Willamette Law Online

(36 summaries)

Margaret George

9th Circuit Court of Appeals

TitleExcerptFilling Date
United States v. LopezCriminal Law: A “properly authenticated verification of removal is legally sufficient to support a finding of physical removal beyond a reasonable doubt”; and, the government is required to show physical removal but not to show that before removal of an alien an order of removal was issued.(04-02-2014)
Estate of Saunders v. CIRTax Law: A claim can be deducted from an estate tax return if the estimated value is reasonably ascertainable and not if it is vague or uncertain. Post-death events are allowed for calculation purposes of a deduction when the claim is “disputed or contingent.” (03-12-2014)
United States v. TankeCriminal Law: Mailings sent “to avoid detection or responsibility for a fraudulent scheme,” which were sent before the completion of a scheme, are within the mail fraud statute, and the perpetrator’s scope of the fraudulent scheme should be used to figure out when a scheme has finished.(03-03-2014)
MediVas, LLC v. Marubeni Corp.Appellate Procedure: There is a rebuttable presumption that an order compelling arbitration but that does not explicitly dismiss the underlying claims stays the action as to those claims pending the completion of the arbitration and is an unappealable interlocutory order.(01-27-2014)
Knapp v. HoganCivil Rights § 1983: A dismissal after repeated violation of Rule 8(a)’s requirement, followed by leave to amend to meet the “short and plain statement” requirement, under §1915(g) constitutes a dismissal “for failure to state a claim.” (12-26-2013)
Evans v. Shoshone-Bannock LUPCIndian Law: When a tribal court lacks jurisdiction, a nonmember to an Indian Tribe does not have to exhaust tribal remedies prior to filing a suit in federal court, and it is not within the Tribes’ authority to regulate land owned in fee simple by a nonmember of the Tribe unless the land’s intended use is considered to put the area of the surrounding reservation in jeopardy.(12-05-2013)
United States v. KyleCriminal Procedure: When a court goes beyond providing reasons for rejecting the agreement presented and comments on the hypothetical agreements it would or would not accept, it crosses over the line established by Rule 11 and becomes involved in negotiations.(10-30-2013)
United States v. CortesCriminal Law: A criminal defendant is entitled to present a sentencing entrapment defense to the jury when evidence shows that the result of the defense will be lowering the statutory sentencing range; the Hobbs Act makes robbery and extortion criminal even when contraband is the property at issue.(10-09-2013)
United States v. Elk ShoulderCriminal Law: The Sex Offender Registration and Notification Act's registration requirements are not punitive in nature and therefore do not violate a person’s constitutional rights.(09-23-2013)
United States v. DunnCriminal Law: United States v. Colson is not clearly in conflict with Dillon v. United States because Dillon does not change Booker’s reasonableness standard and it was not “closely on point” to the jurisdictional question at issue.(09-06-2013)
United States v. ThompsonSentencing: Using a thermal lance tool that uses extreme heat to cut through metal does not constitute “using fire” under 18 U.S.C. § 844(h)(1) and does not warrant a penalty enhancement.(08-29-2013)
Stapley v. PestalozziCivil Rights § 1983: Prosecutors filing a federal civil racketeering suit are not entitled to absolute immunity when their actions were not “sufficiently analogous to those of a prosecutor” and when the suit is not “analogous to a criminal prosecution.”(08-16-2013)
Shoemaker v. TaylorFirst Amendment: An image “morphed” to depict children who appear to be engaging in sexual activity does not constitute protected speech.(08-06-2013)
United States v. Gonzalez-VillalobosImmigration: To satisfy 8 U.S.C. § 1326(d)(2), the defendant must show actual or constructive inability to seek judicial review, and the inability must be related to an alleged error in the deportation proceedings; denial of an evidentiary hearing does not satisfy this requirement.(07-26-2013)
United States v. StoltzCriminal Procedure: The Double Jeopardy Clause of the Fifth Amendment is not implicated when a servicemember is given a nonjudicial punishment without a waiver of the servicemember’s right to demand a court-martial instead. (06-27-2013)
United States v. MorganCriminal Law: When an agent re-advises a suspect of their Miranda rights and does not question her or seek a waiver of her rights then these actions are not the functional equivalent of “interrogation” in violation of Miranda even if a picture is taken with the defendant and the contraband.(06-03-2013)
United States_v._McClendonCriminal Procedure: A defendant who walks away, refuses to comply with police officers’ commands, and reaches into his waistband is not considered “seized” under the Fourth Amendment until he submits to the authority of the police. (04-19-2013)
Perez v. Nidek Co., LTD.Preemption: In order for a state-law claim to escape preemption by the Federal Food, Drug, and Cosmetic Act (“FDCA”), the plaintiff must be suing for conduct that violates the FDCA, not suing because the conduct violates the FDCA.(03-25-2013)
