State of Arizona v. William Dale Manypenny

KENNEDY, Circuit Before CHOY HALL,* Judge. District Judges, and CHOY, Judge: Circuit brought crimi- of Arizona State against Manypenny, a bor- prosecution nal Immi- patrolman der of the United States gration and Naturalization Service. Manypenny with assault with charged State of Arizona deadly weapon in violation 13-249(A) (B). law. & On Ariz.Rev.Stat. § motion, case was removed Manypenny’s court. See 1442(a)(1).1 trial, returned a verdict of After moved for arrest guilty. Manypenny then or, alternatively, for a new 33, 34. The court trial. Fed.R.Crim.P. granted the Rule 34 motion for arrest Thereafter, judgment. moved for grant reconsideration of the of the Rule 34 granted motion. The court the motion reconsideration, but no action was taken for year. September Manypenny On moved hearing for a to determine the status of the pending hearing State’s motion. The later, September days held on 26. Two previous district court reversed its order * Hall, embracing place district and division Senior The Honorable Peirson M. Judge pending: District for the Central District of wherein it is California, (1) Any sitting by designation. any officer of the United States or thereof, agency any person acting or him, any or act under color of such office 1442(a)(1) provides: 28 U.S.C. § authority any right, on account of title or A civil action or criminal com- Congress for the claimed under Act of against any menced State court apprehension punishment criminals or following persons may removed them to the collection of the revenue. States for the district court of the United provisions of this section shall be judgment. The court construed arresting pur- 34 motion to be a motion its Manypenny’s Rule to effectuate liberally construed acquittal under Fed.R. poses. 29(c), the motion for ac granted Crim.P. added.) (Emphasis quittal, jury’s verdict and held set aside Court has stat While guilty. Many Arizona v. Manypenny “intended to ed that 3731 was remove all § (D.Ariz.1977).2 penny, F.Supp. 445 1123 appeals to statutory barriers Government appeals rulings. The from these appeals and to allow whenever the Consti jurisdiction We find that we are without to permit,” United v. Mar tution States appeal. entertain such an We therefore Co., 568, 430 Supply tin Linen U.S. at 97 appeal. dismiss the 1353, quoting at United v. Wil S.Ct. States prosecu It is well-settled that 337, son, 1013, 420 at 95 S.Ct. it is U.S. appeal tion has no to an adverse deci manifest 3731 is limited its own § statutory sion absent some authorization. appeals by the terms to United States as a Supply v. Martin Linen See United States prosecuting entity. The statute authorizes Co., 564, 568, 1349, 51 430 U.S. States,” appeal by “an the United not an (1977); L.Ed.2d 642 v. Wil United States appeal by by “any a state or of the United son, 332, 336, 1013, 95 43 420 S.Ct. U.S. stated, previously As we have States.” (1975); v. United States San “ language of a statute is the best and ‘[t]he 609, ges, 310, 312, 318-23, 144 12 U.S. S.Ct. meaning, most reliable index of its (1892).3 The 36 L.Ed. 445 State contends language unequivo where the is clear and appeal in this may it ” cal it is determinative of it construction.’ 3731, case under 18 the Criminal U.S.C. § 152, Califano, (9th 597 F.2d 155 v. Smith Appeals Act. 1979), quoting Lodge Monte Vista Cir. provides part: 3731 Section Co., Guardian Life Insurance appeal by the In a criminal case an denied, 390 1967), 128 cert. U.S. Cir. ap- to a court of shall lie United States (1968). 88 19 L.Ed.2d 1142 S.Ct. decision, judgment, or order peals from a dismissing an indict- interpret- of a district court We note that no court has ever ment or as to one or providing appeals by information ed 3731 as § counts, except more that no shall 1442(a)(1) prosecution. state in a More- § lie where the double clause of over, history provision of this legislative prohibits the United States Constitution predecessors makes it clear that and its prosecution. further appeals Congress only was concerned with

