*1 Although, killer.” as is a [Sills] not argues, question did government ruling, we

technically the court’s violate court that with agree Sills ruling. spirit question violated Indeed, govern- admonished counsel, stating: “I to make it want ment’s any further very clear that there’s not to be anyone made to witness reference advised about unless the court first else However, if the refer- Crips killers.” even order, pretrial the court did ence violated denying abuse its discretion affirm a for a mistrial. “We will grant a mistrial absent decision not resulting prej- clear an ‘abuse discretion ” Rhodenizer, 106 v. udice.’ United States (8th Cir.1997) (quoting United Koskela, Cir. v. 86 F.3d 1996)). Here, there was no abuse discre- directly answer the tion. Withers did considering the evidence of question, and “Crips killer” guilt the reference to did Sills’ an extent as to taint[ “not trial ][the] Byler, v. United States require mistrial.” (8th Cir.1996). arguments Sills’ other reviewed merit. have found them without judgment Accordingly, we affirm the district court. al., HOOK, Arthur et

Evan Plaintiffs-Appellees, al., ARIZONA, et STATE of Defendants-Appellants.

No. 95-15897. Appeals, United States Court of Ninth Circuit. Argued Sept. and Submitted 1996. Opinion 1996. Filed Oct. Opinion July 1997. Withdrawn July Decided *2 Bueler, Attorney

Gordon S. Assistant Gen- eral, Phoenix, AZ, Defendants-Appel- for lants. Roca, Papetti, Phoenix,

Randy Lewis & AZ, Plaintiffs-Appellees. for THOMPSON, BEEZER

Before GONZALEZ, Judges, Circuit District Judge.*

ORDER petition granted. for rehearing

opinion filed published October 1996 and Arizona, as Hook v. 98 F.3d 1177 Cir. 1996),is withdrawn. majority opinion

A concurring opin- and a ion, replace opinion, the withdrawn contemporaneously filed herewith.

OPINION THOMPSON,

DAVID R. Judge. The Arizona of Corrections (Department) moved the district court to modify consent decree to delete which allowed state to receive twenty-five pound packages year three each during the (holiday December season * Gonzalez, Judge Honorable Irma designation. E. District California, sitting by Southern District year. Spe- and 31st of prisoners opposed this December 10th each packages). cifically, provided: the decree and moved autho- change the title of list Packages Incoming Residents at all Gift — holiday packages, permit and to rized send institutions, except adult correctional while pots in their and use possess *3 Centers, Diagnostic-Reception may cook food items. cells to heat and gift packages persons receive from those Department’s the The district court denied appear ap- the whose names on resident’s motion, motion, prisoners’ the and granted proved visiting list. clarifying The court also a order. issued deodorants, soap, shampoo, toothpaste, No compli- to monitor appointed special master a tobacco, cigarettes, cigars, vitamins or holiday package program. ance may in packages. medicines be included juris- Department appeals. We have may Food be at items sent Christmas 1292(a)(1) § U.S.C. and we under 28 diction packed glass and not be containers. Depart- part. We conclude the reverse (3) packages twenty-five A limit of of three a sub- that there had been ment established (25) pounds per per- each resident will be warranting change of circumstances stantial (December 10- mitted at Christmas time holiday package the some 31). re- the consent decree. With motion, the Department In October moved to conclude gard prisoners’ we showing holiday the to was no that maintenance eliminate the there prisoners in their cells was pots by the package provision. the was Because motion original part intended be the to holidays, the filed so close to the inclusion of that circumstances warranted it did have time to issue stated affirm, however, provision. the packages to decision before were be received changing the title of district court’s under decree. holiday appointment of a package list and its delayed ruling The district court on Depart- hold special master. We also April Department’s modification motion until oppor- adequate notice and an ment received pris- because the and the tunity regarding heard engaged negotia- oners were settlement clarifying order. time, During the district court appointed special investigate master to FACTS Department’s alleged violations the decree Department’s compliance and to monitor the prisoners civil certain filed a with it. Department’s mail rights alleging the action rights their under First

