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

Defendant appealed his conviction for illegally importing weapons into the United States. The Ninth Circuit held that the presumption against extraterritoriality has been rebutted by the provisions within the weapons importation statute and the legislative history accompanying the statute; the evidence was sufficient to support defendant's conviction; the motion to suppress was properly denied; in regard to the motion to dismiss the indictment, the district court did not clearly err in finding that defendant failed to establish bad faith; the district court acted within its discretion when it elected to issue a curative instruction rather than granting a mistrial for the purported violation of Federal Rule of Criminal Procedure 16; the district court did not abuse its discretion in admitting evidence regarding defendant's previous smuggling conduct, and any error in admitting the evidence was harmless; the district court adequately instructed the jury regarding the elements of causing the importation of weapons into the United States; and there was no merit to the contention that the district court's willfulness instruction was incomplete or potentially allowed the jury to convict defendants for merely facilitating or brokering deals. Accordingly, the court affirmed the judgment. View "United States v. Ubaldo" on Justia Law

California Vehicle Code 2800.2 is not categorically a crime of moral turpitude. Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision concluding that his conviction for fleeing from a police officer under section 2800.2 was categorically a crime involving moral turpitude that made him statutorily ineligible for cancellation of removal. Given the flaws in the BIA's analysis, the Ninth Circuit accorded minimal deference to the agency's determination that section 2800.2 constitutes a categorical crime involving moral turpitude. The panel held that, under the categorical approach, the conduct criminalized in section 2800.2 does not necessarily create the risk of harm that characterizes crimes of moral turpitude, even though subsection (a) standing alone would appear to contain elements of a dangerous crime. The court explained that, in this case, it did not apply the modified categorical approach because the elements of section 2800.2 were clearly indivisible. View "Ramirez-Contreras v. Sessions" on Justia Law

The en banc court overruled United States v. Hernandez-Franco, 189 F.3d 1151 (9th Cir. 1999), and held that a Sentencing Guideline other than USSG 2X1.1 expressly covers an inchoate offense only if the Guidelines themselves so indicate. In this case, defendant was convicted of conspiracy to commit robbery under the Hobbs Act, 18 U.S.C. 1951, and of other federal crimes. Defendant received sentencing enhancements under USSG 2X1.1 for conduct that he contemplated and intended, but did not carry out: abduction, carjacking, and theft. The en banc court affirmed the sentence and clarified how to determine when another Guidelines section "expressly" covers an inchoate offense. The en banc court explained that a sentencing court should begin with Application Note 1 to section 2X1.1, but also may look to the title and content of other Guidelines provisions, or other relevant intra-Guidelines context. Sentencing courts should not, however, rely exclusively on the underlying substantive offense in the United States Code, because statutory language sheds no light on the question of whether a Guidelines section expressly covers the offense, for purposes of section 2X1.1(c). Here, the district court correctly applied section 2X1.1 to determine defendant's sentence and relevant sentencing enhancements because USSG 2B3.1, the Robbery provision, did not expressly cover conspiracies under the Hobbs Act. View "United States v. Simon" on Justia Law

An entity's disregarded status did not preclude its classification as a pass-thru partner under the Tax Equity and Fiscal Responsibility Act (TEFRA), 26 U.S.C. 6231. In this case, Robert Kotick and his father formed Seaview Trading. Kotick filed a petition challenging a notice of Final Partnership Administrative Adjustment (FPAA). The Ninth Circuit affirmed the tax court's dismissal of the petition, holding that Seaview provided no compelling reason to contravene the consistent stance of the IRS and the tax courts, which have uniformly treated disregarded single-member LLCs as pass-thru partners. The panel also held that, because a party (Kotick) other than Seaview's tax matters partner filed a petition for readjustment of partnership items after AGK had done the same and within 90 days of the IRS's mailing of the FPAA, the tax court lacked jurisdiction under 26 U.S.C. 6226. View "Seaview Trading v. CIR" on Justia Law

