People v. Martin (Cal. Supreme Ct. - Dec. 30, 2010)

Martin wins in the California Supreme Court!  No, wait.  Martin loses in the California Supreme Court!  Oh.  Martin wins!

It's confusing.  Plus, it's not our favorite Martin (yours truly).  Rather, the defendant here is Louis Martin.  He pled guilty to resisting a police officer and, in return, got a dismissal of a domestic violence charge.  But the trial court imposed probation conditions related to the dismissed d.v. charge.  Martin appealed, claiming this violated the plea bargain.

The California Supreme Court initially agreed with Martin.  Holding that even in the probation context -- where trial courts ordinarily have broad discretion -- a trial court can't impose probation conditions that arise out of charges dismissed pursuant to a plea agreement unless the dismissed charge has a transactional relationship to the charge to which the defendant pled guilty.  So Martin wins on this point.

But he also loses.  Because, in this particular case, when the trial court said it was going to impose the domestic violence conditions, defendant objected, to which the trial court essentially said:  "Fine.  Then I'm going to reject the plea bargain."  At which point the defendant relented, and said he still wanted the plea and was willing to accept the conditions.

Well then.  Martin loses.  The trial court had the power to reject the plea.  You accepted the conditions, thereby waiving your right to object.

But, in a larger sense, Martin still wins.  Just not this Martin.  I'm talking now about the trial judge.  Judge John Martin.  Coincidentally enough.

Olsen v. Harbison (Cal. Ct. App. - Dec. 28, 2010)

I wish this one had remained unpublished.  Or, better yet, had been decided the other way.

It's not that Justice Hull necessarily analyzes precedent inaccurately.  Mind you, the cases don't require a decision one way or the other, so it's really up to the court.

But the Court of Appeal holds that when Lawyers A and B jointly represent a client agree on a fee-split (here, in a typical referral situation), and comply with the formalities of getting valid client consent, A can't get his agreed-upon fees from B -- on any basis -- as long as Client fires A and stays with B.

This is incredibly bad policy, and I think the wrong rule to adopt.

Justice Hull concludes -- and precedent is clear -- that if A and B agree upon a fee split and don't get the required consent, A can sue B in quantum merit for the work.  The California Supreme Court has held as much.  But according to the Court of Appeal, if the lawyers actually comply with their ethical duties and get the client's consent, A is suddenly out of luck:  now he can't sue B.  This creates exactly the opposite incentive from what we want.  It doesn't work for me.

Justice Hull also leaves open the possibility of A suing the client.  But why should we want that?  It's B who refused to give the agreed-upon money to A, not the client.  Why bring the client into it?  Plus, the client has a right to fire whoever she wants.  It isn't obvious to me that the client has done anything wrong -- and hence A might be totally out of luck and unable to sue anyone, which is clearly the wrong result -- and even if she has, it seems to me that the principal (or at least partial) wrongdoer is B.

B got brought into the case by A.  B agreed that A would get 40%.  Then B shoves A out of the picture by having the client fire A and gets to keep 100%?  That's wrong.  It's inequitable.  It shouldn't be the result.

Look, one can have various takes on California's referral rules.  I could easily see tightening them up.  But given what our rules are, once lawyers comply with them, they shouldn't be screwed.  They especially should not be worse off for complying with them -- e.g., by getting client consent -- than had they simply ingored them.

So I was sad to see this result.  Which is also a stark warning to all you co-counsel out there.

Watch out for your colleagues stabbling you in the back.  'Cause the Court of Appeal is fine with it.

Rezner v. Bayerische Hypo-Und Vereinsbank (9th Cir. - Dec. 28, 2010)

It's hard to know who to root for it this one.

Do you root for the plainitiff, John Rezner?  He's a rich co-founder of Yahoo! (who created Geocities) who didn't have enough money already, so he decided to enter into a tax scam with fake transactions to diminish the portion going to the United States.  Sounds pretty sympathetic.

Do you root for the defendants, Bayerische Hypo-Und Vereinsbank AG and HVB Structured Finance, Inc.?  They've both got pretty cool names, and they made up the tax scams, recruited rich investors (like Rezner), and pocketed tons of fees -- skimming just a small part of the millions ripped off from the government.  I'm totally sympathetic to them as well.

Tough to figure out who to root for when the one sues the others for RICO violations for inducing him to enter into the tax scam.  Which plaintiff would have been totally happy with except that the IRS caught wind of the scam and disallowed his deductions.

Hold on.  I've figured out who the heroes are.  They're the lawyers at Sidley Austin and LeBoeuf Lamb.  They're the one's who blew the whistle on the scam, ignoring their self-interest and doing the right thing.

Oh.  Wait a minute.  They didn't blow the whistle.  No, they provided tax and other legal advice claiming that the whole thing was legitimate -- and pocketed (like everyone else) healthy fees for doing so.

The only people or entity that I really like in this whole thing is . . . the IRS.  Which has got to make you wonder.

At least the good guys eventually got their due.  Referring, of course, to the taxpayers.  Oh yeah.  And the attorneys at Howard Rice and Gibson Dunn.  Who represented the parties on appeal.  For, obviously, yet another boatload of fees.

Merry Christmas!

In Re Murguia (9th Cir. - Dec. 24, 2010)

Let's ring in the holiday with a welcome to the newest member of the Ninth Circuit:  Judge Mary Murguia, who was confirmed last week.  Welcome.

I don't know if anyone else actually noticed (as no one I've read has ever mentioned this fact), but by my calculation, we're not just welcoming the newest member.  At least if things go as I'd anticipate, we may also be welcoming the future Chief Judge of the Ninth Circuit.  Assuming that Chief Judge Kozinski stays on until his term expires 2014 (as I have every reason to anticipate he shall), then it'll be Sid Thomas' turn as Chief.  Since Judge Thomas will be a spry 61 at the time, he can serve all seven years if he'd like.  Which, if it happens, will take us to 2021.  At which point the judge with the highest seniority who's not yet 65 will be . . . Judge Murguia.

Now, Goodwin Liu was nominated first, and would have taken this spot had he been confirmed first, but we all know what's transpired on that front.  So one consequence of Liu's stalled nomination is that Murguia gets the nod as Chief.

This assumes, of course, that Judge Thomas' term runs its course.  Maybe he goes senior.  Or gets elevated.  Or feels like handing it off early.  If anything like that happens, depending on the timing, lots of people are in the running for the next Chief.

But don't be surprised if the newest, and youngest, member of the Ninth Circuit eventually moves from the extreme side of the en banc panel seating chart to occupy that center chair.  And, unless procedures change, to be on every en banc panel.

So welcome, Judge Murguia.  As they say:  Your future's so bright, you ought to wear shades.

U.S. v. Newhoff (9th Cir. - Dec. 16, 2010)

Judges don't have to be unnecessarily harsh.  Or even harsh at all.  Here's a case in point.  In which Judge Kleinfeld says:

"As for whether the error of reading back Officer Cochran’s testimony without an admonition was plain, we conclude that it was. We need not explore the reasons why, because the district judge expressly decided that he should give the admonition against undue emphasis. His exercise of discretion to give the admonition was sound. The only explanation we can see on this record for not giving the admonition was that the judge forgot. That is an easy thing to do in a trial. And it is a reason why judges do, and this judge did, ask counsel for objections. They are called “counsel,” in part, because they counsel the court. It is incumbent on defense counsel to protect his client and the court from judicial error, including forgetting something, and incumbent on the prosecutor to protect the court from error, even where the error might, at least before appeal and possible reversal, benefit the prosecution. The only explanation for why both attorneys said they had no objection to failure to give the admonition is that they too forgot, again an easy thing to do in a trial. But error it was."

Pretty nice way of saying it.  Guess it's the holiday spirit, eh?

People v. Puentes (Cal. Ct. App. - Dec. 20, 2010)

I'm not going to claim that I totally understand California's vindictive prosecution jurisprudence.  I know a little bit about the U.S. Supreme Court's precedent in the area, which I generally find pretty lame.  But when it comes to California, well, I am quite confident that there are lots and lots of people who know lots more about it than I do.  Lots and lots and lots.

But let me reason from first principles.

When a prosecutor first files a misdemeanor charge against someone -- on the theory that's the right charge -- and then, after an appeal (or an acquittal), files a felony charge, well, that seems vindictive to me.  Can't do that.  We don't want to have prosecutors punish people for exercising their rights.

(Except, of course, for their right to go to trial.  We punish people for that all the time.  Plea bargaining wouldn't work otherwise.  But that's a whole other story.)

So I definitely understand why we don't allow vindictive charges, and how that works in a classic example like the one above.

But let's take this case.  There, the prosecutor charges the defendant with a felony (statutory rape) as well as a misdemeanor (contributing to the delinquency of a minor).  At the first trial, the jury hangs on both counts.  So the prosecutor retries both charges.  Clearly not a problem there.  At the second trial, the jury hangs on the felony but convicts on the misdemeanor.  Defendant is then sentenced pretty heavily on the misdemeanor count -- a year in prison (the maximum) and registration as a sex offender.  Having obtained that sentence, the prosecution elects not to retry the felony count, and dismisses it.  Fair enough.

But thereafter, the Court of Appeal reverses the misdemeanor conviction, and on remand, the trial court dismisses it for insufficient evidence.  So now there's no misdemeanor.  At which point the prosecutor refiles the felony charge.  The trial court thinks that's okay, but the Court of Appeal reverses.  That's vindictive prosecution, the Court of Appeal holds.  You thought the felony was too much, and so you dismissed it.  You changed your mind only because the defendant was successful.  Can't do that.

