1)  ANTITRUST:  Freeman v. San Diego Assoc. of Realtors, 01-56199 (9th Cir. Mar. 10, 2003).  A decision of real estate trade associations to combine their databases into a Multiple Listing Service (MLS) did not violate any per se antitrust rules;  but, their decision to fix "support" fees MLS paid to smaller member associations did.  Kozinski (author) and Fernandez, Circuit Judges, and King, District Judge.  D. Barry of San Francisco, CA, for the appellants;  C. Cohler of San Francisco, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

2)  ANTITRUST:  MetroNet Services v. US West Communications, 01-35406 (9th Cir. Mar. 31, 2003).  Resellers of discounted phone line access and calling features (such as "voice mail" and "call forwarding") presented sufficient evidence of monopoly power, exclusionary conduct, and antitrust injury to overcome summary judgment and proceed on anti-trust claims against the seller.  Browning, Fisher (author), and Tallman, Circuit Judges.  J. Phillips of Seattle, WA, for the appellants;  T. Boeder of Seattle, WA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

3)  SECURITIES / SANCTIONS:   SEC v. McCarthy, 02-55201 (9th Cir. Mar. 3, 2003).  The SEC had standing pursuant to Sec. 21 of the Securities Exchange Act of 1934 to enforce an order upholding sanctions imposed by the National Association of Securities Dealers;  Sec. 21 also permits the use of summary proceedings in district court to enforce SEC orders.  D.W. Nelson (author), Wardlaw, and Fisher, Circuit Judges.  G. Sherwin of Los Angeles, CA, for the defendants-appellants; T. Karr of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  SECURITIES / ASSET FORFEITURE:  SEC v. Hickey, 01-17027 (9th Cir. Mar. 7, 2003).  A district court's inherent equitable power permits it to freeze assets of a non-party, if that non-party is dominated and controlled by a defendant against whom relief has been obtained in a securities fraud enforcement action and the freeze is to effectuate that relief.  Hawkins, Graber, and Tallman (author), Circuit Judges.  D. Cohen of San Francisco, CA, for the defendant-appellant;  C. Dowling of San Francisco, CA, for the third-party appellant;  M. Conley of Washington, DC, for the SEC.(Download the full text of this decision at www.cc9.uscourts.gov/)

5)  SECURITIES:  Seinfeld v. Bartz, 02-15498 (9th Cir. Mar. 7, 2003).  The USCA upheld the dismissal of a shareholder's derivative action against a company and its board of directors, as under SEC rules a proxy statement need not include a "Black-Scholes" valuation of stock options granted to outside (non-employee) directors.  Brunetti and Tashima (author), Circuit Judges, and Ezra, District Judge.  A. Gershon of New York, NY, for the appellant;  K. Muck of San Francisco, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

6)  TAXATION:  Synergy Staffing, Inc. v. IRS, 01-55933 (9th Cir. Mar. 24, 2003).  A taxpayer's administrative claim was sufficient to put the IRS on notice of the nature of a claim for abatement of late-payment penalties.  T.G. Nelson, Silverman (author), and McKeown, Circuit Judges.  A. Rosenfeld of Torrance, CA, for the plaintiffs-appellants;  A. Wietecha of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  TAXATION:  Abelein v. USA, 02-35054 (9th Cir. Mar. 27, 2003).  A claim against the United States for improper disclosure of confidential tax return information was not actionable, as the procedure that led to Final Partnership Administration Adjustment forms on which the information was disclosed arose out of TEFRA partnership level administrative proceedings.  O'Scannlain, Fernandez (author), and Fisher, Circuit Judges.  T. Merriam of Seattle, WA, for the appellants;  A. Sheehan of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  TAXATION / NATIVE AMERICAN LAW:  Burlington Northern Santa Fe Railroad v. The Assiniboine & Sioux Tribes of Fort Peck, 01-35681 (9th Cir. Mar. 17, 2003). Indian tribes showed a basis for believing that a railroad's right-of-way threatened harm to tribal lands;  the tribes were entitled to further discovery on the issue of harm in the railroad's challenge to the tribe's imposition of an ad valorem tax;  concurring, Judge Gould thought that only on a full record could it be fairly decided whether the tribal integrity exception could be satisfied.  Beezer, Gould (concurring), and Berzon (author), Circuit Judges.  R. Peyton of Washington, DC, for the defendants;  M. Webster of Washington, DC, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

 9)  COPYRIGHTS:  Ets-Hokin v. Skyy Spirits, 01-17411 (9th Cir. Mar. 14, 2003).  Allegedly infringing advertising photos were not "virtually identical" as required upon application the defense doctrines of merger and scenes a faire;  as the lighting, angles, shadows, highlighting and background of the photos were different from the claimant's photos the defenses were appropriately invoked.  Schroeder (author), Goodwin, and Clifton, Circuit Judges.  C. Welch of Newport, RI, for the plaintiff;  J. Kinnear of San Francisco, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  COPYRIGHTS:  Satava v. Lowry, 02-16347 (9th Cir. Mar. 20, 2003).  The idea of lifelike glass-within-glass jellyfish sculptures was an unprotectable idea under the Copyright Act.  Silverman and Gould (author), Circuit Judges, and Weiner, District Judge.  D. Barnard of Seattle, WA, for the appellants;  R. Myers of San Francisco, CA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  BANKRUPTCY / SANCTIONS:  In re Dyer,  01-56319 (9th Cir. Mar. 13, 2003).  On an issue of first impressions in the Ninth Circuit, the USCA held that serious punitive sanctions are unavailable under either the civil contempt authority of 11 USC Sec. 105(a) or the bankruptcy court's inherent sanction authority.  Canby, Gould, and Berzon (author), Circuit Judges.  S. Weiss of Los Angeles, CA, for the appellant;  P. Teunisse of San Dimas, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  BANKRUPTCY:  In re Kolb, 01-17240 (9th Cir. Mar. 3, 2003).  A beneficiary's use of a contingent interest in a trust remainder to secure personal and professional bank financing constituted an acceptant of that interest under California law;  that interest is an asset of the bankruptcy estate.  Cowen (author), Hawkins, and W. Fletcher, Circuit Judges.  J. Poppin of San Francisco, CA, for the appellant;  N. Bardack of San Francisco, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

13)  TORTS / INCONSISTENT VERDICTS:  Duk v. MGM Grand Hotel, 01-15841 (9th Cir. Mar. 3, 2003).  A district court's decision to re-submit an inconsistent verdict for clarification was within its discretion, but it erred in ordering a new trial upon receipt of a second verdict in this personal injury action.  D.W. Nelson, Hawkins (author), and Wardlaw, Circuit Judges.  S. Martin of Las Vegas, NV, for the appellant;  B. Wolfenzon of Las Vegas, NV, for the appellee;  L. Sanders of Las Vegas, NV, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  INSURANCE:  Campanelli v. Allstate Life Ins. Co., 00-55466 (9th Cir. Mar. 3, 2003).  Actions by homeowners against an insurer for undervaluation of claims were time-barred, but revived by Cal. C. Civ. Proc. Sec. 340.9, which became effective while the appeals were pending;  Sec. 340.9 does not violate the due process clause of the Federal or California constitutions.  Bright, Goodwin, and Tashima (author), Circuit Judges.  N. Watkins of Los Angeles, CA, for the appellants;  P. Klee of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  INSURANCE:  Feldman v. Allstate Insurance Company, 01-56718 (9th Cir. Mar. 5, 2003).  Conversations recorded illegally under California Penal Code Sec. 632 were erroneously admitted in a civil action alleging that an insurer breached the implied covenant of good faith and fair dealing;  the appellant waived his confidential marital communications privilege.  Ferguson, Hall (author), and Berzon, Circuit Judges.  R. Dion of Los Angeles, CA, for the appellant;  W. Beaudoin of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  INSURANCE / ASSET FORFEITURE:  Connecticut General Life Insurance Co. v. New Images of Beverly Hills, 02-55883 (9th Cir. Mar. 3, 2003). The district court properly granted a preliminary injunction freezing the defendant's assets, where in an action arising from an insurance fraud scheme the plaintiffs demonstrated a likelihood of success and possibility of irreparable injury.  B. Fletcher and Hawkins (author), Circuit Judges, and Bury, District Judge.  J. Bennett of Pasadena, CA, for the defendant;  L. Fox of New York, NY, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)  [See Memo decisions #13 and 14 below]

17)  CONTRACTS / LEASES:  Atel Financial Corp. v. Quaker Coal Company, 01-15687 (9th Cir. Mar. 3, 2003).  A lessor was not entitled to liquidated damages for a payment default under a lease providing for such damages for loss of a bargain upon the occurrence of a default, when the parties continue to perform under the lease after the default, and the lessee eventually paid the default in full together with late fees.  Schroeder, Goodwin, and Clifton, Circuit Judges. Per Curiam.  D. Wiseblood of San Francisco, CA, for the appellant;  G. Johnson of Lexington, KY, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

18)  INTERNATIONAL TRADE:  Gravquick A/S v. Trimble Navigation Intl., 01-16703 (9th Cir. March 31, 2003). The California Equipment Dealers Act (CEDA) does not contain unstated geographical limitations such as to prevent its application to the Danish company's claims in this case;  CEDA applies to dealers outside California, and its application here did not violate the Commerce Clause.  Ferguson, Brunetti, and Tashima (author), Circuit Judges.  M. Emerick of San Mateo, CA, for the appellant;  N. Healy of Palo Alto, CA, for the appellees(Download the full text of this decision at www.cc9.uscourts.gov/)

19)  LABOR LAW / FALSE CLAIMS ACT:  Local 342 Plumbers v. Dan Caputo Company, 01-17300, (9th Cir. Mar. 5, 2003).  In an action under the False Claims Act, a union failed to show that the defendant employers failed to pay the prevailing wage, where the prevailing wage had not been established by a collective bargaining agreement, the union failed to follow its own jurisdictional agreements regarding a prevailing wage, and no prevailing wage had been established by letters from the Dept. of Labor's Wage and Hour Division.  Schroeder, Noonan (author), and Clifton, Circuit Judges.  J. Davis of San Francisco, CA, for the appellants;  S. Tedesco and J. Watson of San Francisco, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

