2)  INTELLECTUAL PROPERTY:  Stuhlbarg Intl. Sales Co. v. John D. Brush & Co., 99-56676 (9th Cir. Feb. 13, 2001).    
           This case, which arose from a trademark dispute over the use of the term "Fire-Safe," was precipitated by the Customs Service's detention of imported safes bearing that mark;  Stuhlbarg brought a suit for declaratory judgment and cancellation of the "Fire-Safe" trademark owned by John D. Brush & Company.  John D. Brush & Company challenged the district court's jurisdiction, arguing that exclusive jurisdiction lies with the Court of International Trade and that the claims are barred by the doctrines of exhaustion and ripeness.  The USCA held that the district court had jurisdiction over the trademark dispute, was not barred from hearing the claim, and did not abuse its discretion in issuing the preliminary injunction.  Hug, McKeown (author), and Paez, Circuit Judges.  D. Martin of Los Angeles, CA, for the appellant;  G. Anderson of Long Beach, CA, for the appellee.   (Download the full text at www.ce9.uscourts.gov/) 

 3)  CIVIL RICO:  Pincay v. Andrews, 98-55217 (9th Cir. Feb. 6, 2001).  
        The civil Racketeer Influenced and Corrupt Organizations Act four-year statute of limitations begins to run, as a matter of law, upon receipt of written disclosure of the alleged injury;  in the instant case, the plaintiffs' action was barred by the statute of limitations as they had received a written disclosure of their injury more than four years before filing their claims.  O'Scannlain (author), Fernandez, and Rawlinson, Circuit Judges.  D. Boies of Armonk, NY, for the defendants-appellants / cross-appellees;  N. Papiano of Los Angeles, CA, for the plaintiffs-appellees / cross-appellants.   (Download the full text at www.ce9.uscourts.gov/) 

4)  CIVIL RICO:  Association of Washington Public Hospital Districts v. Philip Morris, Inc., 00-35117 (9th Cir. Feb. 22, 2001).  
         A public hospital district may not bring federal and state claims against tobacco firms to recover their unreimbursed costs for treating patients suffering from tobacco-related illnesses.  Boochever, O'Scannlain (author), and Tashima, Circuit Judges.  M. Vaska of Seattle, WA, for the plaintiffs-appellants;  J. Phillips of Seattle, WA, for the defendant-appellee Philips Morris;  H. J. Escher of San Francisco, CA, for defendant-appellee R.J. Reynolds Tobacco.   (Download the full text at www.ce9.uscourts.gov/) 

5)  TAXATION / INTERNATIONAL LAW:  Lidas, Inc. v. USA, 99-55692 (9th Cir. Feb. 5, 2001). 
        An IRS summons issued at the request of French tax authorities under the terms of the United States-France Income Tax Treaty may be enforced in federal court.  O'Scannlain (author), Fernandez, and Rawlinson, Circuit Judges.  E. Ord of San Francisco, CA, for the appellants;  R. Lindsay of Washington, DC, for the appellee.   (Download the full text at www.ce9.uscourts.gov/) 

6)  TAXATION:  Catalano v. CIR, 99-70909 (9th Cir. Feb. 15, 2001).
         A subchapter S corporation and its shareholders are separate entities and the Subchapter S Revision Act of 1982 did not alter this principle; in the instant case, the petitioner, an individual, was the sole shareholder of a S corporation to which he leased boats which he then used to entertain his clients;  he received taxable lease income from the corporation but the Tax Court properly found that the boats constituted entertainment facilities and denied the corporation deductions for the lease payments.  Schroeder, Hall, and W. Fletcher, Circuit Judges.  Per Curiam.  P. Catalano pro se;  P. Bowman of Washington, DC, for the respondent-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

7)  ARBITRATION:  Textile Unlimited v. A. BMH & Co., 00-56358 (9th Cir. Feb. 14, 2001). 
        Under the circumstances presented by this case, the Federal Arbitration Act did not require venue in the contractually designated arbitration locale.  Trott, Thomas (author), and Berzon, Circuit Judges.  M. Kassabian of Los Angeles, CA, for the defendant-appellant; W. Park of Los Angeles, CA, for the plaintiff-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

8)  BANKRUPTCY:  In re Hunt, 99-15856 (9th Cir. Feb. 6, 2001). 
        A debtor who requests attorneys' fees in a pretrial conference statement does not waive his right to fees by failing to repeat the request in his pleadings;  the debtor's pretrial request was incorporated by reference into the bankruptcy court's pretrial order, and a pretrial order has the effect of amending the pleadings.  Thompson, O'Scannlain, and Tashima (author), Circuit Judges.  S. Rine of Concord, CA, for the appellant;  W. Jones of Sacramento, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

9)  ENVIRONMENTAL LAW / STANDING:  Cantrell v. City of Long Beach, 98-56940 (9th Cir. Feb. 5, 2001).  
       Plaintiffs who demonstrate that their ability to view birds and bird habitat from publicly accessible areas surrounding government property would be drastically limited by government action, had environmental standing to challenge the adequacy of an environmental impact statement under the National Environmental Policy Act, but failed to establish taxpayer standing sufficient to bring their state law claims in federal court.  Reinhardt (author) and Berzon, Circuit Judges, and Breyer, District Judge.  R. Fine of Los Angeles, CA, for the plaintiffs-appellants;  D. Holzhaus of Long Beach, CA, and J. Rubiner of Los Angeles, CA, for the defendants-appellees.   (Download the full text at www.ce9.uscourts.gov/) 

10)  ENVIRONMENTAL LAW:  National Parks & Conservation Assoc. v. Babbitt, 99-36065 (9th Cir. Feb. 23, 2001). 
     The National Parks Service must prepare an EIS before implementing a plan allowing greatly increased vessel traffic in Glacier Bay National Park where the extent of the likely environmental injury and the impact of the proposed mitigation measures were both uncertain, but that uncertainty could be resolved by further data collection;  in giving insufficient respect to their experts' evaluation of harm, declaring that no significant environmental effects were likely, and implementing the vessel traffic increase without complying with the requirements of the NEPA, the Park Service's decision-makers made a "clear error of judgment."  D.W. Nelson, Reinhardt (author), and Thomas, Circuit Judges.  C. Stetson of Washington, DC, for the plaintiff;  S. Donahue of Washington, DC, for the defendants;  C. Christianson of Anchorage, AK, for the intervenor.  (Download the full text at www.ce9.uscourts.gov/) 

11)  SETTLEMENTS:  In re Exxon Valdez, 99-35898 (9th Cir. Feb. 8, 2001).
        The issue here, whether Exxon may enter into settlements that permits it to recoup damages assessed against itself, was controlled by Icicle Seafoods v. Baker, 229 F.3d 790 (9th Cir. 2000), which held that policies supporting settlement of disputes militate in favor of permitting such settlements and that "far from being unethical, cede back agreements make it easier to administer mandatory class actions for the assessment of punitive damages and encourage settlement in mass tort cases."  Browning, Schroeder (author), and Kleinfeld, Circuit Judges.  J. Daum of Los Angeles, CA, for defendants; D. Oesting of Anchorage, AK, for plaintiffs.   (Download the full text at www.ce9.uscourts.gov/) 

12)  EMPLOYMENT DISCRIMINATION  AMERICANS WITH DISABILITIES ACT:  Humphrey v. Memorial Hospitals Association, 98-15404 (9th Cir. Feb. 13, 2001).  
        Under the Americans with Disabilities Act, an employer could not deny an employee an otherwise reasonable accommodation (working at home) on the grounds of past disciplinary action taken against the employee due to the disability she sought to be accommodated (mental obsession and peculiar rituals that made it hard for her to get to work on time or at all).  Kravitch, Reinhardt (author), and T.G. Nelson, Circuit Judges.  J. Budin of Modesto, CA, for the plaintiff-appellant;  J. Fisher of Sacramento, CA, for the defendant-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

13)  EMPLOYMENT DISCRIMINATION:  Llamas v. Butte Community College District, 99-16325 (9th Cir. Feb. 7, 2001).  
       A community college district was immunized from liability in a civil rights and due process challenge brought by a job applicant who had been disqualified from all employment with the district based on an accusation that he cheat on a test given as part of the employee selection process;  concurring, Judge Hawkins agreed with the majority's conclusion that the defendants' actions did not violate Title VII or federal constitutional principles of due process, but he wrote separately because as a consequence of this litigation the plaintiff's employment record at the district became public, including the details of the district's termination based on an accusation of dishonesty that the plaintiff had never been allowed an opportunity to challenge.  Kleinfeld, Hawkins (concurring), and Tallman (author), Circuit Judges.  J. Ellinwood of Roseville, CA, for the plaintiff-appellant;  J. Smith of Sacramento, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

14)  LABOR LAW:  Scott v. Stephen Dunn & Associates, 00-15416 (9th Cir. Feb. 2, 2001).  
        Under Sec. 10(j) of the National Labor Relations Act, an interim bargaining order pending final administrative adjudication by the National Labor Relations Board was ap-propriate where by granting a wage increase an employer undermined a union's chance of achieving majority status before an election;  dissenting, Judge Sneed thought that this case involved a relatively small employer whose violations of the Act were relatively minor and that a court-ordered demand to bargain imposes a significant  hardship on both employees and employers;  in Judge Sneed's view when that hardship is measured against the threat to the Board's remedial authority, the balance does not tip decidedly in favor of the Board;  thus Judge Sneed thought the district court's judgment should be affirmed, a bargaining order denied, and a lesser sanction imposed..  Schroeder, Sneed (dissenting), and Paez (author), Circuit Judges.  A. Karsh of Washington, DC, for the petitioner-appellant;  H. Lewis of San Francisco, CA, for the respondent-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

