1)  SECURITIES FRAUD:  In re The Vantive Corporation Securities Litigation, 00-16136 (9th Cir. Mar. 15, 2002).  Allegations of corporate insiders' knowledge of true but concealed circumstances due to their hands-on management style, their interaction with other corporate officers and employees, their attendance at management and board meetings, plus weekly and monthly reports from the company's finance department, were insufficient to show scienter in a securities fraud class action under the heightened pleading requirements of the Private Securities Litigation Reform Act (PSLRA);  neither the corporate transactions nor the insider stock sales were sufficient to save the complaint, in light of the total deficiency of the allegations of knowing falsehood or deliberate recklessness at the time statements were made;  the complaint failed to state a securities violation under the pleading standard of the PSLRA.  Canby (author), Hawkins, and Gould, Circuit Judges.  W. Lerach of San Diego, CA, for the plaintiff-appellant;  S. Weiss of San Diego, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

2)  SECURITIES FRAUD:  Lipton v. PathoGenesis Corp., 00-35268 (9th Cir. Mar. 20, 2002).  An insiders' sale of stock following an optimistic growth report did not raise a strong inference of fraudulent intent as required by the Private Securities Litigation Reform Act (PSLRA) where the stock sales were not substantial in the aggregate compared to the market, no other insiders sold during the class period, and the sales were only a small percent of the insider's total holdings in the company;  the allegations in the plaintiffs' complaint, taken as a whole, failed to raise a strong enough inference of scienter to meet the heightened pleading requirements of the PSLRA.  Kleinfeld and Gould (author), Circuit Judges, and Roll, District Judge.  M. Ide of Seattle, WA, for the plaintiffs-appellants / cross-appellees;  S. Keehnel of Seattle, WA, for the defendants-appellees / cross-appellants. (Download the full text at www.ce9.uscourts.gov/) 

3)  COPYRIGHTS:  A&M Records v. Napster, 01-15998 (9th Cir. Mar. 25, 2002).  The district court properly exercised its power to enforce compliance with a modified preliminary injunction in ordering a peer-to-peer music file sharing service to shut down its new file transferring service until the court is satisfied that the system blocks out noticed copyrighted works;  the terms of the modified preliminary injunction are not vague and properly reflected the relevant law on vicarious and copyright infringement.  Schroeder, Beezer (author), and Paez, Circuit Judges.  R. Frackman of Los Angeles, CA, for the plaintiffs-appellants / cross-appellees;  L. Pulgram of San Francisco, CA, for the defendant-appellee / cross-appellant;  D. Cendali of Los Angeles, CA, for the amici. (Download the full text at www.ce9.uscourts.gov/) 

4)  ENVIRONMENTAL LAW:  Kern v. U.S. Bureau of Land Management, 99-35254 (9th Cir. Mar. 22, 2002).  Under the National Environmental Policy Act, the Bureau of Land Management must fully analyze the environmental impacts, including the cumulative impacts, of a site-specific project in any Environmental Assessment for the project; in this case, the USCA found the EIS inadequate under the NEPA;  dissenting in part, Judge Graber thought that it was not up to the court to impose the best way to analyze the problem, but only to determine whether the BLM's decision to limit its examination of cumulative impacts was supported by the record and neither arbitrary nor capricious;  she thought that here the BLM permissibly limited its EA, including the cumulative impact component, to the Sandy-Remote Analysis Area.  Goodwin, Graber (dissenting in part), and W. Fletcher (author), Circuit Judges.  G. Hickcox of Durango, CO, for the plaintiffs-appellants;  AAG L. Schiffer of Portland, OR,  for the defendant-appellee;  M. Rutzick of Portland, OR, for the defendants-intervenors-appellees. (Download the full text at www.ce9.uscourts.gov/) 

5)  ENVIRONMENTAL LAW:  Biodiversity Legal Found. v. Badgley, 00-35076 (9th Cir. Mar. 21, 2002).  Both the initial and final determinations to list a species as endangered under the Endangered Species Act must be completed within 12 months of the date the petition is received;  the U.S. Fish and Wildlife Service's failure to complete the listing determinations within the mandated time compelled injunctive relief.  T.G. Nelson, Graber, and Rawlinson (author), Circuit Judges.  D. Rohlf of Seattle, WA, for the plaintiffs;  M. Thurston for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

6)  BANKRUPTCY / TAX FRAUD:  In re Renovizor's, Inc., 99-15827 (9th Cir. Mar. 14, 2002).  Under California law, civil tax fraud must be proved by "clear and convincing evidence," rather than by a "preponderance of the evidence" which was the standard that had been adopted by the bankruptcy court and affirmed by the district court.  B. Fletcher, O'Scannlain, and  Gould (author), Circuit Judges.  D. Kirsch of San Jose, CA, for the debtor-appellant; DAG J. Standen of San Francisco, CA, for the appellee.(Download the full text at www.ce9.uscourts.gov/) 

7)  FOREIGN ARBITRATION:  Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 01-15539 (9th Cir. Mar. 26, 2002).  In suits to confirm a foreign arbitral award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, due process requires that the district court have jurisdiction over the defendant's person or property;  as here plaintiff failed to identify property owned by the defendant in the forum, or to allege facts supporting a finding of personal jurisdiction, the USCA affirmed the district court's dismissal of the complaint.  Goodwin, Sneed, and Trott (author), Circuit Judges.  M. Bresly of San Francisco, CA, for the plaintiff;  W. Haskell of Haywood, CA, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

8)  LABOR ARBITRATION:  Huber, Hunt & Nichols, Inc. v. United Assoc. of Journeymen, Local 38, 00-17085 (9th Cir. Mar. 6, 2002).  Where a project-wide labor agreement consigns to a project-wide arbitrator all issues concerning the application and interpretation of the agreement, except for jurisdictional disputes, it implicitly assigns to that arbitrator the threshold determination of whether a dispute is jurisdictional;  here the substantive dispute between the parties is distinctly different from the dispute over which of two arbitrators had the power to hear the matter;  the district court erroneously concluded that the determination of who had the power to hear the matter depended upon the substance of the grievance;  the USCA held instead that the answer depended upon the text, structure, and context of the project-wide labor agreement, and that the issue was properly decided by the project-wide arbitrator.  Beezer (author), Trott, and Tallman, Circuit Judges.  J. Watson of San Francisco, CA, for the plaintiff;  G. Piller of San Francisco, CA, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

9)  LABOR ARBITRATION:  Circuit City Stores, Inc. v. Ahmed, 98-55896 (9th Cir. Mar. 22, 2002).  A clearly stated arbitration agreement that becomes automatically instituted if an employee does not mail an "opt-out" form within 30 days, and that allows employees a meaningful choice not to participate in the program and to keep their jobs if they decide to opt out, is neither procedurally unconscionable nor a contract of adhesion.  B. Fletcher, D.W. Nelson (author), and Brunetti, Circuit Judges.  A. Wyatt of Woodland Hill, CA, for the respondent;  R. Berry of Seattle, WA, for the petitioner.(Download the full text at www.ce9.uscourts.gov/) 

10)  LABOR LAW:  Children's Hospital Medical Center of Northern California v. California Nurses Association, 00-15636 (9th Cir. Mar. 22, 2002).  Under the National Labor Relations Act, a general "no-strike" clause in a collective bargaining agreement does not bar a union from engaging in a "sympathy strike" to show support for members of another union engaged in a primary strike;  for a union to waive the Section 7 right to engage in a sympathy strike, the waiver must be clear and unmistakable so that the membership will be on notice that this important collective bargaining right is being bargained away.  Reinhardt (author), Hawkins, and Rawlinson, Circuit Judges.  B. Glatzer of San Francisco, CA, for the appellant;  M. Lawhon of Oakland, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

11)  LABOR LAW:  United Food & Commercial Workers Union, Local 1036 v. NLRB, 99-71317 (9th Cir. Mar. 25, 2002).  Under Sec. 8(a)(3) of the National Labor Relations Act, a union serving as a bargaining unit's exclusive bargaining representative may charge all employees, member and non-members alike, the costs involved in organizing, at least when organizing employers within the same competitive market as the bargaining unit employer;  were "free riders" able to obtain the full benefits of the union's efforts without paying their share of the costs, union membership would likely be drastically reduced and the collective bargaining system seriously undermined.  Schroeder, Pregerson, Reinhardt (author), Kozinski, T.G. Nelson, Tashima, Thomas, Silverman, Wardlaw, W. Fletcher, and Fisher, Circuit Judges.  D. Rosenfeld of Oakland, CA, for the petitioner;  J. Coppess of Washington, DC, for the intervenors;  S. Goldstein of Washington, DC, for the NLRB. (Download the full text at www.ce9.uscourts.gov/) 

12)  EMPLOYMENT LAW:  Almada v. Allstate Ins. Co., 00-16115 (9th Cir. Mar. 26, 2002).  No reasonable trier of fact could conclude that an employee manual modified an "at-will" employment contract in the face of a clear disclaimer in the employee manual that it is not a statement of contractual rights and that employment is "terminable at-will";  the plaintiff presented no evidence raising a genuine issue of material fact as to his "at-will" employment status.  Canby (author), Graber, and Paez, Circuit Judges.  K. MacOmber of Tucson, AZ, for the plaintiffs;  B. Cooper of Phoenix, AZ, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

13)  EMPLOYMENT LAW / FIRST AMENDMENT:  Allen v. Iranon, 99-16896 (9th Cir. Mar. 13, 2002).  The "mixed-motive" analysis of Mt. Healthy City School District Board of Education v. Doyle, 429 US 274 (1977), applies to a plaintiff's claim that he suffered an adverse employment action for exercising his First Amendment rights, regardless of whether he uses direct or circumstantial evidence to prove that there was a retaliatory motive behind the adverse employment action.  B. Fletcher, Canby (author), and Paez, Circuit Judges.  G. Hynds of Honolulu, HI, for the defendants-appellants;  M. Livingston of Honolulu, HI, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

14)  FAMILY & MEDICAL LEAVE ACT:  Scamihorn v. General Truck Drivers, Office, Food and Warehouse Union, Local 952, 00-55722 (9th Cir. Mar. 4, 2002).  The phrase "to care for," for purposes of an eligible employee's qualification for leave under Family and Medical Leave Act (FMLA) to provide care for a seriously ill family member, can include providing psychological comfort to an ill parent receiving continuing treatment for incapacitating, deep depression;  dissenting, Judge Fernandez thought the plaintiff's case was clearly outside of the coverage of the FMLA, finding it doubtful that Congress passed the FMLA for the purpose of forcing employers to accommodate a worker who desires to care for a relative who is married, living with his wife, able to care for himself, and is caring for himself.  Browning, Fernandez (dissenting), and Fisher (author), Circuit Judges.  G. Lee of Irvine, CA, for the plaintiff;  R. Vogel of Los Angeles, CA, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

