*1 agency upon affecting tain was not a final action based suits the administration of the against system, record have we found river instead single compre- administrative jurisdiction against hensive jurisdiction this court for claims the Ninth Circuit. Congress has confided Bonneville Power Administration. For to the Bonneville Power Administration Utility in Public Num the dual task of man- that reason District Johnson, aging system the river County power 855 F.2d to assure ber Clark (9th Cir.1988), preserve fish. we held we lacked Neither task is subordinate to the other. Charles F. jurisdiction petitioner’s allega to consider Wilkinson and Dan- Conner, by iel Keith of contract the Bonneville “The Law Of Pacific tions of breach The Fishery: Administration. Salmon Conservation and Alloca- Power Transboundary tion A Property Of Common appellants argue The that violation Resource,” 32 Kan.L.Rev. 53-54 Endangered Species Act is not autho agency’s fulfilling The final actions its statu- by analogized Act rized and could be to a tory mission can be examined tort. But the determinations here made court. agency carrying were final actions out AFFIRMED. managing its authorized mission of the river system enhancing They the fish stock. jurisdiction
fall within the exclusive of this
court. appellants emphasize that the ac agency
tions taken were taken
response listing salmon
therefore should be classified as actions moti Endangered Species vated Act. The Anthony HARDNETT, D. motivation, however, is irrelevant. Jurisdic Petitioner-Appellant, depends upon tion the kind of action taken. The action was final action the Bonneville upon Power Administration based an admin MARSHALL, Respondent- Charles D. istrative record. Appellee. appellants reply specific, No. 93-15857. authorization of citizen suits under the En Appeals, United States Court of Act, Species § dangered 1540(g), 16 U.S.C. Ninth Circuit. jurisdictional precedence pro
takes over the vision of the Northwest Power Act. To the Argued and 1994. Submitted Jan. contrary, Endangered Species Act is of a Decided June 1994. general governing character citizen suits throughout Aug. the United States. The North As Amended 1994. jurisdictional explicit west Power Act is in its
requirements for the administration of the System.
Columbia River- Power appellants contend that the re
sult will be an irrational bifurcation of their
suit, against with some of their claims some remaining
of the defendants in the district needing brought
court and the rest to be
this court. It is no doubt true that
jurisdictional provision against works
plaintiffs. jurisdictional But the allocation by Congress.
was made It would be even satisfying if
less different district courts in
the states of the Columbia basin could enter- *2 NOONAN,
Before: SCHROEDER and *, Judges, and District Circuit JONES Judge. NOONAN; Judge
Opinion by by Judges Concurrences SCHROEDER JONES.
NOONAN, Judge: Circuit involves This case a difficult prosecutor’s a criminal whether a violation of rights defendant’s under the Confrontation Clause, applied the Due California Clause, was a character to war- Process corpus. The issue rant the is is close. The ease as follows: early In hours at of October Hotel, 20 Street between Winsor Sixth Francisco, Streets, and Mission Market San away Appeals from a block this Court Hall, long City from Out- two blocks Vance law was stabbed to death. There is no doubt They as to who stabbed him. were David peti- Eng and his twin sister Denise and case, Anthony tioner in this Hardnett. Of habeas, three, Hardnett alone seeks al- leging right a violation of of confrontation his voluntary that affected defenses of involuntary manslaughter. right is
The violation constitutional clear. Our task is whether the determine gross preju- actual violation was that no or, analysis analysis necessary dice if such made, may whether the state of California has shown that no actual Hardnett suffered ques- jury. with the With these pro- tions in mind we set out the facts and ceedings.
