2)  BUSINESS TORTS:  Marin Tug & Barge, Inc. v. Westport Petroleum, Inc., 99-17154 (9th Cir. Nov. 14, 2001).  Defendant Shell Oil Products' unilateral refusal to continue to deal with the plaintiff was not "wrongful" in a sense required to make out the California tort of intentional interference with prospective economic advantage, even if Shell's refusal to deal was in retaliation for the plaintiff having brought a lawsuit.  Graber, Fisher, and Berzon (author), Circuit Judges.  J. Mudgett of Gig Harbor, WA, for the real-parties-in-interest and the plaintiffs-appellants;  M. Johnson of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  TAXATION:  Strange v. CIR, 00-70749 (9th Cir. Nov. 8, 2001).  In calculating adjusted gross income, non-resident state income taxes on net oil and gas royalties are not expenses "directly incurred … in the production of royalties" and thus not deductible under IRC Sec. 62(a)(4) as expenses attributable to property held for the production of rents or royalties.  Sneed (author), Trott, and Tallman, Circuit Judges.  L. LeGoy of Reno, NV, for the petitioners-appellants;  D. Carmack of Washington, DC, for the re-spondent-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  TAXATION:  Suzy's Zoo v. CIR, 00-70461 (9th Cir. Nov. 21, 2001).  A company exercised such a degree of control over the manufac-turing of its products by third-party contractors that it was a "producer" under IRC Sec. 263A, and did not qualify for the "small reseller" exception of IRC Sec. 263A(b)(2)(B) and could not deduct its production costs;  the "year of change" under IRC Sec. 481(a) is the first taxable year in which the company changed its method of accounting to conform to IRC Sec. 263A.  Sneed (author), Trott, and Tallman, Circuit Judges.  R. Shaw of San Diego, CA, for the petitioner;  P. Junghans of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

5)  TAXATION / BANKRUPTCY:  In re DeRoche, 99-16058 (9th Cir. Nov. 29, 2001). Here, because an employer failed to carry workers' compensation, and an injured employee had to be compensated directly from a Special Fund maintained by the Industrial Commission of Arizona;  under Arizona law, such an employer must reimburse the Fund for compensation paid to an injured employee, plus penalties and interests; the Circuit has held that reimbursement to the Fund is an "excise tax" under 11 USC Sec. 507(a)(8)(E)(ii);  the USCA held here that the date of the "transaction" on which such excise tax is based in order to determine the three year period of non-dischargeability under Sec. 507(a)(8)(E)(ii), is the date on which the worker is injured.  Hug, Noonan, and W. Fletcher (author), Circuit Judges.  A. NewDelman of Phoenix, AZ for the appellants;  T. Essig of Phoenix, AZ for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

6)  BANKRUPTCY:  Hamilton v. State Farm Fire & Casualty Co., 00-55530 (9th Cir. Nov. 5, 2001).  Judicial estoppel must be invoked to protect the integrity of the bankruptcy process when a debtor knows he has a potential cause of action but fails to list it as a contingent asset;  the debtor's duty to disclose potential claims as assets does not end when he files schedules but continues for the duration of the bankruptcy proceeding.  Brunetti (author), Rymer, and Wardlaw, Circuit Judges.  B. Adelstein of Los Angeles, CA, for the appellant;  J. Brooks of San Diego, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

 7)  ADMIRALTY:  DeWeert v. Stevedoring Services of America, 00-71273 (9th Cir. Nov. 29, 2001).  The relevant date for determining the time of injury under the Longshore and Harbor Workers' Compensation Act for a benefits claimant who suffers a traumatic injury is the date when the claimant is or should have been aware of the disability;  the ALJ properly found that the claimant's post-injury wage-earning capacity exceeded his pre-injury average weekly wage and thus awarded him the nominal sum of $1 per week.  Thompson, Tashima, and Graber (author), Circuit Judges.  C. Robinowitz of Portland, OR, for the petitioner;  J. Dudrey of Portland, OR, for the re-spondents.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

8)  AMERICANS WITH DISABILITIES ACT:  Douglas v. California Dept. of Youth Authority, 99-17140 (9th Cir. Nov. 14, 2001).  A plaintiff who proceeded successfully through a prospective employer's hiring steps until he reached the employer's discriminatory vision test (which determined that he was color blind) could establish that his claims under the Americans with Disabilities Act and Sec. 504 of the Rehabilitation Act were timely under the "continuing violations" doctrine by showing that the employer continued to dis-criminate against him by not considering or responding to his pending application as a result of the discriminatory hiring policy during the period of limitations;  as for the plaintiff's Sec. 504 claim, the USCA held that California waived its sovereign immunity defense by accepting federal Rehabilitation Act funds;  as for the plaintiff's ADA claim, the USCA remanded for the district court to determine whether the Youth Authority waived its sovereign immunity defense.  Pregerson, Ferguson, and Hawkins, Circuit Judges.  D. Anton of Davis, CA, for the plaintiff-appellant;  T. Laird of Oakland, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