15)  QUALIFIED IMMUNITY:  Keyser v. Sacramento City Unified School Dist., 99-17562 (9th Cir. Feb. 7, 2001).  
       A public employee does not have qualified immunity from suit for allegedly retaliating against subordinates who accused him of illegally using federal money;  Judge Fletcher dissented from Part IV. B of the majority opinion which affirmed the district court's grant of summary judgment to defendant Sweeney on First Amendment claims of plaintiffs Keyser and Robeledo.  Judge Fletcher noted that the majority maintained that Keyser and Robledo produced only "mere evidence that Sweeney knew of their charges" and that this was insufficient to create a genuine issue of material fact as to whether Sweeney's allegedly adverse employment actions were motivated by their charges;  if that were so, Judge Fletcher says he would agree;  however, viewing the evidence in the light most favorable to Keyser and Robledo, as required, he concluded that the plaintiffs have presented sufficient evidence for the First Amendment claims to survive summary judgment.  B. Fletcher (dissenting in part), O'Scannlain (author), and Gould, Circuit Judges.  M. Smith of Sacramento, CA, for the plaintiffs-appellants;  M. Pott of Sacramento, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

16)  QUALIFIED IMMUNITY:  Jeffers v. Gomez, 99-15867 (9th Cir. Feb. 20, 2001).  
        A prison officer who shoots and injures an inmate during a prison disturbance is entitled to qualified immunity if that officer did not act purposely to injure the inmate and the law clearly establishes that the officer was permitted to use deadly force in a good faith effort to maintain or restore discipline;  the emer-gency responses and prison security measures, undertaken in this case to control a large-scale disturbance in a prison yard, did not constitute Eighth Amendment violations under circumstances in which the plaintiff inmate was wounded by a rifle shot fired by a correctional officer.  Aldisert (author), Kozinski, and Garber, Circuit Judges.  J. Rivera, D. Adams, J. Adkission of Sacramento, CA, and J. Weck of San Diego, CA, for the defendants-appellants;  J. Scott of San Francisco, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

17)  TORTS  GOVERNMENT IMMUNITY:  Kelly v. USA, 99-35134 (9th Cir. Feb. 28, 2001).  
        The Forest Service's decision not to require its contract firefighter pilots to have a specific type of flight training is protected by the discretionary function exception to the Federal Tort Claims Act;  the extent and type of the Forest Service's flight training is a matter left to the agency's discretion and is susceptible to policy analysis;  Judge Ferguson concurred but wrote separately to emphasize the facts surrounding the airplane crash; specifically, while the pilots made some mistakes on takeoff, they were extremely well-qualified and experienced pilots; both had received some formal crew resource management training and both consistently demonstrated proficiency in crew coordination.  Alarcon, Ferguson (concurring), and McKeown (author), Circuit Judges.  C. Scarborough of Washington, DC, for the appellant;  M. Con-nell of Albuquerque, NM, for the appellees.   (Download the full text at www.ce9.uscourts.gov/) 

18)  TORTS / JURY INSTRUCTIONS:  Voohries-Larson v. Cessna Aircraft Co., 99-15916 (9th Cir. Feb. 22, 2001).  
        In a wrongful death and product liability action arising from an airplane crash, evidence of the pilot's fatigue, sleep deprivation, alcohol consumption, disregard of FAA regulations, failure to wear required corrective lenses, and insistence that the passengers join him in the flight despite the risks were sufficient to warrant a jury instruction on superseding cause and willful and wanton conduct;  Judge Reinhardt dissented noting that Arizona law explicitly forbids summary adjudication of contributory negligence;  Cessna, he thought, attempted to sidestep this prohibition by characterizing decedents' negligence as a superseding cause in the instruction it submitted to the district court—"if you find the action of Plaintiffs' decedents constituted a superseding cause, you must find for Defendant Cessna." In giving this instruction, Judge Reinhardt thought the district court erroneously allowed the jury to disregard the issue of contributory negligence, over the plaintiffs' objection, and in violation of Arizona law.  Reinhardt (dissenting), Brunetti (author), and Rymer, Circuit Judges.  B. Meyerson of Phoenix, AZ, for the plaintiffs-appellants;  R. Williams of Wichita, Kansas, for the defendant-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

19)  INSURANCE:  Gerling Global Reinsurance Corp. of America v. Low, 00-16163 (9th Cir. Feb. 7, 2001). 
      The district court erred in enjoining the enforcement of California's Holocaust Victim Insurance Relief Act of 1999 for the reason that the plaintiffs had established a likelihood of irreparable harm and a probability of success on issues of whether the Act violates the dormant Commerce Clause and the federal government's "foreign affairs" power;  the USCA left the preliminary injunction in place but remanded for further proceedings as to whether the Act violates the Due Process Clause.  Goodwin, Graber (author), and Paez, Circuit Judges.  F. Kaplan of Los Angeles, CA, for the defendant-appellant;  P. Simshauser of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

20)  LAND USE / DUE PROCESS:  Weinberg v. Whatcom County, 98-36088 (9th Cir. Feb. 27, 2001).  
       A developer's right to procedural due process is violated when the county planning agency fails to provide a hearing before halting a previously approved land development project.  Reavley, Hall, and O'Scannlain (author), Circuit Judges.  K. Denke of Seattle, WA, for the plaintiffs-appellants;  R. Watts of Bellingham, WA, and C. Morris of Issaquah, WA, for the defendants-appellees.   (Download the full text at www.ce9.uscourts.gov/) 
 

21)  JURISDICTION:  Los Angeles v. Federal Aviation Administration, 99-70452 (9th Cir. Feb. 14, 2001).  
       The district court, not the USCA, has jurisdiction to first hear an appeal by owners and operators of airports challenging a Final Policy of the FAA under which the Federal Aviation Administration Reauthorization Act of 1996 subjects airport operators who accepted federal grants in the past (as did Los Angeles) to indefinite revenue-use restrictions.  Goodwin, Hug (author), and Hall, Circuit Judges.  S. Rosenthal of Washington, DC, for the petitioners;  R. Kamenshine of Washington, DC, for the respondents.  (Download the full text at www.ce9.uscourts.gov/) 

22)  PERSONAL JURISDICTION / VENUE:  Myers v. The Bennett Law Offices, 99-15873 (9th Cir. Feb. 5, 2001). 
       A Utah law firm purposefully availed itself of the privilege of conducting activities in Nevada's forum when it allegedly violated federal law by improperly retrieving credit reports on individuals it knew to be Nevada residents.  Thompson, O'Scannlain, and Tashima (author), Circuit Judges.  J. Pitegoff and M. Gliner of Las Vegas, NV, for the plaintiff-appellants;  D. Polsenberg of Las Vegas, NV, for the de-fendant appellee.   (Download the full text at www.ce9.uscourts.gov/) 

23)  JURISDICTION:  Lee v. County of Los Angeles, 98-55807 (9th Cir. Feb. 14, 2001).  
       A federal district court in California had personal jurisdiction over officers of the New York State Department of Correctional Services who interacted extensively with California law enforcement officers and traveled to California, to take custody of the plaintiff for extradition to New York;  the plaintiff, a mentally disabled resident of Los Angeles, had been wrongfully arrested, extradited and incarcerated in prison between October 1993 and October 1995 before any attempt was made to identify him as the actual fugitive the New York officers were looking for;  the USCA reversed the district court's Rule 12(b) dismissal with prejudice of the plaintiff's Sec. 1983 claims against all defendants.  Pregerson (author), W. Fletcher, and Gould, Circuit Judges.  M. Seplow of Venice, CA, for the plaintiffs-appellants;  J. Bogigian of Los Angeles, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

24)  JURY DEMANDS:  Pacific Fisheries Corp. v. HIH Casualty & General Insurance, Ltd., 99-16209 (9th Cir. Feb. 9, 2001). 
       That a jury demand was untimely due to the misinterpretation of local rules and rules of civil procedure did not provide grounds for broadening the district court's narrow discretion to grant the demand;  the district court's discretion was narrow because the plaintiff's jury demand was untimely due to a mistake of law, which is no different than inadvertence or oversight.  Wallace, Fisher, and Rawlinson (author), Circuit Judges.  D. Henson of San Francisco, CA, for the plaintiff-appellant;  R. Windes of Seattle, WA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

25)  ATTORNEYS' FEES / EQUAL ACCESS TO JUSTICE ACT:  Sorenson v. Mink, 99-35709 (9th Cir. Feb. 13, 2001).         
       The cost-of-living adjustment for attorneys' fees awarded under the Equal Access to Justice Act must be calculated according to the consumer price index for the year in which the fees were earned;  the "prevailing market rate" is the proper measure of fees awarded under 42 USC Sec. 1988.  Hall, Rymer, and Graber (author), Circuit Judges.  M. Robinson of Washington, DC, for the defendant-appellant / cross-appellee;  N. Stoll of Portland, OR, for the plaintiffs-appellees / cross-appellants.   (Download the full text at www.ce9.uscourts.gov/) 

