1)  SECURITIES LAW:   SEC v. J.T. Wallenbrock & Assocs. ,  02-55481 (9th Cir. Dec. 12, 2002). Promissory notes purportedly secured by accounts receivable of Malaysian manufacturers constituted securities regulated by the Securities Acts of 1933 and 1934. Goodwin, Rymer, and McKeown (author), Circuit Judges.  R. Rosen of Los Angeles, CA, for the appellants; G. Prezioso of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  SECURITIES LAW / CLASS ACTIONS / SETTLEMENTS:  Knisley v. Network Associates, 01-16540 (9th Cir. Dec. 6, 2002).  A shareholder covered by a class action settlement, but who did not participate in the settlement, lacked standing to challenge an award of attorneys' fees to the firm representing the shareholders;  the non-participating shareholder thought the award excessive in light of what he perceived to be the measly sum shareholders received in the settlement the firm negotiated.  Kozinski (author) and McKeown, Circuit Judges, and Fitzgerald, District Judge.  J. Hicks of San Francisco, CA, for the appellants; R. Heimann of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  TAXATION:  Farrell v. USA, 01-15435 (9th Cir. Dec. 24, 2002).  Income earned by a taxpayer on Johnson Island, a U.S. insular possession, is neither excludable from gross income as "foreign earned income" under Sec. 911 of the Internal Revenue Code, nor income derived from a source within a "specified possession" as defined under Sec. 931 of the Code.  Rymer, Thomas, and Silverman (author), Circuit Judges.  K. McWade of Kailua, HI, for the plaintiffs-appellants; K. Rosenberg of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  TAXATION:  Microsoft Corp. v. CIR, 01-71584 (9th Cir. Dec. 3, 2002).  Master copies of computer software were deductible "export property" under now-repealed Internal Revenue Code Sec. 927(a)(2)(B), for purposes of a corporation's claimed "export property" tax deductions.  Thompson (author) and Rawlinson, Circuit Judges, and Schwarzer, District Judge.  J. O'Brien of Chicago, IL, for the petitioner;  A. Tebbets of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  BANKRUPTCY LAW:  In re Zimmer, 01-56950 (9th Cir. Dec. 24, 2002).  A wholly unsecured lienholder is not entitled to the protections of the anti-modification clause of 11 USC Sec. 1322(b)(2).  D.W. Nelson (author) and T.G. Nelson, Circuit Judges, and Schwarzer, District Judge.  S. Houbeck of Cardiff, CA, for the appellant;  M. Wintringer of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  BANKRUPTCY:  In re Markus, 01-17279 (9th Cir. Dec. 17, 2002).  An untimely complaint objecting to the discharge of a judgment creditor did not relate-back to a timely motion objecting to the debtor's discharge;  moreover, that motion did not comply with the pleading requirements under Bankruptcy Rule 7008(a) or Fed. R. Civil Proc. 8(a);  litigation expenses cannot be shifted when sanctions are imposed under Bankruptcy Rule 9011 on the court's initiative.  Rymer (author), Thomas, and Silverman, Circuit Judges.  E. Abrams of Walnut Creek, CA, for the appellant;  M. Gschwend pro se.(Download the full text of this decision at www.cc9.uscourts.gov/)

7)  BANKRUPTCY LAW:  In re Sylmar Plaza, 00-57210 (9th Cir. Dec. 30, 2002).  A plan of reorganization can be found to have been proposed in good faith under 11 USC Sec. 1129(a)(3), where its purpose is to enable the debtors to "cure and reinstate" an obligation, thus avoiding contractual liability for a default interest.  Thompson and Rawlinson, Circuit Judges, and Schwarzer (author), District Judge.  E. Wolkowitz of Los Angeles, CA, for the appellant;  B. Spiegel of Los Angeles, CA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  FOREIGN SOVEREIGN IMMUNITIES ACT:  Altmann v. Republic of Austria,  01-56003 (9th Cir. Dec. 12, 2002). The Foreign Sovereign Immunities Act conferred jurisdiction in a California district court over the Republic of Austria and the state-owned Austria Gallery in a suit alleging the wrongful appropriation of six Gustav Klimt paintings from their rightful heirs prior to and during World War II.  Wardlaw (author) and W. Fletcher, Circuit Judges, and Whyte, District Judge.  S. Cooper of Los Angeles, CA, for the appellants;  E. Schoenberg of Los. Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

 9)  ENVIRONMENTAL LAW:  California Trout, Inc. v. Federal Energy Regulatory Commission,  01-70787 (9th Cir. Dec. 16, 2002).  The Federal Energy Regulatory Commission acted within its authority in issuing annual licenses pursuant to the Federal Power Act ("FPA") for a power company project, even absent the licensee's compliance with the state water quality certification requirements of the Clean Water Act ("CWA");  the USCA noted that its ruling did not undermine the effectiveness of the CWA as both the CWA and FPA can function comfortably side by side because no new project license or license amendment can issue without compliance with the state certification requirement.  Thompson and Rawlinson, Circuit Judges, and Schwarzer (author), District Judge.  J. Slezak of Los Angeles, CA, for the petitioner;  T. Abendroth of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  ENVIRONMENTAL LAW:  Kootenai Tribe of Idaho v. Veneman, 01-35472 (9th Cir. Dec. 12, 2002).  The district court abused its discretion in granting a preliminary injunction against implementation of the U.S. Forest Service's Roadless Area Conservation Rule, which bans road building in roadless areas of the national forests;  however, the district court had discretion to permit environmental groups to intervene under Fed. R. Civ. P. 24(b) to assert an interest in the use, enjoyment, and conservation of roadless lands and to assert defenses of the Rule;  moreover, the intervenors could bring this appeal under Rule 24(b) and the plaintiffs had standing to challenge the Rule;  Judge Kleinfeld concurred in the majority's rejection of the Idaho Conservation League's and the Forest Service Employees for Environmental Ethics' intervention of right under Rule 24(a) and with the holding that the plaintiffs had standing to pursue this action;  but he dissented from the majority's treatment of permissive intervention under Rule 24(b) and in its reversal of the preliminary injunction.  Ferguson, Kleinfeld (dissenting in part), Gould (author), Circuit Judges.  D. Honnold of Bozeman, MT, for the intervenors-appellants; R. Ludwiszewski of Washington, DC, for plaintiffs-appellees Kootenai Tribe; A. Lance of Boise, ID, for the state plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  ENVIRONMENTAL LAW:  Madison v. Graham, 01-35145 (9th Cir. Dec. 23, 2002).  The USCA upheld the dismissal of a complaint seeking to have Montana's Stream Access Law declared unconstitutional on the grounds that it violated the plaintiffs Fourteenth Amendment substantive due process rights and was void for vagueness;  the claim that the statute precluded property owners from excluding others from their property was in reality a Fifth Amendment takings claim;  the plaintiffs alleged facts that gave rise only to a takings claim;  their attempt to avoid "takings" analysis by labeling the claim as a substantive due process claim did not change its nature.  Trott (author), T.G. Nelson, and Thomas, Circuit Judges.  S. Koehler of Denver, CO, for the appellants;  B. Morris of Helena, MT, for the defendants-appellees;  J. Goetz of Bozeman, MT, for the intervenors-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