20)  ERISA:  Winterrowd v. American Gen. Annuity Ins. Co., 01-57184 (9th Cir. Mar. 5, 2003). When an acquiring company offers terminated employees a severance package via letter correspondence, the letters are merely an offer to extend benefits;  they constitute neither an ERISA "employee benefit plan" nor an amendment to such a plan.  Hall (author), Thompson, and Berzon, Circuit Judges.  W. Wheatley of Del Mar, CA, for the appellants;  D. Kallstrom of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  EMPLOYMENT DISCRIMINATION:  Raad v. Fairbanks North Star Borough School District, 00-35999 (9th Cir. Mar. 27, 2003).  The USCA reversed and remanded this case for further proceedings as the district court failed to consider record evidence in the light most favorable to the plaintiff (the non-moving party) in granting summary judgment in a disparate treatment workplace discrimination action, and, when viewed in that light, the record reflects a genuine issue of material fact as to whether the reasons given for discipline were pretextual.  B. Fletcher (author), Alarcon, and Graber, Circuit Judges.  R. Sparks of Fairbanks, AK, for the appellant;  P. Partnow of Anchorage, AK, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

22)  WORKERS' COMPENSATION / SANCTIONS: A-Z Intl. v. Phillips, 01-56689 (9th Cir. Mar. 21, 2003).  A district court lacked jurisdiction under Sec. 927(b) of the Longshore and Harbor Workers' Compensation Act to sanction a claimant for contempt for filing a false claim for benefits under the Act.  B. Fletcher (author), Alarcon, and Hawkins, Circuit Judges.  L. Conner of Long Beach, CA, for the plaintiffs-appellants;  no brief filed or appearance for the defendant-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

23)  REAL ESTATE:  Bjustrom v. Trust One Mortgage Corp., 01-36076 (9th Cir. Mar. 20, 2003).  A mortgage lender's payment of yield-spread and service release premiums to mortgage brokers did not violate the Real Estate Settlement Procedures Act;  concur-ring, Judge Berzon wrote that, while in her view lender-paid broker fees denominated as "yield spread premiums" and similar devices violate the anti-kickback provisions of the Act, the facts of recent Ninth Circuit decisions were virtually indistinguishable from the facts in this case;  she thus concurred in the opinion in its entirety.  Hill (author), Gould, and Berzon (concurring), Circuit Judges.  B. Reed of Scottsdale, AZ, for the plaintiffs-appellants;  T. Hefferon of Washington, DC, for the defendant-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

24)  REAL ESTATE:  Lane v. Residential Funding Corp., 01-16269 (9th Cir. Mar. 13, 2003).  A title company's pricing arrangements did not violate Sec. 8(a) of the Real Estate Settlement Procedures Act, as discounts and total compensation were reasonably related to the value of services actually performed.  D.W. Nelson, Beezer (author), and Wardlaw, Circuit Judges.  J. Sturdevant of San Francisco, CA, for the appellants;  S. Stublarec of San Francisco, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

25)  EDUCATION LAW / QUALIFIED IMMUNITY: Bernstein v. Lopez, 02-55119 (9th Cir. Mar. 4, 2003).  Under California law, school board members are protected by qualified immunity from claims by former school principals and vice-principals after re-assignment, as the plaintiffs had no clearly established right to continue in their administrative positions;  dissenting, Judge Pregerson thought that this case should go forward to resolve the material factual issue of whether the reassignments were based on their performance and so qualified as demotions under the administrative procedures.  Pregerson (dissenting), Noonan (author), and Tashima, Circuit Judges.  Y. Calderon of San Diego, CA, for the appellants;  G. Schaeffer of Irvine, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  MEDICARE:  Community Hospital of The Monterey Peninsula v. Thompson, 01-17512 (9th Cir. Mar. 18, 2003).  The Dept. of Health and Human Services' "must bill" policy, which requires providers to submit evidence that they had billed Medi-Cal for co-insurance and deductible obligations but received a refusal to pay, was a reasonable implementation of the reimbursement system and not inconsistent with 42 USC Sec. 1395g(a) and regulations governing the relevant period of time.  Stapleton (author), O'Scannlain, and Fernandez, Circuit Judges.  S. Yurk of San Francisco, CA, for the defendant-appellant;  S. Pitler of Seattle, WA, for the plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  SOCIAL SECURITY BENEFITS:  Kildare v. Saenz, 01-17464 (9th Cir. Mar. 24, 2003).  The USCA upheld the dismissal of a class action which alleged that state officials systematically disregarded federal regulations in initially evaluating certain Social Security benefit applications, as the appellants failed to exhaust their administrative remedies.  Trott (author), Rymer, and Tallman, Circuit Judges.  R. Borton of San Francisco, CA, for the appellants;  C. Kohl of Washington, DC, and D. Press of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  VETERANS' DISABILITY CLAIMS:  Littlejohn v. USA, 01-16265 (9th Cir. Mar. 5, 2003).  Decisions of the Department of Veterans Affairs (VA) relating to disability claims were not entitled to claim or issue preclusive effect in an action under the Federal Tort Claims Act alleging negligence by VA physicians.  D.W. Nelson, Beezer (author), and Wardlaw, Circuit Judges.  T. Witte of Fair Oaks, CA, for the plaintiff-appellant;  AUSA G. Addington of Reno, NV, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  CONSUMER PROTECTION / FAMILY LAW:  Hasbun v. Los Angeles, 02-55495 (9th Cir. Mar. 20, 2003).  Child support enforcement agencies need not comply with the certification requirements of 15 USC Sec. 1681b(a)(4), for obtaining consumer credit reports, when seeking to collect court-ordered child support.  Lay, Hawkins, and Tallman (author), Circuit Judges.  L. Dell of Los Angeles, CA, for the appellant;  M. Blum of Irvine, CA, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

30)  FAMILY LAW, AFDC:  California Dept. of Social Services v. Thompson, 00-17266 (9th Cir. Mar. 3, 2003).  Receipt of funds under the federal Aid to Families with Dependent  Children Foster Care Program (AFDC-FC) does not depend on whether a AFDC-FC eligible child is living in the home of foster parents who are also relatives.  Thompson, W. Fletcher, and Berzon (author), Circuit Judges.  M. Shelvy of Los Angeles, CA, for the intervenor-appellant;  J. Clair of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  PUBLIC UTILITIES / FERC:  Bear Lake Watch, Inc.  v. Federal Energy Regulatory Commission, 02-70660 (9th Cir. Mar. 27, 2003).  The FERC did not err in finding that, because a reservoir was not necessary or appropriate to the operation of power projects, it lacked jurisdiction over operations at the reservoir even though it had jurisdiction over the power projects themselves.  O'Scannlain, Fernandez (author), and Fisher, Circuit Judges.  R. Weiner of Boulder, CO, for the petitioner;  L. Perry of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

32)  TORTS / FOREIGN SOVEREIGN IMMUNITIES ACT:  Blaxland v. Commonwealth Director of Public Prosecutions, 00-56330 (9th Cir. Mar. 27, 2003).  Australian government instrumentalities and individuals were entitled to Foreign Sovereign Immunities Act immunity for alleged malicious prosecution and abuse of process;  and Australia did not impliedly waive immunity by extraditing the plaintiff pursuant to the extradition treaty between Australia and the United States.  Pregerson, Tashima, and Berzon (author), Circuit Judges.  A. Ordin of Los Angeles, CA, for the defendants-appellants;  C. Blaxland of Manhattan Beach, CA, for the plaintiff-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

33)  ASSET FORFEITURE:  USA v. Chavez, 02-10307 (9th Cir. Mar. 28, 2003).  Lottery winnings owed to the appellant's husband were properly held forfeited to the United States pursuant to 21 USC Sec. 853, as a district court order prevented the husband from effecting a planned transfer of the winnings.  Noonan (author), Thomas, and Clifton, Circuit Judges.  S. Luban of Oakland, OR, for the claimant-appellant;  AUSA K. Servatius of Fresno, CA, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

34)  CHILD PORNOGRAPHY:  USA v. McCoy, 01-50495 (9th Cir. Mar. 20, 2003).  18 USC Sec. 2252(a)(4)(B), prohibiting possession of certain child pornography, is unconstitutional as applied to simply possession of a visual depiction that has not been mailed, shipped, or transported in interstate commerce and is not intended for interstate distribution, or for any economic or commercial use;  dissenting, Judge Trott thought that the defendant's conduct clearly fell within the language of the statute and that the Supreme Court appears to have ruled out "as applied" challenges in Commerce Clause cases. Reinhardt (author), Trott (dissenting) and Tashima, Circuit Judges.  A. Krueger of San Diego, CA, for the appellant;  AUSA A. Perry of San Diego, CA, for the appellee(Download the full text of this decision at www.cc9.uscourts.gov/)

35)  CIVIL PROCEDURE:  DiRuzza v. County of Tehama, 01-17461 (9th Cir. Mar. 21, 2003).  In parallel litigation in state and federal tribunals over the same core conflict, a California trial court ruling had collateral estoppel effect, precluding the plaintiff from pursing her federal action, even though a California appellate court applied different reasoning in arriving at the same ultimate conclusion as the state trial court.  McKeown and Paez, Circuit Judges, and Pollak (author), District Judges.  A. Fairchild of Alameda, CA, for the appellant;  J. Smith and S. Horan of Sacramento, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

36)  FIRST AMENDMENT:  Brown v. California Dept. of Transportation, 02-15385 (9th Cir. Mar. 13, 2003).  CalTrans policy of permitting an individual to display American flags, but not also other expressive banners, on highway overpasses (non-public fora) constitutes an unreasonable viewpoint discrimination in violation of the First Amendment;  concurring, Judge Beezer wrote separately to take exception to specific sentences in the opinion, without further comment.  D.W. Nelson, Beezer (concurring), and Wardlaw (author), Circuit Judges.  B. Behrens of San Francisco, CA, for the appellants;  J. Wheaton of Oakland, CA, for the appel-lees. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  NATIVE HAWAIIANS:  Arakaki v. Cayetano, 02-16269 (9th Cir. Mar. 31, 2003).  Native Hawaiians had a significantly protectable interest at stake in equal protection challenges related to provision of state benefits to native Hawaiians, but could not intervene as a matter of right where their interests were adequately protected at trial by existing parties.  Hug (author), Alarcon, and Graber, Circuit Judges.  W. Schoettle of Honolulu, HI, for the appellants;  C. Aina of Honolulu, HI, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  CIVIL RIGHTS:  Martinez v. Stanford, 01-56496 (9th Cir. Mar. 26, 2003).  Summary judgment on a prisoner's claim alleging excessive force by corrections officers while breaking up a prison fight, should not have been granted based on the plaintiff's failure to timely file an opposition to the officers' motion and the existence of a local rule indicating that such failure may constitute consent to the granting of a motion;  in addition, issues remained as to whether the degree of force used was clearly unlawful.  Hall, Thompson, and Wardlaw (author), Circuit Judges.  E. Barranco of El Cajon, CA, for the appellant;  R. Wolfe of San Diego, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  IMMIGRATION LAW:  Cedano-Viera v. Ashcroft, 01-70622 (9th Cir. Mar. 26, 2003).  A lawful permanent resident's expunged state conviction for lewdness with a child under 14 years of age constituted an "aggravated felony" justifying removal under 8 USC Sec. 1101(a)(43)(A);  review of the defendant's claim that "streamlining" regulations offended due process was precluded by the Immigration and Nationality Act.  Trott, Rymer (author), and Tallman, Circuit Judges.  M. Van Der Hout of San Francisco, CA, for the petitioner;  M. J. Wight of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  IMMIGRATION:  USA v. Fry, 01-17455 (9th Cir. Mar. 18, 2003).  Counsel's failure to advise the defendant of collateral immigration consequences of the criminal process (possible deportation) and failure to object to the district court's use of a preponder-ance-of-the-evidence standard at sentencing did not violate the defendant's Sixth Amendment right to effective assistance of counsel.  Schroeder, Goodwin, and Clifton (author), Circuit Judges.  K. Winckler of Las Vegas, NV, for the appellant;  D. Bogden of Las Vegas, NV, appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