15)  FALSE CLAIMS ACT / ATTORNEYS' FEES: Pfingston v. Ronan Engineering Company, 00-56721 (9th Cir. Mar. 19, 2002).  The False Claims Act reserves for "rare and special circumstances" an award of attorneys' fees against an attorney;  here, the USCA remanded for the district court to reconsider whether attorneys' fees are warranted.  O'Scannlain (author) and Silverman, Circuit Judges, and Reed, District Court.  G. Carlin of Long Beach, CA, for the plaintiff-appellant;  L. Pellman of Los Angeles, CA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 

16)  DEFAMATION:  Van Buskirk v. Cable News  Network, 00-16616 (9th Cir. Mar. 20, 2002).  Plaintiff's allegations that CNN acted maliciously in a retraction broadcast by stating that he "had been taking medication for a nervous disorder for 10 years, though he finally stopped," without fully disclosing the additional facts that he had ceased taking medication more than 10 years earlier and that the medication was not mind-altering, juxtaposed with other statements in the retraction indicating that the plaintiff was an unreliable source at the time of his disputed interviews, was sufficiently to state a claim for relief under Rule 12(b)(6);  the USCA held that the issue of whether the plaintiff was defamed by CNN's comments regarding his taking medication for a nervous disorder merited further development and thus remanded that issue to the district court for further proceedings.  Bright (author), B. Fletcher, and Fisher, Circuit Judges.  C. Lyons of Charlotte, NC, for the appellant;  K. Baine of Washington, DC, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

17)  ANTI-INJUNCTION ACT / NON-COMPETE AGREEMENTS: Bennett v. Medtronic, Inc., 01-55966 (9th Cir. Mar. 27, 2002).  A district court's order restraining parties from seeking to enforce non-compete agreements in state court can constitute an injunction prohibited by the Anti-Injunction Act except as "as expressly authorized … by Congress, or where necessary in aid of [the federal court's] jurisdiction, or to protect or effectuate its judgments."  Schroeder, Cudahy, and McKeown (author), Circuit Judges.  J. Martin of Los Angeles, CA, for the defendants-appellants;  C. Hunsaker of San Diego, CA, for the plaintiffs-appellees. (Download the full text at www.ce9.uscourts.gov/) 

18)  SOVEREIGN IMMUNITY:  City of South Pasadena v. Mineta, 99-56205 (9th Cir. Mar. 28, 2002).  The State of California was not barred from invoking its sovereign immunity in federal court because it waived that immunity through participation in a predecessor lawsuit;  because California promptly raised its immunity defense against state claims in the current litigation, and because those claims are undisputably of the type barred by the Eleventh Amendment, the district court erred in failing to dismiss them.  Kozinski (author) and Thomas, Circuit Judges, and Collins, District Judge.  G. Mueller of San Diego, CA, for the defendants-appellants;  A. Rossmann of San Francisco, CA, for the plaintiffs-appellees.(Download the full text at www.ce9.uscourts.gov/) 

19)  PROPERTY:  Daniel v. County of Santa Barbara, 99-56887 (9th Cir. Mar. 12, 2002).  A party who buys property knowing it to be subject to a county's preexisting options to accept dedication of easements, which were already-accomplished physical takings, may not, by virtue of that purchase, revive a predecessors-in-interest's time-barred takings claims.  Trott, McKeown, and W. Fletcher (author), Circuit Judges.  S. Amerikaner of Santa Barbara, CA, for the plaintiffs;  V. Pesola of Santa Barbara, CA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

20)  EVIDENCE:  Orr v. Bank of America, 00-16509 (9th Cir. Mar. 5, 2002).  When a party relies on deposition testimony in a summary judgment motion without citing the page and line numbers, the court may in its discretion exclude that evidence;  when a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties, subject to the right of any party to present evidence to the ultimate fact-finder disputing its authenticity;  plaintiff's exhibits were mostly inadmissible due to lack of authentication or hearsay;  she thus could not raise a triable issue of material fact.  Goodwin, Sneed (author), and Trott, Circuit Judges.  K. Mirch of Reno, NV, for the plaintiff;  P. Gillette of San Francisco, CA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

21)  CIVIL PROCEDURE:  Nguyen v. Southwest Leasing & Rental, 00-57154 (9th Cir. Mar. 4, 2002).  Oral notice of entry of judgment was in this case insufficient to commence the 14-day time period of FRAP 4(a)(6);  however, notice under Rule 4(a)(6) is not limited to written communication when the quality of the communication rises to the functional equivalent of a written notice in that it is specific, reliable, and unequivocal.  Trott, Thomas (author), and Wardlaw, Circuit Judges.  J. Fay of Park City, UT, for the appellants;  H. Marston of Los Angeles, CA, for the appellees. (Download the full text at www.ce9.uscourts.gov/) 

22)  JURISDICTION:  James v. Price Stern Sloan, Inc., 00-35321 (9th Cir. Mar. 12, 2002).  When a party that has suffered an adverse partial judgment dismisses remaining claims without prejudice with the approval of the court, and the record reveals no evidence of intent to manipulate appellate jurisdiction, the judgment entered after the court grants the motion to dismiss is final and appealable under 28 USC Sec. 1291.  Kozinski (author) and Gould, Circuit Judges, and Schwarzer, District Judge.  J. Mele of Seattle, WA, for the plaintiff;  D. Goodnight of Seattle, WA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

23)  CIVIL PROCEDURE / RULE 60(b):  Community  Dental Services v. Tani, 00-56450 (9th Cir. Mar. 7, 2002).  Where a client demonstrates gross negligence on the part of his counsel, a default judgment against the client may be set aside pursuant to Rule 60(b)(6);  dissenting, Judge Tallman thought that regardless of where on the spectrum of conduct an attorney's action falls, the action is attributable to the client, and therefore cannot provide a valid basis for setting aside a default judgment under Rule 60(b)(6).  Brown-ing, Reinhardt (author), and Tallman (dissenting), Circuit Judges.  D. Burns of La Jolla, CA, for the defendant-appellant;  J. Cannon of Newport Beach, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

24)  JURISDICTION:  Estate of Robin Grant Kennedy v. Bell Helicopter Textron, Inc., 00-35240 (9th Cir. Mar. 15, 2002).  An essential aspect of the General Aviation Revitalization Act (GARA) statute of repose is the right to be free from the burdens of trial;  an appeal from an adverse ruling of a district court by a party claiming GARA protection falls within the collateral order doctrine; the USCA thus had jurisdiction to consider the defendant's appeal;  dissenting, Judge Paez thought that in asserting jurisdiction over this appeal from a non-final order denying summary judgment, the majority impermissibly expanded the collateral order doctrine;  he thought the majority's decision carved out a special and unwarranted exception with indeterminate boundaries, with the result that any time Congress enacts a statute of repose, defendants within the covered industry wield the added advantage in litigation of piecemeal review.  Wood (author), Trott, and Paez (dissenting), Circuit Judges.  W. O'Connor of Los Angeles, CA, for the defendant;  K. Kemper of Seattle, WA, for the plaintiff.(Download the full text at www.ce9.uscourts.gov/) 

25)  JURISDICTION / ABSTENTION:  City of Tucson v. U.S. West Communications, Inc., 00-16416 (9th Cir. Mar. 26, 2002).  A federal district court, sitting in diversity and applying the laws of Arizona, was competent to hear a quo warranto - declaratory judgment action involving state franchise disputes;  the USCA thus concluded that the requirements for Burford abstention were not present and that the Declaratory Judgment Act provides no bases for abstention; the USCA thus reversed and remanded to allow the district court to address the defendant's motion to dismiss, and, if necessary, to reach the merits of the case.  Noonan and Trott (author), Circuit Judges, and Ezra, District Judge.  P. Mooney of Phoenix, AZ, for the defendant;  W. Malone of Washington, DC, for the plaintiff;  R. Lehman of Tucson, AZ, for the plaintiffs-intervenors. (Download the full text at www.ce9.uscourts.gov/) 

26)  JURY INSTRUCTIONS:  Ayuyu v. Tagabuel, 01-15119 (9th Cir. Mar. 20, 2002).  Federal Rule of Civil Procedure 51 includes objections to the form of the verdict as well as to any instructions about the use of the form by the jury;  because no objections to the instructions were found in the record, they were deemed waived;  under Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707 (9th Cir. 2001), the Ninth Circuit has no "plain error" exception in civil cases where a party has failed to follow Rule 51.  Schroeder and Good-win (author), Circuit Judges, and Unpingco, District Judge.  L. Sosebee of Saipan, MP, for the defendant;  S. Pixley of Saipan, MP, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

27)  SERVICE OF PROCESS:  Rio Properties, Inc. v. Rio International Interlink, 01-15466 (9th Cir. Mar. 20, 2002).  A district court may properly order service of process by email under Federal Rule of Civil Procedure 4(f)(3), upon an elusive international internet business striving to evade service of process, which structured its activities in such as way that it could be contacted only via its email address, email is its preferred method of communication, it listed no easily discoverable street address, and it had no office, but only a computer terminal;  in this case, not only was service of process by email proper—that is, reasonably calculated to apprise the business of the pendency of the action and afford it an opportunity to respond—but it was the method of service most likely to reach the business.  Goodwin, Sneed, and Trott (author), Circuit Judges.  J. DePalma of Las Vegas, NV, for the defendant-appellant;  D. Stewart of Atlanta, GA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

28)  ATTORNEYS' FEES / FORFEITURE:  USA v. Real Property at 2659 Roundhill Drive, Alamo, California, 00-16772 (9th Cir. Mar. 18, 2002).  For purposes of awarding attorneys' fees to a prevailing party under the Equal Access to Justice Act, the action of the U.S. Department of Justice in continuing to claim that the drug forfeiture statute's "relation-back" doctrine grants the government an interest in property purchased with proceeds from illegal drug activity starting from the time the illegal events occurred, was not substantially justified after the Supreme Court had clearly explained that the "relation-back" doctrine could not be applied until a final judgment of forfeiture has been entered;  dissenting, Judge Kozinski thought that reasonable people could, and did, think the government's position was justified;  notably, the district court believed that the position of the U.S. was not only reasonable, but correct as the district court had granted the U.S. summary judgment, accepting its arguments.  Wood, Kozinski (dissenting), and O'Scannlain (author), Circuit Judges.  AUSA R. Ward of San Francisco, CA, for the appellant;  D. Thaler of Oakland, CA, for the appellee.(Download the full text at www.ce9.uscourts.gov/) 

