The Ninth Circuit Court of Appeals today released an opinion in USA v. LOPEZ, No. 05-50433, a criminal appeal. The panel consisted of Susan P. Graber, Kim McLane Wardlaw, and Johnnie B. Rawlinson, Circuit Judges.

RAWLINSON, Circuit Judge:
In this appeal, we must decide whether the government’s impermissible references to Appellant Jorge Enrique Lopez’s post-Miranda silence mandate reversal of his conviction. Because we conclude that any error was harmless beyond a reasonable doubt and, because none of Lopez’s other assertions of error is meritorious, we affirm the conviction and sentence. I. FACTS AND PROCEDURAL HISTORY On September 17, 2004, Lopez entered the United States and was arrested by a United States Border Patrol Senior Patrol Agent and transported to a Border Patrol Station, where he was processed. Subsequently, Lopez was indicted for being a deported alien found in the United States in violation of 8 U.S.C. § 1326. At trial, Lopez took the stand and asserted a duress defense. Lopez testified that he entered the United States, hoping to get . . .

The opinion filed on November 30, 2006 is amended as follows: 1. Slip Opinion page 18874, Section II.A. -change the second sentence to read: “Lopez does not challenge all of the prosecutor’s comments regarding his silence, as he rightfully concedes that it was appropriate to question or comment on Mr. Lopez’s pre-arrest failure to offer his duress explanation. . . .

WARDLAW, Circuit Judge, concurring in part and concurring in the judgment:
I concur in the judgment and in Parts I, II-A, II-B and IIC(i) of the majority opinion. I disagree with the majority that Lopez’s testimony can be fairly characterized as an admission . . .

The Ninth Circuit Court of Appeals today released an opinion in MORGAN v. GONZALES, No. 05-74378, an administrative appeal. The panel consisted of Michael Daly Hawkins, Sidney R. Thomas, and Richard R. Clifton, Circuit Judges.

THOMAS, Circuit Judge:
This appeal presents the question of whether the United States is estopped from removing an aggravated felon because the government allegedly agreed not to deport him in exchange for his cooperation in a federal drug prosecution. Under the circumstances presented by this case, we deny the petition for a writ for review. I Paul Durham-Morgan is a native and citizen of England who entered this country as a non-immigrant visitor on November 8, 1981. He was authorized to remain until December 7, 1981, but exceeded his authorization. In early 1982, Morgan was arrested and charged with various drug trafficking offenses. He was then served with an Order to Show Cause charging him as being subject to deportation for overstaying his visa. In October 1982, Morgan was convicted of conspiracy to illegally import a controlled substance in violation of 21 U.S.C. §§ 952, 960 and 963; conspiracy to possess a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1); conspiracy to travel in interstate and foreign commerce in aid of racketeering enterprises in violation of 18 U.S.C. §§ 371 and 1952(a)(3)(A); and travel in interstate commerce in aid of racketeering enterprises in violation of 18 U.S.C. § 1952(a)(3)(A). He was sentenced to five years imprisonment, but the sentence was suspended subject to five years of probation. He was released into the custody of the then-Immigration and Naturalization Service (”INS”) and was subsequently released under a bond in January 1983. Morgan asserts that he then entered into a cooperation agreement with the government wherein he agreed to testify in support of the U.S. Attorney’s prosecution of a major drug . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. SPEROW, No. 05-30483, a criminal appeal. The panel consisted of Warren J. Ferguson, Diarmuid F. O’Scannlain and Raymond C. Fisher, Circuit Judges.

FISHER, Circuit Judge:
Gregory Sperow appeals his conviction for possession of marijuana with intent to distribute, asserting that the postindictment delay in his arrest amounted to a violation of his Sixth Amendment right to a speedy trial. Sperow also appeals an enhancement of his sentence, arguing that it was improperly based on a prior conviction not proven to the jury or admitted by the defendant, and that the government did not give him proper notice of its intent to seek such an enhancement. We affirm Sperow’s conviction. However, we agree . . .