12)  ENVIRONMENTAL LAW:  California v. Norton, 01-16637 (9th Cir. Dec. 2, 2002).  The federal government's suspensions of oil leases offshore the State of California are subject to consistency review by the State pursuant to the Coastal Zone Management Act, 16 USC Sec. 1456(c)(1)(A).  Schroeder, D.W. Nelson (author), and Reinhardt, Circuit Judges.  T. Sansonetti of Washington, DC, for the appellants;  E. Bruce of Washington, DC, for intervenors (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  ENVIRONMENTAL LAW:  Southwest Center for Biological Diversity v. U.S. Dept. of Agriculture, 00-17410 (9th Cir. Dec. 23, 2002).  Section 207 of the National Parks Omnibus Management Act, which creates a statutory exemption from the Freedom of Information Act, can apply to a case pending at the time that exemption was enacted, where no impermissible retroactive effect is found.  Canby (author) and Rymer, Circuit Judges, and Bertelsman, District Judge.  M. Millea of Phoenix, AZ, for the plaintiffs-appellants;  AUSA M. Collette of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  ENVIRONMENTAL LAW / SENTENCING:  USA v. Technic Services, Inc., 01-30057 (9th Cir. Dec. 23, 2002).  A private asbestos-remediation corporation and its secretary-treasurer were properly convicted of Clean Air Act and Clean Water Act violations;  however, an enhancement under Sentencing Guideline Sec. 3B1.3 for abuse of a position of trust was vacated;  the USCA held that, for purposes of Sec. 3B1.3, a person does not, without more, hold a position of public trust by virtue of his position as an employee of a private company that holds a government contract for hazardous material remediation work;  dissenting in part, Judge Fletcher thought that the majority's decision placed the formalistic definition of the employee's job over "the plain reality that he enjoyed a considerable public trust in performing a task that was critical to public health and safety and to the enduring well-being of a delicate environment."  B. Fletcher (dissenting in part), Alarcon, and Graber (author), Circuit Judges.  L. Pederson of Anchorage, AK, for the defendants-appellants;  J. Oesterle of Anchorage, AK, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  ENVIRONMENTAL LAW / DOUBLE JEOPARDY: USA v. Price, 02-10196 (9th Cir. Dec. 26, 2002).  As a county with a state and the United States are separate sovereigns, the Double Jeopardy Clause did not bar the defendant's federal criminal prosecution for a Clean Air Act violation, even though previously he had been assessed a county civil penalty for the same conduct of, violating county asbestos-removal regulations; those regulations mirrored federal standards.  Rymer, Thomas, Silverman (author), Circuit Judges.  D. Albregts of Los Vegas, NV, for the defendant-appellant;  M. Fisher of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  ENVIRONMENTAL LAW:  BedRoc Ltd. v. USA, 01-17080 (9th Cir. Dec. 30, 2002).  Sand and gravel are "valuable minerals" within the meaning of the Pittman Underground Water Act;  the now-repealed Act provided grants, or "patents," of federal public lands to people finding underground sources of water in Nevada deserts;  under the Act, patents reserved "all the coal and other valuable minerals" to the United States.  Hawkins, Graber (author), and Tallman, Circuit Judges. Lundgren of Cheyenne, WY, for the plaintiffs;  AUSA B. Welsh of Las Vegas, NV, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  ENVIRONMENTAL LAW:  USA v. Dahl,  01-50730 (9th Cir. The memorandum decision filed Oct. 11, 2002 has been redesignated an opinion filed Dec. 24, 2002).  The USCA rejected multiple arguments challenging the U.S. Forest Service's authority to charge a recreation fee and held that a conviction under 36 CFR Sec. 261.15 for failure to pay a fee required under the Recreational Fee Demonstration Program is an infraction, not a misdemeanor.  Reinhardt, Trott, and Silverman (author), Circuit Judges.  M. Barilotti of Los Olivos, CA, for the defendant-appellant;  AUSA S. McCaslin of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  ENVIRONMENTAL LAW / NATIVE AMERICAN LAW: Anderson v. Evans,  02-35761 (9th Cir. Dec. 20, 2002).  Where substantial questions remained as to whether the Makah Indian Tribe's whale-hunting plans would have a significant effect on the envi-ronment, the government violated the National Environmental Policy Act in failing to prepare an environmental impact statement prior to approving a whaling quota;  it is necessary that the federal action be reviewed in an EIS;  the federal defendants and the Tribe also did not satisfy the permit or waiver requirements of the Marine Mammal Protection Act of 1972 and must do so before any taking of a marine mammal.  Hill, Gould (author of Secs III & IV), and Berzon (author of Secs. 1 & II), Circuit Judges.  E. Giltzenstein of Washington, DC, for the plaintiffs-appellants;  R. Oakley of Washington, DC, for the defendant-appellee;  J. Arum of Seattle, WA, for the defendant-intervenor-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  EMPLOYMENT DISCRIMINATION:  Johnson v. Henderson, 01-16994 (9th Cir. Dec. 26, 2002). While it expressed hope that the U.S. Postal Service would make further efforts to clarify for employees such as the plaintiff their Equal Employment Opportu-nity rights and obligations, the USCA concluded that the doctrines of equitable tolling and equitable estoppel did not excuse the plaintiff's late filing of administrative claims prior to filing suit in federal court for alleged on-the-job sexual harassment;  still, the Postal Service should make it clear to its employees that complaining to one's supervisor, while a necessary and important first step, is not enough to preserve one's rights in court.  B. Fletcher (author), Arnold, and Rawlinson, Circuit Judges.  E. Franklin of Hayward, CA, for the plaintiff-appellant;  AUSA A. Tse of San Francisco, CA, the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  EMPLOYMENT DISCRIMINATION:  Rudebusch v. Hughes, 01-15287 (9th Cir. Dec. 9, 2002).  A university president was entitled to qualified immunity, in an action alleging that pay adjustments given to women and minority faculty violated equal protection;  the USCA could not agree that summary judgment was appropriate for all aspects of a Title VII claim as a material dispute of fact prevented it from determining whether the pay adjustments did more than attain a balance; the USCA thus remanded the claim for further consideration;  Judge Kleinfeld concurred in the majority's conclusion that the president, acting on behalf of the state, denied equal protection of the law to whites by categorically excluding them on account of their race from pay raises given to minorities;  he also concurred in the majority's conclusion that pay raises limited to minorities and females would not deny equal protection of the law, if they were narrowly tailored to remedy past discrimination and bring their salaries into parity with comparable persons of previously favored classes;  however, as the majority concluded, the raises here were not just for parity or a "catch-up." Judge Kleinfeld thought that the president was not entitled to qualified immunity because a reasonable university president would know that he could not con-stitutionally pay some people more than others based on a preference for their ethnicity or sex.  Rymer, Kleinfeld (dissenting in part), and McKeown (author), Circuit Judges.  T. Horne of Phoenix, AZ, for the plaintiffs;  J. Napolitano of Phoenix, AZ, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  EMPLOYMENT DISCRIMINATION / DAMAGES:  Lansdale v. Hi-Health Supermart Corp., 01-16017 (9th Cir.  Dec. 19, 2002).  The USCA affirmed a limitation of damages under 42 USC Sec. 1981a in a gender discrimination action, finding that Sec. 1981 is not unconstitutional despite plaintiff's equal protection, due process, separation of powers, and "province of the jury" argu-ments.  Stapleton, O'Scannlain, and Fernandez (author), Circuit Judges.  S. Montoya of Phoenix, AZ, for the plaintiff-appellant;  B. Cooper of Phoenix, AZ, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  EMPLOYMENT & INTERNATIONAL LAW:  Park v. Shin, 01-16805 (9th Cir. Dec. 17, 2002).  A Korean Deputy Consul General and his wife were not entitled to immunity under the Vienna Convention on Consular Relations for employment-related claims arising from plaintiff's tenure as a domestic servant, as the defendant's hiring and supervision of the plaintiff were not consular functions because the plaintiff was employed primarily as a personal domestic servant;  moreover, the employment-related acts allegedly committed by the defendants were not performed in the exercise of a consular function;  nor were the defendants entitled to sovereign immunity under the Foreign Sovereign Immunities Act of 1976 (FSIA), as the wife was not a government official and thus not a "foreign state" for purposes of the FSIA and the Deputy Consul was not acting within the scope of his official duties by employing the plaintiff.  Hawkins, Graber (author) and Tallman, Circuit Judges.  M. Agarwal of San Francisco, CA, for the plaintiff-appellant;  M. Meade of El Cerrito, CA, defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

23)  CONTRACTS / TORTS:  Commonwealth Utilities Corp. v. Goltens Trading & Engineering, 01-16614 (9th Cir. Dec. 16, 2002).  A repair contractor, in a claim for third-party contribution premised on joint tortfeasor liability, failed to establish evidence that an engine designer breached any standard of care; thus the contractor failed to set forth specific facts showing a genuine issue for trial as required by Fed. R. Civil Proc. 56.  Schroeder, Alarcon (author), and Fisher, Circuit Judges.  T. Roberts of Honolulu, HI, for the defendant-third-party-plaintiff-appellant;  R. Pierce of Saipan, MI, for the third-party-defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  PRODUCTS LIABILITY:  Geurin v. Winston Industries,  01-36092 (9th Cir. Dec. 30, 2002).  In a products liability action under State of Washington law, the dismissal of a third-party liability defense was improper where questions regarding employer and co-worker status should have gone to the jury, and the jury should have been instructed that if third-parties Spokane, Inc. and Moyer were employer and co-worker no part of the liability could be allocated to them;  actions that cause foreseeable harm constitute "fault" under Washington's proportionate liability statute, and that statute provides a basis for apportioning responsibility to the actor for that fault;  thus, the defendant is entitled under basic common law principles to attempt to prove that the "empty chairs" it has named are at fault because they acted or failed to act in a way that created a foreseeable risk of harm and ultimately caused injury to the plaintiff (except for any entity immune under Title 15).  Hill (author), Gould, and Berzon, Circuit Judges.  J. Crowe of Santa Monica, CA, for the defendant-appellant;  S. Cronin of Spokane, WA, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

25)  PRODUCT LIABILITY / PUNITIVE DAMAGES:  White v. Ford Motor Co., 99-15185 (9th Cir. Dec. 3, 2002).  In a product defect action based on the failure of a parking brake, a punitive damages award unconstitutionally punished the defendant for out-of-state conduct due to the district court's refusal to limit the jury to consideration of the interests of Nevada, where the harmful conduct took place;  the USCA added that it was troubled by the possibility that the jury award may also have been unduly influenced by the inflammatory closing argument of the plaintiff's attorneys and trusted that on remand the district court will take care to ensure that the proceedings are not tainted by inflammatory argument appealing to passion or prejudice;  Judge Graber concurred in the majority's opinion except as to Part 4 where she thought the majority failed to adhere to the Supreme Court's guidance in analyzing punitive damages; she thought the jury instructions on punitive damages were sufficient under Nevada law and that they were sufficient to meet the requirements of procedural due process in the context of the available procedures for review;  but, she thought the punitive damages were excessive as a matter of substantive due process;  in Judge Graber's view, the constitutional maximum was $23,054,350. Wood, Kleinfeld (author), and Graber (dissenting in part), Circuit Judges.  A. Frey of New York, NY, for the appellant;  D. Nomura of Reno, NV, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  TORTS / INTERNATIONAL LAW:  Husain v. Olympic Airways,  00-17509 (9th Cir. Dec. 12, 2002).  The district court did not clearly err in finding that an international airline passenger's death, due to asthma complications from exposure to smoke and a flight attendant's failure to help that passenger, was caused by an "accident" under Article 17 of the Warsaw Convention.  Reinhardt and Fisher, Circuit Judges, and Molly (author), District Judge.  S. Injijian of Oakland, CA, for the defendant-appellee;  A. Harakas of New York, NY, for the defendant-appellant.(Download the full text of this decision at www.cc9.uscourts.gov/)

26)  TORTS / SLANDER:  Rodriguez v. Panayiotou,  00-56923 (9th Cir. Dec. 3, 2002).  The defendant's statements in a magazine and television interview regarding a police officer's purported conduct during an undercover operation, were provably false assertions of fact not shielded as opinion under California law, and the litigation privilege did not apply;  dissenting, Judge Reinhardt thought that the majority's rule effectively allows officers to chill the speech of those who would expose the abuse of public authority, which is not permitted under California law.  Reinhardt (dissenting), Trott, and Tashima (author), Circuit Judges.  R. Thomas of Hermosa Beach, CA, for the plaintiff-appellant;  J. Tillotson of Dallas, TX, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  CIVIL PROCEDURE:  Snell v. Cleveland, Inc., 01-35957 (9th Cir. Dec. 4, 2002).  A district court may not, sua sponte, vacate a final judgment in a prior case not pending before that court because diversity jurisdiction in the prior case, though it existed, had been inadequately pled.  Trott, T.G. Nelson, and Thomas, Circuit Judges. Per Curiam.  G. Zadick of Great Falls, MT, for the appel-lant;  no appearance for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  QUIET TITLE ACT:  Leisnoi, Inc. v. USA,  02-35190 (9th Cir. Dec. 19, 2002).  A motion to intervene in a suit brought under the Quiet Title Act was properly dismissed as moot where United States filed a "disclaimer of interest in real property" prior to trial, and that disclaimer was confirmed by the district court;  under these circumstances, the plain terms of 28 USC Sec. 2409a(e) deprived the district court of jurisdiction.  Canby (author) and Graber, Circuit Judges, and Marshall, District Judge.  M. Schneider of Anchor-age, AK, for the appellant;  J. Fitzgerald of Washington, DC, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  SOCIAL SECURITY BENEFITS:  Frost v. Barnhart, 01-35580 (9th Cir. Dec. 19, 2002). An applicant for supplemental SSI benefits under Title XVI of the Social Security Act on the ground that he was impaired by paranoid schizophrenia and an obsessive-compulsive disorder may have met the requirements of Sec. 12.03 of the Listings of Impairments under the regulations applicable at the time of his hearing, but the administrative law judge improperly failed to address that section in making his disability finding;  dissenting in part, Judge Beezer thought that the correct standard to be applied on remand was that which was in effect at the time of the plaintiff's original hearing.  Beezer (dissenting in part), Gould (author), and Berzon, Circuit Judges.  E. Yanich of Olympia, WA for the plaintiff;  V. Chhagen of Seattle, WA, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

