1)  TAXATION:  Addis v. CIR, 02-73628 (9th Cir. July 8, 2004).  The petitioners unsuccessfully appealed a tax court decision denying them deductions for payments to the National Heritage Fund.  26 USC Sec. 170(f)(8) disallows the deductions as the receipts substantiating the payments state that the petitioner received no consideration though they expected the Fund to use the payments to pay part of the premiums on life insurance benefiting their trust pursuant to a split-dollar arrangement.  Canby, Noonan (author), and Thomas, Circuit Judges.  S. Toscher of Beverly Hills, CA, for the petitioners;  S. Parks of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  TAXATION:  Metro Leasing and Development Corp. v. CIR, 02-73933 (9th Cir. July 23, 2004).  The USCA held that the Tax Court properly determined the amount of a corporate officer's salary that may be deducted as a reasonable business expense, and that a paid, but contested, federal income tax does not accrue in the taxable year in which it was originally assessed for purposes of the accumulated earnings tax penalty of 26 USC Sec. 535(b)(1).  Schroeder, Tallman (author), and Callahan, Circuit Judges.  B. Raby of Tempe, WA, for the petitioners;  A. Tebbets of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  BANKRUPTCY:  In re Strand, 03-15431 (9th Cir. July 9, 2004).  The bankruptcy court properly cut the fees awarded to counsel for a Chapter 7 trustee and did not abuse its discretion in concluding that he had pursued litigation which was neither reasonable nor necessary;  interim fee awards and expenses under 11 USC Sec. 331 are subject to reexamination and adjustment by the bankruptcy court during the case.  B. Fletcher, Trott (author), and Fisher, Circuit Judges. B. Leichty pro se;  J. Lodge of Washington, DC, for the trustee. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  BANKRUPTCY LAW:  Cellular 101 v. Channel Communications, 02-56772 (9th Cir. July 28, 2004).  The USCA upheld the bankruptcy court's grant of defendants' administrative expense claim filed under 11 USC Sec. 503(b) over the plaintiff's challenges that the defendants did not satisfy the basic requirements of Sec. 503(b) and that their claim failed because the defendants acted in their own interest.  Concurring, Judge Brunetti wrote separately to note that on the facts of this case he would go one step further and hold that a creditor's motivation is not dispositive or even relevant in deciding whether to grant a Sec. 503(b) claim.  B. Fletcher, Pregerson, and Brunetti (author and concurring), Circuit Judges.  T. Trager of Santa Barbara, CA, for the appellant;  V. Kaufman of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  DEBT COLLECTION:  Lockhart v. USA,. 02-35759 (9th Cir. July 23, 2004).  The plaintiff unsuccessfully challenged the dismissal of his complaint because an amendment to the Debt Collection Act no longer protects Social Security Benefits from offset and allows the government to collect on education debts.  Noonan (author), Wardlaw, and Paez, Circuit Judges.  W. Jordan-Curtis of Tucson, AZ, for the plaintiff;  AUSA P. Lynch of Tacoma, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  COPYRIGHTS:  Swirsky v. Carey, 03-55033 (9th Cir. July 12, 2004).  The USCA reversed summary judgment for the defendants, finding that the plaintiff's evidence was sufficient to present a triable issue regarding the extrinsic similarity of the two songs in question, and that the district court's ruling to the contrary was based on too mechanical an application of the extrinsic test.  Canby (author), Noonan, and Thomas, Circuit Judges.  J. Freund of Beverly Hills, CA, for the plaintiffs;  R. Dudnik of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  TRADEMARK:  PlayMakers LLC v. ESPN, 04-35031 (9th Cir. July 15, 2004).  In a trademark infringement action concerning the mark "PLAYMAKERS," used by both a sports TV network and a sports agent, the district court denied the plaintiff's motion for a preliminary injunction and the USCA affirmed, finding that balancing of hardships did not tip sharply in favor of granting an injunction;  the likelihood of confusion was not great due to the remoteness of the parties' lines of business and the differences in their choices of marketing channels, and the care athletes likely exercise in choosing an agent.  Pregerson (author), Thompson, and Callahan, Circuit Judges.  O.Y. Lewis of Seattle, WA, for the plaintiff-appellant;  R. Raskoph of New York, NY, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 8)  COMMUNICATIONS LAW:  Opera Plaza Residential Parcel Homeowners Association v. Hoang, 02-16682 (9th Cir. July 12, 2004).  Section 207 of the Telecommunications Act of 1996 does not confer jurisdiction on the federal courts to hear a routine suit by a condominium owners association to enforce its rules against the placement of a satellite television dish in common areas.  