29)  CIVIL FORFEITURE:  USA v. U.S. $42,500, 00-55875 (9th Cir. Filed Mar. 13, 2002; amended Mar. 26, 2002).  Probable cause to initiate civil forfeiture proceedings against seized money existed under an aggregate of undisputed facts, (e.g., the amount of money was large, it was wrapped in cellophane, there was a sophisticated dog alert to it, and its claimant's steadfastly refused to identify her alleged principal);  concurring, Judge Trott thought it "a mistake to regard the adversary system as an opportunity to see what you can get away with or if you can pull the wool over a court's eyes";  this case, "as filed and pursued," he said, "gives every appearance that counsel is representing not [the claimant], but protecting someone behind the scenes who prefers not to be identified."  Schroeder, Trott (author & concurring), and Rawlinson, Circuit Judges.  R. Barnett of San Diego, CA, for the claimant;  AUSA R. Linley of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

30)  SOLID WASTE MANAGEMENT:  AGG Enterprises v. Washington County, 00-35449 (9th Cir. Mar. 12, 2002).  The Federal Aviation Administration Authorizing Act does not preempt local regulation of mixed solid waste as Congress did not intend that mixed solid waste be considered "property.".  Hug, T.G. Nelson, and Gould (author), Circuit Judges.  D. Olsen of Hillsboro, OR, for the defendants;  B. Ellis and E. Sullivan of Portland, OR, for the intervenors; T. Thompson of San Francisco, CA, for the amici curiae.(Download the full text at www.ce9.uscourts.gov/) 

31)  INJURY TO REPUTATION / DUE PROCESS:  Wenger v. Monroe, 00-56696 (9th Cir. Mar. 4, 2002).  Judicial review of a former National Guard officer's claim that the Guard violated his "Constitutional rights to due process for the protection of his good name and reputation" by a personnel decision to suspend proceedings on his promotion after his attendance at a Guard social event where strippers performed after dinner, is inappropriate when no charges were brought against the officer and no disciplinary action were taken;  moreover, he was honorably discharged, and he has not alleged that the Guard made any negative statements in connection with his discharge which had been based on statutorily mandated retirement rules.  O'Scannlain (author) and Silverman, Circuit Judges, and Reed, District Judge.  D. Winston of Los Angeles, CA, for the plaintiff;  AAG M. Rodda of Los Angeles, CA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

32)  EDUCATION LAW:  Oden v. Northern Marianas College, 00-16594 (9th Cir. Mar. 22, 2002).  A delay of nearly a year between a student's initial complaint of sexual harassment by a teacher and the date of her hearing on that claim did not constitute "deliberate indifference" under Title IX where there were valid reasons for the delay;  here there were valid reasons as, while the school authorities took action immediately after being notified of the alleged misconduct, it had a number of administrative hurdles to jump, including the formation of a sexual harassment hearing committee; in addition, the student had difficulty retaining an attorney and relocated from Saipan to the State of New Mexico.  Schroeder and Goodwin (author), Circuit Judges, and Unpingco, District Judge.  D. Cushnie of Saipan, MP, for the plaintiff-appellant;  F. Smith of Saipan, MP, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

33)  SOCIAL SECURITY:  Lopez v. Washington Mutual Bank, Inc., 01-15303 (9th Cir. Mar. 14, 2002).  A bank's practice of using an account holder's directly deposited Social Security and Supplemental Security Income benefits to cover overdrafts and overdraft fees violates 42 USC Secs. 407(a) and 1383(d)(1) because there was no "knowing, affirmative and unequivocal" consent by the account holder to such a practice;  concurring, Judge Noonan thought this holding was correct but that it produced the unhappy result that it made overdraft protection virtually impossible for Social Security recipients. D.W. Nelson, Noonan (concurring), and Hawkins (author), Circuit Judges.  R. Newman of Los Angeles, CA, for the plaintiffs; M. Larrabee of San Francisco, CA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

34)  PRISONERS' RIGHTS / FREEDOM OF SPEECH: Hargis v. Foster, 00-35466 (9th Cir. Mar. 7, 2002).  A triable issue of fact existed as to whether a prison's coercion regulation was constitutional as applied to a prisoner because of his statement to a guard that the guard's response to the prisoner's claim (that shaving with a razor blade could endanger the prisoner's safety due to his jerking and shaking during to a neurological disorder) could come up in pending state litigation;  dissenting, Judge Tallman would have affirmed the district court as the record reflected that the district court had already evaluated the claim as an "as-applied" challenged and had properly rejected it;  Judge Tallman thought the majority had ignored the most important aspect of the context in which the speech was delivered—in a prison—and it is that prison setting that dictates the outcome of this case;  as Judge Tallman saw the matter, a recalcitrant prisoner seeking an exception to a prison regulation threatening a guard to avoid compliance, and the warden affirmed a disciplinary violation after a prison hearing found the words coercive; .  B. Fletcher (author), McKeown, and Tallman (dissenting), Circuit Judges.  G. Miller of Seattle, WA, for the plaintiff;  S. Altig of Boise, ID, for the defendants.  (Download the full text at www.ce9.uscourts.gov/) 

35)  FREEDOM OF SPEECH:  Gardner v. State Bar of Nevada, 01-15152 (9th Cir. Mar. 21, 2002). It was not an infringement of a lawyer's First Amendment freedoms to be forced to contribute through his state bar dues to the bar's public relations campaign to advance the public understand of law;  the campaign did not violate the attorney's right under the First Amendment not to be compelled to contribute to the expression of an idea he did not endorse or his right of freedom of association.  D.W. Nelson, Noonan (author), and Hawkins, Circuit Judges.  C. Gardner pro se;  R. Bare of Las Vegas, NV, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

36)  ATTORNEYS' SANCTIONS:  In re Kramer, 01-55115 (9th Cir. Mar. 6, 2002).  Where a federal court seeks to impose reciprocal discipline on a member of its bar, in this case disbarment, based on discipline imposed on the attorney by another court or disciplinary authority, it is the attorney's burden to show by clear and convincing evidence that reciprocal discipline is inappropriate under Selling v. Radford, 243 US 46 (1917).  O'Scannlain (author) and Silverman, Circuit Judges, and Reed, District Judge.  N. Johnson of Los Angeles, CA, for the petitioner-appellant. (Download the full text at www.ce9.uscourts.gov/) 

37)  ATTORNEYS' FEES:  Siripongs v. Davis, 00-15985 (9th Cir. Mar. 7, 2002).  Where the district court issued only a TRO in an inmate's civil rights suit and never finally adjudicated the issue of whether the inmate's rights were violated, the inmate cannot be said to have incurred fees in "proving an actual violation of [his] rights," as required by the Prison Litigation Reform Act.  Hug, D.W. Nelson (author), and Hawkins, Circuit Judges.  A. Schwartz of Berkeley, CA, and L. Schilling of Costa Mesa, CA, for the plaintiff;  J. Blonien of San Francisco, CA, for the defendants.  (Download the full text at www.ce9.uscourts.gov/) 

38)  ATTORNEYS' FEES:  Zambrano v. INS, 00-16191 (9th Cir. Mar. 7, 2002).  A court cannot reconsider the issue of subject matter-jurisdiction for purposes of awarding fees under the Equal Access to Justice Act when the underlying action had previously been dismissed for lack of subject-matter jurisdiction, and that decision has become final.  Hug (author), D.W. Nelson, and Hawkins, Circuit Judges.  R. Pearl of Berkeley, CA, for the appellants;  W. Howard of Washington, DC, for the appellees (Download the full text at www.ce9.uscourts.gov/) 

39)  CIVIL RIGHTS:  Schneider v. County of San Diego, 00-55709 (9th Cir. Mar. 21, 2002).  The appropriate measure of pre-judgment interest in a 42 USC Sec. 1983 case arising from an unconstitutional taking where just compensation was paid long after the taking is the "reasonably prudent investor" standard;  dissenting, Judge Tallman thought the majority drew a dubious distinction between Sec. 1983 claims seeking just compensation and other Sec. 1983 tort claims, a distinction neither presented by the parties nor considered by the district court.  Wardlaw (author), Paez, and Tallman (dissenting), Circuit Judges.  L. Goebel of San Diego, CA, for the plaintiff;  J. Sansone of San Diego, CA, for the defendants.(Download the full text at www.ce9.uscourts.gov/) 

40)  NATIVE AMERICAN LAW:  Midwater Trawlers Co-Operative v. Dept. of Commerce, 00-35717 (9th Cir. Mar. 5, 2002).  A 1999 regulation promulgated by the National Marine Fisheries Service that increased the amount of Pacific whiting fish allocated to the Makah Tribe was not based on the best available science;  the specific allocation in 1999 to the Makah was inconsistent with the scientific principles set forth in the Magnuson-Stevens Act.  Thomas (author), Graber, and Gould, Circuit Judges.  J. Walsh of San Francisco, CA, for the plaintiffs;  M. Slonim of Seattle, WA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

41)  NATIVE AMERICAN LAW:  AT&T Corporation v. Coeur d' Alene Tribe, 99-35088 (9th Cir. Mar. 19, 2002).  The district court determined that AT&T need not provide toll-free telephone service for the Coeur d'Alene Tribe's lottery;  on the Tribe's appeal, the USCA found that the tribal court lacked jurisdiction to resolve the dispute, but vacated the district court's determination that the lottery itself was illegal under the Indian Gaming Regulatory Act (IGRA);  the USCA concluded that AT&T was not the proper party to challenge the legality of the lottery;  dissenting in part, Judge Gould thought that the National Indian Gaming Commission did not render a final decision that the National Indian Lottery complies with the IGRA and therefore, that the district court could examine that issue in the first instance.  Browning, B. Fletcher (author), and Gould (dissenting in part), Circuit Judges.  R. Givens of Coeur d'Alene, ID, for the defendant-appellant;  H. Spierer of Basking Ridge, NJ, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

42)  NATIVE AMERICAN LAW / CIVIL FORFEITURE: Grey Poplars, Inc. v. 1,371,100 Assorted Brands of Cigarettes, 00-35841 (9th Cir. Mar. 8, 2002).  Cigarettes destined for sale to Indians in the State of Washington without state tax stamps and without being pre-approved as exempt by the Washington State Department of Revenue are "contraband" under federal law if the quantity requirements are met;  if contraband they are subject to seizure for forfeiture under the Contraband Cigarette Trafficking Act.  Politz, Canby (author), and Kleinfeld, Circuit Judges.  R. Bjur of Zillah, WA, for the claimant;  AUSA T. Rice of Spokane, WA, for the de-fendant. (Download the full text at www.ce9.uscourts.gov/) 

43)  IMMIGRATION:  Rodriguez-Lariz v. INS, 01-70006 (9th Cir. Mar. 13, 2002).  Equitable tolling of the time for filing a motion to reopen deportation proceeding was triggered when an individual, who was not an attorney, missed the deadline for filing an application for suspension of deportation and then lied about having done so, assuring the petitioners that it was the IJ who had lost the application that that the IJ's error could be rectified on appeal;  the individual then compounded his mistakes and misrepresentations by advising the filing of a motion for reconsideration that prejudiced the petitioner's claims.  Pregerson, Tashima (author), and Berzon, Circuit Judges.  V. Pradis of Los Angeles, CA, for the petitioners;  H. Phillips of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

