2)  SECURITIES:  SEC v. Dain Rausher, Inc., 99-56828 (9th Cir. June 26, 2001).  The standard of care for an underwriter of municipal offerings is one of "reasonable prudence," for which the industry standard is one factor to be considered, but it is not the determinative factor.  Pregerson, Canby, and Thompson (author), Circuit Judges.  J. Avery of Washington, DC, for the plaintiff-appellant;  C. Rice of San Francisco, CA, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  SECURITIES:  Ronconi v. Larkin, 98-15993 (9th Cir. June 6, 2001).  Sales of stock by insiders following bad financial news, even though the two events were temporally proximate, were insufficient to state a claim under the heightened pleading requirements of the Private Securities Litigation Reform Act.  Browning, Rymer, and Kleinfeld (author), Circuit Judges.  L. Simon of San Diego, CA, for the plaintiffs-appellants;  D. Rains of San Francisco, CA, for the defendants-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  TAXATION:  Van Camp & Bennion v. USA, 96-36068 (9th Cir. June 6, 2001).  On a matter of first impressions, the USCA joined the Second and Third Circuits in holding that a taxpayer's financial difficulties may constitute reasonable cause to abate penalties for nonpayment of tax.  Schroeder, Beezer (author), Hawkins, Circuit Judges.  R. Kovacevich of Spokane, WA, for the plaintiff-appellant;  D. Pincus of Washington, DC, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 
 

5)  INTELLECTUAL PROPERTY:  Clicks Billiards v. Sixshooters, 99-17294 (9th Cir. June 1, 2001).  Summary judgment was inappropriate where functional elements of a pool hall's "overall image" did not preclude trade dress protection if the claimant's integration of the elements left a multitude of alternatives to the pool hall industry that would not prove confusingly similar to the claimant's trade dress;  the USCA did not hold that the plaintiff had necessarily established non-functionality, secondary meaning, and likelihood of confusion, but only that there remain genuine disputes of material fact as to those issues.  Noonan, McKeown (author), and Wardlaw, Circuit Judges.  K. Corson of Phoenix, AZ, for the plaintiff;  N. Thomas of Phoenix, AZ, for the defendant.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

6)  INTELLECTUAL PROPERTY:  Breed v. Hughes Aircraft Company, 99-56130 (9th Cir. June 14, 2001).  The Court of Appeals for the Federal Circuit has exclusive jurisdiction over an appeal of a district court decision based in whole or in part on the patent laws.  Magill, McKeown (author), and Fisher, Circuit Judges.  G. Sauer of Las Angeles, CA, for the plaintiffs / counter-defendants; S. McClain of Los Angeles, CA, for the defendants / counter-claimants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

7)  BANKRUPTCY / INTELLECTUAL PROPERTY:  In re Cybernetic Services, 99-56856 (9th Cir. June 6, 2001).  Neither 35 USC Sec. 261 of the Patent Act, nor Article 9 of California's UCC, require the holder of a security interest in a patent to record that interest with the federal Patent and Trademark Office in order to perfect the interest as against a subsequent lien creditor.  Pregerson, Fernandez, and Graber (author), Circuit Judges.  L. Brennan of Newport Beach, CA, for the appellants;  J. Tiemstra of Walnut Creek, CA, for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

8)  BANKRUPTCY:  In re Jastrem, 99-16494 (9th Cir. June 7, 2001).  The obligation to pay for pre-petition legal services is subject to automatic stay and discharge in Chapter 7 bankruptcy proceedings where the debtor has agreed to pay for those services in installments pursuant to Fed. R. Bankruptcy Proc. 1006(b).  Schroeder, Noonan, and W. Fletcher (author), Circuit Judges.  M. O'Neal of Sacramento, CA, for the appellant;  P. Carroll of Fresno, CA, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

 9)  BANKRUPTCY:  In re First T.D. & Investment, Inc., 99-55851 (9th Cir. June 19, 2001).  Under California law, the assignment to investors of collateral notes and trust deeds may be perfected without possession under the exception provided by Cal. Bus. & Prof. Code Sec. 10233.2, and, if perfected, cannot be avoided in bankruptcy under the strong-arm clause.  Canby, McKeown, and Paez (author), Circuit Judges.  G. Salvato of Los Angeles, CA, for the defendants-appellants;  M. Weiss of Los Angeles, CA, for the Trus-tee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  BANKRUPTCY:  In re Sheehan, 99-56391 (9th Cir. June 19, 2001).  In an adversary proceeding seeking a ruling that a debt is non-dischargeable, the bankruptcy court may extend the time for service of the creditor's complaint upon a showing of good cause under Fed. R. Civ. Proc. 4(m), or upon a showing of excusable neglect under Bankruptcy Rule 9006(b);  dissenting, Judge Ferguson thought the majority properly found that the facts did not mandate the exercise of discretion to extend the service period under Rule 4(m), but that it improperly went further in applying Sec. 9006(b), as that issues was not properly before the USCA because the creditor never made the required motion to invoke Sec. 9006(b) and the USCA should not consider an issue not decided by the lower court;  in addition, Judge Ferguson did not believe that counsel's conduct rose to the level of excusable neglect.  Ferguson (dissenting), Tashima (author), and Fisher, Circuit Judges.  M. O'Neal of Sacramento, CA, for the appellant;  J. Fuchs of Los Angeles, CA, for the appellant; T. Ringstad of Irvine, CA, for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  BANKRUPTCY:  Rein v. Providian Financial Corp., 99-16346 (9th Cir. June 11, 2001).  A reaffirmation agreement voluntarily entered into by a debtor during prior bankruptcy proceedings, but not approved by a subsequent court order, has no preclusive effect regarding the question of whether or not the debt reaffirmed would have been held to be nondischargeable or dischargeable if the nondischargeability issues had been litigated.  O'Scannlain and W. Fletcher, Circuit Judges, and Kelleher (author), District Judge.  P. Mollica of Chicago, IL, for the plaintiff-appellant;  P. Hecker of San Francisco, CA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  BUSINESS LAW:  Boulder Fruit Express & Heger Organic Farm Sales v. Transportation Factoring, Inc., 99-56770 (9th Cir. June 4, 2001).  The factoring of accounts in this case did not breach a Perishable Agricultural Commodities Act trust created for the benefit of the growers, as the factoring arrangement was commercially reasonable and did not otherwise dissipate the trust.  Archer, Trott, and Silverman (author), Circuit Judges.  M. Keaton of Glen Ellyn, IL, for the plaintiffs-appellants;  D. Thorpe of Santa Monica, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  BUSINESS LAW:  Royal Foods Co. v. RJR Holdings, Inc., 99-55634 (9th Cir. June 11, 2001).  A restaurant that buys wholesale quantities of perishable agricultural commodities and uses them in its preparation of meals is "in the business of buying and selling" such commodities and is thus a "dealer" as defined in the Perishable Agricultural Commodities Act of 1930.  Archer, Trott (dissenting), and Silverman (author), Circuit Judges.  S. McCarron of Glendale, CA, for the plaintiff-appellant;  C. White of Glendale, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  INSURANCE LAW:  Freeman v. Allstate Life Insurance, Co., 99-16501 (9th Cir. June 19, 2001).  An insurer may rescind a policy due to the insured's material misstatement in her application for the policy, even if the misstatement was not made with any intent to deceive or mislead.  Goodwin, Hug (author), and W. Fletcher, Circuit Judges.  J. Braunstein of Sacramento, CA, for the appel-lant;  D. Riegels of Sacramento, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  ENVIRONMENTAL LAW:  Pritikin v. DOE, 99-35581 (9th Cir. June 13, 2001).  To have constitutional standing to sue to compel the Department of Energy to make budget requests to fund a medical monitoring program that the Agency for Toxic Substances and Disease Registry ("ATSDR") was required to institute at the Hanford Nuclear Reservation, the plaintiff had to show that the DOE's failure to do so caused the injury the plaintiff sought to redress or that requiring the DOE to do so would result in ATSDR's implementation of the monitoring program.  Reinhardt, Wardlaw (author), and Gould, Circuit Judges.  T. Foulds of Seattle, WA, for the plaintiff-appellant;  D. Shilton of Washington, DC, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  ENVIRONMENTAL LAW:  Friends of the Cowlitz v. FERC, 99-70373 (9th Cir. June 14, 2001).  The Federal Energy Regulatory Commission has "virtually unreviewable" discretion whether to enforce or not enforce any alleged license violations, as well as whether to investigate such allegations and whether to hold evidentiary hearings.  B. Fletcher (author) and Fisher, Circuit Judges, and Schwarzer, District Judge.  J. Feil of Seattle, WA, for the petitioners;  D. Smith of Washington, DC, for the respondent.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  ENVIRONMENTAL LAW:  Center for Biological Diversity v. Norton, 00-16020 (9th Cir. June 20, 2001).  When faced with a citizen-initiated effort to compel the Secretary of the Interior to issue certain findings in response to petitions to list two species for protection under the Endangered Species Act, the Secretary improperly relied on a Fish and Wildlife Service "Petition Management Guidance" policy in order to evade the time requirements for making the findings.  Trott, Thomas, and Berzon (author), Circuit Judges.  M. Kenna of Durango, CO, for the plaintiff-appellant;  M. Haag of Washington, DC, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  ENVIRONMENTAL LAW:  High Country Resources v. FERC, 99-70747 (9th Cir. June 21, 2001).  The Federal Energy Regulatory Commission was not bound by a Forest Service 1986 determination that negative effects of the Diobsud Creek hydroelectric project could be mitigated, where more recent information provided a good reason to reconsider the earlier determination;  concurring, Judge Reinhardt noted that he was inclined to agree with the view that the petitioners did not properly raise their statutory inter-pretation claim in their petition for rehearing of the Forest Service's determination on behalf of the Sec. of Agriculture, but, whatever the outcome of that issue, he would affirm the FERC's determination as the thought its findings complied with the statutory require-ments;  Judge Gould concurred with the majority opinion concerning the effect of the Forest Service's 1986 determination, but dissented from the majority's "unduly narrow" reading of the petitioners' requests for rehearing before the FERC;  he thought the majority had incorrectly concluded that the USCA had no jurisdiction to consider the statutory construction argument urged on appeal.  Reinhardt (concurring), Wardlaw (author), and Gould (dissenting in part), Circuit Judges.  K. Denke of Seattle, WA, for the petitioners;  L. Vallance of Washington, DC, for the respondent.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  LABOR LAW / PRIVACY LAW:  Cramer v. Consolidated Freightways, Inc., 98-55657 (9th Cir. June 15, 2001).  Employees' state law privacy claims, based on a state's penal code and not even arguably covered by the collective bargaining agreement ("CBA"), are independent of the CBA and thus not subject to Sec. 301 preemption under the Labor Management Relations Act;  when an employer's surreptitious surveillance constitutes a per se violation of established state privacy laws, affected employees may bring an action for invasion of privacy regardless of the terms of the CBA governing their employment;  concurring in part and in the judgment, Judge Tallman agreed that the employees' claims were not preempted because the CBA did not contemplate surreptitious sur-veillance of bathrooms through two-way mirrors;  however, he thought that the majority's alternative holding unnecessarily interpreted ambiguous California law and threatened the ability of similarly situated parties to negotiate legitimate limitations on privacy;  dissenting, Judge O'Scannlain thought the majority failed in its application of the correct rule to the CBA, and that because the CBA expressly provides for video surveillance of its covered employees, it could not be "so cavalierly ignored" as the majority holds.  Schroeder, Pregerson, Reinhardt, O'Scannlain (dissenting), Tashima, Thomas, McKeown, Fisher (author), Gould, Paez, and Tallman (concurring), Circuit Judges.  J. Horton of Santa Ana, CA, for the plaintiffs-appellants;  L. Fernandez of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  LABOR LAW:  Sommatino v. USA, 99-16797 (9th Cir. June 18, 2001).  An employee who takes no actions to engage the ad-ministrative process beyond verbal complaints and emails about a co-worker's offensive behavior, fails to achieve substantial compliance with the claim presentment requirements of Title VII of the Civil Rights Act of 1964;  dissenting in part, Judge Reinhardt thought the real issue on appeal was the plaintiff's Federal Tort Claims Act claim;  he thought that it was neither waived nor forfeited, and that the plaintiff stated a claim that survived a motion to dismiss;  it was only on the failure to state a claim issue that Judge Reinhardt disagreed with the majority.  Reinhardt (dissenting in part), and Leavy (author), and Silverman, Circuit Judges.  M. O'Connor of Monterey, CA, for the plaintiff-appellant;  J. Levy of Washington, DC, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  LABOR LAW:  Radcliffe v. Rainbow Construction Co., 99-15020 (9th Cir. June 13, 2001).  State-law claims of false arrest, false imprisonment, and malicious prosecution arising out of the arrest of union representatives for trespass were not preempted by the National Labor Relations Act;  dissenting in part, Judge Reinhardt thought the plaintiffs presented sufficient evidence to raise a triable issue of fact as to whether a defendant and the local district attorney had formed an agreement to deprive union officials of their con-stitutional rights by prosecuting them without probable cause.  Canby (author), Reinhardt (dissenting in part), and Fernandez, Circuit Judges.  S. Benson of Oakland, CA, for the plaintiffs-appellants;  B. Newman of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  FAIR LABOR STANDARDS ACT:  Block v. Los Angeles, 99-56061 (9th Cir. June 6, 2001).  A disciplinary suspension of less than a full workweek for reasons other than major safety violations can result in a failure to meet the "salary basis test" required for overtime exemption;  concurring, Judge Kleinfeld thought that the issue of whether suspensions of more than a week comply with the salary basis test need not have been decided in this case.  Ferguson, Kleinfeld (concurring), and Hawkins (author), Circuit Judges.  R. Cramer of Los Angeles, CA, for the defendants-appellants;  S. Libicki of Los Angeles, CA, for the plaintiffs-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  ADMIRALTY:  Herman Family Revocable Trust v. Teddy Bear, 99-56865 (9th Cir. June 13, 2001).  Where a district judge lacked subject matter jurisdiction to adjudicate a claim arising from the sale of a vessel, it should have dismissed all the claims;  it did not have supplemental jurisdiction to adjudicate any claim on the merits.  Magill, McKeown (author), and Fisher, Circuit Judges.  R. Kaplan of Los Angeles, CA, for the plaintiffs-appellants;  J. Swift of Chula Vista, CA, for the defendants-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  REAL ESTATE / ATTORNEYS' FEES:  USA v. 2.6 Acres of Land, 99-35887 (9th Cir. June 1, 2001).  In a condemnation action in which the United States took 2.6 acres of land and in which the parties disputed the value of the land for just compensation purposes, the landowner's valuation of his property must be considered when determining who is a prevailing party entitled to attorneys' fees under the Equal Access to Justice Act.  Lay, Trott (author), and Berzon, Circuit Judges.  J. Stahr of Washington, DC, for the plaintiff-appellant;  D. Berry of Washington, DC, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  LAND USE / ZONING:  Adams v. USA, 99-15823 (9th Cir. June 25, 2001).  Owners of private property completely surrounded by National Forest lands may be required to obtain permits for access to their property if that access constitutes use beyond uses made by the general public.  O'Scannlain and W. Fletcher, Circuit Judges, and Kelleher (author), District Judge.  S. Thompson of Las Vegas, NV, for the plaintiffs;  L. Schiffer of Washington, DC, for the defendant.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  FAIR HOUSING ACT:  Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 99-56917 (9th Cir. The opinion of May 21, 2001 has been withdrawn; a new opinion was filed June 1, 2001).  Plaintiffs, having established a defendant's liability under the Fair Housing Act, need not also show a reasonable likelihood of future violations in order to be entitled to injunctive relief under the Act.  Hug and B. Fletcher (author), Circuit Judges, and Illston, District Judge.  W. Davis of Los Angeles, CA, for the plaintiffs-appellants;  K. McVerry of Thousand Oaks, CA, for the defendant-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  REAL ESTATE / CIVIL RIGHTS:  Groten v. California, 99-56475 (9th Cir. June 1, 2001).  The federal temporary real estate appraiser license statute, 12 USC Sec. 3351, gives an individual appraiser enforceable rights under 42 USC Sec. 1983.  Beezer, T.G. Nelson (author), and Berzon, Circuit Judges.  R. Hamlish of Westlake Village, CA, for the plaintiff;  J. Cabos of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  DISABILITY BENEFITS:  Edlund v. Massanari, 99-35555 (9th Cir. June 14, 2001).  In considering whether a disability benefits claimant showed severe mental impairment, the ALJ applied an incorrect standard in rejecting the psychological evaluation;  as the ALJ's ruling that the claimant did not suffer from a severe mental impairment was not supported by substantial evidence, the USCA remanded with instructions that she reconsider her step 3 and 5 determinations under 20 CFR Sec. 404.1520(a)-(f).  Fletcher (author), Fernandez, and Paez, Circuit Judges.  R. Wilborn of Eugene, OR, for the plaintiff;  K. Pfaumer of Seattle, WA, for the defendant.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  IMMUNITY:  Idaho v. Horiuchi, 99-30149 (9th Cir. June 5, 2001).  The district court erred in finding, without an evidentiary hearing, that the Supremacy Clause shielded a federal agent from state criminal prosecution for involuntary manslaughter where there existed disputed material questions of fact which, if resolved against the agent, would strip him of immunity;  Judge Fletcher, joined by Judge Thomas, dissented from that part of the majority's holding that the disputed questions of fact must be decided by a judge; they thought that a defendant in the position of the agent here is entitled to have a jury decide disputed issues of fact relevant to his immunity defense;  dissenting, Judge Hawkins, joined by Judges Schroeder, Rymer, Silverman, and Graber, thought that "in an effort to avoid the obvious import of over a century's jurisprudence on state prosecution of federal officers, the majority confuses disputes about the reasonableness of conduce with disputes about issues of material fact and conjures up issues of material fact that the state never raised below and that even the author of the majority opinion has conceded do not exist."  Schroeder, Hug, Kozinski (author), Rymer, Kleinfeld, Hawkins (dissenting), Thomas, Silverman, Graber, W. Fletcher (dissenting in part) and Paez, Circuit Judges.  S. Yagman of Venice, CA, for the plaintiff;  A. Hoffinger of Washington, DC, for the defendant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  TORTS:  Lyon v. Agusta S.P.A, 99-55986 (9th Cir. June 7, 2001).  The "18 year" litigation-barring provisions of the General Aviation Revitalization Act of 1994 apply to all actions that not already commenced on the Act's effective date.  Pregerson, Fernandez (author), and Graber, Circuit Judges.  S. Esner of Los Angeles, CA, for the plaintiffs;  R. Pino of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  TORTS / SCIENTIFIC TESTIMONY:  Guidroz-Brault v. Missouri Pacific Railroad Co., 99-16458 (9th Cir. June 18, 2001).  A district court properly held that the defendant, Amtrak, was not negligent, as a matter of law, because a criminal act of sabotage of rail track was an unforeseeable intervening, superseding act, and the sole cause of the train wreck;  the court did abuse its discretion in excluding affidavits of experts as unreliable because they lacked a factual basis.  Goodwin (author), Hug, and W. Fletcher, Circuit Judges.  J. Watts of Minnesota, MN, for the plaintiffs-appellants;  W. Thorpe of Phoenix, AR, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  EDUCATION:  S.V. v. Sherwood School Dist., 00-35100 (9th Cir. June 26, 2001).  Oregon's two-year statute of limitations for tort actions, Oregon Revised Statutes Sec. 30.275(8), applies to a claim for tuition reimbursement under the federal Individuals with Disabilities Education Act.  T.G. Nelson, Graber (author), and Rawlinson, Circuit Judges.  R. Cohn-Lee of West Linn, OR, for the defendant-appellant;  J. Goodman of Eugene, OR, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  INTERLOCUTORY APPEALS:  Los Angeles v. Santa Monica BayKeeper, 00-55396 (9th Cir. June 26, 2001).  The district court may rescind an order for certification of an interlocutory appeal up until the court of appeals grants a party permission to appeal.  Trott (author), Tashima, and W. Fletcher, Circuit Judges.  W. Waterhouse of Los Angeles, CA, for the petitioner-appellant;  E. Ama-dor of Fresno, CA, for the respondents-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  TORTS / CLASS ACTIONS:  Zinser v. Accufix Research Inst., 99-17073 (9th Cir. June 15, 2001).  Certification of a medical monitoring subclass in a products liability class action was in appropriate where the claim primarily sought monetary damages;  dissenting, Judge Fletcher thought that even if the medical monitoring claim sought damages, that alone should not be dispositive under FRCP 23.  B. Fletcher (dissenting), O'Scannlain, and Gould (author), Circuit Judges.  E. Cabraser of San Francisco, CA, for the plaintiff-appellant;  C. Preuss of San Francisco, CA, for defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  JURISDICTION:  Doe & Associates Law Offices v. Napolitano, 99-15797 (9th Cir. The opinion filed April 23, 2001 has been removed from publication, and this opinion has published in its stead and dated June 6, 2001).  A district court must decline jurisdiction over a plaintiff's federal constitutional claims where in essence it is being called upon to review a state court decision.  Sneed, Schroeder (author), and Paez, Circuit Judges.  M. Harrison of Phoenix, AZ, for the plaintiff-appellant;  R. Howe of Phoenix, AZ, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

36)  SANCTIONS:  Kulas v. Flores, 99-16029 (9th Cir. June 25, 2001).  A district court has substantial discretion to remove a disruptive pro se plaintiff;  here the plaintiff's behavior justified his removal;  while the district judge should have explored other options short of removing him (e.g., holding him in contempt, postponing the proceedings), the plaintiff was warned that he would be removed if he continued to disrupt the proceedings and manifested a clear intent to prevent defense counsel's cross-examination.  Schroeder, D.W. Nelson (author), and Rawlinson, Circuit Judges.  T. Kulas pro se;  S. Holguin of Tucson, AZ, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

37)  IN FORMA PAUPERIS PROCEEDINGS:  Calhoun v. Stahl, 00-56216 (9th Cir. June 20, 2001).  A district court properly dismiss an in forma pauperis proceeding brought by a civil confinee who sought monetary relief for actions taken in the course of employment by persons who are immune from suit.  O'Scannlain, Silverman, and Gould, Circuit Judges.  Per Curiam.  J. Calhoun pro se;  no appearance for the defendants-appellants.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  SOCIAL SECURITY:  Ball v. Massanari, 99-36095 (9th Cir. June 15, 2001).  In considering a disability claim under Title II of the Social Security Act, an administrative law judge must conduct a "differentiating" analysis to separate alcoholism and drug-related impairments from unrelated physical impairments only if the record indicates that the non-substance-abuse-related impairments are "severe."  Goodwin (author), Greenberg, and Rawlinson, Circuit Judges.  E. Halpern of Olympia, WA, for the plaintiff-appellant;  V. Blais of Seattle, WA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  CONTRACT BIDS / DOMESTIC PARTNERS:  S.D. Myers v. San Francisco, 99-16397 (9th Cir. June 14, 2001).  San Francisco's rejection of an out-of-state contractor's bid because the contractor failed to certify its willingness to comply with the City's domestic partners employee benefits ordinance did not unconstitutionally violate the Commerce Clause, the Due Process Clause, or Cali-fornia's constitutional law.  Wallace (author), Fisher, and Rawlinson, Circuit Judges.  K. Theriot of Lawrenceville, GA, for the plaintiff-appellant;  D. Aftergut of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

40)  AMERICANS WITH DISABILITIES ACT:  Midgett v. Tri-County Metropolitan Trans., 99-36222 (9th Cir. June 26, 2001).  Several frustrating, but isolated, instances of malfunctioning wheelchair lifts on public buses did not establish a an immediate threat of continued, future violations of the ADA.  T.G. Nelson, Graber (author), and Rawlinson, Circuit Judges.  S. Russell of Portland, OR, for the plaintiff-appellant;  J. Batchelor of Portland, OR, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

41)  CIVIL RIGHTS / DEFAMATION:  Gritchen v. Collier, 99-56940 (9th Cir. June 13, 2001).  A police officer is not acting un-der color of state law in threatening to bring a private defamation action against a citizen who has complained about him;  threatening a suit or bringing one is not one of the officers duties as an officer and does not abuse the officer's position or authority as an officer.  Rymer (author), Hawkins, and Gould, Circuit Judges.  L. Roberts of Fountain Valley, CA, for the defendant-appellant;  D. Tokaji of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  NATIVE AMERICAN LAW:  USA v. Enas, 99-10049 (9th Cir. June 29, 2001).  Sitting en banc, the USCA held that a tribal court exercising its power to prosecute a non-member Indian under the Indian Civil Rights Act acts as a separate sovereign, making a subsequent prosecution by the federal government for the same conduct permissible under the dual sovereignty exception to the double jeopardy doctrine;  concurring, and joined by Judges Trott, Tashima, and W. Fletcher, Judge Pregerson thought it unnecessary to en-gage in a separation of powers analysis to reach the conclusion that the district court incorrectly concluded that the Tribe's power to prosecute the defendant is derived from the federal government.  Pregerson (concurring), O'Scannlain, Trott, T.G. Nelson, Kleinfeld, Tashima, Thomas, Silverman, McKeown (author), W. Fletcher, and Tallman, Circuit Judges.  R. Friedman of Washington, DC, for the plaintiff-appellant;  AFPD S. Popko of Phoenix, AZ, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

43)  IMMIGRATION LAW:  Kamalthas v. INS, 99-71081 (9th Cir. June 5, 2001).  In a case of first impressions, the USCA held that an alien who has been found ineligible for political asylum is not necessarily preclude relief under the United Nations Convention Against Torture.  Hug and B. Fletcher (author), Circuit Judges, and King, District Judge.  J. Wood of Los Angeles, CA, for the peti-tioner;  D. Ogden of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

44)  IMMIGRATION LAW:  Sanchez-Cruz v. INS, 99-70044 (9th Cir. June 25, 2001).  An allegation of bias on the part of the immigration judge presented a colorable due process claim reviewable by the court of appeals, despite the jurisdictional limitations of IIRIRA's transitional rules, but the claim requires administrative exhaustion.  B. Fletcher, Thomas (author), and Wardlaw, Circuit Judges.  A. Basses of South Pasadena, CA, for the petitioner;  W. Howard of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  IMMIGRATION LAW:  Andreiu v. Ashcroft, 99-70274 (9th Cir. June 18, 2001).  8 USC Sec. 1252(f)(2), which limits the power of federal courts to enjoin the removal of an alien, does not permit a stay only when the alien shows by clear and convincing evidence that the removal order if prohibited as a matter of law;  Sec. 1252(f) limits only a court's power to "enjoin the removal of any alien," and the term "enjoin" in this context is not equivalent to the term "stay."  Schroeder, Hug, Pregerson, Reinhardt, Beezer (concurring), Fernandez, Rymer, Hawkins (author), Tashima, Gould, and Rawlinson, Circuit Judges.  L. Joaquin of Los Angeles, CA, for the petitioner;  D. McConnell of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

46)  IMMIGRATION LAW:  Hughes v. Ashcroft, 99-70565 (9th Cir. June 22, 2001).  Because the petitioner was not born in a territory of the United States and did not apply for citizenship so as to demonstrate objectively an allegiance to the United States, he does not qualify as a non-citizen national of the United States;  because he was over years old when the Child Citizenship Act of 2000 took effect, he is not entitled to automatic citizenship;  Judge Fernandez concurred in the majority's decision except with respect to part B where he thought the majority's construction of Sec. 104 of the Act was plausible and persuasive but also thought that the language of the Act was not so clear that it will only bear the majority's construction.  Pregerson, Fernandez (dissenting in part), and Graber (author), Circuit Judges.  J. Moorman of Los Angeles, CA, for the petitioner;  T. Scadron of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

47)  IMMIGRATION LAW:  Ocampo-Duran v. Ashcroft, 99-70981 (9th Cir. The memorandum filed April 13, 2001 was  redesignated an opinion on June 18, 2001).  An alien who enters without inspection, adjusts his status to legal permanent resident, and then commits an aggravated felony is removable under INA Sec. 237(a)(2)(A)(iii) as an alien who has convicted an aggravated felony after having been "admitted."  Pregerson (author), Canby, and Thompson, Circuit Judges.  J. Mansfield of San Diego, CA, for the peti-tioner;  S. Goad of Washington, DC, for the respondent.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

48)  IMMIGRATION LAW:  Ochave v. INS, 99-70739 (9th Cir. June 26, 2001).  An alien claiming asylum based on an allegation that she was rape by guerrillas in her home country because of the political opinions of her father, a "Municipal Counselor," must establish that the rapist knew who she was;  the immigration judge's finding that the evidence failed to establish a nexus between the rape and a protected ground was supported by substantial evidence;  dissenting, Judge Pregerson thought that the petitioner's asylum application, combined with her credible testimony at the hearing, compelled the conclusion that the IJ's finding was not supported by substantial evidence.  Pregerson (dissenting), Fernandez, and Graber (author), Circuit Judges.  J. Wood of Los Angeles, CA, for the petitioners;  M. Candaux of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

49)  DUE PROCESS / SEIZURES:  Zimmerman v. Oakland, 99-16828 (9th Cir. June 21, 2001).  Plaintiffs' complaint that the de-fendants' seizure of their vehicle violated plaintiffs' Fourteenth Amendment due process rights stated a claim under 42 USC Sec. 1983;  the availability of post-deprivation remedies under state law did not foreclose a due process challenge to the hearing procedure employed by a police department in effecting the seizure of plaintiffs' vehicle as a public nuisance on private property.  Goodwin, Hug, and W. Fletcher (author), Circuit Judges.  T. Ho'okano of San Francisco, CA, for the plaintiffs;  C. Leed of Oakland, CA, for the de-fendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

50)  SEARCH & SEIZURE:  USA v. Morales, 00-30191 (9th Cir. June 7, 2001).  For an anonymous tip provided law enforcement officers to have sufficient "indicia of reliability" to establish reasonable suspicion to believe that the defendants are engaged in criminal activity, the tip must include a range of details and it must predict future actions by the suspect that are subsequently corroborated by the police.  Pregerson (author), Thomas, and Gould, Circuit Judges.  AUSA J. Van de Wetering of Missoula, MT, for the plaintiff-appellant;  M. Prothero of Spokane, WA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

51)  SPEED TRIAL RIGHT:  USA v. Lam, 99-10463 (9th Cir. June 4, 2001).  Delay caused by continuances initiated by, stipulated to, and granted for the defendant's benefit through his trial counsel did not deprive him of his Sixth Amendment speedy trial right.  B. Fletcher (author), O'Scannlain, and Gould, Circuit Judges.  FPD J. Clarke of Spokane, WA, and AFPD M. French of Sacramento, CA, for the defendant;  AUSA K. Melikian of Sacramento, CA, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

52)  INFORMANTS:  Mak v. FBI, 99-35516 (9th Cir. June 8, 2001).  28 CFR Sec. 16,22(a) requires a state court to make a "demand" for information about confidential informants to the Department of Justice; that usually takes the form of a subpoena.  Reinhardt (author), Wardlaw, and Gould, Circuit Judges.  J. Lobsenz of Seattle, WA, for the plaintiff;  AUSA B. Kipnis of Seattle, WA, for the defendant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

53)  CRIMINAL PROCEDURE:  Ordonez v. Johnson, 00-55700 (9th Cir. June 13, 2001).  A pro se prisoner's amended complaint is constructively filed on the date it is delivered to the clerk of the court, even if it does not comply with local rules.  Pregerson, Fernandez, and Wardlaw, Circuit Judges.  Per Curiam.  A. Ordonez pre se;  AUSA R. Lester of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

54)  DOUBLE JEOPARDY:  USA v. Pluff, 00-30227 (9th Cir. June 18, 2001).  The Major Crimes Act's incorporation of state law for the purposes of defining and punishing certain crimes does not extend to a state's double jeopardy law.  Farris, Trott (author), and Berzon, Circuit Judges.  G Smith and B. Hart of Spokane, WA, for the defendant;  N. Cook of Coeur d'Alene, ID, and L. Lamprecht of Boise, ID, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

55)  EXTRADITION:  USA v. Antonakeas, 99-10002 (9th Cir. June 19, 2001).  Once the rendering country has determined that the extradition treaty provisions have been fulfilled and that extradition was proper, the person extradited from the foreign country to face prosecution in the United States lacks standing to raise noncompliance with procedural provisions of the extradition treaty as a jurisdictional bar to sentencing proceedings in federal district court where the person had been awaiting sentence prior to fleeing abroad, .  Hug (author), Trott, and Wardlaw, Circuit Judges.  E. Fisher of Honolulu, HI, for the appellant;  AUSA T. Muehleck of Honolulu, HI, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

56)  JUVENILES:  USA v. Female Juvenile, 00-50306 (9th Cir. June 22, 2001).  When federal law enforcement officers take a juvenile into custody, 18 USC Sec. 5033 requires that they notify the juvenile's parents of the custody and that they will be given the opportunity to advise and counsel their child prior to any interrogation.  Canby, McKeown, and Paez (author), Circuit Judges.  S. Khojayan of San Diego, CA, for the defendant-appellant;  G. Vega of San Diego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

57)  JURY INSTRUCTIONS:  USA v. Pierree, 00-30135 (9th Cir. June 26, 2001).  A district court commits reversible error in a criminal prosecution where the accused pleads self-defense and the court does not specifically instruct the jury that the government has the burden of proof of disproving self-defense;  here the district court had given the same jury instruction found defective in USA v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998).  T.G. Nelson, Graber (author), and Rawlinson, Circuit Judges.  AFPD S. Jacobson of Portland, OR, for the defendant-appellant;  AUSA B. Williams of Portland, OR, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

58)  FRAUD:  USA v. Steffen, 99-10219 (9th Cir. June 5, 2001).  The offense of "travel fraud" in violation of 18 USC Sec. 2314 includes travel by an agent of the ultimate target of the fraud.  Hug, Noonan, and W. Fletcher (author), Circuit Judges.  FPD M. Powell of Reno, NV, for the defendant-appellant;  AUSA B. Sullivan of Reno, NV, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

59)  CRIMINAL PROCEDURE:  USA v. Carbullido, 00-10416 (9th Cir. June 1, 2001). In a case of first impressions, the USCA held that 18 USC Sec. 4243(f), which provides for the conditional release from hospitalization of a person found not guilty by reason of insanity, does not apply to a person who was not committed to hospitalization pursuant to that provision.  Noonan and Silverman, Circuit Judges, and Sedwick, District Judge.  Per Curiam.  J. Lambrose of Las Vegas, NV, for the defendant-appellant;  AUSA T. O'Connell of Las Vegas, NV, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

60)  SENTENCING:  USA v. Caperna, 00-30149 (9th Cir. June 1, 2001).  A district court may not depart from an applicable sentencing guidelines range on the basis of sentence disparity unless the co-defendant was convicted of the same offense as the defendant.  Lay, Trott (author), and Berzon, Circuit Judges.  AUSA B. MacNaughton of Seattle, WA, for the plaintiff-appellant;  M. Menzer of Seattle, WA, for the defendant-appellee / cross-appellant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

61)  SENTENCING:  USA v. Kentz, 00-50186 (9th Cir. June 1, 2001).  A sentencing judge's failure to give the defendant specific notice in his pretrial release order that an enhanced penalty could be imposed if the defendant is convicted of an offense committed while on release does not preclude the judge from imposing the enhanced sentence.  Rymer (author), Hawkins, and Gould, Circuit Judges.  K. Landau of Oakland, CA, for the defendant-appellant;  AUSA M. Raphael of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

62)  SENTENCING:  USA v. Hayden, 00-16042 (9th Cir. June 25, 2001).  A conviction "set aside" pursuant to California Penal Code Sec. 1203.4 is not "expunged" under USSG Sec. 4A1.2(j);  thus, in this case, state court orders setting aside the defendant's state convictions did not entitle him to a recalculated criminal history score or a recomputed federal sentence.  O'Scannlain (author) and W. Fletcher, Circuit Judges, and Kelleher, District Judge.  K. Noel of San Francisco, CA, for the defendant-appellant;  AUSA J. Kennedy of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

63)  SENTENCING:  USA v. Arias, 00-50318 (9th Cir. June 12, 2001).  In sentencing a defendant for witness intimidation in violation of 18 USC Sec. 1512(b), although he was acquitted of various drug trafficking and handgun crimes, the offense level for obstruction of justice requires the application of a cross reference to the underlying offenses, without regard to whether the underlying offenses were or are provable;  when a defendant is convicted of tampering with a witness, the offense level for obstruction is driven by the offense level of the crime whose prosecution was obstructed.  Rymer (author), Hawkins, and Gould, Circuit Judges.  J. Earley of Costa Mesa, CA, for the defendant-appellant;  AUSA E. Artson of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

64)  SENTENCING:  USA v. Hernandez-Ramirez, 99-50354 (9th Cir. June 20, 2001).  Submission of a false financial affidavit to a magistrate judge for the purpose of obtaining appointed counsel is sufficiently related to the offense of conviction to support a two level adjustment of sentence under USSG Sec. 3C1.1 (Nov. 1998) for obstruction of justice.  D.W. Nelson, Fernandez, and Rymer (author), Circuit Judges.  FPD M. Stratton of Los Angeles, CA, for the defendant;  AUSA J. Kawahara of Santa Ana, CA, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

65)  SENTENCING /  INTERNET FRAUD:  USA v. Pirello, 00-30232 (9th Cir. June 20, 2001).  The "mass-marketing" enhancement of USSG Sec. 2F1.1(b)(3) was properly imposed on a defendant who used a general access Internet classified-ads website to effectuate wire fraud in violation of 18 USC Sec. 1343;  dissenting, Judge Berzon agreed that the defendant's scheme was not an isolated event but a "plan" or "scheme," and that his ads reached a great many people, but thought the passive placement of ads on a website devoted to such ads did not constitute "solicitation by the Internet," as "solicitation" usually means more than simply advertising for funds, sales, or signatures, and suggests some sort of one-on-one importuning. Farris, Trott (author), and Berzon (dissenting), Circuit Judges.  J. Clarke and B. Hart of Spokane, WA, for the defendant;  T. Rice and R. Tangvald of Spokane, WA,, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

66)  DEATH PENALTY:  Murtishaw v. Woodford, 98-99018 (9th Cir. June 26, 2001).  An instruction that the jury "shall" impose a death sentence if aggravating circumstances outweigh mitigating circumstances constituted constitutional error that was not harmless as a weaker instruction applied.  Hug (author), Ferguson, and Wardlaw, Circuit Judges.  D. Schwartz of San Francisco, CA, for the ap-pellant;  S. Bunting of Sacramento, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

67)  HABEAS CORPUS:  Zichko v. Idaho, 98-35825 (9th Cir. Filed May 3, 2001; Amended June 5, 2001).  A federal habeas petitioner is "in custody" for purposes of challenging an expired rape conviction when he is incarcerated for failing to comply with a state sex offender registration law.  Thompson, Trott, and Paez (author), Circuit Judges.  T. Kummerow of Seattle, WA, for the petitioner-appellant;  L. Anderson of Boise, ID, for the respondents-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

68)  HABEAS CORPUS:  Alvarado v. Hill, 00-35152 (9th Cir. June 2, 2001).  "Measure 11," an Oregon law adopted via the ballot initiative process, which mandates that juveniles between the ages of 15 and 17 charged with the commission of specified crimes be tried and sentenced as adults does not violate the due process, equal protection, or the protection against cruel and unusual punishment.  McKeown, W. Fletcher (author), and Rawlinson, Circuit Judges.  S. Sady of Portland, OR, for the petitioner-appellant;  J. Metcalf of Salem, OR, for the respondent-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

69)  HABEAS CORPUS:  Tillema v. Long, 00-15974 (9th Cir. June 19, 2001).  The limitations period for filing a federal habeas petition is tolled during the pendency of a state challenge to the "pertinent" judgment, even if that challenge does not include a claim later asserted in the federal habeas petition;  dissenting in part, Judge Rymer did not think that the meaning of "pertinent claim or judgment" in 28 USC Sec. 2244(d)(2) or how it plays out in this case is unnecessary to the decision.  Reinhardt (author), Rymer (dissenting in part), and Fisher, Circuit Judges.  FPD J. Lambrose of Las Vegas, NV, for the petitioner;  R. Hulse of Las Vegas, CA, for the respondents.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

70)  HABEAS CORPUS:  Hasan v. Galaza, 99-16336 (9th Cir. June 22, 2001).  To establish the factual predicate for a habeas petition based on ineffective assistance of counsel, the petitioner must have discovered (or with due diligence could have discovered) facts suggesting both unreasonable performance under prevailing professional standards and a resulting prejudice.  Hug and T.G. Nelson, Circuit Judges, and Shadur (author), District Judge.  J. Lipsig of Sacramento, CA, for the petitioner;  E. Share of San Francisco, CA, for the respondent.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

71)  HABEAS CORPUS:  Allen v. Lewis, 01-15503 (9th Cir. June 27, 2001).  The statute of limitations for filing a habeas petition was not tolled during the petitioner's transfer between state prisons where the transfer occurred a mere month into the limitations period and left the petitioner with the better part of the limitations period to file his petition, and the transfer was not a proximate cause of the prisoner's failure to file within the limitations period.  O'Scannlain, Silverman, and Gould, Circuit Judges.  Per Curiam.  J. Allen pro se;  D. Gillette of San Francisco, CA, for the respondent-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

72)  HABEAS CORPUS:  Van Buskirk v. Baldwin, 00-35640 (9th Cir. June 28, 2001).  Evidence of "actual innocence" excuses a procedural default only if that evidence could not have been discovered earlier through the exercise of due diligence.  Goodwin (author), Greenberg, and Rawlinson, Circuit Judges.  AFPD C. Weinerman of Eugene, 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/) 

73)  PROBATION / DUE PROCESS:  USA v. Sesma-Hernandez, 99-10491 (9th Cir. June 6, 2001).  Sitting en banc, the USCA held that when a defendant disputes government evidence offered in support of the revocation of his probation or supervised release, the district court must make sufficient findings on the record to identify the violation and the evidence that establishes the violation so as to provide the defendant with due process and ensure an adequate record for appellate review. Schroeder (author), Hug, Kozinski, Trott, Rymer, McKeown, W. Fletcher, Fisher, Paez, Berzon, and Tallman, Circuit Judges.  AFPD J. Lambrose of Las Vegas, CA, for the defendant-appellant;  AUSA W. Ayers of Las Vegas, NV,, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

74)  PROBATION:  USA v. Garrett, 00-50303 (9th Cir. June 11, 2001).  Under 18 USC Sec. 3583(i) the government can wait until the end of a defendant's state pretrial detention and imprisonment on a state charge to begin the revocation proceedings;  dissenting Judge Berzon reads the statute as explicitly stating that the court's authority to revoke a term of supervised release extends only for as long as it reasonably takes to hold a fair and adequate hearing on revocation.  Trott (author), Thomas, and Berzon (dissenting), Circuit Judges.  AFPD T. Burns of San Diego, CA, for the defendant-appellant;  AUSA C. Tenorio of San Diego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

 1)  INSURANCE: Carlson v. State Farm Mutual Automobile Insurance Co., 99-36186 (9th Cir. May 8, 2001) (unpublished).  Browning, Wallace, and T.G. Nelson, Circuit Judges.
 
      Carlson appealed the summary judgment entered for State Farm Mutual Automobile Insurance Company by the District Court for Montana, Judge Molloy presiding. 
 
        The USCA affirmed.  Montana Code Ann. 33-18-242(7)(b) provides that "the period prescribed for commencement of an action under this section is: … (b) for a third-party claimant, within 1 year from the date of the settlement of or entry of judgment on the underlying claim."  On November 17, 1997, Carlson entered into an oral accord to settle her lawsuit.  On December 10, 1997, Carlson executed a final release of State Farm's insured, and on December 12, 1997, State Farm tendered payment to Carlson.  On January 4, 1998, upon stipulation of the parties, the state court dismissed the underlying state action.  Carlson initiated the present suit under the Montana Unfair Claims Settlement Practices Act on December 2, 1998.  Carlson argued that her present action was filed within the one year deadline prescribed by the Act.  She first argued that the limitations period runs from either settlement or state court's dismissal of the action pursuant to the parties' settlement, whichever is later.  The USCA noted that, when interpreting state law, it is bound by decisions of the state's highest court.  Under Montana law, "the purpose of a court's interpretation of a statute is to effectuate the intent of the legislature.  If the intent of the legislature can be determined from the plain meaning of the words used, the court may not go further or apply other means of construction."  Peris v. Safeco Ins. Co., 916 P.2d 780, 783 (Mont. 1996).  Montana courts also "presume that the legislature does not pass meaningless legislation." Id. at 784.  The phrase "date of the settlement of or the entry of judgment on the underlying claim" on its face precludes Carlson's position because her interpretation would render "settlement" superfluous in all cases where a lawsuit was brought, settlement reached, and the lawsuit dismissed as a condition of the settlement.  In addition, although the Montana Supreme Court has not had occasion to address the limitations period under the Act explicitly, it has dealt with a related provision of the Act, which specifies, "A third-party claimant may not file an action under this section until after the underlying claim has been settled or a judgment entered in favor of the claimant on the underlying claim.  Mont. Code Ann. 33-18-242(b)(b).  In the context of this provision, the Montana Supreme Court has indicated that the word "judgment" does not mean the passive entry of an order of dismissal upon settlement by the parties but rather an active adjudication by the court on the merits.  Moreover, the Montana Supreme Court has made clear that an action may be brought by a third-party claimant after settlement or adjudication, whichever happens sooner.  The USCA thus held that, under Montana law, the limitations period of the Act began running from Carlson's settlement.  In the alternative, Carlson argued that there was no "settlement" within the meaning of the statute until the agreement between the parties was fully executed by the tender of payment.  The Montana Supreme Court has held that the term "settlement" as used throughout the Act is synonymous with an enforceable bilateral contract that discharges a future or existing obligation.  Watters v. Guar. Nat'l Ins. Co., 3 P.3d 626, 634 (Mont. 2000).  Since Carlson has conceded that she entered an enforce-able bilateral contract on November 17, 1997, her second argument is untenable under Montana law.

2)  JURISDICTION / CONTRACTS / TORTS: Asad v. Pioneer Balloon, Inc., 99-35822 (9th Cir. June 5, 2001) (unpublished).  McKeown, W. Fletcher, and Rawlinson (dissenting), Circuit Judges.
 
      Plaintiff Asad appealed pro se a judgment entered by the District Court for Montana, Magistrate Judge Cebull presiding, which dismissed Asad's diversity action for lack of personal jurisdiction over the defendants.  
 
      The USCA reversed and remanded.  Asad, a Montana resident, is the sole proprietor of XyzzT Enterprises, an export business located in Montana.  In his complaint, he alleged that he contracted with Tubeworks, a California company, to deliver balloons to Dubai, UAE.  After arriving in Dubai to receive the shipment, Asad learned that Tubeworks would not deliver because it had been advised by Continental American Corporation, a Kansas company doing business as Pioneer Balloon, that Asad was a bad credit risk.  Asad also alleged that Pioneer induced two certified balloon artists to discontinue negotiations with him.  Under the doctrine of general jurisdiction, a defendant who has "substantial" or "continuous and systematic" contacts with the forum state may be haled into court in any action.  The district court correctly concluded that neither Tubeworks nor Pioneer had sufficient contracts with Montana to support the exercise of general jurisdiction.  Under the doctrine of specific jurisdiction, a defendant may be subject to suit if:  (1) he does some act or consummates some transaction by which he purposefully avails himself of the privilege of conducting activities in the forum;  (2) the claim is one which arises out of or results from his forum-related activities; and (3) the exercise of jurisdiction is reasonable.  In assessing purposeful availment, the USCA distinguishes between contract and tort actions.  The claims against Tubeworks sounded primary in contract.  In contract actions, the defendant must have performed some affirmative conduct that allows or promotes the transaction of business within the forum state.  Soliciting business in the forum state will generally suffice if it results in a contract ne-gotiations or the transaction of business.  However, the mere existence of a contract with a forum resident is not enough.  According to Asad, he first encountered Tubeworks at a trade show in either Florida or Louisiana.  In the ensuing three months, Tubeworks mailed three advertisements to him at his Montana address.  Those mailings prompted Asad to contact Tubeworks, and contract negotiations ensued.  The USCA concluded that when Tubeworks sent three pieces of literature to Asad at his Montana  address, it purposefully availed itself of the privilege of doing business in Montana, and that it should reasonably have anticipated be-ing haled into a Montana court.  Moreover, but for Tubeworks' solicitations and the ensuing contract negotiations, Asad would not have suffered breach of contract damages.  Finally, Tubeworks failed to present a compelling case that jurisdiction was unreasonable.  The district court thus had specific personal jurisdiction over Tubeworks.
 
       The claims against Pioneer sounded primarily in tort.  In tort actions, a court may exercise jurisdiction over a defendant "whose only contact with the forum state is the purposeful direction of a foreign action having effect in the forum state.  Consequently, a plaintiff need only show: (1) an intentional action;  (2) aimed at the forum state:  (3) that causes harm the defendant should have an-ticipated would be suffered in the forum state.  Asad alleged that Pioneer knowingly gave false information about Asad's credit history to Tubeworks over the telephone, and to two balloon artists at an annual balloons convention in Chicago.  It was not determinative that the allegedly tortious communications did not occur in Montana.  Nor was it determinative who initiated contact.  Rather, the crux of the inquiry was whether the defendant engaged in "express aiming," or "wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state."  Under the facts as alleged, Pioneer deliberately spread false information about Asad, whom Pioneer knew to be a resident of Montana.  Pioneer further knew that Asad, a sole proprietor conducted business from Montana, would suffer lost profits and diminished financial credibility in Montana, regardless of the ultimate destination of his exports.  Pioneer thus should reasonably have anticipated being haled into court in Montana.  Moreover, but for Pioneer's alleged dissemination of false in-formation about Asad, third parties would not have ceased business dealings with Asad.  Finally, Pioneer failed to present a compelling case that jurisdiction is unreasonable.  The district court thus had specific personal jurisdiction over Pioneer.
 
        Dissenting, Judge Rawlinson noted that the majority had found that the district court had specific personal jurisdiction over the defendants.  However, he noted that the district court had not addressed that issues.  Instead, the district court, when dismissing Asad's complaint for lack of personal jurisdiction, made findings with respect to general personal jurisdiction only.  Judge Rawlinson found nothing in the record to indicate that Asad argued before the district court that the defendants were subject to specific personal jurisdiction.  Judge Rawlinson thus thought the record on appeal was insufficient developed to permit review of the specific personal jurisdiction issues.  As noted by the majority, the record before the district court contained facts which could possibly support specific personal jurisdiction over the defendants.  However, Judge Rawlinson thought the matter should be remanded to allow the district court to develop the factual record with respect to specific personal jurisdiction before that issue is reviewed.  He would thus vacate the district court's order and remand the matter for further factual findings.

3)  BANKRUPTCY: In re Balbir Singh Tuli, 99-16871 (9th Cir. June 15, 2001) (unpublished).  Hill, Graber, and McKeown, Circuit Judges.
       Tuli appealed pro se three bankruptcy court orders relating to an adversary proceeding he instituted against two Swiss companies.  The BAP affirmed.
       The USCA affirmed.  In 1992, Tuli commenced an arbitration against the defendants before the International Chamber of Commerce (ICC) in Paris, as required by the relevant subcontracts for work on an Iraqi power station.  A few weeks later, he filed an adversary proceeding against the defendants in bankruptcy court, pertaining to the same subcontracts.  In 1997, the bankruptcy court dismissed the adversary proceeding without prejudice.  One of the alternative grounds for dismissal was failure to prosecute.  The USCA concluded that the bankruptcy court did not abuse its discretion.  The ICC dismissed the arbitration in 1994, in part because Tuli had not paid the required fees.  He did not restart the arbitration.  Later in 1994, the bankruptcy court told Tuli that he had to file a motion to vacate the stay if he wanted to resume the adversary proceeding.  He had not done so for 20 months when the bankruptcy court entered an ordered to show cause why the adversary proceeding should not be dismissed for failure to prosecute.  Tuli's main argument is that the bankruptcy court did not dismiss for failure to prosecute, but only abstained under 28 USC Sec. 1334(c)(1).  However, the USCA read the court's order as dismissing the proceeding on two independent and alternative grounds, one of which was failure to prosecute.  That ground for dismissal was proper in the circumstances.  Tuli also challenged three interlocutory orders pertaining to the adversary proceeding.  The USCA agreed with the BAP that such orders may not be reviewed when the appeal is from a dis-missal without prejudice for lack of prosecution.  
        In 1998, the bankruptcy court confirmed Tuli's plan under Chapter 11.  The order preserved all claims that Tuli had against the defendants.  The defendants moved to amend the order to clarify that, if Tuli eventually recovers damages under the Iraqi subcontracts, then the defendants' claims for setoffs against those damages are preserved.  The court made that amendment, which Tuli now disputes.  Specifically, Tuli argued that any setoff was discharged automatically when the plan was confirmed.  To the contrary, the USCA has held that, under 11 USC Sec. 553(a), pre-petition rights to a setoff (like those that the defendants assert here) survive the general discharge of debts that occurs, under 11 USC Sec. 1141, when a plan is confirmed.  In re De Laurentiis Entm't Group Inc., 963 F.2d 1269, 1276 (9th Cir. 1992).  Tuli maintained that the defendants' generally bad conduct during the course of this long-running dispute should create an exception to the rule in Sec. 553(a).  That statute contains three exceptions, none of which is implicated here, and none of which supports Tuli's theory.  The USCA thus held that the amendment was permissible.
       In 1996, Tuli filed two proofs of claim in bankruptcy court, against himself and on behalf of the defendants—without the de-fendants' knowledge or consent.  The bankruptcy court granted the defendants' motion to withdraw those claims.  At the time Tuli filed the claims, the adversary proceeding to which they referred was stayed so that the parties could arbitrate their dispute before the ICC.  Thus, the proofs of claim related to debts that were not before the bankruptcy court at the time they were filed.  In the circumstances, Tuli could not have been prejudiced, and the bankruptcy court did not abuse its discretion in allowing the defendants to withdraw the proofs of claim.

4)  BANKRUPTCY: In re NFC Financial, 99-17607 (9th Cir. June 13, 2001) (unpublished).  O'Scannlain and W. Fletcher, Circuit Judges, and Kelleher, District Judge.
        NFC Financial leased communications equipment to customers and assigned the leases to wholesale funding companies.  United Computer Capital Corporation ("Unistar") was one such wholesale funding source.  After NFC filed for Chapter 11 bankruptcy, Unistar filed an amended proof of claim against NFC.  NFC objected to the claim, asserting that Unistar owed NFC funds pursuant to a contract for the sharing of insurance premiums collected by Unistar on leases NFC assigned to it.  The bankruptcy court concluded that a contract existed covering the insurance premiums and entered judgment for NFC.  Unistar appealed to the Bankruptcy Appellate Panel ("BAP") which affirmed the bankruptcy court.  Unistar appealed.
        The USCA affirmed.  Unistar maintained that there is no enforceable contract between itself and NFC.  Unistar first asserted that it never clearly manifested its assent to an offer by NFC to share insurance premiums.  However, the USCA found that contention unpersuasive because the presidents of both Unistar and NFC testified that both sides agreed to a contract for the sharing of insurance premiums.  Unistar next asserted that even if it did assent to an offer, the terms were insufficiently certain to be enforced.  The USCA found this contention unpersuasive as well because record evidence supported the bankruptcy court's factual findings as to the sufficiency of each of the challenged contract terms.  The testimony of NFC's president, Fagerlin, and documentary evidence sufficiently showed both the premiums that would be paid for insurance and the premiums that would be shared.  And assertions of uncertainty with regard to the costs of administering claims, timing of payment, accounting system to be employed, termination of the contract, and treatment of renewals and extensions were sufficiently refuted by the Fagerlin's testimony and NFC's documentary evidence.  For example, Fagerlin testified that Unistar agreed to shoulder the costs of administering claims, to pay NFC its share "as collected," and to account to NFC for the premium revenues collected.  Further, there was evidence that the sharing would include all insurance proceeds collected for leases assigned to Unistar by NFC.  There was no evidence that the premium sharing agreement would not include automatic lease extensions.  The bankruptcy court thus did not clearly err by finding sufficient certainty in the contract.
       Unistar next argued that the district court erred in granting affirmative relief beyond an offset of Unistar's claim, on the grounds that NFC never prayed for that relief, and that NFC failed to present sufficient evidence of a reasonable estimate of future damages.  However, NFC's filing of an initial objection to Unistar's claim did not preclude NFC from pursuing affirmative relief at the bankruptcy court hearing, particularly after Unistar agreed to stipulate to allow NFC to pursue affirmative relief at the same proceeding in which Unistar presented its claim.  NFC also presented sufficient evidence to support a conclusion that it was entitled to the af-firmative relief.  The USCA declined to consider Unistar's contention that the affirmative relief sought was specific performance, and that such relief was unavailable.  Finally, Unistar maintained that leases that are automatically renewed are new leases rather than extensions of leases assigned by NFC governed by the contract, and that because NFC does nothing to cause the renewal, it is not entitled to any insurance premiums from those leases.  The USCA found this contention unpersuasive because the contract did not specify that the effort of either party changes the ordinary meaning of the terms of the contract.  In addition, under Unistar's own rationale based on effort, it has no greater claim than NFC to the insurance premiums for leases that automatically renew.  Unistar's reliance on IBM v. State Bd. Of Equalization, 26 Cal.3d 923, 929-30 (en banc), for the proposition that renewed lease are new leases is misplaced.  In that case the California Supreme Court held that the California Legislature did not intend for renewed leases to continue to be exempt from taxation under a "grandfather clause."  The USCA found that holding inapposite to Unistar's contention.

5)  BANKRUPTCY: In re Hurt, 00-15088 (9th Cir. June 5, 2001) (unpublished).  Hug and T.G. Nelson, Circuit Judges, and Shadur, District Judge.
      This case presented the issue of whether the bankruptcy court erred in allowing the sale of certain Colorado property under 11 USC Sec. 363(f)(4).  Appellant ITNX challenged the sale.  The USCA found the sale proper under Sec. 363(b) and affirmed.  Section 363(b) allows the debtor-in-possession to sell, other than in the ordinary course of business, "property of the estate" which is defined as, among other things, "all legal or equitable interests of the debtor in property as of the commencement of the case."  Thus, if the property was property of the estate, it was within the bankruptcy court's power to allow its sale.  The settlement agreement and subse-quent judgment in adversary proceeding number 87-199 established that title in the property was quieted in favor of the debtor, Norma Hurt.  The settlement provided for the "waiver and release of … any claim by Andrew B. Spain or any of his entities in and to the real property in Colorado."  As president of ITNX, Spain thus waived ITNX's claim to the property.  The judgment in adversary proceeding number 87-199 confirms as much, providing that "The property listed on the exhibit tendered with the settlement agreement … shall be confirmed in Norma J. Hurt as her sole and separate property."  The property was correctly identified in the exhibit.  The Colorado property was thus property of the estate, the sale of which the bankruptcy court was empowered to allow.  The bankruptcy court also correctly ruled that ITNX was not entitled under Sec. 363(i) to match the high bid on the property.  That provision provides:  "Before the consummation of a sale of property to which subsection (g) or (h) of this section applies … a co-owner of such property … may purchase such property at the price at which such sale is to be consummated."  Subsection (g) is inapplicable, for it applies to "any vested or contingent right in the nature of dower or curtesy."  And Subsection (h) applies to "the interest of any co-owner in property in which the debtor had, at the time of the commencement of the case, an undivided interest as tenant in common, joint tenant, or tenant by the entirety."  This, too, is inapplicable.  ITNX is not a co-owner with Hurt sharing an undivided interest as joint tenant, tenant in common, or tenant by the entirety.  It is a third party that itself claims to be the sole owner.  ITNX thus had no right to match the high bid.  In addition, although argued by ITNX, the USCA found no reason to determine whether the bankruptcy court had the power to itself "determine" an adversary proceeding to resolve who owned the property, because Hurt owned the property as a matter of law due to the settlement and the judgment in adversary proceeding 87-199.  There was no need for an adversary proceeding in 1996 as to ownership, and none in fact occurred.  The bankruptcy court thus did not exceed its powers under 28 USC Sec. 157 because it did not purport to resolve the ownership dispute by conducting and deciding an adversary proceeding.  Finally, although argued by ITNX, the USCA found no need to consider whether a bona fide dispute existed under Sec. 363(f)(4).  Sale of the Colorado property was proper under Sec. 363(b) because the property was, as a matter of law, property of the estate by virtue of the settlement and judgment in 87-199.  There was no need to resort to Sec. 363(f)(4).

6)  BANKRUPTCY: In re Hurt, 00-15978 (9th Cir. June 12, 2001) (unpublished).  Hug and T.G. Nelson, Circuit Judges, and Shadur, District Judge.
        Reviewing the bankruptcy court's decision on a Fed. R. Civ. P. 60(b) motion, the USCA found no abuse of discretion.  Rule 60(b)(3), which provides relief where a judgment or order was based on fraud, has a one-year limitations period, which the appellants here far exceeded.  The USCA rejected the appellants' contention of Rule 60(b)(6) is applicable.  That provision cannot be used as a back-up for seeking relief that is otherwise available elsewhere in Rule 60(b).  Here, Rule 60(b)(3), addressing fraud, is clearly applicable to the appellants' allegations.  The appellants dispute the applicability of Rule 60(b)(3), contending that the alleged perpetrator of the fraud is not "an adverse party" as to them because they were not parties to the original judgment.  However, because the appellants have asserted standing by virtue of their privity with parties to the judgment, they stand in the shoes of their predecessors.  From that standpoint, the perpetrator of the fraud is an adverse party as to the appellants, and Rule 60(b0(3) does apply.  In any event, the bank-ruptcy court did not abuse its discretion by concluding, in the alternative, that the appellants failed to meet the less stringent "reasonable time" filing deadline imposed by Rule 60(b)(6).  The appellants also alleged error in the bankruptcy court's failure to construe their motion as an "independent action" to reopen the earlier judgment.  It bears repeating that the appellants have asserted standing by virtue of their privity with parties to that judgment.  It necessarily follows that they cannot achieve a more favorable position than their predecessors.  Were the original parties to the judgment the ones seeking to reopen it, we would have no difficulty in holding that they were time barred.  No reason has been shown as to why laches and finality doctrines would not, at this late date, bar the original parties from bringing an independent action.  Ample opportunity existed for the appellants' predecessors to discover the alleged fraud.  The mere sale of the property by the predecessors did not create additional rights in favor of the appellants to attack the judgment.  The USCA thus found no error in the bankruptcy court's failure to address the appellants' motion as an independent action.  Finally, in her brief Hurt asked the court to sanction the appellants under Fed. R. App. P. 38 for filing a frivolous appeal.  However, as the advisory committee notes make clear, a statement in a brief does not give sufficient notice to the person sought to be sanctioned.  Before sanctions may be imposed, the person to be sanctioned must have notice and an opportunity to respond.  The appellants' attorneys thus were ordered to show cause why sanctions should not be imposed for filing a frivolous appeal.

7)  BANKRUPTCY / SANCTIONS: In re Kellander, 99-17645 (9th Cir. June 1, 2001) (unpublished).  Sneed and Silverman, Circuit Judges, and Sedwick, District Judge.
       Smyth appealed a BAP order affirming sanctions entered against him by the bankruptcy court.  The bankruptcy court sanctioned him for filing a frivolous 11 USC Sec. 522(f) motion to avoid a judgment lien and for filing the motion for an improper purpose.
      The USCA affirmed.  Smyth argued that the bankruptcy court failed to make adequate findings.  The bankruptcy court found that the judgment lien secured a child support debt, that a child support lien could not be avoided under Sec. 522(f) and that Smyth filed the motion for an improper purpose—"to shake things up."  The record evidence supports the bankruptcy court's finding that the Sec. 522(f) motion to avoid the child support lien was frivolous and filed for an improper purpose.  Smyth also argued that the bank-ruptcy court could not sanction him because he effectively withdrew the Sec. 522(f) motion prior to the order to show cause by not setting the motion for a hearing and by informing opposition counsel of same.  The bankruptcy court cannot award monetary sanctions on its own initiative unless it issues the order to show cause "before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned."  Fed. R. Bankr. 9011(c)(2)(B).  Smyth's argument failed because he neither settled nor dismissed the claims relating to the judgment lien before the order to show cause was issued.  He merely refrained from having it set for hearing at that time.  Since it was not formally withdrawn, it could have been resurrected for hearing at any time.  In fact, Smyth continued to pursue the judgment lien issue through a second Chapter 13 proceeding.  The safe harbor provision of Rule 9011(c)(2)(B) did not preclude the sanctions against Smyth.

8)  BANKRUPTCY / TAXATION: In re Bonner, 00-15041 (9th Cir. June 19, 2001) (unpublished).  Schroeder, Lay, and Thompson, Circuit Judges
       Debtor Bonner appealed a Bankruptcy Appellate Panel's decision affirming a bankruptcy court's determination that under 11 USC Sec. 523(a)(1)(C), his tax liability was not discharged in his Chapter 7 bankruptcy, because he made a fraudulent return with respect to the tax and willfully attempted to evade or defeat the tax.
         The USCA affirmed.  Bonner argued that the IRS failed to sustain its burden of proving fraudulent intent.  Fraudulent intent may be inferred from circumstantial evidence, or "badges of fraud."  These badges of fraud include:  (1) understatement of income; (2) inadequate records;  (3) failure to file tax returns;  (4) implausible or inconsistent explanations of behavior;  (5) concealing assets; and (6) failure to cooperate with tax authorities.  Bradford v. CIR, 796 F.2d 303, 307 (9th Cir. 1986.  The record here is sufficient to find at least two badges of fraud.  First, Bonner does not dispute that he understated his income.  Second, he failed to provide the IRS with complete records to support his tax computation, evidencing either failure to maintain adequate records or failure to cooperate with the IRS.  Bonner contends that failure to maintain proper business records is a badge of fraud only if the taxpayer deals in cash.  This is incorrect.  The USCA has held that the failure to maintain business records is a badge of fraud even where transactions do not involve cash.  There is additional circumstantial evidence of fraud.  Bonner substantially understated income in three tax years, and he defrauded at least one party other than the IRS by fraudulently continuing to collect disability benefits from an insurer after he resumed working.  Bonner testified that his psychiatric condition led him to set up fictitious companies.  However, he provides no credible evidence to explain how his psychiatric condition caused him to understate his income on tax returns.  Bonner also challenged the use of his plea of nolo contendere to a grand theft charge as evidence of his guilt on that charge.  Neither the bankruptcy court nor the BAP referred to the plea itself, but to the conviction.  In addition, as the BAP observed, there was ample evidence that Bonner made a fraudulent return apart from either the plea or the conviction.  Bonner also argued that the bankruptcy court made insufficient findings and sought remand for more detailed findings.  However, the USCA found the record sufficiently clear for it to affirm without the need for additional findings.  Because it held that Bonner made a fraudulent tax return with respect to the tax giving rise to his debt, the USCA did not reach the bankruptcy court's alternative holding that he willfully attempted to evade or defeat the tax.

9)  TAXATION: Hamdan v. CIR, 00-71048 (9th Cir. June 25, 2001) (unpublished). O'Scannlain, Silverman, and Gould, Circuit Judges.
         The Hamdans appealed pro se a decision of the Tax Court upholding the CIR's determination of income tax deficiencies for tax year 1989, and an accuracy-related penalty under 26 USC Sec. 6662(a) for negligence.  
        The USCA affirmed.  The Hamdans failed to establish that a "profit participation fee" was an ordinary and necessary business expense, and failed to sufficiently document a travel and automobile deduction.  The USCA concluded that the Tax Court did not clearly err in finding that the Hamdans did not establish that the "profit participation fee" and travel and automobile expenses were ordinary and necessary business expenses deductible under 26 USC Sec. 162(a).  With regards to their advances to Hamdan Project Development, the lack of any documentation of the terms of repayment or security agreement on the amount of money advanced did not support a finding that the advances were deductible as worthless loans.  The USCA  concluded that the Tax Court did not clearly err in finding that the advances made to Hamdan Project Development were capital contributions and not loans.  Finally, the USCA concluded that the Tax Court did not clearly err in finding the Hamdans negligent and assessing them an accuracy-related penalty..

10)  TAXATION: Greene v. CIR, 00-70922 (9th Cir. June 27, 2001) (unpublished). O'Scannlain, Silverman, and Gould, Circuit Judges.
       Greene appealed pro se the decision of the Tax Court upholding the CIR's determination of deficiencies in income tax for tax years 1992 through 1996.
       The USCA affirmed.  Because Greene stipulated to the CIR's evidence that he received wages and compensation but did not file tax returns during those years, the Tax Court did not err by holding that Greene was liable for the tax deficiencies pursuant to 26 USC Sec. 61(a) and for statutory penalties pursuant to 26 USC Sec. 6651(a)(1).  Greene's assertions that his income was not taxable and that the government lacked authority to assess the deficiency were entirely without merit.  The USCA also rejected Greene's contention that the case should be remanded because the Tax Court failed to rule on his motion to dismiss the petition for lack of jurisdiction, which he filed after the Tax Court entered a decision.  The government conceded that the Tax Court should have deemed Green's motion to dismiss as a motion for reconsideration and decided the motion.  Nevertheless, the Tax Court's failure to do so did not violate Green's due process rights since his motion to dismiss raised an entirely meritless contention that the IRS committed procedural irregularities rendering its notice of deficiency invalid.  The USCA also rejected Greene's claim that the Tax Court lacked jurisdiction over him because the IRS issued a notice of deficiency without first sending him a 30-day letter (a form letter designed to inform a taxpayer of the administrative appeal process) and without conducting formal proceedings before the IRS Appeals Division.  The Tax Court's jurisdiction does not depend upon a preliminary proceeding, but requires only a valid deficiency notice.  Because a taxpayer is entitled to a de novo proceeding in the Tax Court upon the filing of a timely petition for review, the USCA said it will not look behind a deficiency notice to question the procedures leading to a determination.

11)  TAXATION: ST&T v. CIR, 00-55772 (9th Cir. June 25, 2001) (unpublished). O'Scannlain, Silverman, and Gould, Circuit Judges.
          The Tekles, husband and wife, appealed pro se orders of the District Court for the Central District of California, Judge Lew presiding, dismissing their complaint for lack of subject matter jurisdiction and denying reconsideration.  The USCA affirmed.  Whether the government has waived sovereign immunity is a question of law reviewed de novo and the denial of reconsideration is reviewed for abuse of discretion.  The district court properly considered only the original complaint because the Tekles failed to obtain leave of court before attempting to amend their complaint by filing the document captioned as both a supplemental complaint and an opposition to defendant's motion to dismiss.  Because the original complaint did not set forth any statutory basis for suit or show that the defendant waived sovereign immunity, the district court properly dismissed the complaint.  Because the Tekles did not show clear error or present newly discovered evidence, the district court did not abuse its discretion by denying the motion for reconsideration.

12)  RICO / WIRE FRAUD:  USA v. A.G.E. Enterprises, 00-10188 (9th Cir. June 29, 2001) (unpublished). Noonan and Silverman, Circuit Judges, and Sedwick, District Judge.
        Defendants-appellants A.G.E. Enterprises and A.G.E. Corporation (collectively "AGE") and Colletti appealed their jury conviction for wire fraud, in violation of 18 USC Sec. 1343, and RICO activities, in violation of 18 USC Sec. 1962(c) and (d) and 18 USC Sec. 1963.
        The USCA affirmed.  First, it found the superceding indictment very specific with respect to the wire fraud charged in Counts Eight through Twenty-Eight.  Although the counts incorporate by reference the factual allegations of Count Four, which detailed Joseph Conforte's use of the wires to commit bankruptcy fraud, Count Four also alleged a separate scheme to defraud the IRS, including specific details as to the appellants involvement in the scheme.  For example, the indictment described how AGE was created solely to hid Conforte's Mustang Ranch income from the IRS.  The superceding alleged that the defendants, including Colletti, would, at Conforte's direction, wire money from AGE's accounts in the United States to foreign accounts for Conforte's ultimate use and benefit, and would cause money to be drawn from AGE's accounts in amounts payable to Colletti that would ultimately be transferred to Conforte's control.  Finally, the indictment identifies twenty-one specific uses of the wires by date, amount, and payee.  These allegations, if proven, would satisfy the fraud element required for a wire fraud conviction regardless of the disposition of the bankruptcy fraud changes in other counts.  The disposition of Counts One through Three was thus inconsequential to the wire fraud charges on which the appellants were convicted.  The USCA said the same was true with respect to the RICO counts.  The superceding indictment proposes that the twenty-one alleged instances of wire fraud as well as monthly bribery payments to the Storey County Commissioner and Storey Country Sheriff are predicates acts which supports the RICO charges.  The superceding indictment also describes the purpose of the enterprise as "generating, collecting, receiving, and holding income, whether reported or unreported to the Internal Revenue Service, from the property known as the Mustang Ranch, and by illegally distributing said income to defendant Joseph Conforte."  These statements demonstrate that proof of the RICO counts, at least with respect to the appellants, did not rest upon proof of the bankruptcy fraud charges in Counts One through Three.
        Second, Chirila, an attorney and prior president of AGE, was permitted to testify regarding three conversations he had with Colletti in late 1996.  The district court found that the crime-fraud exception trumped the appellants' attorney-client privilege.  Colletti appealed that finding.  The crime-fraud exception applies to attorney-client communications which "solicit or offer advice for the commission of a crime or fraud."  To successfully invoke the exception, the government must make a prima facie showing that the exception applies which requires non-privileged evidence that is "sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability."  The circuit has not yet decided which standard of review applies to a review of the government's prima facie showing.  Regardless of the standard of review employed, the government satisfied its prima facie burden through the testimony and evidence presented by Menchetti, a legal advisor to AGE.  AGE retained Menchetti as general counsel for approximately 14 months between January 1995 and February or March 1996.  Menchetti attested to several phone conversations he had with Conforte during that period in which they discussed the option agreement.  Menchetti stated that Conforte had told him that the option was a sham transaction that was originally created to "usurp the government's deal" but he, Conforte, feared that Colletti would at some point attempt to record and execute on it.  These facts are also set forth in a memorandum dated June 8, 1995, which Menchetti wrote following one of his telephone conversations with Conforte and which was entered into evidence.  Chirila was hired to manage Nevada Rodeway LLC.  Chirila and others formed Rodeway to exercise the option agreement.  The USCA noted that it follows that Menchetti's testimony and memorandum, which show that Colletti knew that fraud on the IRS would occur should she exercise the option agreement, supported a reasonable belief that in camera review of Chirila's testimony would yield evidence that Colletti sought Chirila's advice in order to take actions which she knew would result in a fraud on the IRS. Chirila in fact testified that Colletti told him that the option was a sham intended to forestall forfeiture of Mustang Ranch.  The district court correctly held that Colletti sought Chirila's advice in order to commit a fraud.  The district court thus did not err and correctly applied the crime-fraud exception.
        Third, a conviction is supported by sufficient evidence if the evidence, viewed in the light most favorable to the government, would allow any rational trier of fact to find the essential elements of the charged offense beyond a reasonable doubt.  Where the charge is wire fraud, there must be sufficient evidence to show that the defendant willfully participated in a scheme with knowledge of a fraudulent nature and with intent that these illicit objectives be achieved.  The requisite knowledge may be established through circumstantial evidence.  The wire fraud convictions are, the USCA found, supported by sufficient evidence.  Perry, Olcese and Tarbet all presented testimony that linked Colletti to money missing from the Mustang Ranch and wire transfers to Conforte.  Perry's testimony was the most important.  He testified about meetings between him, Conforte, and Colletti at which they discussed ways Storey County Commissioners could help prevent the IRS from taking over and running Mustang Ranch.  At the time, Colletti was a Storey County Commissioner and was receiving $2,500 a month from Conforte.  Perry also testified about Colletti's involvement in the wire transfers from AGE to Mygrange, an "off-the-shelf" company Perry set up to hide Conforte's involvement with Mustang Ranch.  Perry identified receipts from transfers remitted by Colletti.  Finally, Perry testified that about $750,000 of Mustang Ranch money was unaccounted for.  Perry learned from Conforte that Conforte was receiving quarterly payments from either Colletti husband at the time, or Bland, a Storey County Commissioner.  This was money that was missing from Mustang Ranch's records.  Perry's testimony was corroborated by Olcese, a bookkeeper at Mustang Ranch, who provided further testimony about the wire transfers and other deliveries of money to Conforte and by Tarbet, a cashier at Mustang Ranch, who witnessed Colletti taking money from a Mustang Ranch safe.
       Fourth, the district court found that Colletti had substantial involvement in Conforte's plan to defraud the IRS and was, along with Perry, a principal contact for Conforte in the United States.  The district court thus denied Colletti's request for a two-level reduction pursuant to USSG Sec. 3B1.2 and, instead, gave a two-level specific offense increase pursuant to Sec. 2F1.1(b)(2) and a two-level role adjustment increase pursuant to Sec. 3B1.1.  In light of Colletti's knowledge, no abuse of discretion occurred in choosing not to apply the downward adjustment.  The increases to Colletti's total offense level were also warranted.  Considering that the acts of wire fraud for which Colletti was convicted occurred over a period of 14 months and when requested by Conforte, rather that at "purely opportune" times, the district court did not abuse its discretion in applying the Sec. 2F1.1(b)(2) two-level increase for more than mini-mal planning.  The two-level enhancement pursuant to Sec. 3B1.1 was warranted because Colletti directed the actions of Olcese, who was a "participant" in the scheme, and had some degree of managerial control over Mustang Ranch revenues.
      Fifth, following the appellants convictions, the district court denied motions for a new trial or for judgments of acquittal that were premised on alleged incidents of juror bias and misconduct.  The USCA noted that an evidentiary hearing is not required every time a defendant alleges juror misconduct or bias.  The district court is to determine whether a hearing is warranted based on "the con-tent of the allegations, the seriousness or the alleged misconduct or bias, and the credibility of the source.  The USCA concluded that the district court did what it was required to do:  after receiving briefing form counsel regarding the alleged misconduct, the court elected to conduct an evidentiary hearing.  The appellants asserted that that the district court failed to adequately question two jurors, Cynthia P. and Laura B, during the evidentiary hearing regarding alleged misstatements during voir dire.  The appellants focused on answers Cynthia gave regarding her education, past bankruptcy experiences, and her spouse's employment, and answers Laura gave regarding her education, disabilities, and bias.  However, the USCA concluded that no error occurred in this case as none of the disputed answers, save those related to Laura's disability or bias, could have provided a valid basis for a challenge for cause.  With respect to Laura's disability, the district court did not commit clear error in finding that Laura did not lie.  The questions at voir dire (and on the jury card filled out prior to voir dire) focused on disabilities that would impair a juror's ability to sit on a jury.  Laura's answers were truthful.  Despite the fact that she suffers from a seizure disorder and takes medication, her condition, as she testified at the evidentiary hearing, was under control.  The USCA noted that where a colorable claim of juror bias is presented, the court is required to investigate the relevant facts and circumstances.  When a evidentiary hearing is held, due process requires only that the investigation be "reasonably calculated to resolve the doubts raised about the juror's impartiality."  During voir dire, the district court queried jurors regarding their knowledge of Conforte and potential bias.  Laura informed the court that she had seen an article about the case and Mustang Ranch in the prior day's paper, but did not read past the headline.  Laura also confirmed that she knew of Mustang Ranch and had heard of Conforte.  The appellants did not ask Laura follow-up questions about her knowledge.  Consequently, the only answer that potentially could have been untruthful was Laura's answer regarding bias.  At the evidentiary hearing, the district court questioned her regarding her response to the bias question.  She reiterated that she did not have any bias prior to the trial and believed she could be fair and impartial.  This comports with her response during voir dire that she could "put the government to its burden" before convicting the defendants.  The court's questioning was reasonably calculated to investigate the alleged bias and, in light of the answer received, there is no clear error in the district court's finding that Laura truthfully answered the bias question.  Finally, the USCA found no merit to the appellants' argument that Laura introduced extraneous information into the jury's deliberations.  No juror other than Laura recalled anyone mentioning extraneous information about Conforte or a person named "Brymer."  The USCA thus concluded that no clear error existed with respect to the district court's finding on this issue.
       Sixth, the trial judge briefly visited with juror Laura upon learning that she had been stuck in a courthouse elevator and had become upset.  The judge briefly referred to the matter in open court.  Although the appellants were present and had the opportunity to observe the jurors for any ill-effects, they made no further inquiry.  At the evidentiary hearing, the district court more fully explained the ex parte conversation.  At that time AGE informed the court that it "had no problem with that."  The district court was under no general duties to inform the parties.  Nevertheless, the disclosures that were made demonstrated that no harm occurred as a result of the ex parte communications.