26)  CHILD SUPPORT / SUPERVISED RELEASE:  USA v. Lakatos, 00-50079 (9th Cir. Feb. 8, 2001).  
        A federal district court erred in ordering a defendant to pay his past-due child support obligations in full as a condition of his supervised release;  while a district court may require a defendant to comply with a state child support judgment or enforcement order as a condition of supervised release, it may not negate the express terms of such a judgment or order in so doing;  specifically, it may not order that the support obligations be paid at a different rate than established by the state court judgment;  dissenting in part, Judge Thomas noted that the record did not contain either the California or Idaho child support orders or judgments;  he thus found it impossible to ascertain which state has the controlling order pursuant to the Uniform Interstate Family Support Act;  it was thus also impossible for Judge Thomas to determine whether the condition of supervised release negated the express terms of the operative state order;  Judge Thomas thus would remand for further development of the record and reconsideration by the district court in light of the majority's decision without holding that the California court order is conclusive..  Trott (author), Thomas (dissenting in part), and Berzon, Circuit Judges.  FPD R. Novak of Los Angeles, CA, for the defendant-appellant;  AUSA M. Raphael of Los Angeles, CA, for the plaintiff-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

27)  SANCTIONS:  Fink v. Gomez, 99-56139 (9th Cir. Feb. 8, 2001).
        An attorney's reckless misstatements of law and fact, when coupled with an improper purpose, such as an attempt to influence or manipulate proceedings in one case so as to gain a tactical advantage in another case, are sanctionable under the district court's inherent power;  mere recklessness, without more, does not justify sanctions under a court's inherent power.  Canby, McKeown (author), and Paez, Circuit Judges.  S. Perry of Woodland Hills, CA, for the appellant;  D. Dibiase of Los Angeles, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

28)  FREEDOM OF SPEECH:  Western States Medical Center v. Shalala, 99-17424 (9th Cir. Feb. 6, 2001).
        Two subsections of the Food and Drug Administration Modernization Act of 1997, 21 USC Sec. 353a(a) and (c), which prohibit drug providers from promoting or advertising particular compounded drugs, violate the First Amendment's guarantee of free speech;  as the two provisions may not be severed from the rest of Sec. 353a, Sec. 353a is invalid in its entirety.  Schroeder, Hall (author), and W. Fletcher, Circuit Judges.  P. Smith of Washington, DC, for the defendants-appellants;  M. Reiter of Chicago, IL, for the plaintiffs-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

29)  FREEDOM OF SPEECH:  Hopper v. City of Pasco, 98-35795 (9th Cir. Feb. 15, 2001).  
      A city violated an artist's First Amendment rights when it created a designated public forum, and then excluded certain of the plaintiff's artwork as too "controversial" without first showing a compelling government interest;  dissenting in part, Judge Gould thought that factual issues of Pasco's intent remains open, U.S. Supreme Court precedent dictates a different rule regarding the creation of a designated public forum in light of the summary judgment stand, and that the Ninth Circuit should wait for development of a full factual record before creating a new rule;  Judge Gould also thought the majority's ruling unfair to and unworkable for cities within the Circuit and likely to discourage cities from experimenting with public art displays, which ultimately will be more harmful for artists than permitting Pasco to have its day in court.  Browning, McKeown (author), and Gould (dissenting in part), Circuit Judges.  P. Lawrence of Seattle, WA, for the plaintiffs-appellants;  G. Fearing of Kennewick, WA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

30)  FREEDOM OF SPEECH:  Prison Legal News  v. Cook, 99-36084 (9th Cir. Feb. 7, 2001). 
      An Oregon Department of Corrections policy that prohibits the receipt of standard rate mail ("bulk mail") is unconstitutional as applied to subscription non-profit organizational mail.  Beezer (author), Rymer, and Graber, Circuit Judges.  S. Stiltner of Seattle, WA, for the plaintiffs-appellants;  C. Hutchins of Salem, OR, for the defendants-appellees.   (Download the full text at www.ce9.uscourts.gov/) 

31)  IMMIGRATION LAW:  Valerio-Ochoa v. INS, 98-70529 (9th Cir. Feb. 15, 2001).  
       The negligently discharging of a firearm in violation of California Penal Code Sec. 246.3 is a deportable firearms offense pursuant to 8 USC Sec. 1227.  Trott, Thomas (author), and Berzon, Circuit Judges.  R. Montes of San Diego, CA, for the petitioner;  B. Slocum of Washington, DC, for the respondent.   (Download the full text at www.ce9.uscourts.gov/) 

32)  IMMIGRATION LAW:  Ram v. INS, 99-70918 (9th Cir. Feb. 8, 2001).  
       The stop-time rule—a new continuous physical presence requirement set forth in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996—applies generally to "transitional rule" aliens seeking suspension of deportation;  this application of the stop-time rule is not impermissibly retroactive and does not violate due process.  B. Fletcher, O'Scannlain, and Gould (author), Circuit Judges.  N. Fellom of San Francisco, CA, for the petitioners;  S. Houser of Washington, DC, for the respondent.   (Download the full text at www.ce9.uscourts.gov/) 

33)  IMMIGRATION LAW:  Guadalupe-Cruz v. INS, 99-70754 (9th Cir. Feb. 27, 2001).
       In its final order of deportation entered on June 7, 1999, the BIA erred in not reversing an immigration judge's decision of March 28, 1997 which denied the petitioners' appli-cation for suspension of deportation on the grounds they had failed to satisfy the new continuous physical presence requirement (the "stop-time rule") set forth in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, effective April 1, 1997;  dis-senting, Judge O'Scannlain noted that the BIA did not err in applying the stop-time rule to the petitioners when it dismissed their appeal in 1999, over two years after the rule took effect;  nevertheless the majority reversed the BIA based on the legal error of the immigration judge who considered the petitioners' application for suspension of deportation;  as Judge O'Scannlain thought that settled principles of law and directly controlling precedent precluded this Circuit from reversing on this basis, he dissented. .  B. Fletcher, O'Scannlain (dissenting), and Gould (author), Circuit Judges.  A. Knapp of Anaheim, CA, for the petitioner;  D. McConnell of Wash-ington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

34)  IMMIGRATION LAW:  Miranda v. Reno, 99-56359 (9th Cir. Feb. 7, 2001).  An immigrant who has been "removed" for having committed an "aggravated felony" does not satisfy the "in custody" requirement for habeas corpus jurisdiction.  Boochever, Tashima, and Tallman (author), Circuit Judges.  J. Rojo of San Diego, CA, for the plaintiffs-appellants;  Special AUSA S. Bettwy of San Diego, CA, for the defendants-appellees.   (Download the full text at www.ce9.uscourts.gov/) 

35)  IMMIGRATION LAW / INDICTMENTS:  USA v. Parga-Posas, 99-50775 (9th Cir. Feb. 1, 2001). 
      An indictment charging a defendant with being a deported alien "found in" the United States without the Attorney General's permission to reapply for admission sufficiently charges the statutory elements of 8 USC Sec. 1326;  the indictment does not need to charge that the defendant voluntarily entered the United States following his deportation.  Rymer (author), T.G. Nelson, and Wardlaw, Circuit Judges.  FPD T. Cheng of San Diego, CA, for the defendant-appellant;  AUSA A. Perry of San Diego, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

36)  MENTAL CAPACITY TO STAND TRIAL:  Odle v. Woodford, 99-99029 (9th Cir. Feb. 6, 2001).  
       Where a petitioner has suffered a massive brain trauma in a car accident, which resulted in the surgical removal of a 3x3x4 inch piece of his brain, and subsequently exhibits psychotic behavior in front of his family and employers, some of it while awaiting trial, a failure to inquire into whether he possesses the mental acuity to participate in the proceedings denied him his right to due process.  Kozinski (author), Hawkins, and Berzon, Circuit Judges.  J. Forbes of San Francisco, CA, for the appellant;  D. Gillette of San Francisco, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

37)  JURY TAMPERING & JURY BIAS:  USA v. Henley, 96-50697 (9th Cir. Feb. 7, 2001).
       Under USA v. Dutkel, 192 F.3d 893 (9th Cir. 1999), jury tampering creates a presumption of prejudice and the government carries the heavy burden of rebutting that presumption;  As Dutkel was decided after the district court here denied the appellants' new trial motion, the USCA remanded the case to the district court so that it may determine whether, in light of Dutkel, the attempted bribery of one of the jurors entitled the appellants to a new trial;  the USCA also remanded so that the district court may reconsider its determination that another juror failed to answer truthfully any material question on voir dire; in this regard, the USCA instructed the district court to enter detailed findings concerning whether the juror actually made racist remarks and, if so, their specific content;  where a juror had been asked direct questions about racial bias during voir dire, and swore that racial bias would play no part in his deliberations, evidence of that juror's alleged racial bias is admissible for the purpose of determining whether his responses were truthful.  Ferguson, Boochever, and Reinhardt (author), Circuit Judges.  K. Landau of Oakland, CA, for the defendants-
appellants;  AUSA J. Rayburn of Santa Ana, CA, for the plaintiff-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

38)  JURY DELIBERATIONS:  USA v. Arnold, 99-50713 (9th Cir. Feb. 7, 2001).
        A judge's physical absence from the courthouse during jury deliberations did not constitute error where, by telephone,  the judge presided over and controlled the proceedings as re-lated to a jury request;  no objections were made to the judge's physical absence or to the way he handled the proceeding by telephone;  the jury did not know of the judge's physical absence;  moreover, the appellants did not dispute that they requested that the jury be allowed to continue deliberations despite the judge's physical absence from the proceedings.  Bright, T.G. Nelson (author), and W. Fletcher, Circuit Judges.  M. Adams of San Diego, CA, for the defendants-appellants;  AUSA M. Wheat of San Diego, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