O’SCANNLAIN, Circuit Judge, dissenting in part:
I must respectfully dissent from the majority’s conclusion that the government’s notice under 21 U.S.C. § 851(a) was insufficient. I A federal grand jury indicted Gregory Sperow, the defendant-appellant, on one count of possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a) & 846. The second paragraph of the indictment stated: “It is further alleged that the amount of marihuana involved exceeded 100 kilograms in violation of penalty provision 21 U.S.C. § 841(b)(1)(B)(vii).” Before trial, the government filed the required information (the “§ 851 notice”) giving Sperow “notice of its intent to seek enhanced punishment pursuant to Title 21 U.S.C. Sections 851 & 841(b)(1)(B)(vii).” The § 851 notice further provided that “[t]he government seeks a mandatory minimum term of imprisonment of ten (10) years imprisonment since this offense involves more than 100 kilograms of marihuana and because defendant has a prior conviction in United States District Court for the Southern District of California, Case Number 80-0639-E.” The government attached a copy of the judgment, which indicated that Sperow was convicted for conspiracy to import a controlled substance, conspiracy to possess a controlled substance with intent to distribute, illegal . . .

The Ninth Circuit Court of Appeals today released an en banc opinion in USA v. CASTILLO, No. 05-30401, a criminal appeal. The panel consisted of Mary M. Schroeder, Chief Circuit Judge, Harry Pregerson, Stephen Reinhardt, Pamela Ann Rymer, Sidney R. Thomas, Susan P. Graber, Kim McLane Wardlaw, William A. Fletcher, Raymond C. Fisher, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Jay S. Bybee, Consuelo M. Callahan, and Milan D. Smith, Jr., Circuit Judges.

BYBEE, Circuit Judge:
We granted en banc review in this case to resolve a question to which we have given inconsistent answers: Do we have jurisdiction to hear an appeal when the defendant entered a guilty plea in which he waived his right to appeal? Domingo Jacobo Castillo pled guilty to one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). Notwithstanding his guilty plea, Jacobo Castillo appealed his conviction. The government failed to raise the plea or his plea agreement as a bar to this appeal and instead responded to Jacobo Castillo’s arguments on the merits. A divided panel dismissed the appeal for lack of jurisdiction. United States v. Jacobo Castillo, 464 F.3d 988 (9th Cir. 2006), reh’g en banc granted, 473 F.3d 1264 (9th Cir. 2007). Our cases offer two different views of the question whether we have jurisdiction under these circumstances. In one line of cases, we have held that “we do not have jurisdiction over the merits of appeals based upon pre-waiver constitutional defects,” and “we must dismiss that portion of the appeal.” United States v. Reyes-Platero, 224 F.3d 1112, 1115 (9th Cir. 2000); see also United States v. Floyd, 108 F.3d 202, 204 (9th Cir. 1997) (”Unless [the appellant’s] plea conformed with [Rule 11(a)(2)’s] specific requirements, we have no jurisdiction to hear her appeal.”); United States v. Carrasco, 786 F.2d 1452, 1453-54 (9th Cir. 1986) (”We do not have jurisdiction to decide [the appellant’s] appeal of the denial of the suppres. . .

CALLAHAN, Circuit Judge, dissenting:
I The precise issue in this case is whether this court has jurisdiction over pre-plea constitutional claims following a conviction pursuant to an unconditional guilty plea. The answer is no. By entering an unconditional guilty plea whereby a defendant admits his factual guilt, he removes the issue of guilt from his case, rendering moot any pre-plea challenges that do not implicate the validity of the admission itself. We therefore lack Article III jurisdiction over pre-plea constitutional claims because of the absence of a case or controversy. See Iron . . .

The Ninth Circuit Court of Appeals today released an opinion in PETRONE v. MALONE, No. 05-17393, a federal appeal. The panel consisted of Diarmuid F. O’Scannlain and Sandra S. Ikuta, Circuit Judges, and Leonard B. Sand, Senior District Judge.

