U.S. v. Brobst (9th Cir. - March 9, 2009)

If you like kiddie porn (and print it out from the internet), put it away before you hire a contractor to redo your cabinets. Because other people aren't so fond of it, and have a tendency to call the police when they stumble across it in your home.

A simple warning, really. But one that can save you years in prison.

Trout Unlimited v. Lohn (9th Cir. - March 16, 2009)

Natural versus hatchery-spawned salmon and steelhead in the Pacific Northwest. Did I know much about this distinction before today? No. But now I do.

Sort of interesting stuff.

People v. Kim (Cal. Supreme Court - March 16, 2009)

Let's make a list of things not to do.

First, if you're a minor, don't possess live ammunition. Yes, it's just a misdemeanor, but still; it's a crime (plus it's lame). Second, if you've ignored my first instruction, while you're on probation for that offense -- and while you're waiting to start your freshman year at UCSB -- don't burglarize a tool shed. You moron.

So you've ignored (1) and (2). You've now started college. Surely you're older and wiser, right? So why did you promptly get caught shoplifting from the UCSB bookstore?!

One last thing. Still having not learned your lesson, your parents then give you some money to go buy some groceries at Costco, at which point you shoplift again (and, pitifully, yet again, you're stealing video games). Wow. You're definitely going to be the UCSB graduate of the year.

Now you get charged with a felony. And have to do real (read: non-weekend) time. Congratulations.

By the way, one more thing. Everything I say above goes double if you came to the United States from South Korea as a young child. Because that means you're not a citizen. And even with attorneys and judges doing a massive amount of work on your behalf and feeling incredibly sympathetic towards you, it means that you're going to be deported to South Korea. Which is a place far different than UCSB, and where you definitely don't want to spend the rest of your life if you've lived in the United States for virtually forever.

And when your efforts reach the California Supreme Court, with sympathetic judges vacating prior sentences so you avoid mandatory deportation, you'll find that the law doesn't look favorably upon habeas remedies that transpire only -- as here -- only after you have already fully served your sentence. So no joy here either.

All of which could have been avoided if you had gotten even a smidgeon of a clue upon, say, entering college.

Yes, I know that not everyone "thinks about their future" all the time. But when the consequences are prison and deportation, maybe realize that pocketing a video game is far from worth it.

U.S. v. Mayer (9th Cir. - March 16, 2009)

This morning sees a dissent from the denial of en banc review. Joined by only three judges. But I mention this dissent because

(1) It's got a neat opening line: "This is a train wreck in the making."

(2) The average IQ of the dissenters - Judges Kozinski, Reinhardt, and Willie Fletcher -- is quite high. And

(3) Given (2), it's somewhat surprising that no one else joins in the dissent. Which perhaps can be explained in one of two ways: (A) Sometimes, it takes genius to truly understand a problem; or (B) Sometimes, crazy looks a lot like genius.

U.S. v. Hammons (9th Cir. - March 11, 2009)

When you have Judges Pregerson and Dorothy Nelson on the panel, you sometimes get an opinion that's much nicer to -- e.g., softer on -- the participants than you might receive from some other judges. For example, here is what Judge Pregerson says about one of the arguments that the AUSA made at oral argument:

"The Probation Office also alleged that Hammons had violated the conditions of his supervised release by failing to show up for a drug test and by testing positive for alcohol use. Hammons denied these allegations and they were ultimately dismissed by the government. The district court stated that these allegations were not 'the subject of the sentence' and are not at issue in this appeal. The government’s suggestion at oral argument that these dismissed allegations provide insight into the district court’s sentencing decision is troubling."


Trust me when I say that an opinion by a wide variety of other judges wouldn't have left it at "troubling". And wouldn't have put the comment in a footnote, either.

By contrast, while not making it personal at all, Judge Pregerson doesn't show a massive amount of restraint towards Judge Stephen Wilson. Judge Pregerson notes that at the time Judge Wilson delivered the sentence, the law in the Ninth Circuit was clear that the sentencing judge was required to consider the § 3553(a) factors and state on the record the reasons for imposing the sentence it selected. Notwithstanding this fact, the only "explanation" that Judge Wilson gave for choosing the high end of the guideline range -- ten months in prison -- even though the Probation Office had suggested merely putting the defendant in a recovery program was the following: "I don’t give sentences without careful consideration. That’s the sentence.”

That doesn't quite cut it. And not only does the Ninth Circuit unanimously reverse, but Judge Pregerson also makes clear that "the flagrant nature of the district court’s error alone is sufficient to establish plain error." Which was the second time in the opinion Judge Pregerson used the term "flagrant" to describe the error by Judge Wilson.

