Wasserman's Appellate Summaries
November 2, 2000
By Lawrence Wasserman, Esq.
Netlaw Libraries welcomes back attorney Lawrence Wasserman as a new website contributor. We are pleased to announce that his guest column, which synopsizes the recent decisions from the Ninth Circuit Court of Appeals, the California Supreme Court, the six California appellate districts, as well as some of the recent and interesting decisions from the U.S. Supreme Court, will be appearing as a regular feature for members and guests visiting the Netlaw Libraries website. We hope that you will find it to be a good way to start your legal research day and welcome your comments and criticisms regarding the column.
KEEPING CURRENT, November 2, 2000
8 NEW APPELLATE CASES
CASES OF PARTICULAR INTEREST:
It is not the government's fault when you go to a Burning Man Festival in the middle of the dessert and get run over by an automobile in your tent.
The court must specifically advise a defendant of the hazards of self representation in a criminal trial.
Sentencing for non-charged estimated amount of drug transaction must err on conservative side.
Discovery of police officer's acts of misconduct and lying are discoverable beyond the 5 year period set forth in the Evidence Code.
An insurance company must advise the claimant of the statute of limitations with respect to a disallowed claim.
City Of Los Angeles v. Superior Court / Brandon
Case No. B143088
California Court of Appeal, Second District, Division Three
CRIMINAL-STATUTE LIMITING DISCOVERY OF PAST MISCONDUCT OF POLICE OFFICERS-DUE PROCESS RIGHT TO DISCOVERY PREEMPTS STATE STATUTE
Brandon was charged with committing a lewd act upon a child under the age of 14 and failure to register as a convicted sex offender relating to an incident eight years earlier. Brandon moved for pretrial discovery, requesting disclosure of the names, addresses, and telephone numbers of all persons who had filed complaints with or were interviewed by the police department concerning alleged misconduct by the two arresting officers reflecting on their honesty or truthfulness. In camera production of the documents disclosed several incidents of concealing facts by the officers who arrested Brandon. The court ordered the police department to disclose the names, addresses, and telephone numbers of the complainants and witnesses relating to the two complaints and to provide a brief summary of the incidents. One incident was 10 years old.
HELD: The Evidence Code prohibits a court from ordering the disclosure of information concerning a complaint against a police officer arising from conduct that occurred more than five years before the incident that is the subject of the pending litigation. A state law that conflicts with a criminal defendant's rights under the federal Constitution must yield to those constitutional rights. The supremacy clauses in the federal and state Constitutions require that result. The disclosure ordered in this case is required to protect the defendant's Fourteenth Amendment due process right to a fair trial and that the city has not shown error. The City's petition for mandate was denied..
Neufeld v. Balboa Insurance Company
Case No. G022801
California Court of Appeal, Fourth District, Division Three
INSURANCE-EFFECT OF FAILURE TO ADVISE POLICY HOLDER OF STATUTE OF LIMITATIONS
In 1995 Neufeld made a claim to Balboa Insurance Company for losses incurred when the roof of her ski lodge collapsed. Balboa denied the claim in October 1995, on the ground that the cause of the losses, the weight of snow on the roof, was not a named peril under Balboa's named peril policy. Neufeld filed suit in March 1997. Balboa's motion for summary judgment, on statute of limitations grounds was granted.
HELD:By regulation of the Department of Insurance an insurer could be estopped from raising the one-year suit provision as a defense if it had not complied with regulations issued by the California Insurance Commission in 1992 requiring every insurer to disclose to a first party claimant all time limits that might apply to the claim presented by the claimant. There was no such disclosure in this case. It was error to grant the summary judgment based on the one-year suit provision given the present record. Reversed.
Crum v. Circus Circus Casinos
Case No. 99-15638
U.S. Court of Appeals for the Ninth Circuit
TORTS-ALLEGATION OF CLAIM IN EXCESS OF $75,000 REQUIRED FOR DIVERSITY JURISDICTION
Crum filed a complaint in the district court against Circus Circus alleging that she was injured on the premises of the casino. The district court dismissed, on the ground that she failed to allege the claim exceeded $75,000 and amending to allege the required amount would be merely colorable for the purpose of conferring jurisdiction.