9)  AMERICANS WITH DISABILITIES ACT:  Morton v. United Parcel Service, Inc., 99-17447 (9th Cir. Nov. 30, 2001).  The district court erred in holding that the collective bargaining agreement's seniority provisions barred the plaintiff's requested accommodation that she be hired as a non-Department of Transportation certified "package car driver" after it was determined that her hearing impair-ment precluded her from obtaining a driving job requiring a DOT certification;  the district court also erred in granting the defendant summary judgment in the face of conflicting evidence as to logistical and safety-related reasons the defendant offered for not hiring the plaintiff.  Reinhardt, Tashima, and Berzon (author), Circuit Judges.  M. Charmatz of Silver Spring, MD, for the plaintiff-appellant;  P. Radez of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  AMERICANS WITH DISABILITIES ACT:  Wells v. Clackamas Gastroenterology Corp., 00-35545 (9th Cir. Nov. 26, 2001).  Share-holders of a physicians' professional corporation who are actively engaged in conducting the business of the corporation are "employees" of that corporation under the ADA, and not partners in it, for purposes of determining whether an employer is a covered entity;  dissenting, Judge Graber thought the district court should have adopted the "economic realities" test of EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177 (7th Cir. 1984), since the physician-shareholders here were not employees within the meaning of the ADA.  Thompson, Tashima (author), and Graber (dissenting), Circuit Judges.  C. Crispin of Portland, OR, for the plaintiff-appellant;  S. Seymour of Portland, OR, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  AMERICANS WITH DISABILITIES ACT:  Hutton v. Elf Atochem North America, 00-35683 (9th Cir. Nov. 28, 2001).  A diabetic employee's continued employment as a chlorine finishing operator constituted a "direct threat" to the health and safety of himself and other individuals in the workplace under the ADA where there was no dispute that a significant physical or mental lapse by that em-ployee as a result of a diabetic episode could result in substantial harm to himself and others, even if the likelihood of such an accident were small.  Thompson, Tashima (author), and Graber, Circuit Judges.  M. Flynn of Portland, OR, for the plaintiff-appellant;  R. Hunt of Portland, OR, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  AMERICANS WITH DISABILITIES ACT:  Armstrong v. Davis, 00-15132 (9th Cir. Nov. 28, 2001).  Disabled prisoners and parolees establish "actual injury" sufficient to assert claims on behalf of a class by showing that they have been subjected to discriminatory treatment relating to their disabilities in violation of both the ADA and the Rehabilitation Act during their parole and parole revocation hearings;  concurring, Judge Berzon wrote separately to express her beliefs that (1)  the standing issue is more straightforward than the majority's opinion may suggest and, (2), that comparing the instant case with Lewis v. Casey, 518 US 343 (1996), demonstrates that the injunction in this case suffers none of the standing or other defects that led the Lewis court to preclude equitable relief.  Reinhardt (author), Tashima, and Berzon (concurring), Circuit Judges.  J. Humes of San Francisco, CA, for the defendants;  D. Specter of San Quentin, CA, for the plaintiffs.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  FLOOD CONTROL ACT / IMMUNITY:  Sanko Steamship Co. v. USA, 99-17538 (9th Cir. Nov. 29, 2001).  The new test established by Central Green Co. v. USA, 531 425 (2001), is a more restrictive test than the "wholly unrelated" test used by the district court below in determining sovereign immunity under the Flood Control Act.  Fernandez, Rymer, and Wardlaw (author), Circuit Judges.  E. Danoff of San Francisco, CA, for the plaintiff-appellant;  S. Flynn of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  DEFAULTS / EXCUSABLE NEGLECT:  Speiser, Krause & Madole P.C. v. Ortiz, 00-55195 (9th Cir. Nov. 21, 2001).  Applying Kyle v. Campbell Soup Company, 28 F.3d 928, 931-32 (9th Cir. 1994), the USCA noted that a movant must present a persuasive justification for his misconstruction of a non-ambiguous court rule to provide a basis for deviating from the general rule that a mistake of law does not constitute excusable neglect; dissenting, Judge Ferguson thought that by applying the former per se rule, the district court ignored the holdings of Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993) and its progeny, which call for an equitable analysis and broader interpretation of "neglect" under FRCP 60(b)(1);  similarly, by glossing over these developments, Judge Ferguson thought the majority had implicitly reintroduced the former per se rule.  Ferguson (dissenting), Fernandez (author), and McKeown, Circuit Judges.  S. Flores of San Jose, CA, for the defendants-appellants;  J. Veth of Irvine, CA, for the plain-tiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  CONFLICT OF LAWS:  Shannon-Vail Five v. Bunch, 00-15444 (9th Cir. Nov. 2, 2001).  The district court properly held that Nevada law, rather than California law, should be applied to a claim that usurious interest rates were charged on loans made by the defendants, as well as to a conversion claim arising out of the application of a payment on one loan to an outstanding balance on another loan;  applying Nevada law, the district court properly held that the interests rates were permissible and that there had been no conversion.  Politz, W. Fletcher (author), and Fisher, Circuit Judges.  T. Gabriel of San Diego, CA, for the plaintiffs-appellants;  M. Singer of Las Ve-gas, NV, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  FIRST AMENDMENT:  Orin v. Barclay, 00-35177 (9th Cir. Nov. 9, 2001).  A college official, having created a public forum for free expression, could not, consistent with the dictates of the First Amendment, limit that expression to secular content;  concurring, Judge Boochever thought that because the qualified immunity issues was sufficient to dispose of the case against the defendant police offi-cers, the majority's conclusions that the officers did not violate the plaintiff's First Amendment rights because the officers had probable cause to arrest him for trespass and failure to disperse were unnecessary and unwarranted.  Boochever (concurring), Tashima, and Tallman (author), Circuit Judges.  A. Allred of Seattle, WA, for the plaintiff;  C. Hendricks of Seattle, WA, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  LAWYERS' TRUST ACCOUNTS / TAKINGS:  Washington Legal Foundation v. Legal Foundation of Washington, 98-35154 (9th Cir. Nov. 14, 2001).  Washington's appropriation of interest generated by funds of clients of "Limited Practice Officers" and deposited in Interest on Lawyers' Trust Accounts (IOLTA) is not a taking under the Fifth Amendment;  dissenting, Judge Kozinski, joined by Judges Trott, Kleinfeld, and Silverman, thought that interest generated by IOLTA trust accounts is property of the clients whose money is deposited into the accounts and that a state's appropriation of that interest for public purposes is a taking entitling them to just compensation.  Schroeder, Pregerson, Kozinski (dissenting), Trott, Kleinfeld, Tashima, Silverman, Wardlaw (author), Fisher, Berzon, and Rawlinson, Circuit Judges.  I. Kurzban of Miami, FL, for the plaintiff-appellant;  J. Cunningham of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  NATIVE AMERICAN LAW:  Akootchook v. USA, 00-35325 (9th Cir. Nov. 8, 2001).  The Department of Interior may require appli-cants for land allotments under the Alaska Native Allotment Act to prove personal use and occupancy independent of immediate family members prior to withdrawal of the land from the public domain.  Schroeder, T.G. Nelson (author), and Silverman, Circuit Judges.  H. Curran of Anchorage, AK, for the plaintiffs-appellants;  J. Bryson of Washington, DC, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  IMMIGRATION:  R.L. Investment Ltd. v. INS, 00-15627 (9th Cir. Nov. 20, 2001).  The USCA agreed with and adopted without comment the opinion of the R.L. Inv. Ltd. v. INS, 86 F. Supp. 2d 1014 (D. Haw. 2000).  Fernandez, Rymer (author), and Wardlaw, Circuit Judges.  I. Kurzban of Miami, FL, for the plaintiff-appellant;  J. Cunningham of Washington, DC, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  IMMIGRATION:  Alvarenga-Villalobos v. Ashcroft, 00-17525 (9th Cir. Nov. 26, 2001).  INA Sec. 241(a)(5) reinstates a prior order of removal without reopening or judicial review when an alien has reentered the U.S. illegally after having been removed;  here, the petitioner moved to reopen his immigration proceedings to pursue an application for waiver of deportation under INA Sec. 212(c) in light of Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999);  when his motion was denied, he sought a writ of habeas corpus;  the USCA held that Sec. 241(a)(5) bars reexamining the original deportation order and that there is no constitutional infirmity in applying it here as the petitioner could have appealed the IJ's pre-Magana-Pizano decision but did not;  in any event, as the district court concluded, the prior order was not unlawful as the petitioner's deportation proceeding was not on direct review when Magana-Pizano was decided and, as Magana-Pizano announced a new rule, it did not apply retroactively on collateral review. Fernandez, Rymer (author), and Wardlaw, Circuit Judges.  F. Sprouls of San Francisco, CA, for the petitioner;  Special AUSA R. Yeargin of San Francisco, CA, for the respondents.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  IMMIGRATION:  USA v. Castellanos-Garcia, 00-50719 (9th Cir. Nov. 2, 2001).  In the absence of evidence to the contrary, the fact that a government official, with no prior knowledge of an alien's presence, comes upon the alien some time after the alien has crossed the border, is sufficient to allow a jury to infer that the alien was found in the United States, and to deliver a verdict of guilty beyond a reasonable doubt.  Fernandez (author), Kleinfeld, and McKeown, Circuit Judges.  W. Braniff of San Diego, CA, for the defendant;  AUSA D. Rhodes of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  IMMIGRATION:  Popova v. INS, 00-70429 (9th Cir. Nov. 28, 2001).  An alien's undisputed and credible testimony compelled the conclusion that she was persecuted on account of her religion and her political opinion;  she convincingly showed a genuine and well-founded fear of future political persecution should she return to Bulgaria;  she was thus eligible for a discretionary grant of asylum.  Pregerson (author) and Rawlinson, Circuit Judges, and Weiner, District Judge.  T. Ark of San Francisco, CA, for the petitioners;  S. Flynn of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  IMMIGRATION:  Baeta v. Sonchik, 00-16073 (9th Cir. Nov. 29, 2001).  The transfer of a portion of a habeas petition from a district court to the court of appeals raising nationality allegations in seeking review of a final removal order was proper when the court of appeals would have had jurisdiction on the date that the case was filed in district court, the district court lacked jurisdiction over the case; and the transfer was in the interests of justice.  Roney, Hug, and Thomas (author), Circuit Judges.  J. Bennett of El Cerrito, CA, for the petitioner;  B. Slocum of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  INEFFECTIVE ASSISTANCE:  Mayfield v. Woodford, 97-99031 (9th Cir. Nov. 7, 2001).  A defense attorney who failed to conduct sufficient investigations or preparation during the penalty phase of a capital case provided ineffective assistance, which, when combined with the reasonable probability that the jury would not have sentenced the defendant to death had counsel performed effectively, violated the Sixth and Fourteenth Amendments;  the defendant was thus entitled to a new penalty phase hearing, or else to life imprisonment rather than death;  concurring, Judge Gould, joined in part by Judges Schroeder, Hawkins, and Berzon, thought that given the defendant's youth and prior record, there was a good chance that counsel's substandard performance prejudiced him at sentencing, and because that probability was sufficient to undermine confidence in the outcome, the defendant met his burden to show prejudice at the penalty phase;  Judge Gould thought that there existed a reasonable probability that the result would have been different if counsel had called at least some family members or friends to testify in the penalty phase;  dissenting, Judge Graber, joined by Judges Schroeder, Hawkins, and Rawlinson, thought counsel had abandoned his duty of loyalty to his client and thereby created a conflict of interest from which prejudice in the guilt phase of the trial must be presumed;  dissenting in part, Judge Hawkins, joined by Judge Schroeder, thought that the defendant's deeply conflicted counsel was the functional equivalent of no counsel.  Schroeder, O'Scannlain, Rymer, Kleinfeld, Hawkins (dissenting in part), Silverman, Graber (dissenting), Gould (concurring), Berzon, Tallman (author), and Rawlinson, Circuit Judges.  M. Crain of Santa Monica, CA, for the petitioner;  G. Beaumont of San Diego, CA, for the re-spondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  INEFFECTIVE ASSISTANCE:  Landrigan v. Steward, 00-99011 (9th Cir. Nov. 28, 2001).  Counsel's failure at sentencing to present mitigating evidence of genetic predisposition did not constitute ineffective assistance where such evidence may not have helped and where defendant actively and aggressively prevented counsel from presenting other mitigating evidence.  Fernandez (author), Rymer, and Wardlaw, Circuit Judges.  AFPD D. Baich of Phoenix, AZ, for the petitioner;  J. Beene of Phoenix, AZ for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  SENTENCING:  Andrade v. Attorney General of the State of California, 99-55691 (9th Cir. Nov. 2, 2001).  In a ruling limited to the unusual circumstances of this case, the USCA held that the Eighth Amendment prohibition against cruel and unusual punishment proscribed petitioner's sentence of 50 years to life under California's "Three Strikes Law" for two counts of petty theft arising from his shoplifting a total of nine videotapes worth a total of $153.54 from two different stores;  petitioner had several earlier convictions for non-violent offenses;  dissenting in part, Judge Sneed thought that the sentence was not an unreasonable application of clearly established federal law and that a rational basis existed for California to conclude that the interests of society were best served by the petitioner's incarceration for a minimum of 50 years.  Schroeder, Sneed (dissenting in part), and Paez (author), Circuit Judges.  E. Chemerinsky of Los Angeles, CA, for the petitioner;  R. Foster of San Diego, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  SENTENCING:  Pacheco-Camacho v. Hood, 01-35040 (9th Cir. Nov. 30, 2001).  A Bureau of Prisons regulation adopting the amount of time actually served by a prisoner as the basis for prorating statutory good time credits is entitled to deference.  Alarcon, Kozinski (author), and Hawkins, Circuit Judges.  FPD S. Sady of Portland, OR, for the petitioner;  AUSA T. Simmons of Portland, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  RESTITUTION:  USA v. Pizzichiello, 00-30160 (9th Cir. Nov. 29, 2001).  As it was reasonable that more than one family member might need to be involved in the investigation and prosecution of the crime in order to assert the rights of the deceased victim, the district court did not abuse its discretion in ordering restitution for lost income and travel expenses payable the victim's family members under the Victim Witness Protection Act.  Wallace, Hall (author), and T.G. Nelson, Circuit Judges.  G. Jackson of Helena, MT, for the defendant;  AUSA B. Hubley of Helena, MT, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  HABEAS CORPUS:  Bennett v. Mueller, 00-56199 (9th Cir. Nov. 29, 2001).  The district court properly held that the California Supreme Court's denial of the petitioner's habeas petition "on the merits and for lack of diligence" constituted an independent and adequate state ground so as to render his petition procedurally defaulted;  the state court's reliance on California's "untimeliness" rule as developed through state precedents constitutes an independent and adequate state ground to deny the petition, as the petitioner had waited 12 years before bringing the petition.  Brunetti, Rymer, and Wardlaw (author), Circuit Judges.  T. Perry of Whittier, CA, for the petitioner;  B. Lockyer of Los Angeles, CA, for the respondents.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  PRISONERS' RIGHTS:  Nelson v. Heiss, 00-55523 (9th Cir. Nov. 21, 2001).  When prison officials allowed an inmate to make "withdrawals" from his empty prison trust account, advance requested goods, and then placed a hold on the account until the inmate's incoming veteran's benefits pay back the advances, they, in effect, allowed him to assign his future benefits and then seized those benefits to repay the prison system;  that practice violates 38 USC Sec. 5301(a) but the officials were entitled to qualified immunity from damages.  Browning, Fernandez, (author), and Fisher, Circuit Judges.  T. Nelson pro se;  D. de Kervor of San Diego, CA, for the defen-dants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

