AZ Voting Law Challenge Gets En Banc Treatment

     (CN) — In a move that provoked strong words from judges of differing opinions, the Ninth Circuit voted Wednesday to rehear en banc a group of Democratic voters’ challenge to Arizona’s rules regulating who may collect early ballots from voters.     “The law at issue makes it a felony for most people to accept a ballot that a voter has filled out and deliver it to the appropriate polling place on the voter’s behalf,” Circuit Judge Stephen Reinhardt wrote for the majority. “It punishes the routine actions of many get-out-the-vote organizations and political campaigns.”     In a 2-1 decision on Oct. 28, a Ninth Circuit panel affirmed a federal judge’s decision against blocking an Arizona law that allows only designated individuals to collect early ballots: election officials, post carriers and family members.     Breaking the law is a class 6 felon and, Reinhardt wrote, can result in up to year in prison and a $150,000 fine.     On Wednesday, the same panel also affirmed 2-1 an Arizona law requiring in-person voters to vote in the precincts in which they are registered.     “That more minorities vote [out-of-precinct] than is reflective of their proportionate number in the electorate does not prove that the precinct vote rule denies or abridges their opportunity to learn of the locations of their precinct polling places or to get to them in time to vote,” Circuit Judge Carlos T. Bea wrote.     Even if there is a disproportionate hardship, Bea wrote, that hardship has been shown to be sufficiently linked to conditions that have socially or historically caused minority voters to be discriminated against.     “The [Dr. Allan] Lichtman report [that Feldman used as evidence] does not show how any historical racial discrimination caused more residential mobility or less access to transportation, which it claims are the background reasons for more minority voters than non-minority voters voting in the wrong precinct,” Bea said. “Accordingly, the district court did not clearly err in concluding that Feldman failed to prove that racial discrimination is a substantial cause of any socioeconomic disparities alleged to cause more out-of-precinct voting by minorities.”     On Friday, the Ninth Circuit voted to rehear that case en banc as well, though the order was not accompanied by any opinion.     Leslie Feldman, the named lead plaintiff in both cases, was joined by several parties including the Arizona Democratic Party, the Democratic National Committee, former Navajo Nation chairman and first president Peterson Zah and the Hillary Clinton and Bernie Sanders presidential campaigns.     As to the present case, they argued that the law violates the Voting Rights Act by disproportionately affecting minority voters who are more likely to require someone to collect their ballots for them. They also challenged the law on First and 14th Amendment grounds.     In the panel decision, Circuit Judge Sandra S. Ikuta wrote that the federal judge correctly found the voters were unlikely to succeed on the merits.     “[T]he district court held that Feldman failed to provide any quantitative or statistical data showing that H.B. 2023’s rule precluding the use of certain third-party ballot collectors had a disparate impact on minorities compared to the impact on non-minorities,” Ikuta wrote.     She also noted Feldman agreed that there was a lack of quantitative data supporting her group’s specific position. The voters pointed to data that rural communities are adversely affected by the law because of a lack of access to mail services, but the burden is the same on minorities and non-minorities living in rural areas, the panel found.     Ikuta said the constitutional challenges were also unlikely to succeed because the act of collecting votes is not expressive conduct protected by the First Amendment, and the added burden on voters does not outweigh the state’s interest in preventing voter fraud and the appearance of voter fraud.     Reinhardt, however, wrote in the decision to rehear the case that Arizona is one state of many that has enacted laws with the goal of limiting minorities’ opportunities to vote, using potential voter fraud as a pretext.     “Not one case of voter fraud has been cited to the district court or this court by Arizona when seeking to defend its indefensible and race-based statute,” he wrote. “I am confident that a majority of the members of the court do not support the panel majority’s view that the pretextual risk of voter fraud outweighs the significant burdens on the right to vote imposed by this unconscionable law.”     Circuit Judge Diarmuid O’Scannlain authored the dissent and had some choice words of his own.     “We have made a serious mistake by granting rehearing en banc,” he wrote. “Our court risks present chaos and future confusion in pursuit of an outcome the Supreme Court has explicitly told us to avoid. There are no good reasons — and many bad ones — to take this case en banc six days before the election on such a compressed schedule.”     O’Scannlain noted the unusual procedure with this vote and asked very simply, “Why the rush?”     Reinhardt said the rush is necessary to stop Arizona from affecting the upcoming election.     “If we conclude that we ought to do nothing while we still can because acting now might affect the very election that the challenged statute was enacted to distort, we would not only permit Arizona to frustrate the purposes of the Voting Rights Act and the Constitution, but also encourage other state legislatures to pass laws carefully timed to be effectively unreviewable in court and carefully designed to influence the outcome of specific elections,” he wrote.     He also noted that the en banc court, selected by lot, will be made up mostly of judges who did not want the case to be reheard en banc, and that even the en banc court may not represent the full court’s view.     However, “[I]t still has a better chance of representing the view of the court as a whole than does any panel of three,” he wrote. “If the en banc court does not reach the conclusion that I believe the full court would have reached, at the least it reflects a proper use of our en banc system.”     But O’Scannlain said early voting began in Arizona on October 12, and an en banc ruling has the potential to cause great chaos.     “Upsetting the apple cart 90 percent of the way through voting by issuing an injunction a couple of days before November 8 would fly in the face of Supreme Court guidance counseling against this exact type of last-minute interference,” he wrote. “The en banc court could render a decision in the next five days in hopes of enjoining Arizona’s law before Election Day and then deal with the consequences of its decision later. Or, it could take whatever time it deems necessary to gain a thorough mastery of the record, to hear oral argument from the parties, and to write a considered opinion in plenty of time for the next election.     “One hopes cooler heads prevail and this case receives the attention it deserves — but I fear instead a shoot-first, ask-questions-later approach that will haunt us for years to come.”