HELD:District courts have jurisdiction in civil actions where there is complete diversity of citizenship among the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. It does not appear to a legal certainty that Crum's claim is really for less than the jurisdictional amount. Reversed.
Reed v. U.S. Department Of The Interior
Case No. 99-15250
U.S. Court of Appeals for the Ninth Circuit
TORTS-FEDERAL TORT CLAIMS ACT-WAIVER OF SOVEREIGN IMMUNITY-LIMITATION ON WAIVER FOR GOVERNMENT EMPLOYEE'S DOING DISCRETIONARY ACT
Reed was attending an event known as the Burning Man Festival, held on the desolate Black Rock Desert playa in Nevada. The playa is federally owned land managed by the Bureau of Land Management. He was severely injured when a car ran over the tent in which he was sleeping. He sued the United States under the Federal Tort Claims Act. Summary judgment was for the United States, on the grounds that all the negligent conduct of the government was shielded by the discretionary function exception of the FTCA, and the court had no jurisdiction.
HELD:The United States can be sued only to the extent that it has waived its sovereign immunity. There is a waiver of immunity for tort claims arising out of the negligent conduct of government employees acting within the scope of their employment. That waiver of immunity is then limited by the discretionary function exception. This exception applies when an injury to a person is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved is abused. The government exercised its discretion in granting Burning Man the event permit. Even if the exercise of that governmental discretion was ill-advised, it does not make the discretionary function exception inapplicable. Affirmed.
USA
v. Jones
Case No. 99-10462
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-STALKING AS CRIME OF VIOLENCE-CONSTITUTIONALITY OF CRIME OF POSSESSION OF FIREARM WHEN SUBJECT TO DOMESTIC VIOLENCE RESTRAINING ORDER
Jones was convicted of possession a firearm while subject to a domestic violence restraining order, being a felon in possession of firearms, making false statements on firearms records, and making a false statement on a firearm license renewal application. His prior conviction in state court for stalking was counted as a violent prior, resulting in a two-level increase under sentencing guidelines.
HELD:The Court found the firearm possession while subject to a domestic violence order is constitutional and that there was sufficient evidence to support Jones' conviction on all counts. After the sentencing the California State courts interpreted the state's stalking statute in a different manner than the district court had. This new interpretation requires that the sentence be vacated and remanded to the district court for re-sentencing. There was sufficient evidence for the jury to have found beyond a reasonable doubt that Jones was not entrapped. Because the California Court of Appeal has now held that the state stalking statute is not limited to physical injury on its face, Sentence vacated and remanded to permit the district court to reconsider sentencing.
USA v. Hayes, Jr.
Case Nos. 99-10405 /
99-15502
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SELF REPRESENTATION BY DEFENDANT-REQUIREMENT OF EXPLAINING THE SPECIFIC DANGERS OF SELF REPRESENTATION
Hayes sold working interests, also known as individual equity shares, in oil and gas leases. He operated the business as a Ponzi scheme. Hayes was convicted of 14 counts of mail fraud, one count of wire fraud, and two counts of interstate transportation of stolen money. Hayes represented himself at trial. He was sentenced to a total of 20 years in prison. His convictions were upheld on appeal. Hayes also sought habeas corpus relief for failure of the district court to warn him of the dangers of self representation, and on other grounds.
HELD:To waive the right to counsel, a criminal defendant must make a knowing and intelligent decision that represents an exercise of informed free will. There is no required formula for such warning. In this case the court acted conscientiously in trying to persuade Hayes to have a lawyer, and in insisting on appointing standby counsel Because of the inherent disadvantage in proceeding without counsel, it is crucial that a defendant who seeks to proceed pro se be fully informed of the ramifications of that decision. Although the court emphasized that there are consequences of not having counsel, it did not describe those consequences. Nor did it explain the specific dangers and disadvantages of self-representation in a way that satisfies precedent. Reversed and remanded.