31)  MEDICAL BENEFITS:  Botsford v. Blue Cross & Blue Shield of Montana, 01-36019 (9th Cir. Dec. 23, 2002). The Federal Employees' Health Benefits Act completely preempted a state fraud claim brought under the Montana Unfair Trade Practices Act;  the claim alleged that Blue Cross violated the Act by misrepresenting the policy regarding reimbursement of non-participating providers.  Trott, T.G. Nelson (author), and Thomas, Circuit Judges.  A. Shelley of Washington, DC, for the appellants;  M. Lilly of Bozeman, MT, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  TOBACCO SETTLEMENTS:  Anderson v. Willden, 01-15986 (9th Cir. Dec. 18, 2002).  In an action brought by Nevada residents who allegedly suffered smoking-related illnesses for which they received state-administered medical care under the Medicaid program, the plaintiffs were precluded by 42 USC Sec. 1396b(d)(3)(B)(ii) from establishing any claim for their own accounts arising from the multi-state tobacco settlement reached between major tobacco companies and 46 states.  Canby and Rymer, Circuit Judges, and Bertelsman, District Judge.  Per Curiam.  H. Cavallera of Reno, NV, for the plaintiffs-appellants;  J. Albrecht of Reno, NV, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  WHISTLE-BLOWING:  Rivero v. San Francisco, 00-17113 (9th Cir. Dec. 20, 2002). The defendants could assert qualified immunity on appeal from a 42 USC Sec. 1983 action alleging termination of a city contract in retaliation for whistle-blowing, but on the merits were not entitled to such immunity where a reasonable person under the circumstances would know that their behavior violated clearly established law.  Beezer, Thomas, and W. Fletcher (author), Circuit Judges.  O. Martikan of San Francisco, CA, for the defendants-appellants;  R. Aiman-Smith of Oakland, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  INVOLUNTARY SERVITUDE / SENTENCING:  USA v. Veerapol, 00-50042 (9th Cir. Dec. 9, 2002).  Evidence of threats were sufficient to support a conviction for involuntary servitude under 18 USC Sec. 1584;  a "vulnerable victim" enhancement under Sentencing Guidelines Sec. 3A1.1(b)(1) was not double-counting;  the restitution order was timely and proper.  Hall, Thompson, and Wardlaw (author), Circuit Judges.  C. DeVito of West Hills, CA, for the appellant;  AUSA A. Alikhan of Los Angeles, CA, for the ap-pellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  FALSE CLAIMS ACT:  USA v. Kitsap Physicians Service, 01-36089 (9th Cir. Dec. 16, 2002).  The dismissal of a False Claims Act claim by summary judgment was proper where the plaintiff failed either to point to a specific false claim submitted by defendants, or to offer a sufficiently detailed description of one;  a qui tam action under the Act requires an actual false claim or sufficient evidence to identify one.  Browning, Fisher, and Tallman (author), Circuit Judges.  C. Stockmeyer of Tukwila, WA, for the plaintiff-appellant;  R. Homchick of Seattle, WA, for Kitsap Physicians Service. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  SECOND AMENDMENT:  Silveira v. Lockyer, 01-15098 (9th Cir. Dec. 5, 2002).  The text and structure of the Second Amendment demonstrate that it does not confer an individual right to own or possess arms;  a challenge to a California gun control statute on Second Amendment grounds was thus dismissed;  the USCA noted that its historical inquiry found that the Second Amendment was enacted in order to assuage the fears of Anti-Federalists that the new federal government would cause the state militias to atrophy by refusing to exercise its prerogative of arming the state fighting forces, and that the states would in the absence of the amendment, be without the authority to provide them with the necessary arms;  the amendment was enacted to guarantee that the people would be able to maintain an effective state fighting force—that they would have the right to bear arms in the service of the state; Judge Magill concurred in the result but not with all parts of the majority's decision;  he thought that because the claimants were not entitled to standing, it was unnecessary and improper to reach the merits of the Second Amendment claims or to explore the contours of the Second Amendment debate.  Reinhardt (author), Magill (concurring), and Fisher, Circuit Judges.  G. Gorski of Fair Oaks, CA, for the plaintiffs-appellants;  N. Palmieri of San Diego, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  VOTING RIGHTS ACT:  Arakaki v. Hawaii, 00-17213 (9th Cir. Dec. 31, 2002).  The State of Hawaii's requirement that trustees of the Office of Hawaiian Affairs be "Hawaiian", abridges the right to vote under the Fifteenth Amendment and violates the Voting Rights Act;  concurring, Judge Wallace thought the majority went beyond what was necessary to resolve the dispute when it ruled on the Fifteenth Amendment issue.  Wallace (concurring), Tashima (author), and Tallman, Circuit Judges.  G. Lau of Honolulu, HI, CA, for the defendants-appellants;  P. Hanifin of Honolulu, HI, for the plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  VOTING RIGHTS ACT / NATIVE AMERICAN LAW:  Old Person v. Brown, 02-35171 (9th Cir. Dec. 4, 2002).  A vote-dilution claim under Sec. 2 of the Voting Rights Act was not actionable where the totality of the circumstances did not establish dilution in the districts where American Indian plaintiffs resided;  concurring, Judge Noonan thought that without a doubt, past discrimina-tion may have discourage the minority from registering; but account should be taken—possibly by polling—of how many now have qualified to vote.  Noonan (concurring), Hawkins, and Gould (author), Circuit Judges.  L. McDonald of Atlanta, GA, for the plaintiffs-appellants;  AAG S. Bond of Helena, MT, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  NATIVE AMERICAN LAW:  Solomon v. Interior Regional Housing Authority, 01-35766 (9th Cir. Dec. 20, 2002).  The Indian preference requirements of Title 25 USC Sec. 450e(b) do not create a direct private right of action for Native Alaskans who unsuccessfully seek a job and a non-Indian is hired instead;  dissenting, Judge Fletcher thought the majority's position was contrary to settled precedent and effectively eviscerated a statutory preference duly enacted by Congress.  B. Fletcher (dissenting), Alarcon, and Graber (author), Circuit Judges.  M. Walleri of Fairbanks, AK, for the plaintiff;  T. Knutson of Anchorage, AK, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

40)  IMMIGRATION LAW:  Salta v. INS, 01-71537 (9th Cir. Dec. 30, 2002).  The Board of Immigration Appeals erred in applying presumptions and burdens of proof tailored to a statute requiring notice by certified mail, where notice had been given pursuant to an amended version of the statute allowing the use of regular mail;  thus because it held that the petitioner's lack of notice claim should be considered at an evidentiary hearing applying standards attuned to the amended statute, 8 USC Sec. 1229(a)(1), the USCA granted the petition for review  Bright, Hawkins (author), and W. Fletcher, Circuit Judges.  T. Laguatan of Daly City, CA, for the petitioner;  E. Molina of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