41)  IMMIGRATION LAW:  Zazueta-Carrillo v. Ashcroft,  02-70259 (9th Cir. Mar. 13, 2003).  The voluntary departure period, granted as a privilege to a removable alien under 8 USC Sec. 1229c, begins when the IJ or BIA enters an order granting voluntary departure;  concurring, Judge Berzon wrote separately to emphasize her conviction that the USCA retains equitable jurisdiction to stay the availability of a voluntary departure period if the merits of an alien's underlying case justify a stay of removal.  Canby, Gould (author), and Berzon (concurring), Circuit Judges.  K. Bove of Escondido, CA, for the petitioner;  R. McCallum of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  IMMIGRATION LAW:  Melkonian v. Ashcroft, 01-71231 (9th Cir. Mar. 4, 2003).  An asylum applicant's fear of persecu-tion in Abkhazia, Georgia, based on political opinion (support for Georgians), ethnicity (Armenian), and religion (Christian) was objectively reasonable;  the Immigration Judge's conclusion that the alien could have relocated failed to take into account the reason-ableness of relocation.  Schroeder and W. Fletcher (author), Circuit Judges, and Weiner, District Judge. E. Garcia-Mendoza of Las Vegas, NV, for the petitioner;  M. Walters of Washington, DC, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  IMMIGRATION LAW:  Iturribarria v. INS, 02-70003 (9th Cir. Mar. 4, 2003).  The Board of Immigration Appeals abused its discretion by misapplying its own regulations when it classified the petitioner's motion alleging ineffective assistance of counsel as a motion to reconsider, rather than as a motion to reopen deportation proceedings;  the petitioner was entitled to a hearing as to equitable tolling.  Canby, Gould, and Berzon (author), Circuit Judges.  E. Quintanilla of Sherman Oaks, CA, for the petitioner;  A. Payne of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  IMMIGRATION LAW:  Valencia-Fragoso v. INS, 02-70028 (9th Cir. Mar. 6, 2003).  An alien failed to appear for her scheduled removal proceeding when she appeared 4 1/2 hours late and failed to show that the immigration judge was still on the bench hearing cases when she finally appeared;  the alien also failed to show "exceptional circumstance" within the meaning of 8 USC Sec. 1229a(e)(1) such as to justify reopening the proceedings notwithstanding her nonappearance.  Hall, Thompson, and Ber-zon, Circuit Judges,  Per Curiam.  R. Jacobs of Santa Ana, CA, for the petitioner;  C. Ferrier of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  IMMIGRATION LAW:  Huerta-Guevara v. Ashcroft,  02-70454 (9th Cir. Mar. 4, 2003). A state conviction for possession of a stolen vehicle did not qualify as the kind of "theft offense" conviction that is an "aggravated felony" such as to subject a lawful permanent resident to removal on that basis.  Trott, Rymer (author), and Tallman, Circuit Judges.  M. Bravin of Washington, DC, for the petitioner;  M. J. Wright of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  IMMIGRATION LAW:  USA v. Rivera-Relle, 02-50211 (9th Cir. Mar. 6, 2003).  An alien can be convicted for "attempting" to enter the United States under 8 USC Sec. 1326, even if he has completed the entry.  Hall (author), Thompson, and Berzon, Circuit Judges.  R. Viselman of San Diego, CA, for the appellant;  AUSA D. Curnow of San Diego, CA,  for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  WARRANTLESS ENTRY:  USA v. Bradley, 02-10168 (9th Cir. Mar. 11, 2003).  The emergency doctrine justified sheriff's deputies' warrantless entry into a private residence, based on the officers' genuine concern for the welfare of a child inside; the child's mother had just been arrested on drug charges.  Schroeder (author), Noonan, and Clifton, Circuit Judge.  T. Zindel of Sacramento, CA, for the appellant;  AUSA W. Wong of Sacramento, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

48)  SEARCH & SEIZURE:  USA v. Elliott,02-30075 (9th Cir. Mar. 10, 2003).  Police officers did not intentionally or recklessly omit or make false statements as to an informant's tip in a search warrant affidavit;  the warrant was supported by probable cause to search the defendant even when he was away from the residence where the tip had placed him next to drugs.  Wallace, Trott (author), and Tashima, Circuit Judges.  AFPD C. Weinerman of Eugene, OR, for the appellant;  AUSA F. Papagni of Eugene, OR, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  SEARCH & SEIZURE:  Morgan v. USA, 01-55471 (9th Cir. Mar. 18, 2003).  On an issue of first impression in the Circuit, the USCA held that a warrantless search of a person seeking entry to a military base may be deemed reasonable under the Fourth Amendment based on the implied consent of the person searched as bases often warn that a search may be a condition on entry;  the USCA remanded to allow the development of the record to determine whether implied consent was present.  T.G. Nelson, Paez, and Tallman (author), Circuit Judges.  M. Weddle of Santa Barbara, CA, for the appellant;  L. Weidman of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  MENTALLY INCAPACITATED DEFENDANTS: Oregon Advocacy Ctr. v. Mink, 02-35530 (9th Cir. Mar. 6, 2003).  A state mental hospital, charged with evaluating and treating mentally incapacitated defendants, violated the substantive due process rights of certain defendants awaiting transfer from country jails by refusing to admit them in a timely manner.  T.G. Nelson, Graber, and Fisher (author), Circuit Judges.  R. Wasserman of Salem, OR, for the appellants;  K. Wilde of Portland, OR, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  PLEA AGREEMENTS:  USA v. Nostratis, 02-10296 (9th Cir. Mar. 11, 2003).  The district court did not err in finding that the defendant understood English well enough to comprehend a plea agreement so that his guilty plea was knowing and voluntary.  Schroeder, Goodwin, and Tashima (author), Circuit Judges.  J. Martinez of Hagatna, GU, for the appellant;  AUSA M. David of Hagatna, GU, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  PLEA AGREEMENTS:  USA v. Luna-Orozco, 02-10024 (9th Cir. Mar. 3, 2003).  No plain error occurred where, although no formal plea was entered, the defendant intended to enter a guilty plea, was fully apprised of the rights he would waive in pleading guilty, acknowledged the factual basis for his conviction, expressed remorse for his crime, and received a lenient sentence for sparing the court the time and expense of trial.  Schroeder (author), Goodwin, and Clifton, Circuit Judges.  L. Tucker of Tucson, AZ, for the appellant;  AUSA R. Gordon of Tuscon, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  DELAYED SUPERSEDING INDICTMENTS:  USA v. Gregory, 01-10737 (9th Cir. Mar. 11, 2003).  Whatever the merits of the government's decision to issue a third superseding indictment, following a 22-month delay, it did not cause defendant prejudice such as violates the Fifth and Sixth Amendments.  Schroeder, Alarcon, and Fisher (author), Circuit Judges.  AUSA T. Muehleck of Honolulu, HI, for the appellant;  P. Lowenthal of Wailuki, HI, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

54)  ATTORNEY-CLIENT RELATIONSHIP:  USA v. Danielson, 01-30151 (9th Cir. Mar. 24, 2003).  Where it is claimed that the government violated the defendant's Sixth Amendment right to counsel by deliberate interference with his attorney-client relationship after obtaining information about his trial strategy, the government has the heavy burden of showing that it did not use that information.  Goodwin, T.G. Nelson, and W. Fletcher (author), Circuit Judges.  B. Lessley of Eugene, OR, for the appellant;  J. Kent of Eugene, OR, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  OBSTRUCTION OF JUSTICE:  USA v. Weber, 01-30419 (9th Cir. Mar. 3, 2003).  A probation officer's petition to revoke defendant's supervised release and the issuance of a warrant for his arrest, constituted the revival of revocation proceedings that were pending when he threatened to kill the judge in his case; the proceedings were a sufficient predicate for the defendant's conviction under 18 USC Sec. 1503.  Wallace, Trott (author), and Tashima, Circuit Judges.  J. Drennan of Washington, DC, for the appellee;  T. Wonnell of Anchorage, AK, for the appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

