2)  CREDIT REPAIR ORGANIZATION ACT:  FTC v. Gill, 00-55122 (9th Cir. Sept. 12, 2001).  A credit "repair" service's use of telephones, radio, and the mail to make and advertise the false claim that it could legally remove any negative information from a consumer's credit report violated the Credit Repair Organization Act and the Federal Trade Commission Act.  Noonan, Silverman, and Paez (author), Circuit Judges.  K. Gill and R. Murkey pro per;  J. Steiger of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  TAXATION / ATTORNEYS' FEES:  Sinyard v. CIR, 99-71369 (9th Cir. Sept. 25, 2001).  Attorney's fees paid by an adverse party directly to the taxpayer's attorney on behalf of the taxpayer under the fee-shifting provision of the Age Discrimination in Employment Act ("ADEA") is income to the taxpayer;  dissenting, Judge McKeown thought that the result reached by the majority appeared to be at odds with the express statutory language, which provides that a fee award is "in addition" to the plaintiff's recovery, and also at odds with the intent of the statute, which is to make the plaintiff whole.  Noonan (author), McKeown (dissenting), and Ward-law, Circuit Judges.  T. Boyd of St. Paul, Minn., for the petitioners;  P. Junghans of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  TAX FRAUD:  USA v. Gilbert, 00-10314 (9th Cir. Sept. 24, 2001).  On an issue of first impression in the Ninth Circuit, the USCA held that a conviction under 26 USC Sec. 7202 for the willful failure to account for and remit to the IRS withholding tax is valid when the accused fails to either account for or pay over the tax to the IRS as required.  Schroeder, Lay (author), and Boochever, Circuit Judges.  K. Alfieri of San Francisco, CA, for the defendant-appellant;  R. Lindsay of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

5)  TAXATION:  Crawford v. CIR, 00-70173 (9th Cir. Sept. 20, 2001).  The appointment of a "Special Trial Judge" by the chief judge of the Tax Court to consider a case with an amount in controversy of less than $10,000 did not violate the separation of powers doctrine.  Farris, Silverman, and Paez, Circuit Judges.  Per Curiam.  D. Crawford, pro per;  P. Junghas of Washington, DC, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

6)  TAXATION / EQUITABLE RECOUPMENT:  Estate of Branson v. CIR, 00-70293 (9th Cir. Sept. 5, 2001).  When the Tax Court has jurisdiction to redetermine an estate tax deficiency, it may exercise its equitable powers to recoup an income tax overpayment for the same tax year to reduce the estate tax deficiency if all the criteria for an equitable recoupment claim are satisfied.  Sneed (author), Wardlaw, and Berzon, Circuit Judges.  C. Bricken of Washington, DC, for the respondent;  W. Bates of Palo Alto, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/) 

7)  ENVIRONMENTAL LAW: Hall v. Norton, 99-16153 (9th Cir. Sept. 12, 2001).  Evidence of a credible threat to the plaintiff's physical well-being from airborne pollutants fell well within the range of injuries to cognizable interests that may confer standing under the National Environmental Policy Act.  Goodwin, Graber, and Paez (author), Circuit Judges.  R. Hall pro se;  A. Mergen of Wash-ington, DC, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

8)  ENVIRONMENTAL LAW:  Edwardsen v. U.S. Dept. of the Interior, 99-71397 (9th Cir. Sept. 26, 2001).  The environmental impact statement of the Northstar oil and gas development project, located off the north coast of Alaska in the Beaufort Seat, reasonably documented the environmental effects of the project and thus took the requisite "hard look".  Schroeder (author), T.G. Nelson, and Silverman, Circuit Judges.  J. App of Anchorage, AK, for the petitioners;  M. Haag of Washington, DC, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/) 