41)  IMMIGRATION LAW:  Dobrota v. INS, 01-71266 (9th Cir. Dec. 6, 2002).  The INS acted arbitrarily and in violation of due process notice requirements when it refused to reopen an alien's deportation proceedings where its notice efforts prior to ruling for deportation in abstentia were not reasonably calculated to reach the alien.  Wardlaw and Berzon (author), Circuit Judges, and Ishii, District Judge.  J. Alcorn of Irvine, CA, for the petitioner-appellant;  AUSA E. Durant of Washington, DC, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  IMMIGRATION LAW:  Li v. Ashcroft, 00-70157 (9th Cir. Dec. 5, 2002).  The petitioners were not entitled to asylum or withholding of removal for resisting China's coercive family planning practices, and any fear of persecution was not objectively reasonable;  dissenting in part, Judge Paez thought that because petitioner Li resisted when Chinese officials forcibly examined her "private parts" to determine whether she was pregnant and threatened her with forced abortion and sterilization, she qualified for asylum under Sec. 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996;  however, Judge Paez agreed with the majority's conclusion that petitioner Yu was not eligible for asylum or withholding of deportation under 8 USC Sec. 1231(b)(3)(A) or Article 3 of the UN's Convention Against Torture, because, although he claimed imputed persecution if he had married Li, he never married her;  he was not even present during her examination and was never confronted by family planning officials;  the threat of possible future sterilization does not rise to the level of persecution.  Wallace (author), Kozinski, and Paez (dissenting in part), Circuit Judges.  M. Karr of Sacramento, CA, for the petitioners;  G. Mack of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  IMMIGRATION LAW / BORDER ARRESTS:  USA v. San Juan-Cruz, 02-50138 (9th Cir. Dec. 23, 2002).  Conflicting statements regarding the defendant's rights to have the assistance of an attorney resulted in an unclear instruction on defendant's Miranda rights;  to the extent those rights were not clarified prior to the defendant's incriminating statements, the error was not harmless;  the denial of the motion to suppress was thus reversed.  D.W. Nelson (author) and T.G. Nelson, Circuit Judges, and Schwarzer, District Judge.  S. Setty of San Diego, CA, for the defendant-appellant;  AUSA O. Gutierrez of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  IMMIGRATION LAW / ALIEN SMUGGLING:  USA v. Matus-Leva, 01-50093 (9th Cir. Dec. 6, 2002).  The alien smuggling statute, 8 USC section 1324, does not violate Apprendi v. New Jersey, 530 US 466 (2000), and Sec. 1324's provision for an increased penalty for alien smuggling resulting in death is not void for vagueness due to the absence a separate mens rea requirement.  Kozinski and Gould (author), Circuit Judges, and Cebull, District Judge.  T. Burns of San Diego, CA, for the defendant-appellant;  AUSA D. Curnow of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  ILLEGAL RE-ENTRY / SENTENCING:  USA v. Carrillo-Lopez, 00-10631 (9th Cir. Dec. 20, 2002).  A native and citizen of Mexico appealed the 70-month sentence imposed following his guilty plea to illegal re-entry, in violation of 8 USC Sec. 1326;  he maintained that the district court improperly enhanced his sentence based on his prior conviction for an aggravated felony;  the USCA affirmed, holding that the aggravated felony provisions of the Sentencing Guidelines applied to the conviction;  under USA v. Jiminez, 258 F.3d 1120 (9th Cir. 2001), a term of imprisonment of the requisite length resulting from a probation violation is not legally distinct so long as it is imposed prior to removal and re-entry;  a defendant convicted in these circumstances has committed an aggravated felony for purposes of Guideline Sec. 2L1.2(b)(1)(A);  thus, in the instant case the district court correctly applied the relevant sentencing enhancement.  Berzon, Tallman, and Clifton, Circuit Judges.  Per Curiam. AFPD J. Carr of Las Vegas, NV, for the defendant;  AUSA R. Bork of Las Vegas, NV, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  PROBABLE CAUSE FOR ARREST: Grant v. City of Long Beach, 01-56046 (9th Cir. Dec. 16, 2002).  In a 42 USC Sec. 1983 action against police officers alleging false arrest, the evidence at the time of the plaintiff's arrest, including the reliability of canine and eyewitness identifications, was insufficient to establish probable cause;  the plaintiff merely resembled the general physical description provided by the victims of their assailant, and the police dog that led officers to the plaintiff's apartment building alerted to the wrong floor.  Bright, Goodwin (author), and Tashima, Circuit Judges.  T. Coates of Los Angeles, CA, for the defendants-appellants;  S. Lerner of Miami, FL, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  BORDER ARRESTS:  USA v. Hernandez, 02-50155 (9th Cir. Dec. 30, 2002).  The defendant's presence in the rear seat of a van found to be carrying commercial quantities of illegal drugs across the border, together with his suspicious behavior, gave border agents probable cause to arrest him;  Judge Berzon concurred except for a footnote she found unnecessary to the decision.  Canby, Gould (author), and Berzon (concurring), Circuit Judges.  T. Burn 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.cc9.uscourts.gov/)

48)  MENTAL HEALTH DETENTIONS:  Jensen v. Lane County, 01-35566 (9th Cir. Dec. 11, 2002).  Following Rodriguez v. City of New York, 72 F.3d 1051 (2d Cir. 1995), the USCA held that in the context of deciding whether to submit a person to an involuntary, short-term emergency commitment, the committing physician must follow the generally accepted standards of the medical community;  here there was no record evidence that the physician violated that standard in making his decision to hold the plaintiff for the final two days of his five day commitment.  Goodwin (author), Graber, and Fisher, Circuit Judges.  P. Harrison of Eugene, OR, for the plaintiff;  R. Rocker of Portland, OR, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  VEHICLE STOPS:  USA v. Colin, 01-50140 (9th Cir. Dec. 31, 2002).  Under California law, A police officer had no reasonable suspicion to stop a vehicle based on its purported lane-straddling in violation of California Vehicle Code Sec. 21658(a), as the vehicle tires merely touched for approximately ten seconds, but did not cross, the fog line and the solid yellow-painted line;  evidence discovered after the stop thus should have been suppressed.  Lay, Canby, and Paez (author), Circuit Judges.  DFPD J. Locklin of Los Angeles, CA, and DFPD M. Treman of Santa Barbara, CA, for the defendants;  AUSA J. Zwicker of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  ANTICIPATORY SEARCH WARRANTS:  USA v. Vesikuru,  01-30362 (9th Cir. Dec. 31, 2002).  An anticipatory warrant was facially valid where it adequately incorporated the supporting affidavit that established probable cause and articulated the conditions precedent to the warrant's execution;  the searching officers were fully briefed on the restrictions found in the affidavit, and the district court correctly concluded after an evidentiary hearing that the officers complied with all of the required conditions;  the district court thus properly ruled that incriminating evidence found inside the residence need not be suppressed.  Browning, Fisher, and Tallman (author), Circuit Judges.  D. Bukey of Seattle, WA, for the defendant;  AUSA Y. Woo of Seattle, WA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

51)  SEARCH & SEIZURE:  USA v. Gorman, 02-50053 (9th Cir. Dec. 31, 2002). The denial of a motion to suppress evidence seized by officers upon entering a third-party residence pursuant to an arrest warrant for the defendant was reversed as the district court failed to equate the "reason to believe" standard of USA v. Underwood, 717 F.2d 482 (9th Cir. 1983) (en banc), with the "probable cause" standard;  however, the USCA upheld the district court's denial of the defendant's motion to dismiss the indictment for violation of the Speedy Trial Act.  Pregerson (author), Thompson, and Wardlaw, Circuit Judges.  S. Lemish of El Cajon, CA, for the defendant;  AUSA S. Miller of San Diego, CA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

52)  EVIDENCE:  USA v. Rebbe, 02-50073 (9th Cir. Dec. 24, 2002).  Under Federal Rule of Evidence 410 and Fed. R. Crim. Proc. 11(e)(6), the district court properly admitted proffer statements made to the government during plea negotiation, where those statements were used by the government to rebut evidence and arguments presented as a defense at trial, which were inconsistent with the proffer statements.  D.W. Nelson (author) and T.G. Nelson, Circuit Judges, and Schwarzer, District Judge.  D. Fischer of Santa Monica, CA, for the defendant-appellant;  AUSA S. De Witt of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  EVIDENCE OF PRIOR BAD ACTS:  USA v. Mendoza-Prado, 01-10105 (9th Cir. Dec. 31, 2002).  Evidence of a defendant's prior bad acts of theft, extortion, and aiding of a prison escape, while obviously serious crimes, were not admissible to prove his propensity for the drug-trafficking crimes charged;  however, the defendant's evidence of general his good character opened the door to the government's evidence of prior bad acts to demonstrate bad character.  Hawkins, Graber, and Tallman, Circuit Judges.  Per Curiam.  K. Landau of Oakland, CA, for the defendant;  AUSA L. Leigh of San Francisco, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  PLEA AGREEMENTS:  USA v. Reyes, 00-10128 (9th Cir. Dec. 19, 2002).  A district court's only option in considering a Fed. R. of Crim. Proc. 11(e)(1)(C) plea agreement is to either accept or reject it; the court is without discretion to modify it.  Reinhardt and Fisher, Circuit Judges, and Molloy (author) District Judge.  K. Noel of San Francisco, CA, for the defendant-appellant;  AUSA L. Gray of San Francisco, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  CRIMINAL LAW & PROCEDURE:  Cunningham v. Gates, 01-56339 (9th Cir. Dec. 13, 2002).  The plaintiff, who had been convicted of robbery and the murder of his accomplice, alleged excessive force by the police on the grounds that the police had deliberately created a situation that provoked him and his accomplice into firing at the police by jamming their getaway car;  the plaintiff's accomplice died in the shootout;  plaintiff's claim was barred under Heck v. Humphrey, 512 U.S. 477 (1994), because the theories asserted would call into question plaintiff's state convictions;  identical claims by the parents of the plaintiff's deceased accomplice were not barred by the plaintiff's convictions.  Goodwin, Rymer, and McKeown (author), Circuit Judges.  S. Yagman of Venice Beach, CA, for the appellants;  R. Delgadillo of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  CRIMINAL PROCEDURE / ALL WRITS ACT:  USA v. Bravo-Diaz, 02-50031 (9th Cir. Dec. 3, 2002).  The district court lacked jurisdiction to vacate a defendant's 1974 drug-smuggling conviction under the All Writs Act, 28 USC Sec. 1651(a);  the USCA reversed with instructions that the defendant's conviction be reinstated and the present cause be dismissed for lack of subject matter jurisdiction.  Hall, Thompson, and Wardlaw, Circuit Judges.  Per Curiam.  AUSA D. Bishop of San Diego, CA, for the plaintiff-appellant;  B. Sanchez of San Diego, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  CRIMINAL PROCEDURE:  USA v. Hernandez, 01-10557 (9th Cir. Dec. 23, 2002).  Where a postal inspector's detention of an express mail package for purposes of conducting a drug dog sniff test was based on reasonable suspicion under the totality of the circumstances (e.g., non-confirmable return address, taped seams, etc.), and that detention was not unreasonably prolonged, the district court properly denied defendant's motion to suppress evidence of a controlled substance seized from the package.  Schroeder, Alarcon (author), and Fisher, Circuit Judges.  B. Bervar of Honolulu, HI, for the defendant-appellant;  AUSA C. Thomas of Honolulu, HI, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  CRIMINAL LAW / DYER ACT:  USA v. Tobeler, 00-50702 (9th Cir. Dec. 6, 2002). The definition of "motor vehicle" in the Dyer Act, 18 USC Secs. 2311 and 2312, which prohibit the transporting of stolen motor vehicles in interstate commerce, encompasses the kind of construction equipment the defendant was convicted of stealing, transporting, and reselling.  Hall, Thompson, and Wardlaw (author), Circuit Judges.  W. Harris of South Pasadena, CA, for the appellant;  AUSA J. Gordon of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

