2)  SECURITIES FRAUD:  McKesson HBOC, Inc. v. New York State Common Retirement Fund, Inc., 02-15301 (9th Cir. Aug. 13, 2003).  In this novel securities fraud action brought under state law McKesson HBOC sued its own shareholders for unjust enrichment arising from a merger between McKesson and HBO & Company ("HBOC");  McKesson HBOC claimed that the former HBOC shareholders were the beneficiaries of a windfall triggered by alleged accounting improprieties by HBOC;  the shareholders, according to McKesson, exchanged artificially inflated shares of HBOC for fully-valued McKesson shares in the merger transaction;  McKesson sought to recover the excess value from the shareholders;  the USCA concluded that, although neither the merger agreement not a company prospectus controlled the relationship between the former shareholders and McKesson, McKesson HBOC nevertheless could not pursue an action for unjust enrichment against the shareholders as it had an adequate remedy at law and policies favoring the maintenance of the corporate form were so compelling that the USCA could not permit McKesson to pierce the corporate veil and obtain a remedy against the shareholders.  Ferguson, McKeown (author), and Rawlinson Circuit Judges.  J. Lyons of San Francisco, CA, for the appellant;  A. Schulman of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

3)  COMMUNICATIONS LAW:  Greene v. Sprint Communications Co., 02-56339 (9th Cir. Aug. 25, 2003).  There is no private right of action to recover damages for violations of FCC regulations promulgated pursuant to Sec. 276 of the Telecommunications Act of 1996, which require interexchange carriers to compensate payphone service providers for "dial-around" telephone calls made from their payphones.  Kozinski, Fernandez, and Rymer (author), Circuit Judges.  J. Tamraz of Los Angeles, CA, for the appellants; no appearance for appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  UNFAIR COMPETITION:  Lippitt v. Raymond James Financial Services,. 01-17049 (9th Cir. Aug. 25, 2003).  A complaint against brokerage firms under California's Unfair Competition Law alleging false advertising and deceptive sales practices in the sale of "callable" certificates of deposit, was not exclusively within federal jurisdiction under the Securities Exchange Act of 1934;  the district court thus erred in denying a motion to remand this action to state court.  Schroeder, Goodwin (author), and Clifton, Circuit Judges.  G. Trevor of Corte Madera, CA, for the plaintiff;  W. Aldersman and Joshua Holian of San Francisco, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  INTERNET LAW:  Carafano v. Metrosplash.com, Inc., 02-55658 (9th Cir. Aug. 13, 2003).  Under the circumstances presented in this case, an internet match-making service was statutorily immune under 47 USC Sec. 230(c)(1) from liability arising from false content contained in a dating profile provided by an identity thief posing as another person;  Sec. 230(c)(1) states that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Through this provision, Congress granted most internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party;  as a result, internet publishers are treated differently from corresponding publishers in print, television and radio. Thomas (author) and Paez, Circuit Judges, and Reed, District Judge.  S. Rohde of Los Angeles, CA, for the appellant;  T. Alger of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 6)  INTERNET LAW:  Theofel v. Farey-Jones,. 02-15742 (9th Cir. Aug. 28, 2003).  Section 2701(c)(1) of the Stored Communications Act provides no refuge for a defendant who uses a "patently unlawful" and "massively overbroad" subpoena to gain access to the plaintiffs' email stored by an Internet service provider;  permission to access a stored communication does not constitute valid authorization where it would not defeat a trespass claim in analogous circumstances;  the district court erred in reading an ownership or control requirement into the Computer Fraud and Abuse Act;  individuals other than the computer's owner may be proximately harmed by unauthorized access, particularly if they have rights to data stored on it.  B. Fletcher, Kozinski (author), and Trott, Circuit Judges.  P. Urueta of San Francisco, CA, for the appellants;  R. White of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  COPYRIGHTS / ATTORNEYS' FEES:  The Traditional Cat Association, Inc. v. Gilbreath, 01-56595 (9th Cir. Aug. 19, 2003).  The district court erred in limiting a prevailing party's Copyright Act recovery to attorneys' fees attributable to copyright claims without considering whether the copyright and non-copyright claims were related;  the district court also abused its discretion in denying a fee request altogether for lack of adequate documentation.  Pregerson and Thomas, Circuit Judges, and Oberdorfer (author), District Judge.  D. Quinn of San Diego, CA, for the defendants;  J. Peterson of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  COPYRIGHTS / EXTRATERRITORIAL DAMAGES:  Los Angeles News Service v. Reuters Television Intl., Ltd., 02-56956 (9th Cir. Aug. 21, 2003).  Under the Copyright Act, a news organization was not entitled to recover actual damages for acts of infringement that mostly occurred outside the United States;  dissenting, Judge Silverman thought the plaintiff should have been allowed to put on proof of its actual damages, as the court of appeals previously held it could in L.A. News Serv. V. Reuters Television Int'l, Ltd., 149 F.3d 987 (9th Cir. 1998).  O'Scannlain (author), Silverman (dissenting), and Reed, Circuit Judges. G. Caplan of Los Angeles, CA, for the appellant;  R. Vanderet of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

9)  BANKING LAW:  Grimes v. New Century Mortgage Corp., 02-15430 (9th Cir. Aug. 22, 2003).  The USCA reversed a summary judgment for the defendants on claims under the Truth in Lending Act and Federal Reserve Regulation Z, as a material issue of fact existed as to whether the rate of interest on a loan, an essential element, was not determined or was determined at a rate other than that to which the plaintiff agreed;  dissenting, Judge McKeown thought that the TILA focused on disclosure and did not serve as an umbrella statute for consumer protection in real estate transactions;  rather, she thought the TILA was designed to foster the informed use of credit by assuring a meaningful disclosure of credit terms.  Noonan (author), McKeown (dissenting), and Rawlinson, Circuit Judges.  D. Mulligan of San Francisco, CA, for the plaintiff;  D. Field of San Francisco, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  ENVIRONMENTAL LAW:  Turtle Island Restoration Network v. National Marine Fisheries Service, 02-15027 (9th Cir. Aug. 21, 2003).  The issuance of fishing permits by the National Marine Fisheries Service pursuant to the High Seas Fishing Compliance Act is discretionary agency action and invokes the consultation requirements of the Endangered Species Act.  Hug (author), Alarcon, and Graber, Circuit Judges.  D. Sivas of Stanford, CA, for the appellants;  J. Kilbourne of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  ENVIRONMENTAL LAW / EXPERT TESTIMONY:  Clausen v. M/V New Carissa, 01-35928 (9th Cir. Aug. 12, 2003).  A trial court's conclusion on the reliability of an expert's testimony on the issue of causation in an action involving the destruction of oyster beds by an oil spill, was not an abuse of discretion under Daubert, despite a lack of specific scholarly support and peer-reviewed studies, as the principles and methodology employed by the expert in reaching his conclusions were grounded in the methods of science and the expert relied on a variety of objective, verifiable evidence.  O'Scannlain (author), Fernandez, and Fisher, Circuit Judges.  T. Zilbert of Portland, OR, for the appellants;  J. Walsh of San Francisco, CA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ENVIRONMENTAL LAW:  National Association of Home Builders v. Norton, 02-15212 (9th Cir. Aug. 19, 2003).  The Fish and Wildlife Service (FWS) did not arbitrarily find the Arizona pygmy-owl population to be "discrete," as differences in conservation status exist across the international boundary between the United States and Mexico;  however, the FWS did not articulate a rational basis in the Listing Rule for its finding that this discrete population was significant because its loss would create a significant gap in the range of its taxon or because it differed markedly in genetic characteristics from the northwestern Mexico pygmy-owl;  the FWS thus acted arbitrarily and capriciously in designating the Arizona pygmy-owl population as a distinct population segment (DPS) under the DPS Policy.  Noonan, Tashima (author), and Wardlaw, Circuit Judges.  N. James of Phoenix, AZ, for the appellants;  J. Keohane of Washington, DC, for the appellees;  M. Senatore of Washington, DC, for the intervenors-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  ENVIRONMENTAL LAW:  Citizens for Better Forestry v. U.S. Dept. of Agriculture, 02-16009 (9th Cir. Aug. 28, 2003).  A coalition of environmental groups alleged procedural injury due to the failure of the USDA and Forest Service to comply with the National Environmental Policy Act and the Endangered Species Act prior to promulgating a new national forest management policy (the "2000 Plan Development Rule");  reversing the district court, the USCA held that the plaintiffs had standing and had established ripeness as the policy had already been implemented in part.  Noonan, Tashima, and Wardlaw (author), Circuit Judges.  M. Axline of Eugene, OR, for the plaintiffs-appellants; AAG T. Sansonetti  of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  ENVIRONMENTAL LAW:  USA v. Alpine Land & Reservoir Co., 01-15665 (9th Cir. August 20, 2003).  The district court erred in granting a blanket equitable exemption to applications for intra-farm transfers of water rights from Nevada law governing abandonment and forfeiture of water rigths.  Sneed, McKeown, and Paez (author), Circuit Judges.  R. Pelcyger of Louisville, CO, for the appellant;  C. Pridgen of San Francisco, CA, and L. Schroder of Portland, OR, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  TAXATION / ATTORNEY'S FEES:  Banaitis v. CIR, 02-70421 (9th Cir. Aug. 27, 2003).  Banaitis appealed the Tax Court's entry of judgment in favor of the Commissioner of Internal Revenue regarding a $1,708,216 deficiency in Banaitis' 1995 income tax;  the USCA upheld the Tax Court ruling that an economic and punitive damage award following a tort recovery should have been included in the petitioner's gross income and that the alternative minimum tax had been constitutionally applied; however, the USCA reversed the Tax Court's inclusion of attorneys' fees in the petitioner's gross income.  Beezer, Thomas (author), and Clifton, Circuit Judges.  J. Wetzel of Portland, OR, for the petitioner;  E. O'Connor of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  PUBLIC UTILITIES:  Bell v. Bonneville Power Administration, 01-70616 (9th Cir. Aug. 21, 2003).  Power curtailment agreements between the Bonneville Power Administration and direct service industries were not rates subject to the ratemaking procedures of the Regional Act;  petitioners lacked standing where they could not show causation in claims that a federal power marketing authority violated the National Environmental Policy Act.  Lay, Wallace (author), and Tallman, Circuit Judges.  D. Meek of Portland, OR, for the petitioners;  AUSA T. Lee of Portland, OR, for the respondent;  P. Murphy of Portland, OR, for the joint intervenor;  W. Walters of Portland, OR, for the nonaligned intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  PUBLIC UTILITIES:  California Department of Water Resources v. FERC, 01-71405 (9th Cir. Aug. 27, 2003).  The Federal Energy Regulatory Commission (the federal agency charged with regulating interstate energy markets and as a by-product of that regulation finds itself involved in regulating California's water supply), failed to consider all relevant factors in responding to the position of the California Department of Water Resources (DWR), the state agency charged with managing California's water supply, that the Independent System Operator (the public corporation which operates California's energy grid), should not control DWR outages in the same way it controls outages of private companies.  Schroeder (author), D.W. Nelson, and W. Fletcher, Circuit Judges.  DAG E. Walz of Sacramento, CA, for the petitioner;  R. Solomon of Washington, DC, for the respondent;  M. Ward of Washington, DC, for the intervenors.  (Download the full text of this decision at www.cc9.uscourts.gov/)
 