by the federal Government.4 Sanges, ordering 144 that its reason for U.S. The court stated 318, 322-23, Manypenny’s acquittal that he was entitled 36 L.Ed. 445 principle immunity announced in expressly giving to under the A statute the state a to Neagle, In re 55 (9th 34 L.Ed. required. in a criminal case is Section Cox, See 549 722 Clifton F.2d § 1291is not such a statute. Neither does 1291 immunity defense had not allow us to refer to state law to determine However, been raised at trial. the district not whether or the state has a failing court concluded that had erred in it See discussion of state law infra. sponte sua instruct the on such a defense. legislative history 4. Nowhere in the of the vari- dissent, appeals appear Kennedy suggests Judge ous criminal Congress acts does it his may appeals this court have over the state’s addressed or even considered judg- prosecutions § under 28 U.S.C. the final the state state before the disagree. S.Rep. ment rule. We federal courts under 1442. See No. No. § 1296, 1768, Cong., (1970); H.R.Rep. gen- 91st 2d Sess. Supreme has twice held that Cong.Rec. Cong., sufficiently appeals provisions 91st 2d Sess. eral plicit are not ex- 12, 1907). (Feb. 1907), (Feb. 2190-97 2744-63 to overcome the common-law rule that may reports of such and debate on the issue the state not an adverse decision Wilson, only Congress acts indicate that was concerned criminal case. United States v. U.S. with the federal Government S.Ct. 468-72, J., (Jackson, at We U.S. expressed by share the concerns S.Ct. Judge poli- that the Kennedy concurring); his dissent Board Commissioners v. cy designed “prevent which is at United U.S. S.Ct. rulings from thwart- 285; Crain, erroneous trial United 589 F.2d at States v. ing equally applica- prosecutions,” lawful 999-1000, adoption law in of state this ease prose- ble to and federal prosecutions state As previously does not aid the case. State’s cutions, allowing not and that noted, may appeal in cases to the federal courts un- removed authorized statute. where to do so der has a substantial effect on Co., Supply Linen United States v. Martin system. of our delicate balance 1349; at S.Ct. However, cannot we rewrite 3731 for Wilson, States Congress. As Court has 1013; Sanges, warned: 312, 318-23, 12 Adoption of state S.Ct. 609. “is not an empty statute vessel into [A] law as the federal meet this rule would pour which this is free a vintage Court to authorization, statutory for requirement that we present day think better suits be such a “common a federal rule would Sisson, tastes.” v. 399 United States U.S. rule, upon a state stat law” even if based 267, 297, 2117, 2133, 26 L.Ed. 608 Crain, v. ute. See United States (1970). Considerations of this kind are 998-1000; Best, 573 at United States for Congress, not the courts. 1978). 1095, (9th F.2d 1101 Cir. Marketing National Broiler Association v. conclusion, Congress only In can autho- States, 816, 2122, United 436 98 U.S. S.Ct. 1442(a)(1) appeal by rize an a state § 56 (1978), quoted in Smith v. far, prosecution. Congress criminal Thus Califano, 597 F.2d at 158. Therefore, seen has not fit to do so. we can Neither we look to state law jurisdiction hold we are without to as providing Arizona with a to this appeal. entertain A this case. case before the federal APPEAL DISMISSED. courts under is one within the § judicial States, power of the United it KENNEDY, Judge, Circuit dissenting: arises under federal law. Tennessee See respectfully the majority’s dissent from Davis, 257, 262-65, 100 25 L.Ed. 648 U.S. conclusion that we are without law, arising In a under federal case to entertain law, law, federal rather than state controls. D’Oench, FDIC, Duhme & Co. v. 315 sources of possible are two There 447, 456, U.S. 86 L.Ed. 956 tion, 28 U.S.C. 18 U.S.C. 3731 and (1942); Greaney, Deitrick v. 309 U.S. respect the majority With to section 200-01, (1940); 84 L.Ed. 694 must be concludes that the section confined Board County Commissioners United is a United This reasonable States. 343, 349-53, 60 84 S.Ct. has textual validi- position certainly and it L.Ed. Crain, 313 ignore while a cannot ty. But 589 F.2d 998 statute, of the Court language dangers against ap- While in of an certain cases the has warned “the Federal courts may adopt law, proach statutory state law as to construction con- see Mills, Textile Workers Union v. words of a statute Lincoln 353 to the bare fines itself 448, U.S. 77 may strangle S.Ct. 1 L.Ed.2d 972 ‘literalness ” D’Oench, FDIC, Overholser, Duhme & meaning.’ Co. v. 315 369 Lynch v. S.Rep. Congress unconstitutional), (re- in criminal cases. See No. acts 2, 5, 18; 21; H.R.Rep. (the Spooner) No. 1768 marks of Sen. United States Cong.Rec. (remarks Hale) (con- at 2190 of Sen. should have the same to in federal rights many cerned with of the Govern- “General criminal cases as the states in their do ment”), Bacon) (remarks (con- courts). of Sen. own cerned with lower court determinations is, tion, 705, 710, general grant S.Ct. L.Ed.2d Porter, (1962) Junk (quoting Utah Co. v. jurisdiction under 1291. In 90 L.Ed. S.Ct. Sanges, States (1946)). that no ever It is true court has Su- interpreted providing 3731 as preme held that Court state; we by a the other hand case a criminal without cannot is, holding find no the contrary. to This express congressional authorization. The apparently, impression. a case of first surveyed English Court both and American legislative Congress history reveals that precedent concluded the set- simply the question never considered before practice tled that the state could not Congress us. I conclude that did not intend except in appeal criminal cases accordance completely prohibited state to be from with statutes. express then con- appealing in a removed prosecu- criminal cluded: tion. My majority’s ap- concern with the In none provisions act, of this proach is well producing that as as defining appellate jurisdiction, either result, it anomalous creates dif- serious and court, of this or of the circuit court of ficult problems of federalism. effect appeals, is there any indication of an in- majority opinion through holds that remov- to upon tention confer the United States al, deprived juris- a state cannot bring up a criminal case of courts, try diction to in its own it can case any grade after below in favor deprived also be completely impossible pre- of the defendant. It is appeal that have existed state under sume intention of part congress an on the law. to make so far-reaching serious and Act, original Appeals The Criminal 34 in jurisprudence innovation the criminal (1907), subject Stat. 1246 was the of extend- of the United States. ed congressional debate. See States Sisson, 293-96, 399 90 S.Ct. Id. 12 S.Ct. at 613-614. (1970). Upon L.Ed.2d its en- instructive, Sanges While is neither it nor actment, government appeals were limited any other case has that there held must be to category a narrow of cases. Act The express congressional in authorization order permit appeals amended in 1971to all appeal for to a state court. that can be consistently maintained with English The and American rule law Constitution, the and thus the amendment requires statutory which authorization be- statutory all barriers to Govern- “remove[d] fore the can is rooted in ment appeals.” Wilson, the sovereign given concern that a not be 1013, 1019, 420 U.S. the uncontrolled prolong to criminal The new Act contains a proceedings against subject jur- those to its provision that liberally it shall be construed. 315-16,12 isdiction. See id. at S.Ct. at U.S.C. 3731. The statutory scheme is designed Except concern, prevent to for this there is nothing erroneous trial rulings thwarting peculiar from prosecutions. lawful pre- to criminal that That policy applies equal with ap- force to being appealed vents general its under a peals in those in which cases the is the grant appellate jurisdiction, of and this is prosecuting entity under the removal stat- regardless identity true pre- the of the ute. In view of the sensitive nature of vailing party at trial. By enactment of 18 state-federal relations in section U.S.C. 3731 the of the Government Unit- cases, removal I do not believe Con- ed has its determined that interests gress deprive intended to states of by appeals, are well served criminal to rights given the of its citizens are Even if agrees adequate protection by one with the double majority’s the interpretation of the there re- clause. rule purposes Given re- mains possible another jurisdic- quiring source of special authority ap- for criminal involved. The federal federal officers are appropriate neither nor neces-