Sometimes a judge is nice. Sometimes: Not so much.

People v. Garcia (Cal. Ct. App. - March 12, 2009)

Do I think that Mario Garcia is guilty of murdering Christie Wilson? Yeah. Probably. (Though the evidence is far, far from clear on this point. Indeed, there's not even a body, and the evidence of Christie's death is a lot less than in many no-body cases.) Do I think that reversal of his conviction is required on the basis of any of the alleged errors in the trial court? Maybe not. Though the failure to instruct on possible third party culpability -- there's at least a possibility that Wilson's volitile no-good boyfriend, Daniel Borlando, might have committed the crime -- worries me a bit.

That said, today's 61-page opinion by Justice Cantil-Sakauye seems one-sided and relentlessly results-oriented to me. I think that a number of the issues raised by Garcia are at least close ones, and yet the opinion addresses them almost always in a perfunctory fashion -- in an opinion that almost reads like a brief for the prosecution. Something that'd I would not have been surprised to see from Tani back when she was a D.A. in Sacramento, but in the present context, from a judge, I expect a little more. Particularly when 59 years to life is on the line.


I'm not saying the result is wrong. But I think a little more neutral thought and analysis would definitely help.

U.S. v. Hilgers (9th Cir. - March 11, 2009)

Sure, Judge O'Scannlain writes the opinion, and Judge Bybee (alongside Judge Graber) is also on the panel, so it's not radically surprising that the court agreed that the district court's (fairly substantial) upward departure from the guidelines was permissible. This is not a "softie" panel.

That said, I agree with 'em. Yes, the guidelines range was 12 to 18 months. But the sentence of five years was, in my view, permissible. It's a large jump, but the defendant was a pretty big con artist with a long history of this stuff, and he (and others like him) need to be deterred.

Plus, it ain't a very good era nowadays in which to be a real estate broker fraudster. We tend to look askance at having to dump a trillion public dollars into the system.

People v. Banker's Ins. Co. (Cal. Ct. App. - March 11, 2009)

Sometimes it's pretty easy to describe succinctly (and colloquially) competing positions in a case.

Justice Haller, writing for the majority: "It's totally easy to say the words 'Bail is forfeited' on the record. That's been the rule for decades. Just do it. We're tired of reminding you. When the judge says something else, we'll reverse. Get it right."

Justice McIntyre, who dissents: "Come on. The judge said: '[W]e'll keep the [$75,000] bail bond and issue a warrant [for $200,000].' The words 'we'll keep the bond' obviously mean, as well as meant to everyone, that the bond was forfeited. Oh, and we mailed 'em notice of the forfeiture as well. Substance over form."

The actual opinion is only slightly longer.

Le v. Astrue (9th Cir. - March 10, 2009)

Sometimes the law can be flexible and do the right thing. Even in a snare-filled and hypertechnical area such as the contents of your notice of appeal, which is something that we generally require you to do just right.

For this reason, I agree with Judge Ikuta here.

Though the opinion sounds somewhat grudging about it -- referring to "precedent compels us" and the like. Whereas even as a procedure person, I'd have no such qualms. I think the Court of Appeals definitely both has jurisdiction and should properly review the case.

Walker v. GEICO General Ins. Co. (9th Cir. - March 10, 2009)

Dude! Your name -- or at least the name on the caption -- is "Johnnie Walker". What are you thinking?! Don't do business as "PJ's Auto Body". Do business as "Johnnie Walker's Auto Body".

Here's my idea for your slogan:

"Been in a car accident? Time to visit Johnnie Walker!"

Feel free to trademark it.

U.S. v. Krstic (9th Cir. - March 10, 2009)

Here's a good case for the statutory interpretation crowd. It involves a statute that gets messed up when Congress adds the seemingly innocuous word "such" to it. It's not an obvious problem, but it definitely exists. The statute reads:

"Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document . . . or . . . possesses . . . any such visa, permit, border crossing card, alien registration receipt card, or other document . . . knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement . . . [shall be punished]."

Imagine -- and, as you might expect, this isn't a hypothetical -- that someone's charged with posssessing a real (not forged) visa that he knows was procured by a false statement. Guilty under the statute? It looks like the second portion of the statute covers him, but the words "such visa" seem to require that the visa satisfy the first portion too, right?

Judge O'Scannlain does a very good job, I think, of explaining and interpreting the statute, and he ultimately persuades me that the statute indeed covers the "hypothetical". Largely because when the statute was originally passed, in 1924, it lacked the word "such" and seemed clearly to criminalize both prongs separately, and there's no reason to believe that Congress intended to alter this regime through the various historical changes.