59)  ENTRAPMENT DEFENSE / JURY INSTRUCTIONS:  Bradley v. Duncan, 01-55290 (9th Cir. Dec. 24, 2002).  A state trial court's refusal to instruct the jury on an entrapment defense, in a second trial on drug sale charges, amounted to prejudicial constitutional error where evidence presented at a first trial warranted such an instruction;  dissenting, Judge Graber thought the majority failed to adhere to the Circuit's standard of review;  the California courts made no factual error and no error of California law;  federal law does not, independently, require an entrapment instruction in a state-court criminal trial when there is insufficient evidence to support it as a matter of state law;  accordingly, Judge Graber would reverse the district court's conditional grant of habeas relief to the petitioner.  Ferguson (author), Tashima, and Graber (dissenting), Circuit Judges.  J. Kross of Oakland, CA, for the petitioner-appellee;  J. Lehmann of Los Angeles, CA, for the respondent-appellant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  EVIDENCE / SENTENCING:  USA v. Rosacker, 02-30000 (9th Cir. Dec. 26, 2002).  The district court's use of a "preponderance of the evidence" standard in making a drug quantity approximation was upheld, but under the Sentencing Guidelines the court erred in relying on a police laboratory report which contained calculations resting on unsupported assumptions;  the Guidelines require the court to approximate drug quantities by evaluating the actual ability of the defendant's lab to manufacture the drug in question.  T.G. Nelson (author), Graber, and Fisher, Circuit Judges.  AFPD M. Levine of Portland, OR, for the defendant-appellant;  AUSA M. Mosman of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

61) SENTENCING / CAREER OFFENDERS:  USA v. French, 02-10215 (9th Cir. Dec. 13, 2002).  The USCA affirmed the district court's imposition of sentence after the entry of the defendant's guilty plea to two counts of bank robbery in violation of 18 USC Sec. 2113(a)(1994); at his sentencing hearing, the district court determined that the defendant had been convicted of two qualifying predicate—the first being a 1996 state conviction for burglary, the second being the defendants guilty plea on a state robbery for which he had not yet been sentence;  these offenses warranted application of the career offender enhancement pursuant to Sentencing Guidelines Manual Sec. 4B1.1 (2001). Rymer, Thomas, and Silverman, Circuit Judges. Per Curiam.   S. Edwards 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.cc9.uscourts.gov/)

62)  SENTENCING:  USA v. Turner, 01-30439 (9th Cir. Dec. 11, 2002). A district court abused its discretion in finding that the defendant, who pled guilty to bank fraud, violated a special condition of his supervised release prohibiting him from incurring new credit charges or opening additional lines of credit without the prior approval of the probation department when one of his friends purchased an assignment of the bank's restitution claims at a discount;  an order revoking the defendant's supervised release was erroneous where the record did not support the conclusion that the defendant failed to make a timely payment to the court registry;  the district court also abused its discretion in revoking the defendant's supervised release and resentencing him; and, it erred as a matter of law in imposing a $100,000 fine. Hill (author), Gould, and Berzon, Circuit Judges.  AFPD M. Filipovic of Seattle, WA, for the defendant-appellant;  AUSA M. Bartlett of Seattle, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  SENTENCING:  USA v. Leyva-Franco, 02-10036 (9th Cir. Dec. 5, 2002).  The government appealed a sentence imposed on the defendant for importing five kilograms or more of cocaine from Mexico;  the sentence was a result of a downward departure under Sentencing Guideline Sec. 5K2.20 of four levels based on "aberrant" behavior;  the government objected to the departure, relying on evidence tending to show that the defendant had admitted to a customs inspector to having crossed the border numerous times with cocaine in the week prior to his arrest;  the defendant insisted that he had made no such admission and objected to the inclusion of any reference to it in the Presentence Report;  the government insisted that the admission had been made, that the instant importation of cocaine had been only one of a series, and thus that its occurrence did not represent a marked deviation from an otherwise law abiding life;  thus at the sentencing hearing there was an important unresolved objection to the Presentence Report;  accordingly, the USCA vacated the sentence and remanded for resentencing.  Stapleton, O'Scannlain, and Fernandez, Circuit Judges.  Per Curiam.  P. Charlton of Tucson, AZ, for the appellant;  J. Robles of Tucson, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  SENTENCING:  USA v. Pearson, 01-50148 (9th Cir. Dec. 16, 2002).  The time during which the defendant was on "escape" status was correctly counted as a period of "incarceration" for purposes of a sentence increase under Sentencing Guideline Sec. 4A1.2(e)(1); as interpreted by the commentary on Sec. 4A1.2(e), escape time counts as imprisonment time; thus, the defendant gains no advantage by being physically out of custody;  dissenting, Judge Berzon thought that actual incarceration should count under Sec. 4A1.2(e)(1), and that escape status should not.  Noonan (author), Wardlaw, and Berzon (dissenting), Circuit Judges.  DFPD J. Locklin of Los Angeles, CA, for the defendant-appellant;  AUSA R. Chen of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

65)  SENTENCING:  USA v. Thompson,  01-30279 (9th Cir. Dec. 6, 2002).  Following convictions for possession and distribution of child pornography, the district court's downward departure under the Sentencing Guidelines was an abuse of discretion where the district court relied on prohibited, discouraged, and inadequately explained factors in finding that defendant was not in the "heartland" of the offenses;  concurring, Judge Berzon wrote separately to point out two features of the defendant's Presentence Report that could have been considered by the district court as favoring downward departure, as well as to suggest that downward departures in similar district court cases involving child pornography have become so frequent as to suggest a pattern that may merit consideration by the Sentencing Commission.  Beezer, Gould (author), and Berzon (concurring), Circuit Judges.  AUSA M. Good Sept of Billings, MT, for the plaintiff-appellant;  W. Holton of Helena, MT, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

66)  SENTENCING / CIVIL RIGHTS / DISCIPLINARY PROCEEDINGS:  Nonnette v. Small, 00-55702 (9th Cir. Dec. 26, 2002).  Because a direct challenge to the plaintiff's disciplinary proceeding would be moot since he has already served the incarceration portion of his sentence and has been released on parole, he may bring a civil rights action under 42 USC Sec. 1983 for damages arising from that proceeding which resulted in the revocation of his good-time credits.  Lay, Canby (author), and Paez, Circuit Judges.  P. Afrasiabi of Newport Beach, CA, for the plaintiff-appellant;  R. Pinal of San Diego, CA, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

67)  INEFFECTIVE ASSISTANCE:  USA v. Shwayder, 01-10156 (9th Cir. Dec. 5, 2002).  Although defense counsel had an actual conflict of interest which the defendant did not validly waive, the defendant failed to show that the conflict adversely affected representation such as to support an ineffective assistance claim;  in the cross-examination of character witnesses the prosecution's use of hypothetical questions which assumed the defendant's guilt did constitute error, but this error did not affect the defendant's substantial rights.  Hug, Berzon (author) and Paez, Circuit Judges, and Lasnik, District Judge.  J. Cline of Albuquerque, NM, for the defendants-appellants;  J. Damm of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

68)  INEFFECTIVE ASSISTANCE / WARRANTLESS ENTRY:  USA v.  Alaimalo,  00-15859 (9th Cir. Dec. 20, 2002).  The defendant's trial and appellate lawyers' failure to challenge a warrantless entry did not constitute ineffective assistance in violation of the Sixth Amendment, as the police officers had probable cause to believe that a package containing illegal drugs had been brought into the defendant's home;  as the district court properly found there was a fair probability that the drug package was in the defendant's house:  officers had seen the drug package picked up by a man named "Sablan" and had seen him and the defendant drive in a circui-tous route to the house, thereby giving the officers additional reasons to believe that Sablan knew that the package contained illegal drugs;  when the men arrived at the house, officers checked to be sure the package had not been left in the vehicle which was parked directly in front of the house, and the front door of the house was open and there were signs of activity inside.  Schroeder, Alarcon, and Fisher (author), Circuit Judges. AUSA K. Johnson of Hagatna, GU, for the plaintiff-appellee;  S. Courageous, Honolulu, HI, for the defendant-appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

69)  INEFFECTIVE ASSISTANCE:  Pirtle v. Morgan, 01-99012 (9th Cir. Dec. 19, 2002).  A murder defendant was denied his Sixth Amendment right to effective assistance of counsel during the guilt phase of his Washington state trial when his attorney failed to request a diminished capacity jury instruction;  dissenting in part, Judge Tallman thought that Washington's voluntary intoxication instruction provided an adequate vehicle for the jury to evaluate the evidence introduced by the defense.  T.G. Nelson, Paez (author), and Tallman (dissenting in part), Circuit Judges.  T. Maybrown of Seattle, WA, for the petitioner;  AAG P. Weisser of Olympia, WA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

70)  HABEAS CORPUS:  Sandgathe v. Maass, 01-35053 (9th Cir. Dec. 20, 2002).  An "incompetence to plead" claim was exhausted and thus not procedurally defaulted, but the claim was rejected on the merits where no evidence was offered showing the alleged incompetence;  an ineffective assistance of counsel claim, regarding a psychiatric health insanity defense was also rejected; concurring in the judgment, Judge O'Scannlain thought that by failing to make a federal constitutional claim in state court, the petitioner was barred from raising it in federal court.  B. Fletcher, O'Scannlain (concurring), and Berzon (author), Circuit Judges.  AFPD B. Lessley of Eugene, OR, for the petitioner-appellant;  AAG K. Cegla of Salem, OR, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

71)  HABEAS CORPUS:  Jorss v. Gomez, 99-16986 (9th Cir. The opinion filed Sept. 4, 2001 has been withdrawn; a new opinion was filed on Dec. 4, 2002). Where the filing deadline for a habeas petition was statutorily tolled under 28 USC Sec. 2244(d) until 18 days after petitioner filed his fully exhausted petition, the petition was  timely. A determination of timeliness under the statute is a necessary predicate to the question whether equitable tolling should be applied to the filing.  Schroeder, Wallace (concurring), and Tallman (author), Circuit Judges.  C. Jorss pro se;  DAG R. Moody of San Francisco, CA, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

72)  HABEAS CORPUS:  Alvarado v. Hickman, 00-56770 (9th Cir. Dec. 18, 2002).  A state court failed to address how a defendant's juvenile status and the involvement of his parents at the behest of police affected an "in custody" ruling for Miranda purposes, especially considering the juvenile's youth and inexperience with police; accordingly, the USCA granted the defendant's petition for a writ of habeas corpus and vacated his state court conviction for second degree murder and attempted robbery.  Schroeder, Cudahy (author), and McKeown, Circuit Judges.  T. Allen of Malibu, CA, for the petitioner-appellant;  DAG D. Chuang of Los Angeles, CA, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

