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

Defendant was convicted of 28 felony offenses in connection with a fraud conspiracy involving 120,000 American Express Cards. In sentencing Defendant to 27 years’ imprisonment, the district court relied in part on Application Note 3(F)(i) to U.S.S.G. Sec. 2B1.1 (“the Application Note”), which provides that the “loss” amount for the use of counterfeit credit cards must at least $500 per credit card used. Using this multiplier, the district court applied a 22-level enhancement.The Ninth Circuit vacated Defendant’s sentence. Under Stinson v. United States, 508 U.S. 36 (1993), an Application Note is authoritative unless it is “inconsistent with, or a plainly erroneous reading of, that guideline.” Thus, if an Application Note conflicts with the Guidelines, the Guidelines must be given effect over the Application Note.Defendant’s fraud scheme involved charging $15 to $30 per card, resulting in actual losses of $1.4 million. However, the use of the Application Note calculated the loss amount to be $60 million. Here, the Ninth Circuit found that the Application Note’s multiplier rule does not comport with the plain meaning of “loss,” and thus, Defendant’s 22-level enhancement based on the calculated $60 million loss cannot stand.The Ninth Circuit also found that the district court erred in sentencing Defendant to 264 months for each wire and mail fraud count when the maximum statutory penalty was 240 months. View "USA V. RUSLAN KIRILYUK" on Justia Law

Defendant was convicted of attempted illegal entry under 8 U.S.C. Sec. 1325(a). On appeal to the Ninth Circuit, Defendant claimed the district court erred in denying his request for a jury instruction on the lesser-included offense of misdemeanor attempted illegal entry.The Ninth Circuit reversed Defendant’s conviction. Under United States v. Arnt, 474 F.3d 1159 (9th Cir. 2007) A defendant is entitled to an instruction on a lesser-included offense if 1) the elements of the lesser offense are a subset of the elements of the charged offense and; 2) a jury could rationally find the defendant guilty of the lesser offense and acquit him of the more serious offense.Here, the government conceded that misdemeanor attempted illegal entry is a less-included offense of felony attempted illegal entry. The Ninth Circuit held that a rational juror could have acquitted Defendant of the more serious offense in favor of convicting him of misdemeanor illegal entry. The only distinct element required for felony attempted illegal entry is a prior conviction for the same crime. Thus, the jury could have rationally chosen the lesser offense by finding that the government failed to prove Defendant was previously convicted under 8 U.S.C. Sec. 1325(a). View "USA V. LUCIO MEDINA-SUAREZ" on Justia Law

Plaintiffs filed failure-to-warn product liability claims against a medical device manufacturer based on the manufacturer’s failure to warn about certain risks of its electroconvulsive therapy (“ECT”) device. The district court granted summary judgment to the manufacturer, finding that Plaintiff’s evidence failed to show that stronger warnings from the manufacturer would have affected their physician’s decision to prescribe the product.Plaintiffs appealed, relying on testimony from their prescribing physicians that, had the manufacturer included stronger warnings, they would have communicated those warnings to Plaintiffs. Plaintiffs claimed that, in light of these warnings, they would not have given consent for the procedures.Finding that California law applies and that there is no binding precedent on the issue, the Ninth Circuit certified the following question to the California Supreme Court: Is a plaintiff required to show that a stronger risk warning would have altered the physician’s decision to prescribe the product? Or can a plaintiff establish causation by showing that the physician would have communicated the stronger risk warnings to the plaintiff and a prudent person in the patient’s position would have declined the treatment? View "MICHELLE HIMES V. SOMATICS, LLC" on Justia Law

The Ninth Circuit affirmed in part and reversed in part the district court's dismissal based on lack of subject matter jurisdiction of plaintiff's complaint against the Tribe and various individual defendants. Plaintiff alleged that the Tribe, its officers, and members improperly ordered his banishment based on his purported attempt to import alcohol into the City of Togiak, Alaska, and that, in the course of enforcing the banishment order, defendants detained plaintiff in the municipal jail and forced him to board an airplane destined for another city in Alaska.The panel affirmed in part and held that tribal sovereign immunity deprived the district court of subject matter jurisdiction over plaintiff's claims alleged exclusively against the Tribe. Furthermore, the panel affirmed the district court's order dismissing claims against the tribal judicial officers on immunity grounds. However, the panel reversed in part and remanded for the district court to fully consider plaintiff's 42 U.S.C. 1983 claims as to individual defendants in their individual capacities; whether plaintiff is entitled to prospective injunctive relief against individual defendants; and plaintiff's individual tort claims against the individual defendants. Finally, the panel directed the district court to consider whether plaintiff should be granted leave to amend to cure any pleading deficiencies related to his claims. View "Oertwich v. Traditional Village of Togiak" on Justia Law