 1)  COPYRIGHT INFRINGEMENT: Winn v. Opryland Music Group, 00-55390 (9th Cir. Nov. 1, 2001) (unpublished).  Hug, Graber, and W. Fletcher, Circuit Judges.
        At issue in this case were competing claims of ownership of a song entitled "The Heart You Break May Be Your Own," recorded by Patsy Cline in 1956 and first released in 1963.  The appellants' action alleged, inter alia, copyright infringement.  The District Court for the Central District of California, Judge Carter presiding, granted the appellees summary judgment on the grounds that the appellants presented no evidence calling into question the appellees' claim that their associates had written the song earlier than the appellants claimed they had written it, and that the doctrine of laches barred the appellants' claim.  The appellants appealed, and the appellees cross-appealed for an award of costs, including attorneys' fees.
         The USCA held that the district court erred in granting summary judgment as there were genuine issues of material fact on the question of copyright infringement.  There thus also remained a genuine issue of material fact regarding laches, at least as to the question of the applicability of the "willful infringement" exception.  The USCA thus reversed and remanded.  The USCA also found the appellees' claim for attorneys' fees to be moot.  To establish copyright infringement, a party must prove two elements ownership of a valid copyright, and copying of constituent elements of the work that are original.  The "copying" element involves two prongs—access and substantial similarity.  The district court correctly found that the "ownership" element was not at issue.  There was no dispute that the appellants have a 1957 copyright was renewed in a timely fashion.  However, the district court erred in its analysis of the issues of access and substantial similarity.  The appellants presented evidence purporting to show that they had written the song in 1956, and their copyright of the song—the certificate for which includes the music and lyrics recorded by Patsy Cline—is dated 1957.  The ap-pellees presented evidence of a purported 1955 contract with those who they allege wrote the song.  That contract is for a song entitled "The Heart You Break May Be Your Own."  But the song was not copyrighted until 1983, and the copyright certificate includes neither music nor lyrics.  There were thus genuine issues as to the material facts of who wrote the song, who had access to it after it was written, and who copied the song from whom.  The court did not need to consider the access question due to the "striking similarity" between the song claimed by the appellants and that claimed by the appellees.  Indeed, there was no dispute that they claimed rights in the same song.  The Circuit has stated that "absent evidence of access, a 'striking similarity' between the works may give rise to a permissible inference of copying."  Baxter v. MCA, Inc., 812 F. 2d 421, 423 (9th Cir. 1987).  The court thus erred in finding that there were no genuine issues of material fact as to whether the appellants could establish infringement.
        Laches is available as a defense in a copyright action only when there is a showing of delay that is unreasonable and causes prejudice.  Danjaq v. Sony Corp., 263 F. 3d 942, 952-56 (9th Cir. 2001).  However, the defense of laches is not available in a case of willful infringement, when the infringing conduct occurs "with knowledge that the defendant's conduct constitutes copyright infringement."  Id. at 957  Because there remained a genuine issue of material fact as to infringement, there likewise remained a genuine issue of material fact as to the applicability of laches—at least insofar as the willful infringement exception is concerned.  The district court did nor err, however, in holding that the appellants' statute of limitations argument failed.  The appellants' claims were properly characterized as copyright infringement claims.  The appellants were thus not time-barred from bringing an action regarding those alleged acts that took place within the three years immediately before the commencement of the action.  Finally, the appellees maintained that the district court should have awarded them costs, including attorneys' fees, because they were the prevailing party in an action under the Copyright Act.  The USCA found that argument moot in light of its holding.
 

2)  TRADE SECRETS / FALSE ADVERTISING / PRECLUSION : Broadcom Corp. v. Sarnoff Corp., 99-56690 (9th Cir. Nov. 8, 2001) (unpublished).  Browning, Fernandez, and Fisher, Circuit Judges.
         Broadcom appealed an order of the District Court for the Central District of California, Judge Matz presiding which granted Sarnoff's motion for summary judgment on the ground that Broadcom's claims were precluded under New Jersey's "entire controversy" doctrine.  The USCA affirmed in part and reversed in part.  New Jersey's "entire controversy" doctrine states that "non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine [except as otherwise provided circumstances not relevant to the instant case]."  The New Jersey Supreme Court has made clear that the doctrine will be strictly applied, and that it mandates joinder not only of claims but of defenses, and "not only of defenses but of affirmative claims that could be brought as counterclaims."  Cogdell by Cogdell v. Hospital Center at Orange, 560 A. 2d 1169, 1173 (N.J. 1989).  The district court found that Broadcom's California claims were precluded because they arose from the same transaction as the New Jersey case.  According to the district court, Broadcom failed to raise them as an affirmative de-ense in the New Jersey Action, where it could have argued that it could not possibly have misappropriated Sarnoff's technology in 1997 because Sarnoff had originally misappropriated it from Broadcom in 1994-95 (by violating the 1994 Joint Nondisclosure Agreement).  The court reasoned that, because Broadcom possessed this potential affirmative defense, it was obligated under the entire controversy doctrine to litigate its present claims in that forum.  In fact, Broadcom brought two sets of claims in California: one relating to false advertising (the "Lanham Act" claims) and one for breach  of contract and misappropriation of trade secrets.  The USCA agreed with the district court's determination that Broadcom's claims that Sarnoff misappropriated trade secrets in violation of the nondisclosure agreement were so entangled with the misappropriation claims previously litigated in New Jersey that they were barred by the entire controversy doctrine.  However, the USCA did not believe that Broadcom's claims under the Lanham Act were similarly precluded.  Those claims presented no issues that would be a constituent component of the New Jersey claims and nothing that requires determination before the New Jersey case could proceed.  Adjudicating false advertising claims would not amount to a "rerun" of the New Jersey case, especially since the primary witnesses involved (clients to whom the false advertising was made) would have had no role in the New Jersey action.  The USCA thus reversed the district court's summary dismissal of those claims.

3)  ANTITRUST: Western Wholesale Supply v. Holladay, 00-35316 (9th Cir. Nov. 15, 2001) (unpublished).  Kozinski and Gould, Circuit Judges, and Schwarzer, District Judge.
        A private antitrust plaintiff must show an antitrust injury.  To do so, it must show that the defendant's conduct was of the type the antitrust laws were intended to prevent because it harms consumer welfare.  Conduct harms consumer welfare only when it harms allocative efficiency and raises the price of goods above competitive levels or diminishes their quality.  Am. Ad Mgmt. v. Gen. Tel. Co., 190 F.3d 1051 (9th Cir. 1999);  Rebel Oil v. Atlantic Richfield, 51 F.3d 1421 (9th Cir. 1995).  The USCA found that Western Wholesale Supply ("WWS") failed to show it suffered antitrust injury.  There was no evidence that the defendants' actions raised the prices of goods above competitive levels, or diminished their quality.  WWS pointed to hearsay that a salesman for Idaho Door Supply said his company was "in the process of raising its prices to its wholesale customers," but the only evidence offered to suggest that such a price increase occurred was its principal's unfounded speculation during a deposition.  After a de novo review of the record, the USCA agreed with the District Court for Idaho, Judge Winmill presiding, that there was no evidence that the defendants' conduct had any effect on prices for garage doors, retail or wholesale, in any market, or diminished the quality of the goods.  The USCA thus af-firmed the district court's grant of summary judgment because WWS had not shown antitrust injury.

4)  BANKRUPTCY: In re Omega Environmental, 00-35211 (9th Cir. Nov. 5, 2001) (unpublished).  Farris, Kleinfeld, and Gould, Circuit Judges.
        The District Court for the Western District of Washington, Judge Rothstein presiding, concluded that Omega Environmental had no right to reimbursement payments from the state of Florida, and that the payments were improperly included in Omega's bankruptcy estate.  The USCA affirmed.  Under Florida law, reimbursement payments "shall be issued to the person responsible for con-ducting site rehabilitation listed on the Certification Affidavit."  Fla. Admin. Code 62-773-700(8)(b)(2001).  The person responsible for conducting site rehabilitation is the person designated by the site owner or operator on the reimbursement application.  Here the Certification Affidavits designated either appellee Blohorn or appellee Palm Environmental as the person responsible.  Omega thus had no right to the reimbursement payments and only Blohorn and Palm had rights to receive reimbursement payments from Florida.  The district court thus properly reversed the bankruptcy court on this issue.  Reimbursement payments should not be part of Omega's bankruptcy estate.  The USCA also granted Palm's unopposed motion to supplement issues on appeal.  Omega and Palm had briefed the post-petition payments issue and both agreed that the prevailing party on the reimbursement payments issue would prevail on the post-petition payments issue.  The district court's order thus implicitly reversed the bankruptcy court's order regarding post-petition payments to Palm.

5)  BANKRUPTCY: In re Sedona Institute, 00-15769 (9th Cir. Nov. 1, 2001) (unpublished).  Sneed, Trott, and Tallman, Circuit Judges.
        Appellant Law Offices of Neil Vincent Wake ("Wake") argued that both the bankruptcy court and the district court erred in denying its application under 11 USC Sec. 503(b) to recover as administrative expenses of the bankruptcy estate the fees it incurred in preparing a motion to appoint a trustee or an examiner with expanded powers.  The USCA affirmed.  The bankruptcy court denied Wake's application on two independent grounds:  Wake's work on the examiner and trustee motions did not make a substantial contribution to the bankruptcy proceedings; and its fees had not been "incurred by" the Handel Group, who had no obligation to pay Wake absent allowance of its fees as an administrative expense under Sec. 503(b).  The District Court for Arizona, Judge Rosenblatt presiding, affirmed both grounds for the bankruptcy court's decision.  Because it affirmed the bankruptcy court's decision that Wake did not make a substantial contribution to the bankruptcy proceedings, the USCA did not address the merits of the alternative ground for the decision.  The inquiry concerning the existence of a substantial contribution is one of fact, and it is the bankruptcy court that is in the best position to perform the necessary fact finding task."  See Lebron v. Mechem Fin. Inc., 27 F. 3d 937, 946 (3d Cir. 1994).  The USCA reviewed the bankruptcy court's finding of fact for clear error.  A creditor's showing that it made a "substantial contribution" to the bankruptcy proceedings is the sine qua non of recovery under Sec. 503(b).  2 Norton Bankruptcy Law & Practice 2d Sec. 42: 28 (1997) ("The preeminent question to be asked before awarding professional compensation under Sec. 503(b)(4) is whether the services resulted in an actual, direct and demonstrable benefit to the estate.")  A creditor's application under Sec. 503(b) should be allowed only if the creditor demonstrates by a preponderance of the evidence that the expenses were incurred in an endeavor that "provided tangible benefits to the bankruptcy estate and the other unsecured creditors."  In re Catalina Spa & R.V. Resort, Ltd.,. 97 B.R. 13, 17 (Bankr. S.D. Cal. 1989).  Wake's conduct failed to meet this exacting standard.  Wake prepared and filed the examiner and trustee motions.  Wake's co-counsel, explained to his clients:  "we have asked the bankruptcy court to continue to invest the power to control the assets of SI and SSRG in a party independent from any person previously or currently associated with SI or SSRG."  Such active administration of the estate is a power of a trustee, or an examiner with extended powers, but not of an examiner.  Shortly before the bankruptcy court heard the motion, the co-counsel withdrew the motion to appoint an examiner with expanded powers.  Although Wake insists that it did not advise the co-counsel to withdraw the motion, the record shows that shortly before he withdrew the motion, Wake counseled him that "the situation might be changed sufficiently to the better if a trustee is appointed (but not if an examiner with extended powers is appointed) that it might make a difference as to whether this case is economically viable from a contingent fee point of view.  Wake's claim that its services made a substantial contribution to the estate because the bankruptcy court appointed an examiner is a non sequitur.  Wake's motion, by its plain terms, sought appointment of a trustee (or an examiner with powers equivalent to those of a trustee).  Although the court "considered" Wake's motion, it did not grant the relief he requested.  The bankruptcy court did not clearly err by determining that Wake's Trustee Motion did not make a substantial contribution to the bankruptcy proceedings.  The USCA thus affirmed the denial of Wake's fee application.

