The Ninth Circuit Court of Appeals today released an amended order in BRAZZEL v. STATE OF WASHINGTON, No. 05-36145, a habeas corpus appeal. The panel consisted of Betty B. Fletcher and M. Margaret McKeown, Circuit Judges, and William W Schwarzer, District Judge.

McKEOWN, Circuit Judge:
In this 28 U.S.C. § 2254 habeas appeal, Ernest Lee Brazzel challenges, as a violation of the Double Jeopardy Clause, his retrial on an attempted murder charge, after his first jury remained silent on that charge, and convicted him of a lesser alternative offense. Two different juries have now convicted Brazzel of the lesser offense, first degree assault. Both juries failed to reach the alternate and more serious charge of attempted murder. The framework for our analysis of this double jeopardy challenge is found in two Supreme Court cases–Green v. United States, 355 U.S. 184 (1957), and Price v. Georgia, 398 U.S. 323 (1970). In Green, the Supreme Court explained the doctrine of implied acquittal: when a jury convicts on a lesser alternate charge and fails to reach a verdict on the greater charge-without announcing any splits or divisions and having had a full and fair opportunity to do so–the jury’s silence on the second charge is an implied acquittal. 355 U.S. at 191. A verdict of implied acquittal is final and bars a subsequent prosecution for the same offense. See id. Under Price, putting the defendant in jeopardy a second time is not necessarily harmless error or moot, even if the defendant is only convicted of the lesser crime, because “[t]he Double Jeopardy Clause . . . is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict.” 398 U.S. at 331. Although the Washington Court of Appeals assumed that the lack of a verdict on the attempted murder charge follow. . .

Judge McKeown votes to deny the petition for rehearing en banc and Judge B. Fletcher and Judge Schwarzer so recommend. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc is denied. The Opinion filed on April 12, 2007 is amended as follows: On slip Opinion page 4235, line 15, insert the following text: <”a reliable inference of prejudice.” Mathews, 475 U.S. at 246.> to replace <inferences of prejudice.> On slip Opinion page 4235, line 26, insert the following text after the sentence ending in the word <charge.> and before the sentence beginning with the word <Therefore>: <Absent the murder charge, the landscape of the trial would have been significantly different.> On slip Opinion page 4235, line 26, insert the following text after the word <Therefore,> and before <Brazzel>: <there . . .

The Ninth Circuit Court of Appeals today released an opinion in CALIBER ONE v. CAREY, No. 04-35181, a diversity appeal. The panel consisted of J. Clifford Wallace, Kim McLane Wardlaw and Raymond C. Fisher, Circuit Judges.

FISHER, Circuit Judge:
This case arises from a commercial property insurance policy Plaintiff-Appellee Caliber One Indemnity Company (”Caliber One”) issued to the Defendant Wade Cook Financial Corporation (”Cook”). Cook — through its trustee Diana K. Carey — appeals the district court’s summary judgment under Washington law that the insurance contract between Cook and Caliber One limited earthquake coverage to $500,000, subject to a deductible calculated as a percentage of the total insured value of the property affected by an earthquake rather than of the claimed earthquake loss. Cook also appeals the district court’s refusal to consider affidavits submitted in connection with its motion for reconsideration. We affirm in part and reverse in part. BACKGROUND In 1998, Cook purchased a comprehensive commercial property insurance policy from Caliber One that, among its various terms and conditions, provided $5 million in earthquake coverage for various buildings Cook owned. In 1999, Cook — through its insurance broker, Crump Insurance Services, Inc. (”Crump”) — told Caliber One that Cook wanted to renew the policy “under exactly the same terms” as the initial 1998 policy. Contrary to Cook’s asserted intent and apparently unbeknownst to it, the 1999-2000 policy Caliber One issued and Cook accepted contained only a $500,000 sublimit for earthquake coverage. Caliber One acknowledges that the reduction in earthquake coverage from $5 million to $500,000 . . .

WARDLAW, Circuit Judge, concurring in part and dissenting in part:
I agree that the mutual mistake doctrine is applicable, the contract should be reformed, and that the district court properly excluded Cook’s affidavits. However, I dissent because both the district court and the majority have erred by using extrinsic evidence to create ambiguity where none exists. Nothing in the policy language supports the majority’s view that “5.00% deductible” meant a percentage of the total insured value (”TIV”) of properties affected by the earthquake, or that the TIV would be adjusted during the policy term for appreciation or depreciation of the covered properties. This is a diversity action, which requires us to apply Washington State’s law. When interpreting insurance contracts, “[t]he pertinent rules are simple enough. If the policy language is clear and unambiguous, the court may not modify the contract or create an ambiguity where none exists.” E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 726 P.2d 439, 443 (Wash. 1986). Here, the insurance policy expressed the deductible in terms of a percentage per occurrence. The policy does not expressly define “deductible.” Under Washington law, “[w]e give undefined terms in a policy their popu. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. DIAZ, No. 06-30029, a criminal appeal. The panel consisted of Jerome Farris, Richard R. Clifton, and Carlos T. Bea, Circuit Judges.

