2)  ENVIRONMENTAL LAW:  Churchill County v. Norton, 00-15967 (9th Cir. Dec. 19, 2001).  The U.S. Fish and Wildlife Service did not act arbitrarily when it decided not to undertake a programmatic Environmental Impact Statement for a large federal water allocation program, where the agency had taken a "hard look" at the issue, and its goal was not to minimize the possible cumulative environmental impact by segmenting the different components of the program;  concurring in the result reached by the majority, Judge Sneed thought that a comprehensive cumulative impact study, while not legally required, was nevertheless necessary given the limited water supply;  otherwise, he thought that repetitive and contentious disagreements over the use of the water to satisfy various rights, wants, and demands were sure to continue.  Sneed (concurring), Graber, and Paez (author), Circuit Judges.  A. Rossmann of San Francisco, CA, for the plaintiffs-appellants;  K. Kovacs of Washington, DC, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  ENVIRONMENTAL LAW:  Arizona Cattle Growers' Association v. U.S. Fish & Wildlife, 99-16102 (9th Cir. Dec. 17, 2001).  The Fish & Wildlife Service acts in an arbitrary and capricious manner in issuing an Incidental Take Statement imposing terms and conditions on land use permits where there is no evidence that an endangered species exists on the land in question or no evidence that a take would occur if the permits were issues.  Noonan, McKeown, and Wardlaw (author), Circuit Judges.  M. Thurston of Washington, DC, for the defendants;  N. James of Phoenix, AZ, for the plaintiffs.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  ENVIRONMENTAL LAW:  USA v. Willfong, 00-10227 (9th Cir. Dec. 21, 2001).  The defendant's refusal to stop his logging operations on Forest Service land, after a law enforcement officer ordered him to do so at the behest of a Forest Service representative authorized to shut down the logging operation, constitutes "interfering" with an officer engaged in the performance of his official duties, under 36 CFR Sec. 261.3(a);  the USCA declined to read Sec. 261.3(a) to require that force be used to interfere with an officer's duties;  dissenting, Judge Noonan thought that "interference" requires some kind of action and that failing to obey is not interference.  Noonan (dissenting) and Silverman (author), Circuit Judges, and Sedwick, District Judge.  K. Bareilles of Eureka, CA, for the defen-dant;  AUSA M. Rodriguez of Sacramento, CA, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

5)  ENVIRONMENTAL LAW:  USA v. Pearson, 00-30086 (9th Cir. Dec. 18, 2001).  Under the criminal penalty provisions of the Clean Air Act, 42 USC Secs. 7412(f)(4) and (h), and 7413(c)(1), a supervisor may be excluded from the definition of a "person," and treated as an employee who cannot be criminally liable except in the case of knowing and willful violations.  McKeown, W. Fletcher, and Rawlinson (author), Circuit Judges.  D. Adler of Seattle, WA, for the defendant;  AUSA H. Brunner of Seattle, WA, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

6)  ARBITRATION:  Bradley v. Harris Research, Inc., 00-16021 (9th Cir. Dec. 28, 2001).  The Federal Arbitration Act preempts California Business and Professions Code Sec. 20040.5, which voids provisions in a franchise agreement involving a franchise businesses operating within California that restricts venue to forums outside California.  Noonan, Hawkins, and Tashima (author), Circuit Judges.  T. Houpt of Salt Lake City, UT, for the defendant-appellant;  J. Gorman of San Jose, CA, for the plaintiffs-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

7)  TAXATION:  Phillips v. CIR, 00-70850 (9th Cir. Dec. 4, 2001).  A criminal tax investigation of a statutory Tax Matters Partner ("TMP") does not automatically end the TMP's power to act for a partnership.  Noonan (author), Hawkins, and Tashima, Circuit Judges.  C. Berner of Larkspur, CA, for the petitioners;  J. Dudeck of Washington, DC, for the respondent.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

 8)  BANKRUPTCY:  In re The Circle K Corp., 00-15361 (9th Cir. Dec. 5, 2001).  Unless the retention application of a professional employed in the course of a Chapter 11 bankruptcy proceeding unambiguously specifies that it seeks approval under 11 USC Sec. 328, it is subject to review under 11 USC Sec. 330.  Politz, W. Fletcher, and Fisher (author), Circuit Judges.  C. Bayley and L. Schmig of Phoenix, AZ for the appellant;  T. Salerno of Phoenix, AZ, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

