1)  INTERNET LAW: Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 01-17424 (9th Cir. Aug. 23, 2004).  Yahoo attempted to protect itself against a French court's judgment forbidding it to auction Nazi memorabilia.  The French action had been brought by two French groups.  Before they tried to collect on their judgment, Yahoo filed a pre-emptive lawsuit in the U.S. where District Judge Jeremy Fogel granted Yahoo's summary judgment request and found that the French judgment conflicted with the First Amendment.  The USCA concluded that U.S. courts lacked jurisdiction over the two French groups.  It did not reach the consti-tutional issues.  The USCA thus reversed the district court's finding that the French court judgment was unenforceable in the U.S., as the district court lacked personal jurisdiction over the French defendants and they had done nothing wrongful in bringing a suit against Yahoo in France.  Dissenting, Judge Brunetti would hold that Yahoo's action for declaratory relief was ripe for adjudication and that the district court properly exercised jurisdiction over the defendants and acted within its discretion in refusing to abstain;  he would affirm the district court's decision.  Ferguson (author), Brunetti (dissenting), and Tashima, Circuit Judges.  R. Jones of San Jose, CA, for the defendant;  N. Jahss of Los Angeles, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  COPYRIGHT INFRINGEMENT / INTERNET LAW:  Metro-Goldwyn-Mayer Studios v. Grokster. Ltd., 03-55894 (9th Cir. Aug. 19, 2004).  Under the circumstances presented by this case, the distributors of peer-to-peer file-sharing computer networking software could not be held contributorily or vicariously liable for copyright infringements committed by the users of its software.  Boochever, Noonan, and Thomas (author), Circuit Judges.  R. Frackman of Los Angeles, CA, for the plaintiffs-appellants;  M. Lemley of San Francisco, CA, for the defendant-appellee.    (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  TRADEMARKS:  Nissan Motor Co. v. Nissan Computer, Corp., 02-57148 (9th Cir. Aug. 6, 2004).  In a trademark infringement case, Nissan Motor Company was properly granted summary judgment on its trademark infringement claim but not also on its dilution claim, as whether the "Nissan" mark became famous before Uzi Nissan's used his last name beginning 1991 in naming his North Caroline computer store, Nissan Computer Corp., was a question of fact for the jury to decide. Thus, having held that the first use of a mark for purposes of the Federal Trademark Dilution Act ("FTDA") is that use which is arguably offending, and such use in this case occurred when "Nissan" was used in "Nissan Computer" in commerce, the USCA concluded that it had to reverse and remand the summary judgment on dilution for the district court to consider the fame of the "Nissan" mark as of 1991.  On remand, the district court also had to consider whether Nissan Computer "actually diluted" the "Nissan" mark as required by Mosely v. V Secret Catalogue, 537 US 418 (2003).  Finally, the USCA held that injunctive relief may not restrain Nissan Computer from placing links on nissan.com and nissan.net to other sites that post negative commentary about Nissan Motor; to this extent, the relief granted was overbroad, reached non-commercial speech, and ran afoul of the FTDA and the First Amendment.  Trott, Rymer (author), and Thomas, Circuit Judges.  N. Greenstein of San Jose, CA, for the defendant-appellant;  W. Barsky of Los Angeles, CA, for the plaintiffs-appellees.   (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  ANTITRUST / FOREIGN RESTRAINT OF TRADE:  USA v. LSL Biotechnologies, 02-16472 (9th Cir. Aug. 11, 2004).  In a case alleging that an agreement between the defendants and an Israeli company violated the Sherman Act, the district court properly dismissed the action for lack of subject matter jurisdiction over the entire complaint as the agreement lacked a direct, substantial, and reasonably foreseeable effect on U.S. commerce;  the Foreign Trade Antitrust Improvements Act ("FTAIA") provides the standard for establishing when subject matter jurisdiction exists over a foreign restraint of trade;  this standard was not met here because the government could not demonstrate that the district court clearly erred in determining that the alleged effects of the agreement's "Restrictive Clause" were not direct.  Dissenting, Judge Aldisert agreed with the government that the word "direct" is merely a codification of anti-trust law in place prior to the enactment of the FTAIA provision calling for a "direct, substantial, and reasonably foreseeable effect" on U.S. trade or commerce when foreign activity is involved. Aldisert (dissenting), Tallman (author), and Rawlinson, Circuit Judges.  S. Mintz of Washington, DC, for the plaintiff;  T. Connell of Washington, DC, and S. Bhalla of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