The Ninth Circuit affirmed defendant's conviction for 18 fraud-related counts in a case where defendant stole $10 million in digital gift cards from his employer, Microsoft, using login credentials he stole from his coworkers. The panel concluded that there was probable cause to support the search warrant where, considering the totality of the circumstances, the search warrant affidavit shows a fair probability that evidence of defendant's crimes would be found on a computer at his residence. Therefore, there was an adequate nexus between the unlawful activities and the place to be search. The panel also concluded that the evidence supporting the application was not stale.The court rejected defendant's contention that his convictions for aggravated identity theft are infirm because the test accounts do not constitute a "means of identification" under 18 U.S.C. 1028A(a)(1), in that the accounts do not "identify a specific individual." Rather, the panel concluded that the test accounts' purpose, prerequisites, and functionality do not bear on whether they identify a specific individual. The panel stated that the test accounts at issue here clearly could be used to identify specific Microsoft employees because the company’s investigators actually did identify four individuals. The panel further concluded that the district court's exclusion of evidence regarding defendant's asylum status did not deny him a defense. Nor did the district court abuse its discretion in excluding the evidence. Finally, the district court properly denied the motion to remove Juror No. 12. View "United States v. Kvashuk" on Justia Law

The Ninth Circuit reversed the tax court's decision granting summary judgment to taxpayer, holding that 26 U.S.C. 6751(b) requires written supervisory approval before the assessment of the penalty or, if earlier, before the relevant supervisor loses discretion whether to approve the penalty assessment. In this case, because the supervisor gave written approval of the initial penalty determination before the penalty was assessed and while she had discretion to withhold approval, the IRS satisfied 6751(b)(1). View "Laidlaw's Harley Davison Sales, Inc. v. Commissioner of Internal Revenue" on Justia Law

The Ninth Circuit affirmed the district court's denial of habeas relief to petitioner, who was sentenced to death after being convicted of murder, five counts of robbery, and two counts of rape in concert. The panel concluded that the California Supreme Court on direct appeal reasonably rejected petitioner's claim regarding an erroneous aiding and abetting instruction. Rather, the state court reasonably concluded that the instructions were adequate for the jury to make the requisite culpability finding, especially in light of the exception to the rule of Enmund found in Tison v. Arizona, 481 U.S. 137 (1987) and Tapia v. Roe, 189 F.3d 1052 (9th Cir. 1999).Although counsel's failure to investigate and present mitigation evidence at the penalty phase was deficient, given the entirety of the evidence before the jury, petitioner's disruptive conduct in front of the jury and the sure-to-be-admitted rebuttal and impeachment evidence that would follow introduction of the mitigation evidence, the panel concluded that the California Supreme Court reasonably concluded that petitioner did not show a reasonable probability that the result would have been different but for counsel's unprofessional errors. View "Ross v. Davis" on Justia Law

The Ninth Circuit affirmed the district court's denial of a motion to dismiss a Second Superseding Indictment (SSI) charging defendant with racketeering conspiracy. After determining that it had jurisdiction under the collateral order doctrine to hear this interlocutory appeal, the panel held that the Juvenile Delinquency Act (JDA) does not preclude the government from prosecuting a person as an adult for a continuing conspiracy that includes both pre- and post-majority conduct after the court dismisses a JDA information charging that person with conspiracy based solely on pre-majority conduct.In this case, because defendant's participation in the conspiracy allegedly continued beyond his eighteenth birthday, it was no longer an act of juvenile delinquency under the JDA. Rather, the panel concluded that the conduct became a continuing adult RICO conspiracy offense which began when he was a juvenile but continued when he allegedly engaged in additional acts in furtherance of the ongoing conspiracy after reaching the age of majority. View "United States v. Mendez" on Justia Law

The Ninth Circuit affirmed the district court's denial of qualified immunity to defendant, Sergeant Dan Ponder, in a 42 U.S.C. 1983 action alleging that Ponder used excessive force in violation of the Fourth Amendment when he shot Clemente Najera-Aguirre six times without warning and killed him. After determining that it has jurisdiction over this interlocutory appeal and that Ponder did not waive his qualified immunity defense, the panel concluded that Ponder's conduct was not objectively reasonable, and his use of excessive force violated the Fourth Amendment. In this case, nothing in the record suggested that Najera was threatening bystanders or advancing toward them when he was killed. Furthermore, Najera presented no threat at all to the officer in that moment. The panel also concluded that ponder was on notice that his specific conduct was unlawful at the time. View "Estate of Aguirre v. County of Riverside" on Justia Law

The Ninth Circuit amended its prior opinion, denied a petition for panel rehearing, denied a petition for rehearing en banc on behalf of the court, and ordered that no further petitions shall be entertained.In the amended opinion, the panel affirmed the district court' s order denying qualified immunity to Police Chief James McElvain on plaintiff's First Amendment and Equal Protection disparate treatment claim. The panel stated that McElvain was profoundly mistaken in arguing that to state an equal protection claim, proof of discriminatory animus alone was insufficient, and plaintiff must show that defendants treated plaintiff differently from other similarly situated individuals. Rather, the panel held that the existence of a comparator is not a prerequisite to stating a disparate treatment claim under the Fourteenth Amendment. In this case, plaintiff established a prima facie claim for disparate treatment and the record supported the conclusion that McElvain's articulated reasons for not promoting Ballou were pretextual.In regard to McElvain's argument that he is entitled to qualified immunity on plaintiff's claim that she was retaliated against in violation of the Equal Protection Clause of the Fourteenth Amendment, the panel cannot discern from the district court's order whether it has jurisdiction under the collateral order doctrine to resolve that question, and thus the panel remanded to the district court to clarify its ruling. Finally, the panel concluded that plaintiff's speech opposing sex discrimination in the workplace was inherently speech on a matter of public concern and was clearly protected by the First Amendment. View "Ballou v. McElvain" on Justia Law