18)  PRODUCT LIABILITY / STRICT LIABILITY:  Transue v. Aesthetech Corp., 01-35773 (9th Cir. Aug. 27, 2003).  In a suit against Bristol-Myers Squibb Company and Medical Engineering Corporation, the district court should have instructed on strict liability with respect to the plaintiff's manufacturing defect claim alleging a defective breast implant.  D.W. Nelson and Thomas, Circuit Judges, and D. Pregerson (author), District Judge.  D. Howarth and S. Smith of Los Angeles, CA, for the plaintiff-appellant;  F. Baker and M. Healy of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  TORTS / BIVENS CLAIMS:  Lawrence v. USA, 01-36142 (9th Cir. Aug. 21, 2003).  The discretionary function and misrepresentation exceptions to liability under the Federal Tort Claims Act applied to federal agents supervising a Federal Witness Security Program participant accused of sexually abusing the plaintiff;  as the agents actions were objectively reasonable, they were entitled to qualified immunity on Bivens claims.  Lay (author), Wallace, and Tallman, Circuit Judges.  S. Hess of Boise, ID, for the plaintiff-appellant;  AUSA R. Grisham of Boise, ID, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  TORTS:  Lieberman v. Fieger, 01-56401 (9th Cir. Aug. 11, 2003).  The USCA affirmed the dismissal of an expert's complaint for fraud, slander, and intentional infliction of emotional distress based on comments made by an attorney who had retained her;  the district court found that the general context of the attorney's remarks reflected an animated exchange within a contentious legal conflict and that any specific expressions merely displayed colorful, figurative rhetoric;  because the comments could not be proven true or false, the district court concluded that they were non-defamatory as a matter of law;  the district court also dismissed the fraud claim based on plaintiff's failure to provide any evidence of fraudulent intent.  Thomas (author) and Paez, Circuit Judges, and Reed, District Judge.  P. Zimmerman of Woodland Hills, CA, for the appellant;  W. Davis of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  TORTS:  Turner v. Burlington Northern Santa Fe Railroad Co., 02-35270 (9th Cir. Aug. 11, 2003).  In a negligence action for property damage resulting from a fire, the district court properly excluded a lab report concerning gasoline in the soil which the defendant's expert intended to use, not as data upon which an expert in his field would reasonably rely in forming an opinion, but as substantive evidence of his ultimate conclusion that the fire was intentionally created by pouring gasoline into the soil;  the lab report was otherwise inadmissible hearsay evidence in the absence of foundation testimony by the laboratory that conducted the testing;  the probative value of this otherwise inadmissible evidence did not outweigh its prejudicial effect.  Lay (author), Ferguson, and Gould, Circuit Judges.  J. Hedger of Billings, MT, for the appellant;  K. Jackson of Great Falls, MT, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)
 
 

22)  TORTS:  Bibeau v. Pacific Northwest Research Foundation, 01-36147 (9th Cir. Aug. 5, 2003). On a negligent supervision claim under the Federal Tort Claims Act based on personal injury suffered by the claimant while participating in a government-funded medical experiment, letters exchanged by the Atomic Energy Commission and the Division of Biology and Medicine did not establish a blanket regulation constraining the governments supervision of the experiment for purposes of the discretionary function exception to the waiver of sovereign immunity.  Lay, Wallace, and Tallman, Circuit Judges.  Per Curiam.  K. Zylstra of Philadelphia, Penn. For the plaintiffs;  J.C. Kruse of Washington, DC, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  INSURANCE LAW:  Mercado v. Allstate Ins. Co., 02-55997 (9th Cir. Aug. 18, 2003). The USCA affirmed the district court's judgment that one defendant was included only to defeat federal jurisdiction, that a bad faith claim against Allstate was foreclosed by Hamilton v. Maryland Cas. Co., 27 Cal. 4th 718 (2002), and that Allstate did not commit an unfair business practice by insisting that third parties be added as payees to a proposed settlement check, or by failing to increase a $15,000 policy liability by $1000 under the policy's medical payments provision.  Thompson (author), Trott, and Tallman, Circuit Judges.  R. Rogari of Los Angeles, CA, for the appellant;  M. Pollack of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

24)  INSURANCE LAW:  Kesel v. United Parcel Service, 02-15329 (9th Cir. Aug. 4, 2003).  UPS complied with the "released valuation" doctrine, requiring carriers to give interstate shippers reasonable notice of limited liability and a fair opportunity to buy more insurance, although it rebuffed the shipper's attempt to insure for more than the value stated on customs forms;  dissenting, Judge Ferguson thought that, construing the facts in the light most favorable to the shipper, UPS failed to provide a fair opportunity to purchase greater liability coverage.  Ferguson (dissenting), McKeown (author), and Rawlinson, Circuit Judges.  P. McCarthy of Oakland, CA, for the appellant; P. Friedman of San Francisco, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

25)  LABOR LAW / INSURANCE AGENTS:  Appling v. State Farm Mutual Auto. Ins. Co., 00-16521 (9th Cir. Aug. 13, 2003).  In a breach of contract suit brought by independent-contractor insurance agents against State Farm, a termination provision did not require good cause, and State Farm did not violate the covenant of good faith and fair dealing;  the district court correctly exercised its discretion by refusing to apply offensive non-mutual collateral estoppel where the judgment relied upon as a grounds for the estoppel was itself inconsistent with previous judgments for the defendant;  dissenting, Judge Fletcher thought the district court erred in not applying collateral estoppel against State Farm and in granting summary judgment in favor of State Farm.  B. Fletcher (dissenting), Kozinski, and Trott (author), Circuit Judges.  W. Tedards of Washington, DC, for the appellants;  G. Yuhas and S. Brick of San Francisco, CA, for the defendants-appellants. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  EMPLOYMENT LAW / DUTY OF LOYALTY:  Eckard Brandes Inc. v. Riley, 00-15474 (9th Cir. Aug. 11, 2003).  The USCA upheld a district court order that the employees in this case disgorge to their employer profits from a competing business as that constituted a breach of loyalty under Hawaii law;  the USCA found that the employer's claim expressed a classic violation of the duty of loyalty as recognized by Sec. 393 of the Restatement (Second) of Agency.  Schroeder (author), Alarcon, and Fisher, Circuit Judges.  J. Otsuka of Honolulu, HI, for the counter-defendants-appellants;  E. Nomura of Honolulu, HI, for the counter-claimant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  ERISA:  Elliot v. Fortis Benefits Ins. Co., 02-35080 (9th Cir. Aug. 1, 2003).  Plaintiff's state law claim for non-ERISA compensatory and punitive damages under Montana's Unfair Trade Practices Act's civil enforcement provision was preempted by ERISA Sec. 1132 (the private enforcement provision).  Cudahy (author), O'Scannlain, and Gould, Circuit Judges.  D. Harris of Billings, MT, for the appellant;  R. Sterup of Billings, MT, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  LABOR LAW:  Metropolitan Stevedore Co. v. Cresent Wharf and Warehouse Co., 01-71505 (9th Cir. Aug. 13, 2003).  An employer was liable for compensation benefits to a Longshore and Harbor Workers' Compensation Act ("LHWCA") claimant under the "two-injury variant" of the LHWCA's "last responsible employer" rule;  it was unnecessary and undesirable to use diminished earning capacity as the identifying feature of the disability in "two-injury" cases.  Kleinfeld and McKeown, Circuit Judges, and Shapiro (author), District Judge.  R. Babcock of Sherwood, OR, for the petitioner;  G. Spero of Santa Ana, CA, and C. Galichon of San Diego, CA, for the respondents.(Download the full text of this decision at www.cc9.uscourts.gov/)

29)  EMPLOYMENT LAW:  Holly D. v. California Institute of Technology, 01-56050 (9th Cir. Aug. 15, 2003).  Joining the Second Circuit, the USCA held that a plaintiff who maintains that she was coerced into performing unwanted sexual acts with her supervisor by threats that she would be discharged if she failed to comply with his demands, has alleged a tangible employment action under Title VII that, if proved, entitles her to relief against her employer, although she was never told that she would be fired, demoted, or otherwise penalized if she refused.  Reinhardt (author), O'Scannlain, and Paez, Circuit Judges.  J. Ernster of Pasadena, CA, and J. Zapp of Los Angeles, CA, for the appellee;  D. Scott of Los Angeles, CA, for the appellant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  EMPLOYMENT DISCRIMINATION:  Zhang v. American Gem Seafoods, 01-36130 (9th Cir. Aug. 7, 2003).  A jury verdict for the plaintiff in an action alleging employment discrimination and breach of contract by corporate defendants was not irreconcilably inconsistent such as to necessitate vacating the judgment; the USCA upheld the district court's entry of judgment on a jury verdict finding the corporate defendants liable for discrimination under federal law, awarding compensatory and punitive damages, and finding the defendants liable for breach of contract, awarding lost wages and wages willfully withheld.  D.W. Nelson (author) and Thomas, Circuit Judges, and D. Pregerson, District Judge.  K. Franklin of Seattle, WA, for the defendants;  S. Blankenship of Seattle, WA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