SAND, Senior District Judge:
This case requires the Court to interpret the notice requirements of the Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. § 78u-4 (2000), when a securities class action is to be settled. Appellant, a member of the class of securities holders, appeals from an order of the district court approving a settlement and plan of allocation, arguing that the notice of proposed settlement sent to the class was inadequate under the PSLRA and raising several substantive objections to the plan of allocation. Appellant also appeals from the district court’s order denying his application for attorneys’ fees. Because we find that the notice did not comply with the requirements of the PSLRA, we vacate in part and remand. Because the application was untimely, we affirm the denial of attorneys’ fees for work performed prior to the fee application. FACTS AND PRIOR PROCEEDINGS The Underlying Case This case stems from the settlement of a class action on behalf of all persons or entities who purchased publicly traded securities of VERITAS Software Corporation between January 3, 2001 and January 16, 2003. The complaint alleges that VERITAS falsely represented that it had entered a $50 million deal with AOL, structured to appear as if VERITAS had sold $50 million in software and services to AOL and had purchased $20 million in online advertising from AOL. This “roundtrip” transaction allowed both companies to artificially inflate their revenues and earnings. On November 14, 2002, VERITAS for the first time revealed in a Form 10-Q that it had been served with a subpoena by the Securities Exchange Commission three months . . .

The Ninth Circuit Court of Appeals today released an amended order in USA v. FORRESTER, No. 05-50401, a criminal appeal. The panel consisted of Raymond C. Fisher, Richard R. Clifton and Milan D. Smith, Jr., Circuit Judges.

FISHER, Circuit Judge:
Defendants-appellants Mark Stephen Forrester and Dennis Louis Alba were charged with various offenses relating to the operation of a large Ecstasy-manufacturing laboratory, and were convicted on all counts following a jury trial. They now appeal their convictions and sentences. Forrester moved to represent himself prior to trial. At the hearing on this motion, the district court carefully warned . . .

The opinion filed July 6, 2007, at 2007 WL 1952390, at *2, and slip opinion page 8075, lines 24-30, is amended as follows:
At slip op. page 8075, lines 24-30, replace the two sentences starting with “The surveillance began . . .” with the following language: The surveillance began in May 2001 after the government applied for and received court permission to install a pen register analogue known as a “mirror port” on Alba’s account with PacBell Internet. The mirror port was installed at PacBell’s connection facility in San Diego, and enabled the government to learn the to/from addresses of Alba’s e-mail messages, the IP addresses of the websites that Alba visited and the total volume of information sent to or from his account. OPINION FISHER, Circuit Judge:
Defendants-appellants Mark Stephen Forrester and Dennis Louis Alba were charged with various offenses relating to the operation of a large Ecstasy-manufacturing laboratory, and were convicted on all counts following a jury trial. They now appeal their convictions and sentences. Forrester moved to represent himself prior to trial. At the hearing on this motion, the district court carefully warned . . .

The Ninth Circuit Court of Appeals today released an opinion in GOLDEN PISCES, INC. v. FRED WAHL MARINE CONSTRUCTION, INC., No. 05-35477, a federal appeal. The panel consisted of Ronald M. Gould, Richard A. Paez, and Johnnie B. Rawlinson, Circuit Judges.

PAEZ, Circuit Judge:
Golden Pisces, Inc. (”Golden Pisces”) and OneBeacon America Insurance Group (”OneBeacon”) appeal the district court order denying their motion for attorneys’ fees following their successful suit for breach of contract against Fred Wahl Marine Construction, Inc. (”Fred Wahl”). Under the American Rule, which applies in federal litigation, including maritime litigation, Golden Pisces and OneBeacon are not entitled to attorneys’ fees absent statutory authorization, an enforceable contractual provision, or an equitable exception to the rule. F.D. Rich Co. v. Indus. Lumber Co., 417 U.S. 116, 126, 129-30 (1974). Because no statute authorizes attorneys’ fees for this maritime cause of action, because the parties’ contract was void, and because no recognized equitable exception applies, we affirm the district court’s order denying attorneys’ fees. I. Golden Pisces owns the F/V Golden Pisces, which at the time this action arose was based in Newport, Oregon. In the fall of 2001, Golden Pisces and Fred Wahl, a shipyard in Reedsport, Oregon, entered into an oral agreement whereby Fred Wahl would make repairs on the F/V Golden Pisces, with Golden Pisces paying standard shipyard rates and costs for work performed. After the parties entered into the oral agreement, Fred Wahl presented the F/V Golden Pisces’ captain with a form contract that purported to limit Fred Wahl’s liability through a warranty disclaimer. The form contract also contained a clause providing for attorneys’ fees in favor of the prevailing party “[i]n any litigation to enforce or interpret this agreement.” Although the captain signed the form contract, it was never signed by the ship’s manager; nor was it signed by a representative of Fred Wahl. . . .