39)  PEREMPTORY CHALLENGES:  Cooperwood v. Cambra, 99-15518 (9th Cir. Feb. 20, 2001).
        The petitioner failed to establish a prima facie case that the prosecutor exercised an illegal race-based peremptory challenge against an African-American juror where both prior excused jurors were white, two African-American jurors remained seated in the jury box at the time of the challenge, additional African-Americans remained available to be drawn; and the ultimate composition of the jury included two African-Americans, as well as three Asian Americans and one Pacific Islander.  Goodwin (author), Graber, and Paez, Circuit Judges.  D. Kendall of Mill Valley, CA, for the petitioner-appellant;  L. Sullivan of San Francisco, CA, for the respondent-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

40)  PLEAS:  USA v. Kaczynski, 99-16531 (9th Cir. Feb. 12, 2001).  
     A defendant's guilty plea to indictments returned against him as the "Unabomber" in the Eastern District of California and the District of New Jersey, in exchange for the United States renouncing its intention to seek the death penalty, was not rendered involuntary by the denial of the defendant's request to represent himself, where that request was made in bad faith as a tactic to delay trial;  Dissenting, Judge Reinhardt strongly disagreed with the majority's decision that Kaczynski's request was made in bad faith;  Judge Reinhardt thought the denial of Kaczynski's request violated his Sixth Amendment rights.  Reinhardt (dissenting), Brunetti, and Rymer (author), Circuit Judges.  T. Kaczynski pro per;  R. Cleary of San Francisco, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

41)  JUVENILES:  USA v. Juvenile Male, 00-50179 (9th Cir. Feb. 7, 2001).  
         A U.S. Attorney may delegate authority to an Assistant U.S. Attorney, serving as Acting U.S. Attorney, to sign a Sec. 5032 certification to hear a juvenile matter in federal court;  concurring, Judge McKeown agreed with the result but wrote separately to express her concern that the majority's approach will allow juvenile charging decisions to be made without the hard look Congress intended.  Canby, McKeown (concurring), and Paez (author), Circuit Judges.  FPD L. Daniels of San Diego, CA, for the defendant-appellant;  M. Edelman of San Diego, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

42)  JUVENILES:  USA v. Taylor, 00-10046 (9th Cir. Feb. 8, 2001).  
       On an issue of first impression, the USCA held that the government need not prove that a defendant charged under 18 USC Sec. 2423(a) with transporting a minor for purposes of prostitution knew that his victim was a minor;  the statute is intended to protect young persons who are transported for illicit purposes, and not transporters who remain ignorant of the age of those whom they transport.  Schroeder (author), Hall, and W. Fletcher, Circuit Judges.  AFPD M. Kennedy of Las Vegas, CA, for the defendant-appellant;  AUSA P. Ko of Las Vegas, NV, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

43)  EVIDENCE / EXTORTION:  USA v. Panaro, 99-10446 (9th Cir. Feb. 28, 2001).  
      Members of an organized crime family's repeated references to their intention to threaten their victim with violence to force him to give up his interest in his businesses was sufficient evidence to convict them of extortion in violation of the Hobbs Act, 18 USC Sec. 1951(a).  Thompson (author), O'Scannlain, and Tashima, Circuit Judges.  D. Chesnoff of Las Vegas, NV, the defendants-appellants;  AUSA E. Johnson of Las Vegas, NV, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

44)  EVIDENCE / MONEY LAUNDERING:  USA v. Bazuaye, 99-50544 (9th Cir. Feb. 20, 2001).  
      Evidence based on stipulated facts that, as part of a money laundering scheme, the defendant processed checks through normal banking channels was sufficient to establish the interstate commerce element of a money laundering offense under 11 USC Sec. 1956(a)(1)(A)(I).  D.W. Nelson (author), Brunetti, and Kozinski, Circuit Judges.  C. DeVito of West Hills, CA, for the defendant-appellant;  AUSA J. Rawitz of Los Angeles, CA, for the plaintiff-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

45)  WIRE FRAUD:  USA v. Garlick, 99-30018 (9th Cir. Feb. 22, 2001).  
       Each transmission of a facsimile machine as part of a plan to effectuate a fraudulent sale is a separate violation of the wire fraud statute.  B. Fletcher and Fisher (author), Circuit Judges, and Schwarzer, District Judge.  E. Murphy of Missoula, MT, for the defendant-appellant;  AUSA K. McLean of Missoula, MT, for the plaintiff-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

46)  DOUBLE JEOPARDY:  Wilcox v. McGee, 99-35566 (9th Cir. Feb. 27, 2001). 
      After a jury is impaneled and sworn, dismissing the indictment over the defendant's objection bars further prosecution for the same offense, unless the dismissal was required by "mani-fest necessity;  here, the defendant's second trial was barred by the Double Jeopardy Clause of the Fifth Amendment and his counsel's failure to raise the issue amounted to ineffective assistance which prejudiced the defendant.  Kozinski and Kleinfeld, Circuit Judges, and Schwarzer, District Judge.  Per Curiam.  W. LaBahn of Eugene, OR, for the appellant;  J. Lloyd of Salem, OR, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

47)  SENTENCING:  USA v. Castaneda, 00-10204 (9th Cir. Feb. 2, 2001). 
       A victim of transportation for illegal sexual activity in violation of the Mann Act is not an unusually vulnerable victim under USSG Sec. 3A1.1(b) merely because of her low-income, indebtedness and lack of financial resources;  dissenting, Judge Silverman found it difficult to understand how the majority could equate (1) a woman who is tricked into leaving her home in a foreign country on the promise of a legitimate job only to be forced to line up for selection by male customers and to accompany them to private rooms and there made to provide sexual services with (2) a professional prostitute who willingly agrees to travel across state lines for the purpose of prostitution;  both are covered by the Mann Act, but the majority holds that the former is no more a "vulnerable victim" than the later;  Judge Silverman thought this result was obviously wrong.  Bright, Reinhardt (author), and Silverman (dissenting), Circuit Judges.  P. Perez of Hagatna, GU, for the defendant-appellant;  AUSA G. Baka of Saipan, MP, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/)  

48)  SENTENCING:  USA v. Tavakkoly, 99-10166 (9th Cir. Feb. 5, 2001). 
      A district court properly enhanced a sentence due to a defendant's prior drug conviction and imposed a consecutive term of imprisonment within the guidelines range where the defendant committed his crimes while on pretrial release from another federal narcotics case.  Kleinfeld, Hawkins, and Tallman (author), Circuit Judges.  R. Riggs of Cobb, CA, for the defendant-appellant;  AUSA J.D. Wilson of San Francisco, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

49)  SENTENCING:  USA v. Ellis, 99-30261 (9th Cir. Feb. 15, 2001). 
       It was error to enhance a defendant's sentence for possession of a firearm "in connection with" a felony under USSG Sec. 2K2.1(b)(5), where the firearm, a rifle, was stored in a closet, unloaded and untouched by the defendant for several weeks before his arrest, and when, during his arrest, he made no attempt to reach for the rifle;  the defendant may also be entitled to a downward departure under USSG Sec. 2K2.1(b)(2) if the firearm was possessed solely for "sporting purposes" or "collection." Ferguson, Graber, and W. Fletcher (author), Circuit Judges.  T. Wood of Eugene, OR, for the appellant;  AUSA W. Fitzgerald of Eugene, OR, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

50)  SENTENCING:  USA v. Medrano, 00-30067 (9th Cir. Feb. 26, 2001).  
       The district court properly imposed a vulnerable victim sentence enhancement and a position of trust enhancement on an embezzler who specifically targeted Spanish-speaking, illiterate, unsophisticated migrant farm workers.  B. Fletcher and Fisher (author), Circuit Judges, and Schwarzer, District Judge.  FPD A. Rubin of Spokane, WA, for the defendant-appellant;  AUSA T. Rice of Spokane, WA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

51)  SENTENCING:  Flowers v. Walter, 99-35552 (9th Cir. Feb. 9, 2001).  
       The rule of Riggins v. Nevada, 504 US 127 (1992), requiring that a state under the Sixth and Fourteenth Amendments demonstrate overriding necessity and medical appropriateness before forcible medicating a defendant during a criminal trial, is "a new rule" of constitutional law, entitled to retroactive application as it falls within one of the exceptions to the non-retroactively doctrine—namely, it is a rule of criminal procedure that implicates the kind of fundamental fairness contemplated in Teague v. Lane, 489 US 288 (1989).  Pregerson and D.W. Nelson, Circuit Judges, and Karlton, District Judge.  Per Curiam.  J. Solovy of Seattle, WA, for the petitioner-appellant;  P. Weisser of Seattle, WA, for the respondent-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