9)  INSURANCE:  Twohey v. Lincoln National Life Ins. Co., 00-16514 (9th Cir. Dec. 5, 2001).  On an issue of first impression, the USCA held that California Ins. Code Sec. 10369.6, which gives insurers the option to offset disability payments against benefits paid under another insurance policy where the insured has duplicate coverage, does not apply to group disability insurance.  Goodwin (author), Wallace, and Thomas, Circuit Judges.  D. deVries of Sacramento, CA, for the plaintiff;  J. Grenfell of San Francisco, CA, for the defendant.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  TORTS:  Glenn K. Jackson, Inc. v. Roe, 00-15614 (9th Cir. Dec. 11, 2001).  In an action for negligence brought under Califor-nia law by an attorney, a legal bill auditing firm hired by the attorney's client pursuant to agreed-upon guidelines and that is not in privity with the attorney, does not owe the attorney a duty of care.  Pregerson and Rawlinson, Circuit Judges, and Weiner (author), District Judges.  J. O'Connor of San Francisco, CA, for the appellants.  J. Wagstaffe of San Francisco, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  EMPLOYMENT DISCRIMINATION:  Atonio v. Wards Cove Packing Company, 99-35950 (9th Cir. Dec. 26, 2001).  The district court's determination that plaintiffs had not established a prima facie case that separate hiring channels caused a significant disparate impact on a class of non-white fish cannery employees was adequately supported by the record;  its holding that race-labeling did not cause a significant disparate impact was also supported by the evidence;  and, its holding that the plaintiffs' suggested alternative to segregated housing "would be an unnecessary burden and resulting cost to the defendants and would not be as efficient in meeting defendants' legitimate business goals as housing the workers by department, work hours, and arrival time" was not clearly erroneous.  B. Fletcher, Hall, and Tashima, Circuit Judges.  Per Curiam.  A. Ardite of Seattle, WA, for the plaintiffs-appellants;  D. Fryer of Seattle, WA, for the defendants-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  EMPLOYMENT DISCRIMINATION:  Winarto v. Toshiba America Electronics Components, 99-55448 (9th Cir. Dec. 21, 2001).  Under Title VII of the Civil Rights Act and the California Fair Employment and Housing Act ("FEHA"), a plaintiff sufficiently rebutted as pretext her employer's reasons for her reduced performance review scores and related firing by showing specific and substantial circumstantial evidence that those actions were in retaliation for her prior discrimination complaints; an individual-supervisor may be held personally liable for retaliation under the FEHA;  dissenting in part, Judge Wardlaw thought that the district court applied the correct standard for rendering judgment as a matter of law with regard to the plaintiff's claim of retaliatory discharge.  B. Fletcher (author), Thomas, and Wardlaw (dissenting in part), Circuit Judges.  T. Sheppard of Los Angeles, CA, for the plaintiff;  A. Silbergeld of Los Angeles, CA, for the defendants.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  ERISA:  USA v. Wiseman, 00-10325 (9th Cir. Dec. 19, 2001).  The admission of a defendant's testimony that his and his code-fendant's attorney informed them that they were disqualified from serving as ERISA plan trustees due to their prior art fraud conviction, which testimony was used to find the defendants guilty of unlawfully serving as trustees of a pension benefit plan, violated the attorney-client privilege.  Hall (author), Wardlaw, and Berzon, Circuit Judges.  A. Wachtel and D. Riordan of San Francisco, CA, for the defendants;  AUSA L. Tong of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  ERISA: Everhart v. Allmerica Financial Life Insurance Company, 99-17094 (9th Cir. Dec. 27, 2001).  Employee Retirement Income Security Act Sec. 1132(a)(1)(B) does not permit a suit against a third-party insurer to recover benefits when the insurer is not functioning as the plan administrator;  dissenting, Judge Reinhardt thought that the majority could point to no ERISA provision either limiting the parties that may be sued under the statute to ERISA plans and administrators, or prohibiting suits against third-party insurers.  Reinhardt (dissenting), Rymer, and Fisher (author), Circuit Judges.  C. Wisch of San Francisco, CA, for the plaintiff-appellant;  P. Glad of San Francisco, CA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  WORKERS COMPENSATION:  Alexander v. Director, Office of Workers' Compensation Programs, 00-70762 (9th Cir. Dec. 19, 2001).  Under 33 USC Sec. 903(e) of the Longshore and Harbor Workers' Compensation Act settlements the petitioner made with other of his employers regarding his long-time exposure to asbestos should not be credited against the amount owed by the last responsible employer;  the settlements that the petitioner received were alternative to an entire award against any one of the three set-tling employers, who might have been liable for an entire award if found to be Alexander's last responsible employer;  the credit doctrine, an equitable creation, cannot here trump the plain wording of Sec. 903(e).  Noonan (author), Hawkins, and Tashima, Circuit Judges.  B. Anderson of Brentwood, CA, for the petitioner;  J. Gillelen of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  TRANSPORTATION:  California State Legislative Board v. Mineta, 00-70798 (9th Cir. Dec. 4, 2001).  The reporting re-quirements of the Accident Reports Act were not violated by acts in connection with a non-reportable railroad accident in which the party did not require medical treatment, lose consciousness, or suffer a day away from work or work restriction or job transfer by the carrier.  Noonan (author), Hawkins, and Tashima, Circuit Judges.  L. Mann of Washington, DC, for the petitioners;  P. Plocki of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  ATTORNEYS' FEES:  Gutierrez v. Barnhart, 00-17216 (9th Cir. Dec. 20, 2001).  The district court abused its discretion in denying fees to the prevailing party because (1) the government's underlying conduct, failing to follow its own regulations, was not substantially justified, and (2) the government's litigation position was not substantially justified even though the effect of noncompliance with the Social Security Administration's regulations was an issue of first impressions in the Circuit.  Politz, W. Fletcher, and Fisher (author), Circuit Judges.  H. Sackett of San Jose, CA, for the plaintiff-appellant;  R. Cosme of San Francisco, CA, for the de-fendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  HIGHER EDUCATION ACT / CONTRACTS:  Student Loan Fund of Idaho, Inc. v. U.S. Dept. of Education, 99-36035 (9th Cir. Dec. 4, 2001).  The Student Loan Fund of Idaho, a guaranty agency under the Federal Family Education Loan Program, is required by the termination clause in its agreements with the Sec. of Education under the Higher Education Act to bow to the Secretary's directives once the guaranty agency terminates its agreements.  Browning, Wallace (author), and T.G. Nelson, Circuit Judges.  R. Jones of Boise, ID, for the plaintiff;  H. Scher of Washington, DC, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  FAMILY & MEDICAL LEAVE ACT:  Hibbs v. Dept. of Human Resources, 99-16321 (9th Cir. Dec. 11, 2001).  Congress, through a valid exercise of its authority under Sec. 5 of the Fourteenth Amendment, abrogated the states' sovereign immunity under the Eleventh Amendment from suits brought for violations of Sec. 2612(a)(1)(C) of the Family and Medical Leave Act.  Reinhardt, Tashima (author), and Berzon, Circuit Judges.  T. Hearne of Reno, NV, for the plaintiff;  P. Smith of Washington, DC, for the interve-nor;  C. Hilsabeck of Reno, NV, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  DISABILITY BENEFITS:  Rolen v. Barnhart, 00-56877 (9th Cir. Dec. 11, 2001).  Due process was satisfied by a notice accompanying an ALJ's order of dismissal of a Social Security disability benefits claim which informed the claimant that he could present objections by seeking administrative review of the dismissal and which accurately stated the law.  Bright, Kozinski (author), W. Fletcher, Circuit Judges.  M. Taller of Anaheim, CA, for the appellant;  J. Carvelas of San Francisco, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  CAMPAIGN FINANCING / FIRST AMENDMENT: The Lincoln Club of Orange County v. City of Irvine, 00-56444 (9th Cir. Dec. 20, 2001).  A city's campaign finance ordinance that restricts expenditures by barring an independent expenditure committee from making any independent expenditures whatsoever, burdens protected speech and associational interests and thus necessitates a "strict scrutiny" of the ordinance, if the source of the committee's money is membership dues that exceed the ordinance's prescribed maximum.  Goodwin (author), Wallace, and Thomas, Circuit Judges.  J. Eastman of Orange, CA, for the plaintiffs-appellants;  J. Ku-perberg of Costa Mesa, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  PRIVACY:  In re McClatchy Newspapers, Inc., 01-70941 (9th Cir. Dec. 3, 2001).  A high public official has no privacy interest in freedom from accusations, baseless though they may be, that touch on his conduct in public office or on his campaign for public office such that would justify the sealing of documents relating to another official's sentencing on bribery charges which would otherwise be accessible to the public;  a private individual, who was found by the district court to do much business with public bodies, has no privacy interest in allegations, baseless though they may be, bearing on the way he does business with public bodies.  Schroeder, Noonan (author), and W. Fletcher, Circuit Judges.  R. Heinke of Beverly Hills, CA, for the petitioner;  J. Harrison of San Leandro, CA, for the Unnamed Government Official;  Doe counsel for the Unidentified Private Citizen. (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  CIVIL RIGHTS:  Brewster v. Shasta County, 01-15118 (9th Cir. Dec. 28, 2001).  In California, a county sheriff's department, when investigating crime, acts on behalf of the country, not the State;  thus the county may be subject to liability under 42 USC Sec. 1983 and Monell v. New York City Dep't of Soc. Servs., 436 US 658 (1978), for the sheriff's constitutional torts.  Hall (author), Ward-law, and Berzon, Circuit Judges.  J. Hagar of San Francisco, CA, for the defendants-appellants;  D. Prentice of Sacramento, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  CIVIL RIGHTS:  Bergene v. Salt River Project Agricultural Improvement and Power District, 99-17205 (9th Cir. Dec. 3, 2001).  Viewed in the aggregate, an unsuccessful female applicant for promotion to foreman raised a genuine issue of material fact as to whether the reason proffered by her employer for denying her the promotion was mere pretext for sexual discrimination by showing that (1) her supervisor changed the qualifications for the position to eliminate her competitive advantage, (2) she was referred to a "mommy" in the workplace while acting as a temporary supervisor, and (3) that her employer lacked women supervisors during her tenure;  dissenting in part, Judge Wallace thought that the district court's summary judgment in favor of the employer on the discrimi-nation claim should be affirmed because the plaintiff's discrimination evidence, standing alone or considered together, was not "spe-cific and substantial."  Schroeder (author), Wallace (dissenting in part), and Tallman, Circuit Judges,  T. Hall of Phoenix, AZ, for the plaintiffs-appellants;  J. Egbert of Phoenix, AZ, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  IMMIGRATION:  Socop-Gonzales v. INS, 98-70782 (9th Cir. Dec. 5, 2001).  The 90-day filing period applicable to an alien's one-time motion to reopen deportation proceedings in order to seek relief from a decision of the Board of Immigration Appeals by presenting new facts or evidence is subject to equitable tolling;  dissenting Judge O'Scannlain, joined by Judge Silverman, thought that since the petitioner in this case failed to raise the issue of equitable tolling with the BIA, the USCA lacked jurisdiction to decide the matter.  Schroeder, Pregerson (author), Reinhardt, O'Scannlain (dissenting), Hawkins, Tashima, Silverman (dissenting), McKeown, Wardlaw, Paez, and Berzon, Circuit Judges.  R. Jobe of San Francisco, CA, for the petitioner;  D. Odgen of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  IMMIGRATION:  Hakeem v. INS, 00-70525 (9th Cir. Dec. 5, 2001).  A Pakistani citizen's claim for withholding of removal based on religious persecution did not compel a finding that it is more likely than not that the claimant would be persecuted on account of his religion were he to return to Pakistan where no one in the claimant's family had ever been charged, arrested, or physically harmed based on their Ahmadi Muslim faith, and the claimant had returned twice to Pakistan and practiced his faith without incident.  Hall (author) and Trott, Circuit Judges, and Winmill, District Judges.  M. Hilts of San Diego, CA, for the petitioner;  R. Verby of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  IMMIGRATION:  USA v. Ramirez-Martinez, 00-50681 (9th Cir. Dec. 5, 2001).  A defendant who agrees with others to provide transportation to an undocumented alien who has just crossed the US border was part of a concerted effort to bring the alien into the US and may be charged with violating 8 USC Sec. 1324(a)(2)(B)(ii) and 18 USC Sec. 2 for aiding and abetting bringing an undocumented alien to the US for financial gain;  the district court properly remedied the government's Batson violation by returning to the government its two objectionable peremptory challenges.  Hall and Trott (author), Circuit Judges, and Winmill, District Judges.  FPD C. Gomez of San Diego, CA, for the appellant;  AUSA A. Ibarra of San Diego, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  IMMIGRATION:  USA v. Mendez-Casillas, 99-30266 (9th Cir. Dec. 6, 2001).  The "arrest" element of the pre-Illegal Immigration Reform and Immigrant Responsibility Act version of the illegal reentry after deportation statute, 8 USC Sec. 1326, is vitiated only when the notice function of the deportation warrant has been "significantly" impaired;  the USCA declined to hold that a clerical error that technically contravenes the letter of 8 CFR Sec. 241.32 amounts to a per se violation of Sec. 1326's arrest requirement under pre-IIRIRA law.  B. Fletcher (author) and Fisher, Circuit Judges, and Schwarzer, District Judges.  G. Prior of Fife, WA, for the defen-dant;  AUSA J. Connelly of Spokane, WA, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  IMMIGRATION:  USA v. Portillo-Mendoza, 00-10407 (9th Cir. Dec. 17, 2001).  Convictions for driving under the influence in violation of California's vehicle and penal codes, including a felony "DUI with priors" conviction, are not "aggravated felonies" for the purpose of imposing aggravated felonies sentence enhancements under 8 USC Secs. 16 and 1101(43)(F).  Pregerson, Ferguson (author), and Hawkins, Circuit Judges.  A. Baggot of Apache Junction, AZ, for the defendant-appellant;  AUSA J. Ruffennach of Phoenix, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  IMMIGRATION:  USA v. Gonzalez-Torres, 00-50543 (9th Cir. Dec. 11, 2001).  The official restraint doctrine does not apply to the current alien smuggling statute;  thus, an alien smuggler is not required to enter the US to violate 8 USC Sec. 1324(a)(2)(B)(iii).  Rymer and Rawlinson (author), Circuit Judges, and Pogue, Court of Intl. Trade Judge.  FPD B. Coleman of San Diego, CA, for the defendant;  AUSA B. Castetter of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  IMMIGRATION:  USA v. Hernandez-Herrera, 00-50458 (9th Cir. Dec. 12, 2001).  An alien "entered" the US "free from official restraint" where, after crossing the border under observation by a "still watch" agent, he entered thick brush and where he was no longer visible to that agent, and field agents alerted by the still watch agent apprehended the alien after tracking him through footprints, rather than visual surveillance;  dissenting, Judge Pogue thought that because the alien had fled into a heavy brush area from which there was no escape less than 50 yards from the international border fence, he was undisputedly deprived of his liberty and prevented from going at large within the United States.  Rymer and Rawlinson (author), Circuit Judges, and Pogue (dissenting), Court of Intl. Trade Judge.  AFPD G. Singleton of San Diego, CA, for the defendant-appellant;  AUSA B. Castetter of San Diego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  IMMIGRATION:  USA v. Ramos-Godinez, 01-50043 (9th Cir. Dec. 4, 2001).  A brief hiatus in otherwise continuous observation of a deported alien reentering the country was sufficient to establish that the alien was free from official restraint; thus, under the circumstances of this case, sufficient evidence existed to support the alien's conviction for being a deported alien found in the United States in violation of 8 USC Sec. 1326.  Goodwin, Wallace, and Thomas (author), Circuit Judge.  J. Ferrara of San Diego, CA, for the defendant;  AUSA B. Pearce of San Diego, CA, for the plaintiff.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  EVIDENCE:  USA v. McGowan, 00-50725 (9th Cir. Dec. 19, 2001).  Expert testimony concerning the structure of drug trafficking organizations is inadmissible under Federal Rules of Evidence 401 and 403 where the defendant is charged with importing illegal drugs but not with a conspiracy to import drugs or where such evidence is not otherwise probative of a matter properly before the court.  Goodwin, Wallace, and Thomas (author), Circuit Judges.  S. Hubacheck of San Diego, CA, for the defendant-appellant;  AUSA S. Saham of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  WIRE TAPS:  USA v. Blackmon, 99-50534 (9th Cir. Dec. 12, 2001).  A wiretap application that, when purged of all misstate-ments, contained only generalized statements that would be true of any narcotics investigations, failed to explain the specific circumstances that rendered normal investigative techniques ineffective, and failed to make the particularized showing of "necessity" required under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 USC Sec. 2518(1)(c);  dissenting, Judge Wardlaw thought that the proper standard of review was abuse of discretion, not the de novo standard applied by the majority, and that because the defendant's affidavit, in a full and complete statement, demonstrating that "ordinary investigative techniques, employing a normal amount of resources, have failed to make the case within a reasonable time," the district court did not abuse its discretion in finding necessity for the wiretap.  B. Fletcher (author), Thomas, and Wardlaw (dissenting), Circuit Judges.  R. Steingard of Los Angeles, CA, for the defendant-appellant;  AUSA M. Terrell of Los Angeles, CA, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  JURY INSTRUCTIONS:  Morris v. Woodford, 99-99028 (9th Cir. Dec. 6, 2001).  Giving a deadlocked jury written instructions containing a typographical error incorrectly instructing that a sentencing option in a California capital case is life in prison "with" the possibility of parole, instead of life in prison "without" the possibility of parole, constituted constitutional error that prejudiced the defendant's substantial rights and entitled him to a new penalty-phase trial;  Judge Ferguson concurred but questioned whether the de-fendant's counsel was constitutionally competent at the guilty and penalty phases of the trial;  but, as no such contention had been made before the USCA or the district court, the court was procedurally barred from raising it.  Ferguson (concurring), Graber (author), and W. Fletcher, Circuit Judges.  M. Bachers of San Francisco, CA, for the petitioner-appellant;  W. Campbell of Sacramento, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

