The Ninth Circuit Court of Appeals today released an amended order in USA v. HEREDIA, No. 03-10585, a criminal appeal. The panel consisted of Mary M. Schroeder, Chief Judge, Harry Pregerson, Alex Kozinski, Pamela Ann Rymer, Andrew J. Kleinfeld, Michael Daly Hawkins, Sidney R. Thomas, Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, Richard A. Paez, Richard C. Tallman, Richard R. Clifton, Consuelo M. Callahan and Carlos T. Bea, Circuit Judges.

KOZINSKI, Circuit Judge:
We revisit United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc), and the body of caselaw applying it. I Defendant Carmen Heredia was stopped at an inland Border Patrol checkpoint while driving from Nogales to Tucson, Arizona. Heredia was at the wheel and her two children, mother and one of her aunts were passengers. The border agent at the scene noticed what he described as a “very strong perfume odor” emanating from the car. A second agent searched the trunk and found 349.2 pounds of marijuana surrounded by dryer sheets, apparently used to mask the odor. Heredia was arrested and charged with possessing a controlled substance with intent to distribute under 21 U.S.C. § 841(a)(1). At trial, Heredia testified that on the day of her arrest she had accompanied her mother on a bus trip from Tucson to Nogales, where her mother had a dentist’s appointment. After the appointment, she borrowed her Aunt Belia’s car to transport her mother back to Tucson. Heredia told DEA Agent Travis Birney at the time of her arrest that, while still in Nogales, she had noticed a “detergent” smell in the car as she prepared for the trip and asked Belia to explain. Belia told her. . .

Footnote 4 of the opinion in this case, filed April 2, 2007, is amended to read as follows: As our cases have recognized, deliberate ignorance, otherwise known as willful blindness, is categorically different from negligence or recklessness. See, e.g., United States v. Fulbright, 105 F.3d 443, 447 (9th Cir. 1997); United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir. 1991). A willfully blind defendant is one who took deliberate actions to avoid confirming suspicions of criminality. A reckless defendant is one who merely knew of a substan. . .

KLEINFELD, Circuit Judge, concurring in the result:
Because the evidence in this case justified a wilful blindness instruction, and the instruction’s form (to which no objection was made below) was not plainly erroneous, I would affirm Heredia’s conviction. But the majority errs in 817 F.2d 580, 584 (9th Cir. 1987) (”The cases in which the facts point to deliberate ignorance are relatively rare.”); United States v. Garzon, 688 F.2d 607, 609 (9th Cir. 1982) (”The instruction should be given rarely because of the risk that the jury will convict on a standard of negligence.”); Murrieta-Bejarano, 552 F.2d at 1325 (”The Jewell instruction should not be given in every case where a defendant claims a lack of knowledge, but only in those comparatively rare cases where, in addition, there are facts that point in the direction of deliberate ignorance.”). This kind of speculation is misguided and should not be read to imply additional limitations on a district court’s discretion to issue a Jewell instruction beyond what we’ve indicated above. Whether the instruction is given depends solely on the state of the evidence in the case, analyzed as we have explained above. Cases suggesting the contrary are, to that extent, overruled. . . .

GRABER, Circuit Judge, with whom PREGERSON, THOMAS, and PAEZ, Circuit Judges, join, dissenting:
Assuming the Jewell instruction to be proper, I agree with the majority that the standard by which to review a district court’s decision to give one is “abuse of discretion” in the light of the evidence presented at trial. But as a matter of statutory construction, I believe that the Jewell instruction is not proper because it misconstrues, and misleads the jury about, the mens rea required by 21 U.S.C. § 841(a)(1). Because the legal error of giving a Jewell instruction in this case was not harmless beyond a reasonable doubt, I respectfully dissent. Under 21 U.S.C. § 841(a)(1), it is a crime to “knowingly or intentionally . . . manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” (Emphasis added.) The plain text of the statute does not make it a crime to have a high probability of awareness of possession–knowledge or intention is required. The majority recognizes that willful blindness is a mens rea separate and distinct from knowledge. See Majority op. at . . .

The Ninth Circuit Court of Appeals today released an opinion in EARTH ISLAND INSTITUTE v. GUTIERREZ, No. 04-17018, 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.

