2)  TRADEMARKS:  Talking Rain Beverage Co., v. S. Beach Beverage Co.,  02-35845 (9th Cir. Nov. 4, 2003).  The USCA upheld a district court's dismissal of the complaint and judgment for the defendant where the court correctly found that plaintiff's trademark bottle was functional and thus invalid.  Trott, Fisher (author), and Gould, Circuit Judges.  J. Uhlir of Seattle, WA, for the plaintiff-appellant;  M. Hough of Seattle, WA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  COPYRIGHTS:  Newton v. Diamond, 02-55983 (9th Cir. Nov. 4, 2003).  In a copyright infringement action over music samples, the USCA upheld summary judgment for the defendants where their unauthorized use of a composition, as distinct from their authorized use of the sound recording, was de minimis and not actionable;  dissenting, Judge Graber thought the majority correctly stated the applicable legal principles and she agreed that the sampled portion of the music qualified as "original" and thus was copyrightable;  however, she thought that a jury reasonably could find that Beastie Boys' use of the sampled material was not de minimus and thus that summary judgment was inappropriate.  Schroeder (author), Thompson, and Graber (dissenting).  J. O'Malley of Los Angeles, CA, for the plaintiff;  S. Ford of Portland, OR, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  COPYRIGHTS:  Elvis Presley Enterprises v. Passport Video, 02-57011 (9th Cir. Nov. 6, 2003).  The defendant's incorporation of its own voiceovers with video clips, photographs, and music, into a biography of Elvis Presley without permission from the copyright owners may not be "fair use" under 17 USC Sec. 107;  the USCA upheld a district court's order granting the plaintiffs a preliminary injunction;  the district court did not abuse its discretion when it weighed the four statutory "fair-use" factors together and determined that the plaintiffs would likely succeed on the merits;  dissenting, Judge Noonan thought the district court misstated critical facts and misstated the governing law; he thought the voice-overs were not only new but transformed the original Presley shows into part of a substantial biography;  for these reasons, he thought the preliminary injunction should be reversed.  Noonan (dissenting), Tallman (author), and Rawlinson, Circuit Judges.  M. Blaha of Santa Monica, CA, for the defendants;  G. Hedges of Los Angeles, CA, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  BANKRUPTCY / PUBLIC UTILITIES:  Pacific Gas and Electric Co. v. California, 02-16990 (9th Cir. Nov. 19, 2003).  The USCA held that a reorganization plan proposed under 11 USC Sec. 1123(a)(5) expressly preempts otherwise applicable nonbankruptcy laws only to the extent that such laws were already preempted before the addition of the "notwithstanding" clause to Sec. 1123(a) by amendment in 1984;  the addition of the "notwithstanding" clause to Sec. 1123(a) was merely a clarification and confirmation of the preemptive effect of a reorganization plan that already existed under the 1978 Bankruptcy Code;  that preemptive effect expressly stated in the "notwithstanding" clause of Sec. 1142(a), was limited to otherwise applicable nonbankruptcy laws "relating to financial condition."  Hawkins and W. Fletcher (author), Circuit Judges, and King, District Judge.  J. Lopes and A. Margolin of San Francisco, CA, for PG&E;  T. Greene of Oakland, CA, for the State of California, et al. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  BANKRUPTCY / SANCTIONS:  In re Morrissey, 02-15589 (9th Cir. Nov. 19, 2003).  Reviewing for abuse of discretion and finding none, the USCA upheld the Bankruptcy Appellate Panel's imposition of sanctions on an attorney for non-compliance with non-jurisdictional procedural defaults and the requirements of Fed. R. Bankr. P. 8010 and Ninth Circuit BAP Rule 8006-1.  O'Scannlain (author) and Tashima, Circuit Judges, and Matz, District Judge.  M. Morrissey of San Jose, CA, representing himself as the debtor-appellant;  W. Anderson of Sunnyvale, CA, for the creditor-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 7)  ENVIRONMENTAL LAW:  Center for Biological Diversity v. U.S. Forest Service, 02-16481 (9th Cir. Nov. 18, 2003).  When responsible scientific evidence and opinions directly challenge the basis upon which a final Forest Service EIS rests, and are central to that basis, the Service must disclose and respond to such viewpoints in its final environmental impact statement.  Kleinfeld and Ward-law, Circuit Judges, and Pogue (author), District Judge.  M. Lozeau of Stanford, CA, for the plaintiffs-appellants;  AAG K. Johnson of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  ROVING "BUGS" / OBLIGATIONS OF PRIVATE PARTIES:  In re the Matter of the Application of the U.S. for an Order Authorizing the Roving Interception of Oral Communications, 02-16535 (9th Cir. Nov. 18, 2003).  Some autos are equipped with telecommunications systems to assist their owners in responding to emergencies;  the appellant runs one such system; a feature of its system is that it allows the appellant to open a cellular connection to the vehicle and listen to oral communications within the car;  this feature is part of a stolen vehicle recovery mode that provides assistance to car owners and law enforcement in locating stolen cars;  this technology also permits eavesdropping on conversations within the vehicle;  the FBI, realizing that the system can be used as a "roving bug" and following the procedures mandated for "bugging" private individuals suspected of criminal activity, obtained a court order requiring the appellant to assist in intercepting conversations taking place in a car equipped with the system;  the appellant challenged the court's authority to order the use of its equipment, facilities, system, and employees;  at issue was whether the statute governing private parties' obligations to assist the federal government in intercepting communications permits such an order;  the USCA held that the appellant can properly be considered an "other person" for purposes of 18 USC Sec. 2518(4), and thus the district court could have ordered it to assist the FBI in intercepting oral communications where all the requirements of Sec. 2518(4) were met;  here, however, the appellant could not assist the FBI without disabling the system in the monitored car;  thus, under the "minimum of interference" requirement of Sec. 2518(4), the order should not have issued;  dissenting, Judge Tallman disagreed with the majority's conclusion that the order could not be carried out in conformance with Sec. 2518(4).  Noonan, Berzon (author), and Tallman (dissenting), Circuit Judges.  B. Jones of Dallas, TX, for the appellant;  E. Johnson of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  CONTRACTS:  Rotec Industries v. Mitsubishi Corp., 02-35268 (9th Cir. Nov. 10, 2003).  The parties competed for contracts to sell construction equipment to China for use in the construction of a dam in China;  Rotec Industries appealed the district court's order granting summary judgment to the defendants on Rotec's claim of violation of Sec. 2(c) of the Robinson-Patman Act and on its Oregon State law claim of intentional interference with economic advantage;  Rotec maintained that the district court erred in holding that it lacked subject matter jurisdiction over the Robinson-Patman claim;  Rotec also assigns error to the district court ruling that Rotec did not introduce sufficient evidence to create an issue of fact regarding the causation element of Rotec's intentional interference claim;  the USCA upheld the district court's grant of summary judgment.  Skopil, Hall (author), and Graber, Circuit Judges.  G. McAndrews of Chicago, IL, for the plaintiff;  M. Warnecke of Chicago, IL, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  TORTS / FORUM NON CONVENIENS:  Murphy v. Schneider National, Inc., 02-35116 (9th Cir. Nov. 21, 2003).  In an employment injury action, the USCA affirmed in part, vacated in part, and remanded a district court's ruling on the validity of the forum selection clause and defendant's motion to dismiss based on forum non conveniens; in the context of a motion under FRCP 12(b)(3), based upon a forum selection clause, the trial court must draw all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of the non-moving party.  Aldisert, Hall, and Gould (author), Circuit Judges.  M. Cobb of Portland, OR, for the plaintiff-appellant;  W. Kennon, J. Westwood, and L. Gorman of Portland, OR, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  TORTS / WHISTLEBLOWERS:  Rabkin v. Oregon Health Sciences, 02-35077 (9th Cir. Nov. 24, 2003).  The USCA reversed the denial of the defendant's motion to reduce a jury verdict, as an award under Oregon's Whistleblower Law is limited to $200,000 as set forth in the Oregon Tort Claims Act;  the USCA also ruled that the district court did not abuse its discretion by not re-instating Rabkin as director of the defendant's Liver Transplant Program;  the district court had jurisdiction in the underlying action pursuant to 28 USC Sec. 1331 based on Rabkin's First Amendment claim under 42 USC Sec. 1983;  moreover, the district court had supplemental jurisdiction pursuant to 28 USC Sec. 1367 over claims related to the underlying action.  Aldisert (author), Graber, and Gould, Circuit Judges.  M. Speirs of Portland, OR, for the defendant; J. Batchelor of Portland, OR, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  NEGLIGENCE:  Ileto v. Glock Inc., 02-56197 (9th Cir. Nov. 20, 2003).  The USCA reversed the district court's dismissal, finding that the plaintiffs stated a cognizable claim under California law for negligence and public nuisance against the manufacturers and distributor of guns used in shootings by illegal users;  the USCA upheld the dismissal in favor of all other defendants;  dissenting, Judge Hall thought that in exercising diversity jurisdiction appellate judge had to apply state law whether or not they agree with it; she thought the majority failed to recognize that this was a products liability action barred by California law, that its negligence theory had been rejected by the California Supreme Court, and that its nuisance theory contradicted relevant California authority.  Hall (dissenting), Thomas, and Paez (author), Circuit Judges.  P. Nordberg of Philadelphia, PA, for the plaintiffs; C. Renzulli of New York, NY, D. Dik of Los Angeles, CA, and C. Dick of San Diego, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  YOUNGER ABSTENTION / UNLAWFUL TRADE PRACTICES / DEFAMATION: American Consumer Publishing Assoc. v. Margosian, 01-36113 (9th Cir. Nov. 18, 2003).  The Oregon AG served a Notice of Unlawful Trade Practices on plaintiffs American Consumer Publishing Association, et al., advising them that a civil enforcement action for violations of several state statutes was imminent;  before the state proceedings were complete the plaintiffs filed this action in federal district court seeking damages and a declaration that the state statutes they allegedly violated are unconstitutional;  the district court dismissed plaintiffs' claims based on the abstention doctrine of Younger v. Harris, 401 US 37 (1971); the USCA affirmed, in part on different grounds;  first, it held that the defendants were entitled to summary judgment on the plaintiffs' claim for damages for defamation under 42 USC Sec. 1983 because the plaintiffs presented no evidence that the defendants deprived them of a constitutionally protected liberty or property interest;  second, the USCA held that the remainder of the plaintiffs' claims properly were dismissed under Younger abstention principles which are applicable to a claim for money damages under Sec. 1983 when adjudicating the claim would interfere directly with a pending state proceeding.  Hall, Graber (author), and Gould, Circuit Judges.  A. Herson of Jacksonville, OR, for the plaintiffs-appellants; AAG B. Dunn of Salem, OR, for the for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  PREEMPTION:  Independent Towers of Washington v State of Washington, 02-36262 (9th Cir. Nov. 18, 2003).  A Washington State organization of registered tow truck operators brought this action, taking the position that Washington's regulation of the towing industry is expressly preempted under the Interstate Commerce Act, 49 USC Sec. 14501(c); the State moved for summary judgment and asserted that the challenged regulations fell within the safety, financial responsibility, and price of non-consensual towing exceptions to ICA preemption; the federal district court agreed and granted the State's motion for summary judgment; the USCA affirmed upon reviewing the matter de novo.  B. Fletcher, Brunetti, and McKeown (author), Circuit Judges.  S. Newman of Olympia, WA, for the plaintiffs-appellants;  AAG C. Gregoire of Olympia, WA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  CONTRACTS / AGRICULTURE:  Pauly v. U.S. Dept. of Agriculture, 02-35731 (9th Cir. Nov. 13, 2003).  The plaintiffs are farmers who entered into a ten-year agreement with the U.S. Dept. of Agriculture (USDA) whereby the USDA agreed to restructure the farmers' debt in exchange for a portion of the appreciation in the value of their farm during the term of the agreement;  when the USDA sought to recapture a portion of the appreciation upon expiration of the agreement, the farmers initiated this suit;  they alleged that the Government misled them by representing that no recapture would be due upon expiration of the agreement and thus that the Government should now be estopped from recovering a portion of the appreciation;  alternatively, they argued that the Government is liable for tort damages arising from fraud in the inducement;  the district court affirmed the USDA's determination that appreciation was due under the agreement and granted in part the USDA's motion for summary judgment;  however, it remanded to the USDA to reassess the amount of recapture under its current regulation, which excludes capital improvements from the calculation of appreciation;  the USCA affirmed in part and reversed in part;  it found that the district court was correct in enforcing the agreement according to its terms and in conformity with the statute governing the USDA's loan program;  however, it also found that the district court erred in applying the USCA's regulations retroactively.  D.W. Nelson, Kozinski, and McKeown, Circuit Judges.  Per Curiam.  J. Van Ness of Salem, OR, for the plaintiffs;  R. McCallum of Washington, DC, and J. McDevitt of Spokane, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  EMPLOYMENT LAW:  Vasquez v. County of Las Angeles, 00-56803 (9th Cir. Nov. 7, 2003).  In this Title VII action, summary judgment for the defendant County was affirmed where plaintiff could not establish that the defendant's articulated non-discriminatory reason for transferring the plaintiff was pretextual, and defendant's conduct was not severe or pervasive enough to create a hostile work environment;  dissenting, Judge Ferguson thought the majority had delivered a blow to Title VII protections when it erroneously held that Vasquez was unable to show that racially discriminatory comments by a supervisor are evidence of discriminatory intent, and that, despite the blatant evidence of discrimination put forth by Vasquez, the majority erred by holding that Vasquez was unable to show that his employer's state reason for his job transfer was pretextual;  similarly, Judge Ferguson thought that the majority inappropriately placed a time limit on retaliation cases by hold that Vasquez did not show a causal link between the protected activity and his transfer solely because the latter occurred 13 months after the former.  Ferguson (dissenting), T.G. Nelson (author), and W. Fletcher, Circuit Judges.  S. Salisbury of Rosemead, CA, for the plaintiff-appellant.  B. Wolf of Beverly Hills, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  LABOR & EMPLOYMENT LAW:  EEOC v. Pacific Maritime Association, 02-35536 (9th Cir. Nov. 24, 2003).  In a sexual harassment case, brought by the EEOC on behalf of intervenor Teresa Jones, a longshoreman, there existed no legally sufficient basis for the jury to find an employment relationship between the defendant and intervenor and, as a result, the district court erred when it denied defendant's motion for judgment as a matter of law;  the defendant, Pacific Maritime Association, an association made up of shipping, stevedoring, and terminal companies cannot be a "joint employer" for purposes of Title VII where it does not supervise long-shoremen, has no power to hire, fire, or discipline them, and does not supervise the work sites of its member-employers.  Aldisert (author), Graber, and Gould, Circuit Judges.  B. Tellam of Portland, OR, for the defendant-appellant;  T. Tienson of Portland, OR, for the plaintiff-intervenor-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  EMPLOYMENT DISCRIMINATION / AMERICANS WITH DISABILITIES ACT:  Allen v. Pacific Bell, 02-55721 (9th Cir. Nov. 10, 2003).  The USCA upheld the district court's order granting Pacific Bell summary judgment on the plaintiff's claims that PacBell discriminated against him under federal and state disability law;  because the plaintiff was requested, but failed, to submit additional medical evidence that would serve to modify his doctor's prior report, Pacific Bell's determination that he was qualified only for desk work was appropriate.  Reinhardt, Fernandez, and Rawlinson, Circuit Judges.  Per Curiam.  C. Shegerian of Beverly Hills, CA, for the plaintiff-appellant;  G. Preonas of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  ERISA:  Jebian v. Hewlett-Packard Company Employee Benefits Organization Income Protection Plan, 00-56988 (9th Cir. Nov. 25, 2003).  Where, according to an employee benefit plan covered by ERISA and regulatory language, a claim is "deemed denied" on review after the expiration of a given time period, there is no opportunity for the exercise of discretion and the denial is reviewed de novo;  dissenting, Judge Tashima thought the majority had forfeited an independent ERISA administrator's plan-given authority to exercise its discretion when ruling on a plan member's claim, simply because the administrator was late in ruling on a claim for benefits and, in doing so, creates an inter-circuit conflict.  