CLIFTON, Circuit Judge:
Government agents had a valid warrant to arrest Ronald Ray Diaz. They went to his house to arrest him, thinking he was home one weekday afternoon, as he had been in the past. When he didn’t respond they broke through the door and entered the house on their own, but Diaz wasn’t there and neither was anybody else. Inside the house, the agents discovered incriminating evidence. That evidence became the subject of a motion to suppress, denied by the district court, now before us on appeal. The question we must consider is whether the agents, who had an arrest warrant but no search warrant at the time they entered the house and first spotted the evidence, had sufficient reason to believe Diaz was home to justify the entry. If not, then they violated the Fourth Amendment by entering the house, and the evidence discovered in the subsequent search was inadmissible against Diaz. The district court ruled that the agents had sufficient reason to believe Diaz was at home and therefore did not violate his constitutional rights when they entered. We agree and affirm the district court’s denial of Diaz’s motion to suppress. I. Background Diaz lived on the Fort Hall Indian Reservation in Idaho. He had previously been convicted of assault, battery with intent to commit rape, and failure to register as a sex offender. He worked from home as a mechanic and often had several cars at the house. He protected his property with dogs and security cameras. . . .

The Ninth Circuit Court of Appeals today released an en banc opinion in USA v. ZIEGLER, No. 05-30177, a criminal appeal. The panel consisted of Diarmuid F. O’Scannlain, Barry G. Silverman, and Ronald M. Gould, Circuit Judges.

A sua sponte call for a vote on rehearing this case en banc was made by an active judge of this court. The call failed to receive a majority of the votes of the nonrecused active judges. Fed. R. App. P. 35. The sua sponte en banc call is therefore rejected. O’SCANNLAIN, SILVERMAN AND GOULD, Circuit Judges, concurring in the denial of rehearing en banc:
The court wisely denied rehearing this case en banc. We write separately only to counter the dissent’s unwarranted 7475 . . .

W. FLETCHER, Circuit Judge, dissenting, joined by PREGERSON, REINHARDT, KOZINSKI, HAWKINS, THOMAS, McKEOWN, WARDLAW, FISHER, PAEZ, and BERZON, Circuit Judges:
For two reasons, I dissent from the court’s decision not to rehear this case en banc. First, the employer in this case had an announced policy that employee computer use was subject to electronic monitoring from outside the employees’ offices by the employer. The panel incorrectly concludes that this policy constituted express authorization by the employees for the employer to do something quite different — to consent to a warrantless physical entry into the employees’ locked offices by criminal law enforcement agents to seize a computer. Second, even assuming that the employer had the authority to consent to an FBI search of an employee’s locked office for a computer, there was no such consent. Based on an inaccurate and incomplete description of the facts in the record, the panel incorrectly concludes that there was consent. We should have taken this case en banc to correct the panel’s erroneous view of the protection provided by the Fourth Amendment and to insure the integrity of our appellate process in dealing with a trial court record. I. Factual Background Defendant Jeffrey Ziegler worked in Bozeman, Montana as a manager at Frontline Processing. Frontline processed credit card billings. At the time of the events at issue, Frontline was a small company with between thirty and forty employees. The owner of the company, Chris Kittler, worked at the same location as his employees. According to the director of Frontline’s information technology (IT) department, John Softich, Ziegler shared his position on the corporate ladder as second. . .

KOZINSKI, Circuit Judge, dissenting from the order denying the petition for reahearing en banc:
The second opinion in this case, United States v. Ziegler, 474 F.3d 1184 (9th Cir. 2007), is troubling for its serious Fourth Amendment implications, as outlined by Judge W. Fletcher’s persuasive dissent. But the opinion is also troubling because it transgresses the boundaries of our institutional competence and disregards settled rules of appellate review. First as to competence: We may not find facts on appeal; we may only review findings made by the courts below us. See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (”The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.”); United States v. Lang, 149 F.3d 1044, 1046 (9th Cir. 1998) (”[T]he district court is in a superior position to judge the accuracy of witnesses’ recollections and make credibility determinations in cases in which live testimony is presented.” (internal quotation marks omitted)). This difference in institutional competence is also reflected in our Rules. E.g., Fed. R. Civ. P. 52(a) (”[D]ue regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”). The panel affirms the district court’s result, but does so by using facts the district court never found. The opinion “conclude[s]” that Reavis, a corporate officer, consented to the government search of Ziegler’s office. 474 F.3d at 1192. But we, and the Supreme Court, have repeatedly and consistently held that consent to search must be found as a matter of fact. See, e.g., United States v. Mitchell, 322 U.S. 65, 69 n.2 (1944); United States v. Spires, 3 F.3d 1234, 1236-37 (9th . . .