44)  IMMIGRATION / CRIMINAL LAW:  USA v. Hernandez-Garcia, 00-50634 (9th Cir. Mar. 26, 2002).  "Entry"—and thus presence in the United States free of official restraint—is not required to sustain a conviction as a transporter of illegal aliens;  dissenting, Judge Rawlinson thought that because the transported aliens had not "entered the United States," having been under constant surveillance, the petitioner could not have been guilty of transporting them within the United States.  Rymer (author) and Rawlinson (dissenting), Circuit Judges, and Pogue, U.S. Court of Intl. Trade Judge.  FPD A. Krueger of San Diego, CA, for the defendant-appellant;  AUSA M. Rehe of San Diego, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

45)  INTERNATIONAL CHILD ABDUCTION REMEDIES ACT:  Gaudin v. Remis, 01-15096 (9th Cir. Mar. 11, 2002).  The parent of an abducted child who sues the abductor under the International Child Abduction Remedies Act and the Hague Convention on the Civil Aspects of International and Child Abduction, but who relocates permanently to the same country in which the abductor and children are found, moots her action and casts her lot with the judicial system of that country.  Thompson, O'Scannlain (author), and Berzon, Circuit Judges.  P. Lynch of Honolulu, HI, for the petitioner;  C. Chang of Honolulu, HI, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

46)  BORDER SEARCHES:  USA v. Tsai, 00-10483 (9th Cir. Mar. 5, 2002).  A brief examination of a traveler's valise and luggage at an airport by an INS agent was a "routine" border search, even though the agent knew the traveler was suspected of criminal activity;  concurring, Judge Berzon thought there was no reason to reach any issue regarding the validity of the search other than whether the INS agent had reasonable cause to believe that Tsai rendered himself inadmissible by aiding and abetting aliens in their attempt to enter the U.S. illegally.  Thompson, O'Scannlain (author), and Berzon (concurring), Circuit Judges.  R. Hartsock of Hagatna, GU, for the appellant;  AUSA K. Johnson of Hagatna, GU, for the appellee.(Download the full text at www.ce9.uscourts.gov/) 

47)  SEARCH WARRANTS:  Ramirez v. Butte-Silver Bow County, 99-36138 (9th Cir. Mar. 13, 2002).  A police officer who leads a search team pursuant to facially defective warrant is not entitled to qualified immunity;  line officers who had no duty to read the warrant and could not have known that it was defective could not reasonably be liable for failing to intercede.  Kozinski (author) and Gould, Circuit Judges, and Schwarzer, District Judge.  V. Kozakiewicz of Boise, ID, for the appellants;  AUSA W. Mercer of Billings, MT, for the appellees.  (Download the full text at www.ce9.uscourts.gov/) 

48)  SEARCH & SEIZURE:  USA v. Banks, 00-10439 (9th Cir. Mar. 5, 2002).  In executing a search warrant using the "knock and announce" procedure of 18 USC Sec. 3109, forced entry after a delay of 15 to 20 seconds after a single knock and announcement, without an affirmative denial of admission or other exigent circumstances, was insufficient in duration to satisfy constitutional safeguards;  dissenting in part, Judge Fisher thought that, although the case presented a close call, considering the defendant's specific circumstances (he resided in a small apartment, there was a loud knock and announcement, he was suspected of possessing illegal narcotics, and the warrant was executed in the middle of the day) it was not unreasonable for the officers to conclude that the defendant heard and constructively denied their request for entry.  Politz (author), W. Fletcher, and Fisher (dissenting in part), Circuit Judges.  R. Roske of Las Vegas, NV, for the defendant;  J. Green of Las Vegas, NV, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

49)  INVESTIGATORY DETENTION:  USA v. Thompson, 00-30382 (9th Cir. Mar. 4, 2002).  The off-shore detention of a vessel for 15-20 minutes following a safety inspection by Coast Guard officers who used no threats of force or coercive tactics while awaiting the results of a warrants check on the vessel's skipper (necessitated by the fact that the encounter took place on the water, the Coast Guard did not have the ability to conduct computerized warrant checks directly from their boat, and information had to be relayed via multiple parties) was a permissible investigatory detention that need only be based on the officers' reasonable suspicion that criminal activity may be afoot;  in light of the mobility of the vessel and the proximity to the international border, an additional 15-20-minute delay was incidental when compared to the Government's interest in the "prevention, detection, and suppression of violations of laws of the United States." 14 USC Sec. 89(a)(2001)  B. Fletcher, McKeown, and Tallman (author), Circuit Judges.  S. Rao of Washington, DC, for the plaintiff;  R. Leen of Seattle, WA, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

50)  EVIDENCE:  USA v. Nguyen, 00-10353 (9th Cir. Mar. 25, 2002).  Evidence of consanguinity between the sender of a package containing narcotics, whose driver's license bore the same address as the return address on the package, and the defendants who receive the package, in conjunction with other evidence, was sufficient to support the defendants' convictions for conspiring to import, aiding and abetting each other to import, and attempt to possess with intent to distribute, over 50 grams of methamphetamine.  Schroeder and Goodwin (author), Circuit Judges, and Munson, District Judge.  H. Trapp of Hagatna, GU, for the defendant-appellant;  AUSA M. Kondas of Hagatna, GU for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

51)  ESCAPES:  USA v. Novak, 01-10346 (9th Cir. Mar. 4, 2002).  For purposes of measuring duration, an escape begins when the prisoner departs from lawful custody with the intent to evade detection.  Goodwin, Sneed, and Trott (author), Circuit Judges.  A. Modaber of Las Vegas, NV, for the defendant;  AUSA R. Bork of Las Vegas, NV, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

52)  MAIL FRAUD:  USA v. LeVeque, 00-30385 (9th Cir. Mar. 15, 2002).  The mail fraud statute, 18 USC Sec. 1341, did not cover a scheme to obtain a government-issued hunting license by a company providing outfitting services for hunting expeditions.  Tashima and Tallman (author), Circuit Judges, and Mollway, District Judge.  G. Jackson of Helena, MT, and P. Leander of Bigfork, MT, for the defendants;  AUSA K. McLean of Missoula, MT, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

53)  CRIMINAL PROCEDURE:  USA v. Smith, 00-30120 (9th Cir. Mar. 7, 2002).  Under 46 USC Sec. 1903(a), which proscribes the possession of narcotics with intent to distribute on a vessel subject to the jurisdiction of the United States, the court decides whether the United States has jurisdiction over the place where the vessel was allegedly intercepted, and the jury decides the question of fact of whether the vessel was actually intercepted in that place. Trott (author), and Berzon, Circuit Judges.  S. McCloud of Seattle, WA, for the defendant;  AUSA A. Hayes of Seattle, WA, for the plaintiff.(Download the full text at www.ce9.uscourts.gov/) 

54)  SMUGGLING:  USA v. Garcia-Paz, 01-50078 (9th Cir. Mar. 13, 2002).  The term "merchandise" in 18 USC Sec. 545 (2001), which proscribes the smuggling of any illegal merchandise, includes marijuana;  the defendant may have been mistaken as to the type of merchandise, thinking it medicine rather than marijuana; this mistake however did not negate an element of the offense described in the statute;  hence, there was sufficient evidence to support his conviction under Sec. 545.  Goodwin, Wallace (author), and Thomas, Circuit Judges.  G. Burcham of San Diego, CA, for the defendant;  AUSA B. Pearce of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

55)  CONSPIRACY:  USA v. Romero, 99-30319 (9th Cir. Mar. 5, 2002).  Sufficient evidence existed for a jury to reasonably conclude that a conspiracy to sell drugs existed and that the defendant intended to further that conspiracy, even though he maintained that his actual purpose was to steal money from the deal.  McKeown, W. Fletcher, and Rawlinson (author), Circuit Judges.  A. Robinson of Seattle, WA, for the defendant;  AUSA A. Hayes of Seattle, WA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

56)  SENTENCING:  Powell v. Galaza, 01-15195 (9th Cir. Mar. 4, 2002).  During the defendant's trial for failure to appear at a sentencing hearing, the court instructed the jury that the defendant's own testimony satisfied the specific intent element of the crime;  such an instruction is impermissible under the principles of Carella v. California, 491 US 263 (1989), and Sandstrom v. Montana, 442 US 510 (1979);  as the state court of appeals failed to apply, or even cite, the proper controlling Supreme Court authority, the USCA reversed the district court's denial of the petition for writ of habeas corpus.  B. Fletcher, Boochever, and Fisher (author), Circuit Judges.  AFPD A. McClure of San Francisco, CA, for the petitioner;  DAG J. Vance of San Francisco, CA, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

57)  SENTENCING:  USA v. Hardy, 01-50328 (9th Cir. Mar. 4, 2002).  Under the Sentencing Guidelines, the proper measure of value for determining the victim's loss from stolen goods that he had intended to sell in the wholesale market is the wholesale price, where the defendant did not attempt to sell the goods into the retail market, but instead sought only to sell to resellers.  Beezer (author) and Wardlaw, Circuit Judges, and Schwarzer, District Judge.  AUSA T. O'Brien of Los Angeles, CA, for the plaintiff-appellee;  DFPD K. Young of Los Angeles, CA, for the defendant-appellant. (Download the full text at www.ce9.uscourts.gov/) 

58)  SENTENCING:  USA v. Hoskins, 00-50045 (9th Cir. Mar. 7, 2002).  A store security guard who helped rob the store did not hold a "position of public or private trust" for sentencing enhancement purposes under USSG Sec. 3B1.3.  Schroeder, Cudahy, and McKeown (author), Circuit Judges.  R. Rome of Van Nuys, CA, for the defendant;  AUSA S. Meloch of Los Angeles, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

59)  SENTENCING:  USA v. Williams, 00-10629 (9th Cir. Mar. 4, 2002).  A district court abused its discretion by granting a downward departure from the applicable sentencing guideline range on the basis of its view that the defendant would have received a lesser sentence had he been prosecuted in state court, as the district court believed he should have been.  Canby (author), Hawkins, and Gould, Circuit Judges.  AUSA T. Flynn of Sacramento, CA, for the appellant;  D. Brace of Sacramento, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

60)  SENTENCING:  Taylor v. Sawyer, 01-35103 (9th Cir. Mar. 28, 2002).  The petitioner sought an order directing the Federal Bureau of Prisons (BOP) to designate an Oregon Department of Corrections facility for service of his federal sentence nunc pro tunc to May 10, 1993, thereby giving effect to an allegedly concurrent state sentence;  the USCA concluded that the BOP was under no obligation to designate the state facility for the service of his federal sentence.  Hug, T.G. Nelson, and Gould (author), Circuit Judges.  AFPD S. Wax of Portland, OR, for the petitioner-defendant;  AUSA M. Brown of Portland, OR, for the respondent-appellee. (Download the full text at www.ce9.uscourts.gov/) 