36)  "OTHER CRIMES" EVIDENCE / INEFFECTIVE ASSISTANCE: Garceau v. Woodford, 99-99022 (9th Cir. Dec. 26, 2001).  An "other crimes" instruction that allowed the jury to use evidence of a defendant's other crimes to establish his "criminal propensity," i.e., "likelihood that he committed the charged crimes," violated due process as (1) absent the impermissible propensity inference, the State's case was not strong, (2) the impermissible propensity inference was very strong, (3) the State relied fairly heavily on another murder linked to the defendant in urging the jury to draw the propensity inference, (4) the other crime was explained in graphic detail and very likely emotionally affected the jury;  because the defendant's trial and conviction were infected by this constitutional error which had a substantial and harmful effect on the jury's verdict, the error was not harmless;  concurring, Judge Thomas wrote separately to note that if the court were not reversing on the grounds stated in the majority opinion, it would necessarily have to reverse and remand with instructions to the district court to hold an evidentiary hearing on the petitioner's claim of ineffective assistance of counsel during the sentencing phase;  dissenting in part, Judge O'Scannlain thought that the ineffective assistance claim warranted reversal, but, even if the jury instruction violated the petitioner's due process rights, any error was harmless under the deferential standard of Brecht v. Abrahamson, 507 US 619 (1993).  O'Scannlain (dissenting in part), Tashima (author), and Thomas (concurring), Circuit Judges.  L. Coffin of San Francisco, CA, for the petitioner;  C. Tanaka of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 
 

37)  SENTENCING:  USA v. Schwartz, 00-35719 (9th Cir. Dec. 14, 2001).  A defendant's conviction becomes final, for purposes of filing a motion to vacate, set aside, or correct a sentence under 28 USC Sec. 2255, upon the conclusion of direct review or the expiration of the time for seeking such review, notwithstanding the possibility of a sentence reduction under Rule 35 of the Federal Rule of Criminal Procedure and the defendant's continuing obligation under a plea agreement to provide testimony against her co-defendants.  Thompson (author), Tashima, and Graber, Circuit Judges.  AFPD S. Sady of Portland, OR, for the defendant-appellant;  AUSA F. Noonan of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  SENTENCING:  USA v. Gallaher, 00-30068 (9th Cir. Dec. 26, 2001).  A defendant's prior conviction which was discharged by a certificate restoring his civil rights, but which contained no warning that he could not "ship, transport, possess, or receive firearms" could not be used to enhance his sentence under 18 USC Sec. 924(e) on a subsequent offense;  dissenting in part, Judge Alarcon thought that the restoration certificate incorporated by reference a state law which provides that the use of the offender's prior record for purposes of determining sentences for later offenses is not prohibited;  accordingly, the defendant had notice that the conviction could be used for the purpose of enhancing a future offense and could not reasonably complain that he had been mousetrapped.  Alarcon (dissenting in part), Fernandez, and Tashima (author), Circuit Judges.  K. Watts of Spokane, WA, for the defendant;  AUSA J. Harrington of Spokane, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  HABEAS CORPUS:  Thomas v. Hubbard, 00-17050 (9th Cir. Dec. 5, 2001).  The cumulative effect of the improper introduction of triple hearsay statements, prosecutorial misconduct in eliciting evidence about the prior use of firearms in violation of an in limine order, and the improper truncation of the cross-examination of the lead investigating officer regarding the attempts of the purported eyewitness to evade the police rose to the level of a due process violation requiring the issuance of a writ of habeas corpus where the State's evidence consisted largely of the uncorroborated testimony of a purported eyewitness who himself had motive and opportunity to commit the crime.  Reinhardt (author), and Hawkins, and Rawlinson, Circuit Judges.  G. Gaynor of Santa Barbara, CA, for the petitioner-appellant;  J. McLean of Sacramento, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

40)  HABEAS CORPUS:  Huizar v. Carey, 00-56285 (9th Cir. Dec. 14, 2001).  A state habeas corpus petition is deemed filed, for purposes of equitable tolling under the Antiterrorism and Effective Death Penalty Act of 1996 when the prisoner hands his state habeas petition to prison officials for mailing to the state court, and diligently follows up with the state court once he fails to receive a disposition within a reasonable period of time, even if the petition was never received or filed by the state court.  Bright, Kozinski (author), and W. Fletcher, Circuit Judges.  R. Harley of Santa Ana, CA, for the appellant;  S. Pithey of Los Angles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

41)  HABEAS CORPUS:  Fail v. Hubbard, 99-15548 (9th Cir. Dec. 3, 2001).  Equitable tolling of the Antiterrorism and Effective Death Penalty Act's one-year limitations period is not warranted during the pendency of an unexhausted federal habeas petition when the petitioner is affected only by routine delay in the district court and a "perceived omission on the part of Congress";  concurring, Judge Wallace thought there was no reason to decide if equitable tolling was available in this case.  Schroeder (author), Wallace (concurring), and Tallman, Circuit Judges.  M. Bradford of Sacramento, CA, for the petitioner-appellant;  G. Ott of San Francisco, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  HABEAS CORPUS:  Smith v. Duncan, 00-16458 (9th Cir. Dec. 19, 2001).  Under the Antiterrorism and Effective Death Penalty Act of 1996, the limitation period for filing a federal habeas petition were tolled during the pendency of the petitioner's state habeas petitions;  even though those state petitioners were denied by the state highest court for procedural reasons, they had been "properly filed" for purposes of the AEDPA's tolling provisions.  Reinhardt, Hawkins, and Rawlinson (author), Circuit Judges.  G. Boisseau of Santa Rosa, CA, for the petitioner-appellant;  D. Gillette of San Francisco, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

43)  HABEAS CORPUS:  Cooper v. Calderon, 98-99023 (9th Cir. Dec. 21, 2001).  The USCA held that under the Antiterrorism and Effective Death Penalty Act of 1996, a habeas petition is impermissibly a second or successive petition if the petitioner was aware of the factual predicate of his claim long before and could have raised the claim in his first petition.  Browning, Rymer, and Gould, Circuit Judges.  Per Curiam.  R. Amidon of Burbank, CA, for the petitioner;  B. Lockyer of Sacramento, CA, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

44)  HABEAS CORPUS:  Gandarela v.  Johnson, 00-35596 (9th Cir. Dec. 18, 2001).  A habeas petitioner's request that a procedural default be excused based on his "actual innocence" was supported by speculative and collateral impeachment evidence that lacked any direct information regarding the crime and was thus insufficient to case a "vast shadow of doubt" over the reliability of the testimony in this case and to make a colorable claim of actual innocence.  Hug, T.G. Nelson, and Gould (author), Circuit Judges.  AFPD L. Brehm of Portland, OR, for the petitioner-appellant;  J. Klapstein of Salem, OR, for the respondent-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  HABEAS CORPUS:  Jiminez v. Rice, 99-15574 (9th Cir. Dec. 28, 2001).  The limitations period of the Antiterrorism and Effective Death Penalty Act of 1996 is not tolled under 28 USC Sec. 2244(d) while a federal habeas petition is pending;  the petitioner thus exceeded the time for filing another federal petition and dismissal with prejudice was appropriate.  Schroeder, Beezer (author), and Trott, Circuit Judges.  P. Goldscheider of Palo Alto, CA, for the petitioner-appellant;  F. Dogan of San Francisco, CA, for the respondent-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

46)  PRISONS:  Murphy v. Hood, 01-35140 (9th Cir. Dec. 27, 2001).  The district court properly denied the petitioner's petition for a writ of habeas corpus filed pursuant to 28 USC Sec. 2241 which was filed after the petitioner was admitted to a Bureau of Prisons ("POP") drug treatment program but was later denied the opportunity to complete the program because he was deemed a flight risk based upon a prior escape conviction.  Kleinfeld and Gould, Circuit Judges, and Roll (author), District Judge.  FPD S. Sady of Port-land, OR, for the appellant;  T. Gannon of Washington, DC, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

1)  TRADEMARKS: AL-OR International v. Grandeur Creations, 00-56406 (9th Cir. Dec. 19, 2001) (unpublished).  Browning, Reinhardt, and Tallman, Circuit Judges.
         AL-OR International and Phillipe Charriol International appealed an order of the District Court for the Central District of California, Judge Collins presiding, which denied AL-OR's motion for an order to show cause why Reller, Inc. should not be held in contempt for violating a permanent injunction.  The district court found that Reller did not violate the terms of the injunction because the jewelry in question was neither a "colorable imitation of" nor "substantially similar" to the appellants' trademark, and thus denied appellants' motion.
          The USCA affirmed.  The appellants were granted a trademark on February 27, 1990, which consisted of a "metallic nautical rope designed as an integral feature of … clocks, watches, and jewelry;  namely, key rings, rings, bracelets, earrings, necklaces, pendants, and cufflinks, all made of precious metal."  The appellants brought a successful trademark infringement and unfair competition suit against Reller which resulted in the issuance of an injunction permanently enjoining Reller from manufacturing infringing goods.  Reller subsequently developed new lines of cable jewelry named "New Twist" and "Gold Wave."  The appellants filed a motion with the district court alleging that these new lines of cable jewelry contained the trademark in violation of the permanent injunction.  The USCA noted that under the terms of the permanent injunction, the district court was required to determine whether the new designs were "colorable imitations of" or "substantially similar" to the trademark.  A "colorable imitation" itself is a product that is likely to cause confusion.  Thus, the central focus of the district court's inquiry was whether confusing similarity existed between the designs.  A comparison of the jewelry shows that District Judge Collins did not clearly err or abuse her discretion in concluding that Reller's new line of jewelry was neither a "colorable imitation of" nor "substantially similar" to the protected mark.  While the trademark has a smooth surface and resembles a single strand of rope, Reller's "New Twist" and "Gold Wave" designs more closely resemble several small strands of barbed wire twisted around each other, with "negative space" between each of the strands.  The District Court did not err in finding that there was no confusing similarity between these designs.