Hawkins, Silverman (author), and Bybee, Circuit Judges.  B. Bickel of Piedmont, CA, for the plaintiff-appellant;  no attorney listed for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  ENVIRONMENTAL LAW:  Safe Air For Everyone v. Meyer, 02-35751 (9th Cir. July 1, 2004).  At issue here was whether grass residue remaining after a Kentucky bluegrass harvest is "solid waste" within the meaning of the Resource Conservation Recovery Act, 42 USC Sec. 6972(a)(1)(B).  The plaintiff appealed the district court's dismissal of its complaint for injunctive relief.  The USCA concluded that the district court erred in the dismissing the case on jurisdictional grounds;  however, it affirmed the district court's judgment since the plaintiff failed to show that a genuine issue of material fact existed as to whether grass residue is "solid waste" under the Act.  Dissenting in part, Judge Paez would reverse the district court's judgment in favor of the growers and remand for trial because the definitions of the terms "solid waste," "disposal," "treatment," and "handling," together with undisputed facts regarding the need to remove the post-harvest crop residue, made it apparent that the Act applies to the burning of the post-harvest crop residue;  Judge Paez thus thought that the Growers' practice of burning the post-harvest crop residue constituted handling or treatment of solid waste within the meaning of the Act.  Wardlaw, Gould (author), and Paez (dissenting in part), Circuit Judges.  J. Gross of Washington, DC, for the plaintiff;  G. Baise of Washington, DC, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  ENVIRONMENTAL LAW:  WaterKeepers Northern California v. AG Industrial Mfg., Inc., 03-15023 (9th Cir. July 16, 2004).  WaterKeepers Northern California and Bill Jennings appealed the district court's dismissal of their Clean Water Act suit for lack of jurisdiction.  The USCA reversed the dismissal, finding that the long and detailed intent-to-sue letter provided sufficient notice of plaintiff's claims even though it lacked the dates of the violations;  because it is clear under Supreme Court and Ninth Circuit precedent that the district court has jurisdiction over nearly all of WaterKeepers claims, the USCA could not say that defendant AG Industrial is a prevailing party entitled to attorney's fees under the Act;  the USCA thus affirmed the district court's denial of fees  B. Fletcher (author) and Reinhardt, Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge. A. Packard of San Francisco, CA, for the plaintiffs-appellants;  D. Hauser of Woodbridge, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  ENVIRONMENTAL LAW:  Westlands Water District v. U.S. Dept. of the Interior and the Hoopa Valley Tribe, 03-15194 (9th Cir. July 13, 2004).  For 40 years, most of the Trinity River's water has been diverted to the Sacramento River basin.  Congress mandated that some of that water be returned to the Trinity River in order to revive its chinook salmon, coho salmon, and steelhead trout populations, which have been decimated by the decades of reduced water flows.  California municipal water agencies and power districts challenged the plan to redirect Trinity River water, arguing that the procedural requirements of the National Environmental Policy Act were not met.  The district court enjoined parts of the restoration program, mandated that non-flow restoration measures be implemented, and ordered the federal agencies to supplement their Environmental Impact Statement to cover issues neglected or inadequately addressed in previous studies.  The USCA affirmed in part and reversed in part.  It reversed the conclusion that the scope of the EIS and the range of alternatives considered therein was unreasonable.  It also reversed the district court's injunctive orders to supplement the EIS to address the issues raised on appeal.  It affirmed the district court's ruling that two of the mitigation measures insisted upon by the Fish and Wildlife Service and the National Marine Fisheries Service in their biological opinions exceeded the statutory authority for such opinions. Finally, the USCA rejected three claims raised by the plaintiffs on cross-appeal and affirmed the remainder of the judgment.  Goodwin (author), Tashima, and Clifton, Circuit Judges.  K. Barton of Washington, DC, for the defendants-appellants;  T. Schlosser of Seattle, WA, for the defendant-intervenors Hoopa Valley Tribe;  E. Robinson of Sacramento, CA, for the plaintiffs-appellees water agencies;  K. Drumm of San Francisco, CA, for the plaintiff-intervenor Northern California Power Agency. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ENVIRONMENTAL LAW:  Cold Mountain v. Garber, 03-35474 (9th Cir. July 14, 2004).  The U.S. Forest Service's issuance of a permit to operate a bison capture facility in Montana violated neither the Endangered Species Act nor the National Environmental Policy Act.  O'Scannlain (author), Rymer, and Bybee, Circuit Judges.  