FACTS killing, The state’s Ro- witness Espejo, apartment shared at 1951 berta Street, Francisco, boy- Oak San with her Eng; David Denise friend his twin sister O’Connell, Bradley Appellate J. First Dist. father; Eng; boyfriend, their and Denise’s Francisco, CA, Project, petitioner- for San Anthony Hardnett. his own Hardnett appellant. cocaine; admission was dealer in helped enterprise. sometimes him in this Matthias, Gen., Deputy Atty. Ronald S. Denise, prostitute, part- a former worked CA, Francisco, respondent-appellee. San time as a construction worker and limousine chauffeur; Hardnett since had lived with her At times June 1986. Hardnett and * Jones, E. District Honorable Robert United States nation. Judge Oregon, sitting by desig- the District of For account, pejo. According escape at the to his
rented a room Winsor apart- staying Street crowded conditions Oak Denise were at the Winsor on ment. They October 6. knew Outlaw as customer They Hardnett’s cocaine. were also aware Espejo, According Roberta about 2:00 *3 of his violent treatment women. “Bitches 7,1987 and a.m. on October Denise Hardnett life,” ain’t had Outlaw told Hardnett. arrived at the Oak Street address. Denise clothing crying upset, and in was her disar- Denise went to room Outlaw’s to borrow a ray; depressed crying. was and Hardnett hanger coat pipe to use as a cleaner she her to Denise asked brother David take care and drugs. Hardnett could smoke After the her; dissing pimp of a had dissed who pipe hanger was Denise cleaned returned disrespect slapping in had consisted her and but did not come back. Hardnett went to stripping David would take her. said he care Outlaw’s room to look for her. He found her Thereupon up picked of it. David a letter stripped and beaten Outlaw with Outlaw opener length inches in 6-8 in the form of a holding a to her knife throat. Denise said sword; Spanish picked up a Denise fondue that Outlaw her to him wanted whore for and fork; Anthony got three, a steak knife. The that, refused, going as she had “He’s to kill by Roberta, accompanied went cab asked, “Why you me.” Hardnett do did ' Winsor. . replied, woman?” Outlaw “The bitch Sixth, At the corner Market and Denise is dead meat. You ain’t safe on Oak Street.” pointed out Vance Outlaw as the man who gat He that assured Hardnett he had and ignored had her. The him dissed four and would kill him too.
proceeded They into the Winsor. then wait- Hardnett and Denise then took a cab to ed in room Hardnett Denise and had They Oak Street. discovered that Denise day rented the before. A little later Outlaw keys had left in apartment Out- the door in. peered knocked on and David Eng law’s in room. David let them to the Hardnett, Eng previously who and had sold David, apartment pimp and Denise told “The him him drugs, invited to enter. Immediate- dissed me.” David wanted to talk to the man ly he and on his entrance was rushed stabbed why and find out he had mistreated his sis- by David and Hardnett. Denise attacked his ter. a need to There was retrieve Oak leg struggle with fondue fork. The con- keys. Street The trio took a taxi pinned and him tinued. David Hardnett on Winsor. attempted the bed and to smother him. Ulti- they As waited for Outlaw in Hardnett’s mately they him stabbed in the throat. The in, stating, room at the he walked “I being Winsor Winsor killers left the without detect- examined, you got told I body going Outlaw’s was to do that. ed. When was thing.” twenty-nine that Outlaw was was found that wounds had been Hardnett believed stabbing him sharp panicked, inflicted about to kill him. He him on instruments. The weaponry Engs usually domestic knife he carried for Hard- with the steak scene, protection already nett on the in was still murder the fon- and which was room, due fork and the steak knife both covered brought from Oak Hard- Street. blood, opener with in human the letter Out- many nett was not aware of how times he law’s throat. stabbed or of what David Denise Outlaw doing. stopped He when he was no police were at first unable to deter- longer danger. story mine had done who the deed. The happened light only what had came to after PROCEEDINGS split Espejo Eng Roberta David Jan- uary police She 1988. confessed to the Eng, Eng David Hardnett year. June of that Superior were tried in Francisco Court San testify defendant an in granted was Hard- murder. The court nett. On the essential of the cir- limine -motion exclude defendants cumstances which he killed Outlaw his the out-of-court statements of Denise to the trial, however, testimony police. from differed Roberta At the on cross-exami- Es- appeal Appeals Hardnett, following exchanges On to the Court for the nation of Appellate the three defendants oc- First District prosecutor between prosecutor urged that the misconduct curred: required re- in Hardnett’s cross-examination Q. you wanted 1. it true Isn’t versal. That court observed miscon- you said boosting and she no and start attempts by the duct “involved rather blatant slapping her around at Fisher- started