56)  CRIMINAL LAW:  USA v. Taylor, 01-10104 (9th Cir. Mar. 20, 2003).  A defendant could not be punished as an accessory after the fact under 18 USC Sec. 3 where he participated in the escape phase of the crime and was liable as a principal, even though he assisted in preventing his own and a co-offender's apprehension.  Beezer (author), Thomas, and Clifton, Circuit Judges.  J. Buchella, of Tucson, AZ, for the appellant;  AUSA C. Cabanillas of Tucson, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  MONEY LAUNDERING:  USA v. Rogers, 02-10112 (9th Cir. Mar. 14, 2003).  The defendant's conduct in laundering all the money brought in by his Ponzi scheme provided the relevant standard for determining whether elements of the money laundering statute were met.  Schroeder (author), Noonan, and Clifton, Circuit Judges.  P. Andre of Redwood Shores, CA, for the appellant;  AUSA J. Arguellas of Sacramento, OR, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  SPEEDY TRIAL / JUVENILES:  USA v. Doe, 02-10170 (9th Cir. Mar. 25, 2003).  The speedy trial standard of 18 USC Sec. 5036 was violated where a juvenile Native American was not tried within 30 days after his certification for juvenile proceedings.  Canby (author), O'Scannlain, and W. Fletcher, Circuit Judges.  R. Salter of Tucson, AZ, for the appellant;  AUSA R. Gordon of Tucson, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  SENTENCING:  USA v. Banuelos, 01-50051 (9th Cir. Mar. 10, 2003).  It is well settled that, in determining for purposes of sentencing the quantity of drugs for which a conspirator will be held responsible, the district court must determine the quantity of drugs the conspirator reasonably foresaw or which fell within the scope of his agreement with his conspirators.  The USCA now held that, where such a finding exposes the conspirator to a higher statutory maximum than he otherwise would face, the finding must be made by the jury, or, in the case of a guilty plea, by the court beyond a reasonable doubt;  dissenting in part, Judge Tallman thought that the Apprendi error was harmless beyond a reasonable doubt and that the defendant's sentence should have remained unchanged.  Pregerson, Fisher (author), and Tallman (dissenting in part), Circuit Judges.  J. Deaton of San Diego, CA, for the appellant;  AUSA T. Robinson of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  SENTENCING:  Gill v. Ayers, 01-55808 (9th Cir. Mar. 6, 2003).  A California state court's refusal to allow the defendant to testify at his "Three Strikes" sentencing hearing, to explain or refute his statements as paraphrased in a probation report, denied him due process;  dissenting, Judge Rawlinson thought the state appellate court ruling that the petitioner's right to testify did not out-weigh other interests the court properly considered (fairness and reliability), was entitled to deference.  Thompson (author) and Rawlinson (dissenting), Circuit Judges, and Schwarzer, District Judge.  R. Goldsen of Goleta, CA, for the petitioner;  T. Torreblanca of San Diego, CA, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  SENTENCING:  Beardslee v. Woodford, 01-99007 (9th Cir. Mar. 20, 2003).  Two special circumstances murder convictions and a death sentence were upheld where the defendant was unlikely to meet the prosecutorial misconduct standard necessary for an evidentiary hearing, and no reasonable likelihood existed that the jury unconstitutionally applied erroneous instructions. Tashima, Thomas (author), and Paez, Circuit Judges.  S. Lubliner of Petaluma, CA, for the petitioner;  D. Gillette of San Francisco, CA, for the respondent.  ((Download the full text of this decision at www.cc9.uscourts.gov/)

62)  SENTENCING:  USA v. Chavaria-Angel, 01-10616 (9th Cir. Mar. 26, 2003).  A district court's reliance on uncertified court records during sentencing to establish the nature of prior offenses was not improper, although certified records might be preferable.  Hug, Alarcon, and Graber (author), Circuit Judges.  AFPD J. Carr of Las Vegas, NV, for the appellant;  AUSA K. Kenny of Las Ve-gas, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  SENTENCING:  USA v. Garcia, 02-50069 (9th Cir. Mar. 25, 2003).  U.S.S.G. Chapter 7 ranges are advisory, not binding on a sentencing judge, and the judge is not required to provide notice before departing upward from a Chapter 7 recommended sentencing range;  the sentencing judge's comments showed proper consideration of Chapter 7 policy statements.  B. Fletcher and Hawkins, Circuit Judges, and Bury (author), District Judges.  N. Aguilar of San Diego, CA, for the appellant;  AUSA C. Lam of San Diego, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  SENTENCING:  USA v. Franklin, 01-30226 (9th Cir. Mar. 17, 2003).  A seven-level enhancement under U.S.S.G. Sec 2B3.1(b)(2)(A) for discharge of a firearm at a robber was proper where, although the defendant was not present at a robbery,  he could foresee the discharge;  a reckless endangerment enhancement under Sec. 3C1.2 for attempting to evade police after the robbery was reversed.  Wallace, Trott (author), and Tashima, Circuit Judges.  A. Mendel of Anchorage, AK, and F. Arfa of Los Angeles, CA, for the appellant;  AUSA M. Rosenbaum of Anchorage, AK, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

65)  SENTENCING:  USA v. Auld, 01-10669 (9th Cir. Mar. 3, 2003).  A downward departure under 18 USC Sec. 3553(e) and U.S.S.G. Sec. 5K1.1 should begin from the higher statutorily required minimum sentence, not from a lower otherwise applicable guideline sentence.  Bright, Hawkins, and W. Fletcher (author), Circuit Judges.  D. Gray of Honolulu, HI, for the appellant;  T. Hino of Honolulu, HI, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

66)  SENTENCING:  USA v. Crawford, 01-50633 (9th Cir. Opinion filed Mar. 05, 2003; amended dissent filed March 21, 2003).  The search of a parolee's home without reasonable suspicion, although pursuant to a parole condition authorizing such searches, violated the Fourth Amendment;  dissenting, Judge Trott thought that the special needs of California's parole system made the warrant requirement impracticable and that the state's parolee search conditions were eminently reasonable.  Reinhardt (author), Trott (dissenting), and Tashima, Circuit Judges.  M. McCabe of San Diego, CA, for the appellant;  AUSA D. Curnow of San Diego, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

67)  HABEAS CORPUS:  Chein v. Shumsky, 01-56320 (9th Cir. Mar. 14, 2003).  The failure of a defendant charged with perjury in a state civil action to make a contemporaneous due process objection to the judge's testimony barred pursuing the due process challenge on appeal;  a state appellate court's ruling to that effect was not an unreasonable application of U.S. Supreme Court precedent.  dissenting, Judge Shea thought that as the petitioner made general objections and a motion for mistrial, identifying and implicating rights to a jury trial and to a fair trial, procedural default did not apply. Fernandez and Rawlinson (author), Circuit Judges, and Shea (dissenting in part), District Judges.  C. Sevilla of San Diego, CA, for the petitioner;  B. Ferriera of Los Angeles, OR, for California. (Download the full text of this decision at www.cc9.uscourts.gov/)

68)  HABEAS CORPUS:  Ortiz-Sandoval v. Clarke, 02-15291 (9th Cir. Mar. 25, 2003).  The USCA denied a habeas petition, finding it to be a refiling of earlier claims, not a "second or successive" petition;  under the circumstances, the USCA could not say whether the state court denial of petitioner's ineffective assistance of counsel claim was contrary to or an unreasonable application of Supreme Court law.  Silverman and Gould (author), Circuit Judges, and Sedwick, District Judges.  M. Heinicke of San Francisco, CA, for the petitioner;  S. Birenbaum of San Francisco, OR, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

69)  HABEAS CORPUS:  Smith v. Ratelle, 99-55824 (9th Cir. Mar. 26, 2003).  A habeas petitioner was entitled to equitable tolling where the district court erroneously dismissed his second habeas petition without first giving him an opportunity to file an amended petition as an alternative to dismissal;  dissenting, Judge Beezer thought the district court improperly dismissed the second petition without offering him an opportunity to amend the petition, but that the error did not cause the petitioner to file his third petition after the AEDPA's statute of limitations ran;  rather, it was the petitioners own doing that caused the late filing;  he was thus not entitled to equitable tolling.  Browning (author), Pregerson, and Beezer (dissenting), Circuit Judges.  M. Stratton of Los Angeles, CA, for the petitioner;  D. Druliner of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

70)  PRISONERS RIGHTS:  Marquez v. Gutierrez, 02-15017 (9th Cir. Mar. 6, 2003).  Assuming the facts favoring the inmate-plaintiff in his action alleging an Eighth Amendment violation for excessive force, the USCA concluded that an Eighth Amendment violation would exist, but that a reasonable prison guard in the defendant's position would have believed that the defendants response to a prisoner melee (which was to shoot the plaintiff in the leg) was a good faith effort to restore discipline.  Trott, Rymer (author), and Tallman, Circuit Judges.  S. Perkins of Sacramento, CA, for the appellant;  K. Mennemeier of Sacramento, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  COPYRIGHTS:  Embroidery Industries v. Brasking, Inc., 02-55610 (9th Cir. Mar. 6, 2003) (unpublished).  B. Fletcher, Alarcon, and Paez, Circuit Judges.
          Brasking, Inc. and the May Department Stores, dba, Robinsons-May, Inc. ("Robinsons-May"), appealed from the district court's judgment in favor of Embroidery Industries ("Embroidery") following a jury trial on Embroidery's claim that Brasking and Robinsons-May infringed Embroidery's registered copyrights in violation of the Federal Copyright Act. 
          The USCA affirmed.  Brasking and Robinsons-May maintained that (1) the evidence shows that Brasking had an undis-puted implied license to use Embroidery's copyrighted design, (2) the undisputed facts establish as a matter of law that Embroidery is not entitled to damages and attorney's fees pursuant to Sec. 412 of the Act, (3) the district court erred in amending the verdict because the jury returned inconsistent and irreconcilable special verdicts finding Brasking liable and Robinsons-May not liable, and, (4), Brasking was a joint author of Design Number 6.  The USCA concluded that the substantial evidence supported the jury's finding that Embroidery is entitled to damages and attorney's fees because Brasking did not have an implied license to copy Embroidery's design and Brasking was not a joint author of Design Number 6.  The USCA also held that the district court did not abuse its discretion in amending the jury's verdict to conform to the jury's consistent and reconcilable factual findings. 
         First, Brasking and Robinsons-May assert that the district court abused its discretion in denying its motion for a new trial.  They argue that Embroidery failed to present substantial evidence to support the jury's finding that Brasking did not have an implied license to reproduce, distribute, and sell garments containing Embroidery's designs.  However, contrary to Brasking and Robinsons-May's representation of the record, the factual question whether Embroidery provided them with an implied license was disputed at trial.  Embroidery presented substantial evidence that supports an inference that it did not intend to grant Brasking a license to reproduce, distribute, and sell garments containing its designs unless Brasking hired Embroidery to produce garments containing the copyrighted designs.  The evidence showed that Brasking paid a nominal sum to Embroidery to create designs to be used for the limited purpose of displaying them on sample garments to buyers such as retailer Robinsons-May.  Embroidery also produced evidence that the custom and practice in the embroidery industry is that when a garment manufacturer requests that a designer create designs in exchange for a nominal price, the designer receives the order for the production work on those designs.  A salesperson for Embroidery testified that she told Brasking that Embroidery would create the designs and samples if it received the production work resulting form sales to retailers.  The district court did not abuse its discretion in concluding that substantial evidence supported the jury's finding that Brasking did not have an implied license to reproduce, distribute, and sell Embroidery's copyrighted designs.
          Second, Brasking and Robinsons-May maintained that the district court erred in denying its motion for judgment as a matter of law because Embroidery did not meet the statutory prerequisites for the recovery of statutory damages and attorneys. fees.  The USCA noted that in order to recover statutory damages or attorneys. fees, the Act requires that (1) the infringement occur before the first "publication" of the work and after the effective date of registration, unless (2) the registration occurs within three months of the first publication.  17 USC Sec. 412.  The Act defines "publication," in relevant part, as "the distribution of copies … of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending."  17 USC Sec. 101.  The definition also provides that "the offering to distribute copies … to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication."  Id.  Brasking argues that, as the delivery of the designs by Embroidery to Brasking constitutes publication, the requirements of Sec. 412 were not met.  Alternatively, Brasking argues that it constitutes a "group of persons" under Sec. 101, and thus the offer to distribute copies constituted publication and the requirements of Sec. 412 were not met.  The USCA disagreed.  Disclosure of a work to a person for the limited purpose of possible use on garments that may be subsequently reproduced and distributed depending on marketability, as shown by the record, is not a distribution of a copy to the public.  The district court thus did not err as a matter of law in concluding that Embroidery met the requirements of Sec. 412 and is entitled to damages and attorneys' fees.
          Third, Brasking and Robinsons-May argued that the district court abused its discretion by amending the jury's general verdict to conform to its answers to the special interrogatories and entering judgment in favor of Embroidery and against Robinsons-May.  They argue that the district court lacked the power to amend the verdict form submitted to the jury because it was a special verdict controlled by Federal Rule of Civil Procedure 49(a).  Rule 49(a) authorizes a district court "to require the jury to return only a special verdict in the form of a special written finding upon each issue of fact."  Pursuant to Rule 49(b):  "the court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. … When the answers [to written interrogatories] are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict."  Special verdicts and general verdicts with special interrogatories both consist of a list of questions calling for the jury to make findings of fact.  However, with a special verdict, the jury is responsible only for fact finding;  with a general verdict with special interrogatories, the jury is responsible for fact finding and for applying the law to its finding of fact.  Thus, the critical difference between a special verdict and a general verdict is that, in a special verdict under Rule 49(a), the jury is requested to make findings limited to specific factual issues, while  in a general verdict pursuant to Rule 49(b), the jury must respond to special interrogatories concerning its factual findings, and, in addition, decide which party should prevail after applying the law to the facts.  Here, the jury was asked to determine whether the evidence demonstrated by a preponderance of the evidence that (1) Brasking was the sole or joint author of the designs at issue, or (2) Brasking had an implied license to reproduce and distribute the designs.  The jury was also asked to determine whether Brasking and Robinsons-May infringed on the copyrights to the design, and, if so, "what amount of statutory damages do you award against Brasking and Robinsons-May."  The jury found that Brasking infringed the copyright and awarded damages in favor of Embroidery.  The jury also found, however, that Robinsons-May did not infringe the copyright on each design.  The USCA agreed with the district court that the jury's verdict is governed by Rule 49(b).  The jury's findings of fact that Brasking was not the sole or joint author of the copyrighted designs, and did not have an implied license, are consistent and reconcilable.  The jury's application of these facts to the legal issue of whether both Brasking and Robinsons-May are liable for statutory damages is inconsistent.  If Brasking infringed Embroidery's copyright, Robinsons-May is also liable for infringement.  The USCA noted that, when a general verdict with interrogatories is used, it reviews a district court's decision to enter judgment consistent with the answers to special interrogatories for abuse of discretion.  The district court did not abuse its discretion in amending the jury's verdict to conform its answers to the special interrogatories and entering judgment accordingly.
         Finally, Brasking and Robinsons-May maintained that the district court abused its discretion in denying their motion for a new trial regarding the award of damages for the infringement of Design Number 6.  They argue that the evidence shows that Brasking was a joint author of that design.  17 USC Sec. 101 defines "joint work" as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.  Under Ninth Circuit law, "joint authorship requires each author to make an independently copyrightable contributions." Ashton-Tate Corp. v. Ross, 916 F.2d 516, 520 (9th Cir. 1990).  Brasking's designer testified that she did not create the trim flowers added by Brasking, but instead purchased them from an outside vendor.  Because Brasking's contribution is not an independently copyrightable contribution, as required by Ashton-Tate, Brasking cannot be a joint author of Design Number 6.  The district court thus did not abuse its discretion upholding the jury's finding that Brasking was not a joint author.