2)  FDIC: National Enterprises, Inc. v. Joseph-Burnham Partnership, 99-55875 (9th Cir. Dec. 26, 2001) (unpublished).  Bright, Kozinski, and W. Fletcher, Circuit Judges.
         This controversy relates to the interpretation of a release provision in a settlement agreement.  It arose from the purchase of loans from failed S&Ls at "Auction VIII."  David Wick, president of Morehouse Acquisitions, filed false certifications of eligibility on behalf of Morehouse in order to participate in the auction.  The certifications were false because Morehouse is a subsidiary of National Enterprises ("National"), which was excluded from participating the auction.  After Morehouse purchased the loans, it transferred the assets to National.  National then attempted to collect on one of the loans by filing suit against the loan debtor.  The debtor maintained that Morehouse had fraudulently purchased the loans and filed a cross-complaint against the Federal Deposit Insurance Corporation ("FDIC") as the receiver of the loans.  The parties voluntarily submitted the case to the district court for settlement proceedings.  The FDIC, National and Morehouse signed a settlement agreement on September 10, 1998 in which the FDIC released National and Morehouse from further lawsuits regarding Auction VIII claims.  The FDIC later brought an action against First International Bank ("FIB") alleging false certifications by FIB in Auction VIII.  (Apparently, this claim related to a different purchase of assets than those at issue with National.)  National moved to have the settlement agreement enforced, arguing the agreement released FIB as an affiliate.  FIB and National have an officer and director in common and the FDIC had referred to FIB as an affiliate of National in an internal memorandum prepared by the FDIC after the initial oral settlement agreement.  The FDIC inadvertently sent the internal memorandum to National during the settlement process.  National thus had knowledge of the contents of the document before signing the settlement agreement.  The FDIC opposed such an interpretation of the agreement.  The district court rejected the motion and ruled that the settlement agreement did not release FIB as an affiliate.  National appealed.
        The USCA affirmed.  The district court, based upon the rules of contract law and the plain language of the settlement agreement between the FDIC, National and Morehouse, correctly determined that the release clause of the agreement did not extend to FIB.  The release at issue encompassed "NEI [National], Morehouse and Wick, their representatives, shareholders, officers, directors, agents, attorneys and assigns."  Prior to signing, the parties added "shareholders, officers and directors" in pen to the typed document.  FIB is not a party to the settlement agreement, nor does the language of the release refer to an affiliate of FIB.  Moreover, FIB does not qualify as a representative, shareholder, officer, director, agent or assign of National.  National maintained that the language of the agreement is ambiguous.  It relies upon the FDIC's internal memorandum that was inadvertently sent to National during the settlement process.  The memorandum refers to FIB as an affiliate of National and comments that the proposed agreement settles claims with Na-tional and affiliated entities regarding National's Auction VIII purchase.  The language from the memorandum did not find its way into the settlement agreement, and the agreement, as it stands, is not ambiguous.  National nevertheless contents that this language should be used to show the parties' intent.  An internal memorandum from one side cannot serve to modify or clarify and ambiguous agree-ment.  Thus, even if the contract language were ambiguous, the memorandum is inadmissible.

 3)  SECURITIES / ARBITRATION:  Bear Stearns & Company v. Buehler, 00-56736 (9th Cir. Dec. 4, 2001) (unpublished).  Schroeder, Trott, and Rawlinson, Circuit Judges.
        Bear Stearns & Company ("Bear Stearns"), Bear Stearns Security Corporation ("BSSC"), Stephen Ackermann, Barry Ganz, and Mark Seruya (collectives "Borkers") appealed a decision of the District Court for the Central District of California, Judge Wilson presiding, which confirmed a multimillion dollar arbitration award against them.
          The USCA affirmed.  To overturn the arbitrators' decision, the Brokers had to show that the governing law was well-defined, explicit, clearly applicable, and that the arbitrators recognized the applicable law but ignored it.  Indeed, as the term "manifestly disregard" suggests, the Brokers must find something in the record, other than the result, which indicates that the arbitrators knew the law and disregarded it.  The Brokers argued that the arbitration award must be vacated, as a matter of law, because they never owed a duty to a group of non-customers Investors.  As a general rule, a broker-dealer owes no duty to a non-customer who has invested money through an independent investment advisor.  Yet this general proposition of non-liability is far from a per se rule.  Where there is additional involvement by the broker-dealer, a duty may be found. Software Design & Appl. V. Hoefer & Arnett, Inc., 49 Cal. App. 4th 472, 478 (1996), noted that "sufficiently suspicious" circumstances may place a broker-dealer on notice that her customer is perpetrating fraud on non-customer investors.  Once aware of troublesome "red flags," the broker-dealer may have a duty which runs to non-customers to monitor and investigate any unusual account activity.  Considering the compendious evidence of entanglement between Schmidt, Seruya, Ganz and Bear Stearns, the arbitrators did not manifestly disregard the law in finding those Brokers liable for breach of fiduciary duty and negligence to all the Investors.  If reviewing the case de novo, the USCA said it might reach a different legal conclusion, but a difference of legal opinion would not subvert the "honest decision of the arbitrators, after a full and fair hearing." Coast Trading Co. v. Pacific Molasses Co., 681 F.2d 1195 (9th Cir. 1982).  Brokers Ackerman and BSSC, however, had little, if any, contact with Schmidt or the PCP investment.  The Brokers argued that this lack of contact did not give rise to a duty, and hence liability, to the Investors.  Despite the paucity of evidence indicating that BSSC or Ackerman ever did anything that could give rise to a duty to the Investors, the arbitrators found those Brokers liable to the Investors.  Pointing to this arguably erroneous legal result, the Brokers asked that the USCA examine objectively whether the arbitrators manifestly disregarded the law.  Circuit case law makes it clear that a manifest disregard of the law is something more than a legal error.  Cognizant of this difference in its standard of review, the USCA rejected the notion that an arbitration board's decision can be reviewed on the basis that its conclusion or reasoning is legally erroneous.  The arbitrators' result may be clear legal error, resulting from confusion in ascertaining the true corporate hierarchy and oversight responsibilities at Bear Stearns, but the result alone does not and cannot indicate that the arbitrators manifestly disregarded the law.  Moreover, the Brokers failed to reveal any evidence that the arbitrators understood the governing legal principles and consciously ignored them.  Undoubtedly, the Brokers' task was hampered because, as is customary, the arbitrators failed to explain any of the rationale for their decision.  Nevertheless, the Brokers pointed to no comments by the arbitrators during nearly 81 days of hearings or to any indicia in their decision that the arbitrators knew the applicable law and manifestly disregarded it.  Finding no evidence that the arbi-trators manifestly disregarded the law, the USCA confirmed the arbitration award. 

4)  SECURITIES: Securities & Exchange Commission v. Colvin, 99-56103 (9th Cir. Dec. 14, 2001) (unpublished).  Pregerson, Reinhardt, and Silverman, Circuit Judges.
        The District Court for the Central District of California, Judge Stotler presiding, entered summary judgment for the SEC.  Hovik appealed.  The USCA affirmed.  Hovik maintained that the amount of the District Court's disgorgement was not supported by the record.  The uncontradicted declarations of Toshie Honda Connick and Lorraine Pearson supported the Court's disgorgement calculation of $397,265.50 before interest.  Hovik failed to contest those declarations.  The USCA said Hovik could not now do so on appeal for the first time.  Hovik also argued that the asset freeze to which he consented at the time of the permanent injunction was invalid because it reached assets that had not been traced to the fraudulent investment scheme.  Hovik did not raise this argument be-fore the district court and thus it was waived on appeal.  Finally, Hovik argued that he was deprived of his due process rights by having been improperly induced to consent to the permanent injunction.  Having failed to move for relief from the judgment in the district court under Fed. R. Civ. P. 60(b)(3), he could not raise the issue for the first time on appeal.  If Hovik felt the SEC made misrepresen-tations to him, he should have sought recourse from the district court.