Pregerson, Tashima (dissenting), and Berzon (author), Circuit Judges.  C. Fleishman of Beverly Hills, CA, for the appellant;  J. Busch of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  FAMILY LAW:  Doe v. Lebbos, 02-16326 (9th Cir. Nov. 4, 2003).  In a Sec. 1983 action, the USCA upheld a summary judgment for the defendant where there was no evidence that defendant was a final decision-maker for the County, the County failed adequately to train its social workers, and deliberately deprived the plaintiffs of their constitutional rights; Kleinfeld concurred in all of the majority's decision except part I(B)(2), qualified immunity for referring the child for an investigatory examination of her private parts;  from that part, Judge Kleinfeld declined.  Rymer, Kleinfeld (dissenting in part), and Paez (author), Circuit Judges.  R. Powell of San Jose, CA, for the plaintiff-appellants;  A. Ravel of San Jose, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  RIGHT TO PRACTICE:  Gallo v. U.S. District Court for the District of Arizona, 01-17332 (9th Cir. Nov. 19, 2003).  The USCA affirmed a district court ruling that, pursuant to an amendment to Local Rule 1.5, the appellant may no longer appear before the District of Arizona without successful completion of a pro hac vice application;  the constitutional implications of the district court decision was rationally related to a legitimate interest such that it passed constitutional scrutiny.  Brunetti and Tashima, Circuit Judges, and Ezra (author), District Judges.  D. Gallo of Del Mar, CA, for the movant-appellant;  D. McAuliffe of Phoenix, AZ, for the real- party-in-interest.  (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  CONTEMPT / WORK PRODUCT DOCTRINE:  USA v. Torf, 03-30102 (9th Cir. Nov. 26, 2003).  The USCA reversed a district court order denying a motion to quash and holding the defendant in contempt where the requested documents were protected by the work product doctrine as they were created in anticipation of litigation, and the government showed neither a substantial need for the documents nor undue hardship in obtaining substantially equivalent information;  the documents were prepared by an environmental consultant in compliance with an EPA information request and consent order, at the direction of an attorney who was hired to defend a company in impending litigation with the EPA.  Thompson (author), Hawkins, and Berzon, Circuit Judges.  D. Nevin, J. McCreedy, and P. Westberg of Boise, ID, for the appellants;  K. Barton of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  IMMIGRATION:  Aguilera-Ruiz v. Ashcroft, 02-57212 (9th Cir. Nov. 4, 2003).  The USCA denied habeas relief and affirmed the district court where, under 8 CFR. Sec. 1003.4, any voluntary departure from the U.S. following the entry of an order of deportation will be deemed to withdraw a pending appeal and render the order of deportation final.  Rymer (author) and Tallman, Circuit Judges, and Leighton, District Judge.  C. Vellanoweth of Los Angeles, CA, for the petitioner;  AUSA J. Osinoff of Los Angeles, CA, for the defendants-appellants. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  IMMIGRATION:  Reyes v. Ashcroft, 02-71640 (9th Cir. Nov. 12, 2003).  An Immigration Judge did not abuse his discretion in denying an alien's motion to reopen deportation proceedings based on alleged ineffective assistance of counsel where the alien failed to file an affidavit setting forth his agreement with counsel regarding representation and offered no reason for his failure to do so;  the alien did not substantially comply with the procedural requirements outlined in Matter of Lozada, 91 I.&N Dec. 637 (BIA 1988).  Wallace (author), Hall, and O'Scannlain, Circuit Judges.  B. Vega of Vallejo, CA, for the petitioner;  L. Ohta of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  IMMIGRATION:  Farah v. Ashcroft, 02-70252 (9th Cir. Nov. 14, 2003).  An Immigration Judge's finding that the petitioner knowingly filed a frivolous asylum application was infirm for failure to follow 8 CFR Sec. 208.20 which requires that the alien be given sufficient opportunity to explain discrepancies or implausibilities in his application.  Schroeder (author), Thompson, and Graber, Circuit Judges.  C. Attix of San Diego, CA, for the petitioner;  S. Flynn of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  QUALIFIED IMMUNITY:  Wilkins v. City of Oakland, 03-15086 (9th Cir. Nov. 20, 2003).  In an action brought against police officers for shooting another officer, the USCA upheld the denial of summary judgment as the shooters' qualified immunity defense depended upon a question of material fact best resolved by a jury (whether it was reasonable for the officers, who did not believe they were shooting another officer, not to understand that the person they shot was an officer).  Hug, B. Fletcher (author), and Tashima, Circuit Judges.  T. Boley of Oakland, CA, for the defendants;  M. Haddad of Oakland, CA, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  DETAINEES' CIVIL RIGHTS:  Lolli v. County of Orange, California, 02-56309 (9th Cir. Nov. 21, 2003).  Lolli brought this 42 USC Sec. 1983 case against Orange County, CA, and a number of its Sheriff's Department officers challenging his treatment in the County's jail;  he claimed that the officers violated his federal constitutional rights and state law through the excessive force they used against him and their deliberate indifference to his serious medical needs related to his Type I diabetes;  the district court granted summary judgment in favor of the County and the officers and dismissed the case;  the USCA agreed with Lolli as to his claims against some of the officers and thus affirmed in part, reversed in part and remanded; a constitutional violation may arise when the government does not respond to the legitimate medical needs of a detainee whom it has reason to believe is diabetic;  Judge O'Scannlain concurred in Parts A, B, C, and F of the court's opinion, but dissented from the majority's conclusion in Parts D and E;  he would affirm the district court's summary judgment in favor of Sergeant Toledo and Deputies Walker, Finlay, Baum, Richards, and Kent on Lolli's medical needs claim.  Reinhardt, O'Scannlain (dissenting in part), and Fisher (author), Circuit Judges.  R. Mastian of Los Angeles, CA, for the plaintiff;  A. Ballog of Santa Ana, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  CIVIL RICO:  Wagh v. Metris Direct, Inc., 02-15580 (9th Cir. Nov. 7, 2003).  The USCA upheld the dismissal of the plaintiff's RICO action for failure to state a claim; the district court properly held that the plaintiff failed to plead his RICO mail fraud and related claims with the requisite specificity;  the use of RICO Standing Orders to compel plaintiffs to produce detailed RICO Case Statements, which are then treated by the district court as part of that party's pleadings, can in certain circumstances require far more information from plaintiffs than required under Federal Rules of Civil Procedure 8(a) or 9(b).  B. Fletcher (author) and Tashima, Circuit Judges, and Pollak, District Judge.  E. Thayer of San Francisco, CA, for the plaintiff;  T. Narita of San Francisco, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  SPANISH-LANGUAGE MIRANDA WARNINGS:  USA v. Perez-Lopez, 02-30358 (9th Cir. Nov. 7, 2003).  The USCA reversed the defendant's conviction for producing false ID documents where the voluntariness of his consent to be searched had to be re-assessed because the Spanish-language Miranda warning given him did not convey to him the government's obligation to appoint an attorney for an indigent accused.  Goodwin, Hug, and Berzon (author), Circuit Judges.  DFPD S. Sady of Portland, OR, for the defendant;  AUSA F. Noonan of Portland, OR, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  SPEEDY TRIAL ACT:  USA v. Lewis, 01-10666 (9th Cir. Nov. 13, 2003).  The defendant was convicted of offenses related to his role in a wildlife smuggling operation and sentenced to 36 months in prison plus three years of supervised release;  the USCA reversed and remanded on the basis of the Speedy Trial Act as the defendant repeatedly asked the court to set the case for trial, it was ready to proceed to trial, and the government's pending, but relatively unimportant, pretrial motion did not toll the 70-day limit for setting trial under the Act;  dissenting, Judge Siler did not condone the numerous delays in commencing the trial, but he thought Circuit precedent precluded the dismissal of the indictments.  Reinhardt, Siler (dissenting), and Hawkins, Circuit Judges.  Per Curiam.  D. Paik of San Francisco, CA, for the defendant;  AUSA K. Johnson of San Francisco, CA, for the plaintiff.   (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  CHILD PORNOGRAPHY / INTERNET LAW / SENTENCING:  USA v. Rearden, 02-50311 (9th Cir. Nov. 6, 2003).  The USCA upheld a conviction and sentence for shipping child pornography over the Internet where the government presented sufficient evidence to prove that an image of an actual child was involved in the offense;  aspects of the defendant's sentence, including a special condition that he refrain from using the Internet, were reasonably related to legitimate sentencing considerations.  Wallace, Rymer (author), and Tallman, Circuit Judges.  DFPD J. Libby of Los Angeles, CA, for the defendant-appellant;  AUSA R. Cheng of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  MACHINE GUN POSSESSION:  USA v. Stewart, 02-10318 (9th Cir. Nov. 13, 2003).  The USCA reversed the defendant's conviction for machine gun possession, finding 18 USC Sec. 922(o) to be an invalid exercise of Congress's commerce power;  the USCA upheld the defendant's conviction for possession of firearms by a felon;  Judge Restani dissented from that part of the majority's opinion finding Sec. 922(o) unconstitutional as applied to a machine gun partially home manufactured from legal parts;  she would adopt the reasoning of USA v. Kenney, 91 F.3d 884 (7th Cir. 1996) (upholding the constitutionality of Sec. 922(o) as a regulation of activity substantially affecting interstate commerce); she noted that Kenney found that the regulation of possession, as well as transfer, of machine guns part of Congress's efforts to regulate the whole of the economic activity of trade in machine guns.  Kozinski (author) and T.G. Nelson, Circuit Judges, and Restani (dissenting in part), U.S. Court of Intl. Trade Judge.  T. Haney of Phoenix, AZ, for the defendant;  AUSA F. Battista of Phoenix, AZ, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  SENTENCING:  USA v. Vieke, 02-30323 (9th Cir. Nov. 3, 2003).  The USCA upheld a sentence pursuant to Guideline Sec. 5K2.20 where the government failed to preserve for appeal its objection to the aberrant behavior departure.  Hug (author), B. Fletcher, and McKeown, Circuit Judges.  AUSA W. Mercer of Billings, MT, for the plaintiff-appellant;  AFPD A. Gallagher of Great Falls, MT, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  SENTENCING:  USA v. Grajeda-Ramirez, 02-10530 (9th Cir. Nov. 12, 2003).  A violation of Colorado's reckless vehicular assault statute, Colo. Rev. Stat. Sec. 18-3-205(1)(a), is a predicate crime of violence for the purposes of the sentencing guidelines. Beezer and Fisher (author), Circuit Judges, and England, District Judge.  AFPD S. Huerta of Tucson, AZ, for the defendant-appellant;  AUSA E. Markovich of Tucson, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  SENTENCING:  USA v. Sanchez-Castro, 02-50445 (9th Cir. Nov. 10, 2003).  The USCA upheld the sentence in this case where, in denying a Rule 35(b) motion to reduce the sentence, the district court's consideration of relevant factors other than the defendant's substantial assistance to the government was a proper exercise of its discretion.  Fisher and Bybee, Circuit Judges, and Mahan (author), District Judge.  F. Ragen of San Diego, CA, for the defendant-appellant;  L. Duffy of San Diego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  SENTENCING:  USA v. Barragan-Espinoza, 02-30256 (9th Cir. Nov. 25, 2003).  Where a defendant pleads guilty, pursuant to a plea agreement, to conspiracy to distribute drugs, an upward departure under Sentencing Guidelines 5K2.4 based on the uncharged conduct of abduction or unlawful restraint was not improper as the plea agreement made no mention of this conduct and did not represent that the government would dismiss or decline to prosecute any other unspecified charges.  Noonan, Wardlaw (author), and Paez, Circuit Judges. B. Conry of Portland, OR, for the defendant;  AUSA J. Van de Wetering of Missoula, MT, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  HABEAS CORPUS:  Nunes v. Ashcroft, 02-55613 (9th Cir. November 03, 2003).  The USCA upheld the denial of plaintiff's motion for reconsideration where the plaintiff did not present new evidence, identify a change in controlling law, or identify any clear error;  the district court did not abuse its discretion when it failed to treat plaintiff's motion as a request for leave to amend his habeas petition.  Rymer and Tallman, Circuit Judges, and Leighton (author), District Judge.  S. Baiz of San Diego, CA, for the petitioner;  M. Guyton of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  HABEAS CORPUS / JURY SELECTION:  Collins v. Rice, 01-56958 (9th Cir. Nov. 7, 2003).  Habeas relief was proper where the California Court of Appeals' decision that the prosecutor did not engage in purposeful discrimination during jury selection was an unreasonable determination of the facts in light of the evidence presented at trial, and an objectively unreasonable application of clearly established law;  dissenting, Judge Hall thought that both the majority's decision and the record were devoid of any basis for concluding that the prosecutor's statements and demeanor left the trial judge with no permissible alternative but to reject the prosecutor's race-neutral justifications.  Hall (dissenting), Thomas, and Paez (author), Circuit Judges.  K. Bucur of Laguna Hills, CA, for the appellant;  DAG E. Jackson of Los Angeles, CA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  HABEAS CORPUS:  Griffin v. Johnson, 01-36157 (9th Cir. Nov. 20, 2003).  District Court did not abuse its discretion in ruling that an evidentiary hearing was unnecessary in this case, as the habeas petitioner failed to established that an evidentiary hearing would produce evidence more reliable or more probative than the medical records and expert opinion already before the court; a petitioner who procedurally defaults on the constitutional violation he alleges in his petition may clear the procedural bar through the "actual innocence" gateway by offering newly presented evidence of actual innocence.  Wallace (author), Trott, and Tashima, Circuit Judges.  AFD C. Dahl of Portland, OR, for the petitioner-appellant;  AAG T. Sylwester of Salem, OR, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  HABEAS CORPUS:  Brodit v. Cambra, 02-15323 (9th Cir. Nov. 26, 2003).  The USCA upheld the district court's denial of habeas relief, as it did not err in finding either that the petitioner's right to due process had not been violated or that the petitioner had not been denied effective assistance of counsel;  under California law, defense counsel's failure to present expert evidence that the defendant's personality did not fit the profile of a child molester may not constitute ineffective assistance of counsel were counsel may have had sound tactical reason for not going down that path.  Kozinski, Graber (author), and Berzon (dissenting), Circuit Judges.  AFPD R. Tyler of San Francisco, CA, for the petitioner-appellee;  DAG Hindall of San Francisco, CA, for the defendants-appellants. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  PRISONERS' RIGHTS:  Ashker v. California Dept. of Corrections, 02-17077 (9th Cir. Nov. 18, 2003).  The USCA held that a prison's requirement that books and magazines mailed to the prison have an "approved vendor" label affixed to the package is not rationally related to the legitimate penological objective of preventing the introduction of contraband, when the requirement prohibits an inmate from receiving any books whatsoever, and the prison already requires books to be sent from approved vendors, searches all incoming packages, and does not impose a approved vendor label requirement for items such as shoes, clothing, and appliances.  B. Fletcher and Tashima (author), Circuit Judges, and Pollak, District Judge.  DAG G. Walston of San Francisco, CA, for the defendants-appellants;  H. Franck of Sacramento, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  PAROLE:  Johnson v. Reilly, 01-36033 (9th Cir. Nov. 18, 2003).  The addition of supplemental charges in a special parole term violator warrant can constitute the issuance of a "new" warrant, which has not been executed, that can be properly lodged as a detainer.  Lay, Wallace (author), and Tallman, Circuit Judges.  AFPD C. Dahl of Portland, OR, for the petitioner-appellant;  AUSA K. Bauman of Portland, OR, for the respondents-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  TAXATION:  Gadsden v. CIR, 03-72081 (9th Cir. Nov. 17, 2003) (unpublished).  Kozinski, Silverman, and Tallman, Circuit Judges.
        Gadsden appealed pro se the Tax Court's decision dismissing for lack of jurisdiction his "petition for lien or levy action."  The USCA affirmed.  It found that the Tax Court properly concluded that it lacked jurisdiction to consider the CIR's Final Notice of Intent to Levy because Gadsden was never issued a "Notice of Determination" regarding the levy.  26 USC Sec. 6330(d).  The USCA did not consider Gadsden's contentions to the extent he sought review of the dismissal of a separate district court, Gadsden v. CIR, 01-CV-10347 (C.D. Cal).  The appeal in that action, Gadsden v. CIR, 02-56061, is closed.  The USCA found no merit in Gadsden's remaining contentions. 