2)  TRADEMARKS / INSURANCE:  Ecology Works, Inc. v. Essex Insurance Co., 02-15658 (9th Cir. Mar. 17, 2003) (unpublished).  Silverman and Gould (dissenting), Circuit Judges, and Weiner, District Judge.
         On November 8, 1999, Ecology Works obtained a commercial general liability policy from Essex Insurance Company, including advertising injury coverage.  Alkaline Corporation sued Ecology, alleging that Ecology's use of the term "DUSTMITEX" in advertising Ecology's anti-dust mite product violated the Lanham Act and state law as it was confusingly similar to Alkaline's "MITE-X" mark  Ecology appealed the district court's order denying its motion for summary judgment and granting Essex's cross motion on as to whether Essex owed Ecology a duty to defend the Alkaline suit.  The USCA reversed the summary judgment for Essex and remanded for entry of summary judgment for Ecology.  In its order granting summary judgment to Essex, the district court focused on an interrogatory answer to Ecology filed in the underlying action to find that Ecology's first use of "DUSTMITEX" pre-dated its coverage under the Essex policy.  Even though Alkaline did not allege in its underlying complaint when the conduct occurred on which it based its cause of action, the court agreed with Essex that "Ecology itself identifies the date upon which the complained of conduct began [May 1998] and that date preceded the issuance of the Policy."  Applying trademark law, the district court concluded that, as an assignee of the "DUSTMITEX" mark, Ecology stepped into the shoes of its assignor, and both the benefits, such as priority of use, and the liabilities followed the mark.  Because it found the advertising injury "offense" was committed in May 1998, the district court concluded that "under no conceivable theory" did the offense trigger coverage under the policy and that Essex owed Ecology no duty to defend the underlying action and granted summary judgment to Essex.
      The USCA noted that California law defining a liability insurer's duty to defend is well settled:  A liability insurer owes a broad duty to defend its insured against claims that create a potential for indemnity.  Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 275 (1966).  "The carrier must defend a suit which potentially seeks damages within the coverage of the policy."  Id. at 275.  Implicit in this rule is the principle that the duty to defend is broader than the duty to indemnify;  and, the insurer may owe a duty to defend its insured in an action in which no damages ultimately are awarded.  Horace Mann Ins. Co. v. Barbara B., 4 Cal. 4th 1076, 1081 (1993).  The determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy.  Facts extrinsic to the complaint also give rise to a duty to defend when they reveal a possibility that the claim may be covered by the policy.  Gray, 65 Cal. 2d at 276.  For an insurer, the existence of a duty to defend turns not upon the ultimate adjudication of coverage under its policy of insurance, but upon facts known by the insurer at the inception of a third party lawsuit.  The duty may exist even where coverage is in doubt and ultimately does not develop.  Saylin v. California Ins. Guarantee Assn., 179 Cal. App. 3d 256, 263 (1986).  The duty to provide a defense is a continuing one, arising on tender of defense and lasting until the underlying lawsuit is concluded or until it has been shown that there is no potential for coverage.  "The scope of the duty does not depend on the labels given to the causes of action in the third party complaint;  instead it rests on whether the alleged facts or known extrinsic facts reveal a possibility that the claim may be covered by the policy."  Atlantic Mutual Ins. Co. v. J. Lamb, Inc., 100 Cal. App. 4th 1017, 1034 (2002).  Once the possibility of coverage has been raised, the insurer may defeat such claim of coverage by extrinsic evidence, but only where such evidence presents undisputed facts which conclusively eliminate a potential for liability. 
       The USCA concluded that the district court erred in its analysis of the duty to defend, as it improperly focused on whether the offense occurred prior to the issuance of the policy, applying trademark law to resolve this issue.  This analysis, the USCA said, "put the cart before the proverbial horse."  Rather than deciding the duty to defend issue by looking at the potential for coverage and then determining whether Essex had conclusively eliminated that potential, the district court jumped to the extrinsic evidence, concluding from the interrogatory responses in the Alkaline suit that the policy was never triggered.  The district court thereby made a coverage determination, not a duty to defend determination.  This was error, as the duty to defend is broader than the duty to indemnify, and only the duty to defend was raised in Ecology's declaratory judgment complaint.
       Under the California Supreme Court's analytical framework, the allegations contained in the Alkaline complaint established potential coverage as a matter of law.  Similar to the situation encountered in Atlantic Mutual, the underlying compliant was silent as to when the alleged advertising "offense" occurred and court determined that "The allegations of the Continental complaint did not specify the date of Lamb's first utterance of any disparagement.  Thus, based upon those allegations alone, the possibility of coverage existed.  That complaint was tendered to Atlantic Mutual.  This was sufficient, at that moment, to create a potential for coverage and Atlantic Mutual's duty to defend arose."  Atlantic Mutual at 1038.  The court went on to find that Atlantic Mutual's extrinsic evidence—a declaration executed by its claims adjuster to the effect that a representative of the insured told him the dispute originated prior to the policy term—was (1) vague and ambiguous, (2) did not clearly establish the date of the critical first publication, and (3) did not conclusively negate the possibility of coverage.  Id. at 1039.  It reiterated that, as the potential for coverage was established by the allegations of the underlying complaint which was silent as to the date of the offense, the insurer needed no other information on this point.  The court thus held that "Even though it may ultimately be determined that Atlantic Mutual has a viable defense to coverage by virtue of the "first publication" exclusion, this can only affect its liability for indemnification.  Its duty to defend depended on the existence of only a potential for coverage.  That potential was never conclusively negated and obviously cannot be negated short of an actual trial to resolve what is clearly a genuine factual dispute." Id. at 1040.  The USCA found the Atlantic Mutual decision indistinguishable from the situation presented here.  It was undisputed by the parties, and the district court acknowledged, that the Alkaline complaint, while raising claims within the Essex policy's coverage, did not identify the date on which any of Ecology's allegedly improper conduct occurred.  The insurer's duty to defend was thus clear from the face of the underlying complaint.  The issue of whether Ecology stepped into the shoes of the assignor of the mark, and accordingly, first used the mark in May 1998, is one that cannot be negated short of an actual trial on the underlying complaint.  If Ecology's affirmative defense is rejected, it will be denied a defense for a viable claim that by definition the insurer must indemnify.  The potential for coverage and the concomitant duty to defend could not be extinguished in such circumstances where the insurer's duty to indemnify remains contingent.  The USCA thus vacated the summary judgment for Essex on the issue of its duty to defend the underlying suit and remanded with instructions to enter summary judgment for Ecology.
       Dissenting, Judge Gould thought Essex had conclusively demonstrated that the "first-publication" exclusion bars coverage of the underlying claim.  He would thus affirm the district court's grant of summary judgment to Essex.