 5)  RICO / CLASS ACTIONS:  Poulos v. Caesars World, Inc., 02-16604 (9th Cir. Aug. 10, 2004).  Class Representatives asserting RICO claims must prove individualized reliance where that proof is otherwise necessary to establish actual or proximate causation.  Wallace, McKeown (author), and Callahan, Circuit Judges.  D. Boies of Armonk, NY, for the plaintiffs;  D. Frederick of Las Vegas, NV, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  SECURITIES:  USA v. Tarallo, 02-50252 (9th Cir. Aug. 20, 2004).  A defendant may commit securities fraud "willfully" even if not knowingly at the time that his conduct violates the law;  he also may commit securities fraud "willfully" by intentionally acting with reckless disregard for the truth of material misleading statements.  15 USC Sec. 78ff is not facially unconstitutional under Apprendi v. New Jersey, 530 US 466 (2000).  D.W. Nelson, Gibson, and Graber (author), Circuit Judges.  B. Tarlow of Los Angeles, CA, for the defendant;  AUSA S. Olson of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  BANKRUPTCY / ATTORNEYS' FEES:  Higgins v. Vortex Fishing Systems, Inc., 03-15487 (9th Cir. Aug. 11, 2004).  The bankruptcy court's decision awarding trial and appellate attorney's fees under 11 USC Sec. 303(i)(1) after the dismissal of the plaintiffs failed Petition for Involuntary Chapter 7 bankruptcy had been affirmed on appeal, was proper with respect to the award of fees related to the initial litigation. The proper standard for making an award determination under Sec. 303(i)(1) is the totality of the circumstances test. However, awarding the fees associated with the subsequent appeals was an abuse of discretion.  B. Fletcher, Trott (author), and Fisher, Circuit Judges.  P. Flaherty of Great Falls, MT, for the petitioners;  S. Cox of Tucson, AZ, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  BANKRUPTCY:  In re Focus Media, Inc., 03-55808 (9th Cir. Aug. 2, 2004).  The debtor unsuccessfully challenged the summary judgment for the creditors in this involuntary Chapter 7 case, as the debtor failed to create a triable issue of fact regarding the involuntary petition requirements of 11 USC Sec. 303, and the bankruptcy judge did not abuse her discretion in not recusing herself.  The USCA agreed with the bankruptcy court that the debtor did not create a triable issue of fact as to whether the creditors' claims were subject to a bona fide dispute, whether there were at least three qualified petitioning creditors, or whether the debtor was generally paying off debts as they became due.  T.G. Nelson, Tashima, and Fisher (author), Circuit Judges.  J. McCoy of Newport Beach, CA, for the appellant;  B. Wessel of Los Angeles, CA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  BANKRUPTCY:  In re Casserino, 03-35257 (9th Cir. Aug. 16, 2004).  The trustee appealed the BAP's judgment that that the debtor leaseholder's prepaid rent and security deposit were exemptible homestead property under Oregon Law.  The USCA upheld the BAP's ruling.  Goodwin, W. Fletcher (author), and Tallman, Circuit Judges.  R. Sticka pro se;  G. Christensen of Corvallis, OR, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  TAXATION:  Choi v. CIR, 02-74480 (9th Cir. Aug. 10, 2004).  Over Choi's challenge that the Commissioner of Internal Revenue could not use the "bank deposits plus cash expenditures" method to reconstruct his income, the USCA upheld the Tax Court's imposition of civil penalties on Choi for under-reporting income.  As Choi did not keep adequate records for his store, the CIR was entitled to use an indirect method to reconstruct his income to determine the amount of any deficiency. Schroeder (author), Tallman, and Callahan, Circuit Judges.  A.J. Busby of Phoenix, AZ, for the appellants;  P. Speck of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  TAXATION:  USA v. Schiff, 03-16319 (9th Cir. Aug. 9, 2004).  The defendants unsuccessfully challenged a preliminary injunction, preventing them from promoting their tax theories on the grounds that 1) the injunction was overbroad, 2) the requirement that they give the government their customer list violated their associational rights, and 3) the order that they place a copy of the injunction on their websites constituted illegal compelled speech.  The government showed a likelihood of success on the merits and the provisions of the injunction did not violate the plaintiffs' rights.  Hug (author), Alarcon, and W. Fletcher, Circuit Judges.  M. Stein of Las Vegas, NV, for the appellant;  J. Hagley of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  WATER LAW:  Save Our Sonoran, Inc. v. Flowers, 02-16156 (9th Cir. Aug. 26, 2004).  This case concerns the management of waterways in Arizona's Sonoran desert.  A developer, 56th & Lone Mountain, sought and obtained a Clean Water Act "dredge and fill" permit from the Army Corps of Engineers for the construction of a gated community near Phoenix.  The permit was required and the Corps' jurisdiction invoked because water courses through the washes and arroyos of the arid development site during periods of heave rain.  The washes are considered navigable waters and thus fall under the jurisdiction of the federal government.  Save Our Sonoran ("SOS"), filed this action against the Corps and the developer, alleging violations of the National Environmental Policy Act.  The district court issued a preliminary injunction suspending development during the pendency of the litigation.  The developer appealed.  The USCA affirmed, finding that the district court did not abuse its discretion either in granting the preliminary injunction or in setting the bond amount.  Noonan, Thomas (author), and Clifton, Circuit Judges.  N. James of Phoenix, AZ, for the defendant;  M. Scott of Tempe, AZ, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  ENVIRONMENTAL LAW:  The Lands Council v. Powell, 03-35640 (9th Cir. Aug. 13, 2004). The USCA reversed the dismissal of plaintiff's challenge to Forest Service approved timber harvests, as the harvesting violated the National Environmental Policy Act and National Forest Management Act.  It was part of a watershed restoration project in the Idaho Panhandle National Forest.  Canby, Wardlaw, and Gould (author), Circuit Judges.  T. Woodbury of Missoula, MT, for the plaintiffs;  R. Spritzer of Washington, DC, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  ENVIRONMENTAL LAW:  High Sierra Hikers Assoc. v. National Forest Recreation Assoc., 02-15504 (9th Cir. Aug. 25, 2004).  The district court correctly found that the Forest Service violated the National Environmental Policy Act by failing to assess the individual and cumulative impacts of granting one-year renewals of special-use permits to commercial "packstock" operators in wilderness areas.  However, the district court erred in finding that the requirements of the Wilderness Act had not been violated.  Hug (author), Gibson, and Fisher, Circuit Judges.  P. Frost of Eugene, OR, for the plaintiffs; D. Shilton of Washington, DC, for the defen-dants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  ENVIRONMENTAL LAW:  Gifford Pinchot Task Force v. USFWS, 03-35279 (9th Cir. Aug. 6, 2004).  This case bears on how the U.S. Fish & Wildlife Service ("USFWS") carries out its duties under the Endangered Species Act in light of the Northwest Forest Plan implemented, in part, to protect the spotted owl.  The USCA reversed the district court's summary judgment in favor of the USFWS regarding six of its biological operation opinions, as the USFWS's critical habitat analysis was fatally flawed in that it relied on an unlawful regulatory definition of "adverse modification" and it impermissibly substituted "late successional reserves" for "critical habitat."  Neither error was harmless.  Brunetti, McKeown, and Gould (author), Circuit Judges.  S. Parent of Portland, OR, for the plaintiffs;  R. J. Smith of Washington, DC, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  CONTRACTS / INSURANCE:  Assurance Company of America v. Wall & Associates, LLC,  02-35992 (9th Cir. Aug. 5, 2004).  Wall & Associates had two buildings constructed.  Soon thereafter, water began leaking in around windows;  despite efforts to fix the problem, the leakage continued and caused the buildings to decay.  Wall submitted a notice of loss to Assurance, seeking coverage for collapse loss.  Assurance denied the claim on the grounds that there had been no collapse. It then filed a declaratory judgment action.  The district court granted Assurance's motion for summary judgment, holding that, under the policy, "collapse" was an unambiguous term meaning "a sudden falling down," and since there had been no sudden falling down, there was no coverage for collapse.  The USCA reversed, finding that the district court misinterpreted the language of the policy which contained terms indicating an intent to provided coverage not only for actual collapse, but also for imminent collapse.  Brunetti (author), McKeown, and Gould, Circuit Judges.  J. Petrie of Seattle, WA, for the appellant;  J. Sale of Seattle, WA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  CONTRACTS:  Keystone Land & Development Co. v. Xerox, 02-35847 (9th Cir. Aug. 4, 2004).  The plaintiff's claim for breach of a contract to negotiate the terms for the purchase of a building was properly dismissed as, under Washington law, the letters exchanged by the parties did not constitute a contract to negotiate;  the parties did not exchange promises to conform to a specific course of conduct during negotiations, such as negotiate in good faith, exclusively with each other, or for a specific period of time.  Without an objective manifestation of mutual assent to definite terms supported by consideration, no contract was formed.  Trott, Fisher, and Gould (author), Circuit Judges.  E. Frimiodt of Bellevue, WA, for the plaintiff;  L. Smith of Seattle, WA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  CONTRACTS:  CE Distribution, LLC v. New Sensor Corp., 02-16305 (9th Cir. Aug. 10, 2004).  CE Distribution ("CE") sued New Sensor ("NS"), asserting that NS intentionally interfered with an exclusive distributor agreement between CE and an Italian company.  CE also alleged that NS breached a distributorship agreement between NS and CE.  Finally, CE requested a declaratory judgment that it did not infringe upon NS's trademark rights.  Concluding that NS had sufficient contacts with the State of Arizona to warrant the exercise of personal jurisdiction over it in that forum under the "effects test," the USCA reversed the district court's judgment granting NS's motion to dismiss the action for lack of personal jurisdiction.  The USCA remanded for the district court to consider whether the exercise of pendent personal jurisdiction is appropriate over CE's other claims.  Silverman, W. Fletcher, and Rawlinson (author), Circuit Judges.  B. Cooper of Phoenix, AZ, for the plaintiff;  J. Messing of Phoenix, AZ, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  CONTRACTS / PUBLIC UTILITIES:  Public Utility Dist. No. 1 of Grays Harbor County Washington v. Idacorp, Inc., 03-35207 (9th Cir. Aug. 10, 2004).  The USCA upheld on grounds of preemption the dismissal of the plaintiff's contract-related claim that it was forced to pay exorbitant prices for electricity;  however, the USCA added that the plaintiff could amend its complaint so that would not intrude upon the rate-setting jurisdiction of the federal government.  Dissenting, Judge Callahan questioned the factual basis of the majority's assertion that offering declaratory relief as to contract formation would not necessarily intrude upon the rate-setting jurisdiction of the Federal Energy Regulatory Commission;  he thought the contract formation issues could not be unscrambled from matters falling within the sole jurisdiction of FERC.  Pregerson, Thompson (author), and Callahan (dissenting), Circuit Judges.  W. Ohle of Portland, OR, for the plaintiff;  G. Erspamer of Walnut Creek, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  INTERNATIONAL SERVICE OF PROCESS:  Brockmeyer v. Marquis Publications, 02-56283 (9th Cir. Aug. 31, 2004).  Joining the Second Circuit, the USCA held that the Convention on the Service Abroad of Judicial and Extrajudicial Documents allows service of process by international mail;  it also held that service by mail in the instant case had to be performed in accordance with the requirements of Fed. R. Civil Proc. 4(f).  Silverman, W. Fletcher (author), and Rawlinson, Circuit Judges.  A. Israel of Long Beach, CA, for the defendant;  D. Cavanaugh of New York, NY, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  ARBITRATION / INTERNATIONAL LAW:  China National Metal Products v. Apex Digital, Inc., 03-55231 (9th Cir. Aug. 16, 2004).  The USCA dismissed Apex Digital's appeal of an arbitral award obtained against it following arbitration proceedings in Beijing, over Apex's contention that the China International Economic and Trade Arbitration Commission ("CIETAC") disregarded the parties' arbitration clause.  Apex maintained that the arbitration clause required China National Metal Products Import/Export Company to bring any claim against Apex as a counterclaim in an arbitral proceeding previously initiated by Apex in Shanghai.  The USCA found that Apex failed to establish that the CIETAC arbitral procedure was not in accordance with the parties' agreement;  moreover, CIETAC did not trump specific terms of the agreement by using its own rules because the arbitral clause did not resolve the dispute. Pregerson, McKeown, and Bybee (author), Circuit Judges.  K. O'Rourke of Los Angeles, CA, for the respondent;  J. Gordon of Los Angles, CA, for the petitioner.  (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  NON-COMPETE AGREEMENTS / EMPLOYMENT LAW:  Nike, Inc. v. McCarthy, 03-35818 (9th Cir. Aug. 9, 2004).  McCarthy left Nike to become vice president of U.S. footwear sales and merchandising at Reebok.  Nike sought a preliminary injunction to prevent McCarthy from working for Reebok for a year, invoking a non-compete agreement McCarthy signed in 1997 when Nike had promoted him to be its regional footwear sales manager.  This promotion was an "advancement" which rendered the non-compete agreement enforceable under Oregon law, and it was upheld on grounds that Nike had a legitimate interest in enforcing the agreement due to a substantial risk that McCarthy could potentially divert sales based on confidential information acquired while with Nike.  Hug, McKeown, and Fisher (author), Circuit Judges.  C. Carson of Portland, OR, for the defendant-appellant;  S. Seidman of Portland, OR, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  FORFEITURE:  USA v. Boylan, 03-56681 (9th Cir. Aug. 24, 2004).  The plaintiffs successfully appealed the district court's denial of their Article III standing to enter claims against the funds in a forfeiture proceeding;  the USCA held that the plaintiffs had a cognizable legal interest in the property.  Noonan (author) and Clifton, Circuit Judges, and Fogel, District Judge.  D. Smith of Alexandria, VA, for the claimants;  AUSA S. Welk of Los Angeles, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  WRONGFUL DISCHARGE:  Thomas v. City of Beaverton, 03-35120 (9th Cir. Aug. 16, 2004).  Thomas was the municipal court administrator for the City of Beaverton, Oregon.  Her supervisor, Miller, placed her on extended probation after she refused to pass over a subordinate employee, Perry, for a promotion to senior court clerk in 2001 despite Miller's insistence that Perry not be promoted.  Perry, an African-American, earlier sued the City for failing to promote her to the same position in 1996 and 1997, and the jury then found that the City had unlawfully retaliated against her for complaining of racial discrimination.  After the City terminated Thomas, she sued the City, Miller and other City employees for violations of the First and Fourteenth Amendment, Title VII, Oregon Rev. Stat. Secs. 659A.030 and 652.355, and common law wrongful discharge.  The district court granted the defendants summary judgment.  The USCA reversed on Thomas' First Amendment retaliation claim against the City and Miller, and on her Title VII retaliation claim against the City, finding that Thomas had offered sufficient evidence to create a genuine issue of material fact as to whether her refusal to facilitate her employer's discriminatory conduct constituted expressive conduct on a matter of public concern.  Goodwin, McKeown, and Fisher (author), Circuit Judges.  T. Steenson of Portland, OR, for the plaintiff;  M. Speirs of Portland, OR, for the defendants.   (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  AMERICANS WITH DISABILITIES ACT:  Wong v. Regents of the Univ. of California, 01-17432 (9th Cir. Aug. 18, 2004).  Wong alleged that the University of California discriminated against him in violation of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act when it denied his request for learning disability accommodations and then dismissed him for failure to meet the academic requirements of one of its medical schools.  The district court granted the University's motion for summary judg-ment, holding that Wong failed to present a triable issue of material fact as to whether he was "disabled" and thus entitled to special accommodations.  At issue was whether a person who has achieved considerable academic success, beyond the attainment of most people and of the average person, can nevertheless be found "substantially limited" in learning, and thus entitled to the protections afforded a "disabled" person.  The USCA affirmed.  It concluded that the district court did not abuse its discretion in declining to permit Wong to add additional expert witnesses on the grounds that the experts were not timely identified.  