61)  SENTENCING:  USA v. Hughes, 01-30089 (9th Cir. Mar. 13, 2002).  Sentencing Guideline Sec. 2G1.1(c)(1), which directs a court to use Guideline Sec. 2G2.1 "if the offense involved causing, transporting, permitting, or offering or seeking by notice or advertisement, a person less than 18 years of age to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct," applies to a defendant who's primary purpose in causing the juvenile to engage in sexually explicit conduct was sexual gratification, and producing the visual depiction of the conduct was merely a secondary purpose.  Thomas, Graber (author), and Gould, Circuit Judges.  AFPD N. Bergeson of Portland, OR, for the defendant-appellant;  AUSA J. Deits of Portland, OR, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

62)  HABEAS CORPUS:  Reese v. Baldwin, 01-35153 (9th Cir. Mar. 12, 2002).  A habeas petitioner must indicate to a state's highest court the specifically federal nature of a claim in order to exhaust it;  presenting a federal claim explicitly at a state post-conviction relief court was insufficient for exhaustion;  as the petitioner fairly presented his federal ineffective assistance claim to the state courts, the USCA remanded for further proceedings on his petition;  dissenting, Judge Nelson thought that because the petitioner failed to cite any federal basis for his claim of ineffective assistance of counsel to the state supreme court, he failed fairly to present the claim to that court and thus the judgment of the federal district court below should have been affirmed;  Judge Nelson would affirm the district court on the ground that the petitioner procedurally defaulted his claim for ineffective assistance of appellate counsel by failing fairly to present it to the state supreme court.  Hug, T.G. Nelson (dissenting), and Gould (author), Circuit Judges.  AFPD D. Balske of Portland, OR, for petitioner;  AAG R. Rocklin of Salem, OR, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

63)  HABEAS CORPUS:  Killian v. Poole, 00-16477 (9th Cir. Mar. 13, 2002).  The use of perjured testimony of a "make-or-break" witness, the withholding of evidence that would help show the falsity of the testimony, the reliance on the perjury by the prosecutor in final argument, alone or in combination justified habeas relief;  the USCA thus reversed and remanded to the district court with instructions to grant the writ unless the state grants the petitioner a new trial within a reasonable time.  Hug, D.W. Nelson, and Hawkins (author), Circuit Judges.  W. Genego of Santa Monica, CA, for the petitioner;  P. Whalen of Sacramento, CA, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

64)  HABEAS CORPUS:  Hernandez v. Small, 00-56286 (9th Cir. Mar. 7, 2002).  The admission in a California criminal trial of an accomplice's self-inculpatory extrajudicial statement (that did not even mention the petitioner) as falling within California's hearsay exception for declarations against penal interests did not violate the Confrontation Clause of the Sixth Amendment.  Archer, O'Scannlain (author), and Silverman, Circuit Judges.  J. Rochlin of Los Angeles, CA, for the petitioner-appellant;  AG B. Lockyer of Los Angeles, CA, for the respondent-appellee.(Download the full text at www.ce9.uscourts.gov/) 

65)  HABEAS CORPUS:  Osband v. Woodford, 00-99016 (9th Cir. Mar. 6, 2002).  While a petitioner in a habeas action who raises a Sixth Amendment claim of ineffective assistance of counsel waives the attorney-client privilege as to the matters challenged, under McDowell v. Calderon, 197 F.3d 1253 (9th Cir. 1999) (en banc), it is within the discretion of the district court to limit that waiver to the habeas proceeding in which the ineffective assistance issue is raised.  Politz, W. Fletcher (author), Fisher, Circuit Judges.  W. Campbell of Sacramento, CA, for the respondent-appellant;  C. Alvarez of Sacramento, CA, for the petitioner-appellee. (Download the full text at www.ce9.uscourts.gov/) 

66)  HABEAS CORPUS:  Mancuso v. Olivarez, 00-16188 (9th Cir. Mar. 6, 2002).  A jury's consideration of extrinsic evidence in the form of 1) a witness's improper reference to a "parole search" of the defendant's apartment, and 2) the jury foreman's deduction that the defendant earlier had been convicted of a felony or felonies based on his assessment of booking numbers on the defendant's photograph that had been admitted into evidence, were not unduly prejudicial when the jury never learned the prejudicial details of the defendant's criminal history and the trial judge, who was aware of the prejudicial possibility of the defendant's criminal record and took steps to prevent such evidence from going to the jury, did not believe a new trial was warranted after listening to evidence including that of juror misconduct.  Beezer, Trott, and Tallman (author), Circuit Judges.  AFD A. Claire of Sacramento, CA, for the petitioner;  DAG J. Marinovich of Sacramento, CA, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

67)  HABEAS CORPUS:  Greene v. Lambert, 01-35595 (9th Cir. Mar. 26, 2002).  The Supreme Court of Washington's response to a motion to reconsider its opinion was an adjudication on the merits of a newly raised Sixth Amendment claim;  that claim was thus exhausted in state court which permitted the USCA to address it;  however, the state supreme court unreasonably applied federal constitutional principles that were clearly established by the U.S. Supreme Court;  the USCA thus affirmed the district court's order granting the petition for a writ of habeas corpus;  dissenting, Judge O'Scannlain thought that the state supreme court's explicit statement that it did not reach the petitioner's Sixth Amendment issue left that issue unexhausted, notwithstanding the court's addition of a few explanatory words.  O'Scannlain (dissenting), Graber (author), and McKeown, Circuit Judges.  P. Weisser of Olympia, WA, for the respondent-appellant;  W. Greene pro se. (Download the full text at www.ce9.uscourts.gov/) 

68)  HABEAS CORPUS:  Rees v. Hill, 01-70750 (9th Cir. Mar. 26, 2002).  Because the Supreme Court has not mandated that Apprendi v. New Jersey, 530 U.S. 466 (2000), applies retroactively on collateral review, a petitioner whose first habeas petition was filed prior to Apprendi cannot meet the requirements of 28 USC Sec. 2244 for obtaining leave to file a second habeas petition.  Hug (author), T.G. Nelson, and Gould, Circuit Judges.  AFPD W. Willis of Portland, OR, for the petitioner;  T. Slywester of Salem, OR, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

69)  HABEAS CORPUS:  USA v. Sanchez-Cervantes, 98-35897 (9th Cir. Filed Mar. 1, 2002; amended Mar. 26, 2002). The rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), does not apply retroactively to cases on initial collateral review for federal habeas relief;  concurring, Judge Hug thought the opinion was compelled by USA v. Buckland, 2002 WL 63718 (9th Cir. Jan. 18, 2002) (en banc), but also thought that an analysis under Teague v. lane, 489 US 288 (1989), would be quite different had the jury been required to find the quantity of drugs involved in the defendants drug violations.  Hug (concurring), T.G. Nelson (author), and Gould, Circuit Judges.  W. Labahn of Eugene, OR, for the defendant;  AUSA C. Cardani of Eugene, OR, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

70)  HABEAS CORPUS:  Karis v. Calderon, 98-99025 (9th Cir. Mar. 18, 2002).  Penalty phase counsel's failure to adequately investigate and present known mitigating evidence of a capital defendant's childhood, family situation and the serious abuse he suffered constituted ineffective assistance of counsel and warranted reversal of the death penalty;  dissenting in part, Judge Kleinfeld thought the majority had mistakenly treated counsel's failure to put on evidence of an abusive childhood as per se ineffective assistance, without the required deference to defense counsel's judgments required by Strickland v. Washington, 466 US 668 (1983);  the jury, Judge Kleinfeld noted, sentenced Karis to death because of his horrible crimes, not because he had a bad lawyer;  Karis, Judge Kleinfeld said, presented no evidence that errors by counsel, if they were errors at all, were so grave "that it is as though he had no lawyer at all in the Sixth Amendment sense," quoting Caro v. Calderon, 165 F.3d 1223, 1234 (Kleinfeld, J. dissenting).  Hug (author), Browning, and Kleinfeld (dissenting in part), Circuit Judges.  N. Hile of Sacramento, CA, for the petitioner;  DAG P. O'Connor of Sacramento, CA for the respondent.(Download the full text at www.ce9.uscourts.gov/) 

71)  PRISONS:  USA v. Phelps, 99-10042 (9th Cir. Mar. 21, 2002).  With the conditional release of a prisoner found not guilty by reason of insanity, a district court may impose additional conditions not relating to the prisoner's medical, psychiatric, or psychological status to ensure public safety;  while the USCA concluded that in this case the release conditions were not in excess of those authorized by 18 USC Sec. 4243(f), the failure of the release proceedings to comply with Sec. 4243(f) required that the release order be vacated and that the prisoner be rehospitalized until such time as release proceedings are instituted and conducted in accordance with Sec. 4243(f). .  Hug (author), D.W. Nelson, and Hawkins, Circuit Judges.  G. Boisseau of Santa Rose, CA, for the appellant;  AUSA L. Gray of San Francisco, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

72)  PAROLE / AMERICANS WITH DISABILITY ACT: Thompson v. Davis, 01-15091 (9th Cir. Mar. 8, 2002).  The district court improperly dismissed the plaintiffs complaint which alleged that the defendants violated Title II of the American with Disabilities Act (ADA) by denying them full and fair consideration for parole based on their disability of drug addiction;  state parole proceedings constitute an activity of a public entity that falls within the reach of the ADA.  Bright, B. Fletcher, and Fisher, Circuit Judges. Per Cu-riam.  S. Norman of San Quentin, CA, for the plaintiffs-appellants;  J. Applebaum of Sacramento, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