The only thing I'd add to Judge O'Scannlain's analysis is that cases like this are, in my view, tough for the "just read the statute" crowd. (Which, to be clear, I'm not one of.) If the terms of the statute are dispositive, I think clearly "such" incorporates the first prong, and Krstic (the "hypothetical") isn't guilty, since grammar and context would indicate such a result. It's only once you're able to get into legislative history that the contrary view becomes clear.

Vaden v. Discover Bank (Supreme Court - March 9, 2009)

I very rarely post about United States Supreme Court cases, on the theory that they already receive a massive amount of attention and don't need much more from me.

But I thought I'd make an exception -- albeit a brief one -- for this case. Because (1) it's a civil procedure case, and (2) on an arcane jurisdictional point, and hence probably won't get much play from anyone other than us (pathethic) civil procedure professors. And also because it's got a neat little makeup. Indeed, as far as I can tell, this is the only 5-4 opinion -- ever -- by Justice Ginsberg that attracted the following makeup of judicial supporters: Scalia, Kennedy, Souter, and Thomas. Talk about an eclectic mix!

For what it's worth, I agree with the five-member rat pack led by Justice Ginsberg as opposed to the equally crazy group led by Chief Justice Roberts (and joined by Justices Stevens, Breyer, and Alito) in dissent. Yes, the majority's view may seem a little artificial. But it flows naturally from the fact that we don't allow federal jurisdiction over federal defenses or counterclaims. Yes, that's a little bit silly, but it's the law. Both here -- in the arbitration context -- as well as elsewhere.

So let's hear it for the Ginsberg-Scalia-Kennedy-Souter-Thomas party. Something that I doubt we shall ever see again.

Golden Gate Restaurant Ass'n v. City and County of San Francisco (9th Cir. - March 9, 2009)

No one writes a dissent from the denial of rehearing en banc with the Supreme Court as the target audience, right? Nah. Never. How could one think such a thing? How would a judge even try to write an opinion that was designed to encourage the Supreme Court to grant certiorari -- talking about intercircuit splits, the need for national uniformity, the national importance of the issue, etc.? That's crazy talk.

And if some hypothetical judge somehow did so, surely no one would respond by authoring a concurrence in the denial that was designed to convince the Supreme Court to not take the case. Of course that's right. That'd just be silly.

Nope. That's surely not what's happenning here. In an ERISA case, of all things. Judge Milan Smith -- joined by Judges Kozinski, O'Scannlain, Kleinfeld, Tallman, Bybee, Callahan, and Bea -- definitely didn't author what's essentially a fully completed petition for writ of certiorari. And Judge Willie Fletcher didn't essentially author the brief of the respondent in opposition thereto. Definitely didn't happen.

One more thing. Politics doesn't matter. The San Francisco ordinance here -- upheld by the panel -- is meant to ensure health care for individuals in low-wage jobs. It's totally random that the conservatives are the ones who dissent from the denial of rehearing en banc, and the liberals are the ones who don't. Yep. Random.

U.S. v. Hahn (9th Cir. - March 4, 2009)

I agree with the per curiam opinion here. Even if notice that the judge is considering X is required by the rule, and no such notice is given, that's not fatal if the parties fully brief the issues notwithstanding the absence of such notice.

I also agree with Chief Judge Kozinski's succinct concurrence. If the rule requires notice, but no notice is given, you don't sentence someone to a shorter sentence than you think is appropriate. Rather, you provide notice and grant a continuance. (I don't know if I'd use the term "must" as Alex does, since there may be exceptions to this rule, but I agree that this is the procedure that normally should be employed.)

Alanis-Alvarado v. Holder (9th Cir. - March 3, 2009)

It's always facially anomolous when you simultaneously read, as here, that (1) Judge X (on the panel) voted to grant the petition for rehearing en banc, and (2) that no one, including Judge X, asked for a vote on this same petition. In short, that Judge X wanted en banc review, and thought it appropriate, but didn't call for it.

This happens all the time: I'm not just picking on Judge Rawlinson. I know of no judge on the Ninth Circuit (though there may perhaps be some) who takes the position that an affirmative vote as a panel member on the petition for rehearing en banc intellectually compels a similar call for en banc review. Even though the two are exceptionally related. After all, if you vote to grant en banc review, why not actually cast that vote by calling for the review you've already said you think is warranted?