It also held that the evidence before the district court did not establish a genuine issue of material fact as to whether Wong qualified as disabled.  Dissenting, Judge Thomas noted that one of the central purposes of Title II of the ADA is to provide equal opportunity for those individuals who are qualified to receive government services but cannot complete the program requirements without a reasonable accommodation of their disability;  he thought the majority had turned this idea on its head by holding that, as a matter of law, academic success definitively disproves the existence of a learning disability.  Beezer, Thomas (dissenting), and Clifton (author), Circuit Judges.  D. Siegel of Oakland, CA, for the plaintiff;  M. Lucey of San Francisco, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  TORTS:  Prescod v. Amr, Inc., 02-55097 (9th Cir. Aug. 19, 2004).  The district court found that the defendant airlines' failure to ensure that Neischer's bag remained in her possession was a substantial cause of her death nine days after the bag's confiscation;  the bag contained her "a life-sustaining breathing device and related medicine." The airlines questioned whether the death resulted from an "accident" as defined by the Warsaw Convention, and, if so, whether there was "willful misconduct." The USCA reversed in part, as the district court failed to address the airlines' contention that Neischer did not act to avoid potential injury.  It remanded on the issue of contributory negligence.  Hall, Thompson, and Berzon, Circuit Judges. Per Curiam.  S. Fearon of New York, NY, for the defendants;  B. Altshuler of Beverly Hills, CA, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  LABOR LAW:  Stevens v. Brink's Home Security, 03-35217 (9th Cir. Aug. 4, 2004).  The plaintiffs filed a class action in state court against their employer, seeking unpaid wages and overtime pursuant to state labor laws.  The district court granted the plaintiff's motion to add a non-diverse defendant and remanded the case to state court;  the amendment destroyed diversity, which was the sole basis for federal court jurisdiction.  The USCA concluded that it lacked appellate jurisdiction because the district court's remand order is unreviewable under 28 USC Sec. 1447(d), and even if the amendment order were separable from the remand order, the amendment order is not final under 28 USC Sec. 1291, nor is it reviewable under the collateral order exception.  Pregerson, Thompson (author), and Callahan, Circuit Judges.  D. Thieme of Seattle, WA, for the defendant;  M. Garfinklel of Seattle, WA, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  LABOR LAW:  Whitman v. Dept. of Transportation, 03-35303 (9th Cir. Aug. 30, 2004)  Whitman maintained that his employer, the FAA, violated his rights under 49 USC Sec. 45104(8) and the First Amendment by disproportionately testing him for substance abuse.  Concluding (1) that the Civil Service Reform Act ("CSRA") governs Whitman's employment grievance, (2) that the CSRA does not expressly confer federal court jurisdiction over such claims, and (3) that Whitman's sole remedy lies with the negotiated grievance procedures set forth in the collective bargaining agreement between the FAA and the National Association of Govern-ment Employees, the district court dismissed the action.  The USCA affirmed because 5 USC Sec. 7121(a)(1), as amended in 1994, does not expressly confer federal court jurisdiction over employment-related claims covered by the negotiated grievance procedures of federal employees' collective bargaining agreements.  Hall, Kleinfeld, and Wardlaw (author), Circuit Judges.  T. Whitman pro per;  AAG P. Keisler of Washington, DC, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  ERISA:  Banuelos v. Construction Laborers' Trust Funds for Southern California, 02-57096 (9th Cir. Aug. 24, 2004).  The USCA reversed the district court's dismissal of the plaintiff's suit to establish his right to receive a pension, where the district court erred in concluding that it could hear evidence that was not in the administrative record regarding the ERISA plan.  The USCA remanded to the district court with instructions to remand to the plan administrator to calculate the plaintiff's pension.  B. Fletcher, Pregerson, and Brunetti (author), Circuit Judges.  R. Weinstock of Ventura, CA, for the appellant;  C. Noneman of Los Angeles, CA, for the appellant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  DISABILITY BENEFITS:  Benecke v. Barnhart, 03-15155 (9th Cir. Aug. 9, 2004).  The district court incorrectly remanded the plaintiff's claim to the Social Security Administration for further proceedings where there were no outstanding issues to be resolved and the record clearly showed that the plaintiff was entitled to disability insurance benefits.  B. Fletcher (author) and Reinhardt, Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge.  M. Caldwell of Phoenix, AZ, for the plaintiff;  P. Wood of Denver, CO, for the defendant.   (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  MEDICARE:  University Medical Center v. Thompson, 02-17278 (9th Cir. Aug. 20, 2004).  In order to qualifying for an additional adjustment from Medicare for serving low-income patients, the extent to which a hospital cares for low-income patients must be measured against net inpatient care revenues as a whole, including Medicare and Medicaid payments.  Tashima and Clifton, Circuit Judges, and Leighton (author), District Judge.  E. Marshall of Washington, DC, for the appellant;  R. McCallum of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  FAMILY LAW:  Gaudin v. Remis, 03-15687 (9th Cir. Aug. 10, 2004).  Gaudin appealed the district court's dismissal of her petition for the return of her two children from the U.S. to Canada under the Hague Convention on the Civil Aspects of Intl. Child Abduction.  The USCA had directed the district court to conduct an evidentiary hearing to determine whether Gaudin moved permanently to Hawaii and, if so, to dismiss her petition as moot.  The district court concluded that Gaudin had moved permanently to Hawaii and thus dismissed her petition as moot.  Gaudin appealed.  The USCA now reversed, holding that the district court correctly chose to apply the federal common law of domicile, but erred in applying it.  Gaudin is barred by law from possessing the requisite intent to establish domicile in Hawaii.   As she cannot lawfully have moved permanently to Hawaii, the case is not moot, and the district court erred in so holding.  Rymer, Hawkins, and Bybee (author), Circuit Judges.  P. Lynch of Honolulu, HI, for the petitioner;  E. Espinoza of Del Mar, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  DISBARMENT:  In re North, 03-15629 (9th Cir. Aug. 25, 2004).  North appealed a district court order upholding his suspension from the practice of law before that court.  The USCA affirmed, holding that:  (1) the rule generally barring jurisdiction over denials of applications to district court bars did not deprive the USCA of jurisdiction to consider North's appeal;  (2) North's claim that the district court followed improper procedures in suspending him from its own bar on the basis of his suspension from the state bar was moot as North's suspension from the state bar had expired and did not fall into the category of a case capable of repetition yet evading review;  (3) North's claim that a district court local rule is invalid as it could permit insufficient review of state court suspension procedures was not properly before the USCA;  and (4) although the issue was not moot, North had not shown that the local rule violates precedent governing membership requirements for district court bars.  B. Fletcher, Trott, and Fisher (author), Circuit Judges.  (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  ELECTION LAW:  Students for a Conservative America v. Greenwood, 03-15199 (9th Cir. Aug. 11, 2004).  Unsuccessful candidates for student government positions at the University of California, Santa Cruz, and a student organization of which the candidates are members, challenged specific provisions of the University's election code on First Amendment grounds.  The district court held that it lacked the authority to order a new election because the defendants, various University officials, were entitled to Eleventh Amendment immunity.  The district court dismissed the remaining claims as moot because the defendants had removed the challenged provisions from the election code.  The USCA affirmed.  As the University has withdrawn the challenged provisions and committed not to reenact them unless federal law changes, these provisions will not be applied in future elections;  the case is thus moot because the plaintiffs are not suffering any ongoing injury and there is no reasonable expectation that the injury the plaintiffs suffered will recur.  Schroeder (author), Tashima, and Rawlinson, Circuit Judges.  J. Bopp of Terre Haute, IN, for the plaintiffs;  C. Patti of Oakland, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  ELECTION LAW:  ACLU v. Heller, 01-15462 (9th Cir. Aug. 6, 2004).  A Nevada statute, requiring certain entities publishing "any material or information relating to an election, candidate or any question on a ballot" to reveal on the publication the names and addresses of the publication's financial sponsors, is facially unconstitutional as it violates the Free Speech Clause of the First Amend-ment, as explicated by McIntyre v. Ohio Elections Commissions, 514 US 334 (1995).  The statute here reached far more core political speech than necessary to achieve the state's legitimate interests, and it advances those interests poorly if at all.  Browning, Hug, and Berzon (author), Circuit Judges.  A. Lichtenstein of Las Vegas, NV, for the plaintiffs;  K. Cavin of Carson City, NV, for the defendants.   (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  CONSTITUTIONAL LAW:  Currier v. Potter, 02-35232 (9th Cir. Aug. 12, 2004).  USPS policies regarding general delivery mail service and regulations which deny "no-fee" postal boxes to homeless persons do not violate First Amendment or Equal Protection guarantees.  Judge Gould concurred except that he thought the First Amendment challenge to the delivery policies should be con-sidered under at least the "limited public forum" doctrine.  But, even under that doctrine, he rejected the facial challenge.  He also wrote separately to discuss the deferred issue of whether the general delivery regulations are constitutionally permissible if, as applied to an individual, they substantially burden that person's right to receive mail. This issue, he noted, will squarely arise in an "as applied" challenge asserted by a homeless person who demonstrates an inability reasonably to gain access to generally delivery mail at the main Post Office branch.  O'Scannlain (author) and Gould (dissenting in part), Circuit Judges, and Bolton, District Judge.  D. Girard of Seattle, WA, for the plaintiffs;  AAG R. McCallum of Washington, DC, for the defendants.   (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  CONSTITUTIONAL LAW:  Alpha Energy Savers v. Hansen, 03-35142 (9th Cir. Aug. 27, 2004). A public employee's testimony addresses a matter of public concern if it contributes to the resolution of a judicial or administrative proceeding in which discrimination or other significant government misconduct is at issue—even if the speech itself would not otherwise meet the public-concern test were it to be considered in isolation.  Reinhardt (author), Silverman, and Clifton, Circuit Judges.  D. Snyder of Portland, OR, for the plaintiffs;  S. Dunaway of Portland, OR, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  CIVIL RIGHTS:  Berry v. Baca, 03-56000 (9th Cir. Aug. 13, 2004).  The USCA reversed the district court's summary judgment for the L.A. County Sheriff on the plaintiffs' claims that the Sheriff pursued a policy of deliberate indifference to their constitutional rights which resulted in their unlawful over-detention;  the plaintiffs raised a genuine issue of fact regarding the existence of this policy.  Each plaintiffs had been detained for between 26 and 29 hours after the court had authorized his release from jail.  D.W. Nelson (author), Gibson, and Graber, Circuit Judges.  S. Yagman of Venice Beach, CA, for the plaintiffs;  M. Allen of Glendale, CA, for the defendant.   (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  PRIVACY / QUALIFIED IMMUNITY:  Johnson v. Hawe, 03-35057 (9th Cir. Aug. 31, 2004).  Johnson appealed the summary judgment in favor of a chief of police based on his qualified immunity in arresting Johnson for violating Washington's Privacy Act.  Because it was clearly established under Washington law that recording a police officer in the performance of his public duties was not a violation of the Privacy Act and it was unreasonable for the officer to believe otherwise, the officer was not entitled to qualified immunity.  Canby, Wardlaw (author), and Gould (dissenting), Circuit Judges.  R.S. Phillips of Poulsbo, WA, for the plaintiff;  R. Cox of Seattle, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  NATIVE AMERICAN LAW / JURISDICTION:  Smith v. Salish Kootenai College, 03-35306 (9th Cir. Aug. 6, 2004).  In a tort dispute arising from a traffic accident on a public highway within a Native American Reservation, the USCA reversed the tribal court's dismissal of the plaintiff's claim as the tribal court lacked the adjudicative authority to exercise civil subject matter jurisdiction over a non-tribal member.  Brunetti, McKeown, and Gould (author), Circuit Judges.  R. Palmer of Missoula, MT, for the plaintiff-appellant;  R. Phillips of Missoula, MT, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  NATIVE AMERICAN LAW:  Henderson v. Terhune, 02-17224 (9th Cir. Aug. 12, 2004).  A Native American state inmate unsuccessfully challenged the prison's hair length regulation, alleging that it infringed his religious beliefs.  The USCA found the regulation to be reasonably related to legitimate penological interests. The inmate also challenged the district court's holding that he could not state an actionable claim under the American Indian Religious Freedom Act of 1978.  This Act is merely a policy statement;  it creates neither a cause of action nor a judicially enforceable right.  Schroeder, Canby, and Tallman (author), Circuit Judges.  P. Henderson, pro se;  DAG M. Lee of Sacramento, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  NATIVE AMERICAN LAW:  Coeur d'Alene Tribe of Idaho v. Hammond, 02-35965 (9th Cir. Aug. 19, 2004).  At issue was whether Indian tribes have sovereign immunity from an Idaho state tax on motor fuel delivered by non-tribal distributors to tribally-owned gas stations for sale on Indian reservations.  The Supreme Court of Idaho ruled that the incidence of essentially the same tax fell impermissibly on the tribes, and that Congress had not through the Hayden-Cartwright Act authorized states to abrogate the tribes' sovereign immunity from taxation on the fuel sold on their reservations.  The Idaho legislature attempted to modify the impact of this ruling by amending the tax law to provide expressly that the incidence of the Idaho state tax falls on the non-tribal distributors, not on the tribes who owned the retail gas stations located on the tribes reservations.  The tribes sued the Idaho State Tax Commissions in federal district court to enjoin them from collecting the tax.  Notwithstanding the legislative amendment, the district court reached the same conclusion as the Idaho Supreme Court and granted summary judgment to the tribes and enjoined the Commissioners from enforcing the tax on motor fuels delivered to, received by, or sold by Tribal or Indian owned retail gasoline stations on the Coeur d' Alene Nez Perce, or Shoshone Bannock Reservations.  The USCA affirmed.  Dissenting, Judge Kleinfeld thought that the Hayden-Cartwright Act expressly authorized the tax at issue as it permits the state to impose the tax regardless of its incidence;  the Act, he thought, rendered unnecessary the majority's "highly indeterminate" analysis of where the incidence of the tax fell. Kleinfeld (dissenting), Gould (author),and Tallman, Circuit Judges.  C. Smith of Boise, ID, for the defendants;  B. Cleary of Coeur d'Alene, ID, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  NATIVE AMERICAN LAW:  Boozer v. Wilder, 03-35722 (9th Cir. Aug. 27, 2004).  The USCA affirmed the dismissal of the plaintiff's complaint, challenging the Colville Tribe's jurisdiction to decide a custody dispute over his daughter, where the plaintiff failed to exhaust tribal court remedies.  B. Fletcher (author), Hamilton, and Berzon, Circuit Judges.  R. Fisher of Spokane, WA, for the plaintiff;  T. Christie of Nespelem, WA, for the defendants.   (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  IMMIGRATION: Alvarez-Garcia v. Ashcroft, 02-73951 (9th Cir. Aug. 10, 2004).  The USCA denied the plaintiff's petition for review of his exclusion and deportation order;  the plaintiff is an excludable alien under the "entry fiction" doctrine and does not have an equal protection right to the same procedural mechanisms afforded deportable aliens in the admission process.  The challenged regulations—which delegate decisionmaking authority over the adjustment of status application of an excludable alien to a different administrator than would adjudicate it in deportation proceedings—comport with the Constitution.  Wallace (author), Kozinski, and Thomas, Circuit Judges.  M. Guajardo of San Francisco, CA, for the petitioner;  J. Paisner of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  IMMIGRATION:  Abebe v. Ashcroft, 02-72390 (9th Cir. Aug. 13, 2004).  