The Ninth Circuit Court of Appeals today released an opinion in NORTHWEST ENVIRONMENT v. BPA, No. 06-70430, an administrative appeal. The panel consisted of Michael Daly Hawkins, Barry G. Silverman, and Ronald M. Gould, Circuit Judges.

GOULD, Circuit Judge:
Salmon and steelhead are two of the great natural. . .

The Ninth Circuit Court of Appeals today released an opinion in VALERIANO v. GONZALES, No. 03-72277, an administrative appeal. The panel consisted of Andrew J. Kleinfeld and Raymond C. Fisher, Circuit Judges, and Milton I. Shadur, Senior District Judge.

KLEINFELD, Circuit Judge:
We decide that an alien who delays filing a motion to reopen under 8 C.F.R. § 1003.2(c)(1) while awaiting the government’s response to his counsel’s request to join the motion to reopen under 8 C.F.R. § 1003.2(c)(3)(iii) until the deadline is past is not entitled to equitable tolling. Facts Valeriano is a 34-year-old native and citizen of Mexico with three United States citizen children. He entered the United States on June 25, 1988, and has resided here continuously since that time. Nine years after Valeriano got here, in February 1997, the INS served an Order to Show Cause why he was not deportable. An Immigration Judge found him deportable as charged and granted him voluntary departure in 1999. Valeriano appealed, but his appeal was filed six days late, so the BIA deemed it untimely. That is where our case begins. Valeriano filed a motion to reconsider, accompanied by a declaration from a person who states that she is a paralegal at Valeriano’s lawyer’s office. She says that she sent Valeriano’s notice of appeal by FedEx December 13, and that it was delivered December 14, which would be timely. But as proof she attached documents that prove the opposite of what she said. She submitted a letter from FedEx saying that on December 14 it had indeed delivered a package she had shipped, but that the package had been sent December 11, not December 13. This package could not . . .

The Ninth Circuit Court of Appeals today released an opinion in KAHLE v. GONZALES, No. 04-17434, an appeal in a civil action against the United States. The panel consisted of Mary M. Schroeder, Chief Circuit Judge, Jerome Farris and Johnnie B. Rawlinson, Circuit Judges.

FARRIS, Senior Circuit Judge:
Plaintiffs appeal from the district court’s dismissal of their complaint. They allege that the change from an “opt-in” to an “opt-out” copyright system altered a traditional contour of copyright and therefore requires First Amendment review under Eldred v. Ashcroft, 537 U.S. 186, 221 (2003). They also allege that the current copyright term violates the Copyright Clause’s “limited Times” prescription. Arguments similar to Plaintiffs’ were presented to the Supreme Court in Eldred, which affirmed the constitutionality of the Copyright Term Extension Act against those attacks. The Supreme Court has already effectively addressed and denied Plaintiffs’ arguments. We AFFIRM. In March 2004, Plaintiffs Brewster Kahle, Internet Archive, Richard Prelinger, and Prelinger Associates, Inc. filed an amended complaint seeking declaratory judgment and injunctive relief. Brewster Kahle and Internet Archive have built an “Internet library” that offers free access to digitized audio, books, films, websites, and software. Richard Prelinger and Prelinger Associates make digital versions of “ephemeral” films available for free on the internet. Each Plaintiff provides, or intends to provide, access to works that allegedly have little or no commercial value but remain under copyright protection. The difficulty and expense of obtaining permission to place those works on the Internet is overwhelming; ownership of these “orphan” works is often difficult, and sometimes impossible, to ascertain. Prior to 1978, the number of orphaned works was limited by the renewal requirement. Renewal served as a filter that passed certain works — mostly those without commercial value — into the public domain. Along with formalities such as registration and notice (which have also been effectively . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. MERCADO, No. 05-50624, a criminal appeal. The panel consisted of Betty B. Fletcher, Ferdinand F. Fernandez, and Susan P. Graber, Circuit Judges.

FERNANDEZ, Circuit Judge:
Robert Mercado, Jr., and Daniel Bravo appeal their sentences for conspiracy to violate RICO, 18 U.S.C. § 1962(d), and for conspiracy to aid and abet narcotics trafficking. 21 U.S.C. § 846. They assert that in calculating their sentences under the United States Sentencing Guidelines, the district court erred when it considered criminal activity which had . . .

B. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent from the majority’s holding that district courts can rely on acquitted conduct when sentencing criminal defendants. Although the majority holds that United States v. Watts, 519 U.S. 148 (1997) (per curiam), presents a “complete answer to the issue before us,” maj. op. at 861, the Supreme Court has concluded otherwise, as do I. United States v. Booker, 543 U.S. 220 (2005). In Booker, the Court explained that Watts addressed only a “very narrow” Fifth Amendment issue unrelated to the Sixth Amendment question then before the Court. Id. at 240 & n.4. As the Court emphasized, Watts did not consider, let alone decide, whether the Sixth Amendment was violated by reliance on acquitted conduct at sentencing. Despite this clear limitation of Watts’s holding, the majority here applies Watts to the Sixth Amendment issue before us, ignoring Booker’s requirement that the jury’s verdict alone must authorize a defendant’s sentence. Id. at 235. This application defies logic. When a jury refuses to convict defendants of several counts, but the trial court nonetheless relies on that same acquitted conduct to increase the defendants’ sentences sevenfold, the jury has not authorized the resulting sentences in any meaningful sense. Reliance on acquitted conduct in sentencing diminishes the jury’s role and dramatically undermines the protections enshrined in the Sixth Amendment. Both Booker and the clear import of the Sixth Amendment prohibit such a result. . . .

The Ninth Circuit Court of Appeals today released an order and opinion in BENITEZ v. GARCIA, No. 04-56231, a habeas corpus appeal. The panel consisted of Jerome Farris, Dorothy W. Nelson, and Richard C. Tallman, Circuit Judges.

PER CURIAM:
Cristobal Rodriguez Benitez was arrested in Venezuela and extradited to the United States. Benitez was tried and convicted of murder and sentenced to an indeterminate sentence of fifteen years to life (in addition to four years for the use of a firearm). Benitez petitioned for a writ of habeas corpus, arguing that his sentence could not exceed thirty years because of a sentence limitation contained in the extradition decree from the Supreme Court of Venezuela and the Venezuelan Ministry of Foreign Affairs. The district court denied his petition; Benitez appealed. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c). Where the provisions of the extradition treaty so provide, the surrendering country may condition extradition of the fugitive on punishment limitations. The Supreme Court has clearly established that the extraditing country’s expectations must be respected if they are within that country’s rights under the extradition treaty. As was its right under the U.S.Venezuela extradition treaty, Venezuela made clear its expectation that upon extradition Benitez would not be sentenced to a potential life sentence. The state court’s decision not to enforce Venezuela’s expectation was objectively unreasonable. We therefore reverse the decision of the district court and grant the petition. I Benitez, a Mexican citizen, was convicted of murdering a man involved in an altercation with Benitez’s brother in San . . .

The panel opinion filed on May 23, 2006, 449 F.3d 971, is withdrawn and a substitute opinion is filed simultaneously . . .

The Ninth Circuit Court of Appeals today released an amended order in GALEN v. COUNTY OF LOS ANGELES, No. 04-55274, a civil rights appeal. The panel consisted of WARDLAW and PAEZ, Circuit Judges, and SINGLETON, District Judge.

The Ninth Circuit Court of Appeals today released an opinion in CITIZENS FOR CLEAN v. CITY OF SAN DIEGO, No. 04-56964, a civil rights appeal. The panel consisted of Cynthia Holcomb Hall, Michael Daly Hawkins, and Sandra S. Ikuta, Circuit Judges.

HALL, Senior Circuit Judge:
The City of San Diego bans contributions exceeding $250 to any committee supporting or opposing a candidate for City Council office. San Diego Municipal Code (SDMC) § 27.2935 (2005). This limit applies to recall efforts because the term “candidate” includes a “City officeholder who becomes the subject of a recall election.” Id. § 27.2903. . . .

The Ninth Circuit Court of Appeals today released an amended order in USA v. JAWARA, No. 05-30266, a criminal appeal. The panel consisted of Stephen Reinhardt, M. Margaret McKeown, and Richard R. Clifton, Circuit Judges.

McKEOWN, Circuit Judge:
Mohamed Jawara (a.k.a. Haji Jawara) appeals from his convictions for document fraud related to his personal asylum application and conspiracy to commit marriage fraud to avoid the immigration laws. Jawara challenges the district court’s denial of his motions to sever the two counts, to suppress physical evidence, and to conduct a pre-trial hearing addressing the reliability of expert testimony, as well as various evidentiary rulings by the district court. We focus primarily on Jawara’s claim of misjoinder and clarify the framework for assessing whether the joined offenses are of the “same or similar character” under Federal Rule of Criminal Procedure 8(a). Looking to the indictment, we conclude that the two counts . . .