USA
v. Scheele
Case No. 99-30388
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-SENTENCING-BASE LEVEL ADJUSTMENT FOR ACTUAL AND ESTIMATED AMOUNT OF DRUGS EVEN IF NOT CHARGED-CONSERVATIVE ESTIMATE OF DRUGS REQUIRED
Scheele pleaded guilty to a three count indictment charging him with manufacturing, distributing, and attempting to manufacture methamphetamine. There was a hearing on the amount of drugs and whether an obstruction of justice adjustment in the offense base level merited. Scheele was sentenced to 135 months.
HELD:One of the most significant changes effected by the Sentencing Guidelines is the prescription of precisely calibrated punishment for conduct of which the defendant has not been convicted. In imposing a sentence under the Guidelines in a narcotics case, the district court relies chiefly upon the quantity of drugs attributable to the defendant. The base offense level is determined by the quantity of drugs involved in the defendant's relevant conduct, which includes not only the drug quantity in the offense of conviction, but all of the additional drugs the sentencing judge finds the defendant distributed or manufactured. The court may not the amount of drugs for which a defendant has not been convicted, if it would increase the maximum penalty. Where, as here, a drug quantity is arrived at in a manner that is inherently imprecise, the district court must consider the margin of error before finally fixing the amount attributable to the defendant. If taking the margin of error into account and erring on the side of caution would reduce the defendant's base offense level to the next lowest level, the court must do so. The district court's failure to consider the margin of error when arriving at the quantity of drugs on which the sentence was based constitutes error and requires vacation of the sentence. The evidence supported the obstruction of justice adjustment. Vacated sentence and remanded.
USA
v. Lapage
Case No. 00-50015
U.S. Court of Appeals for the Ninth Circuit
CRIMINAL-PROSECUTIONS INTRODUCTION OF TESTIMONY KNOWN TO BE FALSE-DUE PROCESS-HARMLESS ERROR
Lapage met with Michael Manes, a loan broker to refinance his house to get money to pay off his debts. Lapage signed loan application papers prepared by Manes, which contained false income tax statements. Manes submitted the papers to the bank and received most of the proceeds of the loan. At the first trial Manes was unable to identify the accountant that he alleged prepared the false income tax returns. At retrial Manes testified under oath during that he did recognize her in the earlier trial, had identified her and had testified to her identity at the earlier trial. It was plain that the prosecutor knew he was lying, because the matter was important and the same prosecutor tried the case both times. The prosecutor did nothing to correct the false impression of the facts left with the jury. Defense counsel ineffectually attempted to impeach Manes. The prosecutor attempted to bolster Manes's credibility in his closing argument in chief by arguing that Manes was a credible witness. In rebuttal closing argument, the prosecutor conceded that Manes had lied.
HELD: The due process clause entitles defendants in criminal cases to fundamentally fair procedures. It is fundamentally unfair for a prosecutor to knowingly present perjury to the jury. A conviction obtained through the use of false evidence, known to be such by representatives of the State, deprives a defendant of his constitutional right to due process of law. The case was close. There is a reasonable likelihood that the false testimony affected the outcome. The error was not harmless. Reversed.
Caudle v. Bristow Optical Company
Case No. 98-15537
U.S. Court of Appeals for the Ninth Circuit
ORDER-EMPLOYMENT-GENDER DISCRIMINATION-PREGNANCY Amendment to opinion filed September 14, 2000, not effecting the judgment.
Bateman v. U.S. Postal Service
Case No. 99-15394
U.S. Court of Appeals for the Ninth Circuit
ORDER Amendment of opinion filed on July 26, 2000, not effecting the judgment.
*Change in law, interesting case, or just watch out!
For the complete California cases, visitors can click on here to go to
STATE DAILY OPINIONS
For the complete 9th Circuit cases, visitors can click on here to go to
FEDERAL RESOURCES
Wasserman's Archived Appellate Summaries
Back to Netlaw Libraries' Home Page