Friday, December 29, 2006

Ochoa-Amaya v. Gonzales (9th Cir. - Dec. 29, 2006)

Sometimes fraud only gets you into trouble, my friends.

Ochoa-Amaya illegally enters the United States (with his parents) in 1985, when he's 7 years old. Seven years later, in 1992, Ochoa-Amaya's father -- who's a lawful permanent resident -- files a visa petition on behalf of his wife and children, including Ochoa-Amaya. But five years later, in 1997, Ochoa-Amaya effectively terminates this petition (as applied to him, anyway) once he married a U.S. citizen. Since now he's entitled to adjustment of status on his own account, based upon his marriage to a U.S. citizen.

Sounds fine, right? Except for one thing. Do you find it just a tiny bit fishy that the bride chosen by Ochoa-Amaya -- who was 19 years old at the time -- was a spunky 74 year-old U.S. citizen? Perhaps true love knows no boundaries? Or maybe -- just maybe -- something else is at work here.

As it happens, a couple of months after he "marries" his 74 year-old bride, Ochoa-Amaya gets caught crossing the border illegally (after returning from Mexico from, sadly enough, his brother's funeral). This would be no problem, right, since he's married to a U.S. citizen. Except for one thing. One of the dangers of marrying a 74 year-old in order to obtain citizenship is the very real possibility that your spouse might die before the INS adjusts your status. Which, indeed, happens here. Which in turn means that Ochoa-Amaya is up (a smelly) creek without the proverbial paddle. He would have had his status adjusted due to his father's application if he hadn't gotten married; indeed, the rest of his siblings became lawful permanent residents in that way. But since he went the marriage route, his status as a child doesn't work anymore, and once his spouse dies, that route to lawful status doesn't work either. Which means that Ochoa-Amaya gets deported, and Judge Trott affirms.

There's another way to look at what transpired here, of course. Perhaps true love -- a love so strong that it both survived and flourished notwithstanding the flouting of social convention and intense public scorn -- between the 19-year old Ochoa-Amaya and his 74 year-old soulmate led, in the end, to tragedy, including the banishment of Ochoa-Amaya from country he's known and loved since he was 7 years old.

That's a possibility, obviously. And, if so, a tragic lesson. But, honestly, I think that the more likely lesson to be learned is that fraud doesn't pay. And that's one that makes me far less sad.

Comer v. Schriro (9th Cir. - Dec. 29, 2006)

Three months ago, when this opinion was published, I said that it wouldn't be around that long, and would be taken en banc shortly.

And, today, so it was.

It'll take a miracle draw for Judge Ferguson's opinion not to be reversed. And, even then, it would only last for as long as it took the Supreme Court to grant certiorari.

Thursday, December 28, 2006

U.S. v. Sandoval-Mendoza (9th Cir. - Dec. 27, 2006)

These are some of the best lines that Judge Kleinfeld has written in a long time. And that's saying a lot, because he writes pretty darn well.

He's talking about an order by the district court (Judge Jensen, up in Oakland) that barred defendant's counsel from talking to his client during an overnight recess. Which was designed to avoid any influence on the defendant's testimony, but which nonetheless directly collided with the defendant's Sixth Amendment right to counsel. Here's what Judge Kleinfeld said regarding whether this order was constitutional:

"This is a difficult question. Cross examination best exposes the truth when a witness must answer questions unaided. Coaching may vitiate its value. But it is hard to see how a defendant and his lawyer can communicate without implicit coaching. The Seventh Circuit suggests that 'the judge may instruct the lawyer not to coach his client' but may not prohibit discussion of the client’s testimony. But that is not a workable rule, because coaching is implicit in any discussion of a defendant’s testimony, even if the defendant’s lawyer tries his best to avoid coaching."

That seems exactly right to me. One might well be able to find fault with the rule that Judge Kleinfeld accordingly adopts -- which permits brief no-discussion orders (e.g., during recesses) but not overnight bans -- which, like any bright-line rule, is both over- and underinclusive. But his insight regarding the inevitable nature of coaching as inherent in virtually every meaningful attorney-client communication (particularly during trial) seems spot on.

I wrote an entire law review article in the Kentucky Law Journal ("Coaching Witnesses") with my colleague Fred Zacharias on this precise topic, and I don't think that anything that I wrote anywhere in the article is as good as the paragraph by Judge Kleinfeld. Great job, Andrew.

(Two other brief points. First, I'm only speaking for myself: Fred wrote much better stuff in the article than I did. Second, Judge Kleinfeld's opinion is great, but it did take him over a year and a half after the oral argument to write this 21-page missive. That's a lot of time. Even for a great, and somewhat difficult, opinion.)

U.S. v. Lee (9th Cir. - Dec. 27, 2006)

Sometimes one can figure out how an opinion's going to come out merely by reading the first sentence or paragraph -- by the way the author has deliberately framed the question.

So when one reads the first sentence of this opinion by Judge Trott, one might have a keen sense of how the rest of the opinion is going to go:

"This appeal raises the issue of whether a person arrested in American Samoa for allegedly committing federal crimes in American Samoa may be tried and convicted in the United States District Court for the District of Hawaii ('District Court')."

So one might well think that, upon reading this sentence, the conviction is going to be reversed. But you'd be wrong. Remember: This is Judge Trott. And it's a criminal case. It's going to take a lot more than this to reverse. Sure, the crime was entirely committed in American Samoa, and had nothing whatsoever to do with Hawaii. But that's nonetheless where the federal government shipped Lee for trial -- 2300 miles away. Which makes it the proper venue.