Which makes internal sense.  In a way.

But wait a minute.  The reason the prosecutor dismissed the felony was because the dude had already been sentenced to a year in prison and registration as a sex offender.  At that point, this was punishment enough.  Or at least punishment sufficient not to make it worth it to try a third time on the felony charge (with the consequent resource drain) and putting the victim through yet another trial.

But I totally understand the prosecutor's thought process here, and don't think I understand (or at least don't appreciate) why it's not legitimate.  Once the defendant's conviction gets reversed, and he's going to be totally unpunished for his offense, the calculus now radically changes.  It's not that we hate the guy for beating us in the Court of Appeal.  It's just that a third trial wasn't worth it compared to the then-preexisting punishment.  An extra year or two in prison on a felony count wasn't worth a speculative third trial.  But once that sentence goes away, well, at that point, it's totally worth it.  Because otherwise, absent the felony charge, you've got a dude with no record, no requirement to register as a sex offender, and who can potentially do it again to another victim.  That matters, and none of it existed prior to the reversal of the sentence.

To express it mathematically -- not that this necessarily helps anyone except hard-core geeks such as myself -- the first decision only reflects that (PF * DF) - TCF < DF - DM, where PF is the probability of a felony conviction, DF is the deterrent effect of a felony conviction, TCF are the transaction costs of a felony conviction, and DM is the deterrent effect of a misdemeanor conviction.  The fact that this condition exists -- which is why the prosecutor drops the felony charge after the misdemeanor conviction -- doesn't mean that once DM goes away, (PF * DF) - TCF < DF.  You've dropped out the DM.

It'd be one thing if the prosecutor never charged the defendant with a felony -- and instead only charged him with a misdemeanor -- in the first place.  Because that decision reflects that the prosecutor indeed thought that  (PF * DF) - TCF < DF.  So if the dude gets convicted of a misdemeanor, then gets off on appeal, the decision to then file a felony charge is indeed presumptively vindictive, since we already established that a felony charge wasn't worth it.

But if, as here, the guy was charged with a felony initially, and the decision to drop that charge was made only after the guy was found gulity of and given a particular sentence for a misdemeanor, then the fact that marginal deterrent effect of a continued felony charge was not justified in such a setting doesn't mean that the decision to refile that charge when that margin radically changes (i.e., because the existing conviction is reversed) is vindictive.  We're not punishing a guy for beating us.  It simply means that the margin is now different.  Not because we're angry -- after all, we charged him with a felony in the first place.  But rather because, objectively, the consequences are now different than when we made the decision to drop the charges.

So I think I come out the other way on this one.  My gut tells me what what the prosecutor did here was okay.  Indeed, that I -- or any other neutral person -- might have done the exact same thing.  Not for illegitimate reasons.  But for entirely legitimate ones.

People v. Albillar (Cal. Supreme Ct. - Dec. 20, 2010)

Can a rape be committed "for the benefit of" a street gang?  I wouldn't have normally thought so.  Nor do Justices Werdegar and Moreno, who dissent.

But Justice Baxter makes a nonfrivolous argument to the contrary, and persuades the remainder of the California Supreme Court.

It's a tough call.  On the one hand, clearly the conduct here -- both during and after the rape -- was "related" to the defendants' status as gang members.  On the other hand, unless you're going to call any crime collectively committed by gang members as "for the benefit of" the gang" -- so they can giggle and taunt others about it, and feel collectively more brazen about their violations of the law -- it seems a pretty big stretch to say that was transpired here was designed to benefit the gang.

So both the majority and the dissent have a point.  Not an easy case.

Chino Commercial Bank v. Peters (Cal. Ct. App. - Dec. 13, 2010)

Never, ever, ever -- ever -- respond to an e-mail about some purported moneymaking scheme.  Never send money overseas to someone you don't personally know.  Never assume that just because the bank said that a check has cleared that means that it has actually "cleared" in the sense that it's not forged and the bank won't come back to you for the money.  Never do any of the above, much less all of them.

Ignore the above at your half-million dollar peril.

Good advice heading into the weekend, I figure.  Going to need some savings to pay those credit card bills in January.

Balsam v. Tucows, Inc. (9th Cir. - Dec. 16, 2010)

I guess if you're going to lose your million-dollar-plus default judgment, it's at least nice that Judge McKeown lets you down easily, saying:

"There is no simple remedy for the vast number of unsolicited emails, popularly known as 'spam,' that fill our electronic inboxes daily. Even though federal and state legislatures have adopted various laws to combat this problem, 'spammers' continue to find new ways to advertise. Daniel Balsam, a victim of spam, seeks an alternative method of enforcement by bringing claims against the registrar of a domain site that bombarded him with more than 1,000 unwanted emails advertising a pornographic website. He claims that the registrar utilizes a system to hide the identity of spammers, making it difficult to identify the spammer. We consider Balsam’s claim that he is an intended third-party beneficiary of an agreement between the registrar and the Internet Corporation for Assigned Names and Numbers(“ICANN”). Under Balsam’s theory, the agreement’s provisions on wrongful use of domain names inure to his benefit. Although his approach is novel and creative, it cannot survive a motion to dismiss."

So no prize for you, contestant.  But we do have some nice parting gifts.

Overhill Farms v. Lopez (Cal. Ct. App. - Dec. 14, 2010)

Assume that I call you a racist.  Is that defamatory?  Remember:  Truth is a defense.

Let's be more concrete.  Assume you run a company that employs a lot of low-skilled laborers.  Assume further that the IRS contacts you in connection with an audit and tells you that 231 of your current employees have invalid social security numbers -- which is common for undocumented/illegal immigrants -- and that you could be penalized a substantial amount for employing such individuals. You then tell each of these employees that they better give you a right social security number within 30 days.  Only one does so, with several others admitting that they were in the country illegally.  For everyone who can't (or doesn't) give you a valid social security number, you send 'em another letter giving them another 30 days, and when they can't (or don't) provide the required information, you fire them.

The fired employees, and other activists, then take to the streets.  Calling your company "racist" for its acts, which disproportionally affected -- as you might imagine would be in the case -- Hispanics.  The company then sues for defamation.  Defendants file an anti-SLAPP motion -- as, again, you might expect -- arguing that their speech is protected and that their assertions are opinion and are not demonstrably false.

Who's right?

On the one hand, I'm pretty convinced that the company didn't fire the employees on account of their race.  Or gender, or anything else that's protected.  They fired them because they couldn't provide valid social security numbers, and were probably undocumented/illegal immigrants.  Either way, they were someone who the company could get in trouble for employing.  So I'm confident that any inference that the company fired people on account of their race is demonstrably false.  As indeed the employer would undeniably prove, even on summary judgment, were any of the fired employees to sue for race discrimination.

On the other hand, what does it mean to be a "racist," or to be called such during a labor dispute?  After all, your act did indeed have a disproportionate effect on a particular racial group.  Maybe what we're saying is that you engaged in a "racist" act because it had such an effect.  Or, more accurately, that you were insufficiently sensitive to such consequences, and were all-too-willing to engage in such an activity -- that you should (and would) have borne the risk of IRS scrutiny if the affected workers had been of another race.  Or maybe calling someone a "racist" is simply an inherently subjective assessment, and not "demonstrably false" for purposes of defamation law.

So see who you think's right in this one.  I've slightly changed (and added to) each side's arguments.  But you've got both a majority opinion and a dissent.  Who comes out the winner?

P.S. - I can't believe the Court of Appeal didn't initially publish this one.  It not only meets the standards for publication, but is also thought-provoking.  Good call to publish it.  Albeit belatedly.

County of Los Angeles v. LA County Employee Relations Comm. (Cal. Ct. App. - Dec. 15, 2010)

I was on a plane and out-and-about nearly all day, but when I returned to the intertube this evening, I saw this case.  Which made me feel just fine, and seems to strike an entirely appropriate balance.

Some LA County employees are represented by the SIEU, but don't have to pay certain portions of union dues if they don't want to, even though the union is required to represent them.  Fair enough.  The SIEU wants contact information for these quasi-members so it can properly represent their interests.  Fair enough as well.  But L.A. County doesn't feel like giving it out, reasoning that some of these members might not want the union to have this information.  Fair enough as well.

So the Court of Appeal holds that, as a matter of state constitutional law, the members have a protected privacy right in their information, and that before disclosure, they should receive notice and an opportunity to opt out.  That seems like a pretty fine balance.  Especially, in my view, since these individuals get an annual Hudson notice anyway, and it's easy to supplement that information with notice that the union wants their contact information and an opportunity to object if they don't want that to happen.  Seems reasonable.

Two quick points.  First, here's an example of a state court using state constitutional provisions that are more expansive than federal law.  I like that.  It doesn't happen much.  Or as often as it should.

Second, in this particular case, I couldn't help wondering about preemption.  The Court of Appeal doesn't talk about it, so I assume that federal labor law doesn't apply (even though at least one of the lower tribunals relied upon federal law in ordering disclosure).  At least for those uneducated readers such as myself, my curiosity would have been satiated by a single footnote or something reminding me why state law wasn't preempted.  Maybe it was there and I missed it.  Entirely possible.  But it was a lingering question for me.

But, all in all, I thought this one was pretty fair and balanced.  Like Fox News.

(Just kidding about the reference.  Obviously.)

U.S. v. Goyal (9th Cir. - Dec. 10, 2010)

Look, Alex, I'm with you.  Seriously.  I too don't like it when the government files criminal charges against someone who's not guilty of anything.  It's an abuse (and waste) of government power.  It destroys people's lives.  It's normatively wrong.