5)  SECURITIES: Commodity Futures Trading Commission v. Samaru, 00-56271 (9th Cir. Dec. 13, 2001) (unpublished).  Noonan and Wardlaw, Circuit Judges, and Schwarzer, District Judge.
        The District Court for the Central District of California, Judge Byrne presiding, denied Samaru's Rule 60(b) motion and entry of an $882,005 restitution judgment against him. 
        The USCA affirmed.  On June 19, 1997, the Commodities Futures Trading Commission ("CDTC") filed a civil complaint against Golden State Bullion and several of its employees, including Samaru.  The complaint alleged that the defendants had engaged in a fraudulent telemarketing scheme to sell highly leveraged, unlawful off-exchange future contracts in precious metals and other commodities.  On December 16, 1998, based upon an agreement between Samaru and the CFTC, the district court entered a consent order of permanent injunction and ancillary equitable relief against Samaru.  The order fixed Samaru's maximum restitution liability at $882,005, an amount representing net customer losses attributable to his unlawful futures transactions.  Samaru waived arguments that he was unable to pay a restitution judgment in the amount of $882,005 and that the CFTC's calculation of customer losses was inaccurate.  The District Court entered a restitution judgment in the maximum amount.  Samaru argued that the District Court abused its discretion when it denied his Rule 60(b) motion.  The USCA disagreed.  Samaru failed to demonstrate the two conditions required for Rule 60(b) relief; namely, that, in the absence of relief, (1) he would sustain injury and (2) circumstances beyond his control prevented timely action to protect his interest. USA v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993).  The District Court correctly concluded that Samaru's waiver in the consent order of an inability-to-pay argument, rather than uncontrollable circumstances, precluded him from arguing that he could not pay a restitution judgment for $882,005. Ackerman v. USA, 340 US 193 (1950) (Rule 60(b)(6) should not be invoked where the petitioner bypassed his right to appeal for tactical reasons.)  Samaru also argued for the first time on appeal that the restitution judgment violated the Excessive Fines Clause of the Eighth Amendment.  However, the USCA noted that, although it generally will not consider arguments raised for the first time on appeal, it may, in its discretion, consider a new argument when the issue presented is purely legal, does not require further development of the record, and does not prejudice the opposing party.  It concluded that addressing Samaru's claim at this late date would necessarily prejudice the CFTC and thus declined to do so.  But, even if it were to exercise its discretion, the USCA said it would reject Samaru's Eighth Amendment claim.  When the Eighth Amendment was ratified, the word "fine" was understood to mean a payment to a sovereign as punishment for an offense.  USA v. Bajakajian, 524 US 321 (1998).  Because the judgment here is for restitution of the amount of the victims' loss, and not civil money penalties, Samaru is not subject to a "fine" as encompassed by the Eighth Amendment. Sierra Club v. Electronic Controls Designs, Inc., 909 F.2d 1350 (9th Cir. 1990) (Monetary payments due under proposed consent judgment not payable to US treasury are not civil penalties.)  The Excessive Fines Clause thus does not apply.

6)  TAXATION: Morgan v. CIR, 00-71435 (9th Cir. Dec. 19, 2001) (unpublished).  Browning, Reinhardt, and Tallman, Circuit Judges.
        The Morgans appealed the Tax Court's dismissal of their petition for redetermination of tax liability, contending that their notices of deficiency did not conform to the statutory requirements of IRC Secs. 6212(a) and 6213(a), and that equitable principles warranted statutory tolling of the 90-day time period for filing the petition in the Tax Court.  After finding that the notices of deficiency were valid, the Tax Court concluded that it lacked jurisdiction to consider the petition because it was filed more than 90 days after the mailing of the notices. 
       The USCA affirmed.  The Tax Court's jurisdiction depends upon the Internal Revenue Service issuing a proper notice of deficiency and the taxpayer filing a valid petition for redetermination.  After conducting a hearing regarding the propriety of the notice in this case, the Tax Court held that it lacked jurisdiction to consider the petition because the Morgans failed to file the petition with the applicable 90-day period.  In so holding, the Tax Court rejected the Morgans' argument that the deficiency notices were invalid, finding "as a fact that the notices of deficiency mailed to petitioners' last known address contain[ed] all statutorily required information."  It also rejected the Morgans' assertion that in order to comply with Sec. 6212(a) the information contained in Notice 1214 must be in the text of the deficiency notice.  In light of the record, the USCA held that the Tax Court's findings were not clearly erroneous.  The Morgans also maintained that the Tax Court should have equitably tolled the 90-day time period.  Their argument was based on the fact that they had timely filed their pro se "complaint," albeit in the wrong federal court, and that the stipulated order purported to dismiss the petition without prejudice to their right to refile in the Tax Court even though the 90-day period had already run.  Unfortunately for the Morgans, the 90-day period prescribed in Sec. 6213(a) is an absolute jurisdictional requirement.  The Tax Court has no author-ty to equitably toll the time limitation.  Because the district court was not asked to transfer this case under 28 USC Sec. 1631, the USCA did not reach the question whether it could have invoked that provision to transfer the case to the Tax Court or whether the Tax Court may properly receive a Sec. 1631 transfer.

7)  TAXATION: Staggs v. CIR, 00-71160 (9th Cir. Dec. 26, 2001) (unpublished).  Brunetti, Kleinfeld, and Thomas, Circuit Judges.
             The Staggs appealed the Tax Court's denial of their motion to dismiss for lack of jurisdiction their action to redetermine their income tax deficiency and that of the two trusts to which the Staggs had assigned income.  The Staggs also appealed the Tax Court's decision to grant the Internal Revenue Service's motion for summary judgment.  The Tax Court concluded that a notice of deficiency and a timely appeal were the only prerequisites to its exercise of jurisdiction, and that no dispute remained regarding the amount of income tax deficiency.
         The USCA affirmed.  The Tax Court has jurisdiction to redetermine a deficiency when the IRS has issued a valid notice and the taxpayer files a timely petition for redetermination.  There is no particular form for a valid notice of deficiency.  However, the notice must, at a minimum, "advise the taxpayer that his tax return is deficient for a particular year and specify the amount of the defi-ciency or provide the information necessary to compute the deficiency."  Abrams v. Comm'r, 814 F.2d 1356, 1357 (9th Cir. 1987).  The notice must also show that the IRS examined the taxpayer's returns and at least considered their deductions in making its determination of deficiency.  In this case, there is no doubt that the notices of deficiency sent to the Staggs and the trusts complied with the minimum requirements for validity.  Each notice has attached a very lengthy and detailed explanation of how the amount of each deficiency was computed based on the tax returns and claimed deductions filed by the Staggs and the trusts.  There is likewise no doubt that they filed the petition with the Tax Court within the 90-day period allowed in 26 USC 6213;  the notices were dated March 17, 1999 and the pe-tition was filed on June 11, 1999.  The notices of deficiency thus were valid, and the Tax Court had jurisdiction to enter summary judgment for the IRS.  The Staggs also argued that the IRS had to assign the deductions and credits against the tax imposed on the trusts to them as individual taxpayers, because the IRS considers them to be the "owners" of the trusts.  As the Staggs raise the issue for the first time on this appeal, the USCA declined to address it. 

8)  BANKRUPTCY: In re Young Builders Profit Sharing and Retirement Trust, 00-17328 (9th Cir. Dec. 26, 2001) (unpublished).  Brunetti, Kleinfeld, and Thomas, Circuit Judges.
        Michael Gottfried and Frederick Gamble appealed a decision of the Bankruptcy Appellate Panel that affirmed in part and vacated and remanded in part a sanctions order and subsequent denial of motions for reconsideration.
        The USCA dismissed the appeal.  First, the USCA noted that it has jurisdiction over appeals from the BAP only when both the bankruptcy court decision and the BAP decision are final.  Here, neither decision was final for purposes of appeal.  The bankruptcy court's sanction order and subsequent denial of motions for reconsideration were not final even under the more liberal standards of finality applied to bankruptcy court decisions.  The October 1997 order required the attorneys to submit declarations detailing both paid and unpaid fees and costs within 20 days and stated:  "The court expressly reserves the right, subject to notice and hearing, to impose such further sanctions as may be appropriate based on the reports and information to be filed with this court."  The February 1999 order denied the attorneys' fee applications "without prejudice," stating that either or both counsel may request consideration of their respective applications when they deem appropriate."  In the same order, it also stated that the pending motions for reconsideration and similar relief were denied.  In its July order, it again stated simply that the motions for reconsideration and similar relief were denied, without addressing the amount of fees to be forfeited.  Thus, by their terms, the bankruptcy court's orders leave open the possibility of further action relating to attorneys' fees.  In addition, the BAP's decision also was not final.  When the BAP remands a matter to the bankruptcy court for "factual findings related to a central issue raised on appeal," that order may nonetheless be considered final for purposes of appeal to the court of appeals in certain circumstances when the remanded issue is purely legal in nature and its resolution on appeal could either dispose of the case or materially aid the bankruptcy court in reaching its decision on remand.  However, none of the issues raised on this appeal involved a pure question of law.  Thus, the BAP decision remanding the case was not final for the pur-poses of appellate review.

9)  BANKRUPTCY / ATTORNEYS' FEES: In re Meronk, 00-55996 (9th Cir. Dec. 6, 2001) (unpublished).  Schroeder, Trott, and Rawlinson, Circuit Judges.
          The Bankruptcy Appellate Panel reversed the bankruptcy court's $50,000 bonus award to the Arter firm as special counsel for the Meronks' bankruptcy estate.  Arter maintained that it deserves a bonus because it obtained results not reflected in its standard hourly rate or number of hours worked. 
          The USCA affirmed the BAP's reversal of the bankruptcy court's award.  It noted that there is a strong presumption that payment of an attorney's standard hourly rate constitutes reasonable compensation.  While a bonus may be appropriate in some cases, Arter had to show specific evidence why the results obtained were not reflected in its standard hourly rate or the number of hours allowed.  The bankruptcy court did not find specific facts to overcome the presumption that the hourly fee was reasonable, and Arter's arguments on appeal failed to show the existence of such facts.  The USCA found little room to enhance Arter's hourly wage based on the outcome of the case because once Arter agreed to represent the Meronk bankruptcy estate, it agreed to do so to the best of its abilities.  Moreover, Arter's argument that the results obtained were extraordinary was belied by the bankruptcy court's finding that Arter had achieved a "fine" result, but not a "stupendous" or "wonderful" one.  Arter also argued that the risk of nonpayment and the difficulty in obtaining counsel supported a bonus.  The Supreme Court, however, has held that basing an enhancement on the risk of loss or contingency risk is not permitted.  Finally, Arter argued that construction litigation is typically handled on a contingency basis, and thus a bonus is necessary to make the fee award commensurate with non-bankruptcy services.  Arter, however, expressly rejected a contingency agreement and agreed to represent the estate on an hourly basis.  Arter charged its standard hourly rate, and the USCA assumed that Arter considered the time and skill required when setting its hourly rate.  The USCA concluded that the record contained no facts to overcome the presumption of reasonableness in the hourly rate and number of hours billed.  It thus affirm the BAP's decision to delete the bonus and leave Arter with its agreed upon fee.