 1)  ANTITRUST / RICO:  Regence Blueshield v. Philip Morris, Inc., 99-35203 (9th Cir. Feb. 28, 2001) (unpublished).  Boochever, O'Scannlain, and Tashima, Circuit Judges.
        Sixteen Blue Cross / Blue Shield Plans and their subsidiaries (the "Plans"), independent providers of health plan benefits and third party payers of health care services, appealed an order the District Court for the Western District of Washington, Judge Rothstein presiding, which dismissed their federal antitrust, RICO, and state statutory and common law claims against numerous tobacco companies and industry-affiliated organizations (collectively, "Tobacco Firms").  The Plans maintained that the Tobacco Firms engaged in a conspiracy to misrepresent the dangers of tobacco use and the addictiveness of nicotine and to suppress competition in the development of less harmful nicotine and tobacco products.  The Plans sought to recover the costs that they have paid to health care providers for the medical treatment of tobacco-related diseases suffered by their subscribers as result of this conspiracy.
        The USCA concluded that the district court properly dismissed the Plans' federal claims as the Plans lacked antitrust or RICO standing.  Their claimed damages were not proximately caused by the Tobacco Firms' unlawful conduct, but were derivative of the personal injuries of smokers afflicted by tobacco-related illnesses.  Similar claims were rejected in Ass'n of Wash. Public Hospital Districts v. Philips Morris., 2001 WL___(9th Cir. 2001) and Oregon Laborers-
Employers Health & Welfare Trust Fund v. Philip Morris, 185 F.3d 957 (9th Cir. 1999).  The Plans attempted to distinguish Oregon Laborers by referencing their unique role in the health care system, a role which makes them more like health care providers than union trust health funds.  The Plans also argued that they have RICO standing under NOW v. Scheidler, 510 US 249 (1994), and antitrust standing under Blue Shield of Va. v. McCready, 457 US 465 (1982).  However, the Circuit addressed and rejected these very arguments in Ass'n of Wash Public Hospital Districts and held that public health providers do not have antitrust or RICO standing to recover the expenses they incurred to treat their patients' smoking-related illnesses, despite the unique role the hospital districts play in the public health care system.  A fortiori, the Plans' invocation of their own unique role in the health care system was insufficient to confer antitrust and RICO standing upon them.
        The Plans' complaint also set forth 36 state statutory claims from 14 states alleging various restraint of trade, racketeering, and deceptive trade practices violations.  Before the district court, however, the Plans briefed only their claim under the Washington Con-sumer Protection Act ("CPA"), submitting that the "CPA's language is substantially similar, and often identical, to the deceptive trade practice and false advertising statutes of the other states at issue in this action."  In their opening brief on appeal, the Plans again char-acterized the other state consumer protection statutes at issue as "similar" to Washington's and failed to address any differences be-tween them.  The Plans thus elected to allow their other state statutory claims to stand or fall together with their CPA claim.  Ass'n of Wash. Public Hospital Districts. held that public hospital districts could not recover their costs for treating patients' tobacco-related illnesses under the CPA, explaining that such costs were derivative of personal injuries, which are not recoverable under the CPA.  It also explained that the hospital districts failed to meet the CPA's proximate cause requirement.  The Plans' alleged damages were similarly derivative of the personal injuries of smokers.  Ass'n of Wash. Public Hospital Districts. thus directly controlled the Plans' claims under the CPA, and the remainder of the Plans' state statutory claims fell together with their CPA claim.  For the same reason that the Plans lack antitrust and RICO standing, the district court properly dismissed their common law claims for fraudulent misrepresentation, fraudulent concealment and breach of a special duty:  Their damages were not proximately caused by the Tobacco Firms' alleged unlawful conduct.  Finally, their claim for unjust enrichment was properly dismissed as the Plans had not conferred a benefit upon the Tobacco Firms.

2)  INTELLECTUAL PROPERTY:  Pannell Kerr Forster Intl. Assoc. Ltd. v. Quek, 99-15526 (9th Cir. Feb. 2, 2001) (unpublished).  Hug, Trott, and Wardlaw, Circuit Judges.
       This case involves a trademark license dispute over the right to use the Pannell Kerr Forster ("PKF") name and style within Hawaii.  Pannell Kerr Forster International Association B.V. ("BV") and Pannell Kerr Forster International ("PKFI") hold various in-ternational and U.S. trademark licenses relating to the PKF name and style.  Both Pannell Kerr Forster Consulting ("PKFC") and The CPA Consulting Group ("PKF Hawaii") are licensed by PKFI to operate under the PKF name and style.  PKFC claims to be licensed to use the PKF name in Hawaii, while PKFI, BV, and PKF Hawaii contend that PKFC is only licensed to use the PKF name in Alaska and the contiguous forty-eight states. 
         The USCA held that the District Court for Hawaii, Judge Gillmor presiding, improperly determined as a matter of law that a certain "Sideletter" did not afford PKFC the right to use the PKF name and style in Hawaii.  The central issue to all claims in this case is whether PKFC was authorized to operate under the PKF name and style in Hawaii.  In resolving this issue the USCA looked to the laws of England, as the PKFC's Operating License Agreement ("OLA") provides that English law governs the interpretation of the contract.  The district court correctly stated that under English law, if the words used in a contract are "clear and unambiguous, effect must be given to them because that is what the parties are taken to have agreed to by their contract."  That, however, while partially correct, is inapplicable to the instant case and a fatally under-inclusive representation of applicable English law.  PKFC maintained that its right to use the PKF name and style in Hawaii is derived, in part, from the language in Sec. 2.1 of the Sideletter, which states that the OLA "shall entitle PKFC to continue using the [PKF name] for the purposes of the MAS Practice in the same manner as PKFC has in the past used the [PKF name] as a Member Firm of the International Association of [PKF]."  PKFI and BV contend that the language in Sec. 2.1 of the Sideletter entitling PKFC to continue using the PKF name in the same manner as PKFC has in the past used the PKF name was intended to grant PKFC the right to sue the PKF name and style only in those states where PKFC has in the past actively used the PKF name.  In turn, PKFI and BV contend that because PKFC did not actively use the PKF name in Hawaii as a Member Firm of the International Association of PKF, the terms of the Sideletter would not afford PKFC any rights to the PKF name in Hawaii.  In response to the above argument PKFC contends that PKFI's "active use" argument is belied by the Sideletter when read as a whole.  PKFC correctly notes that the language in Sec. 2.1 of the Sideletter should be read in connection with Secs. 1.1 and 1.3 of the Sideletter, which provide:  1.1 "PKFC pursuant to an agreement with [PKFP]…effective January 1, 1992… purchased its [MAS] Practice for the United States…along with the assets of the MAS Practice including going concern value of the MAS Practice" and 1.3 "PKFC since the date of purchase has been engaged in its MAS Practice in the United States and worldwide under the names of [PKFC]…PKFC was a signatory to a Member Firm agreement with the International Association of [PKF] dated January 1, 1992."  Sections 1.1 and 1.3 clearly establish that PKFC's rights as a Member Firm in 1992 included the right to "use" the PKF name in the entire United States.  This point is undisputed.  The language in Sec. 2.1 permitting PKFC to "continue using" the PKF name as it had in the past as a Member Firm, read in conjunction with the language in Secs. 1.1 and 1.3, and viewed in a light most favorable to PKFC, creates a genuine issue of material fact as to whether the Sideletter was intended to license PKFC to use actively the PKF name in Hawaii.  Alternatively, PKFC argues that even if the Sideletter did require past active use of the PKF name in Hawaii, PKFC clearly satisfied this requirement by: (1) registering as a corporation to do business in Hawaii in 1992; (2) approving of PKF Hawaii's temporary use of the PKF name; and (3) reserving its right to disapprove of PKF Hawaii's continued use of the PKF name so that PKFC could establish its own exclusive office in Hawaii.  As the phrase "in the past used" is not defined by the Sideletter, the USCA held the foregoing argument by PKFC presents a genuine issue of material fact sufficient to preclude summary judgment.  In addition to finding the language of the Sideletter to be facially ambiguous, the USCA reversed the district court because it did not consider in arriving at its decision the relevant "matrix of fact," as required under English law.  The law of England provides that "evidence of the surround-ing circumstances is admissible in all cases to place the contract in its correct setting, even where there is no ambiguity apparent on the face of the document."  Kim Lewison, The Interpretation of Contracts Sec. 2.10, at 44 (1989).  A leading English case expounding this principle is Prenn v. Simmonds, 1 W.L.R. 1381 (1971), in which Lord Wilberforce states:  "The time has long since passed when agreements, even those under seal, were isolated from the matrix of facts in which they were set and interpreted purely on internal linguistic considerations. … We must … inquire beyond the language and see what the circumstances were with reference to which the words were used, and the object appearing from those circumstances, which the person using them had in view.  Evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contract, including evidence of the 'genesis' and objectively the 'aim' of the transaction."  In concluding that the Sideletter did not afford PKFC the right to use the PKF name in Hawaii, the district court based its decision exclusively on the language in the contract.  This, the USCA said, constituted reversible error.  The inclusion of the integration clauses in both the OLA and the Sideletter does not justify the district court's failure to consider the relevant "matrix of fact" surrounding the Sideletter.  The foregoing conclusion stems from the holding in Don King Prods. v. Warren, 2 Lloyd's Rep. 176 (1998), which states:  "Clause 23.4 of the second agreement spells out that the second agree-ment constitutes the entire agreement between the parties with respect to the partnership and supersedes the first agreement.  The effect of this clause… is that the terms of the partnership retrospectively as from the date of the first agreement is however relevant … [be-cause] it constitutes part of the matrix of facts against which the second agreement is to be construed."  The integration clause in the instant case is thus insufficient to preclude the district court from considering the factual matrix in which the contract was made.  Furthermore, the district court's award of summary judgment against PKFC on Counts II through VII of the Amended Complaint and Counts I, III, and IV of PKFC's Counterclaim was premised on the court's erroneous conclusion that PKFC has no right to use the PKF name in Hawaii.  The USCA thus reversed the district court's grant of summary judgment on these claims also.
        The USCA also held that the district court improperly dismissed PKFC's misrepresentation counterclaim on summary judgment.  PKFC asserts that PKFI and BV induced PKFC to sign the OLA by falsely representing that PKFC would be permitted to use the PKF name in Hawaii.  To resolve this claim, the USCA had first to determine whether the law of England or the law of Hawaii governs PKFC's misrepresentation claim.  Section 22 of the License Agreement reflects the parties' understanding that "this Agreement shall be governed by and construed in accordance with the laws of …England."  While it is clear that issues of contract construction in the instant case are governed by the choice of law clause, it is less apparent whether this clause encompasses PKFC's misrepresentation claim.  However, the USCA believes it does.  First, because the original action was brought in the District Court of Hawaii, the USCA said it was bound by the choice of law principles adopted by that state.  Second, Hawaii's choice of law rules require that we apply the law of England to PKFC's misrepresentation claim.  In Fuku-Bonsai, Inc. v. E.I. Du Pont de Nemours & Co., 187 F.3d 1031 (9th Cir. 1999), the Circuit adopted the district court's conclusion that where the parties had entered into an agreement that was to be governed and construed in accordance with the laws of Delaware, Hawaii's choice of law rules require that the plaintiff's claim for fraudulent inducement to contract be resolved in accordance with Delaware law.  ["Delaware law applies because Hawaii, the state where the district court sits, follows the choice of law principles in the Restatement (Second) of Conflict of Laws under which the law selected by the parties in a choice of law provision governs a claim of fraudulent inducement to contract."]  The choice of law clause in the instant case dictates that PKFC's misrepresentation claim be resolved in accordance with English law.  The final issue is thus whether under English law the inclusion of the integration clause in the OLA and Sideletter forecloses PKFC's claim for misrepresentation.  Section 3 of England's Misrepresentation Act of 1967, titled "Avoidance of provision excluding liability for misrepresentation," states that "[Where there exists a contractual term that would exclude or restrict] any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or…any remedy available to another party to the contract by reason of such a misrepresentation, that term shall be of no effect except in so far as it satisfies the requirement of reasonableness as stated in section 11(1) of the Unfair Contract Terms Act 1977; and it for those claiming that the terms satisfies that requirement to show that it does."  The "reasonableness" test referenced by the Misrepresentation Act, in turn provides:  "(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the Misrepresentation Act 1967 and section 3 of the Misrepresentation Act (Northern Ireland) 1967 is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made."  The USCA thus found the remaining issue to be whether the integration clauses in the OLA and the Sideletter satisfy the foregoing "reasonableness requirement" of section 11(1) of the Unfair Contract Terms Act.  Construing all factual inferences in favor of PKFC, the USCA held that the district court erred in concluding as a matter of law that no genuine issue of material fact existed as to whether the inclusion of the integration clause was "reasonable" given the circumstances alleged by PKFC to have been contemplated by the parties at the time the contract was formed.