So when you write a long concurrence -- with flourish and outrage -- about the impropriety of the government doing so, please don't think I'm not sympathetic.  Because I am.  Truly.

But is this really the best case in which to get up on that horse?

I'll take the panel's word that the evidence against the defendant was insufficient because the government didn't introduce enough  proof that the altered revenue in this criminal securities case was material.  I'm not at all sure about that.  The heightened revenue consisted of huge deals, worth millions of dollars -- almost a full quarter of the company's annual revenue -- and this is no small company:  it's McAfee (now known at Network Associates).  If you're frontloading fake revenue in that amount, I think it's at least plausible that that's material.

But let's assume you're right; and, again, I think that's plausible.  Is this really the best case to write a lengthy concurrence that bemoans the injustice of erroneously charging a criminal defendant, the harm to someone that results from criminal charges, and the alleged adequacy of alternative civil suits?

I mean, let's face the facts.  Yes, the evidence might not have been sufficient, but it sounds like that's only because the AUSA thought that either the stipulation or the undisputed size of the transactions would be sufficient.  So Goyal's perhaps "innocent" not primarily because of what he did, but rather from an erroneous tactical decision by the government.  Hardly the best case in which to raise the banner of actual innocence and government overreaching.

But let's ignore all that.  Judge Kozinski's concurrence cries for Goyal, and says:  "Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal."

I feel extremely badly for people unjustly convicted.  But in the pantheon of those people -- of whom there are no shortage -- Mr. Goyal is pretty low on mylist.  For one thing, he did something wrong.  Maybe it wasn't criminal, but it was wrong.  He manipulated revenue by doing deceptive (and essentially fake) quarter-end deals.  He did it deliberately:  to deceive others into buying (or holding) his company's stock.  He did it for personal gain:  he benefitted reputationally and through his stock options, and to a significant degree.  His conduct was "illegal" in that it was, at a minimum, a civil tort.  As well as morally inexcusable.  It distorted the market and harmed both the company and its investors.  The fact that lots of companies do the same thing -- and I assure you they do -- only makes it worse, not better.  These shenanigans are hardly morally praiseworthy.  They're bad things.

So this is not, for example, a woman who's unjustly convicted of shaking her baby to death and spends a decade in prison as a result.  For cases like that, I'd definitely write (or, better yet, sign onto) Judge Kozinski's powerful concurrence.  But here's a guy who does something demonstrably wrong and at least arguably gets off on a technicality due to a prosecutor's mistake.  That's really the best case for something like this?

Plus, is this really the best case for Judge Kozinski to argue that we should leave stuff like this to civil courts?  Sure, they'll be a lawsuit.  Several.  And you know what will happen?  They'll be settled.  For pennies on the dollar.  With the money coming from an insurance company, most likely.  The actual wrongdoer will pay not a cent.  Boy, that really deters misconduct.  I can't see at all why anyone would maybe want to add some potential criminal responsibility as well.

So it's not that I didn't like Judge Kozinski's concurrence.  I did.  A lot.  But I'd have written it in an entirely different case.  And, at best, would have referred to that concurrence in this case obliquely: e.g., by saying:  "I have previously expressed my distaste for criminal charges brought against innocent defendants.  See [Citation].  I reiterate those comments here."  'Cause I've seen far, far worse cases than this one.  So has Judge Kozinski.  And given the facts of this case, and the underlying conduct, to me, the presentation of these arguments here detracts, rather than adds, to the power of what Judge Kozinski says.

Which is too bad.  'Cause there's really great stuff here.  Which I'd be praising effusively, and without reservation, if said in a different type of case.

In short:  I'd have picked a different horse.

Pollard v. The GEO Group (9th Cir. - Dec. 10, 2010)

Judge Bea understands how difficult it is sometimes to come up with the first paragraph of a petition for certiorari.  So he helps the defendants through their anticipated writer's block by writing it for them in this dissent from the denial of a rehearing en banc.  The first paragraph of which reads:

"The panel majority—over a vigorous dissent by Chief Judge Restani of the Court of International Trade—extends and grants a Bivens claim to a prisoner against private company prison guards who are unprotected by notions of qualified immunity, available only to government employees.  It does so for personal injury claims between California litigants, for acts and omissions which took place in California, and for which California tort law provides adequate remedies through compensatory and punitive damages. In doing so, the panel majority frankly admits its opinion creates an irreconcilable conflict with the decisions of two federal circuits, the Fourth and Eleventh. Further, it disregards the Supreme Court’s narrowing instructions on Bivens, which have limited recognition of new Bivens actions to those situations where, for one reason or another, damages were unavailable under both state and federal law. [S]uch an unprecedented opinion demands further review. . . ."

Don't be surprised if you see that same first paragraph as the first paragraph of defendant's petition for certiorari.  It'd be mine.

U.S. v. Johnson (9th Cir. - Nov. 29, 2010)

I just stepped off a plane at SFO, am giving a talk today (alongside Gerald Uelmen and Justice Grodin) on the legacy of Chief Justice George (feel free to check it out), and am flying back this afternoon, so I won't have the ability to read opinions today.  Sadly.

But I can still talk about opinions from a little bit ago that struck my fancy.  For example, in an otherwise nonremarkable opinion, the Ninth Circuit recites the following plea colloquy in a case in which the deal was that defendant would plea guilty and waive his right to appeal.  Discourse that anyone who's spent some time in a federal district court will immediately recognize as something that happens all the time:

"THE COURT: Sir, do you understand that by entering into this agreement and pleading guilty you’ve agreed to give up your right to appeal any sentence you receive in accordance with the terms of this agreement?
JOHNSON: Yes.
THE COURT: Did you discuss waiving your right to appeal with your lawyer?
JOHNSON: Yes.
THE COURT: And based on that conversation, having considered the matter, do you wish to give up your right to appeal on the terms and conditions set forth in the plea agreement?
JOHNSON: No."
 
Oopsies.  Wrong answer.  So do we engage in extensive conversation with the defendant to make sure he really and truly knows what's going on?  Let's see.  Immediately after the "No," here's what happens:
 
"THE COURT: Okay. Why don’t we try that again. Okay. As part of this plea agreement there are certain conditions that he just recited that you’ve agreed to waive that pertain to your right to appeal. Do you understand that?
JOHNSON: Yes.
THE COURT: Okay. Now, do you still wish to go forward with the plea agreement and agree to waive your right to appeal on the terms and conditions set forth in the plea agreement?
JOHNSON: Yes."

Ah.  The Magical "Yes."  That's what we were looking for.  Glad we got the kabuki play back on track.

Stahl v. U.S. (9th Cir. - Nov. 29, 2010)

I'm utterly fascinated by this one.

It's a tax opinion.  So you wouldn't initially think it likely to result even in interest, much less total fascination.  But fascinating it is.

Because it's basically about how the U.S. tax laws treat communists.  In particular, religious communists engaged in capitalism.  Or, more specifically, how we tax (or don't tax) people who eschew private property and live in a religious commune in which all income and expenses are owned and distributed collectively.

I admit that I didn't know much about Hutterite communities before I read the opinion.  But now I do.  They seem pretty similar to other utopian communities like the Oneida colony.  The one at issue here runs a huge (30,000 acre) farm in Washington and has 65 members.  It's incorporated as a religious corporation, all of the members eschew private property, every member works on the farm, and the corporation provides all of the members' food, clothing, medical care, etc.  Your basic communist organization working in a captialist society.

Fair enough.  Everyone gets to organize their private lives how they want.  All we care about is this:  How do we tax 'em?

Well, there's a special provision in the tax code that basically says that since the organization is a nonprofit religious corporation that doesn't pay taxes, income is imputed to the individual members based upon their pro rata share of the corporation's net income.  Makes sense, right?  We don't want such entities to be entirely untaxed, including whatever profits they make.  That'd be unfair, since we tax profits for everyone else.  At least when, as here, they get used to benefit the standard of living of their constituent members.

But here's the problem:  Can the members essentially deduct their living expenses -- food, clothing, etc.?  The corporation paid for these things, after all.  It's a "ordinary" business expense in the sense that that's the basic purpose of the corporation, and as the owner of all the property with the responsibility for paying these things, that's the whole point of the enterprise.  So doesn't that reduce the corporation's "profit" and hence the pro-rata tax liability of the members.

But why should members of these organizations get to deduct such expenses when no one else gets to?  For example, Person A works on a regular non-profit collective farm, gets $30,000 as his pro-rata share of the net profits of this enterprise, and subsequently spends $30,000 on food, shelter, and clothing.  He's taxed on the entire $30,000 he received.  No deduction for food or (unmortgaged) housing.  Should the result change if the enterprise is structured in the way that Hutterite communities are structured?

Every court to have considered the issue thus far has said "No" -- holding that the individual members of such communities don't get to deduct their living expenses.  But the Ninth Circuit holds otherwise, and reverses the grant of summary judgment to the United States.  So it may end up that the members get to deduct their living expenses.

Judge Fernandez's opinion makes some doctrinal sense, and he limits the opinion to discussing the particular "employee" issue on which the district court granted summary judgment.  Though I still have a lingering and somewhat uneasy opinion about the net result.  This from someone who's pretty pro-Utopia.

The one thing that I thought Judge Fernandez might have explored a bit more is the nature of "control," as he concedes that this is a pretty decisive tax factor.  In a broader utopian community, I have little doubt that the corporation "controls" its employees/members, and this control is exercised in an ordinary fashion that's fairly typical and understandable by tax law.