6)  BANKRUPTCY: In re Guzman, 00-55635 (9th Cir. Nov. 8, 2001) (unpublished).  Browning, Fernandez, and Fisher, Circuit Judges.  
       Boek appealed the Bankruptcy Appellate Panel's affirmance of the dismissal of her 11 USC Secs. 532(a)(2) and (a)(4) nondischargeability complaint in bankruptcy proceedings against Guzman.  She argued that the bankruptcy court improperly dismissed her complaint sua sponte as untimely.  The deadline established in the Federal Rule of Bankruptcy Procedure 4007(c) are not jurisdictional require-ments.  The timeliness of a dischargeability complaint is an affirmative defense that must be raised in an answer or responsive pleading.  If the defense is not raised in the answer or responsive pleading, it generally is waived.  Although Guzman never affirmatively exercised or waived the defense, she failed to file an answer or responsive pleading at all and thus waived the timeliness defense.  A court may sua sponte dismiss a complaint as untimely, but only when the defendant has not waived the defense.  If the bankruptcy court wishes to give Guzman some relief by allowing her to file an answer, even thought she would otherwise be in default, it must nonetheless deem the timeliness defense waived.  It may not sua sponte invoke that defense on her behalf.  Boek also argued that her complaint was "constructively filed" in a timely manner.  Because Boek first raised this issue on appeal, the record's inadequate factual foundation did not permit the USCA to address its merits.

7)  BANKRUPTCY: Movitz v. Todd, 00-16179 (9th Cir. Nov. 27, 2001) (unpublished).  Fernandez, Rymer, and Wardlaw, Circuit Judges.  
         This fraudulent conveyance action arose in connection with the bankruptcy of Arizona real estate developer Symington.  Bankruptcy trustee Movitz sued Todd, one of Symington's long-time business associates, under 11 USC Sec. 544(b), to recover the value of economic benefits Symington allegedly channeled to Todd before bankruptcy.  The district court granted Todd's motion for summary judgment, ruling that the trustee failed to make a prima facie showing that Symington ever owned any of the assets in ques-tion within the meaning of the relevant state fraudulent transfer laws.  The USCA affirmed.
         Arizona's enactment of the Uniform Fraudulent Transfer Act permits an aggrieved creditor to set aside any transaction whereby the debtor has fraudulently disposed of an interest in anything he may own.  ARS Secs. 44-1001(8), (9); 44-1001(1).  The USCA found no reason to decide how broadly the transfer provisions may reach in order to conclude that they did not extend to the kind of economic leverage that the trustee relies upon here.  While control over an asset is a necessary condition of ownership, it is not a sufficient one.  The trustee argued that there was a triable issue of fact whether Symington had control over the $60,000 Shimizu settlement payment and an Esplanade listing due to his showing that the Esplanade was in severe financial distress;  any sale required the approval of the Esplanade partnerships controlled by Symington;  Symington and Shimizu agreed in late April of 1993 that Symington would depart from the Esplanade and Seville projects in exchange for Shimizu assuming Symington's liability on a $9 million personal guaranty in favor of a third-party; and shortly after September 14, 1993, Symington learned about Shimizu's internal deadline for completing the Esplanade sale.  Assuming all this as true, it did not show that Symington owned or had any right to control and dispose of the $60,000 that Shimizu paid directly to Todd.  Although there was some evidence that Symington and Shimizu discussed Symington's being paid $860,000—from which the trustee invites the USCA to infer that Symington allocated $60,000 of it to Todd—there was no evidence that Symington and Shimizu agreed on the figure of $860,000 such that Symington ever had a contractual right or interest in that sum or in the $560,000 remaining after the Seville Subtier's share had been apportioned.  Absent such evidence, it was immaterial whether the parties differed about how the transfer to Todd should be characterized.  Nor did it matter that Symington made an addi-tional settlement demand after Shimizu had disclosed its internal deadline, or that he may have convinced Shimizu to attribute the settlement proceeds to the Seville project rather than the Esplanade.  The trustee also maintained that Symington controlled the listing.  Symington told Shimizu how important he thought it was for Todd to be involved in the Esplanade's sale, and no doubt Symington encouraged Shimizu to make Todd the broker.  He also bargained for language in the agreement with Shimizu requiring his consent before CORE could be terminated.  However, these acts were distinct from a right to decide who should broker the transaction and direct the business.  It was undisputed that this right reposed in Shimizu.   Finally, the trustee maintained that the control test applied to the transfer of The Symington Company ("TSC") contracts, furniture, equipment, and good will.  He also argued that the district court improperly skirted the test by holding that Symington could not have indirectly transferred the value of his stock by transferring the assets of TSC because TSC was insolvent before the transfer took place.  Even if this weren't error, the trustee maintained that the court should not have used a liquidation analysis to measure the value of Symington's stock.  The USCA disagreed.  There was no dispute that the assets Todd acquired from TSC were owned by TSC.  "By the very nature of a corporation the corporate property is vested in the corporation itself and not in the stockholders."  Corp. Comm'n v. Consolidated Stage, 161 P.2d 110, 111 (Ariz. 1945).  Symington thus did not own the company's property.  The trustee claimed that there was a triable issue whether Symington nevertheless controlled transfer of the corporate assets as TSC had lucrative management and leasing contracts to the Seville and Esplanade projects which ended up in Todd's hands upon TSC's withdrawal;  because the fair market value of the furniture and equipment was more than Todd paid for it;  and because TSC's goodwill as a going concern consisted mostly of the management and leasing contracts that were transferred to CORE.  However, whether or not Symington caused TSC to transfer these assets, he did not transfer his own property.  There was no alter ego issue.  Further, assuming that Symington indirectly transferred his interest in his TSC shares when TSC transferred its assets, it was uncontroverted that TSC was insolvent from 1989 through 1992.  Thus the only effect of the transfer of TSC's assets was to make Symington's stock more worthless than it already was.  The trustee's only argument to the contrary is that this "liq-uidation analysis" overlooks the "control value" associated with TSC stock—the value that someone would pay for the stock in order to get control of TSC as a going concern.  However, there was neither evidence nor authority to support that view.

8)  TAXATION: Hamzik v. CIR, 01-70606 (9th Cir. Nov. 15, 2001) (unpublished).  Browning, Kleinfeld, and McKeown, Circuit Judges.  
      Hamzik appealed pro se the Tax Court's decision upholding the CIR's determination that Hamzik is liable for income tax on a gain received in 1996 from the sale of a residence, for an addition to tax under 26 USC Sec. 6651(a)(1) for failing to file a timely 1996 tax return, and for an addition to tax under 26 USC Sec. 6654(a) for failing to pre-pay sufficient 1996 estimated tax.  On appeal, Hamzik does not address specifically whether he is entitled to non-recognition of the gain from the sale of his residence or whether he is liable for the civil penalties imposed on him.  He maintains only that he did not have a tax liability and subsequent deficiency because all federal in-ome taxes are "indirect taxes" and the CIR has not produced the statutes defining the "revenue taxable activity" that would make Hamzik subject to or liable for any tax under Title 26.  The Tax Court properly rejected Hamzik's arguments as frivolous.  And, in response to the CIR's motion for sanctions under 28 USC Sec. 1912 and FRAP 38, the USCA imposed sanctions in the amount of $250 because Hamzik's contentions were frivolous and wholly without merit.

9)  TAXATION: Miner v. CIR, 00-70625 (9th Cir. Nov. 7, 2001) (unpublished).  Sneed, Trott, and Tallman, Circuit Judges.
          At issue here is the proper income tax treatment of proceeds from the sale of stock by Leonard Jasiak to John Miner.  Miner and Jasiak were the sole shareholders of Cost Less Auto Parts, a Subchapter S corporation.  Both participated in the management of the corporation and each owned 50% of its stock.  Jasiak retired in 1986 and sold his stock to Cost Less for $175,000, $50,000 paid at closing and the balance by a promissory note.  The agreement did not contain a covenant not to compete; it stated that it was to be governed by Arizona law; and it contained a merger clause.  Despite the agreement's failure to contain Jasiak's written covenant not to compete, Miner amortized the entire $175,000 purchase price over a seven-year period on the grounds that it constituted the amount paid to obtain Jasiak's oral promise not to compete.  This case involves the alleged deficiencies arising from the taxable years 1988, 1989, and 1991, in the amounts of $13,717, $8,428, and $14,586, respectively, each arising from Miner's efforts to amortize a portion of the $175,000.  At no time was there a written agreement between Jasiak and Miner apportioning any part of the purchase price to a covenant not to compete by Jasiak.  Following cross-motions for summary judgment, the Tax Court held that there was "no credible evidence that the parties intended to allocate any of the $175,000 to Jasiak's promise not to compete."  Thus, it held that "Cost Less may not amortize any amount for Jasiak's oral promise not to compete because the parties did not allocate or intend to allocate any amount to it."  The Tax Court's factual findings supported this conclusion.  They included 1) the absence of any specific apportionment of the purchase price to the oral covenant not to compete, 2) the absence of any covenant not to compete in the written agreement, 3) the unconvincing nature of attempts by the taxpayer to establish a book value of Jasiak's stock at $10,000 and the balance of the purchase price to good will and the oral covenant, and, 4), Miner's own testimony that there was no allocation of a portion of the purchase price to goodwill.  The USCA found that the record supported these findings.  Moreover, the Tax Court's finding that Jasiak's testimony was more credible than Miner's was entitled to strong deference and was not clearly erroneous.  The stock purchase agreement thus does not provide a proper basis for the allocation of any portion of the purchase price to a covenant not to compete.  Under Annabelle Candy Co. v. CIR, 314 F.2d 1 (9th Cir. 1962), where a stock purchase agreement is silent as to allocation of a specific percentage of the purchase price to a covenant not to compete, a buyer can amortize a portion of the purchase price if the parties intended to allocate a portion of the pur-chase price to the covenant not to compete.  The Tax Court's denial of a deduction by Miner of any portion of the purchase price of Jasiak's stock was thus proper.