31)  LABOR LAW:  Alvarez v. IBP, Inc., 02-35042 (9th Cir. Aug. 5, 2003).  Under the circumstances of this case, an employer had to compensate meat packing plant employees for the time used in donning and doffing required specialized protective clothing and safety gear, as well as associated time used in "waiting and walking."  D.W. Nelson, Thomas (author), and Illston, Circuit Judges.  M. King of Seattle, WA, for the appellant;  W. Rutzick of Seattle, WA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  HOSTILE WORKPLACE:  Taybron v. San Francisco, 02-15850 (9th Cir. Aug. 28, 2003).  Appellants argued that their employer violated Title VII of the Civil Rights Act of 1964 by subjecting them to a hostile workplace rife with sexual harassment, failed to take appropriate remedial steps when they complained, and retaliated against them for complaining;  the employer moved for summary judgment;  the district court found a genuine issue of material fact as to whether a hostile workplace existed, but that the employer had taken timely measures sufficient to remedy the complaints; it thus held that no material triable facts existed to support the retaliation claim and dismissed both claims;  finding that appellants met their burden under Fed. R. Civil Proc. 56(e), the USCA vacated and remanded both issues for trial.  B. Fletcher (author), Kozinski, and Trott, Circuit Judges.  M. Sorgen of San Francisco, CA, for the appellants;  J. Rolnick of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  ADMIRALTY:  In re Bowfin M/V, 02-35534 (9th Cir. Aug. 13, 2003).  In an action arising from the collision in Puget Sound between the ship Bowfin, owned by Western Pioneer, and the barge Lucky Buck, owned by claimant Signature Seafoods, the claimant retained the burden of proving what act caused the claimed loss in a proceeding under the Limitation of Liability Act, even where the shipowner conceded that its crew was negligent;  the USCA upheld the district court's conclusion that Western Pioneer was entitled to limit its liability under the Act.  Reavley, Tashima, and Paez, Circuit Judges. Per Curiam.  S. Gibson of San Francisco, CA, and M. Turetsky of Seattle, WA, for the claimants-appellants; D. McLean of Seattle, WA, for the petitioner-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

34)  ARBITRATION: Kyocera Corp. v. Prudential-Bache Trade Services, 01-15630 (9th Cir. Aug. 29, 2003).  Under the narrow role the Federal Arbitration Act prescribes for federal courts reviewing arbitration decisions, and because private parties cannot contractually impose their own standards on the courts, the USCA upheld the confirmation of an arbitration award in the contract dispute here;  Judge Rymer, joined by Judge Trott, wrote separately to state that she would dismiss this rehearing en banc as improvidently granted because the parties have no interest in reconsidering LaPine Tech. Corp. v. Kyocera Corp., 130 F.3d 884 (9th Cir. 1997), and doing so has no effect on the outcome of this appeal.  Schroeder, Reinhardt (author), Trott, Rymer (separate statement), T.G. Nelson, Hawkins, Thomas, Graber, W. Fletcher, Paez, and Rawlinson, Circuit Judges.  S. Hufstedler of Los Angeles, CA, for the appellant;  C. Treat of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  MORTGAGES:  Ansley v. Ameriquest Mortgage Co.,. 02-55848 (9th Cir. Aug. 20, 2003).  Nothing in the Alternative Mortgage Transaction Parity Act establishes that its preemptive force is so extraordinary that Congress clearly manifested an intent to convert state law claims into federal question claims;  as the Act does not control every alternative mortgage issue by every creditor in every situation, the district court properly concluded that the Act did not completely preempt all California law relating to alternative mortgage transactions so as to create federal jurisdiction.  Schroeder and Graber, Circuit Judges, and Singleton (author), District Judges.  R. Berman of San Francisco, CA, for the appellant;  J. Wilens of Mission Viejo, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  CAMPAIGN CONTRIBUTIONS:  Jacobus v. Alaska, 01-35666 (9th Cir. Aug. 12, 2003).  The Alaska legislature's limitations on "soft" money campaign contributions was constitutional, but its limit on the value of volunteer professional services that an individual may donate to a political party was not.  Wood, D.W. Nelson, and Paez (author), Circuit Judges.  AAG M. Schultz of Anchorage, AK, for the defendants;  K. Jacobus of Anchorage, AK, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  AMERICANS WITH DISABILITIES ACT:  Oregon Paralyzed Veterans of America v. Regal Cinemas, 01-35554 (9th Cir. Aug. 13, 2003).  The Department of Justice's interpretation of the ADA Accessibility Guidelines in 28 CFR Sec. 4.33.3 to require a viewing angle for wheelchair seating within the range of angles offered to the general public in a stadium-style movie theatre, is valid and entitled to deference;  dissenting, Judge Kleinfeld thought that the majority had adopted an unreasonable construction of the applicable regulation and put theater owners in a position of impossible uncertainty as to what they must do to comply with the law.  B. Fletcher (author), Kleinfeld (dissenting), and McKeown, Circuit Judges.  K. Wilde of Portland, OR, for the plaintiffs;  L. Franze of Dallas, TX, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  AMERICANS WITH DISABILITIES ACT:  Goldman v. Standard Insurance Co., 00-16691 (9th Cir. Aug. 29, 2003).  Unlike in the ADA as interpreted by Sutton v. United Air Lines, 527 US 471, the definition of "disability" in California Civil Code Sec. 51 ("Unruh Act"), does not require the plaintiff to show that she is regarded as having a present limitation of a major life activity.  W. Fletcher, Fisher (author), and Tallman, Circuit Judges.  C. Center of San Francisco, CA, for the plaintiff;  S. Hanson of San Francisco, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  SOCIAL SECURITY:  McNabb v. Barnhart, 02-16225 (9th Cir. Aug. 21, 2003).  In considering a claim for disability benefits for successive disabilities of entirely different origins, the district court should have considered all the evidence available at the time of the ALJ's hearing on the termination of the claimant's benefits to evaluate the claimant's allegations that he had a disability as of the cessation date of his benefits.  Schroeder (author), D.W. Nelson, and W. Fletcher, Circuit Judges.  J. Kaplan of Sacramento, CA, for the appellant;  G. Gulseth of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  SOCIAL SECURITY:  Connett v. Barnhart, 01-36102 (9th Cir. Aug. 20, 2003).  On an appeal from the denial of Social Security disability insurance and supplemental security income benefits, the USCA found that it is not required to enter an award of benefits upon reversing the district court's denial of benefits;  instead, it has flexibility in applying the "credited as true" theory.  Lay, Wallace (author), and Tallman, Circuit Judges.  T. Wilborn of Portland, OR, for the plaintiff;  D. Burdett of Seattle, WA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  DISABILITY BENEFITS:  Howard v. Barnhart, 02-15587 (9th Cir. Aug. 29, 2003).  Under 42 USC 1382c(a)(3)(I) an ALJ must make a reasonable effort to obtain a case evaluation based on the record in its entirety and from reports of appropriate specialists, rather than construct his own evaluation from the evidence in the record;  as the ALJ below did not comply with Sec. 1382c(a)(3)(I), the USCA remanded for further proceedings so that the record could be developed with respect to the plaintiff's case.  Hug (author), Gibson, and Fisher, Circuit Judges.  M. Caldwell of Phoenix, AZ, for the plaintiff;  W. Dawson of Denver, CO, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  FALSE MEDICAL CLAIMS:  USA v. Mackby, 02-16778 (9th Cir. Aug. 12, 2003).  Considering the defendant's culpability and the harm caused by his offense, a judgment of $729,454.92 in civil penalties and treble damages for the defendant's submission of 8,499 false Medicare claims, was not grossly disproportional to the gravity of the offense under the Excessive Fines Clause of the Eighth Amendment.  Hawkins and W. Fletcher (author), Circuit Judges, and King, District Judge.  P. Hooper of Los Angeles, CA, for the(Download the full text of this decision at www.cc9.uscourts.gov/)