 1)  UNFAIR COMPETITION:  Avid Identification Systems, Inc. v. Schering-Plough Corporation, 01-55588 (9th Cir. Mar. 25, 2002) (unpublished).  Pregerson, Fisher, and Tallman, Circuit Judges.
        The District Court for the Central District of California, Judge Phillips presiding, denied Avid Identification Systems' motion for partial summary judgment and its request for an injunction against Schering-Plough Corporation and Schering-Plough Animal Health Corporation in Avid's action alleging unfair competition under the Lanham Act and California law.  Avid appealed that ruling and also the district court's order, certified pursuant to Federal Rule of Civil Procedure 54(b), granting summary judgment in favor of Schering on Avid's claims.  Avid contends that the district court erred in holding that there were no disputed issues of fact regarding the accuracy and materiality of various representations made by Schering. 
           The USCA reversed in part, affirmed in part, and remanded for trial.  Under Sec. 43(a) of the Lanham Act, an actionable claim for false advertising includes the following elements: (1) a false statement of fact in a commercial advertisement;  (2) evidence that the statement actually deceived or has the tendency to deceive a substantial segment of its audience;  (3) the deception must be material (i.e., likely to influence potential customers);  (4) evidence the defendant caused the statement to enter interstate commerce; and (5) proof of injury incurred by the plaintiff, either by loss of sales or lessening of goodwill associated with its products.  With regard to Schering's representations about its market share, the district court held that the statements were not actionable under the Lanham Act because they were "too vague to be literally false" and because Avid presented no evidence that the statements had any impact on consumer behavior.  The USCA disagreed.  Schering's statements, variously representing its market share to be 86%, 90%, 92%, and 98%, were specific and measurable claims of the type the Ninth Circuit has held actionable under the Lanham Act in other cases.  Moreover, Avid provided evidence that Schering made these apparently false market share representations in a proposal to the Harris County Medical Association, to PennHip certified veterinarians, and in various advertisements.  Because these representations were literally false, the statements carry with them the presumption that consumers relied on and were deceived by them.  Avid succeeded in raising a triable issue of fact as to its Lanham Act claim regarding Schering's market share representations.  Avid also alleged that Schering made false statements about the migration rate of their competing products to animal owners, veterinarians, animal control facilities and the U.S. military.  Avid maintained that Schering claims that HomeAgain microchips "eliminated" migration, and Avid's microchips had a "serious migration problem," and that studies showed that Schering's microchips were more reliable than Avid's.  Even if not actually false, at a minimum Avid succeeded in identifying a triable issue as to whether Schering's statements were misleading in context and whether Avid suffered injury.  The USCA thus reversed the district court's grant of summary judgment on both of Avid's Lanham Act claims, and remanded for trial.  Avid's state law claims under California Business and Professions Code Sec. 17200 were "substantially congruent" to its claims under the Lanham Act.  The USCA thus reversed the district court's grant of summary judgment on these claims also for the reasons stated above.
         Finally, Avid maintained that Schering interfered with its prospective economic advantage in violation of California law.  The elements of this tort are: (1) the existence of a prospective business relationship containing the probability of future economic rewards for the plaintiff; (2) knowledge by the defendant of the existence of the relationship; (3) intentional acts by the defendant designed to disrupt the relationship; (4) actual causation; and (5) damages to plaintiff proximately caused by defendant's conduct.  However, Avid failed to present a triable issue regarding any intentional acts by Schering to disrupt its prospective business relationship with a third party, causation, or its damages.  The USCA thus affirmed the district court's grant of summary judgment on Avid's claims of interference with prospective business relationship.

2)  SECURITIES FRAUD:  Burroughs v. Northrop Grumman Corporation, 00-57050 (9th Cir. Mar. 19, 2002) (unpublished).  Archer, O'Scannlain, Silverman, Circuit Judges.
        The Appellants, purchasers of Northrop Grumman Corporation common stock, appealed the Rule 12(b)(6) dismissal of their Sec. 10(b) securities fraud class action by the District Court for the Central District of California, Judge Tevrizian presiding, for failure to plead with particularity under the Private Securities Litigation Reform Act of 1995 (PSLRA) and In re Silicon Graphics, Inc. Securities Litigation, 183 F.3d 970 (9th Cir. 1999).  The appellants alleged that Northrop and its officers and directors inflated Northrop's stock price with statements about a proposed merger with Lockheed Martin even though they knew "with virtual certainty" that the Departments of Defense and Justice would attempt to block the merger on antitrust grounds or demand drastic, unacceptable asset divestitures.  The USCA affirmed.  It reviewed the district court's dismissal of the third amended complaint de novo and examined the securities fraud complaint to determine whether the appellants complied with the stringent pleading requirements of the PSLRA.  The allegations must be supported by "adequate corroborating details" including the sources of the information on which the allegations are based.  The appellants argue that the district court erred by taking judicial notice of redacted board meeting minutes.  Because appellants relied on the same board meeting minutes to support allegations of scienter in their third amended complaint, the district court did not abuse its discretion by taking judicial notice of the board meeting minutes to determine whether the minutes sufficiently corroborated the allegations of scienter.  The appellants argue that they sufficiently pleaded scienter pursuant to the PSLRA and Silicon Graphics.  However, the USCA agreed with the district court that the appellants failed to plead sources to support their facts.  When they did plead sources for their facts, the documents failed to support or directly contradicted the appellants' factual allegations.  Thus, the appellants did not comply with the heightened pleading standards of the PSLRA and Silicon Graphics.  Finally, the appellants argued that the district court should have dismissed with leave to amend.  The USCA reviewed the district court's denial of further leave to amend for an abuse of discretion and found that the district court did not abuse its discretion because further amendment would have been futile.  The appellants obtained extensive discovery in state court, unsuccessfully attempted to plead this case three times, and have come forward with no additional facts they could plead to meet the requirements of the PSLRA and Silicon Graphics.

3)  FRANCHISE LAW:  Roulette v. Ferrari of North America, 00-15762 (9th Cir. Mar. 28, 2002) (unpublished).  Pregerson and Rawlinson, Circuit Judges, and Weiner, District Court.
         The District Court for the Northern District of California, Judge Fogel presiding, dismissed Roulette's first amended complaint for failure to state a claim.  The complaint alleged that Ferrari of North America (FONA) interfered with Roulette's proposed acquisition of a Ferrari dealership by wrongfully refusing to consent to an assignment of the franchise by the franchisee, and that this in-terference constituted intentional interference with prospective economic advantage. 
         The USCA vacated the dismissal and remanded.  The district court, relying on Kasparian v. County of Los Angeles, 45 Cal. Rptr. 2d 90 (Ct. App. 1995), dismissed Roulette's complaint because it determined that Ferrari's franchisor status made Ferrari a party to the contract between Roulette and the franchisee, and thus that a claim of intentional interference was barred.  However, the USCA found that Kasparian did not apply. Kasparian sought to limit those plaintiffs who can properly assert an intentional interference claim by excluding those who are parties to the contract which if breached would entitle them to a contract damage claim.  Based on the policy of protecting the expectations of the contracting parties against frustration by third parties, the Kasparian court held that the tort of intentional interference may be asserted only against "outsiders who have no legitimate social or economic interest in the contractual relationship."  The rationale supporting this argument is that to allow a party who is not an "outsider" to state a claim for intentional interference would open up the use of tort theories to enable a party to the contract to recover extracontractual damages.  As Roulette has no contract remedy against FONA, he is clearly an "outsider" who may assert the tort claim of intentional interference against FONA.  The USCA thus held that the district court's reading of Kasparian was incorrect, finding that Roulette may assert his claim for intentional interference with economic advantage against FONA, and remanded the case for further proceedings.  The USCA found no need to address whether the district court abused its discretion in denying Roulette leave to amend his complaint.

4)  GIFT TAX: Maggos v. CIR, 00-71424 (9th Cir. Mar. 4, 2002) (unpublished).  D.W. Nelson and Hawkins, Circuit Judges, and Fitzgerald, District Judge.
         Mary Maggo's estate claimed that the IRS should not have assessed a gift tax on Mary's stock redemption because the redemption is rescindable under Illinois law.  Alternatively, the estate claimed that the gift tax amount assessed was too great because the Tax Court failed to take into account the settlement proceeds from the federal district court litigation.  The USCA affirmed on the first claim and remanded on the second.
         Mary's estate argued that the stock redemption is rescindable under Illinois law because Nikita breached his fiduciary duty as a trustee when he purchased trust property—namely 567 shares of PCAB stock.  This argument failed as the 567 PCAB shares were owned by Mary in her individual capacity at the time she redeemed them.  The 567 shares were taken out of the trust (by both Many and Nikita as co-trustee) and transferred to Mary in her individual capacity prior to the stock redemption transaction.  Because the shares were owned by Mary when they were redeemed, Nikita never purchased trust property.  Likewise, the USCA rejected the various other arguments the estate offered to suggest that the transaction would be rescindable, including Nikita's alleged fiduciary duty to his mother, fiduciary duty as an officer / director of PCAB, and state and federal securities law violations.  The common core to all of these claims was that Nikita had material information that he never shared with Mary so that he could get the shares for less than market value.  The USCA agreed that the Tax Court properly identified the problem with the claims:  the transaction was designed to effect an estate freeze.  An estate freeze works best (or maybe only works at all) when the asset to be frozen is valued at the low end of market value.  Thus, as the Tax Court concluded, the fair market value of the PCAB shares that were redeemed was not of material concern to Mary; she was a willing and informed party to the transaction, and her decision to redeem her shares was not induced by any chicanery. 
         The Tax Court's opinion did not addressed the estate's argument that the proceeds from the March 1998 settlement should be counted as additional consideration for Mary's PCAB stock ("settlement proceeds argument").  The USCA found the failure to address this argument to be error requiring a remand.
           After reviewing the records, the USCA found that the settlement proceeds argument was properly raised below.  The government attempted to justify the Tax Court's failure to address the settlement proceeds argument by arguing that the estate did not raise the issue in its pre-trial memorandum.  This however would have been practically impossible;  the district court litigation wasn't settled until more than six months after the deadline for submitting the pre-trial memo.  In addition, and once the case had proceeded to trial, the Tax Court should have been on notice of the settlement proceeds argument after Mr. Grigsby's exchange with the court during trial (during the examination of Catherine Adkins) and after receiving the estate's post-trial briefing.  The USCA thus remanded the case to permit the Tax Court to address explicitly the estate's settlement proceeds argument.  More specifically, on remand the estate should have the opportunity to come forward with evidence to satisfy its burden of showing what portion of the settlement proceeds should be treated as additional consideration for the PCAB stock.  Once the Tax Court determines what amount, if any, of the settlement proceeds should be viewed as additional consideration, that amount should be factored in when calculating the amount of gift tax due.  The USCA thus remanded the matter to the Tax Court for further proceedings.