P.S. - Lee is not a nice guy. At all. Feel free to read the opinion to learn about his sweatshop, and enslavement of foreign workers, and more.

Wednesday, December 27, 2006

U.S. v. Baldrich (9th Cir. - Dec. 27, 2006)

If memory (and very brief research) serves me well, this is the first published opinion by Judge Ikuta. It's also a pretty good one, and reads like she's been writing them for years.

Welcome to the Ninth Circuit, Sandra! We're glad to have you.

People v. Zachery (Cal. Ct. App. - Dec. 27, 2006)

You've got to read this one. To encourage you to do so, I'll not only note that it's less than 20 double-spaced pages, but also entice you with the contents of its first paragraph:

"In this case, we discuss the obligation of a trial court clerk to accurately record the sentence pronounced by the judge in a criminal proceeding. Here, the court clerk included in the minutes and the abstract of judgment some provisions that were not in the judge’s pronouncement of sentence. This was error, which was compounded by the fact the judge erroneously sentenced defendant on a count for which he was not convicted. We also shall address the judge’s remark, on the record and in open court, that this court is a 'kangaroo court.'"

Let's just say that Justice Sims is not too fond of what went on below. At all. Both substantively and as a matter of tone. Indeed, Justice Sims slams the trial judge -- Judge K. Peter Saiers of the San Joaquin Superior Court -- so hard, including a sentence that appears almost purposefully amenable for use by a challenger the next time Judge Saiers has to run for reelection ("The truth of the matter is that Judge K. Peter Saiers has wasted taxpayers’ dollars."), that Justice Hull concurs separately to say that while he agrees that Judge Saiers violated the California Code of Judicial Ethics, he can't sign onto the rest of the discussion.

Regardless, this is not a huge Christmas present for Judge Saiers. And demonstrates no love lost between the Third District and Judge Saiers. Either way.

There are some other really interesting things about the opinion as well that Justice Sims doesn't directly mention, including but by no means limited to the apparent frequency of (impermissible) post-sentence "additions" by the Clerk.

But the only additional issue that I wanted to mention at any length is the procedural history of the case and what it might say about the nature of criminal appeals as well as the quality of appointed criminal appellate counsel.

In the end, the Court of Appeal holds that there were numerous (indeed, egregious) errors below. But notice what has to transpire before we get there. Notwithstanding these plethora of errors, the counsel appointed to represent defendant on appeal -- William Davies -- filed a Wende brief, stating that he had reviewed the record and found no even arguable issues in favor of defendant on appeal. It was only the Court of Appeal who found these issues, and after receiving the Wende brief filed by Davies, asked him to file a supplemental brief on no less than eight separate issues; in essence, to do the job he'd be appointed (and paid) to do to begin with. And which, in the end, did indeed result in a substantial amount of relief for the defendant.

The upshot of this process depends upon whether you view the glass as half empty or half full. One way to view it is to say that this proves that the Court of Appeal takes its obligations seriously upon receipt of Wende brief s-- which they get all the time -- and often identifies issues that counsel has overlooked. But the other way to interpret what transpired here is to say that the Court of Appeal's particular interest in this case was probably purely derivative of the trial court's comment that the Court of Appeal was a "kangeroo court" and that the lesson to be learned is less that the Court of Appeal is incredibly diligent than that appointed criminal appellate lawyers often are not.

I could talk more about this case, but I've said more than enough at this point. Plus, I have to pick up my brother Chris from the airport in 15 minutes. Let me just close by quoting the transcript below in which the trial judge -- again, Judge Saiers -- talks to the defendant about whether to take the plea deal. The Court of Appeal doesn't reach the issue because it requires a habeas brief (since there was no certificate of probable cause granted by the trial court), but read what follows and decide whether you think that Judge Saiers was impermissibly coercive in convincing the defendant to take the plea. And whether comments like this by the trial (e.g., sentencing) judge prior to trial are a good thing:

"THE COURT: How are you doing today, Don?
THE DEFENDANT: Alive. Trying to do all right.
THE COURT: Don, you know what I’ve offered you in this case, don’t you? Low-term double, strike one strike. You’re facing 25 to life. The 245(C) isn’t that strong a count, but the 2800.2 is open and shut. You were going through red lights and stop signs, 50 miles an hour. I mean, there’s not a jury anywhere that’s not going to convict you.
Do you want to spend the rest of your life in prison?
THE DEFENDANT: No, not really, I mean --
THE COURT: Well, then, you should take the four year offer.
[Prosecutor]: Four, I thought it was six years.
THE COURT: It’s low-term, doubled. What’s low-term?
[Defense Counsel]: Well, low-term is three.
THE COURT: Then it is six years.
Six is still better than life. I mean, I think it’s a no[-]brainer.
[Discussion of work credits]
THE COURT: So, you’d have to do four years, eight months on a six-year sentence, Don. And you already have one and a half years in. You have a year of actual credit, half a year of good time credit.
So, what do you want to do, get out when you’re close to 70, or get out when you’re 51? That’s your choice. And on the 2800.2, you don’t have a defense, Don."

In the end, I'm happy to see what eventually transpired in the Court of Appeal. But am very displeased both by what transpired below as well as by what was necessary before justice prevailed above.

People v. Boudames (Cal. Ct. App. - Dec. 22, 2006)

Getting audited by the California Board of Equalization for underreporting the amount of sales tax you owe for your business? Here's how to make it better: Try to bribe the auditor.

Or maybe not.