SCHROEDER, Chief Circuit Judge:
This case concerns the practice of catching yellowfin tuna by encircling dolphins with purse-seine nets. The dispute over whether tuna sellers may label tuna as dolphin-safe if caught with such nets has a long history that for us begins with Congress’s enactment of the International Dolphin Conservation Program Act (”IDCPA”) in 1997. 16 U.S.C. § 1385 (1997). The statute required the Secretary of Commerce through the National Oceanic and Atmospheric Administration (”NOAA”), to conduct certain scientific studies and determine whether or not the tuna fishery is affecting the dolphin population. According to the bill’s proponents, Congress would weaken the then-strict tuna labeling requirements, and permit broader use of “dolphin-safe” labeling, only if the Secretary found that the fishery was not having a significant adverse impact on already depleted dolphin stocks. In 1999, the Secretary made an Initial Finding, despite inconclusive evidence, that the fishery was not having an adverse impact on the dolphin population. Environmental groups then brought suit in federal district court to enjoin the Secretary’s implementation of weaker labeling standards. The district court held the agency’s finding of no adverse impact was arbitrary and capricious in light of the inconclusive evidence. Brower v. Daley, 93 F. Supp.2d 1071, 1087 (N.D. Cal. 2000) [”Brower I“]. On appeal to this court, we affirmed the district court’s rejection of the Initial Finding, because the agency was required, but had failed, to reach a definitive answer to the . . .

The Ninth Circuit Court of Appeals today released an opinion in NUNES v. RAMIREZ-PALMER, No. 06-16100, a habeas corpus appeal. The panel consisted of Ronald M. Gould and Milan D. Smith, Jr., Circuit Judges, and Alfred V. Covello, District Judge.

COVELLO, District Judge:
This is an appeal from the district court’s order denying a petition for a writ of habeas corpus. The appeal is brought pursuant to 28 U.S.C. § 2253. The petitioner-appellant, Roney Nunes, contends that the district court erred when it rejected Nunes’s assertions that he was charged and sentenced under California’s recidivist statute in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. . . .

The Ninth Circuit Court of Appeals today released an opinion in CENTER FOR BIOLOGICAL DIVERSITY v. LOHN, No. 05-35638, an appeal in a civil action against the United States. The panel consisted of Alfred T. Goodwin, Diarmuid F. O’Scannlain, and Raymond C. Fisher, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We are asked to decide whether the federal government’s policy for listing killer whales under the Endangered Species Act is invalid. I The Center for Biological Diversity (”Center”), along with eleven co-petitioners not parties to this appeal, petitioned the National Marine Fisheries Service (”Service”) to list the Southern Resident killer whale (”Southern Resident”) as an endangered species under the Endangered Species Act (”ESA”), 16 U.S.C. §§ 1531-1544. Applying its Distinct Population Segment Policy (”DPS Policy”) for listing endangered species under the ESA, the Service issued a proposed ruling that concluded listing the Southern Resident was “not warranted” because the Southern Resident was not “significant” to its taxon. See 67 Fed. Reg. 44,133 (July 1, 2002). The Center challenged the Service’s proposed determination in district court. On cross-motions for summary judgment, the district court granted in part and denied in part. Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1243 (W.D. Wash. 2003). The district court concluded that the DPS Policy was not contrary to congressional intent regarding the ESA, and that it was a reasonable interpretation of the ambiguous term “distinct population segment.” Id. at 1235-36.. . .

The Ninth Circuit Court of Appeals today released an opinion in BROWN v. FORESIGHT INVESTMENT, No. 05-15605, a bankruptcy appeal. The panel consisted of Stephen Reinhardt, Pamela Ann Rymer and Barry G. Silverman, Circuit Judges.

SILVERMAN, Circuit Judge:
A bankruptcy judge ruled in open court on cross-motions for summary judgment regarding debtor Thurman Brown’s claim that Wilshire Credit Corporation violated the Bankruptcy Code’s automatic stay. Later that day, the judge signed a minute entry stating that Wilshire’s motion for summary judgment was granted and that Brown’s was denied, and taking under advisement a related motion for sanctions. Brown filed his appeal nearly three months later when the court entered judgment awarding sanctions against his counsel. We hold today that a minute entry that merely grants summary judgment — without more — does not become a final, appealable judgment just because it has been signed by the judge. The minute entry in this case was the memorialization of a ruling, not a judgment, and thus did not trigger the 10-day window in which Brown was required to appeal. Accordingly, the district court erred in dismissing Brown’s appeal as untimely. BACKGROUND Because this opinion is limited to the timeliness of Brown’s appeal to the district court, we will just briefly summarize the facts. Brown obtained a loan from LaSalle National Bank secured by a deed of trust. Wilshire Credit Corporation serviced the loan for the bank. After Brown defaulted, Fidelity National Title Insurance Company, the foreclosure trustee on the deed of trust, scheduled a non-judicial foreclosure sale. The sale took place a few hours after Brown had filed for bankruptcy protection. Complications ensued. Ultimately, Brown brought an adversary proceeding against Wilshire alleging that Wilshire violated the automatic stay. . . .