2)  TAXATION:  Willis v. IRS, 03-35113 (9th Cir. Nov. 14, 2003) (unpublished).  Kozinski, Silverman, and Tallman, Circuit Judges.
        Willis, the personal representative of the Estate of Arthur R. Tosh, deceased, appealed the district court's judgment dismissing her complaint which sought a refund of estate tax.  The district court dismissed the complaint for lack of jurisdiction, finding that the estate failed to file a claim for refund of estate tax within the limitations period prescribed by IRC Sec. 6511(a).  The USCA affirmed for the reasons stated by the district court in its order granting defendant's motion to dismissed.  The USCA declined to consider issues, raised for the first time on appeal, regarding whether the IRS was equitably estopped by its own alleged misconduct from raising the statute of limitations.  Moreover, as the district court correctly stated in its order, Sec. 6511 is not subject to equitable tolling. 

3)  TAXATION:  Graham v. USA, 03-15240 (9th Cir. Nov. 5, 2003) (unpublished).  Choy, Farris, and Leavy, Circuit Judges.
        Graham appealed pro se the district court's summary judgment in favor of the government in Graham's action challenging the IRS's determination that frivolous tax return penalties under IRC Sec. 6702 were properly assessed against him and that collection of those penalties by the IRS could proceed. 
        The USCA vacated and remanded with instructions to dismiss the action for insufficient service of process.  The government raised the defense of insufficient service of process in its first responsive motion in the district court, asserting that Graham did not, as required by FRCP 4(i), effect service of process of the action on the Attorney General and the U.S. Attorney.  Graham conceded that he did not effect service of process on the government in the manner required by FRCP 4(i) and asked that his failure to properly serve the United States be excused based on his pro se status and the apparent constructive service on the United States.  The district court did not rule on the government's motion to dismiss.  "A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed. R. Civ. P. 4."  Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986).  However, service under Rule 4 is "a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint."  Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 688 (9th Cir. 1988).  In order for the sufficient notice exception to apply, there must be a justifiable excuse for the defect.  Daly-Murphy v. Winston, 837 F.2d 348, 355 n.4. (9th Cir. 1987).  Moreover, unless there is "substantial compliance" with Rule 4, even actual notice will not provide personal jurisdiction.  Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982).  The government had received sufficient notice of the complaint.  However, Graham's pro se status, alone, was not a justifiable excuse for the defect.  Moreover, Graham's mailing of a copy of his pleading to the local IRS office without a summons from the court does not constitute substantial compliance with Rule 4.  See Omni Capital Intl. Ltd. v. Rudolf Wolff & Co., 484 US 97, 104 (1987).