Tuesday, December 26, 2006

Sangha v. La Barbara (Cal. Ct. App. - Dec. 26, 2006)

When I went into work this morning, I had no idea that it was a holiday. Which apparently explained why the University was deserted. Not that much work gets done there over the holiday break anyway, mind you. But, in light of the mass desertion, I did a couple of hours of work and then went home for some well-earned "vacation" time. If that's what you can call dealing with a five-year old, a three-year old, and a two-month old.

Apparently, however, the entire world didn't take a vacation, which explains at least in part this case. In which Justice Aronson holds that in order to establish a legal malpractice claim against your attorney in a criminal case, you have to show not only that you're actually innocent of the offense for which you were convicted, but also that you were innocent of every lesser included offense as well.

The underlying "actual innocence" requirement is manifestly a results-oriented departure from normal causation principles in the first place, so I'm not sure that Justice Aronson's holding is in any way incoherent. But let's realize what this means. Let's say, for example, that your terrible attorney -- really, really terrible -- performed so incompetently that you were convicted of first degree murder and sentenced to 250 years to life. Even though all that you really did was spit on a guy's shoe. Like I said, your attorney was really, really bad.

Sorry. No malpractice lawsuit. Even if you could prove, beyond a shadow of a doubt, that all you did was to spit on a guy's shoe, and that the reason that you were convicted was because your crappy attorney told you that spitting on a shoe counted as "murder" in Califonia. Tough luck for you. Because you're still guilty of spitting, which is technically battery, which is a lesser included offense of murder. So no malpractice claim.

The results can get even more absurd -- I was thinking, for example, of a scenario where you were convicted of murder but all you really did was to litter, and a court might well hold that leaving a dead body around was litter too, so you can't sue as long as you threw a popsicle stick on the ground. But whatever. It's a silly doctrine to begin with, and one need not go to the ends of the Earth to prove the point.

Just watch out the next time you litter or spit. And hire -- or be appointed -- an incompetent attorney at your peril.

P.S. - The criminal defense attorney who was allegedly incompetent here was Vincent La Barbera, who practices down here (or, from my perspective, up there) in Santa Ana. Who's got a much nicer head of hair than mine!

Friday, December 22, 2006

People v. Isom (Cal. Ct. App. - Dec. 21, 2006)

Once again, I must first go on record. I do not support touching little girls. It's bad. It's wrong. Don't do it.

Everyone clear on that? Good.

Now, with that in mind, take a look at this case. Which concerns Jeffrey Allen Isom. Who's definitely messed up in the head. On July 3, 2003 (the day before Independence Day), he's hanging out in a grocery store when he sees a 12-year old girl standing with her grandmother looking at birthday cards. So he walks past her and, while doing so, slides his hand across her bottom for a second, and then keeps on walking down the aisle. The girl promptly tells her grandmother that a man just accidentally touched her bottom, and that's that. Then, a short time later, he again walks by the same 12-year old girl and slides his hand across her bottom, and this time also adds a little pinch. During roughly the same time period, Isom sees a 10-year old girl who's with her own grandmother in a different aisle, and he goes up to the 10-year old and gives her a surreptitious pinch on her bottom as well.

Isom then promptly leaves the store, and is sitting in the parking lot when the two grandmothers -- having been told what just transpired by their granddaughters -- compare notes and call the police, who arrest Isom in the parking lot. Isom is subsequently convicted for his two butt-pinches and one butt-slide.

Which, I hasten to add, is precisely as it should be. That's the easy part. But let me ask you the harder query. What should Isom's sentence be? Sure, sure, I know. It depends on his priors, his mental state, the nature of the pinches, etc. etc. But based upon what you know, what would you do with the guy? Order treatment? Probation? 90 days in jail? A year in prison? Multiple years? What? Would it make a difference to your conclusion were you to know that if the girls had been over 14 years of age, the three touchings could only have been charged as misdemeanors? What's the appropriate result?

Do you have your answer? Good. Now let me tell you what Isom's actual sentence was. 115 years to life. Which Justice Hull affirms against multiple challenges on appeal.

There's a lot of good stuff in this case, including a very interesting discussion regarding whether certain (highly prejudicial) uncharged conduct was properly admitted. Don't forget to also read Justice Blease's dissent, which is excellent as well.

It's a great case to get you thinking. Regardless of the merits of the holding, I'm glad they decided to publish it.

Thursday, December 21, 2006

People v. Rasmuson (Cal. Ct. App. - Dec. 21, 2006)

Wow. This one is close.

When I read the first paragraph of the opinion, which described the two molestation offenses for which the defendant (Kenneth Rasmuson) was incarcerated and declared a sexually violent predator (SVP), my strong reaction was: "No way I would let this dude out."

But then I read the subsequent dozen pages of the opinion, which described the treatment that Rasmuson had received, his reaction to taking Lupron (and its effects), the details of the CONREP program, and the testimony of the various psychiatrist at Atascadero State Hospital. At which point my reaction was: "If this dude doesn't qualify to be let out, then no one qualifies to be let out."

In the end, my feelings remain profoundly and deeply mixed. Read the opinion and see what you think. It seems like a very tough call to me.

Wednesday, December 20, 2006

People v. Dutra (Cal. Ct. App. - Dec. 20, 2006)

Sometimes you read an opinion and say: "Wow. I wish I could write nearly half as well as this." Which was my reaction to this opinion by Justice Morrison.

It's not that Justice Morrison said anything that was substantively entralling or doctrinally complex. It's just that he said it so well.

