Paper Trail

Two Defendants Get Do Overs: (1) Conviction Vacated (Struckman) and (1) Conviction Reversed (Severs)

May 6, 2010

USA v. Struckman (08-30463) & USA v. Stever (09-30004)

Wendy McGuire Coats


On Tuesday May 4, 2010, the Ninth Circuit handed down two “do over” opinions to criminal defendants.  In one (Struckman), the police officers pretty much disregarded the 4th Amendment with a “arrest first, ask questions later” approach and in the other (Stever) the district court and the Government pretty much stripped the criminal defendant of his opportunity to present a defense at trial.  Both cases present quick reviews of the procedural and evidentiary rules (Rule 16, FRE 401 & 404, Sixth Amendment) in play in many criminal cases.  The cases are not complicated (actually somewhat interesting Law & Order scenarios) and should leave most people (not just lawyers) with a simple reaction, “Wait a minute. They can’t do that.”


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  • A Holding Cell Is Not A Pretrial Detention Center. Oh, And a Great Dissent.

    May 4,2010

    On May 2, 2010, the Ninth Circuit issued its Opinion in Souhair Khatib v. County of Orange (No. 08-56423) (full opinion available here).  The Majority’s Opinion by Judge Trott and agreed to by Judge Wardlaw, interpreted portions of the Religious Land Use and Institutionalized Persons Act (“RLUIPA” or the “Act”) to determine that the Orange County Courthouse “holding cell” did not fall within the purview of the Act.  The RLUIPA, prohibits governments from imposing a substantial burden on the religious exercise of a person residing in or confined to an institution as defined in the Act.  The term, “institution” means any facility which is owned by the state or subdivision of the state and is “(ii) a jail, or other correctional facility; [or] (iii) a pretrial detention facility.”  The facts presented to the Court were fairly simple; the Plaintiff-Appellant was on probation and was ordered to perform 30 hours of community service before a certain date.  Prior to that time, she appeared before the Superior Court and asked for an extension of time.  At the hearing, the Superior Court revoked her probation and ordered her held in custody in the courthouse pending disposition later that day.  During the time she was being held, she was ordered, over her objection, by the sheriff’s department to remove her hijab, a head scarf (removal in a public setting is against her Muslim beliefs and is considered to be a great offence).  She was held for less than a day and was released the same day.  From those facts, the Appellant sued the County of Orange and other officials for violations of RLUIPA.[1] The Majority’s Opinion determined that the court’s “holding cell” did not fall within the category of “a jail, or other correctional facility” or “a pretrial detention facility”; by relying on various factual distinctions (i.e., a holding cell is sparse and those detained there do not spend the night) and by examining legislative history to reach their conclusion. It is rather straightforward and unremarkable and provides the Appellant no relief from the District Court’s dismissal. Then you get to Judge Kozinski’s dissent.

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    Matthew A. Berliner

  • Case to Watch: Things are Heating Up in Climate Change in the 9th Circuit

    April 26,2010

    Notice of Appeal Filed: November 5, 2009 Short Summary: While the United States Congress has yet to enact a regulatory scheme to address climate change at a federal level, litigants, including, environmental advocates, public interest organizations, individual property owners, and state governments have already filed suits against oil, energy, and chemical companies seeking judicial intervention and/or damages under various theories. Court’s across the United States have begun issuing opinions on these climate change cases with mixed degrees of success for the plaintiffs and defendants.  One of the major climate change litigation cases now pending before the Ninth Circuit is Native Village of Kivalina v. Exxonmobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009).  The Ninth Circuit's decision in the Kivalina matter will likely determine the viability of climate change litigation cases in the Ninth Circuit as the Court will determine, among other issues, whether climate change cases should be barred under the political question doctrine.

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    Brian J. Bergman

  • Thank You For Accusing Me of Marriage Fraud, Sir. Now Give Me Back My Green Card.

    Often times in immigration appeals at the Ninth, it is unclear why a case has been published.  No new rule necessarily comes from the case; more likely, the case reflects some miniscule nuance of an old rule.  Which, yes, we all appreciate, but 30 pages later, we have not really learned anything novel about the way the law works.  This is not so in Vasquez v. Holder. (full opinion available here) Some Background on Conditional Residency.  One of the bases for applying for permanent residency (a green card) is marriage to a U.S. citizen.  However, if permanent residency is granted prior to the second anniversary of the marriage, then there is a condition to that residency.  The green card is valid for only two years.  At the end of the two years, the immigration service wants a chance to, well, check in and see how things worked out.  Still married after two years?  Excellent.  Chances are the condition will be removed and you will receive a full blown green card.  Not still married?  Uh oh.  

