The Ninth Circuit Court of Appeals today released an amended order in USA v. CASTILLO-BASA, No. 05-50768, a criminal appeal. The panel consisted of Stephen Reinhardt, Stephen S. Trott, and Kim McLane Wardlaw, Circuit Judges.

REINHARDT, Circuit Judge:
I This case presents an important question that cuts to the heart of the Double Jeopardy Clause. It involves the right of a defendant to be free from repeated prosecutions in which the government retries him until it obtains a guilty verdict. The government was unable to convict Castillo-Basa the first time it tried him, for illegal reentry, in large part because its counsel failed to locate and present a crucial tape recording that was within its possession. To its surprise, the jury acquitted . . .

The opinion filed February 26, 2007, is hereby amended. The following sentence at 478 F.3d 1033 is deleted:
To prove previous deportation — the third element and the only one in dispute at Castillo-Basa’s . . .

The Ninth Circuit Court of Appeals today released an order in HARPER v. POWAY UNIFIED SCHOOL, No. 04-57037, a civil rights appeal. The panel consisted of Stephen Reinhardt, Alex Kozinski, and Sidney R. Thomas, Circuit Judges.

Pursuant to the instructions of the Supreme Court, plaintiff Tyler Chase Harper’s appeal is dismissed as moot. . . .

The Ninth Circuit Court of Appeals today released an opinion in GONZALEZ v. YES ON PROP 200, No. 06-16521, a federal appeal. The panel consisted of Mary M. Schroeder, Chief Circuit Judge, John T. Noonan, Circuit Judge, and George P. Schiavelli, District Judge.

SCHROEDER, Chief Judge: This litigation involves Proposition 200, enacted pursuant to Arizona voter initiative in 2004. The Proposition amended Arizona law to require persons wishing to register to vote for the first time in Arizona to present proof of citizenship, and to require all Arizona voters to present identification when they vote in person at the polls. Plaintiffs are Arizona residents, Indian tribes and various community organizations. They filed this action in district court, challenging the validity of the Proposition on six asserted grounds: (1) that it is an unconstitutional poll tax, in violation of the Twenty-fourth Amendment to the United States Constitution; (2) that it violates the Equal Protection Clause of the Fourteenth Amendment because it imposes a disproportionate burden on naturalized citizens; (3) that it impedes the Fourteenth Amendment’s guarantee of the fundamental right to vote; (4) that it violates Section 2 of the Voting Rights Act, 42 U.S.C. § 1973(a); (5) that it violates the Civil Rights Act, 42 U.S.C. §§ 1971(a)(2)(A) and (B); and (6) that it violates the National Voter Registration Act, 42 U.S.C. § 1973gg et seq. (”NVRA”). Plaintiffs filed their complaint in May 2006, seeking an injunction, pending trial, against the operation of both the registration and the voting provisions of the Proposition. On September 11, 2006, the district court denied a preliminary injunction. Shortly before the November 2006 general elec. . .

John T. Noonan, Circuit Judge, and George P. Schiavelli,* District Judge. Opinion by Chief Judge Schroeder *The Honorable George P. Schiavelli, United States District Judge for the Central District of California, sitting by designation. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. MURPHY, No. 05-50608, a criminal appeal. The panel consisted of John R. Gibson, Pamela Ann Rymer, and Richard R. Clifton, Circuit Judges.

CLIFTON, Circuit Judge:
This case presents the question of whether a stipulation to proceed with a jury of fewer than twelve members, permitted under Federal Rule of Criminal Procedure 23(b)(2)(A), constitutes a violation of the requirement that a verdict be unanimous, under Federal Rule of Criminal Procedure 31, in circumstances where there is some indication of a holdout juror. We conclude that under the circumstances here, where the defendant knowingly and intelligently stipulated to dismissing a juror and received a unanimous verdict by the remaining eleven jurors, the district court did not abuse its discretion in denying a new trial. I. Background Appellant Michael Joseph Murphy was charged with violations of 18 U.S.C. § 287 and 18 U.S.C. § 1001 for making false claims and statements in connection with a government contract. After three days of trial, the jury began its deliberations on Friday, February 18, 2005. On Tuesday, February 22, the court received a note signed by the jury foreperson that stated: “We have a dissenting point of view with one juror that will have no possible position change and requests no evidence or willing to participate.” The parties agreed to the court’s proposed response, which stated “The jury’s deliberations must be guided by the Court’s instructions. For that reason, I’m submitting a copy to you for your further consideration.” Later that same day the court received a second jury note requesting the testimony of two witnesses. The court reporter began to read back the testimony of those witnesses to the jury. The court adjourned that afternoon before the testimony had been completely reread. . . .