43)  ASSET FORFEITURE / CIVIL PROCEDURE:  USA v. Ritchie, 01-35989 (9th Cir. Aug. 26, 2003).  A Federal Rule of Criminal Procedure 41(e) motion seeking return of seized property should have been treated as a complaint filed under the Federal Rules of Civil Procedure;  when a letter providing personal notice of a forfeiture proceeding is returned undelivered, the DEA must make reasonable additional efforts to provide personal notice of proceedings.  Hawkins and W. Fletcher (author), Circuit Judges, Breyer, District Judge.  C. Randell of Anchorage, AK, for the appellee;  J. Commisso of San Diego, CA, for the claimant. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  CIVIL PROCEDURE:  Swedberg v. Marotzke, 02-15517 (9th Cir. Aug. 14, 2003).  A FRCP 12(b)(6) motion to dismiss for failure to state a claim supported by extraneous materials cannot be regarded as one for summary judgment until the district court acts to convert the motion by indicating, preferably by an explicit ruling, that it will not exclude those materials from its consideration;  until such time, the plaintiff is free to file a proper notice of dismissal under FRCP 41(a)(1);  the defendant may prevent unilateral dismissal by serving the plaintiff with an answer.  Hug, Gibson (author), and Fisher, Circuit Judges.  J. Clemency of Phoenix, AZ, for the appellant;  D. Maring of Bismark, ND, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  SANCTIONS:  Retail Flooring Dealers of America v. Beaulieu of America, 02-55076 (9th Cir. Aug. 14, 2003).  The USCA reversed FRCP 11 sanctions against plaintiff's counsel where the defendant failed to comply with Rule 11's "safe harbor" provision;  the safe harbor provision gives an attorney the opportunity to withdraw or correct a challenged filing by requiring a party filing a Rule 11 motion to serve the motion 21 days before filing the motion;  dissenting, Judge Fernandez thought the majority lacked jurisdiction over the appeal and failed to follow Ninth Circuit authority while immasking the creation of an intra-circuit split with the notion that a non-party to the appeal actually was a party; to the contrary, sanctions had been awarded against the attorney, but only the client appealed.  Beezer (author), Fernandez (dissenting), and Paez, Circuit Judges. D. Ricketts of Santa Clarita, CA, for the appellant;  D. Ellis of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  FIRST AMENDMENT / BILLBOARDS:  Clear Channel Outdoor v. Los Angeles, 02-56947 (9th Cir. Aug. 15, 2003).  The USCA vacated a preliminary injunction enjoining a city from implementing ordinances that provide for the inspection of "off-site" billboards and the assessment of a fee to cover the cost of that inspection, as it was unlikely the advertising companies would prevail on their First Amendment claims. Silverman (author), W. Fletcher, and Rawlinson, Circuit Judges.  M. Klekner of Los Angeles, CA, for the defendants;  R. Kendall of Los Angeles, CA, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  CONSTITUTIONAL LAW:  USA v. Allen, 02-30079 (9th Cir. Aug. 26, 2003).  As a local park was a "place of public accommodation," the defendants were properly convicted under 18 USC Sec. 241;  the enactment of 8 USC Sec. 245(b)(2)(B) was a constitutional exercise of both Congress's Commerce Clause and Thirteenth Amendment powers;  the defendants thus were properly convicted under this statute as well, even though the park was closed at the time they were "patrolling" it for "racial minorities and Jews," and while wielding weapons berated them with racial epithets and forced them out of the park for no reason other than their race.  Reavley, Tashima, and Paez (author), Circuit Judges.  R. Kelleher of Billings, MT, and W. Holton of Helena, MT, for the appellants;  AAG R. Boyd of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  SUPREMACY CLAUSE:  Young v. Coloma-Agaran,. 02-15202 (9th Cir. Aug. 25, 2003).  A Hawaii regulation prohibiting the operation of tour boats on Hanalei Bay violates the Supremacy Clause of the U.S. Constitution.  Goodwin (author), Rymer, and T.G. Nelson, Circuit Judges.  DAG Y. Izu of Honolulu, HI, for the defendants-appellants;  D. Niles of Wailuku, HI for the plaintiffs-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  EQUAL PROTECTION:  Green v. City of Tucson,. 02-16700 (9th Cir. Aug. 20, 2003).  Equal protection is not violated by the requirement of Arizona Rev. Stat. Sec. 9-101.01 that surrounding municipalities of 5,000 or more inhabitants and within six miles give their prior consent to the incorporation of a community as a new municipality.  Hug, Gibson, and Fisher (author), Circuit Judges.  W. Risner of Tempe, AZ, for the plaintiffs-appellants;  D. McLaughlin of Tucson, AZ,  for the intervenors-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  CIVIL RIGHTS / LUMP SUM SETTLEMENTS:  Bernhardt v. Los Angeles County, 02-56412 (9th Cir. Aug. 5, 2003).  The district court properly denied the plaintiff a broad preliminary injunction barring Los Angeles County's use of its lump sum settlement policy in all civil rights cases pending the trial of the plaintiff's case;  however, the district court did err in not considering a narrow injunction limited to the plaintiff's pending case only.  Boochever, Reinhardt, and Fisher (author), Circuit Judges.  M. Mitchell of Woodland Hills, CA, for the plaintiff-appellant. L. Black of Los Angeles, CA, for the defendants-appellants. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  CIVIL RIGHTS:  Bell v. Clackamas County, 01-35508 (9th Cir. Filed Aug. 20, 2003; amended Aug. 29, 2003).  A Title VII plaintiff offered specific and substantial circumstantial evidence that he had been terminated due to his complaints regarding racial profiling and racial comments, rather than due to his inability to respond to training;  the USCA reversed the reduction of punitive damages against some individual defendants and remanded for reconsideration whether the jury's award against these defendants comports with due process in light of State Farm Mut. Auto Ins. Co. v. Campbell, 123 S.Ct. 1513 (2003) and Zhang v. Am. Gem Seafoods, Inc. (9th Cir. Aug. 7, 2003) [See summary #30 above]  Goodwin (author), Hug, and Berzon, Circuit Judges.  E. McGlone of Oregon City, OR, for the appellees;  H. Dziuba of Lake Oswego, OR, for the appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  CIVIL RIGHTS / POLICE DOGS:  Miller v. Clark County, 02-35558 (9th Cir. Aug. 21, 2003).  The use of a police dog to "bite and hold" a suspect until other officers arrived less than a minute later was a reasonable seizure that did not violate defendant's Fourth Amendment rights, as the suspect posed an immediate threat to the safety of police officers, several attempts to arrest the suspect using less forceful means were unsuccessful as a result of the suspect's defiance, and the dog's use was well suited to the task of safely arresting the suspect.  Alarcon, Gould (author), and Clifton, Circuit Judges.  J. Muenster of Seattle, WA, for the plaintiff-appellant;  D. Hunter of Vancouver, WA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  USE OF DEADLY FORCE:  Haugen v. Brosseau, 01-35954 (9th Cir. Aug 4, 2003).  As the evidence showed that a police officer violated the Fourth Amendment and clearly established federal law on the use of deadly force, the USCA reversed the summary judgment on plaintiff's 42 USC Sec. 1983 claim;  concurring, Judge Reinhardt thought that under the controlling law, a car chase itself cannot create the danger that justifies shooting a suspect who may not otherwise be shot;  dissenting, Judge Gould thought that the majority's holding promises an easy escape to any felon willing to threaten innocent lives by reckless driving, was indefensible as a matter of law and policy, and conflicted with other Circuit's holdings that officers to not violate the Fourth Amendment by using deadly force to stop a fleeing felon who appears likely to drive with willful disregard for the lives of others.  Reinhardt (concurring), W. Fletcher (author), and Gould (dissenting), Circuit Judges.  R. Loun of Bremerton, WA, for the plaintiff;  M. McConaughy of Seattle, WA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  CIVIL RIGHTS / USE OF FORCE:  Johnson v. Los Angeles, 02-55881 (9th Cir. Aug. 15, 2003).  The district court erred in denying summary judgment to a deputy, as his use of force in arresting an armed robber who was rendered a paraplegic sometime during a car chase, crash and arrest, was objectively reasonable; the deputy was entitled to qualified immunity.  Trott (author) and Tallman, Circuit Judges, and Collins, District Judge.  S. Blades of Los Angeles, CA, for the defendant;  P. Hoffman of Venice, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  CIVIL RIGHTS:  Karam v. City of Burbank, 02-55954 (9th Cir. Aug. 20, 2003).  Appellant's 42 USC Sec. 1983 claims, arising from misdemeanor charges filed against her in connection with her refusal to leave an already filled to capacity city council meeting, fail for lack of "seizure" under the Fourth Amendment and for lack of "causation" under the First Amendment.  Thompson (author), Trott, and Tallman, Circuit Judges.  S. Kerekes of Beverly Hills, CA, for the appellant;  R. Terzian of Los Angeles, CA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

56) QUALIFIED IMMUNITY:  Bingham v. Manhattan Beach, 01-56044 (9th Cir. Filed May 19, 2003; amended Aug. 28, 2003).  A police officer was not entitled to qualified immunity in a 42 USC Sec 1983 action challenging his traffic stop, as no reasonable suspicion existed to justify stopping the plaintiff;  an unlawful traffic stop is not a de minimis violation of the Fourth Amendment;  based on the closely related offense doctrine, the officer was entitled to immunity for arresting the plaintiff as that was necessary to verify an outstanding warrant for an individual with similar identifying information; dissenting in part, Judge Reinhardt thought the majority erred in permitting the officer to justify the arrest ex post facto on the basis of conduct wholly unrelated to the conduct for which he actually made the arrest (driving without a valid license);  Judge Reinhardt would allow the plaintiff to proceed to trial on both his unreasonable arrest and unlawful stop claims.  Reinhardt (dissenting in part), Trott, and Tashima (author), Circuit Judges.  D. Lawrence of Pasadena, CA, for the defendant;  H. Price of Beverly Hills, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  IMMIGRATION:  USA v. Leon-Paz, 02-10506 (9th Cir. Aug. 22, 2003).  The Immigration Judge deprived the defendant of due process when he incorrectly advised him that he was not eligible for relief from removal;  the USCA thus vacated the defendant's conviction for reentry after deportation and remanded for a determination of prejudice.  Kozinski, Fernandez (author), and Rymer, Circuit Judges.  AFPD S. Huerta of Tucson, AZ, for the appellant;  AUSA B. Ferg of Tucson, AZ, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  IMMIGRATION:  USA v. Arenas-Ortis, 02-10437 (9th Cir. Aug. 12, 2003).  Appellant failed to present evidence that similarly-situated individuals could have been prosecuted, but were not, in his equal protection claim that the U.S. Attorney engaged in the selective prosecution of Hispanic males for illegal reentry under 8 USC  Sec. 1326.  Canby (author), Kleinfeld, and Rawlinson, Circuit Judges.  AFPD S. Kalar of San Francisco, CA, for the defendant-appellant;  AUSA C. Steskal of San Francisco, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  IMMIGRATION:  Munoz v. Ashcroft, 01-71146 (9th Cir. Aug. 8, 2003).  With the observation that the result required by existing law appears pointless and unjust, the USCA concluded that alien, who was brought to the U.S. illegally by his mother and has spent all but the first of his 21 years here, failed to acquired a substantive due process right to remain here;  he also failed to show deficient performance or prejudice through counsel's handling of his asylum application;  equitable tolling was not available under the Nicaraguan Adjustment and Central American Relief Act.  Tashima, Berzon, and Clifton (author), Circuit Judges.  W. Jordan-Curtis of Tucson, AZ, for the petitioner;  M. Slack of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  IMMIGRATION / INEFFECTIVE ASSISTANCE OF COUNSEL:  Lo v. Ashcroft, 02-70384 (9th Cir. August 27, 2003).  The petitioners' failure to attend their removal hearing was due to ineffective assistance of counsel which constituted an "exceptional circumstance" under 8 USC Sec. 1229a(e)(1), requiring rescission of their removal order pursuant to Sec.  1229a(b)(5)(C)(i); the USCA thus granted the petition for review, reversed the denial of the motions to reopen the in absentia removal hearing, and remanded for further proceedings.  Hall, Thompson (author), and Berzon, Circuit Judges.  D. Ross of Beverly Hills, CA, for the petitioners; D. Dauenheimer of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  IMMIGRATION:  Singh v. INS, 02-71594 (9th Cir. Aug. 15, 2003).  The BIA erred in dismissing an appeal where the petitioner had dutifully followed all regulations and procedures pertaining to filing his notice of appeal, but the BIA itself deprived him of the opportunity to timely file his brief by sending the briefing schedule and transcripts of proceedings to the wrong address.  Graber, Wardlaw (author), and Clifton, Circuit Judges.  J. Kaufman of San Francisco, CA, for the petitioner;  R. McCallum of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  IMMIGRATION:  Mendez-Gutierrez v Ashcroft, 02-70546 (9th Cir. Aug. 20, 2003).  The BIA abused is discretion by failing to address the petitioner's claim of a well-founded fear of future persecution before concluding he had not established a prima facie case of eligibility for asylum.  Hug, Gibson, and Fisher (author), Circuit Judges.  J. Kaufman of San Francisco, CA, for the petitioner;  A.P. Mai of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  IMMIGRATION / HABEAS CORPUS: Armentero v. INS, 02-55368 (9th Cir. Aug. 26, 2003).  The Department of Homeland Security Secretary and the Attorney General, not the INS, are proper respondents in a habeas petition challenging the lawfulness of a potentially indefinite detention.  Meskill, Ferguson, and Berzon (author), Circuit Judges.  DFPD M. Tanaka of Los Angeles, CA, for the petitioner-appellant;  G. Mack of Washington, DC, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  IMMIGRATION:  Wang v. Ashcroft, 02-70486 (9th Cir. Aug. 29, 2003).  The petitioner sought asylum and withholding of removal on the grounds that she had undergone to two forced abortions pursuant to China's one-child policy and would be sterilized if returned to China;  the USCA concluded that the Immigration Judge's denial of the petitioner's application for asylum was erroneous as his adverse credibility determination was not supported by substantial evidence;  in addition, the INS failed to rebut the presumption of future persecution.  B. Fletcher (author) and Silverman, Circuit Judges, and Martone, District Judge.  J. Wood of Los Angeles, CA, for the petitioner;  L. McKay of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