peals, it was authority Congress speak sary for provide a fair trial policies at stake —to represent separate prosecutors who officers, free from local bias— government sovereign initiating criminal state as altering instances by are not furthered solely prerog- charges. question That is may be secured appellate review Arizona, and the ative of the State Further, following the state by the state. appeals in cases such as the one allows policies. no other federal rule would violate authorization should before us. State’s the federal workload of example, For gen- permit suffice to forum, courts, the federal integrity of by 28 appellate granted eral complying with state difficulty of and the U.S.C. § here. rules are not involved jur- us Construing giving section 1291 as as sub- If one views the appeal by a state where isdiction to hear an stantive, consistent with the completely it is explicitly provided such are actions to look general scheme in removal pur- inconsistent with the state law is not Advisory As the Act, Rules of Decision Rules governs In Erie and the Rules of Decision Act: Act, Enabling Dilemma, Appropriate which U.S.C. Search Harv.L. analysis (1977) the in (disagreeing choice of law such Rev. 356 ancing on whether bal- Advisory poli- on importance actions. Cf. Notes of Rules, Committee federal the of state and 54(b)(1) (in section appropriate deciding Fed.R.Crim.P. whether state or cies is in cases, diversity Federal removal “the law be followed in federal cases). should State, applies but the substantive law of the procedure”). Erie line supporting follows Federal of policies What are the state the cases, however, by analogy, would be useful may appeal? determination of when the state Finality say question if we were to in is a principal purposes the repose and are the substantive one and further that well, conclude Con- suppose, as I as a desire to correct the gress by prescribed has a federal stan- statute proceed- lower court more serious errors ings. the point dard which overrides the state rule on a support state These considerations also bearing upon which has no the federal interests regarding of limitations decisions res the Erie statute case, (interests issues, such as the defense of im- judicata questions. Both of these munity providing context, a neutral forum for the of have been held matters officers), trial of federal then we would be Moreover, Mexico state law. cases have held the substantive Arizona and New sensitive, exercising federal to be new, perhaps Accordingly, dimension. I think question. Birmingham, 96 State v. cases, adopting general the Erie line of dis- (1964); In re Mari- Ariz. 392 P.2d procedural JS-834, tinction between substantive and rights, copa County Juvenile Action No. ques- help of law Ariz.App. would resolve a choice 549 P.2d 583-84 in this case. tion as to the Alco- Durand v. New Mexico Comm’n on holism, (Ct.App. 89 N.M. 553 P.2d in a crimi- The Government’s substantive, as nal case could be characterized course, appeals parts jurisdiction may stat- particular of state afford to the Of some since a by might compliance against multiple the greater protection utes federal court with all their be framed so defendant trials than is provisions required by would be the minimum dictates (e. g., specifying jeopardy impossible district or which clause. of the fifth amendment double explored problem the other state, 1441(a)(1) re- raised this Committee cases, apply the However, case, “the Federal Courts moval case. the having examined State, but follow substantive law of I conclude not there Advisory procedure.” Federal Notes of tion, judgment ought but to be Rules, 54(b)(1). Fed.R.Crim.P. Committee on reversed. Having proposed two alternative bases I turn first to a consideration of whether jurisdiction, under some cir- I realize that ruling favorable to the appellate cumstances, specifically where the state has put jeopardy the defendant twice in would state, appeals by the it will provided law, barring thus as a matter of federal theory is make a difference which relied on. argument I think the must appeal.4 case, however, In this I need not decide against resolved the defendant based on a between the theories because I conclude previous decision of court and more provide appeals that Arizona does Supreme recent decisions of the Court of the state. The entry judg- United States. of a Superior ex State rel. Dawson acquittal, jury ment of after has re- Court, 112 Ariz. 538 P.2d 397 guilty, may turned a verdict be set aside granted ap- Court of Arizona offending principle review without certiorari, pellate review, by see Ariz.Rev. against placing in jeopar- a defendant twice a trial court order Stat. set- dy because jury verdict