4)  TAXATION:  Higgins v. Coleman, 03-16223 (9th Cir. Nov. 14, 2003) (unpublished).  Kozinski, Silverman, and Tallman, Circuit Judges.
        Higgins appealed pro se the district court's order denying his petition to quash summonses issued by the IRS upon the Bank of America and the Security Title Agency seeking Higgins' records for an IRS investigation into his federal income tax liabilities for tax years 1998, 1999, and 2000, and the district court's grant of the IRS's motion for summary enforcement of the summonses.   The USCA affirmed as while the IRS conceded that the revenue agent issuing the summonses made two procedural errors by serving the notices on Higgins 21 days prior to the date of examination rather than the 23 days required by the Internal Revenue Code and by making a premature inspection at the title company, Higgins failed to show any prejudice from these errors and failed to rebut the legitimate reasons provided for the enforcement of the summonses.

5)  TAXATION:  Jones v. USA, 02-15815 (9th Cir. Nov. 14, 2003) (unpublished).  Kozinski, Silverman, and Tallman, Circuit Judges.
 Jones appealed pro se the district court's judgment after a bench trial finding that the IRS assessment against him was timely made.  He also appealed the district court's denial of his Rule 60(b) motion. 
        The USCA affirmed.  The IRS submitted a number of official documents (including Form 4340, Form 23C, and Form 8166) to demonstrate that a valid assessment had been made.  Jones presented no evidence to refute this showing other than his testimony that he did not receive notice of the assignment.  The district court thus did not err in finding that the assessment had been timely made.  See Hughes v. USA, 953 F.2d 531, 535 (9th Cir. 1992) (holding that IRS official certificates are sufficient, in the absence of contrary evidence, to establish that tax assessments were validly made).  Similarly, the district court did not abuse its discretion in denying Jones' Rule 60(b)(2) motion where Jones failed to establish that the Osborn affidavit constituted newly discovered evidence that likely would have changed the outcome of the case.  See Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir. 1990) (per curiam) (affirming denial of motion for new trial where movant failed to establish that the outcome of the case likely would have differed in light of the newly discovered evidence).  Finally, the district court's finding that the government did not engage in discovery misconduct was not clearly erroneous and thus the district judge did not abuse his discretion in denying Jones relief under Rule 60(b)(3).  See De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 881 (9th Cir. 2000) (holding that district court did not abuse its discretion in denying 60(b)(3) motion where its factual findings were not "clearly erroneous").

6)  TAXATION:  Frazier v. CIR, 02-74433 (9th Cir. Nov. 20, 2003) (unpublished).  Canby, W. Fletcher, and Tallman, Circuit Judges.
        Frazier, the representative of decedent's estate, appealed the decision of the Tax Court finding that several structures built on the decedent's land were not removable trade fixtures within the meaning of Cal. Civ. Code Sec. 1019 and were thus taxable improvements to the decedent's estate.  Finding that the improvements are removable trade fixtures, the USCA reversed.  The relevant facts were stipulated, and the only question before the Tax Cort was whether under those facts, the improvements were removable trade fixtures under Sec. 1019.  Reviewing this question of law de novo, the USCA noted that under California law, an individual may remove fixtures from a leasehold if those fixtures were (1) for the purpose of trade, (2) removable without injury to the premises, and (3) considering the method of attachment, not an integral part of the real property.  The only cases in which the California Supreme Court has held under this criterion that trade fixtures were not removable was when they had become an integral part of a building that was already present on the property.  See Alden v. Mayfield, 163 Cal. 793, 796, 127 P. 44 (1912);  Gordon v. Cohn, 220 Cal. 193, 195-96, 30 P.2d 19 (1934).  On the other hand, where, as here, the entire building was the fixture, California courts have permitted the lessee to remove the buildings as trade fixtures, holding they had not become integral parts of the underlying land.  See R. Barcroft & Sons v. Cullen, et al, 217 Cal. 708.  These cases present factual situations very similar to the improvements at issue in this case.  The USCA noted that since it is bound by California's interpretation of its own statutes, the improvements at issue here are removable trade fixtures under Sec. 1019.

7)  TAXATION:  USA v. Sibbrel, 02-56247 (9th Cir. Nov. 20, 2003) (unpublished).  Pregerson, Fernandez, and Berzon, Circuit Judges.
        Chapman Mechanical, Inc. failed to pay to the IRS its employees' federal withholding taxes for the fourth quarter of 1994 and the first quarter of 1995.  The Government brought this civil action against Sibbrel.  It asserted that he was a "responsible person" at Chapman within the meaning of 26 USC Sec. 6672 and sought to reduce to judgment its assessment of "trust fund" recovery penalties against him.  Following a two-day bench trial, the district court made oral findings of fact and conclusions of law, entered judgment for Sibbrel, and awarded him attorneys' fees and litigation costs under 26 USC Sec. 7430.  A Ninth Circuit panel reversed by memorandum disposition, USA v. Chapman, 7 Fed. Appx. 804, 2001 WL 392490 (9th Cir. Apr. 17, 2001).  The panel concluded "that the district court's finding that Sibbrel was not a 'responsible person' derives from the use of improper legal standards."  Id. at 806.  On remand the parties stipulated to use the prior trial transcript and the documentary evidence admitted in that trial as if the case had been tried de novo.  Thereafter, the district court issued lengthy and thorough written findings of fact and conclusions of law, again entered judgment for Sibbrel, and again awarded him attorneys' fees and costs.  The Government argues in this appeal that the district court erred in determining that Sibbrel was not a "responsible person" of Chapman because the court again applied improper legal standards and ignored the prior panel's directives.  The USCA disagreed.
        "Responsibility is a matter of status, duty, and authority."  Davis v. USA, 961 F.2d 867, 873 (9th Cir. 1992).  "Authority turns on the scope and nature of an individual's power to determine how the corporation conducts its financial affairs;  the duty to ensure that withheld employment taxes are paid … flows from the authority that enables one to do so." Purcell, 1 F.3d 932, 937 (9th Cir. 1993).  The district court thoroughly considered Chapman's by-laws and other documentary evidence, evaluated the testimony of various witnesses contained in the transcript, correctly applied the relevant case-law, and determined that Sibbrel did not have the authority to determine how Chapman conducted its financial affairs or the duty to ensure that withheld employment taxes were paid.  Distilled to its essence, the district court's judgment for Sibbrel turned on the district court's finding that Sibbrel's testimony about his lack of authority over how Chapman conducted its financial affairs was more credible than contrary testimony by David Chapman, Chapman's President and CEO.  Because the district court's findings were predicated on a credibility determination, the USCA gave them great deference and declined the Government's invitation to overturn them.
      The district court awarded Sibbrel attorneys' fees and litigation costs under Sec. 7430.  The award was based on the court's finding that the Government's position throughout this litigation was not "substantially justified" in law or in fact.  This, the USCA said, was a close case.  Had the district court not discounted the credibility of David Chapman's testimony because it determined that he was biased, this case might have come out the other way.  Thus, the Government's position was "substantially justified" within the meaning of Sec. 7430.  See Norgaard v. CIR, 939 F.2d 874, 881 (9th Cir. 1991).  Accordingly, the USCA reversed the award of attorney's fees and costs.