65)  IMMIGRATION LAW / SENTENCING:  USA v. Pereira-Salmeron, 02-10071 (9th Cir. Aug. 4, 2003).  A prior state conviction under Virginia Code Sec. 18.2-63, for carnal knowledge of a child between 13 and 15 years of age, constituted a "crime of violence" under Sentencing Guideline provision governing sentences for unlawful re-entry into the United States, USSG Sec. 2L1.2 (2002), and warranted a 16-level enhancement under Sec. 2L1.2(b)(1)(A) (2002).  B. Fletcher, Rawlinson, and Clifton (author), Circuit Judges.  V. Kelly of Tucson, AZ, for the appellant;  H. Montoya of Tucson, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

66)  INTERNATIONAL KIDNAPPING:  USA v. Ventre, 01-50616 (9th Cir. Aug. 11, 2003).  Prosecuting an individual under the International Parental Kidnapping Crime Act of 1993 after a child is returned to the U.S. pursuant to proceedings under the Convention on the Civil Aspects of International Child Abduction (Hague Convention) "does not detract from the Hague Convention."  B. Fletcher (author) and Hawkins, Circuit Judges, and Bury, District Judge.  J. Sies of Los Angeles, CA, for the defendant-appellant;  M. Krinsky of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

67)  DOMESTIC VIOLENCE:  USA v. Belless, 02-30089 (9th Cir. Aug. 11, 2003).  While Sec. 6-2-501(b) of Wyoming's battery statute need not include a domestic relationship as an element of the crime in order to obtain a conviction under the federal firearms statute, 18 USC Sec. 921(a)(33)(A), the state statute encompasses less violent behavior than the requisite use or attempted use of physical force;  it is thus too broad to qualify as a "misdemeanor crime of domestic violence."  B. Fletcher, Kleinfeld (author), and McKeown, Circuit Judges.  M. Werner of Billings, MT, for the appellant;  AUSA C.E. Laws of Billings, MT, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

68)  RESTITUTION:  USA v. Cliatt, 02-10458 (9th Cir. Aug. 11, 2003).  Under the Mandatory Victims Restitution Act of 1996, a district court properly ordered restitution paid to a third party, the United States, where that party carried the cost of providing necessary medical care as a benefit of the victim's active-duty membership in the U.S. Army and where offense was covered and the victim suffered bodily injury as a result of that offense.  Graber (author), Wardlaw, and Bybee, Circuit Judges.  AFPD P. Byrne of Honolulu, HI, for the defendant-appellant;  AUSA L. Osborne of Honolulu, HI for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

69)  DEATH PENALTY:  USA v. Waggoner, 00-10252 (9th Cir. Aug. 5, 2003).  18 USC Sec. 3005 does not require that two attorneys be appointed whenever the government indicts a defendant for a crime punishable by death, if government formally and irrevocably renounces any intention to seek the death penalty.  Beezer, Thomas (author), and Clifton, Circuit Judges.  F. Leon of Tucson, AZ, for the defendant-appellant;  P. Charlton for Tucson, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

70)  EVIDENCE:  USA v. Chase, 01-30200 (9th Cir. Aug. 22, 2003).  The psychotherapist-patient privilege precludes a psychiatrist's testimony as to threats communicated during sessions;  the USCA declined to craft a "dangerous patient" exception to the psychotherapist-patient testimonial privilege;  Judge Kleinfeld concurred in the result that the conviction should be affirmed;  and, he thought, if there were error, it would be, as the majority concludes, harmless;  however, he dissented from the view that the psychotherapist-patient privilege applies even to a patient's imminent, seriously intended, and properly disclosed threat to commit murder.  Schroeder, Pregerson, T.G. Nelson, Kleinfeld (concurring), Thomas, Graber (author), McKeown, W. Fletcher, Fisher, Gould, and Clifton, Circuit Judges.  B. Purtzer of Tacoma, WA, for the defendant-appellant;  AUSA J. Kent of Eugene, OR, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

71)  RESTITUTION:  USA v. Gunning, 02-30057 (9th Cir. Aug. 6, 2003).  A district court's responsibility under the Mandatory Victims Restitution Act to fix the terms for making restitution is non-delegable;  under the MVRA, the district court is ultimately responsible for setting a schedule for making restitution to victims.  Reavley, Tashima, and Paez, Circuit Judges.  Per Curiam.  AUSA R. Westinghouse of Seattle, WA, for the defendant-appellant;  D. Koch of Seattle, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

72)  SEARCH & SEIZURE:  Haynie v. County of Los Angeles, 01-55731 (9th Cir. Aug. 12, 2003).  State and federal claims for unlawful search and seizure, excessive force, and conspiracy were not actionable where a traffic stop, detention, and pat down were all reasonable under the circumstances; the district court did not err in granting summary judgment on all claims.  Hug, Brunetti (author), and O'Scannlain, Circuit Judges.  R. Mann of Los Angeles, CA, for the appellant;  D. Rutledge of Irvine, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

73)  SEARCH & SEIZURE:  Graves v. Coeur d'Alene, 02-35119 (9th Cir. Aug. 1, 2003).  A police officer who lacked probable cause to search a heavy backpack carried by a protester in an indisputably dangerous setting, was nevertheless entitled to immunity from a 42 USC Sec. 1983 claim where a reasonable officer would not necessarily understand that he lacked probable cause to search for explosives near a violent hate group's parade.  Cudahy, O'Scannlain, and Gould (author), Circuit Judges.  L. Hildes of Berkeley, CA, for the plaintiffs;  R. Adams of Coeur d'Alene, ID, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

74)  EVIDENCE: USA v. Alvarez-Farfan, 02-10324 (9th Cir. Aug. 7, 2003).  The district court abused its discretion in not allowing the jury to compare the handwriting on documents;  the law does not require "a questioned document examiner to vouch for the similarity of handwriting," but instead, allows the jury to determine for itself whether the same person's handwriting appears on two documents; the error was not harmless to the defendant's conviction for distribution of methamphetamine under 21 USC Sec. 841.  D.W. Nelson (author) and W. Fletcher, Circuit Judges, and W. Alsup, District Judge.  F. Atcheson of Reno, NV, for the defendant;  AUSA C. Denney of Reno, NV, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

75)  EVIDENCE:  USA v. Zuno-Arce, 98-56770 (9th Cir. Aug. 5, 2003).  In an action to expand the certificate of appealability ("COA") issued by the district court, the USCA denied a COA as to the appellant's Mooney-Napue claim, his ineffective assistance of counsel claim, and his double jeopardy claim;  the USCA granted a COA as to the appellant's Brady-Bagley claim, but affirm on the merits because the undisclosed evidence was not material within the meaning of that doctrine.  Browning, Goodwin, and Graber (author), Circuit Judges.  K. Miller of Santa Ana, CA, for the defendant-appellant;  AUSA L. Ng of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

76)  PLEA AGREEMENTS:  Brown v. Poole, 01-56660 (9th Cir. Aug. 4, 2003).  Under an oral in court plea agreement, the petitioner could understand that if she did not violate prison disciplinary rules she would be released after seven-and-a-half-years, half the minimum time sentenced; she performed;  the USCA thus ordered the state's specific performance of the agreement;  dissenting, Judge Silverman thought that federal habeas relief had been correctly denied as, even if one could find that that the petitioner thought she had been promised release after seven-and-a-half years of good behavior, it was at least reasonable to find that she knew she had never received such a promise.  Browning, B. Fletcher (author), and Silverman (dissenting), Circuit Judges.  R. Lasky of Los Angeles, CA, for the petitioner;  D. Glassman of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

77)  DISCOVERY / SPEEDY TRIAL ACT:  USA v. Sutter, 02-50282 (9th Cir. Aug. 25, 2003).  Where a discovery motion is pending on the docket, but the district court is neither awaiting additional submissions nor has indicated that the motion requires a future hearing, the discovery motion is "under advisement" under the Speedy Trial Act, 18 USC Sec. 3161(h)(1)(J), and a maximum of thirty days can be excluded under that provision.  Tashima, Berzon (author), and Clifton, Circuit Judges. R. Viselman of San Diego, CA, for the defendant-appellant;  AUSA R. Haines of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

78)  MAIL & WIRE FRAUD:  USA v. Manion, 01-50562 (9th Cir. August 14, 2003). Anyone who knowingly and intentionally participates in the execution of a fraudulent telemarketing scheme comes within the prohibition of the federal mail and wire fraud statutes, regardless of whether they actually "devised" the scheme;  since the government sought to convict the defendant for her own acts of mail and wire fraud, it did not need to rely on nor did the court need to instruct the jury on co-schemers, conspiracy or aiding and abetting theories.  Browning, Kozinski, and Wardlaw, Circuit Judges. Per Curiam.  M. Garey of Santa Ana, CA, for the defendant-appellant;  AUSA E. McGah of Santa Ana, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