T. Woodbury of Missoula, MT, for the plaintiffs-appellants;  AAG T. Sansonetti of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  PUBLIC UTILITIES:  California v. Dynegy, Inc., 02-16619 (9th Cir. July 6, 2004).  Federal removal jurisdiction lies over California state court actions alleging that several power companies fraudulently failed to deliver reserve power which might otherwise have helped to avert the state’s energy crises of 2000 and 2001.  Hall, O'Scannlain (author), and Leavy, Circuit Judges.  DAG T. Pachter of San Francisco, CA, for the appellant;  T. Houlihan and J. Grenfell of San Francisco, CA, and D. Peterson of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  PUBLIC UTILITIES:  Verizon Delaware, Inc. v. Covad Communications Co., 03-15453 (9th Cir. July 27, 2004).  In a dispute between telecommunication companies, the USCA agreed with the district court that the "filed rate" doctrine prevents the recovery of charges not specified in the relevant tariffs;  however, the USCA found that there is no barrier to the plaintiffs suing to enforce what they have filed;  it also found that the summary judgment against Covad's counterclaim was improper because Covad had been given neither adequate notice that the sufficiency of its claims would be at issue nor an opportunity to respond.  Reinhardt, Noonan (author), and Paez, Circuit Judges.  J. Thorne of Arlington, VA, for the plaintiffs-appellants;  M. Hirsh of Washington, DC, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  PUBLIC UTILITIES:  AT&T Communications of California v. Pac Bell Telephone Co., 02-16751 (9th Cir. July 14, 2004).  At issue was whether the California PUC correctly determined the price that Pacific Bell Telephone Company may charge its competitors for access to its local telephone network, pursuant to the Telecommunications Act of 1996 and the FCC's implementing regulations.  The USCA held that although the general methodology chosen by the CPUC to calculate a "common cost" markup was appropriate, the CPUC improperly implemented its methodology by attributing some common costs to wholesale operations that should have been attributed to retail operations. The USCA reversed the amount of common costs that the competitors must pay for access to defendant's network.  Canby, W. Fletcher (author), and Tallman, Circuit Judges.  M. DeSanctis of Washington, DC, for the plaintiffs;  C. Barrad of Los Angeles, CA, for the appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  LABOR LAW:  Watkins v. Ameripride Services, 02-56082 (9th Cir. July 6, 2004).  The USCA found that there existed a material issue of fact in the record regarding the extent to which deliveries made by the plaintiff while an Ameripride employee were of an interstate character within the meaning of the motor carrier exemption to California's overtime pay requirements;  due to this material issue of fact, summary judgment on the plaintiff's overtime claim was inappropriate.  The district court did properly entered judgment in favor of Ameripride on the plaintiff's reasonable accommodation claim.  While he fully concurred in the decision, Judge Fletcher wrote separately to point out a potentially relevant legal issue that was neither argued nor decided: namely, that California's motor carrier exemption was analogous to the Motor Carrier act exemption under the federal Fair Labor Standards Act.  Silverman, W. Fletcher (concurring), and Rawlinson (author), Circuit Judges.  L. Ownbey of Pasadena, CA, for the plaintiff-appellant;  C. Woo of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  EMPLOYMENT DISCRIMINATION:  Fonseca v. Sysco Food Services, 03-15193 (9th Cir. July 6, 2004).  The USCA reversed the district court's summary judgment for the defendant because the pro se plaintiff’s claims alleging discrimination by his employer under Title VII on the basis of his Hispanic race and Guatemalan ethnicity presented a prima facie case;  the district court abused its discretion when it excluded all of the plaintiff's evidence, and there were genuine issue of material fact which preclude summary judgment on his disparate treatment claims.  B. Fletcher (author) and Reinhardt, Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge. S. Fonseca in propria persona;  C. Fine of Phoenix, AZ, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  EMPLOYMENT LAW:  Elvig v. Calvin Presbyterian Church, 02-35805 (9th Cir. July 23, 2004).  The plaintiff, an ordained Presbyterian minister, brought claims under Title VII against her employer, the Calvin Presbyterian Church, North Puget Sound Presbytery and her supervisor Pastor Ackles;  she alleged that she was sexually harassed and retaliated against by the defendants.  