excluding prosecutor” the rule to circumvent man’s Wharf? incriminating non-testifying statements A. No. defendant. The court characterized the Inspector Q. told if Denise Gerrans So “decidedly unprofes- prosecutor’s conduct lying, is that correct? would be she only question sional” but noted that *4 objection by court] sustained [defense guilt, directly on Hardnett’s the which bore knife, his Q. Inspector that threat to use 2. if Denise told about his So they lying[?] way fortunately that “was would was worded in a Gerrans It added that vague and confused.” as the objection by court] sustained [defense jury “effectively ques- informed that the was testimony Q. your you did 3. it’s that And bounds, reasonably tion was out of it could be up at Pier Denise 39? not beat jury relied presumed upon that the had not A. I didn’t. Yes. event, appellate it.” In the court con- Q. you explain saying How would Denise cluded, guilt appellants’ “The evidence of was you did? the overwhelming and so misconduct was beyond doubt.” harmless a reasonable objection by court] sustained [defense prosecutor On a occasion the asked fourth Supreme The Court California denied gone he had Hardnett whether back He petition Hardnett’s for review. there- Eng’s apartment to obtain David Oak Street upon brought petition a for pro se had, assistance. Hardnett denied that he corpus district court. Counsel the federal “No, say stating, I didn’t Before he magistrate appointed him. The —.” finish, prosecutor could the asked: judge recommending report filed a denial of because, petition although the the cross-ex- Q. going get 4. it that [“] Isn’t true amination violated his Confrontation had got I’m mother fucker? knife and rights, preju- had not been Clause Hardnett going get now[”]? the magis- diced. The district court followed say— A. No. I didn’t trate’s recommendation and denied Hard- that, Q. And if Denise said she would be petition. appeals. nett’s lying? questions previous As it three had to the ANALYSIS objection. sustained the defense court Williams, the The court also admonished Right The Violated. Constitutional Williams, prosecutor, saying, “Mr. don’t every guarantees The Sixth Amendment make to a witness’ reference statement —this right defendant the to examine witnesses testifying alleged is the who’s witness —or against prosecutor Williams in him. When rejected court statement.” The a defense questions state troduced the form gave The motion for a mistrial. court Eng, ments out of court made jury instruction to the standard introducing hearsay the Williams was lawyers were not evidence. statements of a Hardnett could not words witness whom jury convicted all three defendants of Eng in cross-examine because had degree second murder. against privilege her self-incrimi voked own trial, at the a motion for nation was not a witness trial. court denied a new questions was not a violation finding that had been Williams’ misconduct Williams’ rights. It good asked “in faith” and that court had defendant’s constitutional court’s jury a direct violation of the order so that would not con- was instructed excluding under the sider such statements authori- them as evidence.
879
States,
ty of
Bruton v. United
Williams.
misconduct has
Where
béen as
was,
As the
references to
which there occurs “a
espe
deliberate and
Eng’s
cially
out-of-court statements
in the
egregious
type,
were
error of
the
or one
was,
questions,
form of
argued,
pattern
there
it is
no that
prose-
is so combined with a
of
by
prosecution
evidence
the
as
integrity
submitted
cutorial conduct” as to
the
“infect
of
content;
their
it
prosecu-
and is true that the
the proceedings”
and “warrant the
of
jury.
tor did
argue
not
the statements to the
relief
if
not substantially
habeas
even
it did
Nonetheless,
at -,
prosecutor’s
jury’s
9,
effect of
the
the
affect the
verdict.” Id.
n.
questions
1722,
subtly
hybrid,
was
insinuate not at
at
all
n. 9. This
Foot
possession
by
it,
that
he had
his
statements
note
error as
Nine
we denominate
is thus
Eng
corresponded
that
state-
to the
assimilated to structural error and declared
put
questions.
incapable
ments he
in the form of
Evi-
redemption
prej
be
of
actual
disputed.
prose-
analysis.
trial,
dence could have
The
integrity
been
udice
The
of the
poison
destroyed,
cutor’s
instilled a
having
remarks
which the
cannot be
been
reconstitut
drain
appellate
defense could not
from the case.
ed
an
court. We assume that
the
set out in Footnote Nine
facts
are illus
judge’s sustaining
objections,
of the
trative,
exhaustive,
key
not
con
and
in-
general
rebuke to
and his
Williams
integrity
sideration is whether the
statements,
lawyers’
struction to
on
the
proceeding was
that
so infected
the entire
argued,
enough
it is
were
to cure
miscon-
the
presents
trial was unfair. The case before us
However,
judge’s
duct.
the
mild admonition
the
whether Footnote Nine error of
prosecutor
put
way
was
in such a
this sort occurred here.
it magnified
problem by referring
Denise’s
In approaching
statement as that of “a
Nine
witness.”