79)  DUE PROCESS:  Bailey v. Rae, 02-35144 (9th Cir. Aug. 13, 2003).  Reversing a district court judgment, the USCA held that a Brady due process violation could occur where the state prosecutor failed to disclose therapy reports concerning a sexual abuse victim's mental capacity where the reports were exculpatory in nature and could have affected the trial in a way that would undermine confidence in the jury verdict, and the offenses charged were predicated on the victim's alleged inability to consent due to mental defect.  Kleinfeld and McKeown (author), Circuit Judges, and Breyer, District Judge.  AFPD A. Bornstein of Portland, OR, for the petitioner;  AAG S. Powers of Salem, OR, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

80)  INEFFECTIVE ASSISTANCE OF COUNSEL:  USA v. Ross, 01-10277 (9th Cir. Aug. 11, 2003). A defendant who claims ineffective assistance of counsel must identify "actual errors and omissions by counsel that a conscientious advocate would not have made," and show that he suffered prejudice from those errors, even where counsel was suspended or disbarred prior to trial.  Schroeder, B. Fletcher, and Kozinski, Circuit Judges.  Per Curiam.  D. Frick of Sacramento, CA, for the defendant-appellant;  AUSA K. Melikian of Sacramento, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

81)  SENTENCING:  Gill v. Ayers, 01-55808 (9th Cir. The opinion and dissent filed Mar. 6, 2003 has been withdrawn;  a new opinion and dissent was filed on Aug. 28, 2003).  A decision refusing to allow a California prisoner to testify at his "Three Strikes" sentencing hearing violated his Fourteenth Amendment right to due process, was an unreasonable application of clearly established federal law as determined by Rock v. Arkansas, 483 US 44 (1987), and was not harmless;  dissenting, Judge Rawlinson thought that the majority had given short shrift to Rock's recognition that "the right to present relevant testimony is not without limitation [and] may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." This language, Judge Rawlinson thought, called into question the majority's "facile application of Rock to the facts of this case." He thought the California Court of Appeal committed no error in concluding that fairness is not fostered if a defendant presents testimony at a Three Strikes hearing where the State may not, and that in the instant case 20-year old recollections did not serve the interest of reliability; the California Court of Appeal ruled that on the facts of this case, the defendant's right to testify did not outweigh other interests properly considered by the court and the federal district court, Judge Rawlinson thought, gave appropriate deference and respect to the state court's decision. Thompson (author) and Rawlinson (dissenting), Circuit Judges, and Schwarzer, District Judge.  R. Goldsen of Goleta, CA, for the petitioner;  DAG T. Torreblanca of San Diego, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

82)  SENTENCING:  USA v. MacDonald, 02-30245 (9th Cir. Aug. 13, 2003).  The district court did not clearly err in finding that Sentencing Guideline Sec. 2D1.1(b)(5) applied to a defendant who plead guilty to a federal conspiracy charge for participating in the production of methamphetamine on public lands;  the district court properly enhanced the defendant's sentence due to the unlawful discharge at camp sites of a hazardous or toxic substance, a byproduct of the production.  B. Fletcher, Brunetti, and McKeown (author), Circuit Judges.  W. Holton of Helena, MT, for the defendant-appellant;  AUSA B. Hubley of Helena, MT, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

83)  SENTENCING:  USA v. Pimentel-Flores, 02-10353 (9th Cir. Aug. 11, 2003).  A crime of violence under Guideline Sec. 2L1.2, as amended in 2001, need not be an aggravated felony under 8 USC Sec. 1101(a)(43) to qualify for a 16-level enhancement; however, the district court's proceedings were flawed for relying solely on facts in the presentence investigation report and not following the procedure of Taylor v. USA, 495 US 575 (1990), for determining whether the defendant's prior offense qualified as a "crime of violence."  D.W. Nelson and W. Fletcher, Circuit Judges, and Alsup (author), Circuit Judges.  AFPD D. Mokos of Tucson, AZ, for the defendant;  AUSA M. Davila of Tucson, AZ, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

84)  SENTENCING:  USA v. Radmall, 02-10341 (9th Cir. Aug. 15, 2003).  The defendant plead guilty to mail fraud (count I), bank fraud (count II), and perjury (count III), and was sentenced to 42 months' imprisonment on I and concurrent terms of 12 months on II and III, with a five-year term of supervised release; on his first appeal, the count I conviction was reversed and the case remanded for resentencing;  on resentencing, he received 42 months on count II and a concurrent 12 months on III, with five years supervised release;  on his second appeal, the USCA held that when a defendant is resentenced after part of a multi-count sentence is set aside and a new sentence imposed which increases the term of imprisonment for the remaining offenses, such that the total term of imprisonment remains the same as first imposed, the Double Jeopardy Clause is not violated.  Canby (author), Kleinfeld, and Rawlinson, Circuit Judges. S. Halbert of San Francisco, CA, for the appellant;  P. Axelrod of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

85)  SENTENCING:  USA v. Camacho, 02-50447 (9th Cir. Aug. 15, 2003).  The district court erred by failing to sentence the defendant under the Sentencing Guidelines following his guilty plea to one count of failure to appear in violation of 18 USC Sec. 3146;  failure to appear is a "straddle" offense as a matter of law;  thus the federal Sentencing Guidelines apply to a defendant who failed to appear in 1975 and remained a fugitive until 2002 when he was arrested while attempting to enter the United States from Mexico.  Tashima (author), Berzon, and Clifton, Circuit Judges.  AUSA B. Searby of Los Angeles, CA, for the plaintiff-appellant;  AFPD D. Chen of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

86)  SENTENCING:  USA v. Garcia, 03-10067 (9th Cir. Aug. 25, 2003).  The "exceptional reasons" standard justifying bail under 18 USC Sec. 3145(c) applies only where justified by exceptional circumstances;  hardships that commonly result from imprisonment do not meet this standard; the general rule remains that conviction for a covered offense entails immediate incarceration; only in truly unusual circumstances will a defendant whose offense is subject to the statutory provision be allowed to remain on bail pending appeal.  Pregerson, Reinhardt (author), and Graber, Circuit Judges.  D. Riordan and M. Pavone of San Francisco, CA, for the appellants;  AUSA M. Haag of Oakland, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

87)  SENTENCING:  USA v. Leon, 02-10077 (9th Cir. Aug. 27, 2003).  Following the defendant's conviction for preparing false tax returns, the district court did not improperly make a six levels downward sentencing departure based on the defendant's family ties and indispensable role in caring for his wife, who had recently had her kidney removed due to renal cancer and who had been diagnosed as being at risk of committing suicide were she to lose her husband to death or incarceration.  Brunetti (author) and Tashima, Circuit Judges, and Ezra, District Judge.  AUSA S. Lyons of Washington, DC, for the appellant;  AFPD A. Traum of Las Vegas, NV, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

88)  HABEAS CORPUS:  Gonzalez v. Pliler, 02-55640 (9th Cir. Aug. 26, 2003).  An evidentiary hearing was required to resolve a prisoner's habeas claim that forcing him to wear a stun belt during trial violated his due process rights, as the decision to force him to wear the stun belt was made by correctional officers in the first instance, not by the court;  the record was devoid of any action taken by the petitioner in the courtroom that could be construed as a security problem, and the trial court made no attempt to pursue less restrictive alternatives before imposing physical restraints.  Thomas (author) and Paez, Circuit Judges, and Reed, District Judge.  S. Park of Van Nuys, CA, for the petitioner;  R. Anderson of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

89)  HABEAS CORPUS / EFFECTIVE ASSISTANCE OF COUNCIL:  USA v. Skurdal, 01-35959 (9th Cir. Aug. 27, 2003).  A habeas petitioner's attorney’s failure to file a proper Anders brief in support of a motion to be relieved of appointment to represent the petitioner on his direct appeal constituted a denial of effective assistance of counsel under the Fifth Amendment;  the petitioner thus demonstrated cause and prejudice for his failure to seek review of the issues presented in his 28 USC Sec. 2255 motion in his direct appeal.  Browning, Alarcon (author), and Clifton, Circuit Judges.  AFPD M. Donahoe of Helena, MT, for the defendant-appellant;  AUSA C.E. Laws of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

90)  HABEAS CORPUS:  Jaramillo v. Stewart, 01-17531 (9th Cir. Aug. 20, 2003).  Reversing the district court, the USCA held that a 28 USC Sec. 2254 petitioner produced newly discovered evidence of actual innocence that, if credible, raises a sufficient doubt about his guilt such that it is more likely than not that no reasonable juror would have found him guilty of first degree murder;  this justified a hearing to determine whether the petitioner has produced sufficient evidence of actual innocence to excuse the procedural default of his Brady claim and entitle him to have that claim reviewed on the merits by the district court.  Hug (author), Gibson, and Fisher, Circuit Judges.  AFPD J. Dorsey of Phoenix, AZ, for the appellant;  DAG R. Howe of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

91)  HABEAS CORPUS:  Evanchyk v. Stewart, 02-16744 (9th Cir. Aug. 21, 2003).  The petitioner's federal due process rights were violated where the jury instructions allowed the jury to convict him of conspiracy to commit first-degree murder under Arizona law without requiring a finding of an intent to kill;  the Arizona Supreme Cort has explicitly held that intent to kill is an essential element of the crime;  the USCA could not conclude that the state trial court's error was harmless.  Graber, Wardlaw, and Clifton (author), Circuit Judges.  AAG R. Howe of Phoenix, AZ, for the respondents;  APD B. Metcalf of Tucson, AZ, for the petitioner.  (Download the full text of this decision at www.cc9.uscourts.gov/)

92)  HABEAS CORPUS:  Biggs v. Duncan, 01-15917 (9th Cir. Aug. 12, 2003).  For purposes of 28 USC Sec. 2244(d)(2), an application for state post-conviction relief in California was not "pending" between the end of a first round of post-conviction petitions and the commencement of a second round, where the claims raised in the second round were different than those raised in the first round.  Browning, B. Fletcher, and Silverman (author), Circuit Judges.  G. Biggs pro se;  DAG R. T. Marshall of Sacramento, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