8)  TAXATION:  USA v. Bailey, 02-50571 (9th Cir. Nov. 24, 2003) (unpublished).  B. Fletcher, Rymer, and Graber, Circuit Judges.
 Bailey appealed his jury conviction and sentence for willfully subscribing false tax returns in violation of 26 USC Sec. 7206(1).  He argued that (1) the district court violated his Sixth Amendment right to compulsory process by allowing his co-defendant to assert her Fifth Amendment privilege against testifying, and that he was entitled to a continuance until his co-defendant was sentenced; and, (2), the district court erred in applying a two-level upward adjustment under Sentencing Guidelines 3B1.1(c) to Bailey's offense level for supervision of another's criminal activity. 
        The USCA affirmed the conviction and sentence.  During Bailey's trial, the district court conducted a hearing outside the presence of the jury, at which co-defendant Morgan asserted her privilege against compulsory self-incrimination.  The court found her claim to be valid, and denied both Bailey's request for a continuance and his alternative request to compel a grant of use immunity for Morgan's testimony.  A criminal defendant has a Sixth Amendment right to compulsory process for obtaining witnesses in his favor, but "an accused's right to compulsory process to secure the attendance of a witness does not include the right to compel the witness to waive his fifth amendment privilege." USA v. Moore, 682 F.2d 853, 856 (9th Cir. 1982) (citing USA v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir. 1978).  The USCA applied de novo review to Morgan's assertion of the Fifth Amendment privilege against compelled self-incrimination.  For her assertion to be valid, she must be "confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination."  USA v. Apfelbaum, 445 US 115, 128 (1980).  The USCA concluded that Morgan faced a genuine possibility of self-incrimination if she testified at Bailey's trial.  As a convicted but unsentenced defendant, Morgan retained her Fifth Amendment rights.  She had pled guilty to only one count of a two-count indictment.  Additionally, the plea agreement was binding only on the U.S. Attorney for the Central District of California, and did not protect Morgan from prosecution by a state authority, or by the Department of Justice outside of that district.  Finally, the statute of limitations on the crimes charged is irrelevant to Morgan's Fifth Amendment privilege, because he district court "may consider as relevant conduct for sentencing purposes actions which may be barred from prosecution by the applicable statute of limitations."  USA v. Williams, 217 F.3d 751, 754 (9th Cir. 2000).
       The USCA reviewed for plain error Bailey's claim, made for the first time on appeal, that Morgan waived her Fifth Amendment privilege in her plea agreement.  The USCA found itself unpersuaded by Bailey's argument.  It is well-settled that a voluntary plea pursuant to a plea agreement "is a waiver of the fifth amendment privilege only in regard to the crime that is admitted; the defendant retains the right against self-incrimination as to any crimes for which [she] may still be prosecuted."  Moore, 682 F.2d 856.  The district court's decision to exclude testimony based on an anticipated invocation of the Fifth Amendment privilege is reviewed for abuse of discretion.  Since Morgan's claim of privilege was valid, the district court did not abuse its discretion, nor did it commit plain error, in finding that Morgan should not be called as a defense witness, nor required to answer Bailey's questions.  The district court's denial of the motion for a continuance was not an abuse of discretion.  Bailey did not establish that Morgan would have testified, or that any testimony would have been favorable.  Similarly, the refusal to compel a grant of immunity to Morgan was not error.  It is well-settled in the Ninth Circuit that an accused's Sixth Amendment right to compulsory process does not entitle him "to compel a prosecutor to grant immunity to a potential defense witness to get [her] to testify."  Trejo-Zambrano, 582 F.2d at 464.  The district court, on the other hand, can compel a grant of immunity only in limited circumstances, where such a measure is required by due process.  Even if Morgan's testimony would have been relevant and non-cumulative, Bailey failed to establish that the government violated due process by intentionally distorting the fact-finding process.  No prosecutorial misconduct was present in this case:  the government asserted correctly in the district court that Morgan's plea agreement was not binding on any authority other than the U.S. Attorney for the Central District of California, and Morgan decided to invoke her Fifth Amendment privilege on the advice of counsel.  The district court did not err in refusing to compel a grant of sue immunity.  Finally, the district court's factual determination that a defendant qualifies for a role adjustment is reviewed for clear error.  Although the USCA found it to be a close question, it concluded that the district court did not err in enhancing Morgan's sentencing under Guideline Sec. 3B1.1(c), which provides for a two-level increase if the de-fendant was an organizer, leader, manager, or supervisor in any criminal activity not involving five or more participants, and that is not otherwise extensive.  In this case, Bailey directed Curtis to accept $310,000 in cash to purchase property, told him to place the money in escrow, and to spend it as instructed.  On these facts, it was not clear error for the district court to find that Bailey supervised Curtis, and to impose the two-level enhancement. 

9)  TRADEMARKS:  Edward Lewis Tobinick, M.D. v. Scripps Clinic Medical Group, 02-56026 (9th Cir. Nov. 19, 2003) (unpublished).  B. Fletcher and Silverman, Circuit Judges, and Martone, District Judge.
        Edward Lewis Tobinick, M.D., a medical corporation, and Edward Lewis Tobinick, the individual (collectively "Tobinick"), appealed from the district court's denial of three post-trial motions.  Despite a jury verdict in favor of defendant Rosenberg on Tobinick's trademark infringement claims, Tobinick moved for statutory damages under 17 USC Sec. 1117(c), which governs counterfeited trademarks, and for a finding of willful infringement to support an award of attorneys' fees.  Tobinick also moved for a new trial, challenging the district court's instruction on the likelihood of confusion and an evidentiary ruling. 
       The USCA affirmed.  First, Tobinick failed to object to the district court's jury instruction on likelihood of confusion at the time of trial as required by FRCP 51.  See Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713 (9th Cir. 2001).  Because in the Ninth Circuit there is no "plain error" exception to the requirements of Rule 51 in civil cases, Tobinick's objection was waived.  See Hammer v. Gross, 932 F.2d 842, 847 (9th Cir. 1991).  The waiver objection was not saved by the pointless formality exception as it was not "clear from the record that the court knew the party's grounds for disagreement with the instruction."  Voohries-Larson, 241 F.3d at 714-15.  In any event, the instructions were a correct statement of the law.  Second, the district court did not abuse its discretion by excluding 298 of Rosenberg's web pages that did not include references to Tobinick's name, trade name or trademark.  The district court correctly balanced the probative value of the excluded evidence against the factors described in Fed. R. Evid. 403, and determined that admitting the additional web pages could have confused the issues, misled the jury, or resulted in undue delay or an unnecessary presentation of cumulative evidence.  Third, the district court did not abuse its discretion in rejecting a jury instruction on willfulness because willfulness was only relevant to the issue of remedies under 15 USC Sec. 1117(a), a matter to be decided by the court, not the jury.  Similarly, because counterfeiting was only relevant to the issue of statutory damages under 15 USC Sec. 1117(c), a matter within the sole province of the court, the district court did not err by rejecting a jury instruction on counterfeiting.  Moreover, in light of the jury's special verdicts of trademark invalidity, no likelihood of confusion, and non-infringement of the unregistered trade names, any error in failing to instruct the jury on willfulness or counterfeiting would have been harmless.  Finally, the district court properly presented the issues of trademark validity to the jury as the validity of the mark is an element of a plaintiff's infringement claim.

10)  INSURANCE:  Direct Focus, Inc. v. Admiral Insurance Co., 02-35655 (9th Cir. Nov. 18, 2003) (unpublished).  Noonan, Wardlaw, and Paez, Circuit Judges.
       Admiral Insurance Company appealed the district court's summary judgment in favor of Direct Focus in this insurance coverage dispute.  Direct Focus cross-appealed the district court's judgment denying an award of attorney's fees and costs and summary judgment in favor of Admiral on the enforceability of the parties' settlement agreement. 
        The USCA affirmed in part, reversed in part, and remanded.  First, the USCA reversed the district court's Order Denying Admiral's Motion for Summary Judgment Based on the Known Loss Doctrine.  Under this doctrine, losses caused by Direct Focus's 1998 television commercials are not covered by the insurance policy if Direct Focus subjectively knew at the policy's inception that there was a substantial probability it would be sued by Soloflex over the commercials.  The district court reasoned that because small changes can have significant legal effects, Direct Focus could not have known that its commercials would be found to be infringing.  By analyzing whether Direct Focus knew it would be liable, rather than whether Direct Focus knew it would be sued, the district court applied the wrong legal standard under Washington law.  Applying the correct test, the USCA concluded that Admiral's summary judgment motion should have been granted.  Soloflex sent Direct Focus a demand letter requesting that Direct Focus cease and desist running the 1997 television advertisements.  This demand letter complained in part of visual and content similarities, including Randy Potter's performance in the advertisements.          Nevertheless, Direct Focus only modified the text of the 1997 advertisements when it aired the 1998 commercials;  it continued to feature Randy Potter, and the visual content remained the same.  Because the 1998 advertise-ments did not respond to significant concerns expressed in Soloflex's demand letter, the USCA concluded that no reasonable jury could find that Direct Focus was unaware that it would be sued by Soloflex for the 1998 commercials.  Because Admiral was entitled to summary judgment on the basis of the Known Loss Doctrine, the USCA did not address Admiral's other argument for excluding coverage—the First Publication Exclusion.  Moreover, the USCA affirmed the district court's refusal to award fees under Olympic S.S. Co. Inc. v. Centennial Ins. Co., 811 P.2d 673 (Wash. 1991), to Direct Focus because it was not the prevailing party in this coverage dispute.  The USCA also affirmed the district court's refusal to award costs to Direct Focus under FRCP 54.  Finally, the USCA affirmed the district court's ruling that the settlement agreement was enforceable.  Direct Focus was not under financial stress when it entered into the settlement.  Even if it were, mere financial stress is insufficient to establish duress.  Moreover, Admiral did not cause the pur-ported duress;  whatever financial stress existed resulted from Direct Focus's own decision to run advertisements that were similar to those of Soloflex.  The USCA noted that Direct Focus had the benefit of counsel, a factor that weighs against a finding of duress.  In addition, Direct Focus's claim of duress was belied by the sizable consideration it received for its modest waiver:  Admiral's up-front payment of $3 million, and a guarantee payment of $1.5 million to Direct Focus even if it lost the coverage dispute.  The USCA thus affirmed the district court's ruling enforcing the settlement agreement, and its denial of costs and fees to Direct Focus.  However, the USCA reversed the district court's summary judgment in favor of Direct Focus on the Known Loss Doctrine, and held that as a matter of law Admiral was entitled to summary judgment on the basis of that doctrine. The USCA remanded for further proceedings consistent with its opinion.