The answer, I think, is that en banc calls (as opposed to votes) are viewed as imbued with a practical limitation on the "ability" of the case to be taken en banc. Even if you think that the case should be taken en banc, a judge doesn't call for it if they don't think the votes are nearly there.

I mention this only because it's a strange -- though not outrageous (at all) -- practice. Generally, when we vote, we vote consistently. Sure, sometimes we may vote for Candidate X even though we prefer Candidate Y because we don't think Y would have the votes, and we prefer X to Z. Just remember that en banc votes aren't like that (ignore, for now, the related -- but different -- tactic of voting against en banc review even though you think it's meritorious because you believe that the ultimate vote on the merits would be unfavorable). If you call for en banc review and lose, there's no "Candidate Z": You merely lost the vote. It's like not voting for McCain in a two-person contest simply because you're convinced he'll never win. Something that we'd mock someone for doing (or saying). And yet we do that at the Ninth Circuit all the time.

So what we have here is, I believe, an administrative calculation by each of the judges that the cost of calling for an en banc vote isn't worth it if, in their estimation, the votes won't nearly be there to successfully take the case en banc. This isn't absurd as well; after all, the adoption of such a regime, if universally accepted, saves not only the time of other judges, but also your own, since now you don't have to respond to en banc calls of other judges, who similarly refrain from perceptionally unsuccessful en banc votes.

Still, it's somewhat surprising, I think, that the practice is (I believe) uniform. That, as far as I know, there's not a single judge who concludes -- perhaps merely on grounds of principle -- that if she's going to vote for en banc review at the panel stage, she's similarly going to call for en banc review thereafter. Since, after all, as to the merits, nothing's changed. And, alternately, that if she's not going to call for an en banc vote, she'll only vote to grant the petition for rehearing, not the petition for rehearing en banc.

I'm not saying that someone should adopt such a position, since I see the administrative upsides of a contrary "predict the votes" regime. I'm just surprised that someone hasn't; or, at a minimum, that the prevailing view is so uniformly adopted by the (often otherwise idiosyncratic) appellate judges.

Marmolejo-Campos v. Holder (9th Cir. - March 4, 2009)

I could write (literally) several dozen pages about this en banc decision today. Which might start with a critique of the manner in which Judge O'Scannlain unhelpfully begins his opinion, with a first paragraph that reads (in its entirety): "We are called upon to decide whether an alien may be removed from the United States for having been convicted of a crime involving moral turpitude as determined under federal immigration law." To which I might respond by noting that here's a difference between "framing the question in your favor," on the one hand, and "setting forth an alleged 'question presented' that's essentially tautological and doesn't shed light at all on what the case is actually about."

But even apart from the merits -- which I briefly discussed when the panel's opinion came out a year and a half ago, and which arguably involves (as Judge Berzon cogently asserts in the dissent to today's opinion) "the epitome of an unreasonable agency interpretation" -- I wanted to point out that, to me, the sharp 6-5 split demonstrates a couple of realities.

First, panel draws sometimes matter, even at the en banc stage. A different draw and this case comes out the other way. Second, sometimes -- albeit rarely -- the Ninth Circuit risks getting overturned by the Supreme Court not for being "too liberal," but for being too much in the other direction. This is one of those exceptional cases.

Finally -- and I've never, ever said this before -- I think this is a case in which there's a nonzero chance that someone might call, perhaps successfully, for review by the full circuit. You can look at the makeup of the votes individually to see why, but even if you merely use the roughest and most banal of "statistics," one can get a sense. On top of the 6-5 decision are four republican and two democratic appointees and on the bottom side there are four democratic appointees and one republican appointee. Particularly if one breaks out the three Carter appointees and adds that Judge Dorothy Nelson -- who was senior but on the panel -- gets to be in the draw if she'd like (I assume that's the rule with full en banc calls in addition to limited en banc panels), you get a bare majority vote to flip the case around.

Mind you, there are assuredly factors the other way, including the fact that many judges may not vote for full en banc review for administrative or historical reasons, and on the merits the fact that some of the more likely republican defectors who might agree with Judge Bybee (who was the republican dissenter) have already signed onto the topside of the 6-5 (e.g., Judges Kozsinki and Kleinfeld, who are fairly creative thinkers and aren't uniformly knee-jerk).

That said, if there was ever a case in which an en banc draw mattered, in which there's a chance of full en banc review, and in which the Supreme Court might perhaps slap the Ninth Circuit for being irrationally to the right, this is the one.

Moore v. King County Fire Protection Dist. (9th Cir. - March 4, 2009)

Here's something I haven't seen before.