can be reinstat- ting guilty, aside a verdict of followed ed, obviating the need for a second trial. by entry acquittal.2 of a After In this case there was also a motion for new court, trial remanding once the Ari- trial that was not denied or otherwise ruled Appeals zona Court of reviewed the ease on upon by the trial court. It should be again the merits and confirmed the state’s pending upon granted, deemed remand. If authority to seek review of a trial court’s proceedings, there would be further but entry acquittal. State v. only because the has defendant asked for Allen, Ariz.App. 557 P.2d 176 them. This similarly outcome does not vio- conclude, therefore, that even if state law late the double clause. The rea- controlling, were to be it would not bar sons for these conclusions follow. Arizona’s in this case.3 majority contrary squarely Because the reaches a Our circuit has held that where issue, conclusion on this first it has not a jury has returned a verdict and the trial jurisdiction, whether the lower intermediate court of is the court lacked proper hearing appeal). permits forum for For statute also review to determine questions, procedure these law and whether a lower its discretion. court abused question See, control. But as to the basic g., Superior e. State ex rel. Dawson v. review, whether Court, state can secure 112 Ariz. 538 P.2d 397 state law can be accommodated the federal Court, Superior ex rel. Ronan v. 95 Ariz. system. (1964) (“[A] may 390 P.2d 109 writ of certiorari discretion”); be used to review abuse of Jones quite possible 2. It is that Arizona courts would Plascencia, 253, Lopez Ariz.App. v. 458 P.2d permit appeal the state to in this case under 13-4032(5), permits Ariz.Rev.Stat. the § appeal state to from order made after “[a]n judgment affecting rights appeal falling the substantial [the] If is this viewed as 24.2; question of the state.” jeopardy See Ariz.R.Crim.P. Rules 3731 then § the of double is 22(c)(3); of the jurisdictional provides Court of Ariz. State v. because Birmingham, (1964) 96 Ariz. 392 P.2d 775 jeop- that “no shall lie the where double (“order” “judgment” synonymous are as ardy clause of the United States Constitution statute, used in civil the Ariz.Rev.Stat. prohibits prosecution.” If further 12-2101); Allen, State v. 557 P.2d at 182-83. by is found virtue of 1291 then the double Even if no of existed under reached, jeopardy though issue still must be 13-4032, however, appellate appro- review is technically presence jeopardy the of double is a priate under the certiorari statute. trial, juris- constitutional bar to a second not a dictional defect although 3. Arizona courts have held that the speaks certiorari statute of review to determine ly again, by must be tried reason of the judge subsequently grants a motion for ac- quittal 29(c), appeal, under Rule assigned prosecution’s errors on the may appeal judgment, jury and the reinstate. because there is no verdict to violating inapposite verdict can be reinstated without to the Those considerations are jeopardy the double clause. United States case, has been a instant where there Rojas, 554 F.2d 938 prose- if the verdict which can be reinstated Rojas case was decided before a series of accepted. The foot- arguments cution’s are cases, Supreme Court United States controlling, is quoted note above from Scott Scott, 437 U.S. 98 S.Ct. 57 L.Ed.2d Rojas as is our decision. States, v. United Sanabria judgment Our reversal of the trial court’s acquittal result in reinstatement would States, Burks v. United 437 U.S. verdict, subject guilty to the defend- (1978), L.Ed.2d and it must be ant’s motion for new trial. The defendant decided, therefore, whether those cases originally in the alternative for an moved Rojas. they overruled I conclude did not. judgment trial. arresting order or a new Scott, United States the court ad- granted the motion Since the district problem dressed in footnote 7 the we face. new judgment, to arrest the motion for a Referring to its earlier decision in United trial If trial court’s became moot. Jenkins, States v. reversed, judgment were that motion would 43 L.Ed.2d 250 stat- longer passed no be be on moot should ed: Thus, by the a second trial district court. In Jenkins we had judg- assumed that a so, might appropriate be in this case. If acquittal ment of appealed could be however, it would not be ordered as a result where no retrial would be needed on re- assigned by prosecution’s of the errors mand: reversing or a result of our as principle “When this applied is judgment acquittal. cause for situation the jury where returns a verdict trial, granted, new if one were be guilt but the trial court thereafter defendant’s motion for new trial. Where judgment