11)  INSURANCE / BANKRUPTCY:  Security Ins. Co. of Hartford v. Machevsky, 02-56508 (9th Cir. Nov. 17, 2003) (unpublished).  B. Fletcher, Boochever, and Graber, Circuit Judges.
       The district court granted summary judgment to plaintiff Security Insurance Company of Hartford in this declaratory judgment action.  It found defendant Machevsky judicially estopped from asserting any claim based on a scheduled valuable possessions insurance policy covering certain artwork.
       Reviewing de novo the grant of summary judgment and reviewing for abuse of discretion the district court's decision to invoke judicial estoppel, the USCA affirmed.  The defendant filed for Chapter 7 bankruptcy in 1999.  He had possessed the artwork since 1993 and had insured it at least since 1997.  In the bankruptcy schedules pertaining to personal property, the defendant answered "none"—under oath—in response to questions asking him to list all "pictures and other art objects, antiques. … and other collections or collectibles,"  "interests in insurance policies," and "equitable or future interests, life estates, and rights or powers exercisable for the benefit of the debtor other than those listed in Schedule of Real Property."  In the "Statement of Financial Affairs" portion of the bankruptcy schedules, signed under oath, he checked the box marked "none" in the section asking him to list "all property owned by another that the debtor holds or controls."  The bankruptcy court granted him a discharge in 1999 based on his filings.  The following year, according to the defendant, he went on vacation and returned to discover that his artwork had been stolen.  He made a claim of $587,700 on the policy.  The USCA concluded that the district court did not abuse its discretion in holding that judicial estoppel applied.  In the bankruptcy court, by answering "none," the defendant asserted that he had no interest in the artwork or in any insurance policy pertaining to it.  He had taken a clearly inconsistent position in the present case.  Debtors have an express, affirmative duty to disclose all their asserts.  Although the defendant claimed that the paralegal who prepared his bankruptcy petition did not inquire as to his assets, the omissions ultimately were his own.  Disclosing one's assets is the essence of the bankruptcy process, and false omissions are the equivalent of false statements in the bankruptcy context.  USA v. Lindholm, 24 F.3d 1078, 1085 (9th Cir. 1994).  The defendant persuaded the bankruptcy court to accept his position and discharge his debts.  The omission of the artwork from the bankrptcy schedules meant that none of the other participants in the bankruptcy proceedings was aware of the artwork or the insurance policy, and an evaluation of the defendant's true interests (and any potential assets that could have been part of the estate and distributed to his creditors) was excluded from the process that led to his discharge.  The defendant thus would derive an unfair advantage by being allowed to pursue the insurance claim.  See New Hampshire v. Main, 532 US 742, 750-51 (2001) (discussing factors to consider in applying equitable doctrine of judicial estoppel);  Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001) (applying judicial estoppel when debtor's position in bankruptcy schedules was inconsistent with position taken in insurance claim).

12)  BANKRUPTCY:  In re Kwang-Wei Han, 03-55354 (9th Cir. Nov. 18, 2003) (unpublished).  Kozinski, Silverman, and Tallman, Circuit Judges.
       Kwang-Wei Han appealed pro se the Bankruptcy Appellate Panel's decision affirming the bankruptcy court's summary judgment in favor of McGaw Property Management, Inc.  The USCA affirmed.  McGaw, a California corporation, had standing to bring an action against Han for embezzlement and conversion of McGaw's funds, and breach of fiduciary duty to McGaw.  Cf., e.g., General Bedding Corp. v. Echevarria, 947 F.2d 1395, 1396 (9th Cir. 1991) (aggrieved corporation had standing to maintain action against indi-vidual for conversion and breach of fiduciary duty).

13)  BANKRUPTCY:  In re Prischmann, 02-16059 (9th Cir. Nov. 12, 2003) (unpublished).  Canby, W. Fletcher, and Tallman, Circuit Judges.
       Reggiardo appealed a bankruptcy decision avoiding certain liens, in whole and in part, secured by the debtor's home.  The debtor had been granted a homestead exemption of $125,000 on the value of her home and subsequently moved to avoid various judicial liens to preserve this exemption.  See 11 USC Secs. 522(b)(1) and (f);  Cal. Civ. P. Sec. 704.730 (2002).  Reggiardo challenged the bankruptcy court's valuation of the home as well as its decision to sua sponte reverse its grant of the motion with respect to defaulting parties.  The Bankruptcy Appellate Panel affirmed the decision of the bankruptcy court.
      The USCA affirmed the BAP's decision.  The USCA noted that it is bound by the factual determinations of the bankruptcy court, including its valuation of assets, unless it is left with the "definite and firm conviction that a mistake has been committed."  In re Jan Weilert, RV, Inc., 315 F.2d 1192, 1196 (9th Cir. 2003);  In re Arnold and Barker Farms, 85 F.3d 1415, 1422 (9th Cir. 1996).  Sufficient support for the court's valuation could be found in the record.  The appraisal before the court valued the property at $400,000, $425,000, $530,000, and $570,000.  Cross examination of the appraiser who valued the property at $570, 000 established that he had not considered the fact that there was an order of abatement on the house.  Moreover, he was unable to articulate how he had taken the need for repairs into account in reaching his valuation.  Thus, there was substantial evidence in the record for the court to discount his valuation and to conclude that $465,000 was the proper value of the property.  It is well within a trial court's power to amend an order, particularly one issued from the bench.  To the extent that an oral decision is inconsistent with a formal written order, the formal order controls.  White v. Washington Pub. Power Supply Sys., 692 F.2d 186, 189 n.1 (9th Cir. 1982).  Thus, in evaluating the bankruptcy court's application of Sec. 522(f), the USCA said it would look only at its written orders which denied the motion to avoid the liens even as to the defaulted parties.  Default orders in an adversarial proceeding are governed by FRCP 55.  See Fed. R. Bank. P. 7055.  Rule 55 gives the trial court discretion to grant or to deny a default judgment, which is reviewed for abuse of discretion.  Under Sec. 522(f), the debtor has the burden of showing that she is entitled to avoid a judicial lien.  In re Catli, 999 F.2d 1405, 1406 (9th Cir. 1993).  Here, the debtor made no prima facie showing that she was entitled to have the senior liens avoided.  After the homestead exemption was deduced from the value of the home and the deed of trust and tax lien satisfied, there was still sufficient equity in the home to satisfy the liens senior to Reggiardo's.  Since application of Sec. 522(f) is simply a straightforward mathematical exercise, the court did not abuse its discretion in denying the motion with respect to the defaulting parties.  Given that the court did not err in valuing the property at $465,000 and that it properly denied the motion to avoid the liens of the defaulting parties, it properly applied the formula given in Sec. 522(f).

14)  BANKRUPTCY:  In re Parsons, 03-35015 (9th Cir. Nov. 13, 2003) (unpublished).  Kozinski, Silverman, and Tallman, Circuit Judges.
       Parsons appealed pro se from the BAP's judgment dismissing as moot his appeal from a bankruptcy court's order denying his petition to set aside a prior sale of her personal property and to recover that property.  The USCA affirmed.  The BAP properly concluded that Parson's appeal was moot because her personal property had already been sold and neither of the exceptions to the mootness doctrine applied.  See In re Mann, 907 F.2d 923, 926 (9th Cir. 1990).  Parson's contention that the bankruptcy judges were biased and relied upon extrajudicial materials was not supported by the record.  The USCA said it lacked jurisdiction to consider the BAP's orders denying Parsons' motion for rehearing and subsequent motion for reconsideration because Parsons failed to file an amended notice of appeal as required by Fed. R. App. P. 6(b)(2)(A)(ii).