3)  TAXATION:  Gottlieb v. IRS, 99-56273 (9th Cir. Feb. 13, 2001) (unpublished). Leavy, Trott, and Silverman, Circuit Judges.
         The District Court for the Southern District of California, Judge Whelan presiding, dismissed Gottlieb's claims under 26 USC Secs. 7432 and 7433 as time-barred.
          The USCA affirmed.  Gottlieb conceded that his Sec. 7432 claim that the IRS wrongfully failed to release certain tax liens, was barred by the statute of limitations.  However, he maintained that the IRS's repeated refusal to acknowledge that he was "off the hook" for the settled tax liabilities constituted a "continuing wrong," tolling the two year limitations period under Sec. 7433.  The USCA disagreed.  Section 7433(d)(3) provides that the claims arising from the IRS's wrongful collection activities "may be brought only within 2 years after the date of the right of action accrues."  As the district court correctly explained:  Gottlieb's claim accrued once he "had a reasonable opportunity to discover all essential elements of a possible cause of action."  26 CFR Sec. 301.7433-1(g)(2).  The USCA thus agreed with the district court that Gottlieb's claim accrued, at the latest, on November 7, 1995, the date on which the IRS responded unfavorably to his request for administrative relief.  To toll the limitations period under the "continuing wrong" doctrine, Gottlieb had to establish that the IRS engaged in repeated collection efforts after November 7, 1995.  However, contrary to his counsel's assertions, the record did not show that the IRS engaged in any collection activities after November 7, 1995.  The district court thus correctly held that Gottlieb's claim filed on December 1, 1998, was barred by the two-year statute of limitations under Sec. 7433.  Alternatively Gottlieb argued that the six-year statute of limitations under 28 USC Sec. 2401(a) applied.  In the absence of a separate statute imposing its own limitations period, Sec. 2401(a) requires that all civil actions against the United States be brought within six years.  However, as Gottlieb brought his claim under Sec. 7433, its two-year limitations period applied.

4)  TAXATION / IRS SUMMONS:  USA v. Benoit, 00-16268 (9th Cir. Feb. 22, 2001) (unpublished). Leavy, Thomas, and Rawlinson, Circuit Judges.
         The Benoits appealed pro se an order of the District Court for the Eastern District of California, Judge Damrell presiding, which enforced an IRS summons to appear before an IRS officer and to produce documents and records related to their federal income tax liability.  The Benoits maintained that the summons was improper because the IRS made no finding of any tax liability owed by the Benoits. 
          The USCA affirmed.  The IRS may issue a summons for production of information relevant to "determining the liability of any person for internal revenue tax."  IRC Sec. 7602(a).  To establish a prima facie case for enforcement of a summons, the government must show that: (1) the summons was for a legitimate purpose, (2) the material being sought was relevant to the investigation, (3) the information was not already in the IRS's possession, and (4) the administrative steps required by the Internal Revenue Code have been followed.  Assertions by affidavit of the investigating agent that the requirements are satisfied are sufficient to make the prima facie case.  The burden then shifts to the taxpayer to show that the summons was issued for an improper purpose or was otherwise deficient.  Here, the sworn declaration by the Revenue Agent in charge of this case satisfied the government's "minimal" burden of showing that the summons was issued for a proper purpose.  There is no requirement that the IRS make an assessment or show that the Benoits have a tax liability before issuing a summons, as the IRS may issues a summons to investigate possible tax liability.  The USCA rejected as frivolous the Benoits' contentions that the IRS has no valid jurisdiction over them and that the summons was invalid because it failed to comply with the attestation requirements of 26 USC Sec. 7603.

5)  TAXATION / BANKRUPTCY:  In re George, 00-16082 (9th Cir. Feb. 13, 2001) (unpublished). Wright, Choy, and Skopil, Circuit Judges.
         Debtor George appealed pro se an order of the District Court for Arizona, Judge Silver presiding, which affirmed the bank-ruptcy court's denial of his motion to vacate its order lifting the automatic stay in his bankruptcy case.
 The USCA affirmed.  The Commissioner of Internal Revenue issued a notice of deficiency in George's 1993 and 1994 federal income taxes.  George filed in the Tax Court for a redetermination of the deficiencies.  Three days before the scheduled trial date, he petitioned the bankruptcy court for relief under Chapter 13 of the Bankruptcy Code.  Filing the petition triggered an automatic stay prohibiting continuation of his pending action in Tax Court.  11 USC Sec. 362(a)(8).  The United States moved in bankruptcy court to lift the stay and for an expedited hearing on the motion so that the trial in Tax Court could proceed as scheduled.  The bankruptcy court held an expedited hearing at which George presented his objections to the motion, and the court granted the government's motion to lift the automatic stay.  George moved to vacate the order and the bankruptcy court denied his motion.  George appealed both orders to the district court which held that it had no jurisdiction to review the order lifting the automatic stay because it was not timely filed.  The court considered the merits of the appeal of the denial of George's Motion to Vacate and held that the bankruptcy court did not abuse its discretion.  George concedes that his first motion was not timely, but appealed the court's decision on his Motion to Vacate.  He maintained that his appeal to the district court of the order denying his Motion to Vacate was pursuant to Fed. R. Civil Proc. 60(b)(4), and that the district court should not have construed it as a Rule 60(b)(1) motion alleging mistake.  He argued that the order was void under Rule 60(b)(4) for two reasons: (1) because the United States lacked standing to move to lift the stay, and (2) because service of the Motion to Lift the Automatic Stay and notice of the hearing on that motion did not satisfy due process requirements.  George ar-gued that the United States lacked standing as a "party in interest" in the bankruptcy case because it had not initiated an adversary proceeding in bankruptcy court to determine the dischargeability of his disputed taxes.  He maintained that a taxing authority must file for determination of tax liability under 11 USC Sec. 505 to qualify as a "party in interest" who may move to lift an automatic stay under 11 USC Sec. 362(d).  Section 362(d) allows only a "party in interest" to seek to lift an automatic stay.  The "Historical and Statutory Notes" for the Bankruptcy Code's Rules of Construction state that this limitation is intended to restrict the court from acting sua sponte, and that rules of bankruptcy procedure or court decisions will determine who is a party in interest for the particular purpose of the provision in question.  11 USC Sec. 102.  George offered no support for his contention that the IRS must first file a petition under Sec. 505 to be considered a "party in interest."  The district court properly concluded that the IRS was a "party in interest" entitled to request that the stay be lifted because the Commissioner had issued a deficiency notice in George's income taxes prior to George's bankruptcy filing, and was a party to the scheduled tax court proceeding for which relief form the stay was sought.  George also argued that the United States did not have standing because it could not establish cause for the stay without the appearance of a bankruptcy trustee.  He argues that because a purpose of an automatic stay is to permit sufficient time for the bankruptcy trustee to determine if he desires to join the Tax Court case, the stay cannot be lifted until the trustee makes that determination.  The USCA disagreed.  George failed to provide any legal support for the argument.  George also maintained that the bankruptcy court should have vacated its order lifting the stay because due process requirements were violated.  He argued that he received improper service of the motion to lift the stay and inadequate notice of the hearing on the motion.  A bankruptcy court may grant relief from an automatic stay after notice and a hearing.  11 USC Sec. 362(d).  The required notice is that which "is appropriate in the particular circumstances."  11 USC Sec. 102(1)(A).  Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pen-dency of the action and afford them an opportunity to present their objections.  Reasonable notice depends upon the situation.  Here, George's bankruptcy filing three days before trial was scheduled to begin in his Tax Court case triggered an automatic stay that pre-vented the Tax Court trial from proceeding.  11 USC Sec. 362(a)(8).  The United States moved, the day after the bankruptcy filing, to lift the automatic stay, and requested an expedited hearing on the motion so that the trial could proceed.  The government attempted to notify George of the motion by sending a copy to him via facsimile transmittal and Federal Express Priority Overnight, and also left a message on his telephone answering machine informing him of the filing of the motion.  Later the same day, the bankruptcy court is-sued a written order setting a hearing on the motion to lift the stay for the following day at 3:30 P.M. and instructing the government to immediately serve a copy of the Order on the debtor by facsimile, over-night mail, express mail, or other appropriate means.  Shortly after 8:00 AM the following day, the government sent a copy of the order to George by facsimile and by Federal Express.  George re-ceived the order approximately four hours prior to the hearing, appeared at the hearing, and raised issues on his behalf.  The USCA agreed with the district court that service and notice were adequate under the circumstances.  The judgment of the bankruptcy court was not void for lack of either jurisdiction or due process, and it was not an abuse of discretion for the bankruptcy court to deny the motion to vacate its order lifting the automatic stay.