3)  INSURANCE:  Javaheri v. State Farm Fire & Casualty Co., 99-56891 (9th Cir. Mar. 4, 2003) (unpublished).  Bright, Goodwin, and Tashima, Circuit Judges.
       Javaheri appealed the district court's grant of summary judgment in favor of State Farm Fire & Casualty Company.  He had sued State Farm alleging bad faith and seeking declaratory relief in connection with State Farm's handling of his claim for earthquake property damage after the 1994 Northridge earthquake.  The district court determined that Javaheri's homeowners and earthquake insurance policies' one-year limitation barred his claim against State Farm.  After the district court granted summary judgment but while Javaheri's appeal was pending, the California legislature enacted California Code of Civil Procedure Sec. 340.9 (effective Jan. 1, 2001) which extended the limitations period for certain Northridge earthquake cases.  Javaheri met the basic requirements for the extension of the limitations period:  he filed his claim prior to Jan. 1, 2000, and his case had not been litigated to finality as determined by Campanelli v. Allstate, 00-55466 (9th Cir. Mar. 3, 2003).  [See Published decision #14 above.]  In light of Campanelli, which upholds the constitutionality of California Code of Civil Procedure Sec. 340.9, the USCA reversed and remanded the instant case for further proceedings consistent with Campanelli.  The USCA declined to consider at this time Javaheri's personal property claim as the district court did not address the issue in its written opinion.

4)  NON-DISCLOSURE AGREEMENTS:  Friedman v. Quest Intl. Fragrances Co., 02-55177 (9th Cir. Mar. 13, 2003) (unpublished).  Lay, Hawkins, and Tallman, Circuit Judges.
        The USCA noted that it is settled law in the Ninth Circuit that circumstantial evidence is sufficient to withstand summary judgment, especially in cases where direct proof of wrongdoing is difficult to obtain.  The Circuit has held that circumstantial evidence is sufficient to withstand summary judgment in cases involving securities fraud, sex and race discrimination, copyright infringement, antitrust, trademark infringement, First Amendment retaliation claims, and, significantly for the instant case, misappropriation of trade secrets.  Friedman offered direct proof that Quest had access to her venture proposals.  Quest met with its customers, Avon and Estee Lauder, to discuss Friedman's proposal and, according to expert testimony, Quest's customers employed "strikingly similar" ideas in their marketing of the Tommy Girl and Women of Earth fragrances.  The only element for which Friedman does not have direct evidence is whether Quest turned her ideas over to its clients in violation of the non-disclosure agreement.  However, a reasonable and rational jury could infer from the direct evidence that Quest disclosed the information to its clients.  Moreover, admissible expert testimony is generally sufficient to withstand summary judgment.  The USCA thus reversed the district court's order entering summary judgment for Quest on all of Friedman's claims and remanded for further proceedings.  The USCA instructed that, on remand, the district court will need to address, inter alia, whether Friedman's ideas qualify for trade secret pro-tection, a matter upon which Quest's acknowledgement in the non-disclosure agreement may bear.

5)  TAXATION:  Durham Farms #1 v. CIR, 01-71199 (9th Cir. Mar. 20, 2003) (unpublished).  O'Scannlain, Fernandez, and Fisher, Circuit Judges.
        Durham Farms #1, and a number of other partnerships formed by Walter J. Hoyt, III (collectively Durham Farms), appealed the tax court's judgment against them as well as its refusal to reopen.  The USCA affirmed.
        First, Durham Farms complained about the tax court's denial of its motion to reopen the case for the purpose of receiving additional evidence and considering further issues after it had issued its judgment.  The tax court construes Tax Ct. R. 161 to permit reopening only when there is a showing of "unusual circumstances or substantial error."  Johnson v. CIR, 78 TCM (CCH) 121, 122 (1999).  Even then, the taxpayer must show that the tax court made "manifest errors of fact or law," or if the taxpayer bases its motion on newly discovered evidence, it must who that the evidence "could not have been introduced before the filing of an opinion."  Here it is pellucid that Durham Farms could have moved for reopening for the taking of further evidence or for the consideration of further issues during the lengthy period between the end of the trial, November 21, 1996, and the issuance of a tax court's opinion, May 18, 2000.  It is not at all surprising that the tax court looked upon the failure to do so with a jaded eye.  The USCA noted that in similar situations the Ninth and other circuits have done the same.  See Novato Fire Prot. Dist. v. USA, 181 F. 3d 1135, 1141 n.6 (9th Cir. 1999).  The USCA thus could not say that the tax court abused its discretion when it declined to hold an evidentiary hearing and denied Durham Farms' motion. 
         Second, Durham Farms asserted that the tax court should not have decided that the various partnerships did not demonstrate that they owned any cattle whatsoever, and, thus, had none to depreciate or for which to claim other deductions.  Durham Farms suggests that the issue was not properly before the court.  The USCA disagreed.  Durham Farms had the burden of showing that certain cattle were owned by the partnerships;  it could not depreciate non-existing cattle, or cattle which it did not own.  That issue had to be part of the case, was necessary to a proper decision, and was the subject of a plethora of evidence, even if the issue was not stressed by the parties.  The tax court did not err. 

6)  BANKRUPTCY:  In re Aiello, 02-15698 (9th Cir. Mar. 14, 2003) (unpublished).  Canby, O'Scannlain, and T.G. Nelson, Circuit Judges.
        Aiello appealed pro se the district court's judgment dismissing as moot his appeal of several bankruptcy court orders.  The USCA affirmed.  The district court properly determined that Aiello's appeal of the bankruptcy court order approving the reorganiza-tion plan is moot because Aiello failed to obtain a stay pending appeal, and the plan has been substantially implemented.  Similarly, Aiello's appeal of the order approving the settlement between the bankruptcy estate and the US Dept. of Health and Human Services is moot because Aiello failed to obtain a stay pending appeal and the rights of third parties have intervened.  The USCA rejected Aiello's contention that the automatic bankruptcy stay, 11 USC Sec. 362, prevents his appeal from being deemed moot.

7)  BANKRUPTCY:  In re Audre, Inc., 02-55535 (9th Cir. Mar. 18, 2003) (unpublished).  T.G. Nelson, Silverman, and McKeown, Circuit Judges.
       Audre Recognition Systems, Inc., et al. appealed the district court's order affirming the bankruptcy court's denial of Audre's objection to Lundell's administrative expense claim.  The USCA affirmed.  For purposes of an administrative claim "the claimant must show that the debt asserted to be an administrative expense (1) arose from a transaction with the debtor-in-possession as opposed to the preceding entity (or, alternatively, that the claimant gave consideration to the debtor-in-possession);  and (2) directly and substantially benefited the estate." In re DAK Indus., 66 F.3d 1091, 1094 (9th Cir. 1995).  Once the claimant has made a showing, the bankruptcy court has broad discretion to determine whether to grant such claims. In re Dant & Russell, Inc., 853 F.2d 700, 707 (9th Cir. 1988).  The bankruptcy court did not abuse its discretion in treating Lundell's claim as an administrative expense, nor did it abuse its discretion in not holding an additional evidentiary hearing to determine the value of Lundell's services to the estate.  Lundell provided inherent benefit to the company by running the day-to-day operations;  in addition, he supplied extensive evidence of his efforts and accomplishments during his tenure as CEO.  The appellants never disputed Lundell's declarations, nor did they offer any evidence to the contrary. 
         The appellant's second argument, that the bankruptcy court erred by not holding an evidentiary hearing to determine whether Lundell was a "professional person" under Sec. 327 of the Bankruptcy Code, was raised for the first time on appeal.  The appellants raised various legal objections to Lundell's claim, but never requested a hearing on whether Lundell was a "professional person."  As a result, the appellants waived their right to raise the issue on appeal.

8)  BANKRUPTCY / SANCTIONS:  In re Stimson & Gale Entertainment, Inc., 02-55441 (9th Cir. Mar. 19, 2003) (unpublished).  Ferguson, Hall, and Berzon, Circuit Judges.
         Murphy appealed a Bankruptcy Appellate Panel order upholding a bankruptcy court decision to impose sanctions under Fed. R. Bankr. P. 9011.  The USCA affirmed.  First, the bankruptcy court had jurisdiction to consider sanctions after the dismissal of the underlying bankruptcy petition. Cooter & Gell v. Hartmarx Corp., 496 US 384, 393-396 (1990) (court retains jurisdiction to consider ancillary matters, such as sanctions, after the underlying case has been finalized).  Second, the sanction award did not violate the "safe harbor" provision of Fed. R. Bankr. P. 9011, because that provision does not apply to sanctions imposed on account of an improperly filed bankruptcy petition.  Third, the bankruptcy court did not abuse its discretion in determining that sanctions were appropriate. Cooter, 496 US at 405 (decision to impose sanctions reviewed for abuse of discretion).  A district court has discretion to sanction an attorney for filing a Chapter 11 bankrptcy petition that is frivolous and/or filed for an improper purpose. In re Marsch, 36 F.3d 825, 830 (9th Cir. 1994).  Frivolousness and improper purpose are evaluated on a sliding scale, "where the more compelling the showing as to one element, the less decisive need be the showing as to the other." Id.  The facts of this case establish a "robust showing of improper purpose."  Id. at 831.  Murphy's failure to follow-up on his bankruptcy filing by providing the bankruptcy court with statutorily required information necessary to pursue Chapter 11 reorganization, coupled with the timing of the petition (the Friday before a Monday state court action), establishes that the petition was filed solely for purposes of delay and harassment, rather than any genuine intent to utilize the substantive protections of the Bankruptcy Code.  As the bankruptcy court noted, the failure to file the schedules was not simply a matter of missing a deadline:  "[Murphy] did not filed a motion seeking to extend the time to file the schedules, and indeed, after the case was dismissed, and did not file a motion asking the Court to reinstate the case because it was a horrible mistake that the Debtor did not file schedules within 15 days.  From that, the Court infers that the Debtor did not intend to proceed with the case. That is the evidence I have.  In fact the only evidence."  The bankruptcy court's conclusion is reinforced by Murphy's pervasive pattern of vexation litigation tactics, such as his failure to alert the bankruptcy court or Amusement Industries of his pending removal petition during the bankruptcy court's hearing on Amusement's motion for relief from the automatic stay of 11 USC Sec. 362.  Although post-filing misconduct cannot itself be sanctioned under Rule 9011, Christian v. Mattel, Inc., 286 F.3d 1118, 1130 (9th Cir. 2002), Murphy's pattern of abusive behavior supports the inference that the bankruptcy petition, when filed, was filed with an improper purpose.  On the basis of the evidence, the bankruptcy was within its discretion in concluding that the bankruptcy petition was filed for an improper purpose.  Murphy and Stimson failed, even on the sanctions mo-tion, to submit the financial information necessary for the bankruptcy court to determine whether Stimson's bankrptcy petition "achieved a result consistent with the objectives and purposes of the Code."  In re Sylmar Plaza, 314 F.3d 1070, 1074 (9th Cir. 2002).  Murphy thus could not now quibble with the bankruptcy court's further conclusion that the petition was frivolous.  Finally, the USCA concluded that the amount of the sanction award was not excessive.  The bankruptcy court thoroughly reviewed Amusement's request for attorneys' fees and costs, and awarded only that amount which it determined was reasonably and actually incurred as a result of Murphy's litigation tactics.