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Ninth Circuit Stirs Up|L.A. Storm Water Case

          PASADENA, Calif. (CN) — The Ninth Circuit on Monday reversed dismissal of environmental groups’ challenge to how Los Angeles County discharges polluted storm water, because the county has not made it “‘absolutely clear’ that no violation will occur in the future.”     The long-running dispute started in 2008, when the Natural Resources Defense Council claimed that L.A. County and its Flood Control District violated their 2001 National Pollutant Discharge Elimination System permit by discharging water that was more heavily polluted than allowed.     The county took out a new permit in 2012, which was more complicated, and included deadlines for achieving water quality in polluted areas. The county has begun setting up programs to cover all of its watershed areas and has obtained approval for some of them. So, the county argued, it was in compliance with the 2012 permit and the environmentalists’ requests for civil penalties and injunctive relief were moot. The district court agreed with the county regarding and dismissed.     The Ninth Circuit panel unanimously reversed on Monday.     “The plaintiffs’ claims for injunctive relief are not moot because the county defendants are still subject to receiving water limitations, which are substantially the same as the limitations in the 2001 permit,” Ninth Circuit Judge Milan D. Smith wrote. “Although the county defendants are significantly less likely to violate those limitations under the 2012 Permit, because of the delay and partial exemption afforded by the safe harbor of WMPs and EWMPs, it is not ‘absolutely clear’ that their violations will not recur.”     The county argued that the 2012 permit’s compliance requirements superseded those of the 2001 permit. But Judge Smith found that the baseline limitations are almost the same and the onus is on the county to maintain compliance.     “Because compliance is conditional on the success of these programs, the county defendants bear the burden of demonstrating that it is ‘absolutely clear’ the violations will not recur, either through the use of the safe harbor of the WMPs [watershed management programs] and EWMPs [enhanced watershed management programs] or through actual pollution reduction measures.”     The district court also agreed with the county’s argument that that there was no evidence that the county would not comply with the 2012 permit. But this erroneously shifted the burden of proof to the plaintiffs, to demonstrate that future violations would occur. The county did not provide evidence that continued compliance was likely, as since the safe harbor program may violate the Clean Water Act and the watershed management programs will be costly and complicated.     The 2012 permit created a safe harbor program that allowed permit-holders to “initiate, develop, revise, and implement a voluntary watershed management program … or enhanced watershed management program,” Smith wrote.     “Until the county defendants have finished the process of financing and implementing the WMPs, there is a significant likelihood that they will be subject to and violate the baseline receiving water limitations. Initiation of a reform process cannot, standing alone, make it ‘absolutely’ clear’ that the reformation will last.”     Steve Fleischli, the council’s water director and senior attorney praised the ruling.     “We’re pleased that the court has confirmed our right to seek injunctive relief,” Fleischli said. “I think it’s important that the country stick to their obligation to clean up their storm water pollution.”     Polluted storm water is a major problem in many urban areas, he said, where it can get into local rivers and lakes and harm wildlife. In Los Angeles, the polluted water is shunted into the oceans and has an adverse impact on the beaches, an area of great economic import to Southern California, making it all the more important for the county to fix this problem.     “The way we view that, the county has an obligation to do all that now, and they’ve been dragging their feet on that,” Fleischli said.     Aaron Colangelo, the council’s co-litigation director, argued the case.     Joining Smith on the panel were Ninth Circuit Judge Harry Pregerson and U.S. Senior District Judge H. Russel Holland, from the District of Alaska, sitting by designation.     Joining the Natural Resources Defense Council as plaintiff/appellant is Santa Monica Baykeeper.