United States v. KingCriminal Law: The Fourth Amendment permits a suspicionless search of a probationer’s residence when, as part of a probation agreement, the probationer has accepted a suspicionless-search condition.(03-08-2013)
United States v. MaySentencing: Under the U.S. Sentencing Guidelines, a court may consider damages that arise as a result of prevention measures directed at an ongoing crime spree. Under the Mandatory Victim's Restitution Act, where a convicted act occurred after damages arose, the convicted act cannot be the basis for restitution of the damages.(02-12-2013)
Babb v. LozowskyHabeas Corpus: In a petition for habeas corpus, where a court determines with reasonable certainty that a jury reached a general verdict of guilt upon a valid theory, an erroneous instruction relating to separate theory of guilt is a harmless error. (01-11-2013)
United States v. KeyserCriminal Law: The mailing of sugar packets labeled “Anthrax” constitutes a true threat and, therefore, is not protected by the First Amendment; likewise, hoax speech is not entitled to First Amendment protection, because “false and misleading information indicating an act of terrorism tends to incite a tangible negative response by law enforcement, emergency workers, and citizens.”(12-06-2012)
Carrera v. AyersHabeas Corpus: A claim for ineffective assistance of counsel for failure to make a Wheeler objection, in 1990, can only be met if the defendant shows that there was a prima facie case for unlawful discrimination and shows that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."(11-06-2012)
Delgado-Hernandez v. HolderImmigration: Ordinary kidnapping under California Penal Code § 207(a) “is a crime of violence because it results in a substantial risk of force.”(10-09-2012)
Sanders Cnty. Republican Cent. Comm. v. BullockFirst Amendment: Under the strict scrutiny standard, preventing political parties from endorsing a judicial candidate is not a necessary prerequisite to the compelling interest of maintaining a fair and independent judiciary.(09-17-2012)
Yeager v. BowlinCivil Law: Under California law, a statement is not "republished" on a website unless "the statement itself is substantively altered or added to" or "the website is directed to a new audience."(09-10-2012)
Sanchez-Avalos v. HolderImmigration: For purposes of assessing eligibility for waiver of inadmissibility, the “modified” categorical approach allows courts to consider only those facts upon which a defendant’s conviction “necessarily rested.”(09-04-2012)
Jones v. RyanHabeas Corpus: A claim for prosecutorial misconduct will not succeed when the evidence is not material to the case, no prejudice results from inconsistencies of that evidence, and the evidence is just one piece of the mosaic of evidence against the petitioner.(08-16-2012)
Evon v. Law Offices of MickellCivil Law: A debt collector’s practice of sending collection letters addressed to the debtor and in “care of” the debtor’s employer without obtaining the debtor’s prior consent constitutes a per se violation of the Fair Debt Collection Practices Act.(08-01-2012)
Nelson v. City of DavisConstitutional Law: Pepperball projectiles, which combine pepper spray and concussive force, "merely combine two types of force that we have already recognized as unreasonable when aimed at individuals who pose no threat and have committed, at most, minor offenses."(07-11-2012)
United States v. Ramos-MedinaSentencing: A sentencing court “may consider acceptance of responsibility separately in imposing a sentence, even if the court determined that the defendant did not qualify for a formal adjustment on those grounds” under the Sentencing Guidelines.(06-21-2012)
Vilchez v. HolderConstitutional Law: Whether a particular video-conference hearing "violates due process must be determined on a case-by-case basis, depending on the degree of interference with the full and fair presentation of petitioner's case caused by the video conference and on the degree of prejudice suffered by the petitioner."(06-19-2012)
United States v. Perea-ReyConstitutional Law: Under the Fourth Amendment's protections, agents do not need a warrant to observe inside the curtilage of the home but do need a warrant to enter into it. The "knock and talk" exception's constitutionality of curtilage entries is determined on whether “the officer’s actions are consistent with an attempt to initiate consensual contact with the occupants of the home" and not the "officer's subjective intent."(05-31-2012)
SEC v. JasperEvidence: A trial court may properly exclude hearsay statements that are admissible under Federal Rule of Evidence 804(b)(1) where the “trial court simply considered it unfair to present a version of an unavailable witness’s testimony without an opportunity to cross-examine directly.”(05-15-2012)
Cross v. SistoHabeas Corpus: A federal habeas corpus claim should not be found untimely when it is properly filed under California law and statutory tolling is correctly applied.(04-18-2012)
Peng v. HolderImmigration: Irrespective of whether an alien pleaded guilty or proceeded to trial, an alien convicted of a crime involving moral turpitude before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act is eligible for waiver of deportation under § 212 of the Immigration and Naturalization Act.(03-22-2012)