10)  BANKRUPTCY / TAXATION: In re Wright, 00-16496 (9th Cir. Dec. 11, 2001) (unpublished).  Kozinski, Rymer, and Silverman, Circuit Judges.
          Pursuant to 11 USC Sec. 523(a)(1)(B), a tax liability is not discharged if "(1) the tax underlying the tax liability debt required a return; and (2) the debtor failed to file the required return."  In re Hatton, 220 F.3d 1057, 1060 (9th Cir. 2000), (quoting In re Jackson, 184 F.3d 1046, 1050 (9th Cir. 1999)).  Wright was required to file returns for the years in question but did not do so.  He argued that he effectively filed tax returns when IRS agents obtained prepared, unsigned returns with a subpoena and interviewed him under oath in the context of a criminal prosecution for a willful failure to file tax returns.  A document qualifies as a return if:  (1) it purports to be a return, (2) is executed by the taxpayer under penalty of perjury, (3) contains sufficient data to allow calculation of tax, and (4) represents "an honest and reasonable attempt to satisfy the requirements of the tax law."  Hatton, 220 F.3d at 1060-61 (quoting In re Hindenlang, 164 F.3d 1029, 1033 (6th Cir. 1999)).  The returns here were not executed by Wright under penalty of perjury or otherwise.  The oral oath administered in connection with the criminal investigation interview, and the interview itself, were not the equivalent of a signed tax form executed under penalty of perjury.  The oath and the interview did not allow the IRS to immediately assess tax liability.  Rather, the IRS had to proceed by way of substitute tax returns and notices of deficiencies.  The unsigned returns were thus not sufficient under Hatton to constitute a return.

11)  BANKRUPTCY: Broadway Buildings v. Mincks, 00-35448 (9th Cir. Dec. 11, 2001) (unpublished).  O'Scannlain, Graber, and McKeown, Circuit Judges.
         This case and the subsequent related appeal, 00-56742, arose from the efforts of Broadway Buildings to use a bankruptcy court's order approving its Chapter 11 Reorganization Plan ("Plan Approval") to enforce against appellees Mincks, et al. (the "Sellers") contracts that Broadway Buildings assumed pursuant to the plan.  In this appeal, Broadway Buildings challenged the District Court for the Eastern District of Washington's refusal to register and enforce a judgment pursuant to 28 USC Sec. 1963.  The USCA affirmed.  Pursuant to its independent obligation to examine jurisdiction, the USCA found that it had jurisdiction under 28 USC Sec. 1291.  The challenged order is a full adjudication of the issues at bar.  The Plan Approval cannot constitute a binding judgment against the Sellers, because they were not parties to the action.  All of Broadway Buildings' other arguments are similarly unavailing.

12)  BANKRUPTCY: In re Broadway Buildings, 00-56742 (9th Cir. Dec. 11, 2001) (unpublished).  O'Scannlain, Graber, and McKeown, Circuit Judges.
           After its unsuccessful attempt to enforce the Plan Approval (see above) in the Eastern District of Washington, and while that appeal was pending, Broadway Buildings filed a motion in the Central District of California Bankruptcy Court to enforce the judgment pursuant to 11 USC Sec. 1142(b) and Fed. R. Bankr. P. 3020(d).  The bankruptcy court denied the motion, holding that Broadway Buildings must bring an adversary action to accomplish its purpose.  The Ninth Circuit Bankruptcy Appellate Panel declined to review this order, holding that it was interlocutory, and denied mandamus.  Broadway Buildings appealed and requested mandamus in the alternative.
          The USCA concluded that it was without jurisdiction to review the order of the bankruptcy court because it was not final.  It also declined to grant the writ of mandamus.  Mandamus, it noted, is an extraordinary remedy, to be used "only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so."  DeGeorge v. U.S. Dist. Ct., 219 F.3d 930, 934 (9th Cir. 2000).  Broadway Buildings could not meet this high standard, both because it had an adequate remedy within the ongoing proceedings and because the bankruptcy court's rulings were not in error.  For the reasons dis-cussed in the related appeal, 99-35448, summary enforcement of the Plan Approval as a judgment against the Sellers would have been improper.

13)  BANKRUPTCY: In re Berg, 00-16168 (9th Cir. Dec. 12, 2001) (unpublished).  Canby, Graber, and Paez, Circuit Judges.
        Berg appealed a decision of the Bankruptcy Appellate Panel affirming the bankruptcy court's grants of summary judgment to the Trustee, Sims, and the State Bar of Arizona, and affirming a few award to the Trustee's attorney, Goldsmith. 
           Finding Berg's arguments to be without merit, the USCA affirmed.  Berg's claim against Sims was barred by the res judicata effect of the bankruptcy court's earlier Sale Order, and the appeals therefrom, because (1) the parties are identical; (2) the claim of mishandling the sales of the "Newsom Action" is the same; and (3) the bankruptcy court resolved the claim by a valid and final judgment on the merits.  Berg's alleged "new" evidence was available before the auction and Sale Order.  The evidence relates directly to the issue of the alleged mishandling of the Newsom Action sale, which the bankruptcy court conclusively adjudicated in entering the Sale Order.  Res judicata bars all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties on the same cause of action.  Clark v. Bear Stearns & Co., 966 F.2d 131, 1320 (9th Cir. 1992).  Berg's challenge to the fees awarded to attorney Goldsmith was based largely on the same contention that the Newsom Action was improperly under-valued.  That contention was rendered moot by the action held at Berg's request.  Berg's additional challenge to the fee award was without merit.  The bankruptcy court declined to award fees for work on the Newsom Action and did not abuse its discretion in awarding some 75% of the requested fees.  The bankruptcy court also properly granted summary judgment to the California State Bar.  As an arm of the state, the State Bar enjoys Eleventh Amendment immunity from suit.  The bankruptcy court and the BAP thus properly held that there was no waiver of immunity;  the State Bar properly preserved its Eleventh Amendment immunity by asserting it as its first affirmative defense.

14)  BANKRUPTCY: Huarte v. Clark, 00-55990 (9th Cir. Dec. 4, 2001) (unpublished).  Schroeder, Trott, and Rawlinson, Circuit Judges.
            Huarte appealed a Bankruptcy Appellate Panel's decision affirming the bankruptcy court's judgment for Clark.  The BAP and the bankruptcy court held that the record lacked evidence showing willful and malicious injury pursuant to 11 USC Sec. 523(a)(6)(2001), and thus the debt Clark owed to Huarte was discharged.  The USCA affirmed.  The bankruptcy code excepts from discharge any debt "for willful and malicious injury by the debtor to another entity."  11 USC Sec. 523(a)(6).  The Supreme Court has interpreted "willful" to modify "injury."  Kawaauhau v. Geiger, 523 US 57, 61 (1998).  To deny a discharge under Sec. 523(a)(6), the debtor must have intended the consequences of his action and not just the action itself.  Subsequently, the Circuit held that the "willful injury" requirement of Sec. 523(a)(6) is met when it is shown either that the debtor had a subjective motive to inflict the injury or that the debtor believed that injury was substantially certain to occur as a result of his conduct.  In re Jercich), 238 F.3d 1202, 1208 (9th Cir.), cert. denied 121 S.Ct. 2552 (2001).  For Huarte's debt to be excepted from discharge under Sec. 523(a)(6), she had to show that, at the time of the injury, Clark intended the injury or was substantially certain injury would occur.  Huarte thought the settlement agreement satisfied this burden.  The settlement agreement, however, did not establish Clark's intent when the actions were taken;  rather, it was a concession, several years later, that Huarte, at the time of the episode, was incapable of consent.  In fact, nothing in the record indicates that, at the time, Clark intended to harm or was substantially certain that harm would befall Huarte.  The only record evidence was Clark's own testimony that he did not intend to hurt Huarte and he believed at the time that the encounter was consensual.  Because Huarte failed to show that any injury suffered was willful on Clark's part, her debt is discharged in bankruptcy.