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Ninth Circuit Affirms Attorney’s Convictions

     PASADENA, Calif. (CN) — The Ninth Circuit upheld 16 of a former Los Angeles attorney’s 17 convictions, and a restitution order, for scamming investors into thinking they were investing in a movie.     Samuel Braslau was convicted of 11 counts of mail fraud, five counts of wire fraud and one count of making false statements to an SEC attorney.     Braslau and his cohorts Rand J. Chortkoff, Robert Matias and Stuart Rawitt raised $1.8 million for a film called “The Smuggler,” the SEC said in its February 2014 lawsuit against the men.     Chortkoff and Rawitt were securities recidivists and Braslau oversaw the scam, the SEC said when the men were arrested. Federal prosecutors announced parallel criminal charges after the arrests.     The Ninth Circuit’s Oct. 27 ruling involved only Braslau.     Braslau and Chortkoff hired “surveyors” to cold-call people and claim to be doing marketing research for film companies that were seeking investors. After sending sales pitches through the mail, Matias and Rawitt tried to close the deal. But the SEC said the movie was never made, and “probably never could have been made,” as the defendants basically just took the money and kept it.     Braslau was convicted and sentenced to 87 months in prison and ordered to pay $1.6 million in restitution.     In a unanimous, unpublished opinion on Thursday, the Ninth Circuit panel upheld all but one of Braslau’s convictions. The evidence was sufficient to convict and the jury instructions properly covered his defense theory.     Braslau claimed that the court constructively amended the indictment because it did not instruct the jury that his scheme started sometime around December 2010.     But the evidence presented “did not broaden the relevant time period” and the sixth paragraph of the indictment included information about the relevant dates, the Ninth Circuit ruled.     “The jury also was told: ‘You are here only to determine whether or not the defendant is guilty or not guilty of the crimes in the indictment. Defendants are not on trial for any other conduct or offense not charged in the indictment,’” the panel wrote. “We conclude no constructive amendment occurred.”     The restitution order was proper and properly calculated based on evidence in the record. Sixty-two victims lost $1,618,697, according to the presentence report, and an FBI agent testified that 68 investors lost $1,715,272     “There was also evidence that all investors received sales literature, including a private placement memorandum, that contained, among other things, false representations concerning what percentage of investor money would be used for film production expenses,” the panel wrote.     The panel overturned only Count 20, a wire fraud charge involving a supposed telephone call between Matias and a victim. The government conceded that the evidence was insufficient on that charge. In light of this, the case will be remanded to the district court for resentencing.     Davina Chen, who represented Braslau on appeal, could not be reached for comment. Attorneys with the U.S. Attorney’s Office declined comment.     The panel consisted of Ninth Circuit Judges Dorothy Wright Nelson and Richard Paez and Senior District Judge Elaine Bucklo, from the Northern District of Illinois, sitting by designation.

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Five Years for Lasering a Helicopter Affirmed