But this particular Hutterite community -- as well as many others -- is somewhat special in a way that might be highly relevant to the control issue; in particular, the fact that all of its 65 members are part of one family.  The Stahl family is the community at issue, and consists of eight brothers, two sisters, their spouses, and their children.  So what the Stahls have basically done is to incorporate their family (and family business) and are using that entity to provide food, shelter, and other living expenses for the family.  Do they get to deduct that stuff?

Now, I have no doubt whatsoever about the sincerity of the Stahl's family's beliefs.  I'm positive that they are true believers, and profoundly respect their decision.  But I can't help but wonder whether the definition of "control" that's normally used in tax law for typical employer/employee relations doesn't get distorted a bit when we're talking about a communal family.  When my mother tells me what to do, and I obey -- either as an adult or a child -- I'm not sure that I'm doing so because I'm an "employee" of hers, or are subject to the same control dynamics and are typically at work in a corporate setting.  It seems qualitiatively different to me.

Moreover, when an organization consists entirely of a single family, I just get nervous -- at least potentially -- about the potential results elsewhere.  Imagine that I truly believe, for example, that my own family, consisting of myself, my spouse, and my four children, should all live communally.  As we in fact do.  With no individual "owning" any particular piece of property, but with me (like John Stahl) as the "President" who's in charge of making decisions about the community.  With input and direction, of course, from my fellow members.

I sincerely believe this.  God wants us to be a family.  Undiluted by individual ownership.  Do I now get to deduct all of our living expenses; food, clothing, shelter, etc.?  If so, I'm definitely going to check out the Bible in more detail this weekend.  With a sympathetic view about anything that God might say about the unity of the family.  With more than casual references, if necessary, to the Koran, Book of Mormon, and anything else that might be helpful.  The end of the tax year is coming up, after all.

I've got additional thoughts on this, and it's a really complicated issue (and not one that's definitively resolved by this particular Ninth Circuit opinion anyway), but this post is already too long.

My short take:  It's clearly a topic worth thinking about.  Maybe even worth someone's time (not mine) to write a law review article about.  It'll definitely get read more than a lot of law review articles about tax.

Doe v. Albany USD (Cal. Ct. App. - Nov. 30, 2010)

You've gotta have phys ed.  At least for 20 minutes a day.

That's what the statute says.  That's what the Court of Appeal rightly holds.

The law couldn't be clearer.  Justice Hull writes a direct and cogent opinion.

Some cases are easy.  I don't know how the trial court got this one wrong.

U.S. v. Lopez-Velasquez (9th Cir. - Dec. 7, 2010)

You'd think it was an easy case.

Eduardo Lopez-Velasquez gets deported in 1994 at a group proceeding in which he wasn't advised of the potential availability of discretionary relief from deportation.  He was married to a U.S. citizen at the time, and had two young U.S. citizen children, so it was at least possible that he was eligible for such relief.  Then, in 2006, he gets indicted for illegal reentry after being deported.  The question is whether the prior failure to advise him of his rights meant that the indictment should be quashed.

The answer seems pretty clear.  The district court said:  "Yes."  The case then went up to the Ninth Circuit.  Which also said "Yes."  Without dissent.

So there you have it.  A pretty easy case, huh?

Yep.  Totally.  Mind you, the case gets taken en banc.  But even there, the vote's unanimous.  11-0.

The other way.

It's pretty rare for the en banc panel to be unanimous.  I'm sure that there are other cases in which that's happened when the district court and panel below were unanimously the other way.  But I'm confident it's darn rare.

But we get to see it today.

Goldberg v. Pacific Indemnity Co. (9th Cir. - Dec. 6, 2010)

I'm writing my Civil Procedure exam today.  Or at least I'm supposed to be writing it.  It was due on Friday.  Instead, I'm reading the eight Ninth Circuit opinions that were published today.  Those couple hundred pages have somewhat gotten in the way of my "academic" productivity today.  Not to mention the California Court of Appeal opinions, which continue to roll in.

Fortunately, my various functions somewhat overlap today.  Amongst the various Ninth Circuit opinions was this one.  Which raises a classic Erie question:  Whether a federal court is required to follow Arizona Rule 68 and allow recovery of expert witness fees and double costs when a defendant makes a federal Rule 68 offer, it is rejected, and plaintiff's ultimate recovery is less than the offer.

It's such a classic Erie question that I might be willing to make this fact pattern part of my exam, but the fact that there's an actual opinion out there (and that the essay portion open-book) probably means I won't do so.  Probably.  If I can't get my exam written pretty soon, taking a ready-made hypothetical and retyping it as my exam might start looking pretty good.  The Dark Side.  It's seductive.

The First Circuit held, in an analogous context, that the federal court was required to follow the state rule.  The Ninth Circuit concludes otherwise, holding that Federal Rule of Civil Procedure 68 is sufficiently broad to cover the matter and hence a federal court is not required (or allowed) to follow the state rule.

Were I to give this question as my exam, the Ninth Circuit's opinion would receive an A.  Maybe even an A+ -- though I have to somewhat adjust my grading scale, as the panel had several months to write the opinion, whereas the most my students would have is three hours or so.  To get an A++, the Ninth Circuit might have wanted to write a little bit more about potential conflicts between even plaintiff offers and Rule 68; there is, in my view, a decent argument that federal courts cannot impose post-offer penalties even when plaintiffs make an offer, on the theory that Rule 68 deliberately omits plaintiff offers from coverage and hence involves a policy decision that sufficiently covers the area.  But I admit that's somewhat of a tangent, so I wouldn't give that topic many points.  I'd just be a bit more skeptical about that than the Ninth Circuit's opinion is.

The First Circuit's opinion, by contrast, would receive a D.  It doesn't discuss the Erie question virtually at all.  It's takes a ton of things virtually for granted.  It's simply not good at all.  So, seriously, it'd receive a D if one of my students wrote it as an exam answer.

Which is somewhat ironic.  Since the author of that First Circuit opinion was a former professor of mine -- to whom I once turned in a exam.  A guy you may have heard of.  Whose last name is Breyer.

Oh, Stephen.  You know you can do better work than this.  The Ninth Circuit crushed you.  And we grade on a curve.

Tijani v. Holder (9th Cir. - Dec. 6, 2010)

Here's a neat little puzzle.

It's a three-judge panel, and all of its members are Ninth Circuit judges.  An opinion gets written, and the inevitable post-opinion petitions are filed.  One judge votes to grant the petition for panel rehearing.  Another judge would vote to grant the petition for rehearing en banc.

But the petition for rehearing en banc is denied, with no judge requesting a vote.  How does that happen?

Here's one way.  Check out the panel composition, and how they vote.  Pretty neat.

U.S. v. Bush (9th Cir. - Dec. 3, 2010)

It was true in the twentieth century.  It's true in the twenty-first.  Barring an economic castastophe, it's always going to be true.  It nonetheless bears repeating, if only because so many people fail to understand it.  So I'll do my public service message for the day:

When someone promises you a 25% return on your investment every month, it's a scam.  They're lying.  It's not true.  Run -- don't walk -- from the guy.  (It's almost invariable a dude.)

Here's the latest Ponzi scheme to reach the Ninth Circuit.  In which (1) the guy gets sentenced to 30 years, (2) his convictions get affirmed, and (3) I couldn't be happier.

Javhlan v. Holder (9th Cir. - Dec. 3, 2010)

It's "Dissent Friday" today on the Ninth Circuit.  A day in which each of the last three published opinions involves a 2-1 decision.  Each with a dissent by the most conservative member of the panel.

Judge Ikuta dissents in this case, an immigration opinion (asylum) authored by Judge Pregerson and joined by Judge Dorothy Nelson.  The second case is the one I mentioned earlier today -- Peterson -- in which Judge Randy Smith dissents from an opinion authored by Judge Betty Fletcher and joined by Judge Thomas.  The third is Milovanovic -- the latest installment in the avalanche of recent "honest services" cases -- in which Judge Fernandez dissents to an opinion by Judge Kleinfeld joined by Judge Clifton.

Feel the love.

Peterson v. Iran (9th Cir. - Dec. 3, 2010)

We just went over affirmative defenses in my Civil Procedure I class.  What counts as one, as well as what the consequences are of not raising it.

Think it matters?  It does here.  To the tune of over two billion dollars.

This is admittedly a somewhat unusual case, and involves plaintiffs who sued Iran -- successfully -- for sponsoring the 1983 bombing of the U.S. Marine barracks in Beruit.  Plaintiffs got their $2.6 billion-plus judgment by default and then moved to enforce it -- no easy task -- by attempting to seize Iran's right to obtain payments from a French shipping company that does business in Iran.

The district court raised the issue of Iran's sovereign immunity sua sponte and denied the requested seizure.  The Ninth Circuit, in an opinion by Judge Betty Fletcher, affirms.  Judge Randy Smith dissents, arguing that sovereign immunity is an affirmative defense that Iran waived by failing to defend the action.

It's a good discussion on both sides.  The Ninth Circuit joins the Fifth Circuit in so holding, but the Seventh Circuit has a pending appeal that raises the same issue.  Particularly given the stakes involved, Judge Smith's dissent gives plaintiffs a tolerable (but by no means certain) shot at certiorari.  Though it's possible that the Supreme Court would wait until the Seventh Circuit decides to see if there's a circuit split.  Plus may not want to get into troubling foreign affairs issues like this one unless it absolutely needs to.

But for now, plaintiffs are out of luck.  Sorry about that.  Congratulations -- I guess -- to Iran.  Not the most sympathetic defendant, but it wins this one.