15)  AMERICANS WITH DISABILITIES ACT: Tan v. Kaiser Harbor City Medical Center, 00-56892 (9th Cir. Dec. 3, 2001) (unpublished).  Pregerson, Reinhardt, and Silverman, Circuit Judges.
          Tan appealed a summary judgment entered by the District Court for the Central District of California, Judge Wilson presiding, on Tan's disability discrimination claims under the Americans with Disabilities Act and California's Fair Employment and Housing Act against his former employer Kaiser Foundation Hospital.
          The USCA reversed in part and affirmed in part, finding that when the evidence is viewed in the light most favorable to Tan, there were genuine issues of material facts as to some of his claims.  Tan, a licensed vocational nurse, suffered injuries to his neck and back when he attempted to break a patient's fall.  He entered a workers' compensation settlement with Kaiser.  That settlemnt incorpo-rated a statement by the agreed-upon medical examiner that Tan was permanently unable to perform the tasks of his former position due to a restriction against heavy lifting, pushing, and pulling.  The settlement further included a vocational rehabilitation program.  The collective bargaining agreement gave Tan priority over all other applicants on applications he filed within the seven-day posting period for any open position posted with ninety days after he completed the vocational rehabilitation program.  Tan unsuccessfully applied for twenty positions, five of which are the subject of this appeal.  Tan claimed that Kaiser discriminated against him because of his disability when it did not hire him for any of these positions.  When he unsuccessfully asked to have his former position back, Tan claimed that Kaiser also discriminated against him because of disability when it did not let him return to that former position.  Tan presented evidence that would allow a reasonable jury to conclude that Kaiser regarded him as disabled.  According to his evidence, when human resources supervisor Mooney saw Tan's application for family medicine position HCN 960282, which is not part of this appeal, she said: "Why is he applying for these LVN [Licensed Vocational Nurse] positions?  He has restrictions on him."  On the same day that Tan applied for position HCN 960282, he also applied for laboratory assistant position HCN 960281 and internal medicine position HCN 960283, both of which are part of this appeal.  Position HCN 960281 did not require heavy lifting, pushing and pulling.  A reasonable jury could conclude that Mooney was referring to all three of these positions when she spoke about "these LVN positions."  A reasonable jury could further conclude that Mooney regarded Tan as significantly restricted in his ability to perform the entire class of LVN jobs, including those that did not require heavy lifting, pushing, and pulling, and that she, thus, regarded him as disabled.  Tan also presented evidence that would allow a reasonable jury to conclude that Kaiser did not hire him for three of the five positions that are part of this appeal or let him return to his former position because of its perception that he was disabled.  Regarding position HCN 960283, Kaiser returned Tan's application for this position one day after he submitted it but did not hire the successful candidate until eighteen days later.  On the application, Kaiser checked the "other" box as the reason for not hiring Tan, without giving any further explanation, which was not Kaiser's usual practice.  A reasonable jury could conclude that Kaiser rejected Tan's application out of hand because it regarded his as disabled, and that Kaiser did not want to state this discriminatory reason for not hiring him.  As for position HCN 960281, Kaiser did not forward Tan's application for this position to the hiring supervisor until four days after Tan submitted it.  At that time, the successful candidate had already been chosen.  Kaiser has given no explanation for the delay in forwarding Tan's application.  A reasonable jury could conclude that Kaiser did not forward Tan's application because it regarded him as disabled and, thus, did not want the supervisor to hire him.  With respect to a third position, HCN 960189, Tan timely applied for it when it was originally posted with a Spanish requirement.  Because the position was posted within ninety days after Tan completed his vocational rehabilitation program, he had priority over all other applicants for this position.  Kaiser never argued that Tan was not qualified for this position as originally posted.  Kaiser nevertheless reposted the position with a Spanish preference.  Tan did not reapply and, as a result, lost his priority over all other applicants.  In the end, Kaiser chose another applicant for the position, one who also did not timely apply the second time.  A reasonable jury could conclude that Kaiser reposted the position with a lesser requirement—although it had in Tan a candidate who met the original higher requirement and had priority over all other applicants—because it viewed Tan as disabled and for that reason did not want to hire him.  Finally, Tan presented evidence that heavy lifting, pushing, and pulling was not an essential function of his former position.  The ADA protects only disabled employees who are able to perform, with or without rea-sonable accommodation, the essential functions of their positions.  By contrast, workers' compensation does not distinguish between essential and non-essential job functions.  The statement in the workers' compensation settlement that Tan was permanently unable to perform possible non-essential tasks of his former position due to a restriction from heavy lifting, pushing, and pulling thus does not preclude Tan from arguing that he is able to perform the essential functions of his former position.  The District Court thus erred when it held that Tan was judicially estopped from making this argument.  Tan also appealed the District Court's denial of his motion for reconsideration of summary judgment regarding positions HCN 960346 and HCN 960373.  The USCA reviewed the District Court's denial of a motion for reconsideration for an abuse of discretion.  Tan based his motion on his attorney's failure to argue before the District Court that Tan in fact timely filed his applications for these positions but that Kaiser incorrectly date stamped them one day after he filed them.  The District Court denied the motion because under Local Rule 7.16, the failure of an attorney to make a timely argument is not a proper ground for a motion for reconsideration.  In so holding, the District Court did not abuse its discretion.  Because Tan's attorney knew of the alleged misstamping before the District Court granted summary judgment, but failed to present the argument to the District Court at that time, he did not satisfy any of the three grounds for a motion for reconsideration listed in Local Rule 7.16.  Moreover, the facts as alleged by Tan did not raise a genuine issue of material fact as to the two particular positions at issues.  The District court thus did not err when it rejected Tan's motion for reconsideration of summary judgment regarding these two positions.

16)  IMMIGRATION: Wakileh v. INS, 00-70945 (9th Cir.  Dec. 13, 2001) (unpublished).  Noonan and Wardlaw, Circuit Judges, and Schwarzer, District Judge.
        George Wakileh and his wife Joulizar, along with their sons Johny and Edward (collectively "the Wakilehs"), are Catholic citizens of Jordan.  In 1992, they entered the United States and overstayed their visas.  In deportation proceedings, they sought asylum and a withholding of deportation.  On March 28, 1997, an Immigration Judge denied their applications, holding that they had provided insufficient evidence of past or future persecution.  On appeal, the BIA affirmed.
         The USCA denied the petition for review.  To qualify for asylum, the Wakilehs had to show past persecution on account of their religion, or a well-founded fear of future persecution.  A well-founded fear of future persecution must be both "subjectively genuine" and "objectively reasonable."  Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc).  Because the standard of proof required for withholding of deportation is higher than that required for asylum, the USCA analyzed only the asylum application.  It reviewed the BIA's factual determinations under the "substantial evidence" standard.  Under this standard, the USCA noted that it will uphold the BIA's determination if it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole."  INS v. Elias-Zacarias, 502 US 478, 481 (1992).  At his hearing, George Wakileh stated that he had been asked by the Moslem Brotherhood to join them 14 times, but that he had never been threatened or hurt.  Joulizar testified that she had been similarly approached eight times.  She also stated that a Moslem woman once pushed through the front door, grabbed her arm, "and kind of squeezed," telling her to wear more modest clothing.  At one point, unidentified persons made a "sincere" attempt to kidnap Edward, but his crying alerted the neighbors, who prevented the abduction.  George said that he believed it had been Moslems who had tried to kidnap his son, and the Jordanian police had refused to "do anything about it" because they, too, were Moslem.  Finally, George said he was afraid that if he returned to Jordan, "the same old things that happened to me will happen one more time … and maybe something worse."  He said that he has a brother living in Jordan and that "sometimes there are people [who bother him.]"  Persecution, the USCA noted, is "the infliction of suffering or harm upon those who differ in a way regarded as offensive."  Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996).  The USCA also noted that although it has found that the cumulative effect of several incidents may constitute persecution, id., the aggressive proselytization to which the Wakilehs were subject did not rise to that level.  Although the Wakilehs also testified to an attempted kidnapping and police indifference, they were unable to present evidence linking the two to a religious motive.  Finally, the Wakilehs failed to presented sufficient evidence to demonstrate that their fear of future persecution is "objectively reasonable."  State Department reports indicate that although Jordan does not recognize certain faiths, these faiths are permitted to conduct their activities without harassment.  Significantly, Catholicism is not listed as one of the non-recognized faiths.  In addition, the Wakilehs have family members who live in Jordan without persecution.  In rebuttal, the Wakilehs made only generalized claims of difficulties in the future.  However, "the objective component requires a showing by credible, direct, and specific evidence in the record."  Fisher, 79 F.3d at 960.

17)  IMMIGRATION: Tarigue v. INS, 99-71237 (9th Cir. Dec. 12, 2001) (unpublished).  Ferguson and Silverman, Circuit Judges, and Breyer, District Judge.
         Tarigue and his wife, Laila Nazim, and son, Saad Nabeel (collectively "Tarigue") appealed the dismissal of his application for asylum or withholding of deportation under 8 USC Sec. 1105a(a) (1994).  The Board of Immigration Appeals adopted the Immigration Judge's adverse credibility finding which was based on the IJ's determination that Tarigue omitted details of religious persecution by Islamic fundamentalists from his initial asylum application.  Tarique had relied on his political difficulties with the then-dominant Bangladesh National Party. 
         The USCA affirmed the BIA and denied the petition for review.  Tarigue's initial application omitted incidents that included his being beaten at the mosque, his house being bombed, and his being declared an apostate.  While "minor inconsistencies and inconsistencies that do not go to the heart of the asylum claim cannot support adverse credibility determinations," these omissions were not minor.  They essentially changed his application from one for asylum for political persecution to asylum for religious persecution.  At least one incident omitted from his initial application—the bombing of his home—shed significant light on Tarigue's fear for his safety."  In a similar case, the Circuit noted that where the discrepancies related to the basis for the Petitioner's alleged fear of persecu-tion, those discrepancies "involved the heart of the asylum claim" and support the negative credibility finding.  Leon-Barrios v. INS, 116 F.3d 391, 393-4 (9th Cir. 1997).  Tarigue argued that the adverse credibility finding was not adequately supported.  "Adverse credibility findings must be supported by specific, cogent reasons, and the reasons set forth must be substantial and must bear a legitimate nexus to the finding."  Akinmade v. INS, 196 F.3d 951, 954 (9th Cir. 1999).  The IJ met this burden.  She pointed to specific omissions in Tarigue's testimony and placed them in the context of his claim and recent political events in Bangladesh in determining that Tarigue was not credible.  Tarigue also argued that the IJ was predisposed to discredit his testimony, citing Garrovillas v. INS, 156 F.3d 1010, 1014-16 (9th Cir. 1998).  However, the USCA found that a full review of the record revealed no such predisposition. 

18)  IMMIGRATION: USA v. Lugo-Moron, 01-50108 (9th Cir. Dec. 26, 2001) (unpublished).  Pregerson, Tashima, and Berzon, Circuit Judges.
        Lugo-Moron was being escorted by air from Hawaii to Los Angeles by the INS, when he had an in-flight altercation with an INS officer.  Lugo-Moron, who is Spanish-speaking, was convicted of threatening a federal officer in violation of 18 USC Sec. 115(a)(1)(B).  He appealed, arguing that the requirements of Sec. 115(a)(1)(B) were not met because he never intended to communicate a threat to the INS officer,
       The USCA affirmed.  Lugo-Moron maintained that the District Court for the Central District of California, Judge Marshall presiding, erred in ruling that his statements to INS Officer Piche, who does not understand Spanish, constituted a threat under Sec. 115(a)(1)(B) because he did not intend his Spanish words to be understood by Piche;  in finding that he had made a threat, Lugo-Moron claims that the district court improperly interpreted Sec. 115(a)(1)(B) as a general intent statute when it requires specific intent.  Lugo-Moron made much of the prosecutor's statements in his closing argument which characterized Sec. 115(a)(1)(B) as a general intent crime.  On examination, however, the USCA found Lugo-Moron's formulation of the intent requirement to be legally indistinguishable from the government's.  Both interpret Sec. 115(a)(1)(B) as requiring that a defendant intend to communicate his threat to his target.  This formulation is in accord with Circuit law that the only intent requirement under Sec. 115(a)(1)(B) is that the defendant intentionally or knowingly communicates his threat, not that he intended or was able to carry out threat.  USA v. Orozco-Santillan, 903 F.2d 1262, 1265 n.3 (9th Cir. 1990).  The confusion regarding general versus specific intent seems to have resulted from the fact that the prosecutor, in his closing argument, assumed that specific intent required that the defendant have the intent to commit the underlying act.  Lugo-Moron suggests that the district court relied on his erroneous formulation of intent, invalidating its ultimate decision to convict.  However, although the prosecutor may have mislabeled the appropriate level of intent required under Sec. 115(a)(1)(B), he correctly stated the intent standard of Orozco-Santillan.  The USCA thus concluded that, to the extent the district court relief on the prosecutor's statement of the intent standard, there was no error.  The question thus became whether the district court properly found that Lugo-Moron possessed the requisite intent to communicate the threat.  Lugo-Moron argued that the district court erred since he could not have formed an intent to communicate his threat in Spanish to someone who could not understand that language.  His argument rested on the assumption that the district court found that his threats to Piche were only made in Spanish.  The district court, however, did not make any specific findings of fact.  The USCA thus could uphold the district court's decision if it rests upon a reasonable view of the record.  Here both Piche and his partner, Officer Masteller, testified that Lugo-Moron stated, in English, that either he or his friends would kill Piche.  The USCA found this to be a sufficient evidentiary basis to support the district court's decision that Lugo-Moron having threatened Piche in English, intended to communicate his threat.  The only remaining issue was whether the words communicated by Lugo-Moron constituted a true threat.  The Circuit has held that "whether a particular statement may properly be considered a threat is governed by an objective standard—whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault."  Orozco-Santillan, 903 F.2d at 1265.  There was little doubt that a reasonable person in Lugo-Moron's position would have foreseen that statements such as "I'm going to kill you," or "I have friends in Hawaii that can kill you," spoken in anger would be interpreted by Piche as serious expressions of intent to harm.  The USCA thus concluded that Lugo-Moron's statements amounted to a threat under Sec. 115(a)(1)(B).