Footnote
Error?
general
any
question,
instruction was not
this
tied
determination
bur-
way
specific questions
proof
importance.
introduced
den of
has
Brecht de-
States,
328 satisfied:
Is this “the unusual
where
pends upon
United
case”
Kotteakos
(1946)
1239,
L.Ed. 1557
in-
U.S.
the combination misconduct and error
governing
of the rule
interpretation
and its
proceeding
destroyed
fected the entire
in the
embodied
Judi-
appeals,
federal
then
requires
its
fairness?
answer
consider-
§
§
28 U.S.C.
now 28
cial Code
statutory provisions
ation of
on
California’s
revised,
which,
§
as
states that
U.S.C.
killing.
given
is to
“without
appellate judgment
be
degree
To
convict
second
murder
which
not
regard to
or defects
do
prosecution
prove
killing
had to
the unlawful
rights
parties.”
affect
substantial
being
aforethought.
of a human
malice
Kotteakos,
history
following
legislative
187(a).
“express
§
Code
Malice is
Cal.Penal
statute,
the view that
appears
endorse
when there is
inten
manifested
deliberate
natural
if
“its
effect”
was such
away
tion to take
life of a
fellow creature.
litigant’s
“a
substantial
It
implied,
provoca
is
when no considerable
proof
rights,”
party
falls on
burden
appears,
tion
at
when the circumstances
760, 66
defending
Id. at
S.Ct. at
the verdict.
killing
tending the
show
abandoned
-
Brecht,
at - - -,
1246. But
malignant
degree
§
heart.” Id.
188. First
1720-1721, speaks of a
state
murder,"
here,
so far as
is murder
relevant
all
judgment
presumptively correct and of
torture,
perpetrated by
“lying-in-wait,
petitioners
obtaining
not
relief based
-willful,
deliberate,
pre
other kind
they can
on trial error “unless
establish
” Brecht,
killing.”
prejudice.’
meditated
All other
mur
kinds of
it resulted in ‘actual
past
may
argued,
repudiate
prac
degree.
§
did
der are of the second
Id.
189'.
burden;
is the
tice and shift the
inter Voluntary manslaughter
killing “upon
is
given
opinion by
concurring
pretation
quarrel
passion.”
sudden
or heat of
Id.
at -,
opinion
113 S.Ct. at
and there
192(a).
§
Involuntary manslaughter
kill
explicit
repudiation
is no
or rebuttal
ing
act,
in “the commission of an
unlawful
A
opinion.
concurrence in the main
constitu
*6
amounting
felony;
to
or in the
of
commission
usually
the “natural
tional violation
has
ef
produce
might
lawful act which
in an
death
acting upon
litigant’s
of
the
substantial
fect”
manner,
unlawful
due
without
caution
hand,
rights.
judg
On
other
if a state
the
192(b).
§
circumspection.”
Imperfect
Id.
correct,
presumptively
ment is
it would seem
i.e.,
self-defense,
the actual but unreasonable
petitioner
on
that the burden fell
the
chal
danger
belief that one is in imminent
of
it,
lenging
applied
and that is how we
Brecht
great bodily injury, negates
death or
malice
Stainer,
(9th
in
F.2d 669
Castillo v.
997
provides
and thus
basis for
a verdict
Cir.1993);
Blodgett,
v.
see also
5
Jeffries
manslaughter
rather
than
In re
murder.
(9th Cir.1993).
1180,
F.3d
1190
We need not
S.,
768, 773-83,
7
Christian
Cal.4th
30 Cal.
here,
the question
resolve
even as
because
33,
(1994);
Rptr.
People
881
majority opinion, however,
from the case but it was confined
removed
while con
spread
cluding
to the entire trial. Foot-
and did
error in this case was harm
demonstrably
less, equates
did not occur.
category
note Nine
the new
of footnote
nine error with “structural error” that re
Prejudice?
prosecution
Actual
shows
quires automatic reversal or habeas relief.
prejudice”
pointing
“actual
no
-
Brecht,
-,
See
U.S. at
113 S.Ct. at
crime of which Hardnett was convicted. The
1717;
Fulminante,
279,
Arizona v.
