant of limited immunity, and pursuant to the recalcitrant witness statute, 28 U.S.C. 1826, held appellant in contempt for refusing to comply. The court held that because the records sought through the subpoena fell under the Required Records Doctrine, the Fifth Amendment privilege against self-incrimination was inapplicable, and appellant could not invoke it to resist compliance with the subpoena's command. The court also held that because appellant's Fifth Amendment privilege was not implicated, it need not address appellant's request for immunity. Accordingly, the judgment of the district court was affirmed.

Petitioner, a native and citizen of El Salvador, petitioned for review of a decision of the BIA ordering him removed to his native country. The BIA affirmed the IJ's ruling that petitioner was ineligible for asylum, withholding of removal, and withholding under the Convention Against Torture (CAT) because he had been "convicted of a particularly serious crime," driving under the influence (DUI). The BIA also ruled that petitioner was ineligible for deferral of removal under the CAT because he failed to prove a likelihood of future torture. The court held that it had jurisdiction to review the BIA's determination that an alien had been convicted of a "particularly serious crime." The court also held that driving under the influence was not statutorily defined as an aggravated felony did not preclude the BIA from determining that it could be a particularly serious crime. The court further held that the BIA, as the Attorney General's delegate, was permitted in this case to determine whether petitioner's DUI offenses were particularly serious for purposes of asylum eligibility. The court held, however, that the BIA's explanation for its decision was so ambiguous that the court could not conduct meaningful judicial review and therefore, remanded to the BIA for a clear explanation.