The Ninth Circuit Court of Appeals today released an opinion in PESNELL v. ARSENAULT, No. 04-56721, an appeal in a civil action against the United States. The panel consisted of Procter Hug, Jr., Harry Pregerson, and Richard R. Clifton, Circuit Judges.

HUG, Circuit Judge:
This case involves the issue of when an action brought under the Federal Tort Claims Act (”FTCA”) bars a later proceeding against the federal employees whose acts or omissions gave rise to the FTCA claims. We hold that the FTCA claims were dismissed for lack of jurisdiction and that the subsequent claims against the federal employees are not barred. We reverse the district court’s dismissal of the subsequent action on the ground of procedural bar and remand for consideration of the remaining issues in the case. This case also involves a request for recusal of the district judge; we affirm the denial of that request. I. Background Pesnell long contended that he owned two million acres of land in California. His claim to title depended upon records . . .

CLIFTON, Circuit Judge, concurring in part and dissenting in part:
“Jurisdiction,” the Supreme Court has observed, “is a word of many, too many, meanings.” Arbaugh v. Y & H Corp., 126 S. Ct. 1235, 1242 (2006) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998)). The majority opinion concludes that a dismissal based on lack of “jurisdiction” does not trigger the Federal Tort Claims Act (FTCA) judgment bar under 28 U.S.C. § 2676. The simplicity of that approach is appealing, but I disagree with the logic behind it and conclude that it paints with too broad a brush. Perhaps more importantly, I believe that both in adopting that approach and in reaching its conclusion regarding the judgment bar, the majority opinion is inconsistent with our court’s precedent in Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994). Thus, I respectfully dissent, in part. I. I agree completely with the majority opinion in affirming the denial of Pesnell’s motion for recusal. I also agree with . . .

The Ninth Circuit Court of Appeals today released an opinion in MORENO-MORNATE v. GONZALES, No. 05-75376, an administrative appeal. The panel consisted of Betty B. Fletcher, Eugene E. Siler, Jr., and Michael Daly Hawkins, Circuit Judges.

HAWKINS, Circuit Judge:
We address a question of first impression: does a United States citizen grandchild, in the lawful custody of non-citizen grandparents, meet the statutory definition of “qualifying relative” for the purpose of cancellation of removal? Grandparent Macario Moreno-Morante (”Moreno”) seeks review of the Board of Immigration Appeals’s (”BIA”) adoption and affirmance of an Immigration Judge’s (”IJ”) denial of his application for cancellation of removal, concluding that Moreno lacked qualifying relatives for purposes of the hardship determination and rejecting the contention that Moreno’s U.S. citizen grandchildren should qualify in light of his legal guardianship, custody, and pending adoption of them. We have jurisdiction under 8 U.S.C. § 1252 and deny Moreno’s petition. . . .

The Ninth Circuit Court of Appeals today released an opinion in WILLIAMS v. GOVER, No. 04-17482, an appeal in a civil action against the United States. The panel consisted of Andrew J. Kleinfeld and Sidney R. Thomas, Circuit Judges, and Ronald B. Leighton, District Judge.

KLEINFELD, Circuit Judge:
This case is controlled by the proposition that an Indian tribe has the power to decide who is a member of the tribe. Facts Plaintiffs claim that they are descended from people who were named as members of the Mooretown Rancheria Indian tribe in either a 1915 census or a 1935 tribal voter list. “Rancherias are numerous small Indian reservations or communities in California, the lands for which were purchased by the Government (with Congressional authorization) for Indian use . . .

The Ninth Circuit Court of Appeals today released an opinion in LOPEZ v. STEWART, No. 06-99000, a habeas corpus appeal. The panel consisted of Michael Daly Hawkins, Sidney R. Thomas, and Richard R. Clifton, Circuit Judges.