The district court dismissed her complaint, concluding that her Title VII claims fell within the scope of the "ministerial exception" to Title VII. This exception saves Title VII from unconstitutionality under the First Amendment by requiring that Title VII suits be dismissed when they would impermissibly encroach upon the free exercise rights of churches or excessively entangle government and religion.  Applying Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir. 1999), the USCA reversed and remanded.  Under the ministerial exception, a church's decision about whom to employ as a minister are protected by the First Amendment.  Thus to the extent the plaintiff's sexual harassment and retaliation claims implicate the Church's ministerial employment decision, those claims are foreclosed;  nevertheless, the plaintiff has stated narrower and thus viable sexual harassment and retaliation claims that do not implicate protected employment decisions.   She may succeed in these claims if she proves a hostile work environment and that she suffered from retaliatory harassment.  Concurring, Judge Gould thought that that the majority's decision follows persuasively from Bollard, but he has misgivings as to whether Bollard was correctly decided.  Dissenting, Judge Trott thought that relevant facts and circumstances at the center of this case materially distinguished it from Bollard.  Trott (dissenting), Fisher (author), and Gould (concurring), Circuit Judges.  J. Lonnquist of Seattle, WA, for the plaintiff-appellant;  E. Reeve of Seattle, WA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  EMPLOYMENT LAW:  Werft v. Desert Southwest Annual Conference of the United Methodist Church, 03-15545 (9th Cir. July 30, 2004).  At issue here was whether the claim of a minister, seeking damages from his church for employment discrimination based on a failure to accommodate his disabilities, falls within either the ministerial exception articulated in McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972), or the theory of Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir. 1999) (sexual harassment claims fall outside ministerial exception).  The USCA held that the ministerial exception applies to the plaintiff's claims and thus that the Free Exercise Clause bars this suit.  Fernandez, Thomas, and Callahan, Circuit Judges. Per Curiam.  D. Abney of Mesa, AZ, for the plaintiff-appellant;  G. Lewis of Phoenix, AZ, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  PROPERTY LAW / TAKINGS:  Cashman v. City of Cotati, 03-15066 (9th Cir. July 15, 2004).  A rent control ordinance adopted by the City of Cotati in California, the Mobilehome Park Space Rent Stabilization Program, effects a regulatory taking in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution;  the ordinance does not prevent incumbent tenants from capturing a premium and does not substantially further the City's interests, including that of maintaining affordable housing. Dissenting, Judge Fletcher thought that under the majority's ruling, what was the trigger for the "substantially advances" test has itself become the test, and that if there is a possibility that tenants will capture a premium, or even part of a premium, that possibility in and of itself renders a rent control ordinance unconstitutional.  Alarcon, Beezer (author), and W. Fletcher (dissenting), Circuit Judges.  R.S. Radford of Sacramento, CA, for the appellants;  D. Lincoln of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  FAMILY LAW:  USA v. Stephens, 03-10359 (9th Cir. July 7, 2004).  Pursuant to the Child Support Recovery Act of 1992, the district court properly required the defendant to pay interest on past-due child support, and properly calculated the amounts.  It also correctly ruled that a portion of the restitution should be paid to the State of Georgia, but only after the child's mother is paid in full.  Graber and W. Fletcher (author), Circuit Judges, and Weiner, District Judge  M. Paige of Phoenix, AZ, for the defendant-appellant;  P. Sexton of Phoenix, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  FAMILY LAW:  Gagan v. Sharar, 02-15449 (9th Cir. July 22, 2004).  A judgment obtained in a common law state, where only one spouse was named in the underlying action, may be executed on the community property of both spouses, in Arizona, if the judgment is for a community obligation, despite the failure to name the other spouse in the action filed outside of Arizona.  Canby, Kleinfeld (author), and Rawlinson, Circuit Judges.  D. Ostlund of Phoenix, AZ, for the appellant;  C. Yast of Northfield, IL, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  HEALTH LAW:  Planned Parenthood of Idaho, Inc. v. Wasden, 02-35700 (9th Cir. July 16, 2004).  In a case involving an Idaho law governing minors' access to abortion services, the USCA found the statute's definition of "medical emergency" to be unconstitutionally narrow, and that without an adequate medical exception, the parental consent statute is invalid.  Hawkins, McKeown, and Berzon (author), Circuit Judges.  