Mengistu entered the U.S. in 1991;  his wife, Abebe, entered in 1993.  They applied for asylum in 1993.  Mengistu's father and stepmother had been involved with the then controlling government in Ethiopia, the DERG, a Marxist dictatorship.  Mengistu's father and stepmother were imprisoned and stripped of their civil rights by the succeeding government, the Ethiopian Peoples Revolutionary Democratic Front ("EPRDF").  Mengistu was, but no longer is, a member of the Ethiopian People's Revolutionary Party ("EPRP"), an organization critical of the DERG regime.  In 1981, he had been imprisoned for a few days because of his membership in EPRP, and underwent indoctrination after his release.  In 1991, the DERG regime was overthrown by the EPRDF, and the Transitional Government of Ethiopia ("TGE").  Mengistu did not support the TGE, and in 1993, he joined Medhin, a multi-ethnic organization that opposed the TGE and sought a democratic government. He is now concerned that the Ethiopian embassy may have acquired the attendance list of a Medhin meeting he attended in Washington, DC, and fears imprisonment if he returns to Ethiopia due to his opposition to the government.  The USCA denied the petition for review of the denial of their applications for asylum and withholding of removal, as Mengistu and his wife failed to show that a reasonable fact-finder would be compelled to find that they suffered past persecution or have a well-founded fear of future persecution.  Dissenting, Judge Ferguson noted that female genital mutilation ("FGM") is pervasive in Ethiopia, and that Mengistu and Abebe have an eight-year-old American daughter.  Judge Ferguson did not think Congress intended to jeopardize her welfare by forcing her parents to choose between risking her exposure to FGM and leaving her in the arms of strangers across many thousands of miles.  He would hold that Mengistu and Abebe qualify for asylum.  Alarcon, Ferguson (dissenting), and Rawlinson (author), Circuit Judges.  P. Hornik of Portland, OR, for the petitioners;  N. Friedman of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  IMMIGRATION:  Chen v. Ashcroft, 02-73473 (9th Cir. Aug. 10, 2004).  The BIA's summary affirmance of an IJ's decision violated the BIA's own streamlining regulations as the issue presented was not controlled by existing BIA or federal court precedent.  Dissenting, Judge Wallace thought that nowhere in his petition did Chen contend that the BIA failed to comply with its streamlining regulations in affirming the IJ's ruling that Chen was inadmissible for permanent residence under INA Sec. 245(a);  given that the parties neither raised nor briefed the issue of the BIA's compliance, Judge Wallace thought Circuit practice dictated that it not be considered on appeal.  Wallace (dissenting), Kozinski, and Thomas (author), Circuit Judges.  A. Sampson of San Francisco, CA, for the petitioner;  E. Kanter of Washington, DC, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  IMMIGRATION:  Cazarez-Gutierrez v. Ashcroft, 02-72978 (9th Cir. Aug. 24, 2004).  A state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the Controlled Substances Act or another federal drug law named in the definition of a drug trafficking crime. The petitioner's offense is thus not an aggravated felony for immigration purposes;  however his conviction was a controlled substance offense for which he is removable;  the USCA lacked jurisdiction to directly review the removal order.  The USCA thus construed the petition for review as a petition for habeas corpus and transfer it to the district court for consideration as such.  Hug, B. Fletcher (author), and Tashima, Circuit Judges.  J. Bracamonte of Phoenix, AZ, for the petitioner;  A. Payne of Washington, DC, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  IMMIGRATION:  Bellajaro v. Schiltgen, 03-55095 (9th Cir. Aug. 6, 2004).  District courts have jurisdiction under 8 USC Sec. 1421(c) to review the denial of an application for naturalization, whether or not a removal proceeding is pending, but the scope of review is limited to "such" denial.  When an administrative denial is based on 8 USC Sec. 1429, judicial review is limited to that determination.  This reflects the plain meaning of the text and rationalizes the judicial review provision of Sec. 1421(c) with the priority provision of Sec. 1429.  Trott, Rymer (author), and Thomas, Circuit Judges.  M. Friedberg of Los Angeles, CA, for the plaintiff;  P. Corrales-Talleda of Los Angeles, CA, for the defendants.   (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  IMMIGRATION:  Perez-Gonzales v. Ashcroft, 02-73294 (9th Cir. Aug. 13, 2004).  The "reinstatement" provision of INA Sec. 241(a)(5), is not impermissibly retroactive when applied to deportation orders issued before the passage of the 1996 INA revisions.  However, the USCA held that the INS erred in holding that the reinstatement provision categorically bars the petitioner from receiving adjustment of status under INA Sec. 245(i).  It remanded to permit the INS to decide whether in its discretion to grant the petitioner's application for adjustment of status.  D.W. Nelson (author), Fisher, and Gould, Circuit Judges.  M. Adams of Granger, WA, for the petitioner;  J. Hunolt of Washington, DC, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  IMMIGRATION:  Deloso v. Ashcroft, 02-72317 (9th Cir. Aug. 2, 2004).  Deloso, within a space of two years, was shot at by unknown gunmen, attacked by a group of men carrying knives, and set upon on yet another occasion by a man armed with a pipe;  he also received death threats shortly after the assassination of another member of his "Strength of Democracy" political party;  even after he relocated to another part of the Philippines, he was followed by a man he identified as the son of his father's political enemy.  He didn't feel safe in any location for very long.  The Immigration Judge incorrectly ruled that Deloso's past persecution was attributable to personal motives of vengeance.  The USCA thus reversed the IJ's decision to deny Deloso's asylum petition as evidence supported a finding that the persecution was, at least in part, on account of plaintiff's political opinion.  B. Fletcher, Trott, and Fisher (author), Circuit Judges.  L. Galdamez of Sacramento, CA, for the petitioner;  J. Bernstein of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  IMMIGRATION:   El Himri v. Ashcroft, 03-71152 (9th Cir. Filed Aug. 2, 2004; amended Aug. 24, 2004).  The petitioners, stateless Palestinians who fled Kuwait, the country of their nativity, when Iraq invaded Kuwait in 1991, have been living in the U.S. since and now seek asylum.  The government maintained that Jordan, rather than Kuwait, should be the country of removal because the petitioners hold Jordanian travel documents.  The IJ accepted the government's position, in part, and found that the petitioners were removable to Jordan.  The USCA disagreed, holding that 8 USC Sec. 1231 does not authorize the designation of Jordan as a country of removal;  as the IJ had not been presented with evidence from the government that Jordan was willing to accept the petitioners, Sec. 1231(b)(2)(E)(vii) bars the designation of Jordan as a country of removal.  The petitioners had also shown that they are members of a minority subject to economic persecution in Kuwait which entitled them to withholding of removal.  Hug (author), Tashima, and Paez, Circuit Judges.  M. Carvalho of Seattle, WA, for the petitioner;  A. Johnson of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  IMMIGRATION:  Li v. Ashcroft, 02-72689 (9th Cir. Aug. 5, 2004).  Li, a native of China, petitioned for review of the BIA's final order upholding an Immigration Judge's decision to deny his request for asylum and withholding of removal.  He alleged persecution by the PRC government in that he and his wife were arrested and fined, and that his wife was forcibly sterilized, pursuant to the PRC's one-child policy.  Finding sufficient evidence to support the IJ's adverse credibility decision, the USCA denied the petition.  Dissenting, Judge Noonan noted that Li violated PRC law by fathering three children, and that as a violator of PRC law, he has every reason to fear persecution for his violation;  this fear of probable future persecution, Judge Noonan thought, entitled Li to asylum.  Farris (author), Noonan (dissenting), and Rawlinson, Circuit Judges.  B. Bempi of Hempstead, NY, for the petitioner;  E. Wilson of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  IMMIGRATION:  Maravilla v. Ashcroft, 03-70467 (9th Cir. Aug. 19, 2004).  The Maravillas, natives and citizens of Mexico, petitioned for review of a BIA decision denying their motion to reopen their applications for cancellation of removal.  The USCA granted the petition and remanded for the BIA to consider whether competent counsel would have acted otherwise than the Maravillas' first attorney, and, if so, to consider under the correct standard whether the petitioners were prejudiced.  Their first attorney failed to appear at their hearing to answer the charge that the Maravillas were in the U.S. without having been admitted or paroled.  Then, while the appeal was pending, that same attorney was disbarred from practice before the BIA.  B. Fletcher, Leavy, and Berzon, Circuit Judges.  Per Curiam.  R. Jobe of San Francisco, CA, for the petitioners;  M. Thresher of Washington, DC, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  IMMIGRATION:  Kaur v. Ashcroft, 02-72302 (9th Cir. Aug. 19, 2004).  The USCA reversed the denial of the petitioner's application for asylum and withholding of removal where the BIA's adverse credibility finding was not based on substantial evidence because the reasons supporting the "not credible" finding were neither specific nor cogent.  Dissenting, Judge Tallman thought that the court had to determine that the petitioner's evidence was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution, but the majority did not apply this extremely deferential standard of review.  Because a reasonable fact finder would not be compelled to find the petitioner's claim credible, Judge Tallman would deny her petition for review.  Canby, W. Fletcher (author), and Tallman (dissenting), Circuit Judges.  E. Sylva of San Francisco, CA, for the petitioner;  R. LeFevre of San Francisco, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  IMMIGRATION:  Hasan v. Ashcroft, 02-73867 (9th Cir. Aug. 18, 2004).  The USCA granted the petition for review in this case as the Immigration Judge erred in concluding that the petitioner failed to show that her past persecution was on account of political opinion.  The petitioner's newspaper articles exposing the activities of a powerful local "crook" in her home country who organized "terrorism, repression, and extortion," and "misappropriation of public money," were indisputably about political issues, although they did not espouse a political theory.  D.W. Nelson (author), Fernandez, and Kleinfeld, Circuit Judges.  C. Cruz of Los Angeles, CA, for the petitioners;  A. Drucker of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  IMMIGRATION:  USA v. Karaouni, 03-10327 (9th Cir. Aug. 24, 2004).  After a two-day trial, Karaouni, a non-citizen, was convicted of violating 18 USC Sec. 911 by falsely claiming to be a U.S. citizen when he checked a box on an Immigration and Naturalization Service I-9 Employment Eligibility Verification Form next to the printed statement:  "I attest, under penalty of perjury, that I am … [a] citizen or national of the United States."  The USCA concluded that, unlike a claim to be a U.S. citizen, a claim to be a U.S. national, even if false, does not constitute a violation of Sec. 911.  Ferguson, Reinhardt (author), and Paez, Circuit Judges.  P. Milrod of Fresno, CA, for the defendant;  D. Gappa of Fresno, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  IMMIGRATION:  Faruk v. Ashcroft, 03-70342 (9th Cir. Aug. 4, 2004).  The USCA granted the Faruks' petition for review of the denial of their asylum claim where their testimony regarding their harassment, beatings, and death threats compelled the conclusion that they suffered past persecution on account of their mixed-race, mixed-religion marriage in Fiji.  The Immigration Judge erred in failing to find that attacks on the Faruks by their own family members constituted persecution and that the government was unable or unwilling to control them.  The USCA thus held that the Faruks were eligible for asylum.  It remanded for the Attorney General to exercise discretion as to whether to grant asylum.  However, the USCA denied the petition for withholding of removal, as it did not consider the evidence strong enough to meet the higher stand for that form of relief.  B. Fletcher (author), Leavy, and Berzon, Circuit Judges.  P. Randhawa of San Francisco, CA, for the petitioners;  AAG P. Keisler of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  IMMIGRATION:  Malty v. Ashcroft, 03-70069 (9th Cir. Aug. 27, 2004)  The USCA reversed the denial of the petitioner's motion to reopen his asylum proceedings as he had shown a reasonable likelihood of persecution based on changed circumstances in his country by presenting new, previously unavailable evidence indicating that his religious harassment had increased to the level of persecution, both respect to the applicant's religion generally and with respect to the applicant's family specifically.  Reinhardt (author), Noonan, and Clifton, Circuit Judges.  J. Seeds of Van Nuys, CA, for the petitioner;  P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  IMMIGRATION:  Mendiola-Sanchez v. Ashcroft, 02-72633 (9th Cir. Aug. 27, 2004).  The USCA upheld the denial of the petitioners' application for suspension of deportation on the grounds that they were statutorily ineligible for relief because they left the United States for a period of more than 90 days and that violated the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  Schroeder (author), Tallman, and Callahan, Circuit Judges.  H. Sklar of Los Angeles, CA, for the petitioners;  AAG C. Ferrier of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  IMMIGRATION:  Toro-Romero v. Ashcroft, 02-74460 (9th Cir. Aug. 30, 2004)  The USCA found that the BIA erred in not considering 1) whether the petitioner, a lawful permanent resident, had committed a crime involving moral turpitude and thus was "seeking admission" when he tried to re-enter the country, and 2) whether the petitioner was eligible for cancellation of removal.  The USCA thus reversed for further proceedings.  Noonan, Kleinfeld, and Berzon (author), Circuit Judges.  K. Evans of Beverly Hills, CA, for the petitioner;  P. Fiorino of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  EXTRADITION:  Cornejo-Barreto v. Siefert, 02-56605 (9th Cir. Aug. 16, 2004).  Upon a request by Mexico for the defendant's extradition, a Mexican citizen and U.S. permanent resident, the Secretary of State's decision to extradite the defendant was within the "Rule of Non-Inquiry" and not subject to judicial review.  Wallace, Rymer (author), and Tallman, Circuit Judges.  FPD C. Wilke of Santa Ana, CA, for the petitioner;  D. Letter of Washington, DC, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  WEBCAMS IN JAILS:  Demery v. Arpaio, 03-15698 (9th Cir. Aug. 6, 2004).  Finding no abuse of discretion, the USCA upheld a preliminary injunction against a county sheriff for placing webcams, viewable worldwide, in a pretrial detention center.  The sheriff maintained that the cams deterred crime and opened up his jails to public scrutiny.  The USCA held that the cams violated the Fourteenth Amendment substantive due process rights of pretrial detainees.  As the cams were not reasonably related to a non-punitive purpose, the USCA agreed with the district court's determination that the detainees would likely prevail on their claim that placing the cams in a pretrial detention center subjected them to punishment.  Dissenting, Judge Bea thought the majority substituted conjecture for analysis on the mootness issue, substituted personal tastes for the Supreme Court's analysis as to what constitutes impermissible pre-conviction punishment, and refused to consider any rational relation between the webcasts and legally permissible governmental purposes.  Paez (author), Berzon, and Bea (dissenting), Circuit Judges.  D. Struck of Phoenix, AZ, for the defendant;  S. Ambrose of Phoenix, AZ, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  INFORMANTS:  Randolph v. California, 03-16064 (9th  Cir. Aug. 19, 2004).  If a state places a cooperating informant in a jail cell with a defendant whose right to counsel has attached, and if the informant then makes a successful effort to stimulate a conversation with the defendant about the crime charged, the state thereby violates the defendant's Sixth Amendment rights under Massiah v. USA, 377 US 201 (1964).  T.G. Nelson, W. Fletcher (author), and Berzon, Circuit Judges.  S. Luban of Oakland, CA, for the petitioner;  J. McLean of Sacramento, CA, for the respondents.   (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  SEXUALLY VIOLENT PREDATOR LAW:  Hubbart v. Knapp, 03-16877 (9th Cir. Aug. 13, 2004).  The USCA affirmed Hubbart's civil commitment for being a sexually violent predator over his challenge that the California Sexually Violent Predator Act violates federal due process and equal protection clauses. Hubbart had admitted to raping "about" 40 women throughout California between 1971 and 1982.  Goodwin, Canby, and Tallman (author), Circuit Judges.  J. Grossman of Santa Clara, CA, for the petitioner;  P. Ruffra of San Francisco, CA, for the respondents.   (Download the full text of this decision at www.cc9.uscourts.gov/)

