*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 Withdrawn July Decided *2 Bueler, Attorney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.
A concurring opin- and a ion, replace opinion, the withdrawn contemporaneously filed herewith.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
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,
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
Hill’s death sentence
959, 13 Cal.Rptr.2d