93)  HABEAS CORPUS:  Lounsbury v. Thompson, 02-35863 (9th Cir. Aug. 22, 2003).  A petitioner who limits his final state habeas appeal to a procedural competency challenge can make a fair presentation to the state courts of his substantive competency claim if that substantive claim is intertwined with the procedural claim;  as here the substantive claim was intertwined with the procedural claim such that the petitioner made a fair presentation to the state courts of his claim that he was not competent to stand trial.  Goodwin (author), Hug, and Berzon, Circuit Judges.  AFPD C. Schatz of Portland, OR, for the petitioner;  AAG T. Sylwester of Salem, OR, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

94)  HABEAS CORPUS:  Tracey v. Palmateer, 01-35940 (9th Cir. Aug. 29, 2003).  Clearly established federal law, as determined by the Supreme Court, does not require state or federal courts to hold a hearing every time a claim of juror bias is raised;  in the instant case, a trial court's decision not to question a juror further to obtain the names of two jurors who spoke negatively of the defendant and to take additional testimony from those two jurors was neither contrary to nor an unreasonable application of Remmer v. USA, 347 US 227 (1954) and Smith v. Phillips, 455 US 209 (1982);  dissenting, Judge Lay thought the majority's refusal to require the trial judge to hold a hearing on the colorable bias of the two jurors expressed in this first degree murder trial before evidence was presented and after the jury was sworn, constituted a clear travesty of justice and was contrary to Supreme Court precedent.  Lay (dissenting), Wallace, and Tallman (author) Circuit Judges.  AFPD A. Bornstein of Portland, OR, for the petitioner;  H. Myers of Salem, OR, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

95)  HABEAS CORPUS:  King v. Roe, 01-55712 (9th Cir. Aug. 18, 2003).  Where a federal habeas petitioner files several petitions for collateral review in state court and, after the first petition, his petitions are limited to an attempt to remediate deficiencies in his first petition, subsequent petitions will be treated as part of the first "full round" of collateral review and leave the application "pending" for tolling purposes;  if not, the subsequent petitions constitute a "new round" and the gap between the rounds is not tolled.  Browning, B. Fletcher, and Silverman, Circuit Judges. Per Curiam. L. King pro se;  DAG J. Koch of San Diego, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

96)  HABEAS CORPUS:  Delhomme v. Ramirez, 00-56148 (9th Cir. Aug. 15, 2003).  A federal habeas petitioner was entitled to tolling of the Antiterrorism and Effective Death Penalty Act one-year statute of limitations during the entirety of a first round of post-conviction review, despite subsequent overlapping state court habeas petitions.  Browning, B. Fletcher, and Silverman, Circuit Judges.  Per Curiam.  K. Bucur of Laguna Hills, CA, for the petitioner;  DAG K. Byrne of Los Angeles, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

97)  PRISONERS' RIGHTS / ATTORNEYS' FEES:  Dannenberg v. Valadez, 02-16273 (9th Cir. Aug. 11, 2003).  The district court awarded a California state prisoner attorneys' fees in the amount of $57,556; these fees were incurred by the prisoner in his efforts to obtain injunctive relief against prison officials for violating his constitutional rights by punishing him for engaging in protected activity while in prison;  the state maintained that this amount was excessive because Sec. 1997e(d)(2) of the Prison Litigation Reform Act limits recoverable attorneys' fees to 150% of any monetary judgment; the USCA held that Sec. 1997e(d)(2) does not cap available fees when an inmate, as here, obtains injunctive relief in addition to monetary damages.  Hawkins and W. Fletcher, Circuit Judges, and Breyer (author), Circuit Judges.  AAG R. Anderson of Sacramento, CA, for the defendants-appellants;  R. Melluish of Elk Grove, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

98)  INMATE TRUST ACCOUNTS:  McIntyre v. Bayer, 01-55169 (9th Cir. Aug. 13, 2003).  In light of Brown v. Legal Found. Of Wash., 123 S.Ct. 1406 (2003), further factual development is needed in the instant case to determine whether inmate McIntyre suffered a net loss sufficient to entitle him to compensation due to the application of a Nevada statute which requires that interest generated by inmate trust accounts be retained by prison authorities and expended for the benefit of the general prison population.  Stapleton, O'Scannlain (author), and Fernandez, Circuit Judges.  J. McIntyre pro se;  DAG G. Lither of Carson City, NV, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  TAXATION:  USA v. Gabel, 02-15861 (9th Cir. Aug. 21, 2003) (unpublished).  Reinhardt, Siler, and Hawkins, Circuit Judges.
          The Gabels appealed from the district court's final order reducing to judgment income tax and related assessments entered against them in the amounts of $96,620 and $58,441, respectively.  They stipulated to owing the tax liability and penalties, but proceeded to trial to challenge the validity of the underlying assessment.  On appeal, they maintained that the district court erred by denying their motion to exclude from evidence Forms 4340 (Certificates of Assessment and Payment) and Forms 23C (Summary Records of Assessment).  Without these forms, the government would not have been able to establish the validity of the tax assessment under 28 USC Sec. 6203.  The Gabels first argued that, even absent a showing of bad faith, the district court should have excluded both forms from evidence pursuant to Fed. R. Civil Proc. 37 because the government produced them too close to the date of trial.  Although the Gabels made several broad requests for "any and all documents supporting the government's complaint," they failed to request a continuance when the documents were eventually produced.  At oral argument, they were unable to identify a specific concern about the forms or the validity of the assessment in general.  Because they failed to ask for a continuance and any delay in production was harmless, the district court did not abuse its discretion by denying their motion to exclude both forms.  The Gabels alternate argument, that Forms 23C are inadmissible because they refer to "supporting records" which contain hearsay, was equally without merit.  As the Gabels conceded, the Forms 23C fell within the public records hearsay exception provided in Fed. R. Evid. 803(8).  Testimony at trial established that the supporting records referred to in the Forms 23C also fell within the public records exception;  the IRS records custodian testified that the entries and magnetic tapes referred to as "supporting records" in the Forms 23C were generated, stored, and signed by a delegation officer in nearly the same manner as Forms 23C.  Based on this testimony, the district court did not err in admitting Forms 23C, and the information contained therein, into evidence pursuant to the public records exception to hearsay.  Moreover, even assuming that Forms 23C were inadmissible, Forms 4340 are generally regarded as being sufficient proof, in the absence of evidence to the contrary, of the propriety of the assessments.  Having determined that the district court did not err in admitting Forms 4340 and Forms 23C into evidence, the USCA concluded that the government met its burden of proving the validity of its assessment under 28 USC Sec. 6203.

2)  TAXATION:  O'Brien v. USA, 02-16587 (9th Cir. Aug. 21, 2003) (unpublished).  Reinhardt and Graber, Circuit Judges, Shadur, District Judge.
         O'Brien filed suit against the United States and amended his complaint once.  The district court dismissed the case, pursuant to Fed. R. Civ. Proc. 12(b)(6), on the ground that the amended complaint failed to state a claim on which relief can be granted.  The USCA reversed and remanded.
          O'Brien alleged, in essence, that IRS agents incorrectly suspected him of laundering drug money;  threatened him with criminal prosecution if he did not confess to laundering drug money and pay taxes that, in fact, he did not owe; and falsely told his employer that the was laundering drug money, on which he was not paying taxes, causing him to lose promotions he deserved.  According to the amended complaint, O'Brien did not pay the additional taxes the IRS agents had wrongly tried to exact.  For present purposes, the USCA had to take as true all of the allegations of the amended complaint.
          First, the USCA noted that dismissal without leave to amend is improper unless it is clear that the complaint could not be saved by further amendment.  On de novo review, it concluded that the district court erred by dismissing the action, because O'Brien could state a claim under 26 USC Sec. 7431.  Section 7431 waives the sovereign immunity of the United States with respect to (among other things) the disclosure of any "return information with respect to a taxpayer in violation of any provision of section 6103."  The USCA noted that the allegations of the amended complaint would allow O'Brien to prove that the allegedly disclosed information was "return information," that the alleged disclosure violated 26 USC Sec. 6103, and that the disclosure to his employer occurred outside the collection attempts.  Second, the district court correctly held that O'Brien could not state a claim under 26 USC Sec. 7433, because he had not alleged and, the USCA thought, could not allege that he suffered "actual, direct economic damages … as a proximate result" of the IRS agents' conduct.  Id. at Sec. 7433(b)(1).  By contrast, however, the damages provision of Sec. 7431(c)(B)(i) does not contain the terms "direct" and "proximate."  O'Brien could have amended his complaint to cite this statute as a basis of relief on the facts he had pleaded.  The complaint thus could have been saved by further amendment, and the district court erred by not allowing O'Brien an opportunity to so amend.  The USCA thus reversed and remanded for further proceedings. 

3)  TAXATION:  Townes v. CIR, 02-70540 (9th Cir. Aug. 19, 2003) (unpublished).  Schroeder, Hawkins, and Tashima, Circuit Judges.  The Townes appealed pro se the Tax Court's dismissal of their petition challenging the IRS's notice of determination approving proposed collection actions regarding the Townes' federal income tax liabilities for 1993 through 1997.  The USCA concluded that the Tax Court properly decided that the Townes were precluded from challenging their underlying tax liabilities during the Collection Due Process hearing because they received statutory notices of deficiency for the relevant years.  26 USC Sec. 6330(c)(2)(B).  The Tax Court also properly concluded that the Townes failed to raise any justiciable issues as their only arguments were frivolous, in-cluding that the federal government did not have jurisdiction over them as citizens of Nevada.