5)  TAXATION: Ahadpour v. CIR, 01-70059 (9th Cir. Mar. 6, 2002) (unpublished).  D.W. Nelson, Hawkins, and Fitzgerald, Circuit Judges.
         Affirming the decision of the Tax Court, the USCA held that the Tax Court did not err in determining that Treas. Reg. Sec. 1.166-1(e) precluded Ahadpour from taking an $8 million deduction for bad debt in connection with the sale of his Iranian business.  Ahadpour argued that Sec. 1.166-1(e) did not apply to individuals not subject to reporting requirements at the time of the taxable event and attempted to rely by analogy on a number of cases involving "casualty war loss" decisions.  While those cases did not consider the prior tax treatment of assets on a foreign return, they illustrated that there is nothing remarkable about applying Internal Revenue Code rules to calculate basis for a current deduction on a U.S. return, even though the asset was acquired at a time the individual seeking the deduction was not a U.S. resident.  The USCA was not persuaded by Ahadpour's argument that Sec. 1.166-1(e) applies only to compensation-type income.  This section has previously been applied to disallow bad debt deductions in cases where the taxpayer's debt arose from an exchange of property.  Moreover, the USCA found no reason why a non-exhaustive listing of various types of income in Sec. 61(a) should have any bearing on what types of bad debts require prior inclusion in income, particularly when there is no cross-reference to Sec. 61(a) or even use of identical terminology in Treas. Reg. Sec. 1.166-1(e).  The remaining cases relied on by Ahad-pour did not require a different result.  Thompson v. CIR, 10 BTA 1125 (1928), merely stands for the proposition that if a taxpayer has a basis in an asset that is equal to or greater than the amount of sale, there will be no income to report on a prior return.  Ahadpour, however, did not claim that his basis in the assets sold was equal to or greater than $8 million.  In addition, contrary to Ahadpour's argument, the Ninth Circuit has not previously refused to apply a "prior inclusion in income" rule similar to that in Sec. 1.166-1(e).  Hawke v. CIR, 109 F.2d 946 (9th Cir. 1940), turned on a different Treasury Regulation that expressly governed the calculation of basis for the taxpayer's stock sale.
         The Tax Court also did not err in imposing an accuracy-related penalty pursuant to 26 USC Sec. 6662(a).  Ahadpour was subject to the penalty for "substantial understatement" of tax.  26 USC Sec. 6662(d)(1)(A).  There was no "substantial authority" for Ahadpour's treatment of the tax item.  26 USC Sec. 662(d)(2)(B).  Substantial authority requires more than a "reasonable basis" for the tax treatment;  a position that is arguable but fairly unlikely to prevail cannot satisfy the substantial authority standard.  The penalty could also be avoided if Ahadpour had "reasonable cause" for the understatement and had "acted in good faith."  26 USC Sec. 6664(c).  The tax court, however, specifically determined that Ahadpour had not acted in good faith, and it finding is not clearly erroneous.  As the tax court noted, Ahadpour failed to provide his preparers with complete information because he had withheld the 1979 "fair price agreement" from them and because he had given his preparers varying representations about the ownership and corporate structure of his Iranian business.  Collins v. CIR, 857 F.2d 1383 (9th Cir. 1988) (reliance on advice of professional can shield taxpayer if taxpayer provides preparer all necessary and relevant information).

6)  TAX EVASION:  USA v. Khalaf, 00-10342 (9th Cir. Mar. 7, 2002) (unpublished).  Politz, Kozinski, and O'Scannlain, Circuit Judges.
       Mohamed Khalaf appealed his convictions in the District Court for the Northern District of California, Judge Wilken presiding, on three counts of tax evasion for the tax years 1992, 1993, and 1994.  The USCA affirmed, finding no error in the district court's proceedings and the evidence presented by the government sufficient to support the jury's verdict.  On appeal Khalaf maintained that the trial court erred in refusing to instruct the jury on his defense of sham transaction.  A transaction is a sham for tax purposes if it has no "practical economic effects other than the creation of income tax losses."  The Ninth Circuit has adopted a two-part test for determining whether a transaction has practical economic effects outside of creating tax losses:  (1) whether the taxpayer had a business purpose for engaging in the transaction other than tax avoidance; and (2) whether the transaction had economic substance beyond the creation of tax benefits.  The business purpose prong examines the subjective factors motivating a taxpayer to make the transaction at issue.  The economic substance prong asks "whether from an objective standpoint the transaction was likely to produce economic benefits aside from a tax deduction."  Khalaf  maintained that the bonus and interest payments were motivated solely by tax concerns and thus did not constitute taxable income, and thus could not have resulted in a deficiency.  The USCA was not persuaded.  The district court did not err in denying Khalaf's proposed jury instruction because the instruction did not accurately state the law.  While Khalaf's instruction asked the jury to determine whether the transaction had economic substance, it ignored the second prong by failing to ask the jury to determine whether he had a business purpose for entering into the transaction.  In the instant action, there was a substantial dispute as to both factors.  Khalaf's proposed instruction would, thus, have left the jury unable to answer the broader question of "whether the transaction had any practical economic effects other than the creation of income tax losses.
         Khalaf also maintained that the evidence was insufficient to establish a tax deficiency, a necessary element under 26 USC Sec. 7201.  In determining whether the government's evidence is sufficient to support the jury's verdict against Khalaf, the USCA examined the evidence in the light most favorable to the prosecution and ask whether a rational trier of fact could have found the essential ele-ments of the crime beyond a reasonable doubt.  All reasonable inference from the evidence must be drawn favorably to the Government as the prevailing party.  Khalaf claimed that the government's only evidence on this point was contained in North Coast's corporate minutes and promissory notes, which did not exist at the time of the transactions.  However, the record established that Khalaf actually received bonus and interest payment in 1992 and 1993, and constructively received income in 1994.  Khalaf failed to report sub-stantial amounts of income on his tax returns for three years, resulting in substantial tax deficiencies in 1992, 1993, and 1994. 
          Khalaf was indicted on three counts of income tax evasion for the years 1992, 1993 and 1994, under 26 USC Sec. 7201.  The indictment contained specific amounts of tax allegedly not paid by Khalaf, which were based on his failure to report bonus and interest payments he received from North Coast.  The record demonstrated that in 1993 and 1994, Khalaf performed services for another company, Specialized Messenger Services (SMS).  He was paid for those services but did not report the income on his personal tax returns.  When the indictment was returned the government apparently was not aware of the unreported income Khalaf had received from SMS and did not discover that information until it subpoenaed Khalaf's deposit records two weeks before trial and interviewed the owner of SMS two days before trial.  Upon learning of the SMS deposits, the government immediately informed Khalaf on the evidence and its intent to offer the evidence at trial.  On the first day of trial, Khalaf moved to exclude the evidence.  The court allowed the evidence, but directed the government to present this evidence last in its case-in-chief in order to provide Khalaf time to prepare any appropriate defense.  Finally, Khalaf maintained that the evidence of the SMS payments varied from the allegations of the indictment, and that if it is not a variance the probative value is substantially outweighed by the danger of unfair prejudice.  The USCA concluded that the claim lacked merit.  Even if there was some variance from the indictment, the government's evidence did not vary so significantly as to affect Khalaf's substantial rights.  Moreover, the evidence was highly probative of the issue whether Khalaf concealed income and did not pose a risk of unfair prejudice.

7)  BANKRUPTCY / ATTORNEYS' FEES:  Lennon v. SEC, 00-56616 (9th Cir. Mar. 11, 2002) (unpublished).  Pregerson, Fisher, and Tallman, Circuit Judges.
          Baker & McKenzie (B&M) appealed a determination of the District Court for the Southern District of California, Judge Enright presiding, that certain fees requested by the firm, incurred during its representation of an official creditors' committee were not reasonable or necessary and thus not allowed under Sec. 330 of the Bankruptcy Code.
         The USCA affirmed. In making its fee determination, it is sufficient for the district court to analyze a sample of the billing statements submitted for review.  An attorney requesting a few award bears the burden of establishing that his services were actual, necessary, and reasonable as required by Sec. 330.  B&M claimed that the district court made clearly erroneous findings of fact regarding Committee misconduct.  A review of the district court's opinion shows that while the district court may have characterized some Committee members as having a conflict of interest, its views of the Committee were not findings of fact on which its fee determinations were based.  Although consideration of issues such as the potential self-interest of Committee members may have "initially persuaded the court to disallow the entire expense," its final fee determinations were based on an analysis of which attorney's fees it deemed to be reasonable and necessary under Sec. 330.  B&M's claim that the district court's legal determinations were based on erroneous findings as to Committee misconduct was thus without merit.  B&M maintained that the district court erred by applying the "substantial contribution" standard utilized under 11 USC Sec. 503 of the Bankruptcy Code, rather than the reasonable and necessary standard under 11 USC Sec. 330, in making its fee determinations.  Although the district court did cite a case which involved Sec. 503 in its discussion, a review of the court's Memorandum Decision and of the language utilized by the district court in reducing the fee award clearly demonstrates that the district court properly based its decision on the reasonable and necessary standard under Sec. 330.  B&M maintained that the district court abused its discretion by reducing the amount of fees and expenses awarded to B&M based on its determination that they were not reasonable and necessary as required under Sec. 330.  B&M also argued that the district court improperly utilized a "meat-axe" approach, instead of the lodestar method, in making these reductions.  Starting the fee determination process with the lodestar method may be customary, but it is not mandated in all cases.  While across-the-board or percentage based cuts are permitted in certain circumstances, a review of the district court's decision reveals that such across-the-board cuts were not implemented in this case.  B&M provided the district court with lodestar figures for its fees based on the hours it had expended and vari-able rates it had charged in its representation of the Committee.  From this amount, the district court made specific deductions in specific categories of requested fees.  In fact, the district court in this case explicitly declined to implement an across-the-board 75% reduction as requested by the SEC.  Moreover, the district court disallowed only those expenses and fees it determined to be unreasonable and unnecessary under Sec. 330, and in so doing, provided explanations and legal support for each of the deductions.  The district court thus did not abuse its discretion in reducing the amount of attorney's fees awarded to B&M.

8)  BANKRUPTCY: In re Fogh, 01-35256 (9th Cir. Mar. 20, 2002) (unpublished).  Canby, Beezer, and Paez, Circuit Judges.
          Fogh appealed pro se a judgment of the District Court for the Western District of Washington, Judge Lasnik presiding, which affirmed a bankruptcy court's order dismissing her adversarial action alleging that defendants violated her civil rights in connection with the sale of her house in Oregon. 
         The USCA affirmed.  The bankruptcy court did not abuse its discretion by dismissing Fogh's action because Fogh walked out of a pre-trial conference and failed to appear at her own trial without explanation and despite sufficient notice.  The bankruptcy court did not abuse its discretion by refusing to recuse itself because Fogh's recusal motion failed to cite an extrajudicial source of bias.  Upon review of the record, the USCA concluded that the bankruptcy court did not abuse its discretion by sanctioning Fogh for her vexatious conduct.  The USCA considered Fogh's further contentions regarding fraudulent judgments, an impaired contract, violation of the automatic stay and errors in other bankruptcy proceedings, but found them all unpersuasive.