73)  HABEAS CORPUS:  Saffold v. Carey, 99-15541 (9th Cir. Dec. 4, 2002).  A California Supreme Court order denying a habeas petition both "on the merits and for lack of diligence" did not mean the petition was untimely before that court and thus ineligible for tolling with respect to the one-year statute of limitations for state prisoners seeking habeas relief in federal court.  B. Fletcher, Canby, and O'Scannlain (author), Circuit Judges. Attorneys not listed.  (Download the full text of this decision at www.cc9.uscourts.gov/)

74)  HABEAS CORPUS:  USA v. Thiele, 01-15483 (9th Cir. Dec. 24, 2002).  Clarifying its holding in USA v. Kramer, 195 F.3d 1129 (9th Cir. 1999), the USCA rule that 28 USC Sec. 2255 is available to prisoners claiming the right to be released from custody;  however, claims for other types of relief, such as relief from a restitution order, cannot be brought in a Sec. 2255 motion, whether or not the motion also contains cognizable claims for relief from custody.  Rymer, Thomas, and Silverman (author), Circuit Judges.  K. Noel of Grand Junction, CO, for the defendant-appellant;  AUSA M. Znides of Oakland, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

75)  PRISONER CONDITIONS:  McKinney v. Carey, 01-17436 (9th Cir. Dec. 5, 2002).  Joining eight other courts of appeals, the USCA held that under 42 USC Sec. 1997e(a) a district court must dismiss an action involving prison conditions when the plaintiff has not exhausted his administrative remedies prior to filing suit but is in the process of doing to when a motion to dismiss is filed.  Stapleton, O'Scannlain, and Fernandez, Circuit Judges. Per Curiam.  G. McKinney pro se;  J. Humes of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

76)  PRISONERS' RIGHTS / CONGRESS'S SPENDING AUTHORITY:  Mayweathers v. Newland, 01-16505 (9th Cir. Dec. 27, 2002).  California State prison officials challenged the facial constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), which protects prisoners and other institutionalized people from government infringement due to their practice of a religion;  their appeal arose from a series of preliminary injunctions, issued pursuant to RLUIPA, which allowed Muslim prisoners to attend Friday afternoon religious services;  the district court upheld RLUIPA as a constitutional exercise of Congress's Spending Clause authority;  the USCA affirmed, concluding that Congress did not exceed its Spending Clause power in enacting RLUIPA.  Schroeder, D.W. Nelson (author), and Rawlinson, Circuit Judges. B. Lockyer of Sacramento, CA, for the plaintiffs-appellees;  R. McCallum of Washington, DC, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  TRADEMARKS / ATTORNEYS' FEES: Gracie v. Semaphore Entertainment Group, 01-15044 (9th Cir. Dec. 3, 2002) (unpublished). Wallace (dissenting in part), Kozinski, and Paez, Circuit Judges. 
           In an earlier opinion in this case, the USCA held that the district court did not abuse its discretion in awarding attorneys' fees to the defendants for prevailing on their Triangle Design logo trademark claim.  In that prior decision, the USCA remanded to permit the district court to make more detailed findings relating to the total amount and reasonableness of the fees awarded under the principles set forth in that opinion.  Gracie v. Gracie, 217 F.3d 1060, 1072 (9th Cir. 2000).  On remand, the district court awarded the defendants $558,214.59 in attorneys' fees and costs.   On the instant appeal, the USCA reversed and remanded for further proceedings.
        First, the district court did not explain its decisions on apportionment between Lanham and non-Lanham Act claims and between claims on which the defendants prevailed and those on which they did not.  In the earlier opinion, the USCA directed the district court either to "attempt an apportionment or to make findings that apportionment would be impossible."  Id. at 1070.  In determining that apportionment between Lanham and non-Lanham Acts claims was impossible, the district court should have considered each non-Lanham Act claim and determined whether the factual and legal bases were substantially identical to the Lanham Act claims such that apportionment between these claims would be impossible.  For example, it is unclear how the plaintiffs' claim for interference with prospective business relationship overlaps factually or legally with the Lanham Act claims.  The district court also did not provide any reason for the 10% fee reduction to account for fees expended on claims on which the defendants did not prevail.  Although an across-the-board fee reduction does not alone constitute an abuse of discretion, a district court must provide some explanation for the chosen percentage reduction. 
 Second, the district court erred in its calculation of the lodestar amount.  In determining the total amount of fees, the district court relied only on the hourly rates of the attorneys and paralegals who worked on the case.  The court should have required the defendants to produce satisfactory evidence, in addition to the affidavits of their counsel, that the requested rates were in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation.  Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987).  The district court also failed to discuss any of the Kerr factors in determining whether to adjust the lodestar amount.  Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975).  Although a district court is not required to analyze every Kerr factor, the need for meaningful review requires remand where, as here, the record on appeal fails to indicate which, if any, of the Kerr guidelines were considered.  Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 838-39 (9th Cir. 1982).  The district court should have addressed, at a minimum, the "extent of success" factor.  The defendants apparently sought $1.3 million at trial but were awarded only $108,000.  In the earlier opinion, the USCA noted that the fees award was substantial, almost six times the size of the damages awarded to the defendants.  Gracie, 217 F.3d at 1069.
           Third, although the district court was not required to expressly rule on each of the plaintiffs' objections to the defendants' fee requests, the plaintiffs raised serious questions about several issues that the district court should have addressed, including (1) whether there was duplication of work;  (2) whether some of the invoices included fees that were not charged to the client; and (3) whether the use of block-billing and overly generalized descriptions of tasks performed required a reduction in the fee award.  Finally, the district court abused its discretion when it failed to determine whether the $39,206.93 in expenses was reasonable.
          Dissenting in part, Judge Wallace concurred with the majority that the district court abused its discretion in calculating the lodestar amount, in its failure to discuss the Kerr factors, and its failure to determine whether the $39,206.93 in expenses are reasonable.  Judge Wallace also thought the district court abused its discretion in failing to explain how it reached the $620,238.43 amount, as the calculation of the hours expended at the hourly rates in its opinion would amount to $462,631.50.  He would also thus remand to permit the district court to make detailed findings relating to the total amount and reasonableness of the fees and expenses awarded.  However, Judge Wallace dissented from the majority conclusion that the district court did not adequately explain its decision on apportionment between the Lanham and non-Lanham Act claims and between claims on which the defendants prevailed and those on which it did not.  He also thought the panel should address some arguments made in briefs by plaintiffs Carley Gracie, et al.  On the first appeal, the USCA directed the district court to apportion, attempt to apportion, or make findings that apportionment between Lanham Act claims and non-Lanham Act claims would be impossible.  This the district court did.  The majority now wants the district court to list each non-Lanham Act and its factual and legal bases.  Presumably, the majority believes that these findings are necessitated by Gracie.  Judge Wallace disagreed.  He thought that the current panel knows as well as the district court the factual and legal bases for each claim.  The majority cites no support for its request for a detailed list of these findings.  It does not even cite a policy justification for that additional requirements.  Judge Wallace thought the meaning of Gracie's request should be read against the back-drop of then-existing legal principles.  The natural start is Hensley v. Eckelhart, 461 US 424 (1983), which applies in all cases in which Congress authorized an award of fees to a prevailing party.  Hensley recognized that when claims involve a "common core of facts" or are based on "related legal theories," it is difficult to apportion the hours expended on a claim-by-claim basis.  Hensley emphasized that the district court's discretion in determining the amount of the fee award "is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters."  Id. at 437.  The district court must provide a "concise but clear explanation of its reasons for the fee award." Id.  Judge Wallace thought the majority ignored the word "concise" and asked the district court to give a lengthy exposition on the legal and factual bases of every claim, even though the panel already has this information at its fingertips.  Pursuant to the direction of Gracie, the district court made findings that apportionment was impossible.  It found that the Lanham Act claims and the non-Lanham Act claims were inextricably intertwined.  The legal requirements and the facts underlying the claims were substantially identical.  This, Judge Wallace said, is all Gracie required.  Its explanation need not be elaborate, nor is reversal appropriate merely because the district court was not as clear as this appellate panel would have liked.  Its explanation gives this panel enough indication of how it exercised its discretion, and reversal is improper.  Gracie did not require the district court to make such detailed findings so as to save the current panel the effort of looking at the law and the complaint.  Plaintiff Carley inadequately argued that the district court abused its discretion in finding that the non-Lanham Act claims were inextricably intertwined with Lanham Act claims.  Carley asserted that the various claims were independent of one another and referred to its arguments made in 1998, when it contended that all the claims lacked a "common core of facts" and cited to ways in which the Gracie Jiu-Jitsu claim differed from the false advertising claim and ways the false advertising claim differed from the Triangle Design logo claim.  However, Carley conceded that these claims are Lanham Act claims.  Carley, Judge Wallace noted, failed to point to a single factual or legal element that would permit the district court to apportion the fees on some basis other than rank speculation.  Judge Wallace also dissented from the majority's conclusion that the district court did not provide any reasons for the 10% fee reduction because it did provide reasons.  The district court found that approximately 10% of the time and expenses were spent solely on the Gracie Jiu-Jitsu claim, and that 10% was a fair approximation.  The district court thus reduced defendant Rorion's fee award by 10%.  Judge Wallace thought that the majority's assertion that the district court did not provide "any reason" for the reduction was simply wrong.

2)  COPYRIGHT INFRINGEMENT:  Mitchell v. AOL Time Warner, Inc., 02-15269 (9th Cir. Dec. 13, 2002) (unpublished).  Goodwin, Hug, and Trott, Circuit Judges. 
        Mitchell appealed pro se the district court's dismissal of his action alleging copyright infringement and related claims.  He also appealed the district court's denial of his motions for reconsideration and to strike the findings and recommendations entered by the magistrate judge.  The USCA reviewed de novo the district court's dismissal and affirmed for the reasons set forth in the magistrate judge's findings and recommendations, adopted by the district court in an order filed January 25, 2002.  Because leave to amend would have been futile, the USCA concluded that the district court did not abuse its discretion by dismissing the complaint with prejudice.  The district court's denial of Mitchell's motion to strike the findings and recommendations of the magistrate judge was proper because Mitchell failed to file timely objections.  Because Mitchell presented no valid grounds for reconsideration of the dismissal, the district court did not abuse its discretion by denying the motion.