6)  BANKRUPTCY:  In re Griffin, 99-56181 (9th Cir. Feb. 21, 2001) (unpublished). D.W. Nelson, O'Scannlain, and Kleinfeld, Circuit Judges.
        The Revocable Inter Vivos Trust of Mabel Marie Griffin and the Griffin Family Trust ("the Trusts") appealed the decision of the Bankruptcy Appellate Panel denying the debtor's motion to disburse funds to the Trusts and denying the Trusts' request to file late proofs of claims.
        The USCA affirmed.  The Trusts argued that the notice of the bar date did not comport with Fed. Rule of Bankr. Proc. 7004(b)(3).  But Rule 7004 applies to adversary proceedings and contested matters not otherwise governed by the rules.  Fed. R. Bankr. P. 7001, 9014.  The notice of bar date complied with the rule governing notice to creditors, which states that notice "shall be addressed as such entity or an authorized agent may direct in a filed request;  otherwise, to the address shown in the list of creditors or the schedule whichever is filed later.  Fed. R. Bankr. P. 2002(g).  There is no question that the Trusts received actual notice of the bar date.  The Trusts also argued that their failure to file proofs of claim was the result of "excusable neglect" under Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 US 380 1993).  The determination of whether a party's neglect is "excusable" is an equitable one.   Here, the Trusts waited almost three years after the bar date before requesting permission to file late proofs of claim.  Even then, they failed to give any explanation for their failure to comply with the deadline.  There is also some question as to whether the Trusts acted in good faith.  The Trusts failed to show that the bankruptcy judge's finding that "the equities are not with the Griffins" was an abuse of discretion.

7)  BANKRUPTCY:  In re Hassen Real Estate Partnership, 99-56174 (9th Cir. Feb. 23, 2001) (unpublished).  Ferguson, Tashima, and Fisher, Circuit Judges.
        Appellants Hassen Real Estate Partnership and Eastland Tower Partnership entered into a bankruptcy settlement agreement to settle their debt with the appellee, Citicorp Real Estate, their primary secured creditor.  They argued that the settlement agreement could reasonably be read to allow certain funds, the "HMB" funds and the June 1996 "NOI", to be credited against their principal debt.  The bankruptcy court rejected this argument, finding that the terms of the settlement agreement were unambiguous.  The District Court for the Central District of California, Judge Paez presiding, affirmed.
        The USCA affirmed.  The stipulated order functions as a contract; as such its must be analyzed under California's rule of con-tract interpretation.  In interpreting a contract, California courts look to the context created by the document as a whole, and "will not strain to create an ambiguity where none exists or indulge in tortured constructions to divine some theoretical ambiguity."  The dis-puted provisions of the "Minimum Monthly payments" paragraph, when interpreted in conjunction with the structure and content of the agreement as a whole, are not susceptible of Appellants' interpretation.  Even if there were ambiguity in the wording of the stipulated order, the Appellants' proffered extrinsic evidence does not support their argument.  The fact that prior settlement discussions explic-itly applied the HMB funds and the June 1996 NOI against the outstanding principal balance does not indicate that the stipulated order implied such a result.  To the contrary, the inclusion of such a term in earlier drafts and its absence in the final draft indicate that it was excluded intentionally. 

8)  BANKRUPTCY: In re Wagstaff, 99-35211 (9th Cir. Feb. 7, 2001) (unpublished).  McKeown, W. Fletcher, and Rawlinson, Circuit Judges.
         Wagstaff appealed a judgment of the District Court for Alaska, Judge Holland presiding, which affirmed a bankruptcy court judgment that granted a Fed. R. of Civil Proc. 60(b) motion brought by Darlene Smith, Keith Powers, and Rober Malin (collectively "Smith").  Prior to Smith's Rule 60(b), on Smith's motion for summary judgment, the bankruptcy court held that a treble damages award for securities fraud is dischargeable.  Before the time for appeal had run, however, the Supreme Court handed down a decision holding that a treble damages award is not dischargeable.  Cohen v. De La Cruz, 523 US 213 (1998).  After the time for appeal had run, Smith filed a Rule 60(b) motion for relief from judgment in light of Cohen, and the bankruptcy court granted the motion.  Wag-staff filed a timely appeal to the district court, which affirmed the bankruptcy court's judgment, holding that Smith is entitled to relief from judgment under the "excusable neglect" provision of Rule 60(b)(1) or, alternatively, under Rule 60(b)(6).
        The USCA affirmed.  Under Rule 60(b)(1), a court may relieve a party from a final judgment due to mistake, inadvertence, surprise, or excusable neglect.  The Supreme Court has held that "excusable neglect" is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence.  In determining whether neglect is "excusable," a court must consider all the circumstances, including:  (1) the danger of prejudice to the adverse party; (2) the length of any delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the moving party acted in good faith.  Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute "excusable neglect," that possibility is not foreclosed.  In fact, since Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 US 380 (1993), the Circuit has construed "excusable neglect" to include counsel's negligence and carelessness.  Here, Smith's conduct constitutes excusable neglect.  The law governing the case changed before the time for appeal had lapsed.  Because the bankruptcy court expressed its intent to vacate its prior judgment on that basis under Fed. R. Civil Proc. 59(d), Smith did not appeal.  After the time for appeal had run, Smith realized that the bankruptcy court's Rule 59(d) initiative was untimely.  Smith then made the Rule 60(b) motion with little delay.  Because Rule 60(b)(1) applies, Rule 60(b)(6) does not.  As such, there was no need for the district court to address Rule 60(b)(6).  Nor, the USCA added, did it need to reach that issue.