 9)  ENVIRONMENTAL LAW / INTERVENTION:  Southwest Center for Biological Diversity v. Berg, 99-56627 (9th Cir. Sept. 27, 2001).  In the context of intervention as of right under FRCP 24 in environmental litigation, the USCA adopted the standard that a court must accept as true all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed complaint or answer in intervention, and declarations supporting the motion as true absent sham, frivolity, or other objections.  Rymer, Hawkins, and Gould (author), Circuit Judges.  J. Eastman of Claremont, CA, for the appellants;  N. Levine of Denver, CO, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  CONTRACTS: Ticknor v. Choice Hotels International, Inc., 00-35048 (9th Cir. Sept. 12, 2001).  The Federal Arbitration Act did not preempt state law governing the unconscionability of adhesion contacts under the circumstances presented by this case;  dissenting Judge Tashima did not believe that the contract at issues was an adhesion contract or that its arbitration clause was so one-sided as to make it unconscionable.  Pregerson, Tashima (dissenting), and Thomas (author), Circuit Judges.  P. Sullivan of Butte, MT, for the appellant;  R. Baldwin of Bozeman, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  BANKRUPTCY: In re Crystal Properties, Ltd., 99-56038 (9th Cir. Sept. 25, 2001).  The addition of the words "without notice or demand" to the default interest clause of a loan agreement did not alter the requirement that the holder of a defaulted loan must carry out some affirmative act to exercise its option to accelerate the loan and invoke the default interest clause;  here, the default interest rate did not apply to the debtor's loans until the first quarter of 1997, when the holder first took affirmative action to put the debtor on notice that it intended to exercise its option to accelerate.  Wardlaw I, Paez, and Tallman, Circuit Judges.  S. Gubner of Encino, CA, for the appellant;  T. Keshishian of Encino, CA, for the appellant;  W. Crockett of Woodland Hills, CA, and J. Felton of Encino, CA, for the appellees-debtors;(Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  BANKRUPTCY: In re Cukierman, 00-15085 (9th Cir. Sept. 7, 2001).  Obligations called "further rent" in an unexpired lease of nonresidential real property were entitled to administrative priority, although they represented repayments of promissory notes.  Schroeder (author), Lay, and Thompson, Circuit Judges.  S. Finestone of San Francisco, CA, for the appellant;  N. Bason of San Fran-cisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  BANKRUPTCY: In re Smith's Home Furnishings, Inc., 99-35946 (9th Cir. Sept. 13, 2001).  To avoid payments made by a Chapter 11 debtor to a "floating-lien" creditor during the 90-day preference period preceding the filing of a bankruptcy petition, the trustee must show that the creditor was under-secured at some point during the preference period;  here the creditor was fully secured for purposes of an 11 USC Sec. 547(b)(5) analysis;  dissenting in part, Judge Graber thought that under Secs. 547(b)(5) and (g) a trustee need not prove, as part of the prima facie case establishing an avoidable preference, that a creditor was not fully secured at the time of the allegedly preferential payment, when the value of the collateral on the petition date exceeds the creditor's claim on the petition date;  she also thought that the majority had disregarded the statutory directive to determine what the status of the creditor's claims would have been had the challenged payments not been made, and that by holding that the trustee was required to prove that the creditor was undersecured on the date of each challenged payment, the majority effectively shifted to the trustee a burden of proof placed on the creditor by the Bankruptcy Code.  Hall (author), Rymer, and Graber (dissenting in part), Circuit Judges.  K. Shaffer of Los Angeles, CA, for the plaintiff;  J. Palmquist and L. Winters of Portland, OR, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  BANKRUPTCY: Cusano v. Klein, 99-56131 (9th Cir. Sept. 6, 2001).  The general rule that post-petition revenues based on pre-petition services or agreements belong to the bankruptcy estate is not applicable when the revenues derive from assets that reverted to the debtor upon confirmation of the reorganization plan, even if the debtor undervalued the asset in his personal property schedule.  Pregerson, Canby (author), Thompson, Circuit Judges.  R. Batson of Nashville, TN, for the plaintiff-appellant;  B. Wolf of Los Ange-les, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  BANKRUPTCY: In re General Teamsters, Warehousemen and Helpers Union, Local 890, 99-17030 (9th Cir. Sept. 10, 2001).  A local union's international parent did not have an equity interest in the local by virtue of a clause in the contract between the local and the international providing that upon the local's liquidation, its assets to escheat to the international for two years or until the local is reorganized.  Schroeder (author), Wallace, and Tallman, Circuit Judges.  H. Hochman of Los Angeles, CA, for the plaintiffs-appellants;  J. Hansen of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  ERISA / REMOVAL: Abraham v. Norcal Waste Systems Inc., 99-17040 (9th Cir. Sept. 7, 2001).  A district court lacks the original subject matter jurisdiction necessary for removal based on complete preemption under ERISA over a complaint originally brought in state court alleging solely state law claims against an employee stock ownership plan.  Thompson, O'Scannlain, and Tashima (author), Circuit Judges.  S. Dye of San Francisco, CA, for the plaintiffs-appellants;  P. Ondrasik of Washington, DC, and J. Wright and D. Ballati of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  LABOR LAW / ERISA:Regula v. Delta Family-Care Disability Survivorship Plan, 98-55853 (9th Cir. Sept. 24, 2001).  The treating physician rule employed in Social Security cases is also appropriate for determining under ERISA the reasonableness of an administrator's decision;  dissenting, Judge Brunetti did not agree with the majority's determination that although the parties' stipulation to abuse of discretion review acts as a waiver, the USCA is under an obligation to, sua sponte, order an evidentiary hearing to see whether the Plan operated under a conflict of interest;  Judge Brunetti also thought that the adaptation of the treating physician rule to the ERISA context was beyond the USCA's authority because Congress had implicitly excepted disability determinations under ERISA from compliance with this rule.  B. Fletcher (author), D.W. Nelson, and Brunetti (dissenting), Circuit Judges.  L. Rohlfing of Santa Fe Springs, CA, for the plaintiff;  H. Hughes of Atlanta, GA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  LABOR LAW: Sprewell v. Golden State Warriors, 99-15602 (9th Cir. Sept. 14, 2001).  An arbitrator's approval of "multiple punishments"—the discipline imposed on a professional athlete by his team and the association of which its is a member in response to the athlete's misconduct—"draws its essence" from the governing collective bargaining agreement (CBA) where the arbitrator explained in detail that the CBA provisions relied on by the athlete were not intended to deal with issues of multiple punishments.  D.W. Nelson, Thompson, and Trott (author), Circuit Judges.  P. Utrecht of San Francisco, CA, for the plaintiffs;  J. Mishkin of New York, NY, and F. Rothman of Los Angeles, CA, for defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  LABOR LAW: Guthart v. White, 99-16007 (9th Cir. Sept. 5, 2001).  Under the Labor Management Relations Act, a plaintiff is not entitled to benefits from a union benefit fund if he did not perform work pursuant to a collective bargaining agreement during the relevant time period, even if his employer made contributions to the fund during that period.  Kozinski, Hawkins, and Berzon (author), Circuit Judges.  G. Foley of Las Vegas, NV, for the plaintiff;  A. Brignone of Las Vegas, NV, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  LABOR LAW / ERISA: Michael v. Riverside Cement Company Pension Plan, 99-55519 (9th Cir. Sept. 17, 2001).  An amendment to the plaintiff's retirement plan which reduced his final retirement benefit by the actuarial equivalent of benefits he received during the period of his early retirement violated the anti-cutback rule of ERISA as the pre-amended plan prohibited the deduction of benefits received during early retirement from benefits from a later retirement, even though the net annual benefit under the amended plan may actually be higher than under the pre-amended plan;  dissenting, Judge Paez did not think that the anti-cutback rule was violated because the plaintiff was better off with the amendment than he would have been had the defendant not amended the plan.  W. Canby (author), McKeown, and Paez (dissenting), Circuit Judges.  J. Ribakoff of Long Beach, CA, for the plaintiff;  T. Charchut of Santa Monica, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  LABOR LAW:  Carlson v. United Academics, 00-35399 (9th Cir. Sept. 6, 2001).  A union's dues objection system that deducts and places agency fees of non-union objecting members in an interest-bearing escrow account, pending timely resolution by an impartial arbitrator, is justified if the union has an "adequate explanation" for it.  Hug (author) and T.G. Nelson, Circuit Judges, and D. Pregerson, District Judge.  W. Young of Springfield, VA, for the appellants;  W. Jermain of Anchorage, AK, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  LABOR LAW: Baldwin v. Trailer Inns, Inc., 00-35412 (9th Cir. Sept. 20, 2001).  The "primary duty" requirement of the executive exemption from overtime pay under the Fair Labor Standards Act is met when the employee has authority and discretion to manage the employer's business on a day-to-day basis without supervision and control from the employer, even if the employee does not spend over 50% of his time in managerial duties.  Pregerson, Thomas, and Gould (author), Circuit Judges.  P. King of Seattle, WA, for the plaintiffs-appellants;  G. Lofland of Yakima, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  LABOR LAW: Southern California Gas Co. v. Utility Workers Union of America, 98-56842 (9th Cir. Sept. 7, 2001).  The parties explicitly agreed, and Department of Transportation regulations mandate, that random drug tests to which Gas Company employees are required to submit must comply with DOT procedures;  the arbitrator found that the employees were entitled to return to work because the random drug tests which led to their discharge were invalid under the government mandated procedures;  moreover, the arbitrator's award did not violate any explicit, well-defined, and dominant public policy;  Judge Alarcon thought the arbitrator's order was contrary to the firmly established public policy that persons engaged in safety-sensitive positions must be terminated to protect others from the harm they may cause by using drugs, and that it also conflicted with the clear language of the collective bargaining agreement.  Alarcon (dissenting), Brunetti (author), and Hawkins, Circuit Judges.  T. Lykowski of Los Angeles, CA, for the appellants;  G. Rothner of Pasadena, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  EMPLOYMENT DISCRIMINATION: Rodriguez v. Airborne Express, 99-17350 (9th Cir. Sept. 12, 2001).  For a timely original complaint of "racial" discrimination under California's Fair Employment and Housing Act to related back to an untimely amended complaint alleging "disability" discrimination, the factual allegations of the original complaint must support a charge of disability discrimination;  although the plaintiff here failed to file a timely administrative charge with the state agency and his untimely amendment of the charge did not relate back to the original charge, equitable considerations may prevent his claim from being time-barred if he was in fact misled by the agency into believing he could not pursue a claim of disability discrimination under the Act.  Pregerson, Canby (author), Thompson, Circuit Judges.  F. Friedman of Oakland, CA, for the plaintiff-appellant;  T. Lee of Oakland, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  SEXUAL HARASSMENT:  Little v. Windermere Relocation, Inc., 99-35668 (9th Cir. Sept. 12, 2001).  An employer can be liable for harassing conduct based on the rape of an employee by a non-employee business associate where the employer knew or should have known of the conduct and ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions.  Pregerson, Thomas (author), and Gould, Circuit Judges.  M. Erickson of Seattle, WA, for the appellant  P. Rothwell of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  ADMIRALTY: In re Marine Asbestos Cases, 99-16183 (9th Cir. Sept. 10, 2001).  The Jones Act, which grants seamen a claim for personal injury caused by an employer's negligence, does not permit recovery for medical monitoring for asbestos exposure for seamen who have not yet developed symptoms of disease.  Schroeder (author), Wallace, and Tallman, Circuit Judges.  J. Friedheim of Honolulu, HI, for the plaintiffs;  N. Krek of Honolulu, HI, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  NEGLIGENCE: Kennedy v. Southern California Edison, 98-56157 (9th Cir. Sept. 26, 2001).  The district court's failure to give a jury instruction under Rutherford v. Owens-Illinois, Inc. 941 P.2d 1203 (Cal. 1997), in a California negligence case involving a single defendant who raises alternative possible sources of injury as a defense, was harmless error where no reasonable jury could have found that the alleged source of the injury was a substantial factor in causing the injury.  Boochever, Hawkins, and Thomas, Circuit Judges.  Per Curiam.  S. Smith of Los Angeles, CA, for the plaintiffs;  J. Reding of San Francisco, CA, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  DEFAMATION / DISCOVERY: Metabolife International, Inc. v. Wornick, 99-56814 (9th Cir. Sept. 5, 2001).  Because the discovery-limiting aspects of California's "anti-Slapp" discovery rule "directly collide" with the discovery-allowing aspects of Federal Rule of Civil Procedure 56, those aspects of the anti-Slapp discovery rule do not apply in federal court;  dissenting in part, Judge Rymer thought the district court correctly ruled that it was improbable the plaintiff would prevail on its proffered evidence.  Rymer (dissenting in part), Hawkins (author), and Gould, Circuit Judges.  S. Mansfield of Los Angeles, CA, for the plaintiff;  G. Roper of San Diego, CA, and S. Comen of Boston, Mass., for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  FALSE CLAIMS ACT: Foundation Aiding the Elderly v. Horizon West, Inc. , 99-17539 (9th Cir. Sept. 13, 2001).  Allegations or transactions underlying a qui tam fraud action are "publicly disclosed" and thus barred under 31 USC Sec. 3730(e)(4)(A) when "a misrepresented state of facts and the true state of facts" of those allegations or transactions are revealed, from which others may conclude that fraud has been committed;  here, documents pertaining to unrelated allegations of fraud did not triggered Sec. 3730(e)(4)(A)'s jurisdictional bar;  the action was thus not barred by the previous disclosure of the particular fraud at issue.  Reinhardt, Tashima (author), and Berzon, Circuit Judges.  M. Weiner of Burlingame, CA, for the plaintiffs;  N. Hile of Sacramento, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  ENERGY LAW: Duke Energy Trading & Marketing, LLC v. Davis, 01-55770 (9th Cir. Sept. 20, 2001).  A wholesale energy supplier was entitled to appropriately tailored injunctive relief from orders of the Governor of California commandeering its contractual rights to deliver electricity to public utilities within the state;  dissenting, Judge Kozinski read Idaho v. Coeur d'Alene Tribe, 521 US 261 (1997), as creating an exception to Ex parte Young, 209 US 123 (1908), where the suit implicates the state's fundamental sovereign interests.  Wood, Kozinski (dissenting), and O'Scannlain (author), Circuit Judges.  G. Bestor of Universal City, CA, for the appellant;  D. Valdez of San Francisco, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  SOVEREIGN IMMUNITY: Alvarez-Machain v. USA, 99-56762 (9th Cir. Sept. 11, 2001).  The "foreign activities" exception to the waiver of sovereign immunity under the Federal Tort Claims Act did not apply in this case as, although the "operative effect" of a plaintiff's kidnapping occurred in Mexico, all of the command decisions about his seizure and removal to the United States occurred in California.  Schroeder and Goodwin (author), Circuit Judges, and King, District Judge.  C. Leeper of Washington, DC, for appellant Sosa;  R. Loeb of Washington, DC, for the USA; H. Hume of Washington, DC, for appellees Lawn, Gruden, Waters and Berellez. (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  WITNESS IMMUNITY: Paine v. City of Lompoc, 99-56347 (9th Cir. Sept. 13, 2001).  Absolute witness immunity from liability for testimony in earlier proceedings did not shield an out-of-court, pretrial conspiracy to engage in non-testimonial acts such as fabricating or suppressing physical or documentary evidence or suppressing the identities of potential witnesses.  Trott, Thomas, and Berzon (author), Circuit Judges.  K. Peabody of Santa Barbara, CA, for the defendants-appellants;  T. Beck of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  PREEMPTION: Air Transport Association of America v. San Francisco, 99-16391 (9th Cir. Sept. 11, 2001).  The domestic partner benefits provisions of a city's anti-discrimination ordinance were not preempted by the Airline Deregulation Act ("ADA") or the Railway Labor Act;  dissenting, Judge Wallace thought the ADA preempted the city's use of its monopoly power to enforce the ordinance at its airport.  Wallace (dissenting), Fisher (author), and Rawlinson, Circuit Judges.  B. Dolan of San Francisco, CA, for the plaintiffs;  D. Aftergut and T. Stewart of San Francisco, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  EXPERT WITNESSES:Jinro America v. Secure Investments, 99-16133 (9th Cir. Sept. 14, 2001).  Expert witness testimony—that most Korean businesses are corrupt and engaged in complicated business transactions in order to evade Korean currency laws—aimed at proving that a particular transaction with a Korean business was a sham was unfairly prejudicial and improper;  concurring, Judge Wallace thought the testimony was inadmissible because it was irrelevant and that, not the expert's ethnic bias, was the reversible issue.  Wallace (concurring), Fisher (author), and Rawlinson, Circuit Judges.  D. Danneman of Phoenix, AZ, for the plain-tiffs;  R. Ellett and T. Crown of Phoenix, AZ, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  DIVERSITY JURISDICTION:In re Cardholder Rebate Program Litigation, 99-36115 (9th Cir. Sept. 6, 2001).  Citing Snow v. Ford Motor Co., 561 F.2d 787, 790 (9th Cir. 1977), the USCA held that the consolidated plaintiffs have not united to enforce a single title or right in which they have a common and undivided interest;  the equitable relief sought here is but a means through which the individual claims may be satisfied, and no plaintiff has an individual claim worth more than $75,000.  Browning, Wallace (author), and T.G. Nelson, Circuit Judges.  S. Snyder of Washington, DC, for defendant Citibank;  S. Berman of Seattle, WA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/) 