Consents to extend the statute of limitations for the assessment of tax attributable to a partnership item, signed by the taxpayer-partner, are not invalid in this case because of a third party’s alleged conflict of interest or duress. This case arose out of an elaborate tax sheltering scheme that resulted in a massive IRS investigation, multiple criminal indictments and convictions, and a U.S. Senate investigation and hearing. The Ninth Circuit held that, an alleged third-party conflict of interest, without more, did not vitiate the individual consent personally executed by the taxpayer. Even crediting Intervenor Gonzales' allegations, the alleged actions by the IRS agent did not constitute legal duress warranting relief. Accordingly, the panel affirmed the district court's grant of summary judgment to the government. View "Birch Ventures v. United States" on Justia Law

Plaintiff filed suit under 42 U.S.C. 1983, alleging that the City's policy of training its police dogs to "bite and hold" individuals resulted in a violation of her Fourth Amendment rights. A police canine bit plaintiff's upper lip during the execution of a search. Plaintiff had fallen asleep in her office and had accidentally triggered the alarm. The en banc court upheld the district court's conclusion that there was no genuine dispute as to whether the door was open, the suite was dark, and warnings had been given; the district court properly concluded that the use of force was "moderate" and not severe; the City had a strong interest in using the force; and the degree of force used was commensurate with the City's interest in the use of that force. The en banc court held that the force used was not excessive and did not violate the Fourth Amendment. Furthermore, because the officers' actions were constitutional, the City was not liable under Monell v. Department of Social Services of New York, 436 U.S. 658, 694 (1978). View "Lowry v. City of San Diego" on Justia Law

The panel certified the following questions of state law to the Oregon Supreme Court: 1. If the Director of the Department of Consumer and Business Services approves a contractual limitations provision in an insurance policy under Oregon Revised Statutes 742.021, does the language of the policy always control or do the standard provisions of the Oregon Insurance Code apply if the standard provisions are more favorable than the approved insurance policy provision? 2. If the Oregon standard provisions do apply, when does "the period for which the insurer was liable" under Oregon Revised Statutes section 743.429 end? View "Raynor v. United of Omaha Life Insurance" on Justia Law

Pursuant to the Mandatory Victims Restitution Act of 1996 (MVRA), a defendant may discharge a restitution judgment based on a private settlement between the victim and the defendant. Restitution is a criminal sentence that cannot be extinguished by a victim’s disclaimer of benefits. A district court may redirect restitution payments to the federal Crime Victims Fund when a victim later disclaims restitution without making a direct assignment to the Fund. The statute provides leeway for the court to fashion this practical solution. In this case, the Ninth Circuit affirmed the denial of plaintiff's motion seeking full satisfaction of a restitution judgment entered after conviction for bank fraud and submitting a false loan application. View "United States v. Hankins" on Justia Law

The district court erred in dismissing for lack of subject-matter jurisdiction plaintiff's administratively exhausted Federal Tort Claims Act (FTCA), 28 U.S.C. 1346, claim following the United States' second removal. In this case, plaintiff filed a medical malpractice suit against his medical providers, alleging that his mother had died of postpartum hemmorhage shortly after giving birth to him. The district court concluded that it lacked subject-matter jurisdiction over plaintiff's claims arising from Dr. Bencomo's actions, dismissed those claims without prejudice, and once again remanded the state claims against the individual defendants. The Ninth Circuit held that plaintiff's initial failure to exhaust his administrative remedies as to Dr. Bencomo whom plaintiff reasonably did not know was covered by the FTCA deprived the federal courts of subject-matter jurisdiction over plaintiff's FTCA claim even after plaintiff dismissed his initial suit against Dr. Bencomo, and then exhausted his administrative remedies before amending his complaint in state court to add Dr. Bencomo again. View "D. L. V. United States" on Justia Law

The Ninth Circuit filed an order denying Christopher Sherrod's application for authorization to file a second or successive 28 U.S.C. 2255 motion. The panel joined its sister circuits in holding that an 18 U.S.C. 3582(c)(2) sentence reduction does not qualify as a new, intervening judgment. Therefore, Sherrod must obtain authorization from this court to proceed on a second or successive section 2255 motion. In this case, Sherrod has failed to make a prima facie showing under section 2255(h) of newly discovered evidence or a new rule of constitutional law. Therefore, the panel denied his application. View "Sherrod v. United States" on Justia Law