Marsha Siegel Berzon

In Stern v. Gambello, a class action involving AT&T cellular service customers, Judge Berzon of the Ninth Circuit addressed whether she should recuse herself after discovering that she and her husband qualified as potential class members entitled to a $7 settlement payment. She determined that she would not recuse, instead waiving any financial interest in the current settlement or any future recovery for herself and her husband. The judge adopted the reasoning from the Second Circuit's decision in In re Literary Works in Electronic Databases Copyright Litigation, concluding that 28 U.S.C. § 455(f) permits this approach. This balances the need for impartiality and its appearance against the practical burdens of unnecessary recusal without undermining public confidence in the judiciary.

procedure

In United States v. Solorio, the defendant appealed his jury convictions for possession with intent to distribute and conspiracy to distribute 500 or more grams of methamphetamine, arising from a DEA “buy-bust” operation in which a long-time government informant arranged to purchase the drug from Solorio at a Costco parking lot. The Ninth Circuit affirmed the convictions, holding that the district court’s failure to swear the informant’s interpreters under Federal Rule of Evidence 604 was plain error but did not affect Solorio’s substantial rights; that the DEA agents’ testimony recounting other agents’ statements either was not hearsay or did not violate the Confrontation Clause; and that the evidence, including field and laboratory tests plus recorded conversations about price and quantity, was sufficient for a rational jury to find beyond a reasonable doubt that the seized substance was methamphetamine despite gaps in the chain of custody. The court further concluded there was no cumulative error warranting reversal.

criminal lawprocedure

The case concerned the National Labor Relations Board’s finding that Legacy Health System violated sections 8(a)(1) and (3) of the National Labor Relations Act by enforcing an unwritten policy that barred employees from holding both union-represented and non-union positions at the same time, affecting three specific workers. An administrative law judge and then the Board ruled against Legacy Health and issued a remedial order requiring the company to offer the employees the positions they had been denied (or substantially equivalent ones) and to make them whole. The Ninth Circuit granted the Board’s petition for enforcement of that order. It held that section 10(e) of the Act deprived the court of jurisdiction to review Legacy Health’s objections to the remedy, because the company had never moved for reconsideration before the Board despite having a 28-day window to do so while the Board retained concurrent jurisdiction. The court also observed that Legacy Health had likewise failed to seek reconsideration of an earlier, nearly identical Board order.

labor & employmentbusiness & regulatoryprocedure

Steven Craig James was convicted in Arizona state court of first-degree murder and kidnapping for his role in the 1981 beating and killing of Juan Maya, along with codefendants Libberton and Norton, and was sentenced to death. He sought federal habeas relief, claiming the state violated Brady and Giglio by failing to disclose an oral plea deal with juvenile witness Norton, violated Napue by not correcting Norton’s false testimony denying any deal, and that his trial counsel rendered ineffective assistance at the penalty phase by failing to investigate or present mitigating evidence. The Ninth Circuit affirmed denial of relief on the guilt-phase claims but reversed on the penalty-phase ineffective-assistance claim. It held that counsel’s complete failure to investigate James’s troubled childhood, mental illness, and chronic drug abuse was deficient performance that prejudiced James by depriving the sentencing judge of evidence of his disadvantaged background and reduced moral culpability. The court therefore granted habeas relief as to the death sentence and remanded for resentencing.

criminal lawprocedure

The case concerned discipline against attorneys Thomas V. Girardi, Walter J. Lack, Paul A. Traina, and a junior associate for their conduct in attempting to enforce a $489 million Nicaraguan default judgment against Dole, Shell, and Dow Chemical in DBCP pesticide litigation. The lawyers had filed and pursued an appeal in the Ninth Circuit even after learning that the purported judgment document was spurious and that the Nicaraguan court had never properly named the actual defendant entities. The court imposed monetary sanctions totaling hundreds of thousands of dollars, joint and several liability on the firms, and orders to reimburse defendants' fees, relying on its inherent authority and Federal Rule of Appellate Procedure 46. The core reasoning was that the attorneys knowingly maintained litigation based on fabricated evidence, violating their duties of candor and warranting discipline to protect the judicial process.

procedure

This bankruptcy case concerned whether a creditor, First American Title Company, could prevent the discharge of a Nevada state court judgment against debtor Lawrence Ormsby under 11 U.S.C. §§ 523(a)(4) and (a)(6). The state court had found that Ormsby encouraged and assisted in the misappropriation and conversion of the creditor's proprietary title plants, base files, and related records, awarding compensatory and punitive damages. The bankruptcy court granted summary judgment to the creditor on nondischargeability grounds, which the district court affirmed. The Ninth Circuit affirmed, holding that issue preclusion applied because the state court's findings on misappropriation, conversion, willfulness, and malice satisfied the federal standards for larceny and willful and malicious injury.

torts & liabilitypropertyprocedure

The case concerned Michael Berger, a street performer at the Seattle Center, who brought facial and as-applied First Amendment challenges to five campus rules adopted by the City of Seattle. The rules required permits and badges for performances, limited performances to designated spots, barred active solicitation, and imposed a 30-foot buffer zone around captive audiences. The district court granted summary judgment to Berger, holding that the rules were unconstitutional. On appeal, the Ninth Circuit reviewed the rules under the standards for time, place, and manner restrictions in a traditional public forum, requiring that they be content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication.

free speechcivil rights

This case involved a certified class of elderly and disabled Medicaid beneficiaries in Arizona who sued the state director of the AHCCCS program, alleging that Arizona failed to provide adequate home- and community-based attendant care services in violation of several provisions of the federal Medicaid Act. The district court allowed the case to proceed and, after a bench trial, found violations of the Act's equal access provision and free choice provisions, granting permanent injunctive relief. On appeal, the Ninth Circuit reversed the equal access ruling because intervening precedent established that this provision does not create individual rights enforceable under § 1983, but concluded that the free choice provisions do confer enforceable rights. The court remanded for further fact-finding on whether Arizona violated the free choice provisions, for possible entry of a new injunction, and for consideration of unresolved claims under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.

healthcarecivil rights

The case involved the criminal prosecution of Utah lawyer Wesley Sine for his role in a pyramid scheme that defrauded victims of millions of dollars by misrepresenting the legitimacy of loans and the value of collateral in the form of Ginnie Mae securities. During the trial in California federal district court, the government repeatedly referenced adverse factual findings and credibility assessments from a prior Ohio civil case against Sine to challenge his good-faith defense. The Ninth Circuit held that these references created a substantial risk of unfair prejudice and constituted impermissible hearsay under the Federal Rules of Evidence, but because Sine did not object at trial and the government presented overwhelming admissible evidence of guilt, the errors did not warrant reversal under plain-error review. The court therefore affirmed Sine's conviction.

criminal lawprocedure