RYMER, Circuit Judge, concurring in the judgment:
I agree that Brown’s appeal to the district court was timely, though for somewhat different reasons. Brown argues that the April 22 minute order was not final because it was intertwined with a sanctions motion on which the bankruptcy court had not yet ruled. If so, then the bankruptcy court’s June 30 order regarding sanctions was the final order, its July 6 judgment was the “separate document” required by Fed. R. Bankr. P. 9021, and the July 15 appeal was timely under Fed. R. Bankr. P. 8002(a). Alternatively, if the April 22 order is independent of the sanctions motion, then the question is whether the minute entry was a “document” within the meaning of Bankruptcy Rule 9021, which incorporates Fed. R. Civ. P. 58. We have held that a minute order denying post-judgment relief constitutes a “document” for purposes of Civil Rule 58 only “if it (1) states that it is an order; (2) is mailed to counsel; (3) is signed by the clerk who prepared it; and (4) is entered on the docket sheet.” Ingram v. ACandS, Inc., 977 F.2d 1332, 133839 (9th Cir. 1992) (citing Beaudry Motor Co. v. Abko Props., Inc., 780 F.2d 751, 754-55 (9th Cir. 1986)); Carter v. Beverly Hills Sav. & Loan Ass’n, 884 F.2d 1186, 1188-90 (9th Cir. 1989). While it is possible that more should be required of a document purporting to set forth summary judgment than of a post-judgment order, certainly we should not require less. This being so, the minute entry here could not trigger the clock for filing an appeal because, at a minimum, it was not mailed to counsel. As the appeal would be timely even if the minute order were final, I wouldn’t venture to guess what more magic. . .

The Ninth Circuit Court of Appeals today released an opinion in SHERMAN v. HARBIN, No. 04-56799, a bankruptcy appeal. The panel consisted of Richard D. Cudahy, Susan P. Graber, and Sandra S. Ikuta, Circuit Judges.

IKUTA, Circuit Judge:
In this case we resolve two questions of first impression in our bankruptcy jurisprudence. First, we hold that a bankruptcy court considering the feasibility of a plan of reorganization under 11 U.S.C. § 1129(a)(11) must evaluate the possible effect of a debtor’s ongoing civil case with a potential creditor, whether that litigation is pending at the trial level or on appeal. Second, we conclude that under limited circumstances, a bankruptcy court may exercise its equitable powers to grant retroactive approval of a post-petition financing transaction pursuant to 11 U.S.C. § 364(c)(2). FACTUAL AND PROCEDURAL BACKGROUND In 1996, Jeffrey Sherman sold his law practice to Harbin APC (the professional corporation of John Harbin) through an asset purchase and consulting agreement. The terms of the agreement are not part of the record on this appeal. However, it is undisputed that as part of the deal, Harbin APC agreed to pay Sherman $5,000 a month for ten years in exchange for his consulting services. In 2000, Harbin APC stopped making the consulting payments to Sherman. A. Sherman sued Harbin, Harbin APC, and others in California state court for breach of contract (among other things). . . .

CUDAHY, Circuit Judge, concurring in part, dissenting in part:
I concur in Part B of the majority’s opinion which affirms the district court’s determination that the bankruptcy court did not abuse its discretion in granting nunc pro tunc approval. I respectfully dissent, however, as to Part A of the majority opinion. I believe this court should reverse the district court’s decision to vacate the bankruptcy court’s order confirming Harbin’s plan and that the discretion of the bankruptcy court should be sustained in its finding of feasibility. Although the issue of feasibility is certainly close under the circumstances, I do not agree that the bankruptcy court’s judgment of the matter here was clearly erroneous. There is an important element of discretion in reaching a practical judgment here, and the majority seems to be announcing a rule that the bankruptcy court must always wait, no matter how long, for the resolution of an appeal to be decided before confirming a plan. Depending on how long the matter has already been left open for a decision on appeal and on the bankruptcy court’s estimate of the chances of reversal on appeal (and other factors), the totality of the circumstances may favor an earlier confirmation of the plan or they may not. To postpone confirmation until the result on appeal is finally known is to lose all account of finality, which is generally a consideration of importance in bankruptcy. Here the fact that the judgment was actually reversed on appeal makes this an. . .