3)  ENVIRONMENTAL LAW / STANDING:  Sierra Club v. Dombeck, 01-17391 (9th Cir. Dec. 27, 2002) (unpublished).  Rymer, Thomas, and Silverman, Circuit Judges.
           The District Court for the District of Arizona, Judge Rosenblatt presiding, granted summary judgment to the Sierra Club on Counts I through VII of its complaint, and dismissed Count VIII on ripeness grounds.  Canyon Forest Village II Corporation (CFV), a defendant-intervenor, appealed the judgment on some of the claims.  The Sierra Club cross-appealed the dismissal of Count VIII. 
             The USCA dismissed the appeal, finding that it lacked jurisdiction to decide CFV's appeal because CFV lacked standing on appeal.  The Forest Service did not appeal the District Court's order.  Thus, CFV, as an intervenor, could appeal in the absence of the Forest Service only if it independently satisfied the standing requirements of Article III.  CFV failed to meet Art. III's redressability requirement because it is speculative whether a favorable appellate decision would redress its injury.  Even if CFV were to prevail on each of its arguments, the Forest Service must undertake a number of additional tasks, including conducting further environmental analyses regarding Alternative H's water delivery system, its use of groundwater during the construction, and its use of ground water during emergencies, and obtaining a zoning change for its 272 acres in Coconino County, before the land exchange might ever be completed.  In addition, the Forest Service has effectively acquiesced in the district court's determination that other work must also be cone before a new ROD is issued.  CFV cannot compel it to do otherwise.  In these circumstances, the USCA concluded that CFV lacked standing to pursue this appeal.  As for Sierra Club's cross-appeal, the USCA said it lacked jurisdiction to decide it because it is moot in light of the fact that the Forest Service has decided to perform additional environmental analysis consistent with an order issued by the District Court for the District of Columbia and to reevaluate the proposed land exchange in light of that analysis.  As a result, the environmental impact statement will be supplemented and a revised record of decision will be issued by the Forest Service.

4)  TAXATION:  Basque Station, Inv. v. USA, 01-35774 (9th Cir. Dec. 17, 2002) (unpublished).  Rymer, Hawkins, and McKeown, Circuit Judges. 
            The district court erred in determining that a taxable sale did not occur between Basque Station and Transport Petroleum.  Former IRC Sec. 4091(a) imposed an excise tax on the "sale" of diesel fuel "by a producer."  26 USC Sec. 4091(a)(1990).  "Sale" is defined in the regulations as "an agreement whereby the seller transfers the property (that is the title or substantial incidents of ownership) in goods to the buyer for a consideration called the price, which may consist of money, services, or things."  The district court found that Basque did not transfer property to Transport within the meaning of the regulations, believing there was no evidence that Basque "had, at any time, possession, control or ownership of the diesel fuel which was delivered to Transport."  It is, however, undisputed that Basque had a contractual relationship with Texaco and was legally obligated to pay for the entire shipment, whereas Transport was not in any contractual relationship with Texaco and Texaco had no recourse against Transport for payment.  When orders were placed with Texaco using Basque's identification numbers, Basque became the owner of the entire shipment and could then do what it wished with the fuel.  That Transport's trucks would actually pick up the fuel from Texaco did not alter the Transport-Basque relationship.  Basque did not have its own trucks and had always used a third party to pick up fuel.  Transport did not become the purchaser because it took delivery of the fuel.  Delivery did not give it legal rights to the fuel any more than it gave the previous carriers legal title to the fuel.  Although Basque and Transport may not have intended to be in a buyer/seller relationship, their intent did not change the legal substance of the transaction.  Texaco was not a party to their "co-purchase" agreement and was in a legal relationship only with Basque.  Likewise, that Texaco was aware of and even encouraged the relationship between Basque and Transport did not alter the parties' legal obligations.  Basque, legally entitled to the entire shipment, then transferred rights to a portion of that fuel to Transport.  This satisfied the "transfer of property" aspect of the definition of "sale" in 26 CFR Sec. 48.0-2(a)(5).  The district court also found there was no evidence Basque received any consideration from Transport, noting that there was no evidence Basque retained any of the money it received from Transport, but instead passed all the money on to Texaco.  The district court appears to have conflated "consideration" with "profit."  It did not matter that Basque did not sell fuel to Transport at a premium—Basque was not giving the fuel away, and received compensation for the portion of fuel Transport retained.  The price Basque charged Transport was simply equal to the price Texaco charged Basque. 
          Because there was a taxable sale, the USCA addressed the question initially raised in the 1999 appeal to the Ninth Circuit regarding the applicability of the producer-to-producer exemption from the excise tax.  In order to qualify as a "producer," one must register with the Secretary of the Treasury before incurring any tax liability.  26 USC Sec. 4101(a).  The district court concluded that Transport had satisfied these requirements by merely filing an application under Sec. 4101, even though Transport never received a Certificate of Registration number from the IRS.  The USCA disagreed that Sec. 4101 can be satisfied by merely submitting the requisite form to the IRS.  Although there were no formal regulations governing Sec. 4101 during the applicable time period, the IRS did issue Notice 88-30, 1988-1 C.B. 497, which clarified that in order to be exempt from the tax, the purchaser had to notify the seller of its Certificate of Registry number and that number had to appear on the invoice for each tax free sale.  Although nonbinding, the Notice indicated it could be relied upon to the same extent as revenue rulings, which guide the Circuit in interpreting relevant statutes.  This interpretation of the registration requirement is also consistent with the regulations that existed at the time with respect to the similar statutory regime for taxation of gasoline sales.  Finally, the district court erred in its initial holding that Transport had qualified as a "producer" under Sec. 4101 by merely submitting a registration form to the IRS.  Because Transport never received a Certificate of Registration number, it was not a "producer" under Sec. 4092(b)(1)(A), and any sale between Basque and Transport was not exempt from the excise tax under Sec. 4093(b).  The USCA thus reversed.

5)  TAXATION:  O'Toole v. IRS, 02-55597 (9th Cir. Dec. 11, 2002) (unpublished).  Goodwin, Trott, and Graber, Circuit Judges.  O'Toole appealed pro se the district court's judgment for the IRS in his action seeking a tax refund.  The USCA affirmed.  The district court properly concluded that because O'Toole failed to file his administrative claims for a tax refund within two years of paying the tax, the administrative claims were untimely under 26 USC Sec. 6511(a) and 26 CFR Sec. 301.6511(a)-1(a)(2).  The district court thus lacked subject matter jurisdiction over O'Toole's tax refund action.  O'Toole maintained that the two-year limitations period should be equitably tolled because of the IRS's late response to his Freedom of Information Act request.  However, Sec. 6511 is not subject to equitable tolling.  In addition, O'Toole failed to state a valid FOIA claim because he requested only monetary damages in this action, and the statute does not authorize such relief.

6)  TAXATION:  Torre v. CIR, 02-70133 (9th Cir. Dec. 11, 2002) (unpublished).  Goodwin, Trott, and Graber, Circuit Judges.   The taxpayer appealed pro se the tax court's determination that he failed to properly report $5,603 of income from a mutual account fund for the 1997 tax year.  Upon reviewing the tax court's conclusions de novo and its factual findings for clear, the USCA affirmed.  The tax court correctly determined that the taxpayer failed to properly report the $5,603.  The taxpayer was not entitled to a jury trial.

7)  BANKRUPTCY:  In re Nghiem, 01-16632 (9th Cir. Dec. 23, 2002) (unpublished).  Berzon and Tallman, Circuit Judges, and Miller, District Judge.
 At issue here was whether the debtor's claims were barred by res judicata because he failed to raise them in an unlawful detainer action prosecuted in the Superior Court for Santa Clara County.  The USCA concluded that the debtor was attempting to relitigate issues previously adjudicated against him in the Santa Clara County court.  The bankruptcy court found that the debtor was barred from challenging the adequacy of the foreclosure proceedings because those issues had been raised in the County court during the un-lawful detainer action.  After an evidentiary hearing, the County court addressed the adequacy of the foreclosure procedures, finding that GMAC Mortgage Corporation complied with the foreclosure procedures set forth in California Civil Code Sec. 2924—the same procedures challenged by the debtor on this appeal.  Here, the parties to the unlawful detainer action were the same parties as before this Court.  The County court judgment was on the merits.  The debtor's claims that an August 11, 1999 notice violated his due process rights or the so-called rule of "better notice" set forth in In re Tome, 113 B.R. 626 (Bankr. C.D. Cal. 1990), could have been asserted, but were not.  The debtor was thus barred from raising these claims in this appeal.

8)  BANKRUPTCY:  In re Pizzella, 01-15158 (9th Cir. Dec. 12, 2002) (unpublished).  Goodwin, Trott, and Graber, Circuit Judges.   The Vollmers appealed the decision of the Bankruptcy Appellate Panel affirming the bankruptcy court's judgment distributing the proceeds from the sale of a building located in San Francisco, California.  The Vollmers maintained that the bankruptcy court mis-calculated the distribution of sale proceeds by failing to adjust the ownership interests of the three co-owners pursuant to a tenants-in-common agreement.  On appeal, the Vollmers failed to provide an adequate record because they did not provided a transcript of a hearing of April 20, 1999, where the issue was discussed.  The record the Vollmers provided did not show that the bankruptcy court clearly erred in its findings.  The bankruptcy court also did not abuse its discretion in not using a forensic accountant.

9)  BANKRUPTCY:  In re Heiserman, 01-56564 (9th Cir. Dec. 10, 2002) (unpublished).  Goodwin, Trott, and Graber, Circuit Judges.
             Heiserman appealed the Bankruptcy Appellate Panel's decision affirming the bankruptcy court's orders approving settlement of a state court action by the trustee and denying Heiserman's motion to dismiss her bankruptcy case.  The USCA dismissed the appeal.  Heiserman failed to seek a stay of the bankruptcy court's order authorizing settlement of a state court case by the trustee.  The trustee then settled her case, receiving a settlement payment, and the state court dismissed the action with prejudice.  Similarly, Heiserman failed to seek a stay pending appeal of the bankruptcy court's order denying her motion to dismiss her bankruptcy case and her properties have since been sold to third parties.  Consequently, this appeal is moot. 