65)  PLEA AGREEMENTS:  USA v. Patterson, 00-30306 (9th Cir. Aug. 20, 2004).  The government's failure to specify the amount of marijuana in the defendant's plea agreement did not invalidate the plea as drug quantity is not an essential element of the offense;  the district court thus erred in vacating the defendant's valid plea on the government's motion.  Judge Tallman concurred;  he thought Ellis v. U.S. Dist. Court, 356 F.3d 1198 (9th Cir. 2004) (en banc), required the USCA to rule that the trial judge accepted the plea, that jeopardy attached at that time, and that the USCA should remand for resentencing based on an indeterminate amount of marijuana.  Noonan, Tashima (author), and Tallman (concurrence), Circuit Judges.  AFPD G. Smith of Spokane, WA, for the defendant;  AUSA N. Cook of Coeur d'Alene, ID, for the plaintiff.   (Download the full text of this decision at www.cc9.uscourts.gov/)

66)  CONFRONTATION CLAUSE:  USA v. Wilmore, 03-10297 (9th Cir. Aug. 25, 2004).  The defendant's Sixth Amendment rights were violated when the district court improperly restricted his cross-examination of a government witness, his wife, about her grand jury testimony.  Lay (author), Hawkins, and Bybee, Circuit Judges.  AFPD A. Traum of Las Vegas, NV, for the plaintiff-appellee;  AUSA W. Reed of Las Vegas, NV, for the defendant-appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