36)  ABSTENTION: Montclair Parkowners Association v. City of Montclair, 99-55083 (9th Cir. Sept. 5, 2001). The Younger abstention doctrine does not requires the dismissal of a federal lawsuit brought to vindicate rights under the Takings Clause of the federal constitution where the plaintiff has challenged a municipal ordinance on the basis of violations of both federal and state law and files parallel suits in both federal and state court;  the plaintiff did not request the federal court to enjoin on-going state court proceedings, nor did it seek any other relief that would interfere with its state court action within the meaning of Younger v. Harris, 401 US 37 (1971), and its progeny.  O'Scannlain (author), Fernandez, and T.G. Nelson, Circuit Judges.  J. Ramirez of Sacramento, CA, for the plaintiffs;  H. Heater of San Diego, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

37)  FORFEITURE / SWISS BANK RECORDS:  USA v. Real Property Located at 22 Santa Barbara Drive, 99-57000 (9th Cir. Sept. 5, 2001).  Following the Seventh, Eighth, and Tenth Circuits, the USCA held that the excessive fines clause of the Eighth Amendment does not apply to the forfeiture of drug proceeds under 21 USC Sec. 881(a)(6);  the U.S. properly obtained Swiss bank records under the Mutual Legal Assistance Treaty between the U.S. and Switzerland and properly used those records in the prosecution of the defendant.  D.W. Nelson (author), Fernandez, and Rymer, Circuit Judges.  M. Borenstein of Santa Monica, CA, for the claimants-appellants;  AUSA J. Lee of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  REMOVAL / CLASS ACTIONS: Kanter v. Warner-Lambert Co., 99-16604 (9th Cir. Sept. 10, 2001).  A defendant in a class action suit cannot aggregate the amounts of the plaintiffs' separate and distinct claims (as opposed to claims that are the "common and undivided" right of the class) in order to meet the amount in controversy requirement under the federal removal statute;  as removal was improper in the instant case, the district court properly awarded plaintiffs' their attorneys' fees.  Schroeder, Hall, and W. Fletcher (author), Circuit Judges.  J. Bell of San Francisco, CA, for the plaintiffs;  T. Smart of New York, NY, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  UNPUBLISHED DISPOSITIONS: Hart v. Massanari, 99-56472 (9th Cir. Sept. 24, 2001).  Ninth Circuit Rule 36-3 that unpublished dispositions and orders of the court of appeals are not binding precedent and generally may not be cited to or by the courts of the Ninth Circuit is constitutional.  Kozinski (author) and Tallman, Circuit Judges, and Zapata, District Judge.  L. Rohlfing of Santa Fe Springs, CA, for the plaintiff-appellant;  K. Nayar of San Francisco, CA, for the defendant-appellant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

40)  JURISDICTION: Columbia Basin Apartment Assoc. v. City of Pasco, 00-35041 (9th Cir. Sept. 26, 2001).  The exercise of federal jurisdiction over a federal constitutional claim against a state ordinance requiring rental dwelling units to be inspected by public officials or landlords must be postponed until the state courts determine whether state law provides the requisite authorization for the state courts to enforce the ordinance;  dissenting, Judge Tashima thought that none of the appellants had established Article III standing and that the majority's resolution of the abstention issues was at odds with the controlling authority.  Alarcon (author), Fernandez, and Tashima (dissenting), Circuit Judges.  J. McDermott of Washington, DC, for the plaintiffs-appellants;  L. Kerr of Kennewick, WA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

41)  CONTRACTS / NOTICE OF ISSUES OF FOREIGN LAWS:  DP Aviation v. Smiths Industries Aerospace, 99-35913 (9th Cir. Sept. 28, 2001).  In this dispute over the award of incentive fees pursuant to a representation agreement, the district court correctly interpreted "orders" to mean long-term contracts and commitments to supply and thus properly awarded the plaintiffs' their unpaid incentive fees;  absent extenuating circumstances, notice of issues of foreign law that reasonably would be expected to be part of the proceedings should be provided in the pretrial conference and contentions about applicability of foreign law should be incorporated in the pretrial order.  Reinhardt, Wardlaw, and Gould (author), Circuit Judges.  J. Petrie of Seattle, WA, for the plaintiffs-appellants;  T. Kittredge of Philadelphia, PA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  JURISDICTION: Leisnoi, Inc. v. USA, 00-35746 (9th Cir. Sept. 24, 2001).  The jurisdictional requirement under the Quiet Title Act that there be a disputed title to real property between interests of the plaintiff and interests of the United States can be met by a third party's assertion of an interest of the United States adverse to the plaintiff when the third party's assertion clouds the plaintiff's title;  specially concurring in the results, Judge Graber thought that a third party could not claim an interest on behalf of the United States for purposes of the Quiet Title Act.  Canby (author) and Graber (concurrence), Circuit Judges, and Marshall, District Judges.  J. Fitzgerald of New Orleans, Louisiana, for the plaintiff-appellant;  S. Donahue of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

43)  FAMILY LAW: USA v. Gill, 00-10304 (9th Cir. Sept. 6, 2001).  Under the Child Support Recovery Act ("CSRA"), 18 USC Sec. 228(a), a restitution order properly includes accrued interest as part of an unpaid child support obligation where the applicable state law clearly mandates the accrual of interest on any delinquent payments, even if the underlying state court order does not expressly mention interest;  dissenting, Judge Reinhardt thought that the CSRA did not permit the inclusion of accrued interest or any other item not referred to in the underlying court order when the restitution is determined.  Reinhardt (dissenting), Tashima (author), and Berzon, Circuit Judges.  AFPD E. Kersten of Fresno, CA, for the defendant;  AUSA S. Boone of Fresno, CA for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

44)  SOCIAL SECURITY: Subia v. Commissioner of Social Security, 00-55166 (9th Cir. Sept. 5, 2001).  A disability benefits claimant's failure to appear at a hearing, either in person or through counsel, without good cause, precluded her from obtaining a final decision, and barred judicial review of her case.  Wallace, Hall, and Trott (author), Circuit Judges.  G. Katz of Los Angeles, CA, for the plaintiff-appellant;  E. Brand of Baltimore, MD, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  SOCIAL SECURITY: Bruton v. Massanari, 00-55022 (9th Cir. Sept. 28, 2001).  The inability of a disability benefits claimant to lift his arms above ninety degrees may be considered a non-exertional physical limitation mandating the Commissioner of the Social Security Administration to rely, not on the grids, but on the testimony of a vocational expert to determine whether the claimant is capable of performing "other jobs that exist in substantial numbers in the national economy."  Pregerson (author), Fernandez, and Graber, Circuit Judges.  L. Rohlfing of Santa Fe, CA, for the appellant;  J. Forslund of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

46)  CIVIL RIGHTS / PRIVACY / DISCOVERY REQUESTS:  Nicholas v. Wallenstein, 99-36205 (9th Cir. Sept. 11, 2001).  A prison official's good-faith release of an incident report pursuant to Washington's Public Disclosure Act to an angry group consisting of an inmate's family and friends (a report listing the names of corrections officers and health department nurses involved in restraining that inmate prior to his death) did not constitute actionable deliberate indifference to known or obvious dangers under the plaintiffs' evidence;  concurring, Judge Tashima thought the plaintiffs failed to show how they were prejudiced by the district's court refusal to grant them a Rule 56(f) continuance for discovery.  Noonan (author), Tashima (concurring), and Tallman, Circuit Judges.  S. Strong of Seattle, WA, for the plaintiffs;  S. Pailca of Seattle, WA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

47)  CIVIL RIGHTS: Devereaux v. Abbey, 97-35781 (9th Cir. Sept. 5, 2001).  A federal civil rights claim against government defendants arising from the defendants investigation of the plaintiff for the alleged sexual abuse of his foster children must be based on the false fabrication of evidence by the defendants, and not merely on improper interviewing techniques;  concurring, Judge Fernandez thought that the plaintiff never properly raised nor developed a deliberate-fabrication-of-evidence claim in the trial court;  dissenting in part, Judge Kleinfeld, joined by Judges Pregerson and Wardlaw, thought that the plaintiff was entitled to present to a jury his case against certain defendants because he had established a genuine issue of material fact as to each of their claims for qualified immunity.  Schroeder, Pregerson, O'Scannlain, Fernandez (concurrence), T.G. Nelson, Kleinfeld (dissenting in part), Tashima (author), Thomas, Wardlaw, Paez, and Rawlinson, Circuit Judges.  S. Lacy of East Wenatchee, WA, for the plaintiff-appellant;  J. Freimund of Olympia, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

48)  NATIVE AMERICAN LAW: Bugenig v. Hoopa Valley Tribe, 99-15654 (9th Cir. Sept. 11, 2001).  The Hoopa Valley Indian Tribe can regulate timber harvesting on fee land owned by non-Indians wholly within the reservation, in order to protect tribal lands of cultural and historic significance;  dissenting, Judge Fernandez, joined by Judges Kleinfeld and Wardlaw, thought that Congress did not expressly confer jurisdiction upon the Tribe over land held in fee by non-Indians.  Schroeder, Hug, Fernandez (dissenting), T.G. Nelson, Kleinfeld, Silverman, Graber (author), McKeown, Wardlaw, Paez, Berzon, Circuit Judges.  J. Burling of Sacramento, CA, for the plaintiff-appellant;  T. Schlosser of Seattle, WA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 

49)  NATIVE AMERICAN LAW:  Boxx v. Long Warrior, 00-35073 (9th Cir. Sept. 6, 2001).  A tribal court's authority to adjudi-cate activities of nonmembers who enter consensual relationships with the tribe or its members where such relationships are entered through commercial dealings, contracts, leases, or other arrangements, does not extend to personal relationship.  Pregerson, Tashima (author), and Thomas, Circuit Judges.  D. Eakin, Billings, MT, for the defendant-appellant;  M. Northcutt of Missoula, MT, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