HAWKINS, Circuit Judge:
Appellant George Lopez (”Lopez”) was convicted in Arizona state court of child abuse and felony murder of his oneyear-old son and sentenced to death. In this postAntiterrorism and Effective Death Penalty Act of 1996 (”AEDPA”) habeas proceeding, he presents one certified issue: whether the state trial court denied Lopez his rights . . .

THOMAS, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority’s holdings in Parts II-V of the majority opinion. That is, I agree that the district court erred in concluding that Lopez’s ineffective assistance of counsel claims for failure to investigate and present mitigating evidence were unexhausted, and I agree that Lopez is not entitled to remand or relief on his claims that the Arizona Supreme Court denied him meaningful appellate review, that his lawyer was deficient in failing to challenge Dr. Hobeich’s testimony, or that his lawyer was deficient in failing to object to evidence of prior injuries. However, because I conclude that Lopez has successfully demonstrated an unreasonable application of Eddings v. Oklahoma, 455 U.S. 104 (1982), based on both the trial judge’s and the Arizona Supreme Court’s failure to consider his mens rea as a mitigating factor, I respectfully dissent from Part I of the majority’s opinion. I I share the concern raised by Chief Justice Feldman in his special concurrence, namely the lack of any trial court findings on mens rea. The lack of such a finding creates a distinct constitutional problem under Eddings because there is no evidence that the Arizona courts actually considered mens rea as a mitigating factor. This case is an outlier in our death penalty jurisprudence because the record is undisputed–and all parties seem to concede–that Lopez never intended to kill his son. Throughout trial, the prosecution emphasized that child abuse felony murder does not include an intent element. During the sentencing hearing, after Lopez’s counsel stressed Lopez’s lack of specific intent as a mitigating factor, the prosecution’s only argument in rebuttal was the following analysis: that Lopez . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. HOLLIS, No. 05-30611, a criminal appeal. The panel consisted of M. Margaret McKeown and Betty B. Fletcher, Circuit Judges, and William W Schwarzer, District Judge.

SCHWARZER, District Judge:
Arthur Hollis (Hollis) was sentenced to 240 months’ imprisonment after a jury convicted him of distribution of cocaine base and maintaining drug-involved premises in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) and 21 U.S.C. §§ 856(a)(1) & (b), respectively. He challenges his conviction and his sentence, contending that evidence of sales by Hollis to a government informant prior to the charged sale should not have been admitted, that evidence seized from his apartment should have been suppressed, that the evidence that he used two apartments to manufacture crack was insufficient to sustain his conviction on those counts, that he was improperly sentenced under 21 U.S.C. § 841(b)(1)(A) for distribution of cocaine base, and that his sentence was improperly based on the fact of his prior conviction. We find his contentions to be without merit and affirm. FACTUAL AND PROCEDURAL HISTORY Anchorage police arranged with a local drug dealer to assist in the investigation and prosecution of other drug dealers. The cooperating witness had purchased substantial quantities of crack from Hollis on prior occasions. Police arranged a rendezvous for the witness to purchase nine ounces of crack from Hollis while under surveillance. While waiting for Hollis, the witness was approached by two individuals asking for drugs; the witness brushed them off and left for another meeting place. After sale of the crack by Hollis to the witness had been consummated, police followed Hollis to a two-apartment dwelling on North Hoyt Street. Hollis was not arrested until several months later when police again followed him. Upon his arrest, police searched his truck and found wrapping paper contaminated with cocaine and a digital scale with cocaine residue. When ques. . .

The Ninth Circuit Court of Appeals today released an opinion in BURNSIDE v. KIEWIT PACIFIC CORP., No. 04-57134, a federal appeal. The panel consisted of Harry Pregerson, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:
The named plaintiffs in this case (whom we will call “Burnside,” for the first named plaintiff) represent approximately 270 former and current employees of defendant Kiewit Pacific Corporation (”Kiewit”). Burnside alleges that Kiewit never compensated the employees for time they spent traveling from designated meeting sites to their jobsites and from those jobsites back to the designated meeting sites. Kiewit, Burnside further alleges, required them to undertake this round trip daily; they were not allowed to get to the jobsites on their own. This appeal requires us to decide a single question: Whether the employees’ claims, brought under state law, are preempted by section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a). We hold that they are not, reverse the district court’s decision to the contrary, and remand with instructions to remand to the Superior Court of San Diego County. I A Robert Burnside, Francisco Gomez, Ray Arnett, Charles Lingenfelter, Ron Crues, and Charles Williams, along with approximately 265 additional members of a putative class, are all current and former Kiewit employees. Over a four-year period that began around October 2000 these employees worked to install duct and fiber optic lines on two Kiewit. . .