9)  BANKRUPTCY: In re Logsdon, 00-55916 (9th Cir. Mar. 21, 2002) (unpublished).  Pregerson, Fisher, and Tallman, Circuit Judges.
         Gwendolyn Alsobrooks and Robbins & Keehn, APC, appealed a BAP order affirming a bankruptcy court's order holding them in contempt. 
         The USCA reversed.  The bankruptcy court entered a Dischargeability Order that discharged several obligations of Logsdon, husband of appellant Alsobrooks, including those for "house repairs," but that expressly excluded "spousal support" payments from discharge.  After that order issued, Alsobrooks continued to accept a $269-per-month payment authorized by the family court.  Although those monies were for house repairs, the family court had designated them "spousal support."  Logsdon moved the bankruptcy court to issue an order to show cause why Alsobrooks should not be held in contempt for violating the Dischargeability Order by her continuing to accept the $269-per-month payment.  The bankruptcy court issued a Contempt Order holding appellants in contempt and sanctioning them.  The bankrkptcy court denied appellants' subsequent motion for relief from the Contempt Order and the BAP af-firmed, giving rise to this appeal.  The USCA reversed because the Dischargeability Order upon which the Contempt Order was founded was not sufficiently specific and clear to give rise to contempt.  Both the bankruptcy court and the BAP acknowledged the existence of some ambiguity as to whether the $269-per-month payment was definitely discharged by the Dischargeability Order.  As both courts recognized, that ambiguity was not resolved until the Contempt Order itself issued.  The Appellants were held in contempt only for conduct occurring before the Contempt Order's clarification.  The USCA thus concluded that the Dischargeability Order did not meet the requirements of specificity and clarity to give rise to the contempt imposed.

10)  BANKRUPTCY: In re Sheehan, 00-57094 (9th Cir. Mar. 27, 2002) (unpublished).  Kozinski and Gould, Circuit Judges, and Breyer, District Judge.
          Oyama appealed the disallowance of his claim against the Sheehans' bankruptcy estate.  As both the bankruptcy court and the BAP properly ruled, the evidence presented by the Sheehans and the trustee was sufficient to rebut the presumption of claim validity.  As the presumption of validity had been rebutted and Oyama had failed to respond with admissible evidence, the claim was properly disallowed.  Oyama failed to show that the bankruptcy court's exclusion of the evidence he offered justified reversal.  First, the bankruptcy judge's ruling was not an abuse of discretion.  Second, even if the ruling were incorrect, Oyama could show no prejudice as the bankruptcy judge reviewed all of the excluded evidence and concluded that it was insufficient, even if admitted, to establish claim validity.  Moreover, Oyama could maintain no claim against the bankruptcy estate based upon the California Automotive Repair Act, Cal. Bus. & Prof. Code Secs. 9800, et seq.  It did not appear that the Act had been violated or that any violation was the proximate cause of damage to Oyama.  Finally, the Sheehans did not commit the tort of conversion.  The facts may support a breach of contract claim, but that claim would be against European Auto Sales and Restoration, Inc.  Oyama had no claim against the Sheehans or their estate.

11)  ENVIRONMENTAL LAW:  Hall v. EPA, 00-70257 (9th Cir. Mar. 28, 2002) (unpublished).  Goodwin, Reinhardt, and Fernandez, Circuit Judges.
        Hall petitioned for review of two decisions of the EPA reached under the Clear Air Act.  The USCA denied the petitions.  Hall's first claim was that the EPA erred when it refused to object to the issuance of an operating permit to Pacific Coast Building Products (PABCO) by the Clark County Health District (CCHD).  The USCA disagreed.  Hall maintained that the permit had to be approved according to the existing rules adopted under Part 70, rather than under the proposed new rules under Part 70. (The new rules had gone into effect by the day that the permit was issued by CCHD, but the parties agreed that the old rules provided the proper standard.  In any even, approval of the new rules has been set aside.  See Hall v. EPA, 273 F.3d 1146 (9th Cir. 2001)).  Although true, the permit based upon the new rule imposed more stringent conditions upon PABCO than the old rules would have;  it is apodictic that meeting the former entailed meeting the later.  Hall also argued that to be proper the permit had to impose upon PABCO a requirement of post-construction monitoring, and a requirement of submission of a compliance schedule.  That, however, was simply not the law.  The former is required only when directed by the CCHD control officer, and that official has discretion demand or not demand monitoring by the permitee in any particular case.  The latter is required only when the permitee had been in a condition of noncompliance formerly, and there is no evidence that PABCO had been.
         Hall next asserted that in Apex, Nevada, where PABCO is located, a permitee must use the best available control technology (BACT) to ensure that air quality does not deteriorate due to the permitee's operation.  The Clean Air Act does so provide.  42 USC Sec. 7475(a)(4).  But Hall overlooked the fact that BACT does not mean the most sophisticated technology than can be found, without regard for other values such as "energy, environmental, and economic impacts."  42 USC Sec. 7479(3).  Thus, BACT is not an ideal, invariable standard of excellence, but something to be decided by the issuing authority case-by-case.  Here, CCHD determined that PABCO's permit would meet the BACT standard under the circumstances.  The EPA agreed, and Hall failed to produce or point to evidence which effectively challenged that.  The USCA thus could not conclude that the EPA's decision was arbitrary or capricious.
        Hall further asserted that preconstruction monitoring should have been required.  But he failed to raise that issue before the CCHD.  The EPA thus was not required to consider his request for an objection on that ground.  Hall also challenged the permit on the general basis that the EPA had improperly extended the Part 70 interim approval, which it had given to Clark County, Nevada, among others, as a result of which CCHD could not issue any permits, much less the PABCO permit.  However, this allonge at the permit missed it mark.  It amounted to an attack on the EPA's national Part 70 program, and could not be brought in the USCA.  In addition, Hall did not challenge the extensions in a timely manner.
 Hall also claimed that the EPA erred in deciding that the Carbon Monoxide Motor Vehicles Emissions Budget for the Los Vegas, Nevada area was adequate.  He found fault in the EPA's failure to address his comments in a appropriate manner.  However, Hall's letter of September 28, 2000, set forth six comments, and the EPA responded to each, as it was required to do.  The USCA examined the responses, and could not say that they were arbitrary and capricious.  The September 28, 2000, letter also made reference to an earlier document Hall sent to Clark County and to the EPA on or about July 21, 2000.  The EPA did not specifically respond to the comments in that document.  However, Clark County did respond before the comment period for the EPA commenced on August 29, 2000.  The EPA could hardly have been expected to assume that the July 21, 2000, comments, which had already been sent to Clark County and which were responded to by that entity, had to be addressed all over again when Hall lodged no specific objections to the responses that had already been given to those comments.  At any rate, the plan contents included the public comments and Clark County's responses thereto, and the plan was approved by the EPA as part of the adequacy determination.  The USCA found no prejudice that did, or could, result because the EPA did not address the comments all over again, even if its failure to do so was an error.  The USCA thus could not say that the EPA's failure to respond separately was arbitrary and capricious under the present circum-stances.

12)  IMMIGRATION:  Hasnat v. INS, 00-71416 (9th Cir. Mar. 4, 2002) (unpublished).  Schroeder, Cudahy, and McKeown, Circuit Judges.
         Hasnat, a native and citizen of Bangladesh and member of the Jatiyo Political Party, petitioned for review of the decision of the BIA denying his request for asylum and withholding of deportation.  The USCA granted the petition for review and remanded to the BIA for further consideration.  The BIA had concluded that the petitioner was not the victim of persecution in Bangladesh because the incidents of harm which he described did not, in the BIA's view, rise to a level of seriousness to constitute persecution.  The USCA disagreed because the BIA's findings that "petitioner did not suffer any serious or lasting physical injuries" and that "these incidents did not result in any serious harm or deprivation" were not supported by reasonable, substantial, and probative record evidence considered as a whole.  Because neither the IJ nor the BIA expressly made credibility findings, the USCA  had to accept Hasnat's testimony as true.  He testified that opposition party members threatened him, vandalized his workplace, detained him without injury once and beat him to the point of hospitalization twice.  He further testified that he has a scar on one hand and lost a tooth as a result of the beatings.  The USCA noted that the Ninth Circuit has consistently found persecution where the petitioner was physically harmed.  In sum, the evidence when considered as a whole, is such that a reasonable fact-finder would have to conclude that Hasnat was subject to repeated physical harm and harassment and, thus, was persecuted.  Because the BIA did not find past persecution, it did not reach the issue of whether the IJ correctly determined that the petitioner's persecution was not on account of a protected ground.  The USCA thus vacated the BIA's decision and remanded for the BIA to determine whether Hasnat was persecuted on account of his political opinion.

13)  IMMIGRATION:  Singh v. INS, 01-71133 (9th Cir. Mar. 15, 2002) (unpublished).  Rymer, Kleinfeld, and McKeown, Circuit Judges.
         Singh, a Sikh native and citizen of India, petitioned for review of the BIA's dismissal of his appeal from an IJ's denial of his application for asylum and withholding of deportation.  The USCA denied the petition.  Substantial record evidence supported the BIA's determination that, assuming the truth of Singh's testimony, he failed to show past persecution.  Persecution is "the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive."  Desir v. Illchert, 840 F.2d 723 (9th Cir. 1988), quoting Kovac v. INS, 407 F.2d 102 (9th Cir. 1969).  Whether Singh suffered persecution is a heavily fact-dependent issue perhaps best answered by comparing Singh's case with similar cases.  Singh was detained on two occasions because he and his father protested the police's treatment of the local Sikh community.  The first time, Singh was imprisoned for 24 hours, during which the police pulled his hair, slapped him, punched him in the stomach, disrespected his religion, and called him names.  About two weeks later, the police detained him for two days, during which time he was kept in a dark room, beaten, slapped, punched and dragged about by his hair.  Although troubling, Singh's treatment did not compel a finding of persecution.  It was far less severe than the physical abuse suffered by successful asylum petitioners.  Nor did Singh receive any death threats.
        Substantial record evidence supported the BIA's second finding that Singh failed to show a well-founded fear of future persecution.  To establish that, the applicant must show that his fear is genuine and objectively reasonable.  The objective component may be satisfied by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant.  Evidence that a member of the applicant's family suffered past persecution may establish that the applicant has a well-founded fear of future persecution.  But there was little evidence to support Singh's contention that his father was killed by Indian police.  To the contrary, it appears Sikh militants had a motive to murder Singh's father, who advocated for the rights of "innocent," nonmilitant Sikhs.  The record indicated that Sikh militants have killed Sikh civilians who did not support the establishment of an independent Sikh state.  Further, Singh's testimony as to a farmer's recounting of his father's death was inconsistent; at one point Singh stated that the farmer saw the police shoot and kill his father;  at another point he testified that the farmer only heard gunshots from afar and subsequently discovered his father's body.  Finally, Singh's family friend's testimony that he thought the police killed Singh's father was unpersuasive;  he was out of the country when the killing occurred and was unable to produce any direct evidence to support his opinion.  Thus, as the record did not compel a finding that Singh's father was killed by the Indian police, substantial evidence supported the conclusion that Singh failed to show a well-founded fear of future persecution.  As the record did not compel a finding of persecution or a well-founded fear thereof, it necessarily did not compel a finding that Singh was entitled to withholding of deportation, which requires a more stringent showing than that required for asylum.