People v. Favor (Cal. Ct. App. - Dec. 2, 2010)

Here's a guy I'm glad will be off the streets.

Golin v. Allenby (Cal. Ct. App. - Nov. 30, 2010)

This opinon seems entirely correct.  As far as it goes.

Jeffrey Golin and Elise Golin are surely vexatious litigants.  Of that there can be little doubt.  But defendants didn't show that their claims had no reasonable probability of success.  So the trial court's imposition of a half-million dollar bond requirement gets reversed.  Makes sense.

But I wonder if the Court of Appeal might have done a little more.  For example, among their other frivolous acts, the Court of Appeal notes that it's pretty clear that the Golins forged various proofs of service.  What about referring the matter to the District Attorney?  Moreover, the Golins also apparently ghost-wrote a large number of their attorney's filings in the trial court, and the Court of Appeal found that the attorney had little to no control over what was failed.  How about referring that attorney to the relevant Bar?

None of this is required, of course.  But I'm left with the impression that, to a degree, the Golins have "gotten away" with making the case a nightmare for the defendants below.  Which don't seem right.

People v. Smith (Cal. Ct. App. - Nov. 29, 2010)

Police officers perform a valuable and socially beneficial function.  They're not the enemy.  We should help them when we can.
 
We should even be willing to offer our assistance when it comes at some cost to us.  For example, were a police officer to come to my home and ask for my help -- for a glass of water, to make a phone call, to let him check out my back yard for a suspected burglar, etc. -- my very strong instinct would be to say "Yes."  That's what being a member of a society is all about.

Cases like this one, however, push me the other way.  Sending, in my view, exactly the wrong message.

There, police officers were doing probation/parole checks.  They thought that a particicular parolee lived at a certain house.  So they went there and knocked on the door.  No problem.

It's early, mind you -- 6:00 a.m. -- and before knocking, they peek through the window of the apartment and see a woman sleeping on a couch.  She wakes up when the police talk to her through the window, at which point the police say they're there to do a compliance check on a parolee (Mr. Jones).  The woman says that there's no Mr. Jones there, and that no one by that name lives there.   The police officers say that they'd like to come in anyway to check.  At which point the woman -- consistent with my admonition that we should try to help the police when we can -- agrees, saying: "Hold on.  Let me get dressed."

She then (understandably) goes into a back room, presumably to get dressed, but the officers also hear her doing something quickly in the kitchen and then hear her start the dryer, which starts "clunking" around like it has some metal in it.  She then returns and opens the door and steps aside.  The officers again say that they are there to check for Mr. Jones, telling her "Look, we're just here to check, [to] make sure [Mr. Jones] isn't here."

She again says:  "You can check, but [Mr. Jones is] not here. . . . Just me and my kids and my brother."  A statement that, again, is fine.  Go ahead and check.  It invades my privacy a bit.  But I'm happy to help.

The police, however, are suspicious.  Not of Mr. Jones, who's indeed not there.  But of Ms. Smith.  She put something in the dryer, probably.  And there's a marijuana smell in the apartment as well.  Which may explain why Ms. Smith was crashed on the couch.

So the police "check" for Mr. Jones.  Where do they "check" for him?  In the dryer.  Which they open up outside of the sight of Ms. Smith.  And which, predictably, contains some marijuana.  At which point they arrest Ms. Smith.

Ms. Smith says that she only consented to the police looking for Mr. Jones, and that since he clearly was not in the spinning dryer, that search violated the Fourth Amendment.  The police, by contrast, say that the only reason they opened the dryer was because it was "loud" (and they wanted to turn it off) and, in any event, it was legitimate to look inside for weapons or anything else that might be used against them.

Which is a total crock, of course.  They looked inside (rather than just opening the door a crack and shutting it to turn of the dryer) to see if anything illegal was inside.  And they had no reason whatsoever to think that a person who had just invited them inside her home was planning on killing them with a weapon that she hid in her dryer -- a dryer in an entirely different room than she was.

Nonetheless, the Court of Appeal holds that it's a legitimate search.  No Fourth Amendment violation.

Which, in turn, makes me much more reluctant to help.  You've got a citizen here who would have been entirely within her rights to say "Mr. Jones doesn't live here.  I don't give consent.  Go to hell."  But instead tries to accommodate the police.  And, for her help, ends up getting burned.  By officers who expand her consent to start searching for evidence against her.  And by a judiciary that says that's entirely okay.

Which perhaps doctrine allows.  Indeed, at this point, given the Court of Appeal's holding, undeniably does.

But it makes me that much less likely to help out officers.  This case will unquestionably enter my mind if the police ever come to my home and ask to enter.  Before, I'd have clearly let them in.  After, I'm not at all so sure.  Because if letting them in means they can -- and might well -- rummage through my dryer, drawers, etc., looking for evidence against me or even just invading my privacy, well, that's something very different.  Personally, it makes it much less likely for me to say "Yes."  Which is a bad thing.  But a direct consequence of opinions like this one.

People v. Rasmussen (Cal. Ct. App. - Nov. 9, 2010)

Happy post-Thanksgiving.

I don't know how many people actually work the day after Thanksgiving.  That's the problem with being in academia for so long.  You lose a sense of perspective.  I can see that there are exactly three cars in the USD law school parking lot today -- a lot that holds several hundred.  So if that's indicative, I'd say that Black Friday is going strong.  Ah, discretionary consumer spending.

No published opinions today either.  So let's check out one from a couple of weeks ago.  Here's a case from Humboldt County.  Tell me what you think the appropriate sentence should be.

"On August 7, 2008, Rasmussen entered a Bank of America branch in Arcata.  He was carrying a backpack and walked with crutches; his right leg had been amputated below the knee.  He spoke with teller Vanessa Carrasco and asked to withdraw money from his safety deposit box, but he did not have a key or a valid box number. Bank manager A.J. Gonzales attempted to assist Rasmussen, but could not locate any account belonging to him.  Rasmussen became agitated.  He motioned toward the vault and said he had money there, stated he and 'Oprah' owned the bank, and told Gonzales to take him back to the vault.  Gonzales refused.

Rasmussen became more agitated, frustrated and angry.  He swore at Gonzales and threatened to kill him and his staff, saying he had killed other bank managers before.  Gonzales, Carrasco, and another bank employee, Brittany Rogers, testified that Rasmussen raised his crutch as if he were going to use it to strike Gonzales and Carrasco.  Gonzales asked Rogers to call the police.  Gonzales also told Rasmussen he needed to leave the bank.

Gonzales continued to talk to Rasmussen until police officers entered the bank's east entrance.  When Rasmussen saw the police arrive, he picked up his backpack andwent out the northwest exit, walking quickly on his crutches.  The officers followed him out.

Arcata police sergeants Ben Whetstine and Bart Silvers arrived at the bank in response to a report of someone inside the bank threatening to kill people.  When the officers entered, they saw Rasmussen on the west side of the bank.  Rasmussen began walking away rapidly on his crutches when he saw Whetstine.  Whetstine told Rasmussen to stop.  When Rasmussen did not stop, Whetstine, followed by Silvers, ran after Rasmussen and followed him out of the bank. Whetstine caught up with Rasmussen at the corner of Eighth and G Streets and told him to stop.  Rasmussen turned around, apparently let go of one of his crutches, and grabbed the other crutch with both hands like a baseball bat.  He took a step toward Whetstine as if he were going to swing the crutch at him.  Whetstine believed Rasmussen was threatening him with the crutch and was capable of carrying out the threat.

Whetstine stepped back and took out his taser.  Whetstine told Rasmussen he would use the taser on Rasmussen if he did not put down the crutch.  Rasmussen dropped the crutch and sat down. When Silvers arrived, along with Officer Jorge Sanchez, Rasmussen was crouched down with his knee bent, leaning against a wall and almost sitting on the ground.  Whetstine told Rasmussen he would be detained in handcuffs until the police determined what had happened at the bank.  Silvers and Sanchez then took hold of Rasmussen's arms in an effort to put his hands behind his back to handcuff him.  Sanchez attached a handcuff to Rasmussen's right wrist.  However, Rasmussen resisted the officers‘ efforts to handcuff him; he said something like 'not behind my back,' lunged forward, and brought his arms and hands down to his waist in front of him.

Whetstine told Rasmussen he would use the taser on Rasmussen if he did not stop resisting.  Rasmussen did not stop resisting, so Whetstine removed the taser cartridge (containing the probes) from the taser and pressed the taser against one of Rasmussen‘s shoulders in a procedure known as a 'drive stun.'  Rasmussen reacted by struggling more violently.  Still in a crouch, Rasmussen kicked at Whetstine with his good leg, almost hitting Whetstine in the face with his foot.  Rasmussen also got his right arm free and, with the handcuffs still attached to that wrist, began swinging at the officers.  Silvers let go of Rasmussen's left arm out of concern he would be hit by Rasmussen‘' fist and the handcuffs.

The officers again warned Rasmussen to stop resisting, but he continued to thrash.  Whetstine put the cartridge back into his taser and deployed it at Rasmussen.  One of the probes hit Rasmussen in the torso.  Rather than incapacitating Rasmussen, this only further enraged him.  Rasmussen jumped up and, using his amputated leg and the wall of the bank for support, continued swinging and punching at the officers; he also swore and yelled at them. Sanchez then deployed his taser at Rasmussen; the probes struck Rasmussen's right hand or arm, but did not incapacitate Rasmussen.  Rasmussen said, 'Is that all you‘ve got?' Rasmussen, without his crutches and using his amputated leg, advanced toward Sanchez, moving rapidly, 'a lot faster than a walk.'  Sanchez backed quickly away from Rasmussen.  While retreating, Sanchez sprayed pepper spray at Rasmussen, which had no effect.  Some of the spray hit Silvers in the eye, and he turned and covered
his face out of concern Rasmussen was about to attack him.