The Ninth Circuit Court of Appeals today released an opinion in OREGON NATURAL RESOURCES v. TIMBER PRODUCTS CO., No. 05-35063, an appeal in a civil action against the United States. The panel consisted of James R. Browning, Dorothy W. Nelson, and Diarmuid F. O’Scannlain, Circuit Judges.

D.W. NELSON, Senior Circuit Judge:
Elaine Brong, Oregon State Director of the Bureau of Land Management (”BLM”), and other parties appeal the district court’s decision invalidating the Timbered Rock Fire Salvage and Elk Creek Watershed Restoration Project (”Timbered Rock Project” or “Project”), a plan developed by the BLM to log nearly a thousand acres of protected land in southwest Oregon after a major forest fire. The district court held that the Timbered Rock Project violated both the Federal Land Policy and Management Act (”FLPMA”) and the National Environmental Policy Act (”NEPA”). We affirm. . . .

O’SCANNLAIN, Circuit Judge, dissenting:
Both the district court and our court have now ruled that the Bureau of Land Management (”BLM”) violated the Federal Land Policy and Management Act (”FLPMA”) and the National Environmental Policy Act (”NEPA”) in proposing the Timbered Rock Fire Salvage and Elk Creek Watershed Restoration Project (”Timbered Rock Project” or “Project”) to salvage the remains of a disastrous fire in the Elk Creek Watershed. With respect, I am unpersuaded that BLM violated either Act when the question is viewed under the proper standard of review. Because it appears that both courts have inappropriately substituted their own policy views for the BLM’s, I cannot concur. The majority opinion recognizes that we must not invalidate agency action where the agency can present “a rational connection between the facts found and the conclusions made.” Ante, at 8937. Unfortunately, because I can discern no rational connection between this extremely deferential standard of review and the majority’s conclusions in this case, I must respectfully dissent. I FLPMA authorizes the BLM to “develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands.” 43 U.S.C. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. FIGUEROA-OCAMPO, No. 05-50777, a criminal appeal. The panel consisted of Harry Pregerson, Ronald M. Gould, and Richard R. Clifton, Circuit Judges.

PREGERSON, Circuit Judge:
Arturo Carlos Figueroa-Ocampo (Figueroa-Ocampo) appeals his sentence for being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. Applying the recent United States Supreme Court decision in Lopez v. Gonzales, ___ U.S. ___, 127 S. Ct. 625 (2006), we vacate FigueroaOcampo’s sentence and remand for re-sentencing. I. On April 16, 2003, Figueroa-Ocampo was indicted for violating 8 U.S.C. § 1326(a) (previously deported alien found in . . .

The Ninth Circuit Court of Appeals today released an 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.

An active judge sua sponte called for rehearing en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(b). The sua sponte call for rehearing en banc is rejected. CALLAHAN, Circuit Judge, with whom O’SCANNLAIN, KLEINFELD, TALLMAN, and BEA, Circuit Judges, join, dissenting from the denial of rehearing en banc:
I respectfully dissent from our denial of rehearing en banc because I read the panel majority as holding, in essence, that, 8919 . . .

CALLAHAN, Circuit Judge, with whom O’SCANNLAIN, KLEINFELD, TALLMAN, and BEA, Circuit Judges, join, dissenting from the denial of rehearing en banc:
I respectfully dissent from our denial of rehearing en banc because I read the panel majority as holding, in essence, that, 8919 . . .