9)  BANKRUPTCY:  In re Healy,98-35503 (9th Cir. Mar. 21, 2003) (unpublished).  Canby, O'Scannlain, and T.G. Nelson, Circuit Judges.
         Chapter 11 debtor Healy appealed pro se the district court's affirmance of the bankruptcy court's order holding that two state court judgments in favor of appellees Richard and Anne Butko were nondischargeable under 11 USC Sec. 523.  The USCA affirmed.  It rejected Healy's contention that the bankruptcy court's erred by applying the doctrine of collateral estoppel to determine that the judgment debts owed to the appellees were nondischargeable under 11 USC Secs. 523(a)(4) and (6).  Healy's contention that collateral estoppel does not apply because the two state court judgments are "inconsistent" lacked merit.  The USCA did not discern any inconsistency between the judgments and, even if there were any inconsistency, it would not provide a basis for avoiding the application of collateral estoppel.  Moreover, Healy's assertion that the state court judgments did not include any affirmative findings of fraud or willful and malicious conduct is flatly contradicted by the records.  The bankruptcy court correctly analyzed the relevant factors under Washington state law in determining that Healy was collaterally estopped from relitigating the issues decided in the state court actions.  The USCA thus affirmed the bankruptcy court's judgments for the reasons state in the district court's orders entered on April 8, 1998 as to Anne and April 10, 1998 as to Richard.  Finally, contrary to Healy's suggestion, the USCA said it could not overrule this Circuit's prior cases regarding the standard for defalcation.

10)  BANKRUPTCY:  In re Jones-Guess, 02-55331 (9th Cir. Mar. 21, 2003) (unpublished).  T.G. Nelson, Silverman, and McKeown, Circuit Judges.
         Weinstein, Eisen & Weiss ("WEW"), an administrative creditor, appealed a BAP decision affirming the bankruptcy court's order denying reconsideration of its order granting Johnson & Johnson Finance Corporation's ("JJFC") motion to lift the automatic stay.  WEW also appealed the BAP's decision affirming the bankruptcy court's order overruling WEW's objection to the same order.  The USCA affirmed.  Because WEW is a "person aggrieved" who was "directly and adversely affected pecuniarily" by the bankruptcy court's order, WEW had standing to appeal.  However, the bankruptcy court did not abuse its discretion in denying WEW's motion for reconsideration because WEW's failure to oppose JJFC and the IRS's motion for stay relief and for abandonment of assets was strategic rather than inadvertent.  Finally, the bankruptcy court did not abuse its discretion in overruling WEW's objection to its order granting the stay and abandonment motion for WEW's failure to oppose the motion or appear at the hearing.

11)  BANKRUPTCY:  Janossy v. General Motors Acceptance Corp., 02-55588 (9th Cir. Mar. 13, 2003) (unpublished).  Canby, O'Scannlain, and T.G. Nelson, Circuit Judges.
         Janossy appealed pro se the district court's judgment dismissing for failure to state a claim his 42 USC Sec. 1983 action alleging that General Motors Acceptance Corporation ("GMAC") unlawfully repossessed his vehicle.  The USCA affirmed.  First, the district court properly dismissed Janossy's claim that GMAC violated the bankruptcy code as, contrary to Janossy's allegations, the lien against his leased vehicle was not discharged in their bankruptcy proceeding.  Second, the district court properly dismissed Janossy's due process claim as he received notice and a hearing prior to the repossession.  Third, the district court properly dismissed Janossy's Fourth Amendment claim that GMAC used the police to conduct an unlawful search and seizure of his vehicle because the police had probable clause  Finally, Janossy's conclusory allegations that the district court's decision was motivated by bias and malice lacked merit.

12)  BANKRUPTCY:  In re Kavoussi, 02-55269 (9th Cir. Mar. 7, 2003) (unpublished).  T.G. Nelson, Silverman, and McKeown, Circuit Judges.
         Johnson & Johnson Finance Corporation ("JJFC") executed a series of loans in favor of Kavoussi and his surgery clinic, Pomona Valley Eye Surgery Medical Group ("PVES").  Kavoussi defaulted on the loans and filed for Chapter 7 bankruptcy relief.  The bankruptcy court granted one of JJFC's motions for summary judgment, finding that Kavoussi's debt was non-dischargeable under 11 USC Sec. 523(a)(2)(B).  Kavoussi appealed the judgment of the Bankruptcy Appellate Panel ("BAP") upholding the bankruptcy court's decision.
 The USCA affirmed.  The bankruptcy court may refuse to discharge a debt if the debtor obtained the loan by "use of a statement in writing (i) that is materially false, (ii) respecting the debtor's or an insider's financial condition, (iii) on which the creditor to whom the debtor is liable is liable for such money, property, services, or credit reasonably relied, and, (iv), that the debtor caused to be made or published with intent to deceive."  11 USC Sec. 523(a)(2)(B).  The Ninth Circuit has restated the elements of Sec. 523(a)(2)(B) as seven factors:  "(1) a representation of fact by the debtor, (2) that was material, (3) that the debtor knew at the time to be false, (4) that the debtor made with the intention of deceiving the creditor, (5) upon which the creditor relied, (6) that the creditors reliance was reasonable, [and] (7) that damage proximately resulted from the representation."  In re Candland, 90 F.3d 1466, 1469 (9th Cir. 1996).  The creditor must prove these elements by a preponderance of the evidence.  Kavoussi appealed the bankruptcy court's ruling that his financial statements contained material misrepresentations; that he had intent to deceive; and that JJFC reasonably relied on his false representations.  He also appealed the bankruptcy court's denial of his motion for a new hearing. 
        The USCA concluded that the bankruptcy court did not err in determining that the debt was non-dischargeable under 11 USC Sec. 523(a)(2)(B).  First, Kavoussi's failure to disclose that a loan from his parents for $220,000 was secured by $6.8 million in assets was a material misrepresentation;  JJFC submitted affidavits that they would not have tendered the loan had they known that his asserts were pledged.  In addition, Kavoussi's failure to disclose that his real property had been transferred constituted a material misrepresentation.  Kavoussi's claim that his failure to reveal the transfer was not a misrepresentation because the deeds were not yet recorded was unavailing.  A transfer is "made" under 11 USC Sec. 727(a)(2) on the date the agreement or deed of transfer is executed, when it is valid between the parties to that transfer, irrespective of whether it is valid as against bona fide purchasers.  Moreover, regardless of the rule applied, the fact that JJFC would not have made the loan had it known about the deeds rendered the misrepresentation material.  Second, the totality of the circumstances indicates an intent to deceive.  It is impossible to believe that Kavoussi's notation that he owned "100% shares" of his corporations was intended to indicate anything other than that he owed 100% of each corporation.  Moreover, Kavoussi's failure to reveal to JJFC that all of his assets were pledged to his parents was not mitigated by a reasonable explanation demonstrating good faith.  Third, JJFC reasonably relied on Kavoussi's representations regarding his financial status.  "Lenders do not have to hire detectives before relying on borrowers' financial statements. … [The court has] noted that, when there is evidence of materially fraudulent statements, little investigation is required for a creditor to have reasonably relied on the representations." Gertsch v. Johnson & Johnson Finance Corp., 237 B.R. 160, 170 (BAP 9th Cir. 1999).  Finally, because Kavoussi did not appeal to the BAP the lower court's order denying his motion for a new hearing or amend his notice of appeal to include it, the USCA lacked jurisdiction to consider it.

13)  RICO / DISCOVERY:  Connecticut General Life Insurance Co. v. New Images of Beverly Hills, 01-55516 (9th Cir. Mar. 3, 2003) (unpublished).  B. Fletcher and Hawkins, Circuit Judges, Bury, District Judge. [See Published decision #16 above and Memo decision #14 below.]
        The USCA affirmed the district court's rulings in this case.  First, the USCA found that the "procedural irregularities" of which Zilka complained did not deprive him of due process.  Although the plaintiffs' notice of motion for summary judgment and the first order granting summary judgment appear to have inadvertently omitted three RICO claims, the plaintiffs' moving papers provide clear notice of the claims that were the subject of the motion and specifically referenced the first, second and fourth RICO claims involving the Beverly Hills Outpatient Surgery Center ("BHOSC"), Moreno Valley and Westwood clinics.  In addition, Zilka failed to demonstrate how he was prejudiced by any shortcomings in the notice or order.  Likewise, in the court's order dismissing claims and certifying judgment against Zilka, it was not prejudicial error for the district court to have failed to strike a reference to a hearing that did not occur because Zilka elected not to oppose the motion.  The district court did not abuse its discretion by concluding that the letter sent by plaintiffs' attorney to defense counsel prior to seeking summary judgment on liability satisfied the local "meet and confer" rule.  Nor did the district court abuse its discretion by concluding that the plaintiffs' "Statement of Uncontroverted Facts" was sufficient under local rules.
        Second, Zilka complained of numerous defects regarding evidence submitted in connection with the plaintiffs' motions for liability and damages.  The USCA concluded that his objections were all without merit.  The insider declaration were based on "personal knowledge" as required by Fed. R. Civil Proc. 56(e).  The patient declarations were also based on personal knowledge and corroborated by accompanying bills and/or surgery descriptions signed by Zilka.  The Fox declaration was also proper.  Fox was not purporting to have personal knowledge of the actual contents of the numerous exhibits, but merely attesting that attached were true copies of declarations by others (who had personal knowledge of the statements they made), or copies of medical records that had been produced in discovery by other defendants.  See Maljack Prods. Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996) (documents produced by a party in discovery are deemed authentic where the producing party does not challenge their authenticity). The Knapp declaration was also admissible.  The BHOSC and Westwood medical records did not require additional authentication because they were produced by these defendants in response to discovery requests.  The additional information used to compile the damages charts came from plaintiffs' claims payment records, which were authenticated as business records by various representatives of the plaintiffs.  From this admissible evidence, Knapp prepared a proper "summary" summary of the evidence.  Fed. R. Evid. 1006.  The district court did not abuse its discretion by considering the guilty pleas of numerous co-defendants.  These pleas are extremely probative to illustrate a "pattern of racketeering activity," an essential element of a RICO violation.  The indict-ments and pleas described the scope and details of the fraud, from explaining how patients were recruited to describing how reports were falsified and billed.  For similar reasons, the court also did not abuse its discretion by considering the invocations of the Fifth Amendment by Zilka's co-defendants, Golden and Koh.  The USCA also noted that this argument lacked force because Zilka himself took the Fifth, and thus the court was already entitled to draw adverse inferences against him, regardless of what his co-defendants elected to do. 
        Third, Zilka's substantive challenges to the merits of the liability motion for RICO and common law fraud were raised for the first time on appeal and Zilka offered no justification for his failure to present them below.  The USCA thus treated them as waived.  Fourth, the district court properly awarded summary judgment to the plaintiffs on the issue of damages.  Plaintiffs supported their motion with summaries of surgeries at BHOSC and Westwood, and these summaries were based on admissible evidence.  Zilka could not create a genuine issue of fact with his own declaration; having invoked the Fifth Amendment during discovery, Zilka could not testify to dispute the plaintiffs' evidence or support his version of the facts.  Fifth, the USCA concluded that the district court did not abuse its discretion by denying defendant-appellant Zilka's motions for further discovery prior to ruling on the liability summary judgment motion since Zilka failed to show in his original motion that the additional discovery would prevent summary judgment