          PASADENA, Calif. (CN) — A California man will have to spend five years in federal prison for pointing a powerful laser at helicopters, after the Ninth Circuit affirmed his sentence.     Sergio Patrick Rodriguez, now 28, of Clovis, was sentenced at trial to 14 years in prison, but the Ninth Circuit reduced that to 5 years in June 2015. On Oct. 17 it upheld the 5-year sentence.     Rodriguez showed off his laser pointer to his girlfriend and her children in 2012. Federal prosecutors said the pointer was 13 times more powerful than a legal handheld laser, and that Rodriguez shined it into the cockpit of a medical transport helicopter 1,100 feet in the air, and into police helicopters.     A federal jury in December convicted Rodriguez of aiming a laser pointer at an aircraft and another count of intentionally aiming a laser pointer at an aircraft to try to interfere with its safe flight. He was sentenced to 5 years on the first charge and 14 years on the other one.     The Ninth Circuit overturned the 14-year sentence on appeal, finding insufficient evidence that Rodriguez wanted to bring down the helicopter or understood how dangerous his actions were.     “Rather, the evidence showed that he was attempting to see how far his laser would go at night – a stupid thing to do, yes, but there is no evidence that he was trying to interfere with the pilot,” Ninth Circuit Judge Barry Silverman wrote for the three-judge panel in June 2105.     But Silverman added that the conviction for pointing the laser at a helicopter in flight “is designed for knuckleheads like him.”     That panel Circuit remanded the other conviction for resentencing, even though Rodriguez did not appeal it. The district court resentenced him to 5 years and Rodriguez appealed. This time he lost.     In its unpublished, unanimous opinion, the panel found the sentence reasonable based on a number of aggravating circumstances, even though the advisory guidelines call for a sentence of 21 to 27 months.     “[T]he district judge reasonably found that Rodriguez’s offense involved ‘a dangerous, dangerous circumstance,’” the panel wrote. “[A]iming the laser pointer at the helicopter just once would have been sufficient for a § 39A offense […] but Rodriguez increased the dangerousness of the offense by striking the helicopter six or seven times.”     Other aggravating factors included Rodriguez’s involving minor children and having a criminal history, including gang involvement. He was on probation when he committed his crime.     Rodriguez argued that his sentence is unreasonable compared to sentences given to other section 39A violators, including his girlfriend. Jennifer Coleman, now 25, was sentenced in 2014 to 2 years in prison. She was tried with Rodriguez.     Coleman’s sentence was revoked and she got five years’ probation instead.     The Ninth Circuit, however, ruled that Rodriguez failed to identify any other offender who had struck an aircraft so many times or who had so extensive a criminal history. And the facts suggest Rodriguez was more culpable than his girlfriend.     “The court reasonably concluded that Rodriguez’s co-defendant, who was his co-habitant, was dominated by Rodriguez, so that her circumstances were distinguishable,” the three-judge panel wrote.          “Obviously, I didn’t agree with the sentence. It’s really difficult to challenge a sentence,” said Carolyn Phillips, Rodriguez’s attorney. “Disappointing, but I think ultimately the original appeal was the happy moment in this case.”     U.S. Attorney Karen Escobar called the ruling “a substantively reasonable decision,” adding, “[The opinion] gave adequate rationale for why the court was affirming the defendant’s sentence.”     The panel that affirmed the 5-year sentence consisted of Ninth Circuit Judges Susan Graber and Mary Murguia and Senior District Judge Mark Bennett, from the Northern District of Iowa, sitting by designation.

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Ninth Circuit Remands Lawyers’ Contempt Ruling

     PASADENA, Calif. (CN) — The Ninth Circuit Wednesday reversed and remanded a contempt ruling from Los Angeles against law firms the Consumer Protection Financial Bureau accused of perpetuating Morgan Drexen’s illegal debt collections.     In 2010, Costa Mesa-based Morgan Drexen, debt consolidators, began facing state and federal investigations of charging illegal upfront fees and failing to provide the bankruptcy services it sold. It was enjoined from this in June 2015 and went bankrupt.     Some attorneys, however, allegedly tried to keep collecting money from consumers. The U.S. District Court found them in contempt of the injunction against Morgan Drexen. They were Vincent Howard, Lawrence Williamson, Howard Law P.C., The Williamson Law Firm LLC, and Williamson & Howard LLP.     But on Wednesday a Ninth Circuit panel found that the district court failed to demonstrate that the attorneys were bound to the injunction as nonparties.     The district court’s July 2015 clarification order suggests the attorneys actively participated with Morgan Drexen in the scheme. The contempt order repeats this finding, but adds that the attorneys “became a disguised continuance of Morgan Drexen.”     “The problem with relying on a successor theory here, however, is that the Permanent Injunction did not expressly bind ‘successors,’” the panel wrote. “Moreover, the record in its current iteration does not support a finding that the [a]ttorneys acquired Morgan Drexen’s assets after the Permanent Injunction was entered […] and even if they did so, the Permanent Injunction failed to provide notice that ‘successors’ would be bound.”     If the district court is to hold the attorneys in contempt, then it will have to hold an evidentiary hearing and determine that the attorneys were bound to the injunction and that they violated it.     The unsigned, unpublished reversal and remand came from Ninth Circuit Judges Stephen Reinhardt, Kim McLane Wardlaw and John Owens.

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