10)  BANKRUPTCY:  In re Clay, 01-56759 (9th Cir. Dec. 9, 2002) (unpublished).  Rymer, Thomas, and Silverman, Circuit Judges.
             Williams appealed a decision of the Bankruptcy Appellate Panel ("BAP") that reversed a ruling of the bankruptcy court and remanded the case to the bankruptcy court for additional factual development.  The USCA affirmed.  Although a denial of a motion for summary judgment with a remand for factual findings is not typically considered final for appellate purposes, the USCA noted that it is more flexible when it comes to bankruptcy proceedings.  In re Scovis, 249 F.3d 975, 980 (9th Cir. 2001).  The USCA said it can exercise jurisdiction, even though the BAP has remanded a matter for factual findings on a central issue, if that issue is legal in nature and its resolution could either disposed of the case and obviate the need for additional fact-finding, or would materially aid the bankruptcy court in reaching its disposition on remand.  That, the USCA said, is the situation here with respect to the question of whether a bankruptcy court can avoid a fraudulent transfer under Sec. 548 of the Bankruptcy Code, notwithstanding a state court divorce decree that approved the parties' own division of their marital assets.  The USCA agreed with the BAP that a bankruptcy court, acting to avoid a fraudulent transfer under Sec. 548 of the Bankruptcy Code, is empowered to avoid a state court judgment in the circumstances present here.  However, before it can be determined that the debtor fraudulently transferred an interest in the settlement proceeds, it first must be determined that he had an interest, as either an injured party in his own right, or under Cal. Fam. Code Sec. 2603(b).  As to whether the debtor had such an interest (and if he did, the value of that interest), the USCA agreed with the BAP that additional factual development would be necessary, and that summary judgment should not have been granted.

11)  EMPLOYMENT DISCRIMINATION:  Mills v. Davis, 01-17029 (9th Cir. Dec. 20, 2002) (unpublished).  Bright, Hawkins, and W. Fletcher, Circuit Judges.
           The plaintiffs appealed the district court's grant of summary judgment in their Title VII action alleging that the California Franchise Tax Board ("FTB") and various employees thereof discriminated against them based on their race (African-American) and gender (male).  They also appealed the district court's denial of their motion for reconsideration.  In addition, plaintiff Mills appealed the district court's grant of defendant Marendt's motion for summary judgment on Mills' 42 USC Sec. 1983 claim.  Following its review of the nearly 3,000 page record, the USCA affirmed.
            The district court granted summary judgment against plaintiffs Mills, Oliver, Lee, and Belcher-Bey on July 25, 1999, and against plaintiff Williams on Nov. 17, 1999.  On May 23, 2001, the plaintiffs moved for reconsideration premised on their purported discovery of "new evidence."  This "new evidence" consists of the declaration of Laverne Young, a series of depositions, and the Dec. 29, 2000 report of the Joint Labor / Management Committee on Discrimination (the "JL/MCD" report").  The district court denied the motion and entered final judgment.  Reviewing the denial of a motion for reconsideration for abuse of discretion, the USCA noted that in order to show abuse of discretion, the plaintiffs must show: 1) that the proffered evidence was "newly discovered," 2) that they exercised "due diligence" to discover this evidence, and 3) that the new evidence is "of such a magnitude that production of its earlier would have been likely to change the disposition of the case."  The USCA concluded that the plaintiffs failed to make the required showing.  Young's declaration was submitted with the plaintiffs' original papers in opposition to summary judgment.  It was thus not "new evidence."  Two of the depositions were taken over a year before the district court granted defendants' motions for summary judgment, and thus also was not "new evidence."  The remaining depositions were taken after summary judgment was granted, but were based on declarations that were in the plaintiffs' possession prior to July 25, 1999;  plaintiffs offered no justification for their failure to depose these persons earlier, and thus failed to satisfy their burden of showing "due diligence."  The plaintiffs conceded that the factual information contained in the JL/MCD report was not "new evidence," but maintain that it represents an admission by the defendants that discrimination exists in State employment, which is new.  While this "admission" may be new, it is not of "such magnitude that production of it earlier would have been likely to change the disposition of the case."  Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987).  Although the report indicates that adverse employment actions taken by the State disparately impact African-American, Hispanic, disabled, and male State employees, it did not analyze employment practices at the FTB specifically, the entity whose behavior is challenged in this case.

12)  IMMIGRATION / ASYLUM:  Limenew v. INS, 01-71511 (9th Cir. Dec. 5, 2002) (unpublished).  Stapleton, O'Scannlain, and Fernandez, Circuit Judges.
 Limenew petitioned for review of the Board of Immigration Appeals' affirmance of the Immigration Judge's decision that he was not entitled to asylum.  The final order of deportation was entered on June 25, 2001.  The appeal to the Ninth Circuit was filed on September 17, 2001.  The transitional rules of Illegal Immigration Reform and Immigration Responsibility Act of 1996 apply and mandate a 30-day time period for appeal.
            The USCA dismissed the petition for review for want of jurisdiction.  The time limit for filing a petition for review of a BIA decision is mandatory and jurisdictional.  Mandatory and jurisdictional time limits are not subject to the defenses of waiver, equitable tolling, or equitable estoppel, although there may still be exceptions based on unique circumstances.  Socop-Gonzales v. INS, 272 F.3d 1176, 1187 (9th Cir. 2001).  The only circumstances deemed, thus far, to be "unique" are those in which there has been official misleading.  Where there has been an official misleading by a court or administrative tribunal as to the time within which to file a notice of appeal, the late notice may be deemed to have been constructively filed within the jurisdictional limits.  Hernandez-Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir. 1980).  Ineffective assistance of counsel is not such a "unique" circumstance.  Limenew's claim that refusing to hear his petition for review despite his counsel's incompetence would violate due process did not confer appellate jurisdiction on the Ninth Circuit.  Such a claim did not justify ignoring a mandatory and jurisdictional time limit on an appellate remedy.  It can be raised, if at all, in a habeas proceeding.  The USCA noted that even if it possessed jurisdiction to entertain the petition for review, it could not properly address either (a) Limenew's claim of ineffective assistance of counsel in the proceeding before the BIA, based on counsel's failure to raise the Convention Against Torture, or (b) the merits of Limenew's Convention Against Torture claim.  This ineffective assistance of counsel claim must be first raised with the BIA.  The Convention Against Torture claim should be raised in a motion to re-open.  The relevant section of the rules provide that, for aliens in proceedings on or after March 22, 1999, the Convention Against Torture is simply another basis for asylum.  It should be treated the same as any other justification for an asylum claim;  it must be raised with the BIA before it can be considered by a Court of Appeals.

13)  IMMIGRATION / FALSE DOCUMENTS:  Souza v. Ashcroft, 01-16578 (9th Cir. Dec. 2, 2002) (unpublished).  Lay, Ferguson, and Tallman, Circuit Judges.
           Souza appealed the district court's grant of summary judgment in favor of Attorney General Ashcroft ("the INS").  On appeal, Souza maintained that the district court erred in upholding the INS's denial of Souza's application for naturalization based on the conclusion that his conviction for aiding and abetting the sale of a false or counterfeit social security card constituted a crime of moral tur-pitude.
                The USCA affirmed.  To be eligible for naturalization, an alien must demonstrate that, during the five years immediately preceding the filing of his application, he "has been and still is a person of good moral character."  8 USC Sec. 1427(a)(3) (2000).  Under the Immigration and Nationality Act ("INA"), an applicant for naturalization cannot demonstrate that he is a person of "good moral character" if, during the relevant statutory period, he has been convicted of a crime involving moral turpitude.  8 USC Sec. 1101(f)(3) (1999).  A "crime in which fraud is an ingredient involves moral turpitude."  Jordan v. DeGeorge, 341 US 223, 227 (1951).  Souza was convicted of aiding and abetting a sale of a false or counterfeit social security card under 42 USC Sec. 408(a)(7)(C) and 18 USC Sec. 2.  Although Sec. 408(a)(7)(C) does not explicitly include intent to defraud as an element of the crime, fraud is inherent in the crime as there is an intent to pass off counterfeit items as genuine.  Moreover, it involves the deliberate deception of the government and impairment of its functions.  As Sec. 408(a)(7)(C) involves a crime of moral turpitude, the district court was correct to grant summary judgment, upholding the INS's denial of naturalization.

14)  IMMIGRATION / INDEFINITE CIVIL DETENTION:  Moreno-Pena v. INS, 01-17309 (9th Cir. Dec. 19, 2002) (unpublished).  Cowen, Hawkins, and W. Fletcher, Circuit Judges.
          The central issue raised by Moreno-Pena's appeal was whether the Supreme Court's statutory construction of 8 USC Sec. 1231(a)(6) in Zadvydas v. INS, 533 US 678 (2001), applies to inadmissible aliens.  This issue has been settled by Lin Guo Xi v. INS, 298 F.3d 832 (9th Cir., Aug. 1, 2002).  Section 1231(a)(6) provides for the detainment of aliens subject to a final order of removal.  In Zadvydas, to avoid constitutional difficulties arising out of the indefinite detention of deportable aliens, the Supreme Court interpreted the statute to contain an implicit "reasonable time" limitation.  Moreno-Pena, an inadmissible "Mariel Cuban" in INS custody, filed a habeas petition, arguing that the Supreme Court's statutory construction applies to inadmissible as well as deportable aliens.  The district court rejected Moreno-Pena's petition, but in Xi, the Circuit accepted the same argument made by Moreno-Pena.  Following Xi, the holding of Zadvydas applies to Moreno-Pena. If there is "no significant likelihood of removal in the reasonably foreseeable future," Zadvydas, 533 US at 701, Moreno-Pena must be released from INS custody.  The INS may, of course, attach reasonable conditions to his parole.  See 8 USC Sec. 1231(a)(3).  If Moreno-Pena violates those conditions, he may be subject to criminal sanctions.  But he may not be held indefinitely in civil detention.  Moreno-Pena emphasized the length of time that has passed and requested a remand to the district court with instructions that it order his release from INS custody.  But based on the record before it, the USCA found itself unable to rule on the likelihood that Moreno-Pena will be removed.  He has been ordered to Cuba, or alternatively to the Philippines.  In the USCA, he and the INS dispute the likelihood that Cuba will accept him; neither party presented an argument about the likelihood of deportation to the Philippines.  The district court, in its original ruling, did not make a finding about the likelihood of deportation, and there is little evidence in the record on this matter.  The USCA thus remanded the case for further proceedings.  Given the length of time that Moreno-Pena has been in custody, the USCA expressed confidence that the district court will make every effort to resolve the matter expeditiously.