50)  IMMIGRATION: Ventura v. INS, 99-71004 (9th Cir. Sept. 10, 2001).  An asylum applicant's uncontradicted testimony that guerrillas in his homeland targeted him because they believed he held anti-guerrilla sympathies and that numerous of his family members had been killed by guerrillas due to their military affiliations was sufficient evidence to support a well-founded fear of persecution on account of imputed political opinion;  he was thus eligible for asylum and withholding of deportation.  Schroeder, Lay, and Thompson (author), Circuit Judges.  S. Weiner of San Francisco, CA, for the appellant;  J. Braunstein of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

51)  IMMIGRATION: Chen v. INS, 00-70478 (9th Cir. Sept. 11, 2001).  A Chinese citizen's persecution due to his resistance to China's family planning policies is a statutorily protected ground upon which he can seek asylum;  reversing the BIA, the USCA found the petitioner eligible for a discretionary grant of asylum, as well as a mandatory grant of withholding of removal.  Lay (author), Trott, and Berzon, Circuit Judges.  J. Volyn of Moscow, ID, for the petitioner;  J. Andre of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

52)  IMMIGRATION: Dillingham v. INS, 97-71038 (9th Cir. Sept. 14, 2001).  Equal protection principles bar the government from discriminating against petitioners seeking an adjustment of immigration status who have committed drug offenses in a foreign jurisdiction and have had those convictions expunged by a foreign government under statutes substantially identical to the Federal First Offender Act;  dissenting, Judge Fernandez disagreed with the idea that as a matter of constitutional law expungements in all of the coun-tries of the world must be treated in the same manner as expungements within the United States because anything less would violate equal protection.  B. Fletcher (author), Fernandez (dissenting), and Paez, Circuit Judges.  P. Davis of Los Angeles, CA, for the petitioner;  M. Hall of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

53)  IMMIGRATION: Gallo-Alvarez v. Ashcroft, 99-71038 (9th Cir. Sept. 21, 2001).  8 USC Sec. 1231(a)(5) permits the INS to reinstate an order of deportation summarily pertaining to an alien who was granted voluntary departure in lieu of deportation.  Pregerson, Thomas, and Gould (author), Circuit Judges.  A. Loughram of Washington, DC, for the respondents-appellants / cross-appellees;  M. Stock of Anchorage, AK, for the petitioner-appellee / cross-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 

54)  SEARCH & SEIZURE / CIVIL RIGHTS:  Ove v. Gwinn, 00-56233 (9th Cir. Sept. 4, 2001).  To properly state a claim for a federal civil rights violation based on the illegal search and seizure of blood samples, the plaintiff must assert that the blood tests were "unreasonable" and not taken in accordance with medical practices;  dissenting, Judge Ferguson thought that in requiring the claimant to use the word "unreasonable," the majority endorsed an unnecessary heightened pleading requirement.  Ferguson (dissenting) and Silverman (author), Circuit Judges, and Breyer, District Judge.  M. Prevost of San Diego, CA, for the plaintiff-appellant;  D. Brodie of San Diego, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

55)  SEARCH & SEIZURE:USA v. Cannon, 00-10400 (9th Cir. Sept. 5, 2001).  A search warrant for a residence may include all other buildings and other objects within the curtilage of that residence, even if not specifically referenced in the search warrant.  Sneed (author) and Silverman, Circuit Judges, and Lasnik, District Judge.  AUSA R. Twiss of Sacramento, CA, for the plaintiff-appellant;  K. Landau of Oakland, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

56)  SEARCH & SEIZURE:USA v. Bishop, 00-30044 (9th Cir. Sept. 6, 2001).  Reversing and remanding for a new trial, the USCA held that, although the district court had properly ruled that a search warrant for the defendant's residence was supported by probably cause, drug evidence seized at the residence did not prove a conspiracy;  on the other hand, an illegal seizure made at a traffic stop not harmless error beyond a reasonable doubt but provided highly persuasive evidence of a conspiracy as well as of a methamphetamine operation.  Lay (author), Trott, and Berzon, Circuit Judges.  A. Adelson of New York, NY, for the defendant-appellant;  AUSA H. Berry of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

57)  RIGHT TO COUNSEL:USA v. Adelzo-Gonzalez, 99-50152 (9th Cir. Sept. 26, 2001).  The district court's repeated denials of the defendant's motion for substitute counsel, premised on the district court's failure to conduct an in-depth inquiry into the nature of the defendant's relationship with his appointed counsel after being presented with clear evidence of a serious conflict, constituted an abuse of discretion and violated the defendant's Sixth Amendment right to counsel.  Hug and B. Fletcher, Circuit Judges, and Illston (author), District Judges.  P. Trevino of Beverly Hills, CA, for the defendant;  AUSA J. Gordon of Los Angeles, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

58)  RIGHT TO COUNSEL: Ainsworth v. Woodford, 99-99024 (9th Cir. Sept. 28, 2001).  The failure of counsel to investigate and present mitigation evidence at the defendant's capital sentencing phase constituted ineffective assistance of counsel where a reasonable investigation would have uncovered a substantial amount of available mitigating evidence that could have been presented to the jury;  dissenting, Judge Graber thought that even if the petitioner's counsel was constitutionally deficient, the petitioner failed to demonstrate prejudice.  Hug (author), Graber (dissenting), and W. Fletcher, Circuit Judges.  Q. Denvir of Sacramento, CA, for the petitioner; J. Jibson of Sacramento, CA, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

59)  RIGHT TO COUNSEL:USA v. Michaud, 99-10440 (9th Cir. Sept. 25, 2001).  Absence coercion by authorities, an accused may be interviewed by police after invoking her right to counsel without violating her constitutional rights when she "initiates" communications with the police by acquiescing to a third party's characterization of her wishes to provide information to the police;  dissenting, Judge Reinhardt thought that the accused here clearly did not initiate the communications with the police as required by Edwards, and thus that the authorities violated the accused Fifth Amendment rights by interrogating her after she asserted her right to counsel.  Reinhardt (dissenting), Rymer, and Fisher (author), Circuit Judges.  G. Cartledge of Reno, NV, for the defendant-appellant;  AUSA R. Rachow of Reno, NV, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

60)  EFFECTIVE ASSISTANCE:Campbell v. Rice, 99-17311 (9th Cir. Sept. 12, 2001).  A state trial court's failure to inquire into defense counsel's known and potentially serious conflict of interest, due to counsel's own ongoing felony drug prosecution by the same district attorney's office that was prosecuting her client on burglary charges, deprived the client of his constitutional right to the effective assistance of counsel.  Pregerson (author), Ferguson, and Hawkins, Circuit Judges.  W. Brown of San Francisco, CA, for the peti-tioner;  AUSA J. Vance of San Francisco, CA, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

61)  ARRESTS / EVIDENCE: Dubner v. San Francisco, 99-17319 (9th Cir. Sept. 4, 2001).  In a case where it could not be determined what the arresting officers knew at the time of theplaintiff's arrest, once the plaintiff established a prima facie case that her arrest was unlawful by showing that it was without a valid warrant, the evidentiary burden shifts to the police to provide some evidence that they had probable cause for the arrest.  Schroeder, D.W. Nelson (author), and Rawlinson, Circuit Judges.  W. Pyle of Berkeley, CA, for the appellant;  L. Berkowitz of San Francisco, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

62)  MIRANDA WARNINGS: USA v. Orso, 99-50328 (9th Cir. Sept. 17, 2001).  A suspect's initial inculpatory but voluntary statement, though technically in violation of Miranda, did not require suppression of an immediately following inculpatory statement made after a proper Miranda warning;  concurring, Judge Paez, joined by Judges Schroeder, Hawkins, McKeown, and Rawlinson, thought that due weight was not accorded to the inspectors' admission that they deliberately failed to advise the defendant of her Miranda rights.  Schroeder, Hug, Kozinski, O'Scannlain (author), Kleinfeld, Hawkins, McKeown, Gould, Paez (concurring), Tallman, and Rawlinson, Circuit Judges.  FPD E. Newman of Los Angeles, CA, for the defendant;  AUSA R. Cheng of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

63)  MONEY LAUNDERING: USA v. Lomow, 00-10120 (9th Cir. Sept. 17, 2001).  The district court did not violate Federal Rule of Criminal Procedure 11 during the plea colloquy by not specifically identifying the elements of mail fraud, 18 USC Sec. 1341, along with the elements of money-laundering, 18 USC Sec. 1956(a)(1)(A)(I) and (B)(I);  the district court did not err in applying the money-laundering guideline, USSG Sec. 2S1.1, rather than the fraud guideline, USSG Sec. 2F1.1.  O'Scannlain, Tashima, and Thomas (author), Circuit Judges.  J. Soglin of San Francisco, CA, for the appellant;  AUSA M. Boersch of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

64)  JUVENILES: USA v. F.S.J., a juvenile, 00-30117 (9th Cir. Sept. 6, 2001).  The determination of whether a juvenile case involves a "substantial federal interest" such as would warrant federal prosecution under the Juvenile Justice and Delinquency Act is a matter of prosecutorial discretion that is not generally subject to judicial review.  Schroeder, T.G. Nelson, and Silverman (author), Circuit Judges.  S. Tater of Anchorage, AK, for the defendant-appellant;  AUSA S. Collins of Anchorage, AK, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

65)  DRUG CONSPIRACY / EVIDENCE: USA v. Herrera-Gonzalez, 99-10504 (9th Cir. Sept. 5, 2001).  Sufficient evidence of participation in a drug conspiracy exists if the defendant was present when co-defendants purchased supplies for the conspiracy, if he lied about his association with co-conspirators, and if he had a financial relationship with the conspiracy.  Kleinfeld (author), Hawkins, and Tallman, Circuit Judges.  A. Capozzi of Fresno, CA, for the appellant;  AUSA T. Flynn of Fresno, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

66)  HOBBS ACT: USA v. Lynch, 00-30247 (9th Cir. Sept. 4, 2001).  The robbery of an individual person "affects commerce" in violation of the Hobbs Act where the defendant (1) steals from a person directly and "customarily engaged in interstate commerce," (2) creates a likelihood that the assets of an entity engaged in interstate commerce will be depleted, or (3) victimizes a large number of individuals or takes a sum so large that there is some cumulative effect on interstate commerce.  Wallace (author), Hall, and T.G. Nelson, Circuit Judges.  FPD J. Clarke of Spokane, WA, for the defendant-appellant;  AUSA B. Hubley of Helena, MT, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