The Opinion filed on September 15, 2006, slip op. 11351, and appearing at 462 F.3d 1173, is amended as follows:
1. At slip op. 11381 (462 F.3d at 1190), replace lines 10 through 38 (beginning with the sentence, “Agent Smalley’s testimony” and ending with “tribal designation”) with the following:
Although Jawara raised a general Confrontation Clause issue in his briefs to this court, it was not until the Petition for Rehearing that Jawara, along with amicus curiae, the National Association of Criminal Defense Lawyers, first addressed whether the expert’s reliance on the country report is testimonial under Crawford v. Washington, 541 U.S. 36 (2004). This is a significant question given the traditional reliance on State Department country reports in immigration proceedings. We do not need to reach this issue, however, because the comparative country conditions were not central to the charges here and the admission of this testimony was harmless. Rahm, 993 F.2d at 1415. The same is true with respect to . . .

REINHARDT, Circuit Judge, dissenting from the judgment: I join much of the majority opinion, but disagree that the misjoinder of the indictment is harmless error. I would hold that erroneously joining the two counts — falsifying one’s own immigration documents, and conspiring over a substantial period of time to aid other persons to enter into fraudulent marriages in violation of the immigration laws — had a “substantial and injurious effect” upon the jury’s determination. United States v. Lane, 474 U.S. 438, 449 (1986). Although the majority characterizes the evidence of guilt under both counts as “overwhelming,” Maj. at 828, the evidence with respect to the falsification of the defendant’s own immigration documents is clearly not. Jawara never denied that there were material errors in his asylum application. To the contrary, he acknowledged the errors in the application, but testified that he was not aware of their existence because another individual prepared the document for him. He also testified that he was unaware of any problems regarding the supporting documents and that he had received the identifica12See United States v. Klinzing, 315 F.3d 803, 810 (7th Cir. 2003) (explaining that “the foreign business records exception, § 3505, derived specifically from . . . [Fed. R. Evid.] 803(6).”). . . .

The Ninth Circuit Court of Appeals today released an opinion in TRUSTEES SOUTHERN CALIFORNIA v. MIDDLETON, No. 04-56982, a federal appeal. The panel consisted of Stephen Reinhardt and Jay S. Bybee, Circuit Judges, and Larry A. Burns, District Judge.

BYBEE, Circuit Judge:
Plaintiffs-Appellants, Trustees of the Southern California Bakery Drivers Security Fund and Dirk Geersen (”Bakery Drivers”), appeal the district court’s summary judgment in favor of Defendants-Appellees, Rick Middleton and South Bay Teamsters and Employers Health and Welfare and Related Benefits Trust Fund (”South Bay Teamsters”) on claims of breach of fiduciary duty under the Employee Retirement Income Security Act (”ERISA”), 29 U.S.C. § 1001 et seq., and breach of collective bargaining agreements under the Labor Management Relations Act (”LMRA”), 29 U.S.C. § 301 et seq., and the district court’s award of attorneys’ fees to South Bay Teamsters. I This case involves a dispute between the trustees of two employee benefit plans over an agreement in which one plan was to provide certain benefits to plan participants of the other plan. On August 1, 1987, Bakery Drivers contracted with South Bay Teamsters for certain death, accidental death, and dismemberment benefits. In a Trust-to-Trust agreement, Bakery Drivers contracted to pay $5.50 per month for each active fund participant to South Bay Teamsters in exchange for death and related benefits amounting to $10,000 in the . . .

The Ninth Circuit Court of Appeals today released an opinion in JOHNSON v. CITY OF SEATTLE, No. 05-35319, a civil rights appeal. The panel consisted of Arthur L. Alarcón, Pamela Ann Rymer, and Marsha S. Berzon, Circuit Judges.

ALARCÓN, Circuit Judge:
Michael A. Johnson and ten other persons (collectively the “Pioneer Square Plaintiffs”) appeal from the district court’s order granting summary judgment in favor of the City of Seattle, Paul Schell (former Mayor of Seattle), and R. Gil Kerlikowske (Chief of the Seattle Police Department) (collectively “Defendants”). The Pioneer Square Plaintiffs contend that the district court erred in dismissing their 42 U.S.C. § 1983 claim because the Defendants’ change in police enforcement policy violated their Fourteenth Amendment right to due process by affirmatively placing them in a position of enhanced danger. We affirm the district court’s decision to dismiss the § 1983 claim because we conclude that the Pioneer Square Plaintiffs have failed to demonstrate that the Defendants violated their constitutional rights. . . .