Seeing that Silvers was incapacitated by the pepper spray and that Sanchez had both hands full with his deployed taser and his pepper spray, Whetstine ran up to Rasmussen, got him in a headlock, and threw him to the ground.  Rasmussen continued to struggle with Whetstine as they rolled around on the ground, and he continued yelling and cursing.  When Whetstine got on top of Rasmussen, Silvers and Sanchez grabbed  Rasmussen‘s arms and handcuffed Rasmussen‘s hands behind his back.  Rasmussen continued physically resisting until he was handcuffed.  At that point, Rasmussen and the officers were in the middle of Eighth Street, 10 to 20 feet from the bank.

All three police officers suffered minor scrapes and abrasions, and Silvers had to decontaminate his eye from the pepper spray.  Rasmussen had an abrasion above his eye, scrapes on his back, and bleeding and abrasions on his amputated leg."

What do you think?  Does three years in prison seem about right?  Which is what Rasmussen gets.

Parenthetically, the entire story doesn't make me very confident in the stopping power of tasers and/or pepper spray, at least as practically employed here.  Neither can put even a dent into a man who's on crutches and an amputated leg?  Not that impressive.

Lyon v. Gila River Indian Community (9th Cir. - Nov. 24, 2010)

This is as good of an opinion as I've seen from Judge Wallace in a long time.

It's crisp.  It's smart.  It's comprehensive.  And it's rendered in a very difficult case, one that's both fact-specific as well as incredibly doctrinally complicated.  It's about highways, easements, Indian tribes, and primary jurisdiction.  Difficult stuff.  None of which precludes Judge Wallace from writing a masterful opinion.  Well done.  Extremely.

This is, indeed, one of those few cases where the first three-quarters of the opinion are so persuasive and well-written that at the end -- where I started to be less confident of the correct result -- I totally found myself giving deference to the opinion.  On the theory that the author was so smart, and so clearly informed about this stuff, that the opinion was probably right even about stuff I wasn't all that sure about.  That virtually never happens for me.  It's a testament to the quality of the opinion that I found it happening here.

So an impressive piece of work.  I don't think that even Judge Canby -- who's "Mr. Indian Law" -- could have done better.

Kudos.

Eklund v. City of Seattle Municipal Court (9th Cir. - Nov. 24, 2010)

Twenty-five (!) single-spaced pages of facts.  Four pages of analysis.  Not exactly the way I'd write an opinion.  Particularly when sixteen of the fact pages simply type, verbatim, various letters back and forth between the parties.  Which are interesting, to be sure, and relevant.  But we can shorthand these.  Not necessary to kill lots of trees.

Which -- and maybe I'm being presumptuous here -- is perhaps why Judge Canby writes a one-sentence concurrence in which he says (in toto):  "I agree with the analysis set forth in Judge Noonan's opinion, and I concur in the judgment."  In other words, the four pages are fine, and can we please shorten the rest?

As for the result, though, I agree.  The jury got this one wrong.  You could perhaps have had a better procedure, but there's no constitutional violation here, and plaintiff definitely (in my mind) got what he deserved for fixing his own tickets.  Indeed, probably should have gotten more.

Not a good Day Before Thanksgiving for Bruce Eklund, who sees his almost half-million dollar judgment go away.  But a correct result.

Humane Society v. Locke (9th Cir. - Nov. 23, 2010)

For a sense of our societal values, check this one out.

The Columbia River has a number of threatened or endangered fish species, including five salmon and steelhead populations.  We want to preserve these species.  That makes sense.

Lately, the endangered fish species have taken a hit from three basic sources:

(1)  The Bonneville Dam.  It kills between 5 and 15 percent of the fish.
(2)  Commercial and recreational fishing.  That also kills between 5 and 15 percent of the fish.
(3)  Sea lions.  They've lately been eating 2 to 4 percent of the fish.

So what's the solution?  How should we save these endangered species?

Kill the sea lions, of course.

There's obviously a basic value decision at issue here.  You can decrease the number of people who can fish for fun.  Or you can kill some mammals who are eating to survive.  Society's call.

People v. Shrier (Cal. Ct. App. - Nov. 23, 2010)

Agents from the California Department of Justice intentionally eavesdrop upon privileged attorney-client communications while the attorney and client are at the DOJ.  The court below dismisses the charges against the defendant based upon this outrageous conduct.  The Court of Appeal reverses.

Justice Yegan argues that while such a dismissal "surely would have a deterrent effect upon law enforcement agents," it is "too drastic and would be 'judicial overkill.'"  The Court of Appeal holds that the exclusion of the overheard communications and any derivative evidence is instead sufficient, as such a lesser remedy would "deter over-zealous law enforcement agents as there is nothing to be gained by such unlawful activity."

This is true.  As long as the chance of being caught is exactly 100 percent.  In the real world, however, the probability of being caught is way, way less than that.  Which means that simply restoring the status quo (by excluding the evidence) only remedies the misconduct in the particular case, and does not accomplish the goal of general deterrence.  It's like saying that the proper penalty for a guy who commits burglary is simply to order him to put the stuff back.  Sure, such an order means that "there is nothing to be gained by such unlawful activity" in this particular case.  But it doesn't do what a dismissal would, which is to create a deterrent effect by making the situation worse for the perpetrator in the event they're caught.

Justice Yegan distinguishes an earlier Court of Appeal case, Morrow, in which a dismissal of criminal charges was upheld based upon similar facts by arguing (inter alia) that the misconduct in that case was worse since it was performed by a prosecutor.  Which is, again, true, but also cuts the other way as well.  With prosecutorial misconduct, there's also potential Bar remedies, which may make dismissal less necessary since alternative forms of deterrence are available.  But when the misconduct comes from the police, such external remedies are unavailable; indeed, I imagine that the offending officers here might well get "attaboys" from their colleagues for their efforts -- a far cry from the deterrent that potential Bar discipline creates.  In such situations, a dismissal would be more necessary, not less.

Admittedly, like everyone else, I wish there was an intermediate remedy.  I'd be satisfied with charging the offending DOJ agents with a misdemeanor, for example.  But the stark reality is that we all know that this is not going to happen -- indeed, in the Court of Appeal (as well as below), the Attorney General's office defended what the agents did, arguing that it was entirely permissible for law enforcement agents to secretly listen to privileged attorney-client communications uttered in hushed tones in a private conference room (in Russian, no less).

While the Court of Appeal thankfully rejects this position, it's not enough.  There's no real deterrent if the only thing that gets restored is the status quo.  Which is a reality that I think Justie Yegan's opinion needs to address more directly.  And is the best argument for the decision below.

Arnall v. Superior Court (Cal. Ct. App. - Nov. 22, 2010)

Here's why you should always include in your retainer agreement the line "The attorney's fees set forth above are not set by law, but are negotiable between attorney and client."  Because the failure to include this written statement can, by itself,  cost you millions of dollars.  Seriously.

As Los Angeles attorney Alan Liker learns, to his chagrin, this afternoon.

D.N. v. United States (9th Cir. - Nov. 22, 2010)

I don't even understand why this one is close.

Wife kills Husband.  Husband has a 401(k) account.  Wife would ordinarily get it since she's the beneficiary, but you can't benefit from killing someone.  So the 401(k) goes to Son, a minor.

Does Son have to pay tax on the money?

Of course he does.  That's the way these things work.  When you get money, you pay taxes on it.

I can barely even understand Son's claim that Wife should be taxes instead.  Wife didn't get the money.  Son did.  That Wife could have gotten the money by not killing Husband, or by potentially claiming that she didn't kill Husband (she pled guilty), is irrelevant, 'cause they didn't happen.  Which is why Son got the money, and is precisely why he's taxed.

Easy cases make good law.

Hillis v. Heineman (9th Cir. - Nov. 19, 2010)

Perfect.
Not too long.  Not too short.  Not overly descriptive.  Not overly normative.  Correct holding.  Concise, understandable and clear.

Just like filing a permissive counterclaim doesn't waive an otherwise-preserved objection to personal jurisdiction, ditto for venue (e.g., on the basis of a forum selection clause).  A couple of older courts have perhaps held otherwise.  But that's neither the majority, nor the correct, rule.

Wonderfully said here, Judge Gould.

U.S. v. Spangle (9th Cir. - Nov. 19, 2010)

It's not that I find anything objectionable about this opinion.  It's just pretty strange/unusual to have an appeal that's in part about whether Judge Kozinski, sitting by designation in the Central District, should have recused himself from a criminal trial against a guy accused of sending threatening communications to various criminal justice officials when the dude had lots of stuff about Judge Kozinski in his car when he was busted.  So it definitely got my attention.

Ultimately, I'm totally fine with Judge Tallman's conclusion that Judge Kozinski didn't have to recuse himself.  Judge Kozinski clearly could have done so, and perhaps (out of an abundance of caution) should have.  (To be clear:  Judge Tallman didn't say that last part; that's my personal thought, and -- perhaps -- what I would have done had it been me.)  But it's not reversible error.  Yep.

But let me address one thing that the panel doesn't even mention.  Isn't it also a little strange that the three Ninth Circuit judges here are reviewing the (somewhat) ethical propriety of one of their colleagues?  Their (technical) boss, even?  What about them potentially recusing themselves?