Excellent job, Fred. I'm impressed. And envious.

P.S. - I also thought that it was pretty subtle for Justice Morrison to say that the defendant, a young college student, was an accessory in the murder because she "fell under the spell" of the killer, who was the victim's wife). Rather than saying, as further reading suggests, that the defendant, Sarah Dutra, might well have been having a lesbian affair with her. I liked that. No reason to sensationalize things.

At least in the pages of the California Reporter. Blogs, of course, are different.

You can read more about the story in this medium-profile murder case if you'd like.

Tuesday, December 19, 2006

Boonyarit v. Payless Shoesource (Cal. Ct. App. - Dec. 19, 2006)

It's pretty rare that you see an appeal that exclusively concerns the entitlement to a whopping $585.75 in costs. If only because the attorneys' fees (and costs!) you spend in filing and perfecting an appeal are way, way more than the underlying cost award.

But this case nonetheless entails precisely such an appeal.

In the end, plaintiff prevails -- for hypertechnical reasons -- and succeeds in getting the cost award vacated. At least for now; as I read it, it's quite possible that defendant could cure the deficiency and obtain costs by filing a new request in the trial court. On the upside, plaintiff obtains her costs on appeal. So let's hope that the case now goes away. As we used to say, I can't believe that it's worth all the fussin' and fightin'.

On the merits, the opinion is actually somewhat important, and relates to when (and how) the defendant can file its request for costs when the plaintiff files an amended complaint that omits the defendant as a party. It's not as easy as one might think, and, as here, it's easy to mess it up.

Read the opinion for more. It's only seven (double-spaced) pages, and it's an easy read.

Levine v. Smith (Cal. Ct. App. - Dec. 18, 2006)

I generally comment, at least briefly, about any significant opinion that involves a successful malpractice suit against a California attorney. If only because they highlight the dangers associated with, for example, zoning out of your law practice and hiding in a cave. While the cases around you collapse.

Like here. Actually, this case involves a $2.5 million default judgment, so doesn't actually address the merits. But what I gather from the prior disciplinary record of the defendant, Lawrence G. Smith -- who's been disciplined three separate times in the past couple of years, who twice forgot or failed to pay his bar dues, and who's currently ineligible to practice law -- that's apparently what transpired.

Fortunately, for Mr. Smith, anyway, the default judgment against him was reversed by Justice Yegan on a procedural technicality. So that's one adverse consequence that will go away, at least for now. Hopefully he can get his life together.

Still, the case is a cautionary tale.

P.S. - One more thing. The caption and the opinion lists the defendant as "Lawrence G. Smith", but the counsel lists "Lawrence O. Smith" as appearing pro per. Let's change that.

Monday, December 18, 2006

In Re Burton (Cal. Supreme Ct. - Dec. 18, 2006)

It's been almost 24 years since the murder. And Andre Burton has just now finished exhausting his state remedies. And doesn't seem to hasn't even started the federal habeas process.

Two dozen years of litigation, with another dozen or so to go. Ah, death penalty jurisprudence. The high point of our judicial system.

People v. Brandon (Cal. Ct. App. - Dec. 15, 2006)

Want to know what being a pimp -- as well as a prostitute for a pimp -- is really like? Then read the first twenty pages of this opinion by Justice Turner.

My sense is that this is a pretty accurate account of both how pimping works as well as how young women -- sometimes very young -- get turned out. It's a very different story than the one churned out by Hollywood. Although the one thing that television and movies apparently get right is the role of Greyhound bus stations in the practice.

I once watched an excellent documentary on pimping a couple of years ago, which had extensive interviews of both pimps and their prostitutes, which was consistent with everything I read in Justice Turner's opinion. Let's just say it isn't a glamorous life. At all.

Friday, December 15, 2006

Wakefield v. Bohlin (Cal. Ct. App. - Dec. 15, 2006)

Call me nutty. Call me crazy. Call me absurd. Call me way, way too interested in civil procedure. But I think the California Supreme Court should take this case up.

The essential question -- among many in the case -- revolves around who's the prevailing party when plaintiff wins at trial but recovers zero due to setoffs from other settling defendants. Justice McAdams writes a very well written, well-structured, and lengthy (28-page) opinion that says it's plaintiff. Justice Mihara authors a dissent that's half the size and concludes it's the defendant. There's also some interesting stuff in there about whether the wife is a prevailing party when she wins at trial but her husband doesn't, and Justice McAdams concludes that she's not (necessarily).

This is an important issue. It happens all the time. It often involves, as here, a cost and fee award that's several times the amount of the underlying judgment.

It's important enough for the California Supreme Court to decide the issue.

People v. Johnson (Cal. Ct. App. - Dec. 14, 2006)

Here's one way to spend the rest of your life in prison. It's simultaneously kind of funny and yet deeply sad.

It starts out in a regular way. Eric Johnson is convicted in March 1993 of indecent exposure and sentenced to 16 months in prison. Fair enough. Keep it in your pants. If you don't, off to jail you go.

Then, when he's in prison, he just can't stop. Maybe the guy has watched too many prison porn movies -- who knows. For whatever reason, he and just can't keep his hands off himself. So, as a result of his subsequent repeated -- and relentless -- masturbation while incarcerated (and in front of other people), in October 1994, he's convicted of 17 additional counts of indecent exposure, and on that basis sentenced to an additional 12 years 4 months in prison. Yikes.