 4)  BANKRUPTCY:  In re Cook, 02-16279 (9th Cir. Aug. 6, 2003) (unpublished).  Silverman, W. Fletcher, and Rawlinson, Circuit Judges. 
          In this case the USCA affirmed the bankruptcy court's order in all respects, and denied the appellees' request that the case be remanded for an award of sanctions against the debtor.  First, appellee Cook explicitly requested that the debtor's case be dismissed with prejudice in her Objection to Confirmation filed Sept. 14, 2001.  She there briefed the issue of bad faith, the ground upon which dismissal with prejudice would be warranted, and offered sworn declarations to support her contentions.  The debtor received and read her objection (and he does not contend otherwise), as he responded to her allegations of bad faith in his Memorandum of Law in Support of Confirmation, filed Sept. 20, 2001.  His contention that the bankrptcy court's consideration of dismissal with prejudice at the Sept. 21st hearing and at the continuance of that hearing in  October violated his due process right to notice thus lacked merit.  Second, the bankruptcy court did not clearly err in finding that the debtor proposed his plan in bad faith.  In its order dismissing this case, the bankruptcy court essentially found that the petition was filed and plan proposed in order to thwart the state court divorce proceedings and to spite the debtor's "soon-to-be ex-spouse." These findings were supported by the evidence, most notably by the timing of the filing just before the divorce trial was set to commence and just after the judge in those proceedings ordered the debtor to return the funds in the New Jersey Trust to Arizona.  The debtor offered no evidence to contradict the sworn allegations in the declarations submitted by Cook and Ty Simpson chronicling the debtor's inequitable conduct.  The bankruptcy court also noted that the debtor had dissipated assets and incurred administrative expenses for no good purpose.  This finding too was supported by the evidence.  The debtor incurred substantial post-petition debt without the approval of the bankruptcy court and offered no competent evidence to demonstrate that the expenses incurred were either warranted or reasonable.  Third, considering the totality of the circumstances, particularly the debtor's intent to thwart the state court divorce proceedings and his otherwise egregious behavior, the bankruptcy court did not abuse his discretion in ordering dismissal with prejudice.  Finally, the bankruptcy judge did not exceed his jurisdiction when he ordered that all of the debtor's future bankruptcy filings be assigned to him.  Bankruptcy courts may issue any order, process, or judgment necessary or appropriate to carry out the provisions of Title 11.  11 USC Sec. 105(a).  The challenged order is "appropriate to carry out the provision" of Title 11 baring the filing of bad faith petition.  As the BAP noted, if at the time of any future filing the debtor feels that he has grounds to request that the judge recuse himself from hearing his case, he may bring a recusal motion.

5)  BANKRUPTCY:  In re Enterprise Industries, 02-15758 (9th Cir. Aug. 19, 2003) (unpublished).  Hill, T.G. Nelson, and Hawkins, Circuit Judges.
          This appeal involves a security interest priority dispute in bankruptcy between Fleet Capital Corporation (Fleet), lender, and Sutherland Presses, vendor, concerning a 550-ton printing press purchased by the debtor, Enterprise Industries.  The bankruptcy court, affirmed by the BAP, found that Fleet had acquired a purchase money security interest (PMSI) in the press by advancing funds that enable Enterprise to acquire rights in the press within the meaning of Cal. Comm. Code. Sec. 9107(b).  It also found that Fleet's PMSI had priority over Southerland's PMSI as Fleet was the first to file its UCC-1 statement. Cal. Comm. Code Sec. 9312(5)(a).  Upon a thorough and independent review of the record and arguments on appeal, the USCA found no error. It thus affirmed the judgment of the bankruptcy court, granting summary judgment in favor of Fleet.

6)  BANKRUPTCY:  In re Bogetti, 02-16069 (9th Cir. Aug. 18, 2003) (unpublished).  Reinhardt and Graber, Circuit Judges, and Shadur, District Judge.
         The USCA affirmed the BAP's order in this case.  First, BAP did not err in holding that Bogetti's beneficial interest in the trust is part of the bankruptcy estate, even though legal title to the res of the trust is not part of the bankruptcy estate.  In a trust, legal and equitable interest are separated and held by two different entities;  such separation is a sine qua non of the creation of a trust.  Second, Bogetti's beneficial interest in the trust is not excludable from the bankruptcy estate.  Patterson v. Shumate, 504 US 753, 758 (1992), interpreted 11 USC Secs. 541(c)(1) and (2) to mean that a debtor may "exclude from property of the estate any interest in a plan or trust that contains a transfer restriction enforceable under any relevant nonbankruptcy law."  The anti-alienation provision contained in Bogetti's trust is not enforceable under any relevant nonbankruptcy law, however, so the beneficial interest is not excludable under Sec. 541(c).  California Probate Code Sec. 15304(a) provides: "If the settler is a beneficiary of a trust created by the settlor and the settlor's interest is subject to a provision restraining the voluntary or involuntary transfer of the settlor's interest, the restraint is invalid against transferees or creditors of the settlor.  The invalidity of the restraint on transfer does not affect the validity of the trust."  Thus, the "spendthrift" provision in Bogetti's self-settled trust is invalid under state law.  Moreover, there is no federal nonbankruptcy law under which the provision is enforceable.  Finally, the corpus of the trust's corpus is subject to creditor claims.  Bogetti created the trust of which he and his wife were the sole beneficiaries, naming their son as the Trustee.  At the same time, they retained a general power of appointment to designate and change beneficiaries at will.  They also retained the power to terminate the trust.  Under the circumstances, the property is subject to the claims of Bogetti's creditors.  Cal. Prob. Code Sec. 683.

7)  PROPERTY / SECURED INSTRUMENTS:  Great Western, Inc., 401(k) Profit Sharing Plan v. State Farm Fire and Casualty Company, 02-35476 (9th Cir. Aug. 18, 2003) (unpublished).  Browning, Alarcon, and Clifton, Circuit Judges.
         Great Western, Inc. Sec. 401(k) Profit Sharing Plan ("Great Western") appealed a grant of summary judgment for State Farm Fire and Casualty Company ("State Farm"). 
          The USCA affirmed.  Great Western (GW) invested in mortgages and other secured instruments through the National Mortgage Company of Montana ("National").  After learning that National had mishandled several of these investments, GW filed suit in Montana state court, and won a default judgment against National.  GW now claims that the default judgment should be covered by an insurance policy that National had with State Farm.  That policy provides:  [State Farm] will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury, property damage, person injury or advertising injury to which this insurance applies.  No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Supplementary Payments."  The question is whether the losses GW suffered resulted from "physical injury to or destruction of tangible property."  In its Montana state suit, GW won damages for losses in the returns it expected to receive from its investments in mortgages and other secured instruments, and for losses in foreclosure rights and other rights in collateral.  Under Montana law, such losses do not constitute "physical injury to or destruction of tangible property."  See Graber v. State Farm, 797 P.2d 214, 216 (Mont. 1990) (defining "tangible property" as "property capable of being handled, touched or physically possessed," and holding that a suit alleging lost advertising business, lost revenues, and lost business reputation does not allege loss of tangible property).  Thus, the insurance policy National bought from State Farm does not cover National's liability to GW.  GW argued that National's liability should be covered under the "Products-Completed Operations" ("PCO") provisions of the State Farm policy.  The definition section of the policy provides that "products-completed operations hazard includes all bodily injury and property damage arising out of your product or your work."  But even if the PCO did provide independent coverage, the PCO is limited to "property damage," defined as being limited to damage to "tangible property," and GW suffered no losses to tangible property.  GW maintained that insurance policies ought to be construed as they would be understood by a person of average intelligence with no legal training, and that any such person would think that National's insurance policy included coverage for liability for negligence of the sort National committed.  But Montana law does not support this approach to interpreting the policy.  GW further argued that its security interests are tangible property because "a mortgage interest does not exist apart from the mortgage document," and mortgage documents are tangible.  However, because GW never claims that its losses arose because of damage to the mortgage papers themselves, the USCA found this argument unavailing.  GW also argued that State Farm should be equitably estopped from denying coverage because State Far denied its duty to defend National in the Montana state lawsuit brought by GW.  However, aside from conclusory allegations, the USCA found that GW provided no evidence that State Farm refused to provide National with a defense;  in fact, GW admits that State Farm offered to appoint an attorney for National in October of 1999, before GW filed suit against National, and GW admits that State Farm only received notice that National had been sued in Montana state court after that suit had concluded.  "The mere existence of a scintilla of evidence" will not suffice to defeat a properly supported motion for summary judgment;  "there must be evidence on which the jury could reasonably find for plaintiff."  Anderson v. Liberty Lobby, 477 US 242, 252 (1986).  Finally, GW argued that the district court erred when it held, as an alternative basis for its ruling, that because the State Farm policy excluded coverage for liability arising from the negligent provision of "professional services," National's losses were not covered by the State Farm policy.  As the USCA concluded that GW did not suffer any losses to "tangible property," it had no need to reach this alternative basis for the district court's ruling. 
        State Farm cross-appealed the district court's denial of State Farm's motion to strike as moot.  Given the grounds on which the USCA resolved GW's appeal, it concluded that State Farm's motion to strike remains moot.  It thus affirmed the district court's denial of State Farm's motion as moot.

8)  AMERICANS WITH DISABILITIES ACT:  Tallerday v. Tucson, 03-15327 (9th Cir. Aug. 19, 2003) (unpublished).  Schroeder, Hawkins, and Tashima, Circuit Judges.
        Tallerday appealed pro se the district court's summary judgment in favor of the City of Tucson in her employment discrimination action alleging violations of the Americans with Disabilities Act and Arizona state laws.  The USCA affirmed.  Summary judgment was proper on the discrimination and retaliation claims under the ADA as Tallerday failed to raise to raise a genuine issue of material fact as to whether she suffered an adverse employment action, or whether there was a causal link between her disability and the employment actions of which she complained.  The dismissal of her Title VII claim for disability discrimination was proper as she failed to allege that she was a member of a protected class.  Summary judgment was proper on her Sec. 1983 claim as she failed to raise a genuine issue as to whether restricting her ability to sew during work lulls, while she had a workers compensation claim pending for repetitive stress injury, violated her constitutional or federal statutory rights.  The City thus was not subject to municipal liability under Sec. 1983.  Summary judgment on Tallerday's claims for intentional infliction of emotional distress was proper as she failed to present any evidence of extreme or outrageous conduct.  Summary judgment on the claim for negligent infliction of emotional distress claim was proper as Tallerday failed to present any evidence that she was subject to an unreasonable risk of bodily harm created by the defendant.  Summary judgment on her claim for injuries arising from the City's alleged negligence and negligent supervision was proper as Arizona's worker's compensation statutes provide the exclusive remedy for such claims.  The district court properly dismissed Tallerday's claim that the City violated "Arizona Discrimination Laws," as she failed to state which laws were violated or how.  Finally, the district court did not abuse its discretion by denying Tallerday leave to amend her complaint a second time because she filed the motion for leave five months after the deadline and failed to show good cause for allowing late amendment.