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    Emily K. Allen

  • Conjecture Cannot Take The Place of Proof

    April 19,2010

    Question: Whether Arizona's statutory scheme for regulating the shipment of wine to consumers has the practical effect of favoring in-state economic interests over out-of-state interests. Holding: No.  Affirming district court's order granting summary judgment in favor of Arizona (full opinion available here). Basic Facts:  Arizona regulates the sale of alcoholic beverages through a three-tier distribution system comprised of suppliers (e.g., wineries, distilleries, and breweries), wholesalers, and retailers.See Ariz. Rev. Stat. §§ 4-243.01, 4-244(6)-(7). Generally, suppliers may sell and deliver only to wholesalers, wholesalers may sell and deliver only to retailers, and retailers may sell and deliver only to consumers. Id.

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    Wendy McGuire Coats

  • “WOULD YOU RATHER . . . ?” The Ninth Circuit Explores the Gray Middle Ground Between Descriptive and Suggestive Trademarks

    April 29,2010

    The Ninth Circuit issued a unanimous decision (Cir. Judges Gould, Ikuta, N. Randy Smith) this week in a trademark and unfair competition lawsuit that, while not ground breaking, illuminates many aspects of the line between descriptive and suggestive trademarks.  In Zobmondo Entertainment LLC v. Falls Media, LLC, No. 08-56831 (9th Cir. 2010) (full opinion available here), the Court reversed a district court’s decision to invalidate a mark due to it being “descriptive” as a matter of law.  The Court addressed two competing game and book publishers whose products are marked or identified as “WOULD YOU RATHER  . . . ?”  As described by the Court, both companies’ products incorporate questions posing humorous, bizarre or undesirable choices.  As an example: “Would you rather be able to expedite the arrival of an elevator by pressing the button multiple times or have the ability to sound incredibly natural and sincere on answering machines?”

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    Matthew A. Berliner

  • “Hey Wal-Mart, The Women Are Coming, The Women Are Coming”

      The Wal-Mart Women:the class in this case is broad and diverse, encompassing both salaried and hourly employees in a range of positions, who are or were employed at one or more of Wal-Mart’s 3,400 stores across the country.  Plaintiffs allege that Wal-Mart, Inc., discriminates against women in violation of Title VII of the Civil Rights Act of 1964.  Specifically, Plaintiffs allege that women employed in Wal-Mart stores: (1) are paid less than men in comparable positions, despite having higher performance ratingand greater seniority; and (2) receive fewer—and wait longer for—promotions to in-store management positions than men.  The simple and unremarkable majority holding (after 100+ pages) is quicker to get to in Judge Graber's concurrence: (full opinion available here). 

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    Wendy McGuire Coats

  • Look Only to the States: No Federal Constitutional Right To Parole Absent Some Evidence of Future Dangerousness

    April 24,2010

    Factual background: In 1978 Hayward's girlfriend was "out" with the girls when some altercation occurred with Tom Strauss (aka Tom O'Connor).  Not to let Tom's conduct go unpunished, Hayward spent months "keeping his eyes open" to exact revenge.  One night Hayward got a call with Tom's location, so he and his fellow gang buddies went down to the Buccaneer Bar looking for a fight.  The gang knocked Tom down and Hayward proceeded to stab Tom 12 times, killing him.  In 1980, Hayward was sentenced 15 years to life. 15 years later, Hayward applied for parole.  He was repeatedly denied.  He appealed to the Ninth Circuit for a writ of habeas corpus claiming that he was "entitled to be paroled."

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    Wendy McGuire Coats

  • Updates in Perry v. Schwarzenegger

    April 13,2010

    In the continuing evidentiary dispute within Perry v. Schwarzenegger, the Ninth Circuit has denied appeals from the ACLU and Equality California for lack of jurisdiction (available here).  The interest groups are now faced with two options: obey Judge Walker’s original order requiring them to produce documents related to the Prop 8 campaign, or refuse to comply with the order and face contempt, enabling them to properly appeal to the Ninth Circuit.  It is likely that these groups will face contempt and appeal, rather than produce the documents, which they claim are confidential and constitutionally protected. It also appears that a vote to repeal Prop 8 will not be on the ballot in 2010.  [1] Interest groups were unable to collect the necessary amount of signatures required from California voters.  There is division on this issue among same-sex marriage advocates – many believed that 2010 was too soon to rally enough forces to successfully repeal Prop 8 through the ballot system, and preferred to wait until 2012.

    [1]Kris Alingod, California Signature Drive to Overturn Propisition 8 in November Ballot Fails, All Headline News, April 13, 2010, available at (last accessed April 13, 2010).

    Stevie E. Leahy

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