enters a acquittal an granted request the new trial is at the permitted. In that situation conclu- defendant, has been no bad and there sion judg- court that the prosecutor, judge faith conduct acquittal ment improper does not jeopardy there is bar. United no double require a criminal defendant to submit to Dinitz, trial; a second error can corrected 1075, Here the de- entry on remand of a might pursue fendant still the motion for a the verdict.” 420 U.S. at S.Ct. at trial, based, new apparently, on his desire to Despite heavy empha- the Court’s might raise the Clifton defense. That be a acquittal sis on the finality of an in Mar- proper request, but since it would be at his tin Linen and Sanabria v. United instance double concerns are not explicitly . neither repu- decision implicated. assumption. diates this I turn now to the merits of the district 2194^2195, S.Ct. at n. 7 matter, ruling. court’s As an initial (citation omitted). analysis This is consist- argues judge that the lacked ent with the result our court reached in tion to enter acquittal be- Rojas. cause, contrary requirements of Rule The language 29(c), defendant focuses on proper defendant failed to file a Sanabria, emphasizing the differences be- days motion within seven of the verdict. acquittals tween and dismissals of the in- At least two circuits have held that unless a dictment. The acquittals filed, reference to in timely judge juris- motion is lacks case, however, the Sanabria is directed to diction judgment acquittal. to enter a Johnson, the instance in which a defendant necessari- United 487 F.2d States v. denied, Cir.), right of (5th cert. other to the the trail. All three of powder S.Ct. Rowlette smell them had the of fresh on Cir. explanation them. The defendant had no Homer, also United States v. being together. for the so shells close He F.Supp. (W.D.Pa.), aff’d on testified that the accidental shots were (3rd grounds, 1976), other 545 F.2d 864 addition, apart. fired about feet fifteen denied, cert. originally he denied that victim had The defendant did file been shot. he different Later told versions judgment motions for arrest and a what happened, point stating at one that prescribed new trial within the time limits victim, he meant shoot in front of 29(c) having Rules and 34. court stating that he and other times shot the case, I think retained over it intentionally man he because was uncertain entry judg had discretion to consider aof partner whether his was safe. Finally, motion, acquittal ment of on its own where defendant testified that suspected when a it was convinced there had been funda illegal border, alien runs back towards the instructions, mental error its Fed.R. doing, as the victim was is proce- it normal Crim.P. 2. go. gave dure to let him He no explanation further, however, I why conclude that trial practice that was not followed in this granting its misused discretion case. acquittal. ruling The court’s remand, On the district court would have was premise based that the evidence the defendant’s motion for a new be- trial was insufficient to overcome a defense of express opinion fore it. I no on the proprie- Cox, immunity supra. Clifton ty granting this it largely motion as rests immunity defense of was not raised ar- with the trial court’s I note discretion. do gued at at all trial. The defendant had the that Clifton not a new did create defense. raising immunity burden of as an affirma- The immunity defense for federal officers tive defense but did not do that. Given the Neagle, has been in existence In re since evidence, confused I which dis- L.Ed. 55 below, cuss may further have been a Clifton reaffirmed the existence of federal strategy. trial deliberate In these circum- immunity. officer stances the Government cannot be faulted hold this court has prove failing grounds for immu- tion and reverse remand. nity present. were It makes no sense to apply insufficiency a test of of the evidence pertain- a defense not raised trial and