15)  RICO:  Acro-Tech v. The Robert Jackson Family Trust, 02-35176 (9th Cir. Nov. 24, 2003) (unpublished).  Aldisert, Graber, and Gould, Circuit Judges.
      Plaintiffs Reggie and Lisa Huff appealed the district court's denial of their motion to reconsider the dismissal of their state and federal RICO actions against the defendants. 
        The USCA affirmed.  Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.  School Dist. No. 1J, Multnomah County v. AC&S, 5 F.3d 1255, 1262 (9th Cir. 1993).  As the first and third grounds were inapplicable in this case, the USCA considered only whether the district court committed clear error and whether its decision was manifestly unjust.
          First, the district court did not err in dismissing the plaintiffs' 18 USC Sec. 1962(c) RICO and Oregon Revised Statute ("ORS") Sec. 166.720(3) ORICO claims.  Reviewing de novo, the USCA agreed that the plaintiffs' Second Amended Complaint did not adequately plead "enterprise."  The plaintiffs alleged that Hallsworth and Robert Jackson made decisions together and worked cooperatively.  The allegation was one of "conspiracy"—it dis not satisfy the standard that an enterprise must "at a minimum, … have some sort of structure … for the making of decisions and some mechanisms for controlling and directing the affairs of the group on an on-going, rather than an ad hoc, basis."  Simon v. Value Behavioral Health, Inc., 208 F.3d 1073,1083 (9th Cir. 2000).  The plaintiffs' allegation that Boutin exercised control over the enterprise was also inadequate.  Boutin was not a member of the alleged enterprise.  Moreover, it was unclear how Boutin could have "exercised control" over the enterprise via "consultation and advice" to Jackson and Hallsworth, who themselves were alleged to have "exercised control."  Including two corporations in the enterprise did not per se satisfy the requirement that the enterprise be a separate entity apart from the pattern of racketeering activity in which it engages.  Chang v. Chen, 80 F.3d 1293, 1300 (9th Cir. 1996).  Here, the plaintiffs failed to allege either that a system of authority existed in a separate enterprise or that the defendants utilized a structure apart form the predicate acts to distribute the proceeds of the racketeering activity.  Oregon's RICO is modeled after the federal statute.  Federal cases interpreting the federal statute are persuasive in interpreting the parallel Oregon provisions.  State v. Blossom, 744 P.2d 281, 283 (Or. Ct. App. 1987).  ORS Sec. 166.720(3) parallels Sec. 1962(c).  Because the district court correctly dismissed the plaintiffs' Sec. 1962(c) claim, it also correctly dismissed the plaintiffs' ORS Sec. 166.720(3) claims. 
 Second, the district court did not err in dismissing the plaintiffs' 18 USC Sec. 1962(b) RICO and ORS Sec. 166.720(2) ORICO claims.  The district court erred in its application of the "control" standard.  Nevertheless, the plaintiffs failed to adequately allege that the defendants gains control of Acro-Tech through racketeering activity.  The USCA thus affirmed the dismissal on this ground supported by the record.  The plaintiffs alleged that the defendants gained control of Acro-Tech through three courses of conduct.  The plaintiffs alleged that the defendants exercised control over Acro-Tech as the owners of $50,000 in stock.  However, as the district court noted, the stock purchase was legal, and thus did not involve the acquiring of control through racketeering activity.  The plaintiffs also alleged that the defendants sought to gain control of Acro-Tech as lessors on the lease for Acro-Tech's office space.  Finally, the plaintiffs alleged that the defendants sought to gain control of Acro-Tech by hiring Hallsworth as accounting and bookkeeper.  The defendants alleged that the business lease and accounting services were induced by fraud and, thus, represented an attempt to gain control through racketeering activity.  The plaintiffs' allegations of fraud, however, were general and did not provide the necessary particularity.  The plaintiffs thus failed to adequately allege that the defendants gained control of Acro-Tech through racket-eering activity.  For the same reasons, the plaintiffs failed to adequately plead an ORS Sec. 166.720(2) claim, which tracks Sec. 1962(b). 
       Third, the district court did not abuse its discretion when it denied the plaintiffs leave to amend their Sec. 1962(c) claim.  Two factors supported the denial of leave to amend:  futility of amendment and the fact that the plaintiffs previously amended the complaint.  The district court noted that the plaintiffs' Second Amended Complaint (Corrected) was in fact the fourth complaint the plaintiffs filed in this action.  The plaintiffs were represented by counsel when they filed their Second Amended Complaint, and that filing followed the district court's September 2001 order, which explained in detail what needed to be pleaded.
        Finally, the district court did not abuse its discretion in declining jurisdiction over the plaintiffs' remaining non-RICO state-law claims. 28 USC Sec. 1367(c)(3).  It also did not abuse its discretion in awarding of costs and fees to the defendants.  As they were the prevailing party, the district court had discretion to award feels under FRCP 54(d) and ORS Sec. 166.725(14).  The district court awarded defendants Hallsworth and JDH Services fees in the amount of $20,000;  defendant Boutin $15,000; and defendants Luann and Robert K. Jackson, LB Land, and the Family Trust $20,000.  In light of the number of motions, orders, and amended complaints filed in this action, a total award of fees of $50,000 was reasonable.

16)  BANKRUPTCY:  In re City of Desert Hot Springs, 03-55036 (9th Cir. Nov. 12, 2003) (unpublished).  Brunetti, T.G. Nelson, and Silverman, Circuit Judges.
       Silver Sage Partners, Ltd. appealed the district court's affirmance of the bankruptcy court, which denied Silver Sage's motion for complete relief from the bankruptcy stay and granted partial relief. 
       The USCA affirmed.  It found that Silver Sage's best argument was that the "for cause" exception to the stay set forth in 11 USC Sec. 362(d)(1) applied because the City of Desert Hot Springs filed for bankruptcy in bad faith and/or failed to meet the prerequisites for filing.  This argument failed, however, because Silver Sage offered insufficient evidence of bad faith. That City officials may have misunderstood Chapter 9 bankruptcy proceedings or may have been overly optimistic about their result does not show that they consciously desired to evade the law.  Silver Sage also argued that the City failed to satisfy two of the five prerequisites for filing.  11 USC Sec. 109(c).          Assuming that a motion for relief from stay—as opposed to a motion to dismiss—is a proper vehicle to challenge the City's bankruptcy filing as a whole and that the USCA can consider this issue, the City's filing was proper.  The bankruptcy court did not err, much less clearly err, when it concluded that the City was insolvent.  When one includes the City's debt to Silver Sage, which became due when the mandate from the USCA issued on Nov. 2, 2001, the City was indeed insolvent.  Moreover, the bankruptcy court did not err when it held that the City satisfied the final requirement for filing.  Negotiation with Silver Sage was impracticable in light of Silver Sage's history of freezing the City's assets and its unwillingness to agree not to do so again.   Silver Sage offered a creative argument that an exception to the stay applied to this case because the court is a governmental unit enforcing its police and regulatory power.  However, the USCA noted that the plain language of the statute defeated this argument.  The statute makes no pro-vision for parties acting as private attorneys general, and it clearly does not refer to court enforcement of judgments won by private parties.  The fact that courts may be considered governmental units when they enforce their own inherent powers and interests did not help Silver Sage.  Silver Sage conceded at oral argument that no violation of state law occurred.  And even without that concession, the USCA said it would not consider the Tenth Amendment argument as Silver Sage failed to raise it before the district court and thus waived it. 

17)  PREJUDGMENT INTEREST:  Silver Sage Partners v. Desert Hot Springs, 03-55294 (9th Cir. Nov. 12, 2003) (unpublished).  Brunetti, T.G. Nelson, and Silverman, Circuit Judges.
       Silver Sage Partners appealed the district court's denial of prejudgment interest on a $3,049,439 damage award against the City of Desert Hot Springs.  Silver Sage also requested that the case be reassigned to a different judge upon remand.  Finally, it appealed the stay of enforcement of the judgment against Public Entity Risk Management Authority ("PERMA"), the City's insurer.  PERMA cross-appealed, arguing that it should not have been required to post the entire judgment amount in an interest-bearing escrow account pending appeal.
       The USCA affirmed.  The district court did not violate the law of the case doctrine when it denied prejudgment interest.  In Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814 (9th Cir. 2001) ("Silver Sage 2001"), the Circuit did not consider the issue of prejudgment interest.  On November 6, 2002, it amended its Silver Sage 2001 mandate specifically to allow the district court of consider the appropriateness of prejudgment interest with regard to the reinstated damage award.  The district court did so.  Because it did not reexamine an issue previously decided by the same court or a higher court in the same case, it did not violate the law of the case doctrine.  Its proper consideration of this and other issues provided no support for reassignment.  The USCA thus denied Silver Sage's request on that issue.  The USCA did not reach the question of whether the Fair Hosing Act makes prejudgment interest available and instead assumed for the purpose of this decision that it does not.  The trial court has discretion to award prejudgment interest based on the equities of the case.  The district court properly exercised its discretion when it found that the damage award provided Silver Sage fair and adequate compensation for the damages it suffered without an award of prejudgment interest.  The district court articulated a valid reason for the denial of prejudgment interest, and the USCA affirmed.  In a related case, 02-57082, the USCA held that the district court lacked jurisdiction to grant a writ of garnishment.  In light of that decision the two remaining issues in this case, the stay of the writ and the bond pending appeal of the writ, were moot.  The USCA thus remanded for entry of appropriate orders.

18)  GARNISHMENT:  Silver Sage Partners v. Desert Hot Springs, 03-57082 (9th Cir. Nov. 12, 2003) (unpublished).  Brunetti, T.G. Nelson, and Silverman, Circuit Judges.
        The Public Entity Risk Management Authority ("PERMA") appealed the district court grant of Silver Sage Partners' motion to enforce its judgment against the City of Desert Hot Springs by means of a writ of garnishment.  Because the district court lacked supplemental jurisdiction, the USCA reversed and remanded.  The district court had held that it had supplemental jurisdiction over Silver Sage's motion for a writ of garnishment.  The USCA said it would agree if Silver Sage indeed sought to garnish a debt PERMA owned the City.  However, the USCA noted that there was nothing to garnish.  Silver Sage did not claim that PERMA owed anything to the City.  Instead, Silver Sage claimed that PERMA owed money directly to it as a third-party beneficiary of an agreement between PERMA and the City.  This was a new theory based not on garnishment but on contract.  Peacock v. Thomas, 516 US 349, thus governed:  no supplemental jurisdiction exists where the claim involves a new legal theory   The USCA thus reversed.  Because the other potential source of jurisdiction, 28 USC Sec. 1334, was appropriately first considered by the district court, the USCA remanded.

19)  IMMIGRATION:  Han Kung Lang v. Ashcroft, 01-71483 (9th Cir. Nov. 18, 2003) (unpublished).  B. Fletcher, Rymer, and Graber, Circuit Judges.
        Lang, a native and citizen of Taiwan, petitioned for review of an order of the Board of Immigration Appeals dismissing his appeal from the determination by an immigration judge (IJ) that he was removable under 8 USC Sec. 1227(a)(2)(A)(i)(I) as an alien who committed a crime involving moral turpitude within five years of admission to this country.  The USCA denied the petition.  Although Lang argued that June 22, 1992 was the relevant date of admission rather than June 17, 1994, the USCA did not need to resolve this issue as Lang committed the crime of criminal copyright infringement in violation of 17 USC Sec. 506(a) and 18 USC Sec. 2319(b)(1) within five years of either date.  The IJ's determination that Lang's criminal conduct began in December 1995 was well supported by evidence that weekly shipments of 700-800 units were made between December 1995 and August 1997, that Lang received $5,000 to $14,000 per delivery, and that he sold $1,460,137 worth of counterfeits software between December 31, 1996 and August 8, 1997—which included the period to which Lang pled guilty. 