9)  INSURANCE:  Advanced Aeronautical Enterprises, Inc., 99-55985 (9th Cir. Feb. 27, 2001) (unpublished).  Leavy, Trott, and Silverman, Circuit Judges.
        Plaintiffs-Appellants Advanced Aeronautical Enterprises ("AAE") and Pascal Mahvi ("Mahvi") sought damages for the al-leged breach of an aircraft insurance policy by Defendants-Appellees Americas Insurance Company and their underwriters ("Ameri-cas") 
        The USCA affirmed.  First, the central issue on appeal was whether AAE's use of the aircraft in the filming of a commercial called "the Apple Box" constitutes a "sales demonstration" or a "proficiency flight" under the policy.  California law requires that the USCA resolve this issue by first looking to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it.  Cal. Civ. Code Sec. 1638 (West 2001).  However, the language in an insurance contract must be construed in light of the circumstances at issue and cannot be found to be ambiguous in the abstract.  Thus, the language of the insurance policy issued by Americas must be construed in light of the particular circumstances of this case.  Moreover, the Circuit has recognized that the objectively reasonable expectations of the parties are the touchstone for interpreting insurance contracts under California law.  Here, the relevant parties with respect to the operative policy are Americas and Neeley, the person at AAE responsible for securing insurance on the aircraft.  Second, the district court properly concluded as a matter of law that AAE's use of the aircraft to film a commercial fell outside the ambit of the operative policy.  Both the objective expectations of Neeley and the circumstances surrounding the issuance of the operative policy establish that the phrase "Sales Demonstration and proficiency flights" was not intended to encompass filming contracts.  AAE argues that Neeley understood the phrase "Sales Demonstration and proficiency flights" to be vague and inclusive, thereby precluding us from finding as a matter of law that the policy did not cover filming contracts.  However, the following uncontroverted testimony of AAE's own insurance broker, Clawson, proves differently:  Question:  "(Attorney) At the time that policy No. 0125247, the renewal policy, was issued, did you have any discussion with Mr. Mahvi or Mr. Neeley regarding potential uses of the aircraft, the A-4, during the policy term for purposes other than sales demonstration or proficiency flights?"  Answer: "(Clawson) I recall discussing with Guy [Neeley] the fact that should another filming contract or similar contract arise in the future, that additional premiums could be charged under the policy by insurance underwriters to approve the additional contracts and that we would need to submit those contracts to underwriters and have the underwriters provide us with a proposed premium to include those contracts under the policy."  The USCA thus found it clear that Neeley did not believe that a filming contract constituted either a sales demonstration or a proficiency flight for purposes of the operative policy.  Further vitiating AAE's argument that Neeley believed the operative policy covered the use of the aircraft for filming contracts is Neeley's requirement that Apple Box secure a one million dollar third-party insurance policy on the aircraft, naming AAE as the beneficiary.  The obvious implication of this requirement is that if Neeley believed that the aircraft would be covered under his insurance policy with AAE during the filming of the commercial, why would he require Apple Box to obtain additional coverage?  AAE attempts to answer this question by arguing that Neeley was simply overly cautious and wanted to secure to policies on the aircraft.  AAE's argument, however, is again belied by Clawson's testimony regarding his conversation with Neeley.  With respect to Neeley's desire to have Apple Box obtain an insurance policy on the aircraft, Clawson stated:  "My recollection of my conversation with Guy [Neeley] was to the extent that he had advised me that insurance coverage was going to be afforded elsewhere [by Apple Box] and that we needn't bother with securing coverage under [the operative] policy."  Neeley's statement to Clawson that they need not "bother with securing coverage under [the operative] policy" completely undermines AAE's assertion that Neeley wanted Apple Box to obtain insurance on the aircraft merely as additional coverage.  The Clawson testimony reveals that Neeley did not expect the operative policy to cover the use of the aircraft during the filming.  Because it is Neeley's under-standing of the contract, rather than AAE's abstract interpretation of it, that governs, AAE's position failed as a matter of law.  AAE suggests that the parties could have harbored the objectively reasonable expectation that the phrase "Sales Demonstration and proficiency flights" included all flights by Mahvi or Neeley, particularly where the flights were filmed.  AAE's overly broad interpretation of the policy does not comport with the particular circumstances of this case and thus fails.  For example, under AAE's proposed reading of the operative policy, AAE would enjoy significantly more coverage than it had received under the original policy.  This fact is especially striking considering Clawson's testimony that Neeley's sole purpose for restricting the permissible uses of the aircraft in the operative policy was to reduce AAE's annual insurance premiums by 60%.  Common sense precludes concluding that AAE held an objectively reasonable belief that it could receive virtually unlimited coverage on its aircraft at 40% of the original premium.  Thus, while AAE's assertion that the phrase "Sales Demonstration and proficiency flights" lends itself to numerous interpretations may be "correct as a matter of abstract philology, it is defective as a matter of policy interpretation because it disregards the context."  Bank of the West v. Superior Court, 833 P.2d 545, 552.  Finally, the USCA concluded that it need not evaluate Mahvi's objectively reason-able expectations of coverage under the policy.  Mahvi suggests that even if the USCA finds that Neeley did not have an objectively reasonable expectation of coverage for the use of the aircraft in a commercial, the USCA must make an independent finding regarding his objectively reasonably expectations under the operative policy.  Mahvi's argument misses the mark.  As AAE was the named insured under the operative policy, it is the reasonable expectations of AAE, rather than Mahvi, that serve to shape the contours of the contract.

10)  ERISA:  Gonzalez v. Guarantee Mutual Life Co., 99-16818 (9th Cir. Feb. 26, 2001) (unpublished).  Beezer, T.G. Nelson, and Berzon, Circuit Judges.
      Gonzalez appealed from the findings of fact and conclusions of law of the District Court for the Northern District of California, Judge Conti presiding, following a bench trial on her claim for long-term disability benefits under an ERISA-governed insurance policy. 
        The USCA affirmed.  Gonzalez argued that the USCA should not reach the issue of her non-compliance with the examination provision because her claim was not denied for that reason.  The record reveals, however, that her non-compliance was a stated reason for Guarantee's denial of her claim.  On March 7, 1997, Guarantee informed Gonzales that it had "no alternative but to uphold [its] original denial" of her claim for several reasons, including her refusal to comply with the examination clause, and in an October 3, 1997 letter, Guarantee stated that it would consider Gonzalez' file closed for, among other reasons, her refusal to submit to requested examinations.  Gonzales thus was, or should have been, aware that Guarantee conditioned its payment of benefits on her compliance with the examination clause and denied benefits in part for non-compliance with the clause.  The USCA reviewed de novo the district court's legal conclusion that because Gonzalez refused to submit to the requested examinations, she forfeited any right to benefits un-der the terms of the policy.  Gonzalez argued that the examination clause should be interpreted to mean that a claim is no longer "pending" once it has been initially denied, even if an appeal from that denial is going forward.  That interpretation does not comport with the ordinary use of language.  The appeal was an internal one.  Guarantee as an entity was still considering whether the claim for benefits should be granted or not.  The claim for benefits, in common parlance, had not been finally decided, but was still "pending" before the company.  Moreover, Gonzalez' interpretation is in tension with the ERISA statute and its corresponding regulations gov-erning the mandatory administrative review process that follows an ERISA plan's initial denial of a claim.  The statute and regulations plainly contemplate an exchange of information between the claimant and the plan administrator after an initial denial but while the plan is reconsidering its decision.  29 USC Sec. 1133;  29 CFR Sec. 2560.503-1(f).  Gonzalez' reading of her policy's examination clause would derail the information exchange that Congress intended to take place after an initial claim denial, and undermine the pub-lic policy interest served by that requirement.  Because it is inconsistent with the language of the clause as well as in tension with ERISA, Gonzalez' interpretation of the examination clause is not reasonable.  Accordingly, the USCA is not obliged to construe the clause in her favor.  The USCA thus concluded that the district court properly decided that Gonzalez was not entitled to benefits under the policy because she refused to comply with Guarantee's examination requests.

11)  WARTIME REPARATIONS:  National Coalition for Redress / Reparations v. USA, 00-15154 (9th Cir. Feb. 15, 2001) (unpublished). Schroeder, Noonan, and W. Fletcher, Circuit Judges.
         Appellants Joe Suzuki and the National Coalition for Redress / Reparations (NCRR) appealed the dismissal of their claims by the District Court for the Northern District of California, Judge Legge, presiding.  The USCA affirmed as to NCRR.  Suzuki is one of a number of Japanese Latin Americans forcibly removed from their homes in Latin America and interned in the United States during World War II.  He is also part of the class that settled their claims against the government in Mochizuki v. USA, 43 Fed. Cl. 97 (1999).  Under that settlement, he was paid $5000 in December 1999, while this case was on appeal.  Suzuki's only claim here was for his payment of $5000.  Because he has already received the compensation he sought in this case, his appeal is moot.  Appellant NCRR's only claim pertains to its loss due to the government's alleged failure to invest funds allocated to the Civil Liberties Public Education Fund.  That claim is not redressable because the fund has been terminated and its administering board no longer exists.  The USCA thus affirmed the district court's dismissal of NCRR's suit for lack of standing.

12)  CONSPIRACY TO LAUNDER MONEY:  USA v. Lam, 00-50242 (9th Cir. Feb. 21, 2001) (unpublished).  Pregerson, Canby, and Thompson, Circuit Judges.
         Following a jury trial, Lam was convicted of conspiracy to smuggle and to launder monetary instruments.  He claims that the district court erred by:  (1) admitting hearsay documents on redirect;  (2) not instructing the jury on the elements of money laundering;  (3) imposing a two-level sentence enhancement pursuant to USSG 2T3.1(b)(1);  and (4) denying a two-level sentence reduction pursu-ant to USSG 3B1.2(b).
         The USCA affirmed.  First, the record reflects that the government did not introduce the hearsay documents until the defense "opened the door" on cross examination by eliciting statements from the witness concerning the authenticity of those documents.  Once the defendant questioned the witness about the documents, the district court did not commit error, much less plain error, in allowing the government to introduce the documents on redirect examination.  Second, the USCA noted that Lam was not charged with money laundering, but rather with conspiracy to launder money.  While it is true that the trial judge did not instruct the jury on the elements of money laundering, he did read to the jury the relevant portions of the money laundering statute in instructing the jury on the conspiracy charge.  Thus, this case is distinguished from USA v. Kostoff, 585 F.2d 378 (9th Cir. 1978), on which Lam relies.  Third, on the date that Lam was sentenced, April 17, 2000, the newer version of the Guidelines was in effect.  Because a comparison of the new and old versions of USSG 2T3.1(b)(1) reveals no significant differences, Lam cannot show that the district court's use of the newer version was at all prejudicial.