10)  TAXATION: Nordtvedt v. CIR, 01-70661 (9th Cir. Nov. 15, 2001) (unpublished).  Browning, Kleinfeld, and McKeown, Circuit Judges.   
       Nordtvedt appealed pro se a decision of the tax court sustaining the CIR's determination of federal income tax due for 1996.  The USCA affirmed.  The tax court did not err in concluding that Nordtvedt could not adjust the basis in his retirement annuity to take into account the inflation between the date of his contributions to the retirement plan and the annuity starting date, as there is no pro-vision in the IRC which permits an exemption based on inflation adjustment. Cf. New Colonial Ice Company v. Helvering, 292 US 435 (1934) (deductions are a matter of legislative grace and will only be allowed when there is a clear provision authorizing them).  Moreover, "Congress has the power and authority to establish the dollar as a unit of legal value with respect to the determination of taxable income, independent of any value the dollar might also have as a commodity."  Hellermann v. CIR, 77 T.C. 1361, 1364 (1981).

11)  TAXATION / ROOKER FELDMAN DOCTRINE:  Donlon v. City of Oxnard, 00-56226 (9th Cir. Nov. 2, 2001) (unpublished).  B. Fletcher, D.W. Nelson, and McKeown, Circuit Judges.
        Donlon, various trustees, and other parties (the "Donlons") appealed an order of the District Court for the Central District of California, Judge Tevrizian presiding, which dismissed their complaint.  They had filed their federal complaint after having lost a state court cases in which they were defendants.  The state court determined that their interest in a 181-acre plot located in Oxnard was subordinate to Oxnard's interest in the property, a tax lien.  Both the California and the U.S. Supreme Courts denied certiorari.  Thereafter, the Donlons brought suit in federal district court.  Their first cause of action was for a judicial declaration that the state court's ruling in the validation action was a final, binding judgment enforceable against Oxnard and that the Equal Protection Clause and/or Due Process Clause requires that the special tax lien be subordinated to the Donlons' interest in the property.  The second cause of action was for a taking in violation of the Constitution.  Pursuant to the Rooker-Feldman doctrine, the district court dismissed the case for lack of subject matter jurisdiction.  
         The USCA affirmed.  Under Rooker v. Fidelity Trust Company, 263 US 413 (1923), district courts are courts of original jurisdiction and not permitted to review final state court decisions.  In District of Columbia Court of Appeals v. Feldman, 460 US 462 (1983), the Supreme Court elaborated on Rooker, observing that district courts have jurisdiction over "general attacks on the constitutionality" of laws provided that entertaining any such challenge does not require reviewing "a final state court judgment in a particular case."  Reviewing a final state court judgment is unavoidable where the constitutional claims are "inextricably intertwined" with the state court rulings.  Id. 486-87.  Under Dubinka v. Judges of the Superior Court, 23 F.3d 218 (9th Cir. 1994), claims are inextricably intertwined when the district court must scrutinize both the challenged rule and the state court's application of that rule.  The USCA found that the instant case fell squarely within the Rooker-Feldman doctrine.  The district court could not have granted relief with respect to the requested subordination without reviewing the state court of appeals' determination that the tax lien has priority.  A similar result held for the Donlons' just compensation claim.  The state court of appeals concluded that there was no taking because Oxnard's interest in the property superseded that of the Donlons.  Both claims were "inextricably intertwined" with the state court's rulings.  The Rooker-Feldman doctrine thus bars federal jurisdiction over the Donlons' case.

12)  CONTRACTS: Leroy's Horse & Sports Place v. Racusin, 99-16909 (9th Cir. Nov. 1, 2001) (unpublished).  Politz, Fletcher, and Fisher, Circuit Judges.
        In this diversity action, the USCA reviewed the district court's application of Nevada contract law in deciding whether to award damages or specific performance.  Racusin maintained that it was error for the District Court for Nevada, Judge McKibben presiding, to award specific performance when he requested only money damages.  The USCA agreed.  Racusin neither pled nor proved the facts or elements necessary for the court to award specific performance.  Without such proof, the court could not grant specific performance.  The proper measure of damages is the plaintiff's "expectation interest" as measured by the loss in the value to him of the other party's performance.  Restatement (Second) of Contracts Sec. 347.  The jury indicated that the amount of compensation should be "stock in Leroy's … in an amount equal to 4.5% of $45,000,000 and $150,000 in cash."  It thus awarded Racusin $2.025 million worth of stock.  The district court was correct in concluding that this judgment would have delivered 337,500 shares of stock to Racusin—that is, $2.025 million at $6 a share (the amount used in the final evaluation on which the contract was based).  But because Racusin's prayer was for damages, not stock, the court erred in stopping there.  The USCA remanded to the district court for a determination of Racusin's interest in monetary terms.  The district court needs to calculate the monetary value that Racusin would have been able to recoup from his 337,500 shares.  This finding is dependent on when Racusin could have begun selling his shares, as well as how many shares he likely would have been able to sell at what times, given his large block of stock in a small-capitalization company.  Racusin also challenges the district court's holding that his former attorney was entitled to 33% of the recovery received by Racusin above that recovered at trial under the terms of a 1997 attorneys' fee agreement.  The USCA reviewed the attorneys' fee award for an abuse of discretion, and reviewed the presence or absence of undue influence in establishing a fee agreement for clear error.  Applying Illinois law, it concluded that the district court erred in awarding the contingency fee.  Racusin terminated his former attorney before the district court entered judgment.  "When a client terminates her attorney, the contingent-fee contract ceases to exist, and the contingency term is no longer operative."  Much. Shelist, Freed, Denenberg, and Ament, P.C. v. Lison, 696 N.E. 2d 1196, 1199 (Ill. App. Ct. 1998).  In such circumstances the proper fee for the attorney is the quantum meruit value of the services.  The USCA thus remanded to the district court for a determination of the value of the former attorney's services.  It noted that the only legal services that attorney has not supplied is the appeal to the USCA.  It found no merit in the other objections to the attorney's fees and thus affirmed the district court's judgment as to lack of consideration, undue influence and fraud.  
       Leroy's also appealed.  The USCA first considered its claims that the jury erred in finding that American Wagering, Inc. ("AWI") was its alter ego.  The USCA reviews a jury verdict to determine whether there is substantial evidence to support the verdict—"that is, such relevant evidence as reasonable minds might accept as adequate to support a conclusion."  Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000).  The USCA concluded that here reasonable minds could conclude that AWI was Leroy's alter ego.  There was thus no error in the jury's verdict in that respect.  Leroy's also maintained that the trial court erred by refusing to admit testimony regarding the previous payments it made to Racusin after the 1997 judgment.  The USCA reviews evidentiary rulings for an abuse of discretion.  It found no abuse of discretion in the exclusion of this evidence as it was not relevant to any issue before the jury.  The USCA thus affirmed the trial court's exclusion of the testimony.  Finally, Leroy's asserted that the district court erred by failing to allow a set off for the interest that accrued on $586,088.97 that it paid to Racusin on September 5, 1997, after the district court entered its first judgment in this case.  The USCA reviews a district court's decision pertaining to the award of pre-judgment or post-judgment interest for an abuse of discretion.  It found that it had to conclude that the court abused its discretion by failing to credit Leroy's for the accrued interest.  The USCA remanded to the district court so that when it enters the new damages award on remand, it can appropriately credit Leroy's for interest on the previously paid sum.

13)  GAMING REGULATIONS: Fleeger v. Bell, 00-15942 (9th Cir. Nov. 26, 2001) (unpublished).  Beezer, Trott, and Tallman, Circuit Judges.
         The District Court for Nevada, Judge Pro presiding, entered judgment on the pleadings for Desert Palace, Caesars Palace, Las Vegas Hilton Hotel & Casino, MGM Grand Hotel & Casino, Aztar Corporation, Sahara Hotel Casino, Tropicana Hotel & Casino, Harrah's Las Vegas, Mirage Hotel & Casino, Steward Bell and Scott Doyle (the "appellees")  Appellants Fleeger, Hindoyan, Cruz, Lane, Bahadori, Solomon, and Tigar argued that the court incorrectly applied state law in ruling that a marker is a check under Nev. Rev. Stat. 205.130(1).  The USCA affirmed.  The appellants claimed violations of the Fair Debt Collection Practices Act, the Fourteenth Amendment, false arrest and imprisonment and violations of Nevada State Gaming Commission Regulation 5.140.  All the claims, except the last, were inextricably intertwined with the conclusion that a marker is not a check.  Subsequent to the district court's decision, the Nevada Supreme Court determined that a market is a check under NRS 205.130(1).  Nguyen v. State, 14 P.3d 515, 518 (Nev. 2000).  Not only did the Nevada Supreme Court address the controlling issue of state law, it also noted its agreement with the district court's decision.  Upon the Nevada Supreme Court's decision that a marker is a check, it became clear that the appellees were entitled to judgment as a matter of law.  The claim not inextricably intertwined with the issue of whether a marker is a check was the claimed violation of Nev. Gaming Reg. 5.140.  In an attempt to maintain and regulate uniformly Nevada's gaming success, the Nevada Supreme court has been unwilling to recognize a private cause of action under the gaming laws "absent express language to the contrary."  Sports Form, Inc. v. LeRoy's Horse & Sports Place, 823 P.2d 901, 903-04 (Nev. 1992).  Regulation 5.140 does not indicate, expressly or impliedly, any private cause of action.  In fact, Nev. Gaming Reg. 5.030 states that a violation of the regulations is grounds for suspension or revocation of a license, indicating that violations are enforced through administrative channels, not private causes of action.  The appellants' gaming regulation claim thus was correctly dismissed because the gaming regulations provide no private cause of action.