67)  FICTITIOUS FINANCIAL INSTRUMENTS:  USA v. Howick, 00-30243 (9th Cir. Sept. 4, 2001).  Under 18 USC Sec. 514, an unlawful fictitious obligation is one that appears to be an "actual" obligation in the sense that it bears a family resemblance to a genuine financial instrument.  Lay, Trott, and Berzon (author), Circuit Judges.  AFPD J. Rhodes of Missoula, MT, for the defendant-appellant;  AUSA K. McLean of Missoula, MT, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

68)  SENTENCING: USA v. Davis, 00-50238 (9th Cir. Sept. 4, 2001).  Guideline Sec. 5K2.13 prohibit a downward departure due to defendant's significantly reduced mental capacity where the court has found that his criminal history demonstrates a need for incarceration to protect the public.  Hug, Graber (author), and W. Fletcher, Circuit Judges.  DFPD E. Newman of Los Angeles, CA, for the defendant-appellant;  AUSA M. Raphael of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

69)  SENTENCING: USA v. Sparks, 99-30389 (9th Cir. Sept. 7, 2001).  A prior attempted burglary of storage lockers in an apartment building did not qualify as a violent felony under 18 USC Sec. 924(e) for purposes of sentencing a defendant under the Armed Career Criminal Act.  B. Fletcher (author) and Fisher, Circuit Judges, and Schwarzer, District Judge.  M. Taggart of Anchorage, AK, for the defendant-appellant; S. Cooper of Fairbanks, AK, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

70)  SENTENCING: USA v. Carter, 00-30357 (9th Cir. Sept. 11, 2001).  The defendant's transportation of a minor with the intent that the minor engage in prostitution is a crime of violence which supports a finding that the defendant is a career criminal for purposes of Sentencing Guideline Sec. 4B1.2(a)(2).  Noonan (author), Tashima, and Tallman, Circuit Judges.  W. Hines of Seattle, WA, for the defendant-appellant;  M. Osborne of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

71)  SENTENCING: USA v. Ochoa-Gaytan, 99-50366 (9th Cir. Sept. 7, 2001).  The fact that the defendant attempted to suppress his confession and chose to proceed to trial rather than plead guilty did not make him ineligible for a downward adjustment for acceptance of responsibility.  Hug and B. Fletcher (author), Circuit Judges, and Illston, District Judge.  M. Winter of San Diego, CA, for the defendant;  AUSA B. Castetter of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

72)  SENTENCING: USA v. Gamma Tech Industries, Inc., 99-50730 (9th Cir. Sept. 12, 2001).  The district court acted within its authority in permitting a private victim to prove its own claim for restitution resulting from a scheme to defraud the government—even when the government did not initiate the restitution request.  Kozinski (author), T.G. Nelson, and Wardlaw, Circuit Judges.  H. Frank, T. MacNeil, and G. Obenauer of San Diego, CA, for the defendants-appellants;  AUSA G. Hardy of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

73)  SENTENCING: USA v. West Coast Aluminum Heat Treating Co., 00-50402 (9th Cir. Sept. 13, 2001).  Following the defendant's conviction of six counts of making false statements in violation of 18 USC Sec. 1001, the sentencing court did not err in utilizing a loss calculation based on the government's net profit analysis for purposes of fraud sentencing guideline Sec. 2F1.1(b).  Kozinski and Thomas (author), Circuit Judges, and Whyte, District Judge.  S. Greenberg of Los Angeles, CA, for the defendants-appellants;  AUSA L. Middleton of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

74)  SENTENCING: USA v. Severino, 00-30161 (9th Cir. Sept. 28, 2001).  In applying a sentence enhancement based on a defendant's prior conviction, in the absence of a jurisdictional defect or some other compelling reason that a right cannot be waived, nothing prevents an informed defendant, represented by an informed attorney, from waiving the statutory requirements for establishing prior convictions;  dissenting, Judge Thomas thought that the conclusion that a district court has authority to proceed with sentencing despite the government's admitted failure to comply with the strict procedural requirements of 21 USC Sec. 8519a) conflicts with the decisions of eight other circuits, the plain statutory language and legislative history, and, in addition, it could not be reconciled with Ninth Circuit's conclusion that the statute imposes mandatory requirements that preclude sentence enhancement if not observed.  Rymer (author), Thomas (dissenting), and McKeown, Circuit Judges.  B. Brown of Anchorage, AK, for the defendant-appellant;  AUSA S. Cooper of Fairbanks, AK, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

75)  SENTENCING: USA v. Tighe, 00-30263 (9th Cir. Sept. 24, 2001).  Under Apprendi v. New Jersey, 530 US 466 (2000), juvenile convictions resulting from proceedings that do not afford the right to a jury trial and proof beyond-a-
reasonable-doubt do not qualify as predicate convictions under the Armed Career Criminal Act;  dissenting, Judge Brunetti thought the majority's conclusion was unsupportable and failed to recognize the full force of Supreme Court precedent, Ninth Circuit case law, and congressional intent.  B. Fletcher, Brunetti (dissenting), and Fisher (author), Circuit Judges.  AFD M. Donahoe of Helena, MT, for the defendant-appellant;  AUSA B. Hubley of Helena, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

76)  SENTENCING: Wixom v. Washington, 00-35721 (9th Cir. Sept. 5, 2001).  A state claim is no longer "pending" for purposes of tolling the limitations period for filing a federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 where the petitioner's state court appeal has been denied and he has failed to appeal that denial within the prescribed time period.  Tashima (author) and Tallman, Circuit Judges, and Mollway, District Judge.  G. Smith of Spokane, WA, for the petitioner-appellant;  D. Sheythe of Olympia, WA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

77)  SENTENCING: Martinez v. Klauser, 00-35422 (9th Cir. Sept. 18, 2001).  The dismissal of a state habeas petition pursuant to a state ruling that a trial court can raise a statute of limitations defense sua sponte was not a sufficient basis for finding a procedural default such as would bar relief in federal court, as the state procedural rule was not clear, consistently applied, and well-established.  McKeown, W. Fletcher (author), and Rawlinson, Circuit Judges.  A. Parnes of Ketchum, ID, for the petitioner;  K. Robins of Boise, ID, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

78)  HABEAS CORPUS: Jorss v. Gomez, 99-16986 (9th Cir. Sept. 4, 2001).  When a district court's erroneous dismissal of a habeas petition accounts for the petitioner's failure to timely file a subsequent petition, the limitations period under the Antiterrorism and Ef-fective Death Penalty Act can be equitably tolled;  dissenting, Judge Wallace thought Circuit precedent was clear that an untimely petition does not relate back to a dismissed petition over which there is no longer jurisdiction and also that the petitioner did not meet the requirements for equitable tolling.  Schroeder, Wallace (dissenting), and Tallman (author), Circuit Judges.  C. Jorss pro per;  R. Moody of San Francisco, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 

79)  HABEAS CORPUS: Welch v. Newland, 00-15366 (9th Cir. Sept. 24, 2001).  A California Supreme Court order denying habeas relief without comment or citation constitutes a denial on the merits for the purpose of tolling of the statute of limitations for filing a federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 during the period state post-conviction review is pending.  Canby (author), Hawkins, and Gould (concurring), Circuit Judges.  AFD D. Porter of Sacramento, CA, for the petitioner;  J. McLean of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

80)  HABEAS CORPUS: Spears v. Stewart, 01-99000 (9th Cir. Sept. 24, 2001).  Arizona's mechanism for the appointment of counsel for indigent capital defendants in state post-conviction proceedings met the requirements of Chapter 154, 28 USC Secs. 2261-2266, and thus qualified for opt-in status as of that date;  however, Arizona is not entitled to enforce the procedures of Chapter 154 in the instant case as it did not comply with the timeliness requirement of its own system with respect to the petitioner.  Hill, Graber (author), and McKeown, Circuit Judges.  M. Klapper of Phoenix, AZ, for the respondent;  S. Lett of Phoenix, AZ, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/) 

81)  PRISONERS' RIGHTS: Gerber v. Hickman, 00-16494 (9th Cir. Sept. 5, 2001).  In a case involving a life-term prisoner's efforts to have a child by artificially inseminating his wife, the USCA held that the constitutionally guaranteed right to procreate survives incarceration but the exercise of that right can be restricted for legitimate penological reasons;  dissenting, Judge Silverman thought that prisoners do not have a right to procreate while in prison and that the majority's opinion to the contrary was both unprecedented and ill-conceived.  Bright (author), Reinhardt, and Silverman (dissenting), Circuit Judges.  T. Zuber of Sacramento, CA, for the ap-pellant;  B. Lockyer of Sacramento, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