He's hardly finished, however. In October 2000, he's convicted of an additional eight counts based upon his public maturbation while incarcerated at Pelican Bay, and sentenced to another 5 years 4 months. And then in February 2004 he's convicted of another ten counts -- again for public masturbation in prison -- which adds another 4 years 8 months. Then in November 2005 he's busted yet again; apparently, they don't even bother to charge him with all the various times he's done it, and merely convict him of (and sentence him to) a single additional count even though the sole witness testifies to several additional times he's done it as well.

I mean, dude. KEEP YOUR HANDS OFF YOURSELF! Or, at a very minimum, turn off most of the lights, or cover yourself with a blanket, or do something other than spank in public. You were only sentenced to 16 months for what you did on the outside. But you're now looking at twenty-three plus years in prison solely based upon your inability to keep it to yourself while in your cell.

That's a freakishly long amount of time. Which made me think a couple of additional thoughts as well.

First, how screwed up is this guy? Answer(of course): A lot. Second, does anyone ever think or raise the fact that this guy may have -- and let me go out on a huge limb here -- deep psychological problems?! What about getting this guy some treatment? He's clearly not getting any better in prison, after all. You might even want to take a shot at pleading not guilty by reason of insanity, even though that's very hard to win. In my mind, there's no doubt whatsoever that the guy has something seriously, deeply wrong with him. It just doesn't make sense to do what he's doing. At all. Third, does anyone else have a sense that we're spending (indeed, largely wasting) a massive, massive amount of money on Mr. Can't Stop Touching This Thing? It costs over $35,000/year, after all, to keep a high security inmate like him in prison, so we're basically going to spend over a million dollars to -- and this seems ironic -- keep him in a precisely the place that consistently impels him to reoffend.

Couldn't we do something like pay $200,000 to give him a nice condo -- with really good blinds -- and spend $100/month to get him all the porn cable channels and high speed internet access? Then do something good with the extra $800,000? Yeah, yeah, I know: We can't actually do that, of a whole series of good reasons. Still, it just seems bizarre to me that we're spending a million dollars to keep a guy in prison just so he can, well, spank some more in prison, at which point we give him additional years in prison. Am I the only one who finds that a little strange?

Fourth, if you really are an "institution" man, this seems like a pretty good way to stay in prison, eh? No need to stick a knife to Heywood's throat like Brooks did in The Shawshank Redemption. That could actually hurt someone. Just play with yourself in public. That'll do the trick. Perhaps even be more fun.

Finally -- and I hesitate to say this -- but given his history and offenses, I had to laugh at the guy's last name. Apropos, no?

The only think funnier would have been if his first name was Richard.

Thursday, December 14, 2006

People v. Garcia (Cal. Ct. App. - Dec. 14, 2006)

I like this opinion by Justice Yegan a lot. It's very short (six double-spaced pages). It has a tone that you don't usually see in judicial opinions, and one that I think is appropriate -- at least in cases like this one. I think that in parts Justice Yegan may be a tiny bit naive, but overall, I really liked what I read.

Take the time. The opinion is definitely worth the five minutes it takes to read.

U.S. v. Juvenile Male (9th Cir. - Dec. 14, 2006)

I always knew that forfeiture and in rem actions were captioned by the name of the property; for example, U.S. v. $23,865 (and the like). But, for people, I always thought we either used their initials or gave them a fictitious name; e.g., U.S. v. B.E, or U.S. v. John Doe. But then I read this case.

Which is fine. But I wonder where it stops? What's next? U.S. v. Slightly Overweight Man Who Really Needs a Shower and Can't Run a Seven Minute Mile?

Wednesday, December 13, 2006

Wells Fargo Bank v. BCBU (Cal. Ct. App. - Oct. 27, 2006)

Faculty meetings are amongst the worst part of this job. And today's rare mid-week faculty meeting has put me in an exhausted, sleep-deprived funk.

So I thought I'd harken back to this case. Which just proves that -- as in faculty meetings -- sometimes it's best to keep your mouth shut. Lest you be proven to be even more of a fool than everyone already thinks you are.

Here's the entirety of the amendment that Justice Bedsworth adds to his opinion. Undoubtedly to the chagrin of attorney Kevin Monson -- a double BYU graduate (with a prior public reproval) -- who filed the petition for rehearing and who likely wishes that he hadn't:

"In a late petition for rehearing, B.C.B.U. raises a new argument, that section 9403 does not apply because it became operative on July 1, 2001, after the December 2000 assignment to Wells Fargo. Unfortunately, like the petition for rehearing which raised it for the first time, it comes too late (the petition for rehearing was 7 days late). An argument may not be raised for the first time in a petition for rehearing. (See, e.g., Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092.) Moreover, section 9403 is based on former section 9206 (set out in footnote 6 above), and the former rule was the same as the present one, that is, a waiver of defenses against an assignee is enforceable save for defenses good against a holder in due course.”

Short, sweet, and to the point. And harsh, but in a nice(ish) way.

Tuesday, December 12, 2006

U.S. v. Luong (9th Cir. - Dec. 12, 2006)

Two interesting things about this case.

First, although the opinion only parenthetically refers to it, the facts of the case involve something that I don't recall having seen before: The "different sovereign" exception to the Double Jeopardy Clause being employed by the government to circumvent an adverse search and seizure ruling. Here, the defendant gets indicted in a California state court on a drug charge, but the state trial court court holds that the warrant wasn't supported by probable cause (and the good faith exception didn't apply), so suppresses the evidence, and the California Court of Appeal affirms. At which point the U.S. responds by indicting the defendant in federal court, on the basis of the same evidence that had been suppressed in state court, and asking the federal court to allow it in even though the state court hadn't. No privity, after all (or at least allegedly), so res judicata doesn't apply.