GIBSON, Circuit Judge, dissenting:
I respectfully dissent and conclude that the proper course is to reverse the conviction and remand for a new trial. When the three notes the jury submitted to the district court during its deliberations are read together, I am convinced that they demonstrate a reasonable possibility that the holdout juror entertained doubts about the merits of the government’s case. Her dismissal thus violated Murphy’s non-waivable Sixth Amendment right to a unanimous verdict. While I recognize that our review is for abuse of discretion, we also have held that “[t]he district court’s discretion in this area is not unbounded.” United States v. Symington 195 F.3d 1080, 1085 (9th Cir. 1999). Indeed, “a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the evidence.” Id. (quoting United States v. Brown, 823 F.2d 591, . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. LEONARD, No. 06-30127, a criminal appeal. The panel consisted of Jerome Farris, Richard R. Clifton, and Carlos T. Bea, Circuit Judges.

CLIFTON, Circuit Judge:
This case primarily presents the question of whether, following violation by a defendant of conditions of supervised release, a district court may impose a sentence above the advi. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. THRASHER, No. 05-35929, a habeas corpus appeal. The panel consisted of J. Clifford Wallace, Ronald M. Gould, and Marsha S. Berzon, Circuit Judges.

WALLACE, Senior Circuit Judge:
Thrasher appeals from the district court’s denial of his 28 U.S.C. § 2255 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. I In April 1997, Tia Carlson was driving a Ford automobile in Gresham, Oregon. Thrasher was in the passenger seat. Officer Durbin of the Gresham Police Department stopped the Ford after observing several traffic violations. When Carlson admitted that she had recently used methamphetamine, Officer Durbin arrested her for driving under the influence of an intoxicant and placed her in his police car. Officer Durbin returned to the Ford, where he informed Thrasher that Carlson was under arrest and that he would impound the vehicle. Thrasher showed Officer Durbin an Oregon driver’s license, which falsely indicated that his name was Trevor Shaw. Officer Durbin told Thrasher that he was free to go, and Thrasher departed on foot. When Officer Durbin searched the Ford, he discovered a briefcase containing a loaded .380 caliber semi-automatic pistol. Carlson first denied knowing anything about the briefcase and its contents, but later at the police station her story changed. According to Officer Durbin, she stated “that she knew that the gun was in the briefcase and knew who the briefcase belonged to.” Thrasher was subsequently apprehended and indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The case went to trial. During opening argument, Storkel, Thrasher’s counsel, advised the jury that it would hear testimony from Thrasher’s . . .