67)  CRIMINAL LAW:  USA v. Benitez, 00-50181 (9th Cir. Aug. 19, 2004).  Pursuant to USA v. Benitez, 03-167, 124 S.Ct. 2333 (2004), overruling USA v. Benitez, 310 F.3d 1221 (9th Cir. 2003), the USCA affirmed Benitez's conviction;  it noted that its decision does not effect Benitez's right to file a petition for habeas corpus pursuant to 28 USC Sec. 2255.  Browning, Reinhardt, and Tallman, Circuit Judges.  Per Curiam.  M.  Mossman of Santa Barbara, CA, for the defendant;  AUSA C. Luege of Santa Ana, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

68)  CRIMINAL LAW:  USA v. Combs, 02-50485 (9th Cir. Aug. 5, 2004).  A jury found the defendant guilty as charged for manufacturing and distributing more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 USC Sec. 841(a)(1).  The USCA reversed, vacated, and remanded for a new trial on just the manufacturing count upon concluding that the transfer of trace, unusable amounts of methamphetamine for the purpose of disposal is insufficient to support a conviction for "distribution" under Sec. 841(a)(1), and that improper prosecutorial questioning and vouching prejudiced the defendant's right to a fair trial.  Reinhardt, Thompson, and Wardlaw (author), Circuit Judges.  C. Lysaght of Santa Monica, CA, for the defendant;  AUSA C. Murphy of Los Angeles, CA, for the plaintiff.   (Download the full text of this decision at www.cc9.uscourts.gov/)

69)  CRIMINAL LAW:  USA v. Marks, 03-30464 (9th Cir. Aug. 23, 2004).  Even though the defendant's state felony conviction was unconstitutional on ineffective assistance of counsel grounds due to his attorney's actual conflict of interest in jointly representing both defendants, it could still be counted as a predicate conviction in a federal prosecution for violation of 18 USC Sec. 922(g)(1), which criminalizes the possession of firearms and ammunition by a felon.  B. Fletcher (author), Hamilton, and Berzon, Circuit Judges.  AUSA J. Harrington of Spokane, WA, for the appellant;  S. Hormel of Spokane, WA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

70)  SENTENCING / IMMIGRATION:  Rusz v. Ashcroft, 02-72081 (9th Cir. Aug. 2, 2004).  Rusz, a native and citizen of Poland, immigrated to the U.S. with his parents at the age of thirteen. In January 1998, he was convicted in state court of two counts of second degree burglary under California Penal Code Sec. 459, arising from a single scheme of conduct.  His sentence was suspended, and he was placed on probation;  In May 1998, he was caught shoplifting and pled guilty to petty theft with a prior conviction for burglary in violation of California Penal Code Secs. 484, 488, and 666.  Although the court advised him that he could receive a maximum sentence of three years in state prison, it sentenced him to only 37 days in custody and three years probation.  In July 1998, the INS initiated removal proceedings against Rusz on the grounds he had been convicted of two crimes of moral turpitude not arising out of a sin-gle scheme of criminal conduct.  Rusz applied for asylum and withholding of removal, claiming that he feared persecution should he be returned to Poland.  The Immigration Judge (IJ) found that Rusz had failed to establish eligibility for asylum or withholding of removal, and that, because he had been convicted of two crimes of moral turpitude, he was subject to removal.  Rusz appealed to the BIA, maintaining that his case should be remanded to the IJ for reconsideration in light of the Convention Against Torture, which became effective while his appeal was pending.  Holding that Rusz failed to show that he would more likely than not be tortured if removed to Poland, the BIA affirmed the IJ's decision.  The USCA held that a conviction for petty theft with a prior conviction under California Penal Code Secs. 484, 488, and 666 is not a crime for which a sentence of one year or longer may be imposed under 8 USC Sec. 1227(a)(2)(A)(1).  As only one predicate offense satisfied Sec. 1227(a)(2)(A)(1)(i) and (ii), the USCA ruled that it was not deprived of jurisdiction to review the BIA's affirmance of the IJ's removal order. Pregerson (author), Beezer, and Tallman, Circuit Judges.  G. Burcham of San Diego, CA, for the petitioner;  A. Igoe of Washington, DC, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

71)  SENTENCING:  USA v. Garcia-Gomez, 03-30378 (9th Cir. Aug. 20, 2004).  The defendant was convicted on a guilty plea of being an alien "found in" the U.S. after deportation.  The district court sentenced him to 46 months' imprisonment.  In calculating the sentence, it included a 16-point increase of his offense level and a three-point increase of his criminal history score due to his prior conviction and 31-month sentence for delivery of cocaine.  It also included a one-point increase in his criminal history score for his prior conviction and 90-day jail term for "Third Degree Driving While License Suspended" and "Refusal to Give Information / Cooperate."  The USCA upheld the sentence over the defendant's challenge that the district court erred in taking his entire 31-month sentence into account in calculating his criminal history category and offense level as he had earned credit for participation in a "work ethic camp" and had been released after less than eight months in custody.  Tashima (author), Paez, and Bea, Circuit Judges.  A. Bjur of Yakima, WA, for the defendant-appellant;  AUSA D. Kresse of Yakima, WA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

72)  SENTENCING:  USA v. Castro, 03-50444 (9th Cir. Aug. 27, 2004).  On appeal, Castro asserted both that there was a fatal variance between the indictment and the facts presented at trial and that his resentencing was unconstitutional because it was based on facts that were found by the district court, not a jury.  The USCA rejected his fatal variance claim and affirmed his conviction in a separate memorandum decisions filed concurrently.  Reinhardt, Kozinski, and Clifton, Circuit Judges. Per Curiam.  D. Yang of Los Angeles, CA, for the plaintiff;  H.D. Steward of San Clemente, CA, for the defendant.   (Download the full text of this decision at www.cc9.uscourts.gov/)

73)  SENTENCING:  USA v. DeGeorge, 02-50365 (9th Cir. Aug. 30, 2004).  DeGeorge appealed his conviction and sentence following his jury trial for conspiracy, mail fraud, wire fraud, and perjury.  The government alleged that he participated in a scheme to defraud by purchasing a 76-foot yacht for $1.9 million, inflating its value to $3.6 million through a series of sham transactions, obtaining insurance on the yacht at the inflated value, scuttling it off the coast of Italy, and attempting to collect the insurance proceeds, in part by lying about the cause of the sinking during civil litigation with the yacht's insurer.  The USCA affirmed the conviction but reversed a two-level enhancement for obstruction of justice and remanded for resentencing.  D.W. Nelson, Gibson (author), and Graber, Circuit Judges.  W. Kopeny of Irvine, CA, for the defendant;  AUSA E. Decker of Los Angeles, CA, for the plaintiff.   (Download the full text of this decision at www.cc9.uscourts.gov/)

74)  SENTENCING:  USA v. You, 03-30420 (9th Cir. Aug. 31, 2004).  A federal jury convicted You and Kim of harboring illegal aliens.  On appeal, You maintaining that the district court erred in denying his motion for a retrial on double jeopardy grounds and in declining to grant him a downward departure pursuant to U.S.S.G. Sec. 5K2.0 or Sec. 5k2.13.  You and Kim both maintained that the jury instructions were incorrect.  Kim argued that the district court erred in holding that he failed to show that the government purposefully discriminated in making its peremptory challenges.  The USCA disagreed with each contention and affirmed.  Hall, Kleinfeld, and Callahan (author), Circuit Judges.  AUSA M. Lahr of Helena, AZ, for the plaintiff; P. Hoovestal of Helena, MT, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

75)  SUPERVISED RELEASE:  USA v. Gementera, 03-10103 (9th Cir. Aug. 9, 2004).  A supervised release condition requiring a convicted mail thief to spend a period of hours standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment," is legal.  The USCA had no reason to conclude that the sanctions exceeded the bounds of "civilized standards" or other "evolving standards of decency that mark the progress of a maturing society."  Dissenting, Judge Hawkins said he would vacate the sentence, remand for resentencing, and instruct the district court that public humiliation or shaming has no proper place in our system of justice.  O'Scannlain (author), Siler, and Hawkins (dissenting), Circuit Judges.  A. Wachtel of San Francisco, CA, for the appellant;  K. Brooke of Washington, DC, for the appellee.   (Download the full text of this decision at www.cc9.uscourts.gov/)

76)  DOUBLE JEOPARDY:  Custer v. Hill, 02-36038 (9th Cir. Aug. 6, 2004).  Custer appealed the district court's denial of his 28 USC Sec. 2254 habeas petition.  The USCA denied the petition over Custer's challenges that he was subjected to double jeopardy, and that his counsel was ineffective at trial for abandoning the double jeopardy claim and failing to raise it on appeal.  Custer was not subjected to double jeopardy when Oregon prosecuted him for engaging in sodomy with his stepson between November 1, 1986 and June 19, 1987, after he was acquitted at a prior trial charging him with engaging in sodomy on June 20, 1987;  he was tried for different offenses occurring at different times.  Custer's assertions that his counsel was ineffective for abandoning the double jeopardy claim and failing to raise it on appeal failed as Custer did not fairly present the ineffective assistance claim to the Oregon Supreme Court and there is no cause to excuse the procedural default.  Dissenting, Judge Ferguson thought that Custer had shown that that he had been subjected to jeopardy for the same offense at both his first and second trials under the original common law test, which remains part of federal law established by the Supreme Court.  Alarcon, Ferguson (dissenting), and Rawlinson (author), Circuit Judges.  AFPD D. Mixon of Medford, OR, for the petitioner;  AAG T. Sylwester of Salem, OR, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

77)  HABEAS CORPUS:  Felix v. Mayle, 02-16614 (9th Cir. Aug. 9, 2004).  Joining the Seventh Circuit's interpretation of Fed. R. Civil Proc. 15(c)(2), the USCA held that when a habeas petitioner challenging a state conviction amends his federal petition to include a new claim, that amendment relates back to the filing date of his petition and thus avoids the one-year limitation period of the Antiterrorism and Effective Death Penalty Act ("AEDPA").  Judge Tallman dissented in part;  he noted that in defining "conduct, transaction, or occurrence" so broadly that any claim stemming from pre-trial motions, the trial, or sentencing relates back to a timely-filed petition, the AEDPA's limitation period is obliterated.  Canby (author), W. Fletcher, and Tallman (dissenting in part), Circuit Judges.  AFD D. Porter of Sacramento, CA, for the petitioner;  DAG M. Chan of Sacramento, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

78)  HABEAS CORPUS:  Brewer v. Hall, 03-55974 (9th Cir. Aug. 4, 2004).  The USCA denied Brewer's petition for writ of habeas corpus, as the California Court of Appeal had not unreasonably applied clearly established federal law in rejecting his challenge to his conviction;  there was no clearly established federal law indicating that the use of California Jury Instruction 17.41.1 was constitutionally improper in Brewer's case.  T.G. Nelson, Tashima, and Fisher (author), Circuit Judges.  S. Lathrop of Torrance, CA, for the petitioner;  DAG D. De Nicola of Los Angeles, CA, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