Neat trick, huh?

Second, Judge Tevrizian suppresses the evidence again, and the government appeals to the Ninth Circuit. At which point the panel -- which consists of Judges Fletcher, Ferguson, and Callahan -- has to decide whether to suppress. Remember, the state trial court, the state appellate court, and the district court have all held that the evidence was unlawfully seized. As, in the end, does the majority. But one judge dissents. Can you guess who it is?

I think you can. Not that s/he doesn't make some tolerable points. But I think that the majority -- and all the other judges -- are nonetheless correct.

Rarely do you see a judge on the Ninth Circuit be a fair piece more right-of-center than the California state court in a criminal case. But it happens here. So it's memorable.

U.S. v. Peters (9th Cir. - Dec. 12, 2006)

Check out the final paragraph of this (very short) per curiam opinion.

Can you really increase the sentence of a criminal defendant on appeal when the United States hasn't cross-appealed? I didn't think you could, and would have been pretty confident that I was right. Though that's precisely what the court -- without virtually any substantive analysis -- does here.

I'm pretty sure that increasing a criminal sentence on appeal is very different from the two cases the court cites in support of doing so. The first case reduced a criminal sentence on appeal by striking a conspiracy conviction that violated double jeopardy -- an issue that the defendant raised on appeal. That's worlds apart from unilaterally increasing a sentence when the U.S. doesn't appeal. The second involved a civil action in which the court again reduced a judgment, yet again on the basis of an argument raised by the defendant on appeal. That one's a galaxy apart from what the court does here.

Sure, it's only another week or two in prison for the defendant. But it's still weird (and, for Mr. Peters, not fun at all). I don't recall seeing something like this before. And it seems wrong to me.

POSTSCRIPT - I was interested enough in this case to look at it a bit more this afternoon. And, indeed, the Court of Appeals can't do this -- or at least I'm pretty darn sure it can't. So I don't think that last sentence will (or should) be around for long.

Monday, December 11, 2006

S.J. v. Issaquah School Dist. No. 411 (9th Cir. - Dec. 11, 2006)

Shucks. I spent all that time during the last week writing the final exam for my Civil Procedure class, which was given to the students at 8:30 a.m. this morning. And then, one hour later, the Ninth Circuit publishes a single opinion for the day: this one. Which, had they published it on Friday, would have saved me a ton of time. Since it's a great final examination in its own right, and concerns whether, in an action arising under federal law in which a federal court borrows the state statute of limitations, the court also borrows the state's time period for service of process as well.

Erie. Rules 3 and 4(m). Federal common law. All the good stuff. It would have been an excellent exam.

To make things even more interesting, it's an exam that Chief Judge Lasnik (up in the Western District of Washington) flunked. But Judge Rymer sets him right. And writes an opinion that gets an A.

Friday, December 08, 2006

Carson v. Billings (9th Cir. - Dec. 8, 2006)

Did you know that the reasonable rate for the typical, very experienced civil rights lawyer in Montana is a mere $150/hour? Indeed, that extremely experienced employment attorneys in Big Sky Country typically charge only $125, $130, and $140/hour? I definitely did not.

That's nonetheless what I learned from this case. Which affirmed a decision by the district court that rejected the effort by plaintiff's counsel to obtain a reasonable hourly fee of between $195-$205/hour after successful prosecution of a federal sex discrimination claim against the Billings, Montana Police Department.

I know many lawyers in Southern California who wouldn't take a dump for $150/hour. Much less for $125/hour. Indeed, I know several paralegals who are billed out at more.

Surprising. But I guess markets are markets. You learn something new every day.

Montana ain't California. 'Nuff said.

Citizens to Save California v. FPPC (Cal. Ct. App. - Dec. 8, 2006)

Citizens to Save California vs. The California Fair Political Practices Commission. With Governor Arnold Schwarzenegger intervening to join the battle against the FPPC.

Arnold and Citizens to Save California win. And Justice Raye affirms. Holding that the FPPC didn't have the statutory power to close a loophole that allowed candidates to circumvent the Political Reform Act by using "ballot measure" committees controlled by the candidate to amass election contributions.

California is saved. Let the celebration begin.

Thursday, December 07, 2006

People v. Russell (Cal. Ct. App. - Nov. 21, 2006)

What a boring, lazy day. Not for me, mind you: I was busy as a beaver preparing my Civ Pro exam. Not as busy as my students who were studying for the exam, most likely, but still busy. But a boring, lazy day for the appellate judiciary in California. Only one published opinion by the Ninth Circuit and two published opinions by the California Court of Appeal. None of which are at all scintillating. Sadly.

So my mind wandered back to this case from a couple of weeks ago. Which is a rarity. Because it is exceptionally unusual for me to read an appellate opinion and think: "Hey, you know, I think that the defendant is actually innocent." Cold record. Viewed in the light most favorable to the prosecution. All that stuff. Plus the fact that I'm pretty sure that most of the people convicted by a jury are, in fact, guilty.

But -- and, believe me, this stunned me as much as anyone else -- I really did think when I read this opinion that Phillip Russell was, in fact, probably innocent of the offense. Or, at a minimum, that there was totally reasonable doubt as to whether he was guilty.