BERZON, Circuit Judge, concurring:
I agree with the panel that the law of the case exceptions do not apply to the rule of the mandate. See United States v. Bad Marriage, 439 F.3d 534, 541-42 (9th Cir. 2006) (Berzon, J., dissenting). I also agree, under compulsion of our precedent, that the rule of mandate is in some sense jurisdictional. See United States v. Kellington, 217 F.3d 1084, 1093 (9th Cir. 2000) (stating that, in interpreting the mandate, “the ultimate task is to distinguish matters that have been decided on appeal, and are therefore beyond the jurisdiction of the lower court, from matters that have not” (emphasis added)); United States v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994) (per curium) (describing the mandate as limiting the district court’s “authority”). Although this case does not raise the issue, there are in my view very limited circumstances, as suggested in Bad Marriage, 439 F.3d at 541-42 (Berzon, J., dissenting), in which the district court may not be required to follow the directions we have given in our mandate. This conclusion would not necessarily be inconsistent with the use of the term “jurisdiction.” See Kontrick v. Ryan, 540 U.S. 443, 454-55 (2004) (” `Jurisdiction’ . . . is a word of many, too many, meanings.”); see also Eberhart v. United States, 126 S. Ct. 403, 406 (per curiam); United States v. Sadler, No. 06-10234, ___ F.3d ___, 2007 WL 610976, at *2 (9th Cir. Mar. 1, 2007). . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. KING, No. 05-10629, a criminal appeal. The panel consisted of Robert R. Beezer, Diarmuid F. O’Scannlain, and Stephen S. Trott, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
In this appeal, we must decide whether a criminal defendant’s right to a speedy trial under either the Speedy Trial Act or the Sixth Amendment was violated. I A This case arises out of the investigation of a bank fraud and identity-theft conspiracy in Sacramento, California. From June 2002 until May 2003, David R. King conspired with numerous other individuals to obtain stolen financial information from bank insiders, including employees of the Golden One Credit Union. King used such information to create fraudulent checks drawn on actual accounts for distribution to his co-conspirators, who were to cash the fake checks and return most of the money to King. During the course of investigating the conspiracy, officers employed the services of a confidential witness to make tape recordings of conversations with King, during which he provided her with fraudulent checks. A search warrant was executed upon King’s residence in Sacramento, which he shared with a roommate, Ken Shandy. As a result of such search, additional evidence, including fraudulent checks and checkmaking materials, was recovered by law enforcement. . . .

The Ninth Circuit Court of Appeals today released an opinion in PACIFIC FISHERIES v. USA, No. 04-35897, an appeal in a civil action against the United States. The panel consisted of Betty B. Fletcher and M. Margaret McKeown, Circuit Judges, and William W Schwarzer, District Judge.

McKEOWN, Circuit Judge:
The Internal Revenue Code allows taxpayers to recover costs and attorneys’ fees if they prevail in either civil or administrative proceedings, so long as the position of the United States was not substantially justified. 26 U.S.C. § 7430. Appellants Pacific Fisheries and Konstantin Vladimirovich Voloshenko (collectively the “taxpayers”) seek attorneys’ fees associated with pursuing two federal court petitions to quash third-party summonses. The taxpayers and the United States agree that the summonses were not enforce. . .

The Ninth Circuit Court of Appeals today released an opinion in PAPAKOSMAS v. PAPAKOSMAS, No. 05-55211, a federal appeal. The panel consisted of Diarmuid F. O’Scannlain, Edward Leavy, and Consuelo M. Callahan, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We must decide whether the children of Dimitris and Yvette Papakosmas were habitual residents of Greece within . . .

The Ninth Circuit Court of Appeals today released an opinion in SANFORD v. MEMBERWORKS, INC., No. 05-55175, a federal appeal. The panel consisted of Cynthia Holcomb Hall, Diarmuid F. O’Scannlain, and Consuelo M. Callahan, Circuit Judges.

HALL, Senior Circuit Judge:
Patricia Sanford appeals the district court’s order confirming an arbitration award in her action against MemberWorks, Inc., West Corporation, and West Telemarketing Corporation for alleged violations of 39 U.S.C. § 3009 and related state law claims. Preston and Rita Smith appeal the district court’s order denying their motion to intervene in the same action. The district court had jurisdiction under 28 U.S.C. § 1331. This court has jurisdiction under 28 U.S.C. § 1291. We affirm in part, vacate in part, and remand for further proceedings. I. Background In response to a television advertisement, Sanford purchased a set of fitness tapes by phone from NCP Marketing, through a call center operated by defendants West Corporation and West Telemarketing Corporation (collectively “West”). At the time, defendant MemberWorks, Inc. had an agreement with NCP under which NCP’s sales agent, West, would read customers a sales script for a free trial membership in the MemberWorks Essentials program. The script was identical or substantially similar to the following:. . .