14)  INSURANCE: Hawes v. General Star Management Company, 99-56432 (9th Cir. Nov. 6, 2001) (unpublished).  Boochever, Fernandez, and Fisher, Circuit Judges.
        The District Court for the Southern District of California, Judge Miller presiding, entered summary judgment in favor of General Star Indemnity Company and General Star Management Company ("Star") in Hawes' action for breach of contract and breach of the implied covenant of good faith and fair dealing.  Hawes argued that, under its business errors and omissions liability insurance policy, Star had a duty to provide coverage for a defense for Hawes in several actions that resulted from Hawes' allegedly negligent placement of insurance on behalf of Hawes' clients.  Star alleged that it was justified in denying coverage because Hawes failed to adhere to the notice requirement of the insurance policy and that the underlying claims were in any event excluded from coverage under the insolvency exclusion of the policy.  The district court granted summary judgment on the grounds that Hawes' notice to Star was inadequate.  It did not reach the issue of the insolvency exclusion, but the USCA noted that it can affirm on any ground supported by the record.  The insured has the initial burden of establishing that a claim falls within the scope of the policy.  Only if this burden is met does the burden shift to the insurer to prove that a specific exclusion in the policy precludes coverage of the claim.  Although the coverage provisions of the insurance policy are liberally construed in favor of the insured, the exclusion from coverage are narrowly construed against the insured.  The duty to defend thus "runs to claims that are merely potentially covered, in light of facts alleged or otherwise disclosed."  The duty to defend is excused only in the event that "the third party complaint can by no conceivable theory raise a single issue which could bring it within the policy coverage."  Montrose Chemical Corp. v. Superior St., 861 P. 2d 1153, 1160 (Cal. 1993).  Hawes' policy with Star contained a provision which explicitly excluded from coverage claims arising out of the insolvency of any insured.  The underlying actions against Hawes resulted when Hawes' clients were harmed because First Assurance & Casualty Company ("FACC"), the insurer with which Hawes placed the clients, turned out to be fraudulent, became insolvent and did not pay claims against it.  On April 22, 1993, the California Department of Insurance ("DOI") issued a cease-an-desist order to FACC.  The DOI ordered FACC to refrain from taking any new or renewal business because it had a negative surplus of more than $5 million and was insolvent under DOI standards.  Although Hawes argued that FACC stopped paying claims months earlier, the first instance in which the record indicates that FACC stopped paying claims to the specific underlying claimants is in a June 4, 1993 letter from Hawes to underlying claimant D&H Trucking.  In the letter, Hawes informed the claimant that FACC "is not presently paying claims or properly defending its policyholders" and urged the claimant to join a legal action in order to obtain settlement of its claims.  FACC subsequently filed for Chapter 11 bankruptcy on October 22, 1993.  In March 1994, the Turks & Caicos Islands, FACC's place of incorporation and licensing, initiated liquidation proceedings against FACC.  FACC's court-appointed bankruptcy trustee and liquidator declared that FACC was insolvent at that time.  The record contains no evidence that FACC stopped paying claims to the specific underlying claimants prior to April 1993, when the DOI found that FACC's liabilities far exceeded its assets and declared FACC insolvent.  The reason behind FACC's lack of funds was largely irrelevant to the USCA analysis so long as FACC was insolvent prior to its refusal to pay claims to the specific underlying claimants.  That condition was met here.  The underlying actions against Hawes arose out of FACC's insolvency.  Coverage was thus excluded under the insolvency exclusion and Star was under no duty to defend Hawes.  Hawes' notice to Star did not comply exactly with the strict terms of the policy, and certainly did not provide sufficient information to determine why Hawes believed the underlying actions would trigger covered claims against him.  Nonetheless, because his notice letter was sent in response to an invitation from Star's agent, there may be questions whether Star's failure to inquire into the attempted notice was proper.  Because the insolvency exclusion of the policy precludes coverage, the USCA did not reach the issue of the adequacy of the notice.

15)  TRUTH IN LENDING ACT: Mitchell v. Bankfirst, N.A., 00-16057 (9th Cir. Nov. 21, 2001) (unpublished).  Fernandez, Rymer, and Wardlaw, Circuit Judges.
          Mitchell appealed the Rule 12(b)(6) dismissal of one of her claims, the grant of a protective order, summary judgment against her, and the failure to grant a continuance, entered by the District Court for the Northern District of California, Judge Chesney presiding.  She maintained that Bankfirst, the issuer of Affinity Visa credit card, violated the Truth in Lending Act ("TILA") by failing to dis-close in its initial disclosure statement that an Affinity Visa cardholder must give 90-days notice—and thus is required to pay three month's dues—before terminating a membership in the American Fair Credit Association ("AFCA").  The USCA agreed that the AFCA's notice of termination provision is not a charge for termination of an open-end credit plan requiring disclosure under TILA.  An AFCA member may terminate the Affinity Visa card at any time without ending her AFCA membership.  Although 90-days notice is not required to terminate the credit card, it is required to terminate the AFCA membership.  Thus, the notice provision may very well consti-tute an "other charge," such as a membership or participation fee, which must be disclosed under TILA.  A membership fee "for a package of services that includes an open-end credit feature" must be disclosed if "the primary benefit of membership in an organization is the opportunity to apply for a credit card, and the other benefits … are merely incidental …" 12 CFR Pt. 226, Supp. I Sec. 226.6(b)(v).  The grant of a protective order, while perhaps warranted in view of the wide-ranging discovery requested by Mitchell, was overbroad in that it precluded discovery of AFCA and its relationship with Bankfirst.  This discovery was highly probative on the issue of whether AFCA benefits are merely incidental to the credit feature, may have served to justify the broader requests, and was essential to Mitchell's ability to adduce any evidence that might have defeated summary judgment.  Thus, the combined effect of the district court's affirmance of the protective order and its failure to rule on the Rule 56(f) motion was the denial of discovery of any relevant evidence to prove an essential element of Mitchell's claim.  The court thus erred in not ruling on the Rule 56(f) motion before proceeding to summary judgment.  The USCA found itself without a record sufficient enough to permit it to rule whether the district court correctly concluded that the notice provision is not an "other charge" within the meaning of TILA.  It thus vacated the judgment on that issue, and remanded for limited discovery bearing on the issue of whether AFCA benefits are merely incidental to obtaining the credit card and further proceedings consistent therewith.

16)  FOREIGN SOVEREIGN IMMUNITIES ACT: Arizona Apple Orchards v. Guyana Pharmaceutical Corp., 00-15303 (9th Cir. Nov. 16, 2001) (unpublished).  Fernandez, Rymer, and Wardlaw, Circuit Judges.
         The District Court for Arizona, Judge Silver presiding, denied the Bank of Guyana's motion to dismiss Arizona Apple Orchards' suit based on the Foreign Sovereign Immunities Act.  The USCA reversed.  Arizona Apple had complained that the Bank, which is the central bank of Guyana, interfered with its assignor's contract with Guyana Pharmaceutical Corporation by refusing to release foreign currency required by Guyana Pharmaceutical to make payment through its commercial bank to Arizona Apple.  The Bank argued that it only administered Guyana's External Payment Deposit Scheme (EPDS) and that the exchange rate guarantees were not commercial guarantees or contractual obligations to Arizona Apple's assignor.  Arizona Apple countered that the Bank offered exchange rate guarantees in connection with a commercial activity.  Arizona Apple's position turned on its view that banks regularly exchange one currency for another at a specified rate, and the Bank of Guyana effectively guaranteed the debts of Guyanese importers.  But this is not what the Bank did.  Instead, the Bank offered Guyanese importers exchange rate guarantees that Guyana dollars deposited into their local commercial bank and in turn with the Bank through EPDS would be converted into foreign currency at a pre-determined rate if and only when sufficient foreign currency should become available.  There was no evidence suggesting that banks ordinarily control the collection and distribution of foreign currency for all importers in a country;  that seemed clearly to be a central bank function.  Neither the guarantees to Guyanese importers nor the Bank's alleged failure to honor them formed the basis of Arizona's Apple's claims, which were based solely on the Bank's failure to release foreign currency to Guyana Pharmaceutical's commercial bank pursuant to Guyanese foreign exchange regulations.  That is a sovereign activity that only a sovereign can do.  The Bank thus was not acting as a private player in the commercial market but rather was managing foreign exchange.  Neither acknowledging receipt of Arizona Apple's assignment nor advising it of the possibility of a debt buy-back through counsel demonstrated otherwise.  The Bank thus had immunity from suit.

17)  IMMIGRATION: Alhori v. Ashcroft, 00-70404 (9th Cir. Nov. 2, 2001) (unpublished).  B. Fletcher, D.W. Nelson, and McKeown, Circuit Judges.
         Alhori, a native and citizen of Sudan, petitioned for review of the BIA's decision affirming an IJ's denial of his request for asy-um and withholding of deportation.  The USCA reversed and granted the petition.  The BIA had dismissed Alhori's petition solely on the grounds that he lacked credibility.  The USCA had to determine whether substantial evidence supported the BIA's credibility find-ing, and that the BIA had to have a "legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief.  Shah v. INS, 220 F.3d 1062 (9th Cir. 2000).  Neither the record nor the BIA's opinion substantiated its ruling.  In finding that Alhori's testimony tacked credibility, the BIA relied on what it characterized as "a troubling amount of discrepancy in the level of detail" regarding Alhori's various statements.  The mere failure to spontaneously offer details of events already established in the record could not support an adverse credibility determination when further detail was consistent with previous testimony.  The record demonstrated that Alhori testified to his arrest, his torture, and the circumstances of his dismissal from the military numerous times preceding any opportunity he had to describe these events in detail.  It also demonstrated  that the IJ instructed Alhori to limit his responses to the questions asked, and circumscribed this ability to elaborate on the details.  Although the IJ has the authority to conduct proceedings in an efficient manner, to curtail Alhori's testimony and then conclude that his limited responses undermined his credibility showed a "fatally flawed" reasoning that could not satisfy the substantial evidence standard.  The BIA also based its adverse credibility ruling on "implausibilities" in Alhori's testimony.  But those findings were not supported by substantial evidence.  Nothing in the record indicated that either Alhori's training in the military or his position as a security official in the capital offered him any more knowledge of Sudanese politics or military strategy in the South than he professed to have.  Mere conjecture on the part of the IJ that Alhori should have known more did not support the BIA's finding.  Similarly, the BIA's other findings of apparent implausibilities lack the sort of "reasonable, substantial, and probative evidence on the record" necessary to support an adverse credibility determination.
         As it was compelled to find Alhori's testimony credible, the USCA also consider whether that evidence established his eligibility for asylum or withholding of removal.  Alhori's unrebutted testimony established that he was arrested and tortured by government intelligence forces on several occasions because the government feared he was associated with opposition parties and would use his knowledge to aid them.  This testimony establishes that Alhori was persecuted "on account of" an imputed political opinion.  Because the record demonstrates that country conditions have not changed, the USCA found itself compelled to conclude that Alhori had established a "well-founded fear" of future persecution making his eligible for asylum.  Similarly, Alhori's testimony established a "clear probability of persecution" should he return to Sudan, thus entitling him to withholding of removal.  "Although the 'clear probability' standard for withholding of deportation is more stringent than the 'well-founded fear' standard for asylum, if a petitioner had suffered past persecution such that his life or freedom is threatened in his home country on account of a protected ground, he is presumed to be entitled to withholding of deportation."  Duarte de Guinac v. INS, 179 F. 3d 1156, 1164 (9th Cir. 1999).  Nothing in the record here rebuts this presumption.  The USCA thus granted Alhori's petition for withholding  and remanded to the Attorney General to exercise his discretion in granting asylum to Alhori.