 1)  CONSULTING CONTRACTS: CSC Consulting, Inc. v. Tosco Refining Co., 99-16036 (9th Cir. Sept. 26, 2001) (unpublished).  O'Scannlain, Tashima, and Thomas, Circuit Judges.
       Herein at issue were the effects of two proposals to modify a consulting contract ("N443"), and two change orders which purported to implement those proposals.  The District Court for the Northern District of California, Judge Patel presiding, held that N443 unambiguously "provided for a fixed amount of compensation, inconsistent with the obligation to pay a bonus."  The district court thus refused to consider parol evidence and held that CSC was not entitled to a bonus.  The USCA conclude that genuine issues of material fact as to the exact meaning of the change orders and the construction of the contract precluded summary judgment on CSC's claims.  CSC had proposed expanding N443 to include a routine maintenance reengineering project.  That proposal contained a bonus provi-sion in which CSC provided its services at a lower billing rate in return for a bonus based on a percentage of the benefits derived from the project.  In response, Tosco issued a change order ("CO1") which expanded the scope of work for N443 to include the project, but did not include CSC's proposed bonus.  Rather, it contained a "fixed price of $1,072,500 plus a time-and-material price of $162,250.00."  The district court ruled that CO1 and N443 constituted an integrated agreement and thus excluded parol evidence of the bonus provision.  The USCA disagreed.  If CSC had accepted CO1 as a modification to N443, the resulting agreement would incorpo-rate the integration clause, and the district court would have been correct.  However, CO1 did not, as a matter of law, become part of N443.  Under California law, the paramount principle informing contract interpretation is to give effect to the intention of the parties and the court should ascertain the intention of the parties from the writing alone, if possible. FDIC v. Air Fla. Sys., Inc., 822 F.3d 837 (9th Cir. 1987).  Paragraph 23 of the General Conditions to the Consulting Agreement covered changes in the scope of work, providing that if Tosco elects to have CSC perform a change or extra work, it  shall issue a change order.  The integration clause, paragraph 36, provides that the agreement may be altered, amended, or rescinded only by a duly executed formal written agreement executed by both parties.  Per paragraph 23.2, CSC proposed terms for the extra work, and Tosco issued a change order, but the change order contained different terms.  Apparently neither party executed a formal written agreement as required by paragraph 36.  The disparity between the proposal and the change order together with the lack of a formal written agreement executed by both parties raised a genuine issue of material fact as to whether the parties intended that the change order modify N443, or assuming that N443 was modified to cover the extra work, what the parties intended the terms of the new contract to be.  Thus, as genuine issues of material fact remained, the district court erred in concluding as a matter of law that Tosco had no obligation to pay CSC a bonus under CO1.  The same analysis applied to the second change order.  Once again, CSC issued a proposal and Tosco responded with a change order including different terms for compensation.  And, again, neither party executed a formal written agreement as required by the contract.  Genuine issues of material fact thus existed as to the effect of the proposal and change order, and the district court erred in granting summary judgment.
      CSC also appealed the district court's grant of summary judgment to Tosco on CSC's quantum meruit and unjust enrichment claims.  The USCA agreed with CSC and reversed.  First, CSC argued that the district court erred in not holding Tosco to its judicial admissions.  However, as there were no judicial admissions, the USCA upheld the district court on this point.  Judicial admissions are factual assertions.  Tosco's statements that CSC was entitled to quantum meruit recovery were legal rather than factual assertions.  As the district court correctly determined, judicial estoppel was the appropriate doctrine here, and CSC did not contest the court's refusal to judicially estop Tosco.  Because the district court stated that it had not relied on Tosco's representations regarding quantum meruit in its summary judgment on Counts 1-7, it did not abuse its discretion in refusing to judicially estop Tosco.  Under Hedging Concepts, Inc. v. First Alliance Mortgage Co., 41 Cal. App. 4th 1410, 1419 (1996), "A quantum meruit or quasi-contractual recovery rests upon the equitable theory that a contract to pay for services rendered is implied by law for reasons of justice. … However, it is well settled that there is no equitable basis for an implied-in-law promise to pay reasonable value when the parties have an actual agreement covering compensation."  In short, if a contract covers the disputed work, no further recovery can be made on the theory of quantum meruit.  However, here, there existed a genuine issue of material fact as to whether the change orders became part of N443.  This left the issue of whether work performed under the change orders was covered by a contract.  The district court thus erred in granting summary judgment on CSC's quantum meruit and unjust enrichment claims.
        Tosco also appealed the district court's summary judgment that it was not entitled to a refund of any of the two million dollar payment.  The USCA reversed.  The parties did not dispute the district court's finding that the payment was a bonus.  Tosco admitted that the payment was outside the contract between the parties and that it had no obligation to pay it.  Tosco also admitted that there was no written agreement that the payment was subject to refund.  The district court found that even Tosco's records seem to bear out CSC's position and the fact that the savings contemplated by the parties in their discussions and in McDaniel's [Tosco employee] sce-narios were achieved."  However, the USCA found that the district court did not address the evidence presented by Tosco's expert as to the amount of benefits received.  Although the evidence was not strong, taking all the evidence regarding benefits received in the light most favorable to Tosco, the nonmovant, Tosco had raised a genuine issue of material fact as to the amount of benefits derived from CSC's projects.  Summary judgment was thus inappropriate.

 2)  GOVERNMENT CONTRACTS: Salzano Engineering, Inc. v. Nielsen-Dillingham Builders, Inc., 99-56963 (9th Cir. Sept. 28, 2001) (unpublished). Wardlaw, Paez, and Tallman, Circuit Judges.  Salzano Engineering and Nielsen-Dillingham Builders entered into a subcontract in July 1996 under which Nielsen agreed to pay Salzano for labor, material, services, and equipment provided in connection with Nielsen's contract to construct a wastewater treatment plant in National City, California.  Salzano sued, alleging that Nielsen failed to pay under the subcontract.  The District Court for the Southern District of California, Judge Moskowitz presiding, entered judgment for Salzano for $61,005.73.  The USCA affirmed.  The only issue on appeal was whether the district court abused its discretion in denying Salzano's motion under FRCP 60(b)(3) and (6).  Salzano sought an order allowing it to examine certain letters Nielsen sent to the magistrate who adjudicated the dispute.  The district court ruled that it lacked jurisdiction to decide Salzano's Rule 60(b) motion.  The denial of a motion to vacate under Rule 60(b) is a separately appealable final order.  The appeal brings before the court only the order denying the motion, not the merits of the underlying judgment.  Rule 60(b)(6), in particular, is used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment.  As the parties consented to proceed before a magistrate for all pur-poses, the district court held that it lacked jurisdiction to decide the Rule 60(b) motion.  The USCA agreed and found no abuse of dis-cretion.

3)  TAXATION: Harpham v. CIR, 01-70424 (9th Cir. Sept. 24, 2001) (unpublished).  Hug, Pregerson, and Wardlaw, Circuit Judges.  Harpham appealed pro se the Tax Court's decision denying his petition for redetermination of federal income taxes for 1996.  The USCA affirmed with sanctions.  First, it found frivolous Harpham contention that his wages were not subject to federal income tax.  The Sixteenth Amendment authorizes a direct non-apportioned income tax on resident citizens.  Compensation for labor or services, paid in the form of wages or salary, is income subject to taxation.  Harpham is a taxpayer subject to federal tax laws and income tax.  Second, the Tax Court imposed sanctions against Harpham pursuant to 26 USC Sec. 6673(a)(1), after determining that Harpham had filed the petition to delay tax collection.  Harpham did not challenged that ruling on appeal.  The United States requested $4,000 as a sanction under Fed. R. App. P. 38.  Concluding that the appeal was frivolous, the USCA granted the government's request.

4)  BANKRUPTCY: In re Seitter, 00-16507 (9th Cir. Sept. 20, 2001) (unpublished).  Hug, Pregerson, and Wardlaw, Circuit Judges.   The District Court for Arizona, Judge McNamee presiding, dismissed Demo's appeal from a decision in an adversary proceeding for failing to file copies of the record on appeal and also denied his motion to proceed in forma pauperis.  The USCA affirmed.  Because the district court found that Demos acted in bad faith and provided unsatisfactory reason for failing to file copies of the record on appeal, the district court did not abuse its discretion by dismissing his appeal from the bankruptcy court.  Because Demos' annual income was above the poverty threshold and his debts modest, the district court did not abuse its discretion in finding that Demos was able to pay the costs of providing copies of the record on appeal.  The district court thus did not abuse its discretion by denying Demos' motion to proceed in forma pauperis.

5)  TAXATION: Klunder v. USA, 00-35263 (9th Cir. Sept. 26, 2001) (unpublished).  Kozinski and Gould, Circuit Judges, and Schwarzer, District Judge.  A taxpayer may be fined $500 for filing a tax return which does not contain information on which the sub-stantial correctness of the self-assessment may be judged, and the individual has filed that return due to "a position which is frivolous."  26 USC Secs. 6702(a)(1)(A), (a)(2)(A).  As Klunder's returns for 1995 and 1996 included no line items other than the amount of taxes he claimed he owed, the USCA agreed with the District Court for the Western District of Washington, Judge Rothstein presiding, that his returns did not contain information on which the substantial correctness of the self-assessment could be judged.  The USCA also agreed that Klunder's position that the Fourth Amendment justified his refusal to file a nearly blank return was "frivolous" under Sec. 6702)(a)(2)(A).  Reporting requirements have been upheld against Fourth Amendment attacks.  Cal. Bankers Ass'n v. Shultz, 416 US 21 (1974).  The USCA thus affirmed the district court's award of two $500 fines under Sec. 6702.  Finally, the district court did not err in rejecting Klunder's argument that Sec. 6702 unconstitutionally deprives him of a right to challenge reporting requirements.  Individuals can bring legitimate constitutional challenges to reporting requirements without violating Sec. 6702 because the court will "evaluate the taxpayer's position in terms of its legal underpinnings" before finding it "frivolous." 

6)  BANKRUPTCY: In re Bentz, 00-16516 (9th Cir. Sept. 20, 2001) (unpublished).  Hug, Pregerson, and Wardlaw, Circuit Judges.   Bentz appealed pro se from a Bankruptcy Appellate Panel's decision affirming a bankruptcy court's finding that Bentz's liability to Stack was nondischargeable under 11 USC Sec. 523(a)(4).  The USCA found jurisdiction under 28 USC Sec. 158(d) and affirmed.  It noted that Stack had standing under 29 USC Sec. 1132(a)(3) because the relief he sought was equitable in nature.  Thus the BAP did not err in affirming the bankruptcy court's dischargeability determination.

7)  BANKRUPTCY: In re Pope, 99-56462 (9th Cir. Sept. 20, 2001) (unpublished).  Choy, Skopil, and Farris, Circuit Judges.  George and Gina Pope filed for bankruptcy.  George's former wife, Teresa, also filed for bankruptcy and opposed the sale of property that remained undivided pending their marital property settlement.  The bankruptcy judge dismissed Teresa's petition, ordered the property sold, and limited her future filings.  The Bankruptcy Appellate Panel ("BAP") affirmed.  The USCA affirmed.  First, the BAP correctly reasoned that the bankruptcy court had jurisdiction over George's property even though the state court had not yet fully adjudicated the marital property settlement.  Under California law, until there is a lawful division of property, all community property is property of the bankruptcy estate.  In re Mantle, 153 F.3d 1082 (9th Cir. 1998), explained that even though the state court adjudicating the divorce had not yet divided the property, "the proceeds from the sale of the community property house remained community property, and thus should have been considered property of the bankruptcy estate."  Second, the BAP also correctly affirmed the sale of the property on the ground that appellants failed to preserve their rights by obtaining a stay of the sale.  When property is sold to a good faith purchaser, the sale may not be modified or set aside unless the sale had been stayed during the pendency of the appeal.  A request for a stay is insufficient—the stay must have been obtained to prevent rendering an appeal moot.  Third, Teresa argued that the dismissal of her petition violated due process by denying her access to the courts.  The record indicates, however, that Teresa moved to dismiss her petition and consented to the dismissal.  The USCA concluded that the bankruptcy court did not err by granting her motion after ensuring that she consented to the dismissal.  Fourth, the appellants did not cite any events that would lead a reasonable person to conclude that the assigned judge in this case lacked impartiality.  The USCA agreed with the BAP that adverse rulings were not a sufficient basis for recusal.  Finally, following numerous filings by the appellants, the bankruptcy court granted the trustee's motion for a vexatious litigant order.  Such an order is clearly permitted, providing that the litigants received proper notice, the record indicates a history of numerous frivolous or harassing filings, and the order is not overly broad or restrictive.  As all of these requirements were met in this case, the USCA affirmed entry of the order