19)  IMMIGRATION: Valtchev v. INS, 00-55777 (9th Cir. Dec. 6, 2001) (unpublished).  Schroeder, Trott, Rawlinson, Circuit Judges.
        Valtchev appealed the dismissal of his 28 USC Sec. 2241 habeas petition by the District Court for the Central District of California, Judge Matz presiding.  The USCA affirmed.  Contrary to the INS's claim, the District Court had subject matter jurisdiction over Valtchev's petition, regardless of whether Valtchev had exhausted his administrative remedies.  However, the petition was without merit.  Valtchev, who is in the United States illegally, has no fundamental right to remain in the United States.  While he enjoys Fifth Amendment due process rights in deportation proceedings, he does not have a constitutional right to have his visa petition granted or denied within a certain period of time.  He has the right to have the visa processed within the procedures authorized by Congress.  As he did not allege that the INS did not following the procedures set forth by Congress, his due process claim was without merit.  Moreover, he failed to adequately raise an estoppel argument that the INS should not be allowed to deport him due to its delay in proc-essing his visa petition.  He did not assert affirmative misconduct on the part of the INS.  At best, he showed an unexplained delay of 48 months, which was insufficient to support an estoppel claim.  He also failed to show ineffective assistance of counsel.  His counsel had obtained a favorable voluntary departure period in exchange for withdrawing Valtchev's asylum claim and could reasonably have been attempting to conserve resources by pursuing what he thought to be the better course of action, Valtchev's visa petition.  Valtchev provided no evidence that his counsel delayed in filing the visa petition or that any alleged delays were the result of counsel error.  Finally, he was not entitled to an evidentiary hearing.  Under Campbell v. Blodgett, 978 F.2d 1502, 1519 (9th Cir. 1992), an evidentiary hearing is required only when the petitioner asserts facts "which if proved, would entitle him to relief."

20)  IMMIGRATION: Nayada v. INS, 00-71336 (9th Cir. Dec. 6, 2001) (unpublished).  Pregerson (dissenting) and Rawlinson, Circuit Judges, and Weiner, District Judge.
        Nayada petitioned for review of a Board of Immigration Appeals decision affirming the Immigration Judge's denial of her application for asylum.  Nayada's evidence of past persecution included a single incident of police questioning regarding her political affiliation, and villagers telling her father of threats of rape against Nayada.  Nayada failed to present evidence of past persecution or fear of future persecution sufficient to compel a finding contrary to the IJ's.
 Dissenting, Judge Pregerson thought Nayada not only presented evidence that the Fijian military arrested her and that ethnic Fijians over several years repeatedly threatened her with rape, but that she also presented evidence that her father was beaten and her brother stabbed.  She also presented evidence that several times her family's crops were burned and their farm animals were killed.  Nayada alleged that the Fijian military and ethnic Fijians did these things because her father and brother, although ethnic Fijians, were active in a predominantly ethnic Indian party.  This evidence fits the Circuit's definition of past persecution as "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive."  Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995).  Nayada also was persecuted on account of imputed political opinion because she was "a member of a politically active family, other members of which had been persecuted for their political beliefs."  Judge Pregerson thus thought the evidence compelled a finding contrary to the IJ's.

21)  HABEAS CORPUS / RETROACTIVE APPLICATION OF LAW: USA v. Bobadilla, 00-57013 (9th Cir. Dec. 11, 2001) (unpublished).  Rymer (concurring) and Rawlinson, Circuit Judges, and Pogue, Court of Intl. Trade Judge.
        The District Court for the Central District of California, Judge Wilson presiding, dismissed Bobadilla's petition for a writ of habeas corpus pursuant to 28 USC Sec. 2255.  The District Court dismissed the petition as untimely because it was filed more than one year after the time for seeking certiorari in the Supreme Court expired.  In determining the timeliness of the petition, the District Court relied on USA v. Garcia, 210 F.3d 1058 (9th Cir. 2000), a case decided five months after the filing of Bobadilla's petition.  Bobadilla argued that the District Court's retroactive application of Garcia violated due process and constituted an improper application of new law.
        The USCA affirmed.  Garcia holds that the one year limitations period for filing a motion to attack a conviction under 28 USC Sec. 2255 begins when the time for filing a petition for a writ of certiorari expires.  According to Bobadilla, Garcia should not apply retroactively, on collateral review, because a previous Ninth Circuit case already addressed the issue and, that he had reasonably relied on that earlier case.  See Calderon v. U.S. Dist. Court (Beeler), 128 F.3d 1283 (9th Cir. 1997), cert. denied, Beeler v. Calderon, 523 US 1061, overruled in part on other grounds by Calderon v. Dist. Court (Kelly), 163 F.3d 530 (9th Cir. 1998).  However, the USCA found that Bobadilla's reliance on Beeler was misplaced.  The "usual rule is that federal cases should be decided in accordance with the law existing at the time of the decision."  Goodman v. Lukens Steel Co., 482 US 656, 662 (1987);  Coopers & Lybrand v. Sun-Diamond Growers of California, 912 F.2d 1135 (9th Cir. 1990);  USA v. Kane, 876 F.2d 734 (9th Cir. 1989) ("retroactive application of judicial decisions is the rule not the exception.").  "Indeed, a legal system based on precedent has a built-in presumption of retroactively."  Solem v. Stumes, 465 US 638, 642 (1984)  "When a court delivers a ruling, even if it is unforeseen, the law has not changed.  Rather, the court is explaining what the law always was."  Jones Stevedoring Co. v. Director, Office of Workers Comp., 133 F.3d 683, 688 (9th Cir. 1997).  In Garcia, the plaintiff filed a motion more than one year after the mandate was spread but within a year of the expiration of the time period for filing a petition for certiorari.  The court applied the announced rule to Garcia, holding his motion timely.  Because the holding was applied to Garcia, and the court did not specifically reserve the question of retroactive application, its ruling on timeliness should be applied to Bobadilla.  Harper v. Virginia Department of Taxation, 509 US 86 (1993) (a "rule of federal law, once announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law").  Moreover, as the government argued, Garcia did not make "new law," but merely "construed the statutory language contained in Sec. 2255 regarding the time for filing a motion."  As in USA v. Newman, 203 F.3d 700 (9th Cir. 2000), which held that due process concerns were inapplicable where the case "interprets a federal statute concerning the calculation of the length of a term of imprisonment without reference to the issue of the defendant's criminal liability," Garcia merely interpreted the term "final" in Sec. 2255.  Newman, 203 F.3d at 703.  This interpretation does not affect Bobadilla's culpability but rather when a filing is timely.  Due process issues are thus not implicated by retroactively application of Garcia.
        Bobadilla also relied on Green v. White, 223 F.3d 1001 (9th Cir. 2000), a case in which Green attempted to argue that a one-year time limitation should be equitably tolled because the delay was a result of his and his attorney's reliance upon Lindh v. Murphy, 521 US 320 (1997).  The court held that Green could not have relied on Lindh for two reasons:  first, it was decided three weeks after Green filed his petition; and second, Green's reliance on Lindh was not reasonable.  Bobadilla maintained that his situation differs from Green's because he reliance on Beeler was reasonable.  Bobadilla's reasonableness claim rests on the fact that Beeler was the only Ninth Circuit case that specifically addressed the issue of finality for purposes of the statute of limitations for filing a Sec. 2255 motion at the time that Bobadilla filed his motion.  According to Bobadilla, Beeler contained unequivocal language that, taken together with a Seventh Circuit decision, made it reasonable to assume that the Ninth Circuit's position on finality would be that the limitations period runs when the mandate is spread.  See Beeler, 128 F.3d at 1286 n.2 ("a judgment does not become final following appeal until the case is returned to the district court and the mandate is spread");  see also Gendron v. USA, 154 F.3d 672, 674 (7th Cir. 1998).  As in Green, however, Bobadilla's reliance was not reasonable.  Beeler only discussed the issue in a footnote of dicta.  Regardless of whether this language is "unequivocal," the case made clear that it was not deciding this specific issue.  See id. ("We assume Beeler's year began to run on the date his petition for certiorari was denied only because the precise date does not affect the outcome of this case.").  Moreover, Bobadilla's reliance on the Seventh Circuit was misplaced.  Compare Gendron, 154 F.3d at 674, with Kapral v. USA, 166 F.3d 565, 569 (3rd Cir. 1999).  The Third Circuit had also already decided this issue, defining "final" in the same way the Garcia court eventually did.  See Kapral, 166 F.3d at 569.  The existence of this circuit split detracts from Bobadilla's reliance argument.
       Judge Rymer concurred in the judgment because Beeler discussed finality only in a footnote of dicta.  While in Gendron the Seventh Circuit held that the limitations period began to run on the date the court of appeals issued its mandate, the Third Circuit held otherwise in Kapral.  There was thus a circuit split prior to the expiration of Bobadilla's one-year period for filing his Sec. 2255 petition.  In these circumstances, a change in the law is not unforeseeable.  As due process bars retroactive application of a change in the law only when unforeseeable, see USA v. Qualls, 172 F.3d 1136 (9th Cir. 1999), Garcia was not impermissibly applied retroactively to Bobadilla.