499 U.S.
Eng’s
hearsay
of Denise
inadmissible
worst
290,
1246, 1254,
111 S.Ct.
AFFIRMED. *7 beyond Chapman less a reasonable doubt. 18, California, 824, 386 87 U.S. S.Ct. 17 SCHROEDER, Judge, concurring: Circuit (1967). Brecht, L.Ed.2d 705 In the Court I judgment concur in the and with all of rejected Chapman use of the standard in majority’s opinion except interpreta the the cases, looking habeas instead to whether the Abrahamson, tion of footnote .nine of Brecht v. “ injurious error ‘had a substantial and effect - -, U.S. 113 S.Ct. 123 determining jury’s or influence in the ver L.Ed.2d 353 That troublesome foot ” - Brecht, at -, dict.’ U.S. 113 at S.Ct. special category note creates a of “deliberate States, 1722 (quoting Kotteakos v. United 328 especially egregious error[s] of the trial 750, 776, 1239, 1253, U.S. 90 L.Ed. type” for which relief habeas is available (1946)). this, 1557 Under the Kotteakos if substantially even the error “did not influ standard, petitioner must show “actual jury view, ence the verdict.” In this prejudice.” Id. special category of “trial error” is one for nine, In footnote the Court an identified required which reversal is unless the state exception holding: to its can show the error have been harmless beyond holding a reasonable doubt. I .possibil- Because con Our does not foreclose the case, prosecutorial ity clude that the in misconduct in an unusual a deliberate case, serious, although especially egregious could not have error of the jury’s any way, type, affected the deliberation in pat- or one that is combined with a agree majority misconduct, with prosecutorial might the that habeas relief is tern of not warranted. integrity proceeding infect the the as 882 relief, by oblique if such citation in a footnote. the of habeas even
warrant
substantially
jury’s
influence
Because
entire issue in Brecht was
not
it did
Miller,
Chapman
review
U.S.
whether Kotteakos
verdict.
Greer
Cf.
3102, 3111, 97
applied
618]
S.Ct.
L.Ed.2d
should
to trial errors in habeas
[107
[(1987)].
adopted
proceedings, and because the Court
standard,
-
nine’s ex-
Kotteakos
footnote
Brecht,
9, 113
U.S. at - n.
S.Ct.
ception
reasonably interpreted
most
is
1722 n. 9.
preserving
Chapman
such errors for
review.
majority
that footnote nine
concludes
By analogizing footnote
error to
cannot be
harmless error
nine trial
saved
error,”
majority
Chapman
under
or Kotteakos.
“structural
blurs
review
either
concept
It
say
footnote
does not
that. weakens
of structural error.
But the
itself
makes
say
it does
is that such error
is
habeas review more difficult.
What
require
if it
reason
reversal
grounds for habeas relief “even
did not
that structural errors
substantially
jury’s
analysis
without
is because
influence
verdict.”
Fulminante,
they
analysis.
just
defy prejudice
paragraph
The text
before the
309-11, 111
for
nine makes it
499 U.S. at
at 1265. The
marker
footnote
clear
S.Ct.
majority’s
problem
position
in this
this is a reference to the Kotteakos test.
-
Brecht,
at -,
U.S.
attacks, today’s, Doyle errors are David Pancost such fundamentally Plaintiff-Appellant, unfair that convic- the State reversed whenever tions must be proving heavy burden cannot bear Music; AXTON, Lady Hoyt Jane dba beyond a rea- harmless that the error International, Inc., Music Rondor hand, there On the other sonable doubt. Defendants-Appellees. extraordinary in which the cases may be egregious, or is combined is so Doyle error JACKSON, Jr., David Pancost prosecuto- incidents other Plaintiff-Appellee, misconduct, integrity rial In question. into such process is called event, corpus should AXTON, Lady Music; Hoyt relief dba Jane International, Inc., Music Rondor afforded. Defendants-Appellants. 768-69, 3110- 483 U.S. 92-56580, (citations J., Nos. 93-55423. (Stevens, concurring) omit- ted) added; origi- from emphasis (emphasis Appeals, States United Court deleted).1 nal Ninth Circuit. seals it. The I the citation Greer think April 1994. Argued and Submitted parallel’s nine language footnote Court’s Decided 1994. June portion of Justice Stevens’ emphasized Greer; footnote and whereas concurrence it, say right Jus- come out and
nine doesn’t “extraordinary”/foot- in the did:
tice Stevens case, be af- “habeas relief should nine
note nor Justice footnote nine Neither
forded.” anything harmless mentions about
Stevens both the It is clear to me that
error review. place the and Justice Stevens
Brecht Court case, integ- “infect[s] nine which
footnote catego-
rity proceedings,” in the fourth
ry errors. of constitutional Judge fine
Although Schroeder advances sup- support position,
reasoning in her
port Judge interpretation, which Noonan’s the intent of the Brecht Court.
reflects emphasized. page included 1. cites U.S. at that I have I have Footnote nine concurrence, emphasized portion paragraphs preceding page the Greer *10 quotation purposes portion of context. which includes