policies violated ruling Department’s on the modifi- Before prison- and Fourteenth Amendments. motion, required cation alleged they right constitutional ers report special to issue a with recom- including magazines, certain subscribe to holiday package pertaining to the mendations Beat; Playboy Bachelor send letters and 1994,the district court provision. In October judicial and who were officers recom- adopted master’s most list; approved mailing and to receive on pur- issued an order which mendations and people. The com- letters from more than ten holiday provi- ported clarify package right to plaint did not mention or assert the sion. pots. packages or to have hot receive proved un- negotiations When settlement year, The same successful, De- district court heard the comprehensive prison- mail regulations. prisoners’ motions partment’s and ap- accepted and and the district court ers De- modify. The district court denied proved regulations as the consent decree. motion, granted prisoners’ partment’s allowed each to receive motion, appeal pound followed. twenty-five packages between three per Beyond DISCUSSION month. this rise in the inmates, present prison number popu- A. The Motions Modification lation consists of an inordinate number of reverse a district court’s rul We will prisoners controlled substance abus- “only motion on a modification where the ers. district court abused its discretion based explosion and the legal its decision on erroneous standard or number of who have abused con- on findings erroneous fact.” Mil present trolled security substances serious Ctr., ler v. Pac. Medical California prison- risks to both the staff Indus, (9th Cir.1994); see also ACF ers. This risk is require- exacerbated Equalization, State Bd. California prisons permit prisoners ment that Cir.1994); United States receive packages. package Each *4 Or., 1410, v. State 1416 inspected. must During years the four Cir.1985). 1993, average between 1990 and an annual determining When whether modification of 24,250 packages inspected were at an aver- appropriate, consent is $124,000 age per year. cost of inspec- These flexibility. court should exercise v. In Rufo duties, tions divert staff from including other Jail, County 367, 502 mates of Suffolk monitoring security within the institution. 383, 112 116 S.Ct. smuggling The risk of contraband also is (1992). party requesting modification date, greatly increased. To controlled sub- has “signif the burden demonstrate stances have in pack- been found six icant change” fact or law warrants the ages using and one has from died 383-84,112 modification. Id. at S.Ct. at 759- heroin which he received in a package.1 appropriate Modification is under this Depart- district found proves “a standard when to be un- anticipated ment prison had rise obstacles, workable because unforeseen and, thus, population “heavy had not met its when enforcement the decree without justifying burden” of modification of the de- modification would be detrimental to the 385, cree. at See id. at S.Ct. 760-61. public 384, Id. interest.” at 112 S.Ct. at 760 finding conclude that this erro- (internal omitted). If a citations meets Certainly, neous. Department anticipat- burden, “the district court should deter- prison population. ed an increase proposed mine whether modification is However, is no sug- there evidence which suitably changed tailored to the circum- that, gests Department at time the en- 391, stance.” at at Id. S.Ct. 763. The explo- tered into the it foresaw the be on district court’s “focus should whether sion in prisoners the number of incarcerated modification is tailored to re- large portion them, or that such a approxi- problems by solve the change created %, mately 70 would be controlled substance Id. circumstances.” abusers. 1. Department’s Modify Motion to Department presented also uncontro- Department

Since entered mandatory into verted evidence that sentencing 1973, the decree in population legislation of Ari was enacted after the prisons zona’s significantly. has increased entered into the decree. This was an unfore- approved, when the decree was seen development in longer resulted prison 1,759. population By prison was sentences. previously Prisoners who 19,500. number of inmates had ballooned to would prison have served their left time and Department projects popula to make for incoming prisoners room now incarcerated, tion will continue to increasing increase 100 new remain prisoners argue 1. The insig- point. these numbers misses the The fact that controlled sub- years during nificant because the four packages between stances have been found in 97,000 holiday pack- 1990 and a total prison's personnel confirms the need to detail ages inspection were received and were pack- six found to assure careful and control of the argument ages. contain controlled substances. This change anticipated merely the was a semantic and was made way in a when prior title because the caused confusion entered. decree was among and the court abused its We conclude Further, holiday packages. send the the De- determining Department did discretion object change partment did not before demonstrating that its not meet burden thus, and, its waived changed warrant factual circumstances challenge appeal. on See United States circumstances, changed modification. The (9th Cir.1978). Patrin, F.2d security concerns for the institu- which raise tion, employees, prisoners, and the war- Opportunity B. Notice and to Be Heard holiday pack- rant some In October age provision. remand case issued its the consent de “clarification[s] it determine a court so that Department argues these cree.” The clarifi security modification to alleviate suitable actually cations were modifications and it did States, 52 See Ralls v. concerns. United changes an opportu notice of the (9th Cir.1995) (citing general nity to be heard. is to remand appropriate rule that course court). action to district ample notice