The Ninth Circuit certifies a question to a state supreme court (here, Washington). Shortly thereafter, in a different case, the state supreme court answers the question. So the Ninth Circuit then withdraws the certification.

Makes sense. Just haven't seen it before.

But this got me thinking: Why did the panel certify the question in the first place? Initially I thought that the answer from the Washington Supreme Court might have been serendipitous, hence explaining what transpired. But nope. The Ninth Circuit certified in September 2008, and the state case that ultimately settled the issue was not only directly on point, but was already pending in the Washington Supreme Court at that time; indeed, state cases recognized even prior to September 2008 that this pending decision would anwer the question. Moreover, looking back at the original certification order, even the panel noted that the pending case in the Washington Supreme Court existed and would answer the question.

Which makes me wonder why the panel decided to certify the question rather than merely stay the appeal? Of course there's always a risk that something will happen in the underlying state case; a settlement, decision on other grounds (however unlikely), etc. But at the point at which the panel elected to certify the question, the oral argument in the pending state supreme court case was scheduled for less than 30 days hence. (Here's proof, since the Washington Supreme Court videotapes these arguments and puts 'em up on the web. How cool is that?)

In retrospect, at least, the panel should have waited, rather than certified. Especially since the Washington Supreme Court (like the California Supreme Court) issues its decisions fairly rapidly after oral argument; in this case, for example, within 90 days of oral argument. So the panel had its answer in January 2009, and a stay could have immediately been lifted at that point.

Parenthetically, it took a month and a half after the underlying decision, and only "after consultation with the Washington Supreme Court" (!), for the panel to withdraw the certified question and resume the appeal.

Did I catch this issue when I first read the certification order in September? No. Not in the slightest. So I'm clearly not blaming the panel for something that I too didn't fully grasp at the time. (Though in my defense, the panel might have known a lot more about the case than I did from merely reading the order.) I do think, however, that the general rule should be to stay -- rather than certify -- if there's a decent reason to believe that the question you'd otherwise certify will be resolved by the state supreme court anyway within, say, six months. No reason to go through the difficult (on all sides) certification process if a simple stay will do the job.

I'll call that "Professor Martin's Certification Rule No. 15". Stay tuned over the years for Rule Nos. 1-14 and 16-30. :-)

Doe v. Holy See (9th Cir. - March 3, 2009)

There are many interesting sovereign "nations" out there. Monaco. Andorra. Sealand. Hong Kong. They're even more interesting when you've got to deal with them on the same judicial procedural terms that you use with "regular" nations, since the underlying doctrines don't always make sense as applied to these special cases. (I'm thinking, for example, about the rules that used to say that there was no Article III jurisdiction over residents of Hong Kong during the British era because they weren't "citizens or subjects" of a foreign state.)

Among the interesting nations in this wide wide world of ours is the Vatican. Which is fascinating on a number of different levels. But, for present purposes, figuring out how the status of the Holy See interrelates with the complex sovereign immunity provisions of FSIA (particularly in the context of child sexual abuse allegations) is fascinating.

As this opinion by Judge Berzon (and concurrence by Judge Fernandez) amply reveals.

Tortu v. LVMPD (9th Cir. - March 3, 2009)

You've got to read this one. If only (1) if you've ever been in McCarran Airport (in Las Vegas) and/or (2) ever thought about trying to board a plane without a ticket. Let's just say: It did not turn out well for Mr. Tortu.

There's also a fascinating debate between the majority (Judge Hug) and the dissent (Judge Randy Smith) about the ability of the district court to grant a new trial on the ground that the verdict was against the weight of the evidence. Plus a warning -- significant in this case, and to which all the judges agree -- that you can't move for a post-trial judgment as a matter of law under Rule 50(b) if you haven't first made a similar motion at the close of the evidence under Rule 50(a). Oops. So for proceduralists like me, it's a gold mine.

But even if you could care not in the slightest about procedural complexities, you've got to read this one. Because never before have I read a case in which the central dispute revolved almost entirely around the following question: "If the police didn't unlawfully beat me, then how come my balls hurt so much?"

Check out the majority and the dissent on this point. It's an instant classic.

Sheehan v. San Francisco 49ers (Cal. Supreme Court - March 2, 2009)

Here's a sharply split 4-3 opinion by the California Supreme Court. Except for one thing. Each of the justices totally agrees. The only fight is about dicta: essentially, how much the Court wants to hint that the defendant might/should prevail on remand notwithstanding the fact that the Court is unanimously reversing the trial court's grant of a demurrer.

As for whether getting patted down by security guards at a football game violates your state right to privacy: Stay tuned.