8)  BANKRUPTCY: Nasr v. De Leon, 99-56710 (9th Cir. Sept. 4, 2001) (unpublished).  Hug and B. Fletcher, Circuit Judges, and King, District Judge.
       The Trustee for the bankruptcy estate of Hill Top Developers and RHI Holdings (collectively, the "Debtor Corporations"), intervened in a suit against Geary, the Debtor Corporations' former officer / director, and his affiliates (the "Geary Defendants") filed by Nasr, the trustee of a trust created by Reeder, the sole shareholder of the Debtor Corporations.  In the original complaint, Nasr sought recovery of 42 properties owned by the Debtor Corporations (the "Properties") he alleged were transferred fraudulently to the Geary Defendants.  In his Complaint-in-Intervention, the Trustee asserted against the Geary Defendants state law claims of breach of fiduciary duty and usurpation of corporate opportunity, and avoidance claims under Bankruptcy Code Secs. 544 and 548.  On motions for summary judgment, the District Court for the Central District of California, Judge Tevrizian presiding, held that the Trustee's claims were time-
barred and granted summary judgment to the defendants-appellees.  The USCA vacated and remanded as to the state law claims and reversed as to the avoidance claims.
      With regard to the state law claims, the USCA agreed with the district court that the three-year statute of limitations for fraud actions set forth in California Code of Civil Procedure Secs. 338(d) governed, as the gravamen of the state law claims was fraud.  The USCA also agreed with the district court that the Trustee's Complaint-in-Intervention did not relate back to the filing date of the origi-nal complaint as there was no identity of interests between Nasr and the Trustee.  However, the USCA disagreed with the district court's determination of when the state law claims accrued.  The district court determined that the limitations period commenced no later than June 3, 1993, the date that Geary resigned his positions with the Debtor Corporations.  Using this date to calculate the limitations period, the Trustee had until June 6, 1996, to file the state law claims.  The district court thus held that the state law claims, which were filed on November 25, 1996, were time-barred.  The Trustee maintained that the district court ignored the "discovery rule exception" to the general accrual rule.  Under California law, accrual of a cause of action is postponed "until the plaintiff discovers, or has reason to discover, the cause of action."  A plaintiff discovers the cause of action when he at least suspects that someone has done something wrong to him, "wrong' being used in accordance with its lay understanding.  The Trustee maintained that Geary controlled the Debtor Corporations and purposely structured the transfers of the properties such that the fraudulent nature of the transfers was not discoverable until the trustee in bankruptcy took over the accounts and records of the debtor.  The Trustee steps into the shoes of the Debtor Corporations in bringing the claims.  Thus, it matters not only when the Trustee discovered the claims, but also when the Debtor Corporations discovered them.  Since Reeder was in sole control of the Debtor Corporations until the conversion of the bankruptcy cases, his knowledge of the fraud was imputable to the Debtor Corporations and, in turn, to the Trustee.  The district court erred in ruling as a matter of law that the state law claims accrued upon Geary's resignation from the Debtor Corporations on June 3, 1993.  Given that Geary intentionally structured the transfers of the Properties so as to elude discovery, his fraud did not automatically be\come discoverable immediately after he resigned.  It was reasonable to infer that time and effort was required to discover the fraudulent scheme after Geary relinquished control of the Debtor Corporation.  How much time elapsed before discovery is a question of fact.  The record discloses that by November 1993, Reeder had filed fifteen "negative pledge agreements" against some of the transferred properties apparently in an attempt to slander the title of the Geary Defendants.  The filings are a significant clue as to when discovery took place, but essential information about them is lacking.  The contents of the negative pledge agreements are not in the record, which prevents a definitive finding that the filings evidence discovery.  Moreover, the record did not indicate when Reeder filed the negative pledge agreements.  At least 15 negative pledge agreements had been filed by November 1993, but it is unclear whether they were filed on or after November 25, 1993.  If the negative pledge agreements were filed on or after November 25, 1993, then the filing of the Complaint-in-Intervention on November 24, 1996, timely asserted the state law claims.  Otherwise, the state law claims were untimely.  Questions of fact thus precluded summary judgment.  The USCA thus vacated the district court's grant of summary judg-ment on the state law claims and remanded for further proceedings on the issue of accrual.
        The USCA also reversed the district court's grant of summary judgment on the avoidance claims.  Mosier v. Kroger Company, 65 F.3d 778 (9th Cir. 1995), controls when the statute of limitations on the Trustee's avoidance claims commences.  That is, where a debtor-in-possession in a Chapter 11 bankruptcy case is replaced by a trustee after conversion into a Chapter 7 proceeding—as was the case here—the limitations period for avoidance claims commences on the date the Chapter 11 petition was filed.  The USCA's dis-agreement with the district court as to the avoidance claims was in regard to the doctrine of equitable tolling.  The district court held as a matter of law that the limitations period was not equitably tolled while the Trustee investigated whether he could bring avoidance claims against the Geary Defendants shortly after his appointment.  The limitations period in Sec. 546(a)(1), the statute of limitations governing the avoidance claims, is subject to equitable tolling.  The equitable tolling doctrine holds that the limitations period does not run while a party is ignorant of a wrong without any fault or lack of diligence on his or her part.  A district court may grant summary judgment if the uncontroverted evidence irrefutably demonstrates that a plaintiff discovered or should have discovered the fraud but failed to file a timely complaint.  The district court found the Trustee lacking in diligence given that by July 1995, the Debtor Corporations had filed in the bankruptcy court an application to employ counsel in which they refer to the Geary Defendants' wrongful control over the Properties.  The Trustee filed his initial Complaint-in-in Intervention over a year later, and the First Amended Complaint-in Intervention (which asserted the avoidance claims for the first time) about an additional half-year after that.  Because the parties do not dispute the facts and the record is sufficiently developed, the USCA held as a matter of law that the Trustee acted diligently and that the doctrine of equitable tolling applies.  A bankruptcy trustee must investigate the affairs of the debtor to ascertain whether any claims could be brought on behalf of the parties in interest.  Here, the Trustee investigated the transfer of the Properties soon after his appointment.  He reviewed a copy of Nasr's complaint and the filings in the bankruptcy court.  He met with Reeder and the Debtor Cor-porations' former bankruptcy counsel.  The Trustee had a little over four months after his appointment to discover and file the avoidance claims.  Within this four-month period, the Trustee was burdened with a number of responsibilities in addition to pursuing claims against the Geary Defendants, including overseeing the pending bankruptcy case and an unrelated milti-district litigation in the District of Arizona.  Adding to the burden was the fact that only $45,000 in funds remained in the estate at the time.  Given the complexity of the case, the size of the record, the likelihood that Geary structured the transfers of the Properties to avoid discovery of his alleged fraud, and the limited resources available to the Trustee, the Trustee acted diligently in insisting on a thorough investigation before using the estate's limited funds to pursue the avoidance claims.  The USCA thus reversed the district court's grant of summary judg-ment on the avoidance claims.

9)  BANKRUPTCY: In re Voicemail International, 00-15560 (9th Cir. Sept. 21, 2001) (unpublished).  Wood, Kozinski, and O'Scannlain, Circuit Judges.
       ItalCableSpA ("Ital") appealed the Bankruptcy Appellate Panel's reversal of the judgment of the bankruptcy court.  Ital maintained that a contingent payment clause in its contract with Envoy Global constituted illegal forfeiture.  Under Oregon law, forfeiture clauses are treated a liquidated damages clauses whose enforceability is governed by Sec. 72.7180(1) of the Oregon Revised Statutes:  "Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in light of the anticipated or actual harm caused by the breach, the difficulties of the proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy.  A term fixing unreasonably large liquidated damages is void as a penalty."  Ital, as the party seeking to avoid enforcement of the clause, bears the burden to prove that the clause constitutes an illegal penalty.  Ital did not meet its burden in the bank-
ruptcy court to show that the forfeited amount was unreasonable in light of the anticipated harm from a breach, the difficulties of proof and loss and the inconvenience of obtaining an alternative remedy.  The bankruptcy court did not clearly err in finding that the forfeiture clause was a valid liquidated damages provision.  With respect to the substituted performance issue, the USCA upheld the BAP's reversal of the bankruptcy court for the reasons state in the BAP's memorandum decision.

10)  MILLER ACT BOND:  USA ex rel North Star Terminal & Stevedore Company v. Nugget Construction, Inc.  00-35230 (9th Cir. Sept. 27, 2001) (unpublished).  Schroeder, T.G. Nelson, and Silverman, Circuit Judges.
       Nugget Construction, Inc. and its Miller Act surety, ("NCI"), appealed the summary judgment entered for claimants against NCI's Miller Act bond by the District Court for Alaska, Judge Holland presiding.  Upon reviewing the matter de novo, the USCA reversed.  USA v. Aetna Casualty & Surety Company (Conveyor Rental), 981 F.2d 448 (9th Cir. 1992), reviewed the factors supporting a finding of subcontractor status.  Of the 13 listed factors, most clearly do not support such a finding as to Spencer Rock Products ("SRP").  Although SRP supplied almost all the rock and its contract with NCI represented over 40% of NCI's total contract cost, those factors simply do not counterbalance the others.  Most notably, SRP was not involved in any other portion of NCI's overall contract and the product supplied was in no way unique or complex.  Of the factors listed in Conveyor Rental tending to support a materialman status, only two weigh against finding such a status.  The material did not come from pre-existing inventory and the contract between SRP and NCI represented a substantial portion of NCI's total contract cost.  Still, those factors were not determinative as the many other factors supporting materialman status outweighed them.  The Support Agreement did not affect this analysis.  NCI agreed to provide help to SRP so that SRP could complete the contract.  In so doing, NCI may have exposed itself to direct suit by SRP's suppliers (but the USCA expressed no opinion on this issue as it was not before the court).  The agreement did not, however, change SRP's involvement in the project, nor require it to do any more than it had originally agreed to do.  SRP continued to be a materialman. 