H. Krasnoff of Washington, DC, for the plaintiffs;  DAG C. Minor of Boise, ID, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  HEALTH INSURANCE:  Carter v. Health Net of California, 03-15544 (9th Cir. July 6, 2004).  The district court lacked subject matter jurisdiction under the Federal Arbitration Act to vacate an arbitration award against an insurer because the case did not present a federal question;  the petition to confirm the award was brought in state court, primarily invoked provisions of state arbitration law, and the petition to vacate relied solely on state law, and neither petition raised a substantial issue of federal law.  The USCA remanded the case to the district court for remand to state court.  B. Fletcher (author), Trott, and Fisher, Circuit Judges.  J. Ochrach of Roseville, CA, for the plaintiffs;  L. Rose of San Francisco, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  ATTORNEYS' FEES / INDIVIDUALS WITH DISABILITIES EDUCATION ACT:  Shapiro v. Paradise Valley Unified School District, No. 69, 02-16786 (9th Cir. July 6, 2004).  The USCA upheld the exclusion of attorney's fees for work performed by plaintiff's attorney before he was admitted to practice pro hac vice in Arizona state court in a case involving the Individuals with Disabilities Education Act (IDEA) and seeking review of the educational program offered the plaintiff by the defendant, Paradise Valley Unified School District, No. 69 ("PVUSD").  Arizona Supreme Court rules requiring admission pro hac vice for attorneys who are not members of the State Bar of Arizona cannot be waived by oral consent;  the plaintiff clearly was the prevailing party for purposes of recovering attorney's fees under the IDEA, and the PVUSD failed to offer any evidence to support its assertion that the district court abused its discretion in determining the amount of attorney's fees.  Tashima (author) and Clifton, Circuit Judges, and Leighton, District Judge.  S. Walker of Beachwood, OH, for the plaintiff-appellant;  G. Lassen of Phoenix, AZ, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  SANCTIONS / ATTORNEYS' FEES:  Aloe Vera of America, Inc. v. USA, 03-15265 (9th Cir. July 19, 2004).  In 1997, BNA published an article disclosing that the IRS and National Tax Administration of Japan ("NTA") had begun an audit of the plaintiffs, Aloe Vera and related companies;  Aloe Vera wrote BNA in protest and demanded that BNA identify its sources.  Eventually, BNA and Aloe Vera entered into a settlement agreement under which, although BNA would not identify its sources, it agreed to provide Aloe Vera with certain other confidential information;  in turn, Aloe Vera agreed to release BNA from liability for the article and to keep confidential the settlement agreement and BNA disclosures.  In 1998, Aloe Vera sued the United States, claiming that the IRS had disclosed its tax return information to NTA and sought damages for disclosure to an insecure recipient and disclosure of false information.  BNA intervened and filed a motion for a protective order prohibiting disclosure of the settlement agreement or the information BNA had disclosed to Aloe Vera.  A protracted struggle between the parties ensued, ending with the district court imposing sanctions on Aloe Vera.  The USCA held that in light of Aloe Vera's willful and repeated disobedience of a district court order, the district court did not abuse its discretion in imposing sanctions in the amount of BNA's attorneys' fees and costs incurred as a direct result of these violations.  In addition, because it found Aloe Vera's appeal to be vexatious, it held that awarding BNA attorneys' fees for defending this frivolous was also warranted.  It thus gave the Aloe Vera 14 days to show cause in writing why it should not award attorneys' fees to BNA under Fed. R. App. P. 38 because Aloe Vera's appeal was frivolous, the results were obvious, and the arguments of error were wholly without merit.  Wallace, Kozinski, and Graber, Circuit Judges.  Per Curiam.  R. Miles of Phoenix, AZ, for the plaintiffs-appellants;  D. Bodney of Phoenix, AZ, for the intervenors-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  DEFAULT JUDGMENTS:  Franchise Holding II v. Huntington Restaurants Group, Inc., 03-15434 (9th Cir. July 20, 2004).  The USCA upheld the district court's denial of the defendant's motion to set aside an entry of default judgment and a default judgment, finding that the denial fell squarely within the court's discretion because the defendant did not evidence any attempt to defend itself and did not even appear in the district court;  the defendant made no effort to preserve its interests in the district court until Franchise Holding began collecting on the default judgment.  Schroeder, Tallman, and Callahan (author), Circuit Judges.  R. Stumpf of San Francisco, CA, for the appellants;  K. Myles of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  CONSTITUTIONAL LAW:  USA v. Rivera-Guerrero, 04-50115 (9th Cir. July