14)  RICO / DISCOVERY:  Connecticut General Life Ins. Co. v. New Images of Beverly Hills, 01-57178 (9th Cir. Mar. 3, 2003) (unpublished).  B. Fletcher and Hawkins, Circuit Judges, Bury, District Judge. [See Published decision #15 above.]
        The appellant, a law firm, maintained that the plaintiffs' failure to satisfy the local "meet and confer" rule prior to filing a motion to compel discovery requires the original July 5, 2001 discovery order to be vacated, together with all sanctions eventually flowing from that order.  However, in the previous Zilka incarceration appeal, the Ninth Circuit affirmed the precipitating discovery orders "in all respect."  Law of the case thus precluded reconsideration of the validity of the district court's discovery order.  A good faith dispute concerning a discovery question might, in the proper case, constitute substantial justification to reverse a Rule 37(b)(2) sanction. Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994).  The appellant, however, cannot show that its discovery disputes were really made in good faith;  indeed, the district court specifically found that they were not.  Contrary to the appellant's assertion, nothing about this court's prior order validates any of appellant's initial discovery objections.  Moreover, the sanctions were not imposed against the appellant solely because of its frivolous discovery objections.  Rather, after the district court rejected those arguments, the appellant filed an appeal and took the position that its clients were not required to comply with the district court's order until the Ninth Circuit ruled on the issue.  This was problematic first because the appeals were taken from non-appealable interlocutory orders.  Moreover, absent a stay a party must comply with an order until reversed by appeal.  Based on the appellant's over-all course of conduct, the district court did not clearly err in determining that the attorneys were not giving advice in good faith, but for the purpose of justifying delay.  Sanctions in the amount of $10,000 for such conduct was will within the district court's discretion.  The appellant's final argument is that the district court should have held an evidentiary hearing before finding Zilka in contempt and imposing sanctions on Zilka and the appellant.  However, the Ninth Circuit has repeatedly held that finding a party in civil contempt without a full-blown evidentiary hearing does not deny due process of law to a contemnor.  USA v. Ayres, 166 F.3d 991, 995 (9th Cir. 1999).  In the instant case, the appellant was afforded notice and an opportunity to be heard;  nothing more was required.  [See Published decision #16 and Memo decision #13 above.]

15)  IMMIGRATION:  Parrenas v. INS, 02-70074 (9th Cir. Mar. 18, 2003) (unpublished).  Kozinski, Graber, and Berzon, Circuit Judges.
      The USCA denied Parrenas' petition, concluded that he had not stated a well-founded fear of persecution.  Persecution is an "extreme concept that does not include every sort of treatment our society regards as offensive."  Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995).  The Philippine government's failure to provide employment or benefits to its elderly population does not rise to the level of persecution.  Moreover, its failure to evacuate Parrenas from Nigeria is not germane as the INS seeks to return her to the Philippines, not to Nigeria, and the incident has no significant bearing on current conditions in the Philippines.  Finally, Parrenas did not allege that the Philippines government would mistreat her in any manner other than by failing to provide her with employment or benefits.  The USCA did not reach Parrenas' claim to humanitarian asylum under Matter of Chen, 20 I.&N Dec. 16 (1989, because she did not exhaust it.

16)  IMMIGRATION:  Syed v. Ashcroft, 02-70617 (9th Cir. Mar. 17, 2003) (unpublished).  Pregerson, Thomas, and Rawlinson, Circuit Judges.
       Syed, a citizen of Pakistan, petitioned for review of the denial by the Board of Immigration Appeals ("BIA") and Immigra-tion Judge ("IJ") of his claims for asylum, withholding of removal, and relief under Art. 3 of the UN Convention Against Torture and Other Cruel, Unhuman or Degrading Treatment or Punishment ("CAT").  The USCA granted the petition and remanded.  The INS argued that Syed failed to establish a credible fear in light of the fact that his initial statements made to the Border Patrol Officer provided a basis to discredit his subsequent testimony that he provided in his application and at his hearing for relief.  The USCA noted that the Circuit rejected this argument in Singh v. INS, 292 F.3d 1017 (2002), by drawing a significant distinction between an alien's statements made in an application or hearing for asylum and those given to an INS officer who is conducting an interview at the border.  The BIA's reliance on this factor thus was inappropriate.  Id. at 1021 (concluding "that the Board's reliance on Singh's airport statements does not constitute a valid ground for an adverse credibility determination.").  The INS also argued that Syed failed to establish the basis of his requested relief because he was merely a member, rather than a leader, of a political organization.  However, neither the BIA nor IJ denied Syed's claims for this reason.  Moreover, the grant of asylum based on political opinion is not restricted to leaders of political organizations.  See, e.g., INS v. Elias-Zarcarias, 502 US 478, 482 (1992) (leaving open the pos-sibility that imputed political opinion and political neutrality may be sufficient for asylum eligibility);  Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995) (establishing persecution on account of imputed political opinion with respect to individual who is not a member of any organization as basis for asylum eligibility).  Syed requested that the USCA determine that he is entitled to relief on the basis of the record before the USCA.  However, neither the BIA nor the IJ addressed the question of whether Syed's testimony, if found credible, would be sufficient to establish his eligibility for his requested relief.  In light of INS v. Ventura, 123 S.Ct 353, 356 (2002) (Per Curiam), the USCA remanded the question of Syed's eligibility for asylum, withholding, and relief under CAT to the BIA for proceedings consistent with this memorandum.

17)  IMMIGRATION:  Behnam v. Ashcroft, 01-70274 (9th Cir.  Mar. 3, 2003) (unpublished).  Schroeder and W. Fletcher, Circuit Judges, and Weiner, District Judge.
         Behnam, a native and citizen of Iran, petitioned for review of a BIA decision affirming the immigration judge's ruling that Behnam was ineligible for asylum because she had firmly resettled in Germany within the meaning of 8 CFR Sec. 208.15.  Although the USCA held that Behnam was firmly resettled in Germany, it also held that she has a well-founded fear of persecution in Germany on account of her political beliefs,.  The USCA thus reversed the BIA's denial of asylum.  Behnam was born in Iran and lived there until she was eleven.  Her father served as a Brigadier General in the Iranian military and as Lt. Governor of Loristan Province under the Shah.  In 1979, after the overthrow of the Shah, Behnam left Iran for Germany with her mother and sibling.  Her father, who had been imprisoned in Iran, joined the family in Germany in 1980.  Germany granted asylum to Behnam and her family in 1981, giving the family the right to live an work there indefinitely.  The family lived in Aachen, Germany, where they opened a restaurant and Behnam attended school.  Behnam testified that her father formed a pro-monarchy group, Monarchy Organization Council.  At age 14 or 15, Behnam began to participate in the group's activities.  She helped plan weekly meetings and attended monthly demonstrations from 1984 to 1989.  As the group became increasingly active, Behnam's sister was attacked and beaten on the street and the family received death threats.  Behnam testified that after her marriage she returned home on one occasion to find two men waiting with a chain in her garage and on another occasion found men trying to break into her house.  On both occasions she believed that the individuals were from the Mujahedin, a group opposed to the Shah's return to Iran.  In 1986, Behnam received a German travel document, which she renewed twice.  In February 1990, she traveled to the United States, where she has remained.  Her German documents expired in 1992.  Because Germany's grant of asylum to Behnam entitled her to stay in Germany indefinitely, she was firmly resettled there under 8 CFR Sec. 208.15.  However, Behnam argued that she could rebut the presumption of firm resettlement because the conditions of her residence in Germany were substantially restricted.  Behnam claims that she could not be naturalized, had to wait five years on a waiting list before attending university, and could not return to Germany because she has been absent from the country for more than one year.  The USCA found that Behnam did not fall under the exception in Sec. 208.15(b).  She had not established that her asserted inability to become naturalized had substantially affected her rights to housing, employment, property, or public relief.  She had been able to attend school through grade 13 and, after a delay based on her status, to enroll in university.  The fact that she allowed her travel documentation to lapse while in the United States did not change the fact of her firm resettlement.  Behnam has, however, shown a well-founded fear of persecution on account of her political opinion.  She and her family received death threats and physical abuse because of their support of the Shah while they lived in Germany.  Moreover, Behnam provided evidence that she was unable to avail herself of the protection of the German government.  Her asylum application included a signed letter from the Aachen city council stating that the city advised Behnam's family to leave Germany due to threats against them.  The letter provided evidence both that the death threats against Behnam and her family were credible and that Behnam's fear of persecution was well founded.  The USCA thus granted the petition for review and remanded for the exercise of the Attorney General's discretion with respect to the asylum claim.

18)  AMERICANS WITH DISABILITIES ACT:  Wyatt v. Ralphs Grocery Co., 02-55571 (9th Cir. Filed Mar. 14, 2003) (unpublished).  Lay, Hawkins, and Tallman, Circuit Judges.
        Wyatt filed an action against Ralphs Grocery Company for violating the Americans with Disabilities Act and the California Unruh Act by not providing an adequate way for a wheelchair user to enter Ralphs.  The district court held for Wyatt, awarding damages and attorney fees.  The USCA affirmed.  The ADA provides that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation."  The ADA prohibits specific types of "discrimination," including the failure to remove architectural barriers where such removal is readily achievable. 42 USC Sec. 12182(b)(2)(A)(iv).  Ralphs violated the ADA by not maintaining the accessibility of a gate adjacent to the turnstile.  It also violated the ADA by not providing "full and equal" access to the store.  The district court thus correctly concluded that forcing wheelchair users through unused checkout aisles in not "reasonable access and is not consistent with the public policy interest in providing physically handicapped persons with equal access."  Because Ralphs vio-lated the ADA, it necessarily violated California's Unruh Act.