18)  IMMIGRATION: Oudeh v. INS, 00-70843 (9th Cir. Nov. 14, 2001) (unpublished).  Browning, Kleinfeld, and McKeown, Circuit Judges.
      Oudeh, a citizen and native of Jordan, petitioned for review of the BIA's dismissal of his appeal of the IJ's denial of his application for asylum and withholding of deportation.  The USCA had jurisdiction under 8 USC Sec. 1105a(a).  It reviews for substantial evidence a BIA's ruling that a petitioner has not established eligibility for asylum.  Here the USCA denied the petition for review.  A reasonable factfinder could conclude that Oudeh failed to show a well founded fear of future persecution as a result of his work as a jour-nalist because he failed to meet his burden of "showing by credible, direct and specific evidence" an objective fear of future persecution.  Because Oudeh failed to establish eligibility for asylum, he necessarily failed to establish eligibility for withholding of deportation.

19)  IMMIGRATION: Hatami-Miri v. Ashcroft, 00-15784 (9th Cir. Amended memorandum filed Nov. 21, 2001; petition for rehearing en banc denied.) (unpublished).  Schroeder, D.W. Nelson, and Rawlinson, Circuit Judges.
 Hatami-Miri, a native and citizen of Iran, appealed the dismissal of his petition for a writ of habeas corpus by the District Court for Arizona, Judge Silver presiding, petitioned for review of the BIA's denial of his motion to reopen deportation proceedings, and ap-pealed the Legalization Appeals Unit's ("LAU") dismissal of his application for temporary resident status.  The USCA affirmed the BIA and LAU decisions and dismissed the petition for habeas corpus for lack of jurisdiction. 
 The district court correctly held that it did not have subject matter jurisdiction to review Hatami-Miri's claim that the BIA im-properly considered his expunged criminal conviction when it declared him ineligible for asylum or adjustment of status.  The BIA en-tered a final order of deportation denying Hatami-Miri's claims for asylum and adjustment of status on May 24, 1989.  At that time, Sec. 106(a) of the Immigration and Naturalization Act, codified at 8 USC Sec. 1105a(a), granted the courts of appeals jurisdiction to review all final orders of deportation entered pursuant to administrative proceedings under Sec. 1252.  Hatami-Miri failed to appeal the BIA's deci-sion to the Ninth Circuit.  Instead, he waited more than nine years before filing a habeas petition pursuant to 28 USC Sec. 2241.  Al-though 28 USC Sec. 2241 does not explicitly require exhaustion, as a prudential matter, the Ninth Circuit requires petitioners to exhaust available judicial and administrative remedies before seeking relief under Sec. 2241.  Hatami-Miri argued that because the exhaustion requirement is not a jurisdictional prerequisite, the failure to exhaust administrative and judicial remedies is a procedural default which may be excused if he can establish "cause" for the procedural default and "prejudice" arising from the default.  However, even on that standard Hatami-Miri failed to satisfy the "cause" prong of the test.  As the Supreme Court has noted, "the question of cause for a pro-cedural default does not turn on whether counsel erred or on the kind of error counsel may have made," and will not be found so long as a defendant is "represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington."  Murray v. Carrier, 477 US 478, 488 (1986).  Here, there was no question that the BIA satisfied the statutory notice requirements by mailing notice of its decision to the address of record for Hatami-Miri's attorney.  Hatami-Miri did not receive notice of the BIA's decision within the time allowed for appeal because his attorney failed to notify the BIA of a change of address.  Because an attorney's negligence is imputed to his client, Hatami-Miri is unable to establish "cause" for his procedural default.  Na-karanurack v. USA, 68 F.3d 290 (9th Cir. 1995), does not dictate otherwise.  Rather than create an exception to the rule that one is bound by the negligence of counsel, Nakaranurack merely declined to impute negligence on the part of the petitioner's attorney without evi-dence that the BIA provided timely notice of its decision.  Id. at 294.  Nor did the lack of notice to the petitioner violate due process.  The BIA complied with the applicable regulations, and those regulations were "reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."  Mullane v. Central Hanover Bank & Trust Co., 339 US 306, 314 (1950).
 Because it had jurisdiction to review the LAU's decision in conjunction with the BIA's denial of Hatami-Mari's motion to re-open deportation proceedings, the USCA found it did not need to decide whether the district court had jurisdiction to review the LAU's decision in a habeas petition.
 An alien seeking deferral of removal under the Convention Against Torture must establish that it is more likely than not that he will be tortured if removed to the proposed country of removal.  8 CFR Sec. 208.16(c)(2).  Relevant evidence includes:  1) evidence of past torture inflicted on the applicant;  2) evidence that the applicant could relocate to a part of the country where he is not likely to be tortured;  3) evidence of gross, flagrant or mass violations of human rights in the country of removal; and 4) other relevant information regarding conditions in the country of removal.  8 CFR Sec. 208.16(c)(3).  Hatami-Miri submitted no evidence that he would be tortured within the meaning of the Convention, let alone that it is more likely than not that he would be tortured if returned to Iran.  He submitted no evidence that he was tortured in the past.  In fact, there was no evidence, with the exception of a single statement on his asylum application that he was "dropped out of high school" because of an anti-government speech he gave in second grade, that he was ever singled out because of his religious or political beliefs.  Although he testified that religious minorities in general are "hassled" by the government, there was nothing to indicate that this "hassling" constituted torture within the meaning of the Convention.  Petitioner's testimony that he read articles about harsh treatment for those convicted of narcotics trafficking was insufficient to establish a prima facie case that it is more likely than not that he would be tortured, especially because "torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions [including the death penalty]."  8 CFR Sec. 208.18(a)(3).
 Hatami-Miri's case is governed by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 because his case was pending prior to April 1, 1997 and the final order of deportation was issued after October 20, 1996.  Under the transitional rules, Hatami-Miri's motion to reopen is governed by the immigration law before IIRIRA.  Pre-IIRIRA immigration law bars Hatami-Miri's motion to reopen deportation proceedings as it was not timely.  The Department of Justice promulgated a regulation in 1996 (prior to IIRIRA) that imposes the same 90-day deadline on motions to reopen that is currently imposed by the IIRIRA.  8 CFR Sec. 3.2(c)(2) (1996).  That regulation specifically provided that a motion to reopen proceedings "must be filed not later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened, or on or before September 30, 1996, whichever is later."  Id.  Hatami-Miri's motion to reopen was filed on April 5, 1999 and was thus untimely.  The district court properly rejected it.  Finally, the USCA had jurisdiction to review the LAU's denial of Hatami-Miri's application for temporary resident status in conjunction with the BIA's denial of his motion to reopen deportation proceedings.  Under 8 USC Sec. 1182(a)(2)(C), any alien who the INS knows or has reason to believe "is or has been an illicit trafficker in any controlled substance" is inadmissible.  Matami-Miri's testified at an IJ hearing that he had been convicted of unlawfully distributing approximately one pound of heroin.  In addition, the record contained newspaper articles detailing his involvement in the sale of large amounts of heroin.  This evidence was more than sufficient to give the INS reason to believe that the petitioner has been an illicit trafficker in a controlled substance.