79)  HABEAS CORPUS:  USA v. Howard, 02-16228 (9th Cir. Aug. 25, 2004).  The USCA reversed the district court's denial of the defendant's habeas petition;  at the time of his guilty plea in district court, he was under the influence of a prescribed narcotic pain-killer due to a leg injury and claims that he did not fully understand the nature and consequence of his plea agreement;  in addition, credible facts supported his ineffective assistance claim as his counsel permitted him, while incompetent, to acquiesce in a plea agreement he had seen for the first time just before he agreed to plea guilty.  Dissenting, Judge Kleinfeld noted that he had a problem with blaming the lawyer here.  He noted that the trial judge learned that the defendant was taking Percocet, and probably should have inquired whether he understood what he was doing;  but, without something in the record to hang the blame for this on the defendant's lawyer, the assistance could not properly be called ineffective.  D.W. Nelson, Kleinfeld (dissenting), and Fisher (author), Circuit Judges.  D. Koch of Seattle, WA, for the defendant;  AUSA H. Brunner of Seattle, WA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

80)  HABEAS CORPUS:  Chavis v. LeMarque, 01-17072 (9th Cir. Aug. 27, 2004)  The USCA reverse the dismissal of defendant-prisoner's federal habeas corpus petition as untimely where the statute of limitations was tolled due to his filing of state habeas petitions.  B. Fletcher (author), Trott, and Fisher, Circuit Judges.  R. Chavis in propria persona;  B. Lockyer of Sacramento, CA, for the respondent-appellee.   (Download the full text of this decision at www.cc9.uscourts.gov/)

81)  PAROLE REVOCATION / REGISTRATION OF SEX OFFENDERS:  Beene v. Terhune, 03-15678 (9th Cir. Aug. 19, 2004).  The USCA upheld the revocation of Beene's parole, for failure to register as a sex offender over Beene's equal protection and due process challenges to the registration requirement.  In 1972, when sixteen years old, Beene was convicted of assault with intent to commit rape and sentenced to five years probation plus a suspended sentence of 15 years in state prison.  There was no record evidence that he had been sentenced as a juvenile.  B. Fletcher (author), Trott, and Fisher, Circuit Judges.  C. Yates of San Francisco, CA, for the plaintiff;  DAG S. Acquisto of Sacramento, CA, for the defendants.   (Download the full text of this decision at www.cc9.uscourts.gov/)

82)  DNA PROFILING:  USA v. Kincade, 02-50380 (9th Cir. Aug. 18, 2004).  The Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders even in the absence of individualized suspicion that they have committed additional crimes.  Judge Gould concurred that Kincade's conviction should be affirmed but thought the USCA should affirm under a "special needs" rather than "totality of the circumstances" theory.  Judge Reinhardt, joined by Pregerson, Kozinski, and Wardlaw, dissented;  they thought the "special needs" doctrine controlled, but would hold that the DNA Act is plainly designed to generate evidence of ordinary criminal wrongdoing and not to serve a supervisory need;  as that is an impermissible purpose under the "special needs" doctrine, they would rule Act unconstitutional.  Dissenting, Judge Kozinski did not agree that the suspicionless extraction of blood to include Kincade's DNA in the CODIS database could be upheld under the Fourth Amendment.  Dissenting, Judge Hawkins thought the DNA Act as implemented—forcible extraction of blood and retention without limitation—violates the Fourth Amendment.  Schroeder, Pregerson, Reinhardt (dissenting), Kozinski (dissenting), O'Scannlain (author), Hawkins (dissenting), Silverman, Wardlaw, Gould (concurring), Clifton, and Callahan, Circuit Judges.  FPD M. Stratton of Los Angeles, CA, for the appellant;  AUSA D. Yang of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

83)  PAROLE:  Brown v. Palmateer, 03-35618 (9th Cir. Aug. 17, 2004).  The Oregon court's dismissal of the petitioner's Ex Post Facto claim was objectively unreasonable where the Oregon State Board of Parole retroactively applied a version of a parole statute enacted after the petitioner's crimes and to the petitioner's detriment in that it postponed his parole release date and the Oregon Supreme Court expressly relied upon Ex Post Facto cases.  Dissenting, Judge Tallman thought the case turned on differing interpretations of state law and that the issue was whether the Board could properly postpone the petitioner's parole under Oregon Rev. Stat. Sec. 144.125, as it was written in 1982, when the petitioner was convicted of child molestation;  if so, no ex post facto violation occurred.  Goodwin (author), W. Fletcher, and Tallman (dissenting), Circuit Judges.  AFPD A. Bornstein of Portland, OR, for the petitioner;  AAG C. Alexander of Salem, OR, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

84)  PRISONERS' RIGHTS:  Rhodes v. Robinson, 03-15335 (9th Cir. Aug. 19, 2004).  The USCA reversed the dismissal of an inmate's claim alleging First Amendment retaliation for his having filed a complaint that sufficiently satisfied pleading requirements by alleging that prison guards destroyed his property and assaulted his person.  O'Scannlain (author), Siler, and Wardlaw, Circuit Judges.  K. Rhodes pro se;  B. Lockyer of Sacramento, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  TAXATION / DECLARATORY RELIEF:  Holliday v. USA, 03-16594 (9th Cir. Aug. 10, 2004) (unpublished).  Skopil, Farris, and Boochever, Circuit Judges. 

       The taxpayers sought declaratory relief and a tax refund for 1991, 1992, and 1993.  The Commissioner of Internal Revenue ("CIR") assessed taxes, penalties and interests for these years.  The taxpayers filed Internal Revenue Form 1040s showing zero tax due, and sought a declaration that they had zero tax liability.  The district court granted the government's motion to dismiss for lack of subject matter jurisdiction.  Reviewing the matter de novo, the USCA held that for sovereign immunity to be waived in a tax refund suit, the taxpayer must pay the assessed taxes before filing a refund suit.  28 USC Sec. 1346(a)(1).  Flora v. USA, 357 US 63, 75 (1958).  The taxpayers here did not allege payment of the assessed taxes or provide any proof of payment.  Moreover, they could not maintain a suit seeking a declaration with respect to federal taxes.  28 USC Sec. 2201(a).  The USCA thus upheld the district court's dismissal.

2)  TAXATION:  Wells v. CIR, 03-73821 (9th Cir. Aug. 20, 2004) (unpublished).  Schroeder, Rawlinson, and Callahan, Circuit Judges. 

       Wells appealed pro se the Tax Court's decision upholding the CIR's determination to proceed with a levy to collect Wells' unpaid 1991 and 1992 federal income taxes totaling $2.25 million.  The USCA affirmed.  Wells' contention that the Tax Court should have remanded his case to the Internal Revenue Service's Office of Appeals failed because he did not demonstrate that he was deprived of any procedural safeguard mandated by statute or regulation.  See 26 USC Sec. 6330 (providing for collections due process hearing by Appeals Office);  26 CFR Sec. 601.106(a)(2) (divesting Appeals Office of authority to negotiate settlement once petition challenging levy determination is docketed in Tax Court).  The USCA rejected Wells' contention that he was deprived of procedural due process when the Tax Court failed to accommodate adequately his hearing impairment because he offered no evidence that the alleged failure to accommodate prejudiced him.  See Alexander Shokai, Inc. v. CIR, 34 F.3d 1480, 1484 (9th Cir. 1994) (due process claim requires showing of prejudice.

3)  TAXATION:  Holguin v. CIR, 03-72916 (9th Cir. Aug. 20, 2004) (unpublished).  Schroeder, Rawlinson, and Callahan, Circuit Judges. 

      Holguin appealed pro se the Tax Court's order granting summary judgment in favor of the CIR, holding that the CIR could proceed with a levy to collect Holguin's 1994, 1995, and 1996 federal income taxes, and imposing sanctions.  Reviewing de novo, the USCA affirmed.  The Tax Court's properly concluded that Holguin was not entitled to challenge his underlying tax liability during his Collection Due Process ("CDP") hearing because he had been sent a statutory notice of deficiency.  26 USC Sec. 6330(c)(2)(B).  The Tax Court properly concluded that the IRS Appeals Officer who conducted the CDP hearing properly verified the existence and propriety of the tax assessments.  26 USC Sec. 6330(c)(1).  Holguin's declaration that he never received the proper statutory notice of assessment and demand for payment did not create a genuine issue of material fact in the face of the CIR's evidence that such notice was sent.  The Tax Court did not abuse its discretion in imposing a $1600 penalty under 26 USC Sec. 6673(a) on the grounds that Holguin's positions were frivolous and that he maintained the proceedings primarily for delay.  See Wolf v. CIR, 4 F.3d 709, 716 (9th Cir. 1993) ("When taxpayers are on notice that they may face sanctions for frivolous litigation, the tax court is within its discretion to award sanctions under section 6673.")

4)  TAXATION:  Mosby v. USA, 03-56464 (9th Cir. Aug. 19, 2004) (unpublished).  Schroeder, Rawlinson, and Callahan, Circuit Judges. 

      Mosby appealed pro se the district court's order dismissing for lack of jurisdiction her action seeking review of the IRS's determination approving levy actions against her.  Reviewing de novo the dismissal for lack of subject matter jurisdiction, the USCA affirmed.  The district court properly dismissed Mosby's action because she sought review of a Decision Letter issued following an "equivalent" Collection Due Process ("CDP") hearing, and such letters are not subject to judicial review under the relevant statute.  26 USC Sec. 6330;  26 CFR Sec. 301.6330-i(i).  Even if Mosby had received a notice of determination following a regular CDP hearing, that determination would have to be appealed within 30 days in the Tax Court.  Mosby sought review in the district court instead, and she did so almost three months after the Decision letter was issues.  See 26 USC Sec. 6330(d)(1).  The USCA found that Mosby's remaining claims lacked merit.  It denied the government's motion for sanctions pursuant to Fed. R. App. P. 38 and 28 USC Sec. 1912.

5)  BANKRUPTCY:  In re Upland Partners,. 02-17433 (9th Cir. Aug. 19, 2004) (unpublished).  Schroeder, Rawlinson, and Callahan, Circuit Judges.

      Ellis, the sole equity security holder of Chapter 11 debtor Upland Partners appealed pro se the district court's judgment dismissing as moot his appeal from the bankruptcy court's order approving the sale of the bankruptcy estate's real property to KRS Development, Inc., and his appeal from the bankruptcy court's preliminary injunction prohibiting Ellis from selling this property in a non-judicial foreclosure action.
The USCA had jurisdiction under 28 USC Sec. 1291 and reviewed mootness de novo.  It affirmed the district court's dismissal.  In appeal 02-17433, the district court properly concluded that Ellis's appeal of the bankruptcy court's order approving the sale of the real property was moot, because the sale and associated transactions had been completed, and Ellis had not obtained a stay pending appeal.  Contrary to Ellis's contention, the bankrptcy court was not required to make an explicit good faith purchaser finding.  Ellis alleged only that the property was undervalued, and the record revealed that the bankruptcy court  considered the value of the property and the purchase price, and found that the "price and terms … are fair, reasonable, in the best interests of the estate , and the best that can be achieved under the circumstances."  In appeal 03-15242, the district court properly concluded that Ellis's appeal of the preliminary injunction was moot, because the real property had been sold, associated transactions had been completed, and no ex-ception to the mootness doctrine applied. 