20)  IMMIGRATION:  Roxas v. Ashcroft, 02-72799 (9th Cir. Nov. 17, 2003) (unpublished).  Hall and O'Scannlain, Circuit Judges, and Brown, District Judge.
       Roxas, a native and citizen of the Philippines, petitioned for review of an order of the Board of Immigration Appeals (BIA) upholding an Immigration Judge's (IJ) denial of her request for asylum and withholding of removal. 
       The USCA denied the petition.  It had jurisdiction pursuant to 8 USC Sec. 1252, reviewed for substantial evidence, and noted that it would reverse the BIA's determination only if the petitioner showed that the evidence compelled such a result.  The USCA assumed that Roxas' testimony was credible because neither the BIA nor the IJ made an adverse credibility finding.  Roxas first argued that the BIA erred when it determined that Roxas did not establish that she had suffered past persecution.  She pointed out "two attempts on her life were made," and she "continues to receive death threats" from the New People's Army (NPA).  The USCA noted that the Circuit has defined persecution as an "extreme concept" that includes the "infliction of suffering or harm."  Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998).  "Our court generally treats unfulfilled threats, without more, as within that category of conduct indicative of the danger of future persecution, rather than as past persecution itself."  Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000).  "In certain extreme cases, we have held that repeated and especially menacing death threats can constitute a primary part of a past persecution claim, particularly where those threats are combined with confrontation or other mistreatment." Id.  "Threats standing alone, however, constitute past persecution in only a small category of cases, and only when the threats are so menacing as to cause significant actual 'suffering or harm.'" Id.  Roxas did not offer any evidence of actual suffering or harm causes by the threats.  Compare Borja v. INS, 175 F.3d 732, 736 (9th Cir. 1999) (NPA threatened petitioner with a gun and then cut her shoulder with a knife).  The gunshots fired at Roxas' student group and the knife-wielding man attacking the group were undoubtedly frightening.  The attacks, however, were on the group rather than on Roxas singularly, and no one was physically harmed.  The attackers were not apprehended, and it is unknown whether the attackers were part of the NPA.  According to Roxas, the written death threats continued on a regular basis for over ten years, but no harm resulted from these repeated threats.  Roxas did not present any evidence that the threats escalated or were disruptive to Roxas' family members, who have continued to reside in their home.  Without more, these threats did not constitute past persecution.  Compare Lim, 224 F.3d at 936 with Ruano v. Ashcroft, 301 F.3d 1155, 1162 (9th Cir. 2002) (court found past persecution when petitioner was "closely confronted" and put in harm's way on numerous occasions by men drawing weapons in petitioner's presence). 
        Roxas next argued that the BIA erred when it determined Rosas did not establish an objectively reasonable fear of future persecution.  A well-founded fear of persecution must be both subjectively genuine and objectively reasonable.  Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998).  Roxas satisfied the subjective prong because she testified credibly.  Substantial evidence, however, supported the BIA's conclusion that Roxas' fear of persecution was not objectively reasonable.  Roxas testified that the death threats continued to this day, but she did not offer any evidence that the threats specifically targeted her for her political opinions or that the threats were likely to be carried out.  Roxas testified that she believed the activities of the NPA were on the rise, but the BIA noted the Amnesty International report submitted by Roxas indicates that the NPA and the Philippine government are participating in negotiations for a peace agreement and most of the current abuses are committed by the government security forces and Muslim armed groups.  Roxas was a student member of the Civilian Home Defense Force for a year and a half.  She left the country over 13 years ago.  There is no evidence that Roxas is a person of particular interest to the NPA or that she would be singled out for her political opinions.  Finally, Roxas argued that she was penalized for her failure to provide corroborating evidence.  She was not.  The BIA merely upheld the IJ's determination that Roxas' credible testimony standing alone did not establish past persecution or a well-founded fear of future persecution.  Roxas necessarily failed to meet the higher standard for withholding of removal because she failed to meet the standard for asylum.  Rivera-Moreno v. INS, 213 F.3d 481, 487 (9th Cir. 2000).

21)  IMMIGRATION:  Zakharyan v. Ashcroft, 02-72037 (9th Cir. Nov. 17, 2003) (unpublished).  Reinhardt, Fernandez, and Rawlinson, Circuit Judges.
        Zakharyan petitioned for review of an order of the Board of Immigration Appeals (BIA) denying his application for asylum and withholding of deportation.  The USCA granted the petition.  It reviewed the BIA's decision for abuse of discretion.  The BIA's denial of relief can be affirmed only on the basis articulated in the decision.  Mattis v. INS, 774 F.2d 967 (9th Cir. 1985).  "Cursory, summary or conclusory statements" are not sufficient to support a BIA decision." Id.  The BIA failed to elucidate its rationale for denying relief to Zakharyan.  It failed to discuss crucial facts, such as Zakharyan's imprisonment and the murder of his wife.  The BIA's total failure to address pertinent evidence presented by Zakharyan and to articulate its reasons for its ruling requires a reversal.  Id.  The USCA said it was important to note that the BIA "may incorporate the [Immigration Judge's] opinion if the BIA opinion makes it clear it is doing so."  Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995).  However, in this case, the BIA did not incorporate the IJ's findings clearly or otherwise.  Accordingly, the USCA said it could not consider the IJ's findings in determining whether or not the BIA abused its discretion. Id. Looking solely at the BIA decision, as it must, the USCA held that the BIA abused its discretion in this case when it failed to address the record evidence and to explain the reasons for its ruling.  The USCA thus granted the petition for re-view and remanded to the BIA for further proceedings consistent with this disposition.

22)  IMMIGRATION:  Samin v. Ashcroft, 02-73101 (9th Cir. Nov. 24, 2003) (unpublished).  Hall and O'Scannlain, Circuit Judges, and Brown, District Judge. 
       Samin, his wife, and three daughters (all natives and citizens of the Philippines) petitioned for review of the decision of the Board of Immigration Appeals (BIA) dismissing their appeal from an Immigration Judge's (IJ) denial of their requests for asylum and withholding of deportation.  They alleged that the Moro National Liberation Front (MNLF), an anti-government movement active in the southern Philippines, persecuted them based on Samin's assistance to the Philippine government.  The IJ denied the petitioners' requests based on an adverse credibility determination against Samin and his failure to establish a well-founded fear of persecution. 
        The USCA denied the petition.  It rejected the petitioners' contention that the BIA erred in its adverse credibility determination against Samin.  The BIA cited several discrepancies between Samin's asylum application and his testimony and concluded that the testimony "lacked detail and was inconsistent."  When taken together, inconsistencies may be sufficiently material to permit an Immigration Judge (IJ) to question an applicant's credibility.  Singh-Kaur v. INS, 183 F.3d 1147, 1152 (9th Cir. 1999).  Two of the inconsistencies related to the basis for Samin's alleged fear of persecution.  Such inconsistencies are permissible bases for the BIA to question Samin's credibility.  Moreover, Samin had access to an interpreter and received multiple opportunities to clarify his testimony, but still failed to provide a coherent narrative.  After the BIA reversed his initial determination, the IJ provided several additional reasons for his finding, which the BIA subsequently affirmed.  Based on Samin's testimony about his role as an informant and how he acquired his informant identity care, the IJ doubted Samin's testimony concerning the authenticity of the card and his claim that he would carry the potentially incriminating card on his person.  The IJ also questioned Samin's assertion that he did not consider the safety of his family before volunteering as an informant in light of other facts about Samin in the record.  In addition, the IJ found one of Samin's stated reasons for his 1993 return to the Philippines, "to check the situation," was not plausible because Samin admitted he could have done so by telephone.  Finally, the IJ concluded that Samin's return to the Philippines to execute a lease was not an "action of a person who has a well founded fear of persecution in his home country."  Although the petitioners argue the IJ based his adverse credibility finding on impermissible conjecture, the record shows the IJ's conclusions were based on parts of Samin's testimony and other non-conjectural reasons which provided substantial evidence for the IJ's finding.  Finally, Samin argues the BIA erred when it adopted the IJ's adverse credibility determination without providing specific, cogent reasons to support the BIA's determination.  The USCA rejected this argument.  The BIA's express incorporation of the IJ's decision permits the BIA to adopt the IJ's reasons for its decision as well.  The USCA also rejected the petitioners' argument that the BIA erred when it determined that Samin failed to establish a well-founded fear of persecution.  A well-founded fear of persecution must be both "subjectively genuine and objectively reasonable."  Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996).  "If the applicant could avoid persecution by relocating to another part of the applicant's country of nationality … [and] it would be reasonable to expect the applicant to do so," the applicant lacks a well-founded fear of future persecution.  8 CFR Sec. 208.13(b)(2)(ii).  Because Samin was not credible, the petitioners could not satisfy the subjective prong of the test.  In addition, the possibility of relocation undercuts their attempts to satisfy the objective prong.  The BIA incorporated the IJ's opinion and relied on reports from the State Department and Amnesty International that MNLF activity was localized to the Southern islands of the Philippines.  The IJ noted Samin's shop in Luzon remained undisturbed despite Samin's misfortunes in Jolo.  The conclusion that Samin could relocate vitiates his claim of a well-founded fear of future persecution.  Substantial evidence thus supported the BIA's determination that Samin lacked a well-founded fear of persecution.  Because the petitioners failed to establish a well-founded fear of persecution, they could not meet the more stringent standard required for withholding of deportation. 

23)  IMMIGRATION:  Valle v. INS, 02-16823 (9th Cir. Nov. 21, 2003) (unpublished).  Canby, W. Fletcher, and Tallman, Circuit Judges.
        The USCA upheld district court decision that Valle is not entitled to be naturalized as a Filipino War Veteran because he does not meet the eligibility criteria established by statute.  See 8 USC Sec. 1440 note.  Valle submitted evidence to the district court that he served in the Cebu Guerilla Command in the Philippines during World War II, as a member of the forces that resisted Japanese control until the U.S. Army arrived in 1945.  But Valle conceded that his name does not appear on the final roster prepared by the Guerilla Affairs Division ("GAD") of the U.S. Army of those who served honorably within a recognized guerilla unit during the occupation and liberation of the Philippines.  Moreover, Valle's guerilla service was never certified by the U.S. Dept. of the Army.  In 1997, Congress amended Sec. 405 of the Immigration Act, 8 USC Sec. 1440 note.  The amendments specify that WWII veterans of recognized guerilla units in the Philippines are eligible for waivers of the territorial service and residency requirements in INA Sec. 329, 8 USC Sec. 1440, only if their names appear on the GAD roster.  Flawed as the GAD list may be, this is the requirement Congress established.  The amendments also provide that, in the case of an applicant claiming to have served in a recognized guerilla unit, only the U.S. Dept. of the Army can certify honorable service and discharge.  By its plain meaning, the statute requires that the Army certify only those former members of recognized guerilla units whose names appear on the GAD list.   Valle cited the heroic and courageous service by Filipino WWII veterans to request that the USCA apply in equity previous, more favorable law, including the case of Almero v. INS, 18 F.3d 757 (9th Cir 1994).  The USCA recognized that heroic and courageous service, but lacked authority to apply pre-1997 law or to grant naturalization in equity.   Landgraf v. USI Film Products, 511 US 244, 280 (1994).  In 1997, Congress modified the statute interpreted in Almero, and explicitly made its modifications applicable to pending naturalization applications.  The USCA was bound by these statutory requirements.  It concluded that the district court fulfilled its responsibilities under 8 USC Sec. 1421(c) to conduct a de novo review, and correctly held that its review was limited to determining whether Valle met the statutory criteria.  Because Valle has not fulfilled the statutory requirements established by Congress, the district court was compelled to find that he was not eligible for a naturalization waiver under INA Sec. 329, 8 USC Sec. 1440