opportunity to The district court be heard. *5 Inmates’ Motion parties notified the that clarifications were needed so that the district court could ade- the con district modified The parties’ quately address the prisoners. pots hot for sent decree include hearing. the district court held a tions and pots by prisoners in cells Hot are used their Department opportunity had an The also items, only during not to heat and cook food with the discuss the clarifications year. throughout the the season but special before the district court is- master pots The court found that hot district sued order. permitted prisons since at been in Arizona’s order least 1980. The court’s modification Appointment Special of Master C. memorandums, orders, “No instruc reads: regulations, any Department challenges to that tions or directive effect, master, [Department] in by appointment special of the shall issued the prisoners’ obtaining exceptional hot arguing that no circumstances conflict disagree. pots.” justified appointment. the We modifying in district court erred we first must determine whether pots consent decree include hot for jurisdiction have have over issue. We past, in prisoners. Although, the De- a appointment special an concluded that permitted prisoners to hot partment have interlocutory generally an order master is parties is pots, there no evidence that Org. Re appealable. National for pots hot as a contractual intended include Mullen, Marijuana v. F.2d Laws 828 form of right within the consent decree. (9th Cir.1987). However, also we And, con- suggests no one Constitution may appeal a suggested have right. a fers such appeal in appointment from rejecting a adopting or master’s court’s order present Nor of a did inmates evidence Enomoto, Thompson v. recommendations. significant legal change in circum- factual (9th Cir.1987); see also requested inclusion justify stances to Revenue, Burlington Department N. v. pot in decree. To Cir.1991) (conclud (9th 1064, 1071 934 F.2d contrary, Department demonstrated ap jurisdiction appeal over possession pots by the and use of hot “inextricably pointment appointment when pose security problem. could a order). up appealable with” the bound court, however, by did not err appoint raises the changing the name of list which identifies appeal in its from the packages. This ment send the issue part, part, order. in court’s modification The modification AFFIRMED REVERSED appealable is under 28 U.S.C. and REMANDED. Further, 1292(a)(1). Burlington, § inas appointment inextricably intertwined with BEEZER, Judge, concurring. appealable the district court’s order. The required special district court master to sepa- I judgment. concur I write report detailing submit recommended mod- rately emphasize that the role of the fed- ifications and clarifications the decree and eral does include microman- courts adopted majority a clear of the recommenda- agement state institutions. We, therefore, juris- conclude we special diction over the master issue. The Arizona of Corrections establishing change has met its burden of for review abuse of discretion circumstances, appointment special significant of a the district court’s expansion Suquamish master. United v. Indian prison population, the Arizona which war- Tribe, Cir.1990). A modification, perhaps rants elimina- even appoint special district court should tion, holiday package provision of the of the exceptional Burling circumstances. Although consent decree. ton, 934 F.2d at 1071. responsibility tailoring retains the modifi- security problems cation to resolve the creat- The district court detailed the De partment’s history ed noncompliance explosion, with see consent decree Jail, and stated it lacked the re County Inmates Rufo of Suffolk constantly compliance sources to monitor 112 S.Ct. with it required as was to do (1992), the district court would Department’s noncompliance. because do well heed the views the state district court also determined suitably authorities as to what constitutes a *6 complexity master was needed due tailored modification. underlying In litigation. these circum stances, the district court abuse did not Supreme Court held that “the Suquamish, discretion. See F.2d at [ejonsiderations public interest and based on (concluding appoint may court powers allocation of within our federal litigation complexity “because and system require ... problems compliance associated with government administrators, defer local to order”). district court primary responsibility have the for eluci- dating, assessing, solving problems and CONCLUSION reform, to institutional resolve the intrica- We reverse the district court’s denial of cies implementing a decree modification.” Department’s to motion holi- (internal Id. at quota- S.Ct. at 764 day package provision, and remand to the omitted). tions Especially and citation district court for it devise a suitable modi- context, administration this admonish- fication. reverse and vacate the district ment lightly: should not be taken “[i]t is granting prisoners’ court’s order motion imagine activity difficult to in which a right include consent decree interest, stronger State has a or one that is possess pots. and use hot intricately up laws, more bound with state chang- affirm the district court’s order regulations, procedures, and than the admin- ing the title of the list identifies who — prisons.” Casey, istration of its Lewis v. holiday packages. send We hold the -, -, 2174, 2197, 116 S.Ct. adequate received notice and an (1996) (Thomas, J., concurring) L.Ed.2d 606 opportunity to be heard before the district (quoting Rodriguez, Preiser v. 411 U.S. Finally, issued its clarification order. 491-492, 93 S.Ct. we affirm the appointment district court’s (1973)). the special master. of the consent to the existence

Due ago, the decades dis- into over two entered entangled in the unfortunately is trict court penal institu- Arizona administration view, court should my role. Tailor- severely limit its administrative to the consent a suitable court with such presents the district Department of Arizona opportunity. The experience, have the ex- officials Corrections authority run the primary pertise and posi- best prisons; these officials are Gillette, R. Assistant Attor- Dane Senior holiday package to determine how the CA, General, Francisco, petition- ney San al- provision should be modified er. security concerns. leviate Francisco, CA, Philipsborn, T. San

John for the real in interest. HUG, Judge, Chief WALLACE CALDERON, Warden, Petitioner, Before:

Arthur FLETCHER, Judges. PER CURIAM. DISTRICT COURT UNITED STATES DISTRICT THE FOR NORTHERN petitions for writ us of manda- Calderon CALIFORNIA, Respondent, OF directing the vacate its mus order, discovery January Hill, Party in Real Interest. Michael S. petition any until Hill files a discovery forbid No. 96-70039. presents corpus prop- for writ habeas this case is erly claims. Because exhausted *7 Appeals, States Court of United indistinguishable v. United from Calderon Ninth Circuit. Cal., Dist. Dist. Court Northern (9th Cir.1996) (Nicolaus), we 98 F.3d 1102 26, 1997. Argued and Submitted Feb. grant petition. 4, April 1997. Decided Rehearing on Denial of As Amended I Rehearing Aug. En Banc 1997. Supreme affirmed Court California Hill, People

Hill’s death sentence 959, 13 Cal.Rptr.2d 839 P.2d 984 Cal.4th denied, (1992), S.Ct. cert. (1993). Instead of 126 L.Ed.2d 372 court, in state seeking corpus relief habeas appointment of counsel filed motion for Hill February 1994. That court on federal stayed Hill’s day, the district court same date, appointed subsequently execution Eighteen months counsel on June 15, 1995, later, Hill moved to on November County Dis- files of the Alameda inspect the