Yes, I know:  Judges review the actions of people they know all the time.  But to me, there's something slightly different -- perhaps even qualitatively different -- about (1) reviewing the actions of someone you've worked closely with for (in Judge Tallman's case) a full decade, in a court that contains less than 30 people; and (2) reviewing a recusal motion, which seems somewhat special:  something more akin to reviewing the ethics of a colleague rather than a mere sentencing or legal decision of theirs.

None of which is to say that the panel members here should have recused themselves.  That's a personal decision.  Nor do I have any doubt that there was any actual bias here.  I'm quite confident that any of the three would be more than willing to smack down Judge Kozinski if they thought he'd done wrong.  Some on the Ninth Circuit might even find particular joy in doing so.

But at the same time, I could have totally seen someone recusing themselves here.  Or perhaps the entire Ninth Circuit.  I might have even leaned that same way myself.  Not because we have to.  But purely as a protective measure.  Just like we don't let (I believe) district judges sitting on the Ninth Circuit by designation rule on decisions of their colleages from the same district, a similar procedure might be valuable in cases like this one.

Just a thought.

Lewis v. Verizon Communications, Inc. (9th Cir. - Nov. 18, 2010)

The Class Action Fairness Act (CAFA) requires the Court of Appeals to decide a case within 60 days after permission to appeal has been granted.  That's pretty fast.  Doable, to be sure, but fast.

Sometimes a rush to judgment may have substantively deleterious consequences.  Other times, only relatively minor errors may be engendered.

Like the one at the top of page 10 of this opinion.  Which reads:  "To support removal, Verizon submitted an affidavit that it’s total billings for all ESBI services in California exceeded $5 million."

Oops.  Should be "its," of course.  Even though it's possessive.

Small price to pay, though, for speedy justice.

Christian Legal Society v. Wu (9th Cir. - Nov. 17, 2010)

Here's a per curiam opinion in a high profile case -- indeed, one on remand from the Supreme Court -- that's ruthlessly accurate and correct. 

Plaintiffs sued Hastings Law School arguing that its refusal to fund the Christian Legal Society violated the First Amendment.  The Ninth Circuit and Supreme Court rejected that argument. 

CLS also made an alternative argument in the Supreme Court that Hastings had applied its policies in an unconstitutional manner (the "pretext" argument).  The Supreme Court noted that none of the lower courts had expressed an opinion on this argument, so remanded the case for consideration of this argument "if, and to the extent, it is preserved."

The Ninth Circuit holds today that this argument wasn't preserved -- indeed, wasn't even made at all in the Ninth Circuit.  And is totally, completely, a thousand percent right.  Plaintiffs have extremely good advocates representing them.  They made a deliberate choice to raise only particular arguments.  They lost.  Their later claim that they raised additional arguments is simply untrue.  The Ninth Circuit gets this one exactly right.  It is a such a crush in this regard that plaintiff's counsel might even be a little embarrassed that they feel forced to argue otherwise.  Unless, of course, they've convinced themselves of the truth of their (totally erroneous) claims to the contrary.  Which, as we all know, happens all too often.

By the way, it's a per curiam -- and hence unsigned -- opinion, but it might as well be signed.  I'll eat my shorts if Judge Kozsinki isn't the author of this one.  Seriously.

U.S. v. Anderson (9th Cir. - Nov. 16, 2010)

You know it's an easy case when the Ninth Circuit only needs five paragraphs -- and no oral argument -- to reverse the district court.

Some opinions ain't that tough to write.

Martinez v. Regents of Univ. of Cal. (Cal. Supreme Ct. - Nov. 15, 2010)

Did you ever think that the California Supreme Court could decide an illegal immigration case unanimously?  Apparently it can.

The question is whether California's provision of resident tuition to illegal aliens is preempted by federal law; particularly, 8 U.S.C. sect. 1623, which was designed to prohibit such discounts.  The California Supreme Court unanimously holds that, no, the provision at issue isn't preempted, since it doesn't give in-state tuition to illegal aliens "on the basis of" their residency, but rather grants this discount on "other" grounds -- namely, the fact that they've spent three years in a California high school, etc.

It's a fascinating opinion, and at 25 double-spaced pages, a fairly easy read.  So I encourage everyone to peruse it.  Among other things, it explains -- fairly persuasively -- how a state can circumvent a clear federal mandate, at least when that mandate is expressed in somewhat imprecise words.  As is perhaps the inherent nature of language.

Two parenthetical points before I discuss doctrine.  First, Justice Chin's opinion carefully uses the term "unlawful alien" (rather than "illegal alien" or "undocumented person") and expressly explains why, arguing that this is a neutral "middle ground" between the two terms.  Personally, I'm not sure that "unlawful alien" is much different than "illegal alien" in terms of import and its alleged inherent prejudice, since "unlawful" and "illegal" are basically synonyms.  But so be it.  It's an least an effort.

Second, check out how much everyone on the California Supreme Court is willing to sign on to Justice Chin's relentless critique of legislative history.  Justice Chin's arguments here come straight out of the mouth of Justice Scalia, and are the subject of much dissention in the U.S. Supreme Court, and yet here, everyone is willing to sign onto them.  That speaks volumes about how much Justice Scalia's critique of legislative history -- which, thirty years ago, was heavily relied upon -- has pervaded and found acceptance in the lower courts.  Pretty fascinating.  I would have expected at least a concurrence by one or two justices saying that while Justice Chin might be right in the present case, legislative history shouldn't be relegated to the dustbin of history.  But no one does.

As for the merits, well, I'll mostly leave that for others.  Justice Chin does a good job of saying that the wisdom of illegal immigration isn't for the courts, that the judiciary has a limited job, etc. etc.  And, again, his opinion is fairly persuasive.

But nonetheless let me critique it a tiny bit.

The way that California gets around the federal law is by using proxies.  The federal law says that aliens not lawfully present in the United States can't get in-state tuition on the basis of residence within a state.   So California says, fine, we won't give them reduced tuition on that basis.  Rather, we'll give everyone in-state tuition who attended high school in California for three years and graduated.  Mind you, the vast majority of those people are in fact California residents, for the simple reason that you generally attend high school in the state in which you reside.  But not everyone does.  Some students go to California boarding schools but technically reside elsewhere.  A select few students in border districts go to schools across state lines.  So while the vast majority of people who qualify under the "in-state tuition for three years in a California high school" are already residents, and hence for whom the law doesn't matter, there are some people for whom it matters a lot.  The vast majority of whom are unlawful aliens, but some others are U.S. citizens.

Hence, the California Supreme Court holds, there's no conflict with the federal statute.  We're not giving unlawful aliens in-state tuition because of their residence within the state.  Rather, we're giving them in-state tuition because of their status as high school students in the state.  So what the federal statute precludes is not what we do.  Thus no preemption, either express or implied.

This is a neat trick, and it's one that the Legislature deliberately thought about when it passed the California statute.  The goal was to enact a statute that got around the federal statute.  The California Supreme Court holds that they succeeded.  Unanimously.

But I wish that Justice Chin had explored this issue in a tiny bit more detail.

I agree with him (and the Court) on express preemption.  When a statute says that you can't give X benefit due to Y, that doesn't preclude you from giving X benefit due to Z.  Y is not Z.  Moreover, as Justice Chin carefully (and admirably) establishes, Y is not even coterminus with Z.  If the federal statute wanted to stop X from being provided based on Y or Z, it could have said so.  But it didn't.  Hence no express preemption.

But implied and/or conflict preemption is a different, and more difficult, story.  Here, the purpose of the federal statute was clearly to prevent unlawful aliens from being entitled to in-state tuition when legal citizens (albeit out-of-state ones) were not.  Classically, the way that state universities had granted such a benefit was to grant in-state tuition based upon the residence status of unlawful aliens.  So the federal statute targeted that prevailing practice by prohibiting it.

The scope of that prohibition, however, may well be broader than the mere text of the statute.  For example, suppose that a statute says that you can't give X based on Y, the permissible purpose of which was to stop A's from getting X.  A state that had previously granted X based on Y then amends its laws to give the same X based not on the now-illegal Y, but rather on Z -- with the deliberate knowledge that all (or nearly) all Z's are Y and that all or nearly all Y's are Z.  Is there really no conflict preemption in such a setting?

Assume, for example, that California grants a $500 tax subsidy to everyone in the NBA, and the federal government -- which disagreed with the wisdom of such a policy -- passes a statute that says "No state shall provide a tax subsidy to an individual based upon his status as an NBA player."  The California Legislature then amends the statute so that it provides the exact same subsidy to anyone who meets all of the following criteria:  (1) is over six foot two inches tall, (2) is required to wear shorts and a tank-top uniform to work, (3) travels to over 20 different cities every year as a part of his work, (4) makes over $500,000 a year, and (5) dribbles a basketball at least fifty times a day.  Notice that Y is not equivalent to Z in this example:  there are some people in the NBA who aren't over 6'2" (or who make less than $500,000/year), and there may also be a few non-NBA players who qualify under the new statute (perhaps sports mascots or well-paid WNBA players).  Would we really say:  "No conflict preemption" in such a setting?  When the clear purpose of the California law is to circumvent the federal law, and when the clear purpose of the federal law is to prevent the benefit payout to nearly the precise individuals who qualify for it under the amended statute?

This, I think, is the hardest part about the case.  Especially when, as here, the trial court dismissed the lawsuit at the pleading stage.  Discovery might well have revealed that while Justice Chin is entirely correct that the population ofY and Z are not totally coextensive, it's nonetheless the case that 99% (or perhaps even 99.9%) of the people who in fact receive in-state tuition under the revised statute are unlawful aliens.  Presumably, at some meaure of overlap, even Justice Chin must concede that there's conflict preemption.  What point is that, and why doesn't the statute here satisfy that quantum?