ing subject to a Government did most, open.

not have the duty to At

defendant entitled to a new so trial

he may advantage have the of the Clifton preparing

case in his defense. WILLIAMS, Plaintiff-Appellant, J. D. Moreover, I think the evidence introduced may permitted the first trial have SCISSON, INC., FENIX & reasonable inference that the defendant Defendant-Appellee. executing faith, was not duties in good his No. 76-1452. acquit- and therefore that the tal improper. theory The defendant’s Appeals, States Court of gun was that his went off by twice accident Ninth Circuit. coincidentally hit victim at a dis- Sept. tance 120feet. victim was hit multiple back by pellets from at least two twelve-gauge

shells. shotgun Three shells eight

were found within inches of one an- in cases where to state law.1 Notes pose allowing removal Appeals analysis See the debates on the first Criminal 1. The of whether the Act, Sisson, procedural governed, 399 608 discussed in United States v. substantive or strict is not sense, principles Erie U.S. (1970). 26 L.Ed.2d R.R. hand, Tompkins, it cannot be doubt- 304 U.S. 82 L.Ed. On the other see, assigning (1938), progeny, g., Congress and its Hanna has an interest e. ed the between federal trial and courts which Plumer, questions responsibility ruling of law 380 U.S. courts, L.Ed.2d 8 court because of in federal for this case is not diversity jurisdiction. operate con- under different state, instant case concerns the actions of an officer in his federal straints than do concerns seem to be making and such those of a capacity procedural stat- in nature. the removal ute, 1442(a)(1), substantive-procedural Congress made determina- has tion, balancing impor- implicit suits are ones would think that declaration such implicat- arising policies under the laws of United States. tance of the state and federal (9 Wheat.) significant inquiry. Osbom v. be a in the ed would factor Davis, Erie, Ely, Irrepressible Myth L.Ed. 738 Tennessee Cf. There is no L.Ed. Harv.L.Rev. Phillips, 717 n. 130 Redish &

Case Details

Case Name: State of Arizona v. William Dale Manypenny

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 13, 1979

Citation: 608 F.2d 1197

Docket Number: 77-3453

Court Abbreviation: 9th Cir.