11)  INSURANCE: Lawshe v. Amerus Life Insurance Company, 00-15643 (9th Cir. Sept. 26, 2001) (unpublished).  Politz, W. Fletcher, and Fisher, Circuit Judges.
       The District Court for the Eastern District of California, Judge Damrell presiding, granted summary judgment to defendant AmerUs Life Insurance Company.  Lawshe appealed.  Since contradictory statements by AmerUs created genuine issues of material fact as to the terms of the insurance policy and as to whether a proper notice of lapse had been sent to the correct address, the USCA reversed the judgment.
       Lawshe was the named beneficiary on a policy issued by AmerUs on the life of her father.  Following his death, AmerUs refused to pay off on the policy, claiming it had lapsed eight days prior to his death, when a 60-day grace period ended with no premium payment having been received.  Lawshe sued AmerUs, alleging that she was entitled to the policy's $500,000 death benefit.  During the course of the pleading and discovery stages of the litigation, AmerUs made a series of admissions that became the focus of the present appeal.  First in its answer to Lawshe's complaint, AmerUs admitted that the governing policy was the policy attached to the complaint.  Second, it admitted in its answer that the insured, pursuant to the terms of the policy, paid all scheduled premiums of $1875 on a quarterly basis.  Finally, in its initial interrogatory responses, AmerUs admitted that the Notice of Pending Lapse was sent to a wrong address for the policy holder.  AmerUs moved for summary judgment, and in support of its motion, offered a declaration of a company official that contradicted each of the admissions.  First, attached to the declaration as an exhibit was a copy of a computer-recreated policy that was different from the policy attached to the complaint.  The policy attached to the complaint was a computer-recreated policy that had been provided to Lawshe by AmerUs after her father's death but prior to the beginning of the litigation.  The declara-tion stated that AmerUs had subsequently discovered that its first computer-recreated policy was not the true policy.  Second, the declaration contradicted the admission in the answer that all premium payments were made, stating instead that the policyholder made only 19 of 21 planned premium payments.  Finally, the declaration contradicted the admission regarding notice, it stated that the re-sponse given in AmerUs' initial interrogatory responses for the address at which Notice of Pending Lapse was sent was incorrect.  AmerUs said that the erroneous interrogatory answer was the result of reliance on the company's paper files, which did not show an updated address.  In connection with the declaration, AmerUs produced a computer tape purportedly demonstrating that the change of address had been entered into the company's computer system and a copy of an annual statement from the files of the family's agent that purportedly showed the address change.  The declaration states that the company retained no copies of the notices actually sent out, but the company produced microfiche copies of computer-generated reports sent to the agent indicating that lapse was pending and that a notice had been mailed to the policyowner.  AmerUs also introduced the deposition testimony of the agent that he had tele-phoned and faxed to the family notice of the lapse, though the agent also give apparently inconsistent testimony that the family had no telephones.  In each instance, the difference between the initial admission and the subsequent contradiction created potentially signifi-cant consequences in the litigation.  First, the policy attached to the complaint and initially admitted to be correct by AmerUs contained a different Table of Guaranteed Maximum Insurance Rates, listing rates lower than the rates applicable in the policy that AmerUs later claimed was the governing policy.  If the table contained in the policy attached to the complaint is correct, Lawshe argues, the policyholder paid an overcharge large enough to keep the policy in force until Lawshe's father died, and AmerUs is not entitled to judgment.  Similarly, if the payment admission was correct and AmerUs had received three more payments than it now contends its records indicate, the cash value of the policy may have been sufficient to extend the policy beyond the date of the insured's death.  Finally, if the notice admission was correct and the notice of impen-
ding lapse was not sent to the policyholder at the correct address, AmerUs was in violation of the express terms of the policy and in breach of the covenant of good faith and fair dealing implied into every insurance contract under California law.  There may also be a genuine dispute about the content of the notice of impending lapse, as well as the address to which it was sent.
       Lawshe also argued that AmerUs should be bound to its admissions, in the sense that the facts admitted must be taken to be conclusive.  However, in her district court opposition to summary judgment, Lawshe never argued that AmerUs had made binding admissions.  While admissions in pleadings are generally binding on the parties and the court, where an applicant raises for the first time on appeal an argument that the other party should be bound by an admission in that party's pleadings, the argument is waived.  "Normally, failure to contend that an opposing party's admission barred entry of conflicting evidence is a waiver of the argument that the issue was conclusively settled."  American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir. 1988).  Having never brought the admissions to the attention of the district court and the opposing party, Lawshe may not seek to bind AmerUs to its initial admissions.
 Lawshe next argues that even if AmerUs is not conclusively bound to its admissions, its contradictory statements at least created genuine issues of material fact that should have defeated summary judgment.  The USCA agreed, at least as to the issues of which policy is the governing policy and whether proper notice of lapse was sent to the correct address.  The USCA did not, however, reach the issue of the admission regarding the payments of premiums.  That issue was not raised in the district court and thus was not properly before the USCA.  The USCA did not offer a view as to whether the district court should, on remand, allow Lawshe to raise this issues.  Under Huey v. Honeywell, 82 F.3d 327, 333 (9th Cir. 1996), "When a pleading is amended or withdrawn, the superseded portion ceases to be a conclusive judicial admission; but it still remains as a statement once made by an authorized agent, and as such it is competent evidence of the facts stated, though controvertible, like any other extrajudicial admission made by a party or his agent."  If the initial admission was made without adequate information, "that goes to its weight, not to its admissibility."  Id.  In the instant case, the admissions that the governing policy was the policy attached to the complaint and that the notice of lapse was sent to the wrong address remains evidence in the case and weighs against AmerUs's later contradictory statements.  The USCA did not hold that a factual conflict produced entirely by one party's contradictory statements necessarily renders summary judgment unavailable.  It may be that the earlier admissions can be explained to such a degree that there will be no genuine issue of material fact, but on the record the USCA could not say that this had been done.  Here, the record as to the policy consists of AmerUs' admission that the policy attached to the complaint was the true policy, and its contradicting statement that a different, computer-generated policy was the true policy, and its reliance on the copy of a policy found by Lawshe's mother that matched the computer-generated policy.  It is possible that the policy found by Lawshe's mother is the true policy, but the USCA noted that it is not uncommon for there to be superseding or replacement policies and for a survivor not to know whether a found policy is the true policy.  The record as to the notice of policy lapse consists of admission, an inconsistent computer-generated notice of lapse, and apparently internal inconsistent statements by the agent.  These conflicts raise genuine issue of material fact as to which policy is the governing policy and whether a sufficient notice of lapse was sent to the correct address.

12)  INSURANCE:  International House of Pancakes v. Twin City Fire Ins. Co., 00-55013 (9th Cir. Sept. 26, 2001) (unpublished).  Rymer and Rawlinson, Circuit Judges, and Pogue, U.S. Court of International Trade Judge.
       Following entry of judgment after trial in the District Court for the Central District of California, Judge Rafeedie presiding, the International House of Pancakes ("IHOP") appealed several aspects of the trial court's jury instructions and its refusal to include a question on the special verdict form requiring a determination of IHOP's breach of contract claim.  Defendant Twin City Fire Insurance Company maintained that IHOP waived its right to appeal both the jury instructions and the special verdict form.
       The USCA agreed.  The Circuit's strict interpretation of FRCP 51 precluded review of jury instructions unless a proper objection had been made in the district court.  In addition, the Circuit recognizes only a limited exception to Rule 51 for "futile formal objections."  IHOP maintained that the district court was aware of its position through objections made in chambers, pretrial briefs and proposed jury instructions.  Moreover, IHOP claimed that the court repeatedly disregarded its position and, thus, any objections would have been futile formalities.  However, the USCA found it unnecessary to consider whether an objection would have been a futile formality because IHOP expressly waived its right to appeal.  On the last day of trial, the district court asked counsel for both IHOP and Twin City whether they had reviewed all the revised jury instruction.  Both counsel said they had and that the instructions were satisfactory.  At that time not only did IHOP have an opportunity to object to the jury instructions, but, rather than stating its disagreement with the instructions for the record, IHOP expressly accepted the court's instructions.  Although the Circuit does not require a formal objection where such an objection would be futile, the objecting party may not specifically acquiesce to the formulation of the instruc-tions and then argue that an objection would be a futile formality.  By agreeing that the instructions were "satisfactory," IHOP expressly waived its right to appeal the formulation of those jury instructions.
      Federal Rule of Civil Procedure 49 requires the parties to assert their objections to the court's special verdict form before the jury retires for deliberations.  Objections must be sufficiently specific and formal to put the court on notice that it is committing an error of law or an abuse of discretion.  USA v. Parsons Corp., 1 F.3d 944 (9th Cir. 1993), distinguishes between a party's suggested changes to a special verdict form and formal objections.  In order to preserve an argument for appeal over the wording of a special verdict form, the objecting party must make clear that the court would be committing an error of law or an abuse of discretion if it did not adopt that party's approach.  Twin City argues that IHOP did not properly object to the special verdict form and, thus, waived its right to appeal.  The USCA agreed.  As in Parsons, IHOP's counsel indicated that "We do have one question."  However, merely asking a question does not imply that the judge erred as a matter of law or committed an abuse of discretion.  IHOP's question was directed at the lack of reference to breach of contract in the special verdict form.  In response to the court's statement that in this case the breach of contract and the breach of implied covenant of good faith were one and the same, IHOP's counsel answered "Yes and no, Your Honor.  It may or may not be."  Such a response does not point out errors of law to the court.  Rather, it is "quibbling about matters within the court's discretion," because "yes and no," "may or may not be" implies that the court could be right and has discretion in this area.  HOP further argues that no formal objection was necessary because the trial court was aware of IHOP's objections.  Specifically, IHOP relies on comments made in response to the court's discussion of the similarity between breach of contract and breach of the implied covenant of good faith.  IHOP counsel state that "As Mr. Guslani noted in arguing, this is a correct statement, I think of the law, that if two people have a reasonable disagreement.  We don't think its reasonable.  If they have a reasonable agreement that may mean there is no bad faith."  Although IHOP argues that this statement is an accurate expression of the law and the court clearly understood IHOP's objection from this statement, it is not clear from the record that the court was made aware of IHOP's position.  Rather, the court asked IHOP "What is your point here?"  IHOP's confusing response together with its non-assertive language, were mere "suggestions" and thus, did not alert the court to specific objections.  Rule 49 also requires objections to be stated before the jury retires to deliberate.  It is undisputed that IHOP did not comment on the special verdict form until after the jury retired for deliberations.  Although IHOP attempted to argue that it did not have an opportunity to object before the jury retired and that such an opportunity was implicit in Rule 49, IHOP presented no evidence to support its position.  Nothing in the record indicated whether IHOP did nor did not have an opportunity to object to the special verdict form.