Presumably, for example, Justice Chin would find a conflict between a federal statute that says "No state shall give a former President a house based on that person's status as a former President" and a state statute that says "We hereby give everyone a house if their first name is William Jefferson, they're married to the current Secretary of State of the United States, and their last name rhymes with 'Minton'."  When Y and Z perfectly (and deliberately) overlap, surely there's conflict preemption, right?  Seems to me that the same may be true at a 99.999% level, or lower.  Doctrinally, that's the hard part of the conflict here.  And one that the majority opinion -- while unanimous -- doesn't really address.

Of course, as with every difficult question, it's surely easier to simply punt.  But I expect a little more from our best and brightest.  Particularly when addressing the tough stuff may well be relevant to the proper resolution of the particular case before the Court.  That's the price, I think, of intellectual honesty.

So there are some lingering questions here.  Even though it's a 7-0.  Which, if nothing else, again make the opinion well-worth a careful read.

People v. Russell (Cal. Supreme Ct. - Nov. 15, 2010)

While intoxicated, during a fight with his to-be-ex-wife, Tim Russell assaults his wife, rips the telephone wire out of the wall, tells his wife not to call the cops, and leaves the premises.  His wife (smartly) goes next door and calls the police, and Russell returns to the home shortly thereafter with a gun.  Finding only his children and his sister-in-law still at the house, he orders them to leave, and they do so.  The police then arrive.  At which point Russell shoots the first two officers who arrive, who never know what's coming -- they still have their pistols in their holster.

Russell has no prior criminal record.  His first penalty phase ends in a mistrial.  His second results in a death sentence.  The California Supreme Court unanimously affirms.

Tough to say that this case is any worse than your typical murder-of-police-officers case.  So you've got the traditional problem of rationally deciding which cases are truly death-deserving.

But the reality is that if you deliberately shoot a police officer, you're exceptionally likely to be sentenced to death.  De jure possible.  De facto virtually certain.

U.S. v. Todd (9th Cir. - Nov. 15, 2010)

Westlaw gets some free advertising in both the majority and concurring opinions here.  With both Judge Noonan and Judge Milan Smith using their law clerks' anticipated use of Westlaw as examples of when you can "know" that a future event will transpire.  On the theory that when you give something valuable to someone for free, they will indeed use it.  Like crack.

Epistemologically, I think there might be some more work here that could be done by both judges, since there's still a lingering question about whether you truly know that a future event will transpire based upon past events -- and the examples that both judges use only really show (in my mind, anyway) that you have a legitimate reason to believe that Future Event X will transpire.  Sure, maybe all ten of your previous clerks have used Westlaw, so when your eleventh clerk enters the room, the odds are she'll use it too.  But do you really "know" that she'll use it?  Beyond a reasonable doubt?  Some people like books.  Others like Lexis.  Others are incredibly lazy.  The quantum level of information necessary for knowledge about a future event seems a little more up for debate, I think, than one might get from reading either opinion in this case.

Two other tangential points.  First, I like that Judge Smith changes his mind after reading the government's petition for rehearing.  People should be open to new ideas.  Ditto for judges.  Whether he's right or wrong, I believe that his demonstrated flexibility is a great attribute.  So kudos.

Second, I found it interesting that Judge Noonan begins his opinion with:  "The statute focuses on those (usually men) who make money out of selling the sexual services of human beings (usually women) they control and treat as their profit-producing property."  Which is fairly moralistic -- not that unusual for Judge Noonan -- and in the context of this case, perhaps rightfully so.

But just take the word "sexual" out of that quote.  It's still totally accurate, right?  (Except maybe change "usually women" to "often women").  Except now no one finds much of a problem at all with this state of affairs.  Unless you're a total Marxist.  Indeed, this state of affairs is now affirmatively valuable.  What Judge Noonan describes is the essence of capitalism.  Something we're totally excited about.

So changing a single word dramatically changes our normative reaction.  Which says something.

Bright v. 99 Cent Only Stores (Cal. Ct. App. - Nov. 12, 2010)

I had no idea that in California, you have a right to sit on your butt, and can file a class action if your employer denies that right.  But you do.

At least if the nature of your job allows it, you're allowed to sit.  Hence the seats that cashiers often have behind them.

You learn something new every day.

Wong v. Jing (Cal. Ct. App. - Nov. 9, 2010)

Here's a SLAPP suit involving Yelp.

It's a familiar refrain.  Commenter posts a negative review on a web site (here, yelp.com), the relevant business sues the commenter and the web site for defamation and related torts, and -- at least here in California -- the commenter and the site file an anti-SLAPP motion.

Everyone agrees in this one that the first stage of the anti-SLAPP inquiry is satisfied, and it's pretty clear that the comments at issue here (which were about a dental practice and that in part involved a complaint about mercury in fillings) are matters of public interest.  So the only real question is whether the plaintiff has established a prima facie case of liability.  And here, it has -- at least for defamation, albeit not for the other (tangential) torts such as negligent infliction of emotional distress.

So even though the actual resolution of the case is somewhat fact-specific, I mention it for two reasons.  First, it's another example of SLAPP motions and online critiques.  Important stuff.

Second, there was also a line in the opinion that struck me as somewhat interesting, particularly because I've started to use Yelp a little bit myself over the past couple of years.  A line of page five of the opinion that reads:  "Wong said that she asked Yelp to delete the review because it was libelous.  Yelp advised her to buy a business account so she could manage the content of her listing."

Which made me think:  "Really?!  That's how Yelp makes its money?  By shaking down businesses and by distorting its reviews depending on who's paying them?  If so, I have no intention of using the thing, since it manifestly reduces the site's credibility."

Which bothered me enough to go ahead and research whether that was, in fact, the case.  The true answer to which, I learned, is far from clear.  There's apparently a huge controversy -- previously unknown to me -- on this precise topic.  Here, for example, is but a small piece of that dispute.  But there's so, so much more there:  I probably skimmed fifty or so different intelligent pieces on the subject (and many other not-so-intelligent pieces).

Ultimately, my tentative view -- for what it's worth -- is this.  I think it's probably true that Yelp does, in fact, try to sign up businesses by telling them that if they sign up, their reviews will be better.  But whether that's an accurate statement or not -- well, I simply have no idea, since we can't tell without looking at the algorithms  used to rate the businesses and to place (or delete) comments, which Yelp clearly has absolutely no intention of revealing.

So in the end, I'm not sure whether Yelp's business side is simply ripping off businesses -- but has a credible product for consumers -- or, alternately, is extorting businesses in a manner that leaves its site unworthy of reference.

Regardless, the dispute is pretty unseemly.  And, I concede, makes me at least slightly more hesitant to rely on Yelp reviews.  Which otherwise seem an incredibly useful piece of consumer data.

So that's my nonlegal take on this legal case.

People v. Cortez (Cal. Ct. App. - Nov. 10, 2010)

The first sentence of this opinion reads:

"Octavio Reyes Cortez pleaded guilty to six counts of committing lewd acts upon a child (Pen. Code, § 288, subd. (a)), but appeals from the portion of his sentence which imposes a $30 'court facilities' fee on each of his six convictions."

Dude.  You've been convicted of six counts of child molestation.  The $180 fee -- which I'm sure you can't pay anyway -- is the least of your problems.

And yeah, yeah, I know.  It's an appointed appellate lawyer, and I'm sure it's better than filing a Wende brief that says "There's nothing here."  But still.  Part of me wonders whether we're really accomplishing much by spending $5000 on an appointed lawyer and a similar sum on the government side to fight over an $180 fee.

Which gets affirmed anyway.

U.S. v. Grob (9th Cir. - Nov. 10, 2010)

A girlfriend breaks up with her boyfriend, and the jilted boyfriend sends her twenty-two mean e-mail and text messages.  No big deal?

What if the messages are things like a text message with the subject heading "I'm Going to Slit Your Throat" that says:  "If you ever come back to Montana again I am going to slit your throat. I am not even kidding. It would make be fill [sic] so good to see you bleed as you gasp for air. I hope your are [sic] ready for retribution, because it is coming. You are going down bitch."  That clearly ups the ante, right?  Particularly when photos of dead and dismembered women accompany some of the messages.

To give even more color, the girlfriend broke up with him after suffering a miscarriage, and one of the e-mails was entitled "OMG Our Baby" and attached a photo of a dead infant.  Classy.

Thankfully, the girlfriend contacts the police, who arrest the boyfriend and charge him with the federal crime of cyberstalking.  The boyfriend gets released on bail, but what does he promptly do?  Gets arrested for public intoxication and carrying a concealed weapon.  That's going to land you back in jail real quick.  Thankfully.

Oh, and it doesn't help things that, after he's put back in federal custody, he's caught in possession of a homemade knife made out of a razor blade.

The district court sentences the boyfriend to a little over three years in prison.  Seems about right to me.

He appeals, claiming that his criminal history score was miscalculated, since it included a "criminal mischief" charge when he was 19 for trashing an apartment to retaliate against his landlord.   That offense resulted in a fine of $130 and a restitution order of $750, but it also means that his guideline range goes up four to six months.

In the end, I think that the Ninth Circuit gets it right, and finds that this offense should probably not be included.  And since the district court sentenced the boyfriend to the low end of the range, remands for resentencing.

Nonetheless, I'm happy that Jeff Grob will still spend a fair piece of time in prison.  He doesn't sound like the most in-control person in the universe.  At all.