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9th Circuit Court of Appeals Updates
United States v. Apel
Criminal Law: Under 18 U.S.C. § 1382, a defendant cannot be convicted of trespass to an area where the federal government has granted an easement for a public roadway such that the federal government no longer has an exclusive right of possession over the area.
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Rivas v. Napolitano
Appellate Procedure: Under the Mandamus Act and 22 C.F.R. § 42.81(e), a federal court has subject matter jurisdiction to review a consular refusal to reconsider an application for an immigrant visa when the request was properly submitted and included evidence that tended to disprove the grounds for refusal.
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Western Watersheds v. U.S. Dep’t of the Interior
Administrative Law: Under 28 U.S.C. § 2412(d)(1)(A) and Hudson, a prevailing party is not entitled to an award of attorneys’ fees incurred in administrative proceedings that concluded before the commencement of the district court action.
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United States v. Backlund
Administrative Law: A defendant in a criminal proceeding based on the Forest Service’s administrative decision may obtain judicial review of a final agency action by filing suit in a federal district court under the Administrative Procedure Act (APA), or challenging the decision in a subsequent criminal proceeding, so long as either action is filed within the APA’s six-year statute of limitations.
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United States v. Dorsey
Evidence: Witness testimony tending to prove that the defendant had the means to commit a crime is not within the scope of inadmissible evidence involving “prior bad acts.”
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Crowley v. State of Nevada
42 USC § 1983: An enforcement action under 42 USC § 1983 is not available where § 301 of the Help America Vote Act provides no cause of action to challenge recount procedures in elections for local office.
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Buckwalter v. Nevada Board of Medical Examiners
42 USC § 1983: When exercising its summary suspension powers, the Nevada Board of Medical Examiners is performing a function "comparable to a judicial act" and is afforded absolute immunity from liability.
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United States v. Milovanovic
Criminal Law: Under 18 U.S.C. §§1341 and 1346, a fiduciary duty “need not be formal, or classic.” Rather, a material breach of “a comparable duty of loyalty, trust, and confidence, … with the intent to defraud, deprives the victim of the intangible right to honest services.” Foreseeable risk of economic harm is not a necessary element of the Mail Fraud Statute; instead a materiality test is required to evaluate fraudulent intent and a showing of materiality.
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Balla v. State of Idaho
Attorney Fees: Under the Prisoner Litigation Reform Act, fees can be awarded to an attorney for his efforts in monitoring relief after a party has won a judgment, as long as “the fee was directly and reasonably incurred in enforcing the relief ordered for the violation”.
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Robles-Urrea v. Holder
Immigration: Misprision of a felony is not categorically a crime involving moral turpitude which would qualify a resident alien for removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I).
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