6)  TRADEMARKS:  Java Jazz, Inc. v. Jazzland, Inc., 03-55496 (9th Cir. Aug. 27, 2004) (unpublished).  Reinhardt and Clifton, Circuit Judges, and Fogel, District Judge.

       The district court conducted a jury trial on Java Jazz's claim that Jazzland had infringed two of Java Jazz's federally registered trademarks.  The jury returned a verdict in favor of Jazzland.  Java Jazz asserted on appeal that the jury's verdict is irrational and likely was the result of confusion caused by the district court's decision to admit evidence of a prior Louisiana trademark registration and failure to give appropriate jury instructions.  Ordinarily, a jury's verdict must be upheld if it is supported by "substantial evidence," which is evidence adequate to support the jury's conclusion even if it is possible to draw a contrary conclusion from the same evidence.  See Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).  Although it is not clear from the briefs, Java Jazz also appears to appeal the district court's denial of its Rule 50(b) motion.  The parties agreed that the proper statement of applicable law with respect to trademark infringement is the likelihood of confusion test set forth in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979).  The district court did not err in concluding that the jury's determination pursuant to the Sleekcraft test was supported by substantial evidence.  For example, despite the strength of Java Jazz's mark and the fact that both parties used the term "Jazzland," there was virtually no evidence of actual confusion, overlapping marketing, or likelihood of expansion of the parties' product lines.  The jury could have concluded that a consumer would not be likely to assume that products purchases or services provided by Java Jazz's cafés and restaurants were associated with, or sponsored by, the Jazzland amusement part.  The jury rationally could have believed that consumers who entered a Java Jazz café likely would have thought that any products or services associated with the "Jazzland" name were not provided by the amusement park.  The jury also could have concluded that there would not have been confusion inside the amusement park once the Louisiana residents were exposed to Java Jazz's products and services.  The Sleekcraft factors are non-exclusive;  the jury determines whether there is a likelihood of confusion and not whether any one factor is satisfied.  The district court properly instructed the jury as to this rule.  Java Jazz's Supplemental Excerpt of the Record ("SER"), pp. 118-19.  Because the jury's verdict is supported by substantial evidence, the district court did not err in denying Java Jazz's Rule 50(b) motion.  Nor did the district court err in permitting Jazzland to introduce evidence of its prior registration of the "Jazzland" mark in Louisiana.  Evidence of the Louisiana registration clearly was relevant to Jazzland's defense.  It supported Jazzland's contention that it did not willfully infringe, see, e.g., SER, p. 19-20, and it also was relevant to the validity of Java Jazz's federal registration, as the Louisiana registration was obtained before Java Jazz filed an application for the federal registration.  It is true that Java Jazz could have adopted its mark even with knowledge of a prior state reg-istration, believing that it could prevail against Jazzland in litigation.  At the same time, the jury could have concluded that Java Jazz was willing to base its business on a name previously subject to registration in an-other market because Java Jazz itself did not think consumers would be confused.  Additionally, as noted above, there is sufficient evidence to support the jury's verdict even absent consideration of the Louisiana registration.  Because potential prejudice of confusion resulting from admission of evidence of the Louisiana registration did not substantially outweigh the probative value of such evidence, the district court did not abuse its discretion in admitting it.

        Java Jazz also maintained that the district court erred by not giving the jury a specific instruction limiting evidence of the Louisiana registration to the issue of willful infringement.  However, there was no indication in the record that Java Jazz ever requested such a limiting instruction.  The district court did not abuse its discretion by not providing a limiting instruction sua sponte.  The district court formulated the jury instructions so that they clearly stated the likelihood of confusion test, fairly and adequately covered the issued presented, and were not misleading.  The jury instructions did not conflate the likelihood of confusion test with issues relating to the Louisiana registration.  Finally, the district court did not err in refusing to give Java Jazz's requested special jury instruction No. 1.  "A court is not required to sue the exact words proposed by a party, incorporate every proposition of law suggested by counsel or amplify an instruction if the instructions as given allowed the jury to determine intelligently the issues presented."  Los Angeles Me-orial Coliseum Comm'n v. Nat'l Football League, 726 F.2d 1381, 1398 (9th Cir. 1984).  An error in jury instructions does not necessitate reversal if it is more probable than not that the error was harmless.  Jenkins v. Union Pac. R. Co., 22 F.3d 206, 210 (9th Cir. 1994).  Java Jazz's requested instruction stated that a plain-tiff can be awarded a defendant's profits as damages even if the parties were not direct competitors.  Java Jazz claims that the district court's failure to give the instruction caused the jury to apply the likelihood of confusion test erroneously.  However, it is clear from the face of the instructions actually given by the district court that the jury was instructed to consider issues relating to damages only if it found infringement.  The district court first issued instructions concerning the likelihood of confusion test.  The instructions included Sleekcraft's list of non-exclusive factors.  No instruction included a requirement of direct competition.  Additionally, the district court instructed the jury that "the presence or absence of any particular factor concerning confusion that I suggest should not necessarily resolve whether there was a likelihood of confusion because you must consider all relevant evidence in determining this.  After describing the likelihood of confusion test, the district court instructed the jury on damages, first stating:  "if you find for plaintiff on plaintiff's infringement claim, you must determine plaintiff's damages.  Part of the instructions on damages read:  "In addition to actual damages, the plaintiff is entitled to any profits earned by the defendants that are attributable to the infringement, which the plaintiff provides by a preponderance of the evidence.  You may not, however, include in any award of profits any amount that you took into account in determining actual damages."  While the jury was not instructed explicitly that it could find for Java Jazz if it determined that Java Jazz and Jazzland were not direct competitors, such an instruction was not required to state the applicable law.  The Sleekcraft analysis and the "Likelihood of Confusion" instructions do not require a showing of direct competition between Java Jazz and Jazzland as one of the non-exclusive factors in determining whether infringement exists, and none of the instructions given by the district court stated or even implied that direct competition is an element of infringement.  The district court's refusal to give Java Jazz's requested instructions thus was not erroneous. 

7)  TRADEMARKS:  Trovan Ltd v. Pfizer, Inc., 03-56346 (9th Cir. Aug. 19, 2004) (unpublished).  Reinhardt and Clifton, Circuit Judges, and Fogel, District Judge.

       Trovan, a company primarily involved in producing electronic tracking devices, sued Pfizer for marketing an antibiotic under the name "Trovan."  The district court granted summary judgment in favor of Pfizer on the ground that because the two product lines were wholly unrelated, there was no likelihood of consumer confusion.  Upon assessing the factors identified by AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 349-49 (9th Cir. 1979), the USCA agreed with the district court's conclusion that consumer confusion was unlikely as a matter of law.  The USCA thus affirmed.  In assessing the likelihood of confusion in reverse confusion cases, the question to be asked is whether consumers doing business with the senior user [Trovan] might mistakenly believe that they are dealing with the junior user [Pfizer].  Id at 1130.  To prevail on the likelihood of confusion inquiry, a plaintiff must show that confusion is "probable," not merely "possible."  Murry v. CNBC, 86 F.3d 858, 861 (9th Cir. 1986).  Applying the Sleekcraft factors, it is apparent that consumer confusion was not probably here:  First, as a fanciful mark, "Trovan" as used by Trovan, Ltd. is entitled to broad protection.  Second, the district court correctly determined that Pfizer's antibiotic was unrelated to Trovan Ltd.'s various products.  Trovan produced tracking devices.  Pfizer's product was a human antibiotic.  There was little evidence that Trovan was using any of its products to administer antibiotics to animals, and no evidence that it even administered antibiotics to humans.  Indeed, the only evidence of Trovan's intention to enter the antibiotic field was of recent vintage, postdating the time that Trovan became aware that Pfizer intended to market an antibiotic named "Trovan."  Third, while the word "Trovan" was used in both marks, the similarity was reduced by the fact that Pfizer also used its housemark in conjunction with the sale of its antibiotic.  Forth, there was no evidence of actual confusion on the part of Trovan Ltd.'s customers.  What evidence Trovan adduced at the first trial was demonstrated to be fraudulent.  As Sleekcraft noted, the absence of evidence can be weighed heavily "when the particular circumstances indicates that such evidence should have been available."  599 F.2d at 353.  Pfizer submitted evidence that not a single Trovan, Ltd. customer contacted it in confusion.  Fifth, Pfizer did not market its antibiotic through the same channels or to the same customers as Trovan marketed its products.  As the district court correctly noted, the proper inquiry is where Pfizer marketed the infringing antibiotic, not where it marketed its products in general.  Pfizer directed its marketing of the antibiotic to medical professionals and others with an interest in healthcare.  Trovan, Ltd. marketed its products to veterinarians, zookeepers, and agricultural interests.  Sixth,  "when the buyer has expertise in the field, a higher standard is proper though it will not preclude a finding that confusion is likely."  599 F.2d at 353.  Trovan, Ltd.'s customers no doubt exercised care in selecting their electronic tagging devices.  It seems unlikely that a veterinarian incidentally heard about Pfizer's antibiotic and subsequently thought that Pfizer produced the transponders bearing the same name.  Seventh,  where an alleged infringer adopts a mark "with the intent of deriving benefits from the reputation of the [earlier mark], its intent may be sufficient to justify the inference that there are confusing similari-ties."  Brookfield Communications, Inc. v. West Coast Ent. Corp., 174 F.3d 1036, 1059 (9th Cir. 1999).  Where the infringer adopts with mere knowledge, this factor also weighs in the plaintiff's favor, but not as strongly.  Id.  Trovan did not allege that Pfizer adopted the name attempting to trade on Trovan Ltd.'s reputation.  Eighth, "a strong possibility of expansion into competing markets weighs in favor of finding infringement."  E&J Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1293 (9th Cir. 1992).  Subsequent to the filing of its lawsuit, Trovan asserted that it fully intended to expand into the field of human pharmaceuticals.  The assertion that the company genuinely developed such an interest (but only subsequent to filing its infringement lawsuit) must be viewed skeptically.  "When a senior user of a mark on product line A expands later into product line B and finds an intervening user, priority in product line B is determined by whether the expansion is 'natural' in that customers would have been confused as to source or affiliation at the time of the intervening user's appearance."  174 F.3d at 1051.  Trovan Ltd.'s potential expansion into human pharmaceuticals was not natural.
 In sum, the district court properly granted summary judgment to Pfizer because the two companies' products were unrelated, and none of the other Sleekcraft factors warranted a finding that there was a genuine issue of material fact as to the likelihood that Trovan, Ltd.'s customers would be confused about whether or not they were actually dealing with Pfizer.