The Ninth Circuit Court of Appeals today released an opinion in GAMBINI v. TOTAL RENAL CARE, INC., No. 05-35209, a federal appeal. The panel consisted of Alfred T. Goodwin and Alex Kozinski, Circuit Judges, and Milton I. Shadur, Senior District Judge.

SHADUR, Senior District Judge:
Stephanie Gambini (”Gambini”) appeals the district court’s denial of her renewed motion, alternatively seeking judgment . . .

After review of (a) the petition for rehearing filed by appellee Total Renal Care Inc. d/b/a DaVita, Inc. (”DaVita”), coupled with its motion to withdraw a portion of our opinion and to certify a question to the Washington Supreme Court, and (b) the motion by Washington Retail Association for leave to file a brief amicus curiae in support of that petition and motion, we:
1. deny DaVita’s petition for rehearing and its accompanying motion; 2. grant leave to file the amicus curiae brief; and 3. amend our opinion filed on March 8, 2007, slip op. 2685, by inserting the following two paragraphs at page 2697, after line 6 and immediately above the caption “Failure To Offer Instruction on `Direct Threat’ Defense”:
In its petition for rehearing, which has been joined by an amicus brief, DaVita argues that “[n]either the Riehl nor Humphrey Courts state or imply that arguably disabled employees are entitled to absolute protection regardless of their transgressions against the employer, let alone more protection than would be afforded a non-disabled employee for the same misconduct.” But the law often does provide more protection for individuals with disabilities. Unlike other types of discrimination where identical treatment is the gold standard, identical treatment is often not equal treatment with respect to disability discrimination–see, e.g., Holland v. Boeing Co., 583 P.2d 621, 623 (Wash. 1978) (en banc) (”Identical treatment may be a source of discrimination in the case of the handicapped, whereas different treatment may eliminate discrimination against the . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. OLMOS-ESPARZA, No. 06-50276, a criminal appeal. The panel consisted of Thomas G. Nelson, Eugene E. Siler, Jr., and Michael Daly Hawkins, Circuit Judges.

HAWKINS, Circuit Judge:
Leobardo Olmos-Esparza (”Olmos-Esparza”), convicted of illegal reentry following deportation, appeals his sentence on remand following a full post-Booker resentencing. In an issue of first impression in this circuit, he contends that the district court erred by considering his convictions from 1972 and 1976 in calculating sentencing enhancements under § 2L1.2 of the 2003 Sentencing Guidelines. We join the Tenth and Eleventh Circuits in holding that this section contains no time limitation on the age of convictions for purposes of calculating sentencing enhancements. . . .

The Ninth Circuit Court of Appeals today released an opinion in VENTRESS v. JAPAN AIRLINES, No. 04-17353, a diversity appeal. The panel consisted of Alfred T. Goodwin, Robert R. Beezer, and Richard C. Tallman, Circuit Judges.

GOODWIN, Circuit Judge:
Martin Ventress, a flight engineer, and Jack Crawford, a commercial pilot (collectively, “plaintiffs”), sued Japan Airlines and other entities, making a number of claims. They appeal a judgment on the pleadings for Japan Airlines and its subsidiary Jalways Co., Ltd. (collectively, “JAL”). We have jurisdiction under 28 U.S.C. § 1291. We reverse. Ventress separately challenges the district court’s venue transfer order and an order compelling arbitration of his claims against Hawaii Aviation Contract Services, Inc. (”HACS”). We affirm the venue transfer and dismiss Ventress’ appeal of the arbitration order. BACKGROUND JAL is a Japanese commercial air carrier based in Tokyo. HACS, a Hawaii corporation with its principal place of busi. . .

The Ninth Circuit Court of Appeals today released an en banc opinion in BATES v. UPS, No. 04-17295, a federal appeal. The panel consisted of SCHROEDER, Chief Judge.