You'll have to read the entire opinion for yourself to see if I'm crazy. Which I admit is a distinct possibility. But basically the case involves a homeless guy (Phillip Russell) who stumbles across a broken-down, non-working motorcycle that's leaning against a chain link fence next to some trash cans at the back of a motorcycle repair shop. Russell figures the owner has abandoned it -- probably because the cost to fix the chopper is more than it's worth -- so he takes it; after all, the cycle is next to the trash cans, and the shop doesn't leave the motorcycles it's fixing out at night. Moreover, the motorcyle both doesn't work and has registration tags that have expired almost two years previously.

Three weeks later, cops doing a routine sweep of a homeless camp stumble upon the chopper (which, from checking the tags, they learn has been reported stolen) next to a tent. Russell enters the camp shortly thereafter, and one of the cops asks Russell whose bike it is, and Russel says "Mine." So after they cuff and Mirandize him, Russell -- who's eager to talk -- tells them the story about how he found the bike. He also says that, shortly after he got the bike, we was stopped by a cop for a traffic violation and told that earlier cop the whole story as well; at that point, the bike hadn't even been reported stolen. And the earlier cop pretty much confirms this testimony. Moreover, the day after being stopped, Russell -- who had now obtained the owner's registered address from the cop -- shows up at the apartment building listed on the registration to try to get the "owner" to sign over the pink slip for the "abandoned" chopper. But registered owner hasn't lived there for 18 months, so Russell strikes out. All of these events are confirmed by the testimony of the apartment manager, who talked to Russell that day and who was the one who told Russell that the owner didn't live there anymore.

That's basically it. So what do you think? To me, the stuff that Russell did -- finding the bike where and how he did, looking for the registered owner, fixing it up, etc. -- are totally consistent with his (entirely reasonable) story about thinking the bike was abandoned. But the court doesn't instruct on a reasonable "mistake of fact" (or "claim of right") defense, and so on the instructions that are given, Russell is found guilty of felony receipt of stolen property. Moreover, although he's given time served, at that point, he's already spent a year-plus in jail; because, as you might have figured, this homeless guy can't make bail.

So I really do think that this guy sounds totally innocent; or, at a minimum, that no reasonable jury could have found (on proper instructions) that there was no reasonable doubt. There is just way, way too much evidence corroborating Russell's (entirely reasonable) story. Parenthetically, not only do I think that an innocent man might well have spent over a year in prison, but I also find it somewhat appalling that the Attorney General argued that the error here was harmless because the evidence showed that Russell was clearly guilty beyond a reasonable doubt. What an utter crock. Justice McAdams properly rejects that argument, and reverses the conviction, but I would have been much harsher about this argument. Which I don't find at all plausible, or even the slightest bit funny.

So that was my take. As I said, I'm no softie, and don't usually think we're dealing with innocent people on appeal. But this case is different. See whether or not you agree.

Wednesday, December 06, 2006

Williams v. Costco Wholesale Corp. (9th Cir. - Dec. 6, 2006)

Three points about this case.

First, it proves how even fairly intelligent judges can make simple -- but critical -- mistakes even on largely straightforward civil procedure issues. Here, Williams files a state court class action against Costco, which removes based upon federal question jurisdiction. Williams then amends to drop the federal claims (and adds some additional state claims), but the amended complaint also makes clear that diversity jurisdiction exists. Williams moves to remand, and Judge Jones does so. Which, as the Ninth Circuit per curiam opinion rightly holds, constitutes error. You can't do that if there's diversity jurisdiction, even if the presence of such jurisdiction only became clear post-removal (i.e., as a result of the amended complaint). You don't make the defendant file two removals, including one when the case is already in federal court. The first removal is good enough, and the district court can't remand even after the federal claims are dropped because there's original (diversity) jurisdiction.

Exactly right.

Second, the case also proves (1) how long even easy federal civil appeals take in the Ninth Circuit, and (2) as a result of (1), how important it is for both judges and lawyers to get these things right in the first place. The suit here (judging from its state docket number) was filed in state court way back in 2002. The appeal was filed in 2003. It's now the very end of 2006. And only now is the case even getting back to federal court. So it will be 2007 before the lawsuit returns to the district court. And so even five years after the lawsuit was filed, we're essentially back to the first 30 days of the case as far as the federal system is concerned. For a totally simple appeal in which the panel basically writes: "This is easy. Totally wrong. Duh. Reversed."

Five years of delay based upon a simple procedural mistake. Which highlights (1) how long civil appeals take in the Ninth Circuit (even easy ones), as well as (2) the substantial benefit to lawyers -- and their clients -- of taking the time to think about and understand civil procedure issues at the outset of the litigation. The five-year delay here could almost certainly have been avoided had plaintiff either (1) gone ahead and figured out he was stuck in federal court to begin with, and been happy there, or, if possible, (2) left out the federal claims (and made sure that diversity jurisdiction didn't exist, perhaps by finding a different class representatives) at the outset. But that didn't happen. Hence the five years of wasted time, as well as lots of lost effort and money. A telling tale.

Finally, with all due respect to my friends on the Ninth Circuit, can we perhaps speed things up a bit? Sure, I know we're currently blaming the Clerk/workload/Congress/whatever for the three-year delay between filing the appeal and the oral argument. But what about the delay here post-oral argument? The appeal was, after all, totally easy; indeed, the panel not only wrote a per curiam opinion, but also (harshly) called the district court's interpretation "nonsensical". With such an easy case, should it really take four months -- from August 16 to December 6 -- to crank out the four paragraph opinion here? I mean, a month a paragraph: should it really take that long?

Sure, they were fine paragraphs. But I think that we could have probably finished this one a little faster.

Just trying to help.

Tuesday, December 05, 2006

Calvert v. County of Yuma (Cal. Ct. App. - Dec. 5, 2006)

I can't believe that I slogged through the 36-page opinion in this case even after I read the following opening paragraph:

"This appeal involves the Surface Mining and Reclamation Act of 1975. (SMARA; Pub. Resources Code, § 2710 et seq.) Our principal conclusion is that if an entity claims a vested right pursuant to SMARA to conduct a surface mining operation that is subject to the diminishing asset doctrine, that claim must be determined in a public adjudicatory hearing that meets procedural due process requirements of reasonable notice and an opportunity to be heard. We give this conclusion limited retroactive effect. We shall affirm the judgment with certain modifications."

But I did. And my brain still hurts.

There's 30 minutes of my life I'll never get back.

Doe v. Kamehameha Schools (9th Cir. - Dec. 5, 2006)

Sometimes the composition of the en banc court doesn't especially matter (see, e.g., here), or the votes aren't entirely predictable (see, e.g., here).

But then there are cases like this one. And, boy, what a case. The question is whether preferences for Native Hawaiian students discriminate on the basis of race in violation of 42 U.S.C. sect. 1981. Judge Bybee wrote a panel opinion (which I discuss here) concluding that they might, and to the shock of no one, the Ninth Circuit voted to take the case en banc.

At which point the en banc court votes 8-7 to uphold the preferences. In a series of opinions that spans 100-plus (single-spaced) pages and that contains a majority opinion, a concurrence, and four separate dissents.

Judge Graber writes the majority opinion, and does so both colorfully and with a distinct sense of history. And Judge Bybee -- who authored the very well-written panel opinion -- reprises this role in the principal dissent.

Everyone does a very good job here of articulating their distinct vision. In the end, however, it's a case where one need merely count the votes. And in which the draw made a huge difference. The eight-member majority consists entirely of Carter and Clinton appointees (interestingly, each of the three of the remaining active Carter appointees -- Schroeder, Pregerson, and Reinhardt -- were on the panel). By contrast, the seven dissenters were almost exclusively Republican appointees: both of the remaining active Reagan appointees (Kozinski and O'Scannlain) as well as both of the remaining active Bush I appointees (Rymer and Kleinfeld) were on the panel, and they were joined by a couple of Bush II appointees. So there was a sharp -- and very predictable -- ideological split here, with the only exception being Judge Tallman's decision to join the dissent.

So a very close 8-7 vote in which the draw made a huge difference.

Parenthetically, I very much agree with Judge Kozinski when he says, on page 109, that "the question is close and ours may not be the last word." I wouldn't at all be surprised to see the Supreme Court take this one up.

Monday, December 04, 2006

U.S. v. Tuff (9th Cir. - Dec. 4, 2006)

All of my friends with boatloads of valuable stock options -- and there are, surprisingly enough, an increasing number of them -- should read this opinion by Judge Goodwin. Which involves how the Ninth Circuit will tax nonqualified stock option compensation.

Be forewarned, however: You're not going to like the answer.

Friday, December 01, 2006

Oaks Management Corp. v. Superior Ct. (Cal. Ct. App. - Nov. 30, 2006)

There's no way in the universe I'm going to comment extensively upon this opinion. Yes, it's an interesting case involving the disqualification of a prominent San Diego law firm for conflict reasons. Yes, it's got some interesting facts, and players, and doctrine. Yes, it's significant, particularly for those of us who teach and opine -- not to mention care -- about professional responsibility issues.

But my own conflicts are simply too great. Not that I'm connected to (or had even heard about) this lawsuit, which involves a condo conversion project in Fallbrook. That's not the problem. It's instead that the matter (1) involves the diqualification of a law firm with huge USD ties (Thorsnes Bartolotta McGuire); (2) arises out of a $1,000,000-plus loan made by MTT Partners (which, I believe, is part of a substantial planned gift to USD) to the plaintiff; (3) concerns a disqualification motion won by two USD Law School graduates (Donald English and Christy Yee) against another USD Law School graduate (Daral Mazzarella); and (4) arose before a trial judge (Judge Enright) before whom I'm shortly scheduled to appear.

So I ain't gonna touch this one with a ten foot pole.

Except, perhaps, to say two brief things. First, I think that Justice McConnell's opinion adopts the right approach and attitude to disqualification motions; practical, reasonable, sensible, and balanced. That's something I definitely like. Second, the list of counsel includes a "Brendan E. Ozanne". However, doesn't Brandan's middle name actually begin with a "K"? I think it does.

In Re K.W. (Cal. Ct. App. - Nov. 21, 2006)

No published opinions by the California Court of Appeal today. Not a single published opinion by the Ninth Circuit either.

I didn't know that today was a three-day holiday weekend. Or has everyone in the judiciary just decided that the first day of December is a freebie?

The break nonetheless does allow me to go back and write about a couple of cases in the last couple of weeks that I had brief thoughts about but which nonetheless did not mention. Like this one.

You know there's utterly nothing good -- nothing at all -- that's going to come out of a fact pattern that includes this paragraph:

"In late February 2004 Tabitha, then 14 years old, gave birth to K.W. A day after the birth, Tabitha tested positive for marijuana metabolites. Tabitha was not responsive to the newborn; hospital staff had to wake up Tabitha to feed K.W., and once awakened, she soon went back to sleep even though the baby continued to cry. As a result, a nurse had to feed the baby."

A case from San Diego. How depressing.