20)  IMMIGRATION: Abdelwahed v. INS, 99-71662 (9th Cir. Nov. 20, 2001) (unpublished).  Boochever and Silverman, Circuit Judges, and George, District Judge.
        Abdelwahed petitioned for review of a decision of the BIA to deny his request for asylum and withholding of deportation.  The USCA denied the petition.  Substantial evidence existed to support the BIA's conclusion that Abdelwahed was not entitled to asylum or withholding of deportation.  In addition, because it is not self-executing, the 1967 UN Protocol Relating to the Status of Refugees did not change this conclusion.
        Abdelwahed was born in Gaza in 1965.  At that time, the Gaza Strip was under Egyptian control, but Abdelwahed is not an Egyptian citizen.  In the Arab-Israeli War of 1967, Israel occupied the Gaza Strip, but Abdelwahed is not an Israeli citizen either.  Abdelwahed moved with his family to Saudi Arabia (KSA), but they did not obtain KSA citizenship.  He graduated from King Saud University in 1986.  To work in KSA, he needed a work card.  He started to work for Bell Canada after graduation on his father's work card and, after his father died, he obtained his own work card.  Bell was in KSA on a government project.  When the project ended in 1989, Bell left KSA and Abdelwahed lost his job.  Another company, the International Information Trading Company ("IITC"), then hired Abdelwahed, on the condition that he successfully transfers his work card authorization from Bell to IITC in Riyadh.  KSA authorities refused to transfer the authorization, and Abdelwahed lost his job after a couple of months.  The dates of these events were unclear, but they occurred no earlier than 1989 and no later than 1991.  Abdelwahed did not get another job in KSA and but there is no evidence that he tried to get another job.  When Iraq invaded Kuwait in August 1990, the United States assembled a coalition including KSA in opposition.  The Palestine Liberation Organization (PLO) aligned itself with Iraq.  Abdelwahed claims that the atmosphere in KSA then became hostile toward Palestinians.  He was easily identified as a Palestinian.  He wore Western-style clothing, his ID card showed that he was a Palestinian.  Moreover Palestinians could reside only in certain areas of Riyadh.  Police officers stopped Abdelwahed and questioned him several times, they interrogated him for a couple of hours at a jail, and they told him to stay at home.  In 1990, he o-tained a Palestinian refugee travel document from the Egyptian government.  In March 1991, he left KSA and entered the United States.  He subsequently overstayed his six-month visitor's visa.
       An Immigration Judge ordered Abdelwahed deported to Israel, as it currently controlled the Gaza Strip, or to Egypt, as it controlled the Gaza Strip at the time of Abdelwahed's birth.  KSA was also a possible destination, as Abdelwahed resided there last before leaving for the United States.  Abdelwahed maintained that he would be subject to persecution if he were deported to KSA or to Israel;  he thus applied for asylum and for withholding of deportation.  The IJ denied Abdelwahed's requests, and the BIA affirmed. 
        The USCA first noted that Abdelwahed largely relied upon the State Department's Country Reports on Human Rights for Israel and KSA.  But, as Country Reports were neither included nor mentioned in the record, the USCA did not consider them.  Second, nothing the police appeared to amount to persecution.  Abdelwahed's case was similar to Mendez-Efrain v. INS, 813 F.2d 279 (9th Cir. 1987).  Government soldiers detained and interrogated Mendez-Efrain for four days in an attempt to get him to join El Salvador's army.  They did not physically mistreat him.  After requests by friends, the soldiers let him go, and Mendez was able to leave El Salvador unmolested.  The court found that substantial evidence existed to support the IJ's and BIA's findings of no persecution.  With the excep-tion that Abdelwahed spent 2% of the time in jail that Mendez did, his claims of detention, interrogation, and warnings to stay at home were indistinguishable from Mendez-Elfrain, and did not compel a finding of persecution.  Abdelwahed claimed that KSA restricted where Palestinians could live.  However, he did not claim that the restrictions resulted from the increased tensions after Iraq's invasion of Kuwait.  In fact, he also testified that each nationality had its own neighborhood in Riyadh.  This might be discrimination based upon national origin, but it did not compel a finding of persecution.
  Abdelwahed could not work at IITC because KSA authorities refused to transfer his work card authorization.  However, the parties disagreed over the relevant dates.  Abdelwahed claimed that he was terminated from IITC in February 1991.  The INS claimed that he was terminated in 1989 or 1990.  The INS's dates were more likely, as under Abdelwahed's versions he would have been unemployed between the Bell and IITC jobs for most or all of 1990 and perhaps part of 1989.  But he did not testify to such a lengthy unem-ployment between these jobs.  In any event, it did not matter which side was correct.  "A probability of deliberate imposition of sub-stantial economic disadvantage" is grounds for withholding of deportation or granting asylum.  Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969).  Even assuming that Abdelwahed's date is correct, he left KSA around one month after he lost his job.  Not only did he not try to find another job in KSA, he never gave himself the chance.  Nothing in the record indicates that he could not have found another job.  If the KSA officials told him that he would never again obtain authorization to work in KSA, then a job search might have been futile.  However, Abdelwahed did not testify that anything like that happened.  The record evidence did does not compel the finding that he was subject to economic persecution.  Assuming that the INS's dates are correct, Abdelwahed's termination was not a result of persecution.  If Abdelwahed lost his IITC job in 1989 or any time in 1990 before August, it could not have been a result of increasing tensions from the PLO's support of Iraq concerning the Kuwait invasion:  Iraq did not invade Kuwait until August.  Even if Abdelwahed lost his job during or after August 1990, but before February 1991, he did not try to find other employment. 
         Because Abdelwahed failed to show past persecution, the presumption of a well-founded fear of persecution did not operate.  The BIA also found that Abdelwahed provided no evidence that anyone in KSA had any interest in him.  A review of the record supported this finding.  Abdelwahed testified only about his experience in KSA up to the time he departed KSA.  Substantial evidence thus supported the BIA's findings.  Abdelwahed claimed that he would be subject to persecution from both Israelis and Palestinians if he were returned to the Gaza Strip.  The Palestinians would supposedly consider him to be an Israeli spy and kill him.  The Israelis would supposedly persecute him because he has not resided in the Gaza Strip since his infancy.  However, the BIA found Abdelwahed's claims to be mere speculation, and Abdelwahed failed to identify any evidence to compel a different conclusion.  Former 8 USC Sec. 1253(h)(1) (1994) required the Attorney General to withhold deportation to a country if the alien's life or freedom would be threatened on account of race, religion, nationality, membership in a particular political group, or political opinion.  However, the USCA found the exception in former Sec. 1253(h)(2) irrelevant.  To qualify for withholding of deportation, Abdelwahed had to satisfy standards more stringent than for the granting of asylum.  Finally, Abdelwahed claimed that the 1951 UN Convention Relating to the Status of Refu-gees, 189 U.N.T.S. 150 (1954), conferred upon him the status of refugee, and thus the IJ should have granted him asylum.  The IJ refused to accept supporting evidence, ruling that she had no jurisdiction over the claim.  While the United States is not a party to the Convention, it is a party to the 1967 U.N. Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268 (Jan. 31, 1967).  The Protocol incorporates by reference Arts. 2 through 34 of the Convention;  the United States is thus effectively a party to those parts of the Convention.  INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999).  Congress passed the Refugee Act of 1980 to bring United States in line with treaty obligations.  However, the Protocol itself is not self-executing, and it is only a guide in determin-ing Congressional intent.  Thus, the Protocol does not give Abdelwahed any rights beyond what he already enjoyed under the immigration statutes.

21)  IMMIGRATION: Singh v. INS, 00-70385 (9th Cir. Nov. 8, 2001) (unpublished).  Reinhardt (dissenting), Hawkins, and Rawlinson, Circuit Judges.
        The USCA found that there was substantial evidence to support findings of the  Board of Immigration Appeals ("BIA") that Singh was not credible and thus had not borne his burden of proving persecution or fear of future persecution on account of one of the statutory grounds.  There were numerous discrepancies between Singh's application and his testimony before the IJ, including one involving the "heart of the asylum claim" such as details of his torture and purported narrow escape from India.  Singh's trustworthiness was further called into question by the fact he denied having ever been married and denied having previously attempted to immigrate to the United States despite documents evidence to the contrary.  Although given an opportunity to explain many of these discrepancies, Singh offered no explanation, or he became evasive or non-responsive.  Singh could have bolstered his testimony with corroborating evidence, such as records of his medical treatment following his torture, but he failed to do so or explain the absence of such evidence.  On these facts, the USCA could not say that the record compelled the conclusion that the BIA erred in finding Singh's testi-mony was not credible.
         Dissenting, Judge Reinhardt thought that the reasons given by the BIA, upholding the IJ's adverse credibility finding with respect to Singh, did not satisfy the USCA's criteria for making such a finding.  The mere fact that a petitioner has answered some questions in a manner that the BIA thinks is evasive or dishonest does not justify an adverse credibility finding.  Rather, Judge Reinhardt thought, the BIA must set forth "specific cogent reason[s], which are substantial and bear a legitimate nexus to the finding."  Cordon-Garcia v. INS, 204 F.3d 985, 993 (9th Cir. 2000).  The USCA will uphold an adverse credibility finding only where alleged inconsistencies or omission go to the "heart of the claim."  In addition, citing Ernesto Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000), Judge Reinhardt noted that the USCA was limited in its review of the BIA's decision to the reasons the BIA gives for its decisions.  The USCA cannot affirm on a ground upon which the BIA did not rely.  The BIA set forth several reasons for concluding that Singh was not credible, but none of the alleged discrepancies went to the heart of the claim, and most were fully explained in Singh's testimony.  First, the BIA stated that Singh did not explain why, if he was indeed a Sikh, he had a Hindu marriage ceremony.  There was, however, no record evidence that he had a Hindu wedding ceremony.  The BIA assumed from the presence of a Hindu wedding certificate that Singh had a Hindu ceremony.  It failed, however, to consider Singh's explanation that he did not have a Hindu ceremony and that his marriage was registered in the Hindu register of marriages because under the law of his state, there was no Sikh register of marriages.  Neither the BIA nor the INS attempted to refute this explanation.  Second, the BIA stated that there were discrepancies between Singh's testimony and his asylum application with respect to the timing and manner of his departure from India.  The application, although poorly written, was consistent with Singh's testimony.  In that application, he made two separate statements about two separate incidents, which the BIA erroneously read together.  In his testimony, Singh confirmed that there were two separate incidents:  first that the police went to his parents' home to look for him the day after he moved out;  second, that the police tried to apprehend him from the Delhi airport when he did leave the country months later.  It is highly unlikely that Singh would have intentionally said that he left India the day after he was released from jail, because he testified freely at other points during the hearing about staying with other relatives for months after his release.  Third, the BIA found Singh's testimony to be incredible because, although in his asylum application he related an incident in which he was tortured with a rope, he did not testify to this incident at his hearing.  Throughout the hearing the IJ repeatedly cut off Singh's testimony, and stated that he could answer only questions asked.  Under such circumstances, a denial of asylum cannot properly be based on a failure to mention the rope incident at the hearing.  Fourth, the BIA found Singh's testimony to have been incredible because he was "non-responsive" with respect to his prior marriage.  However, it may not have been clear to Singh that he was being asked about a prior marriage, and it may be for that reason that he kept repeating, "I am not married."  The interpreter added to the confusion, as he was unable to translate clearly at many points in the hearing.  In any event, Singh's response did not go to the heart of the claim.  Fifth, the BIA erroneously faulted Singh for a lack of corroboration of his membership in the All India Student Sikh Member Federation ("AISSF").  Nothing in the record would support the conclusion that AISSF membership records existed.  Singh was never asked for such documents, and thus was never permitted to explain why he did not offer any into evi-dence.  The absence of these documents could not properly be held against him.  The remaining alleged falsehood or discrepancy in Singh's testimony is his statement that he had no knowledge of his former wife's alien petition for visa relative filed on his behalf.  That testimony, even if false, did not go to the heart of Singh's claim that he is eligible for asylum.  A prior attempt to immigrate to the United States is not a bar to asylum relief.  Asylum is granted solely on the basis of whether or not an immigrant bears his burden of proving past persecution and a well-founded fear of future persecution. 

22)  FALSE DOCUMENTS / SENTENCING: USA v. Nayabkhil, 00-10640 (9th Cir. Nov. 9, 2001) (unpublished).  Fernandez, Rymer, and Wardlaw, Circuit Judges.
         The District Court for the Eastern District of California, Judge Damrell presiding, convicted and sentenced Salma Nayabkhil on two counts of procuring false documents in connection with naturalization in violation of 18 USC Sec. 1425.  
       The USCA affirmed in part and reversed and remanded in part.  Nayabkhil first argued that the district court violated her Sixth Amendment right of confrontation by limiting cross-examination of a prosecution witness regarding his fear of losing his citizenship.  The USCA disagreed.  Because Nayabkhil failed to offer any evidence that supported her proposed line of inquiry, allowing the topic to be pursued could have planted an unfounded, and highly prejudicial, suspicion in the jury's mind. The district court did not abuse its discretion by requiring that Nayabkhil lay a foundation for her proposed line of inquiry.  Nayabkhil next argued that the district court erred in refusing to instruct the jury on a prosecution witness's prior stolen property conviction.  The USCA found no merit in this argument either.  Nayabkhil did not object to the jury instruction at trial.  Because the district court gave adequate instructions on each element of the case, and the instructions were not misleading and did not misstate the law, the rejection of Nayabkhil's proposed jury instruction does not rise to the level of plain error.  Finally, Nayabkhil maintained that the government did not carry its burden of established, even by a preponderance of the evidence, that the offense involved 100 or more sets of sets of fraudulent documents for the purpose of adding six levels to Nayabkhil's sentence.  The USCA agreed that the record lacked an articulated basis for upholding the district court's finding that Nayabkhil falsified 100 or more tests.  The USCA expressed no opinion on whether the government could meet its burden of proof on remand that 100 or more tests were falsified.  It thus reversed the district court's imposition of a six level increase in the offense level pursuant to Guideline Sec. 2L2.1(b)(2)(C) and vacate the sentence.  The USCA remanded for the limited purpose of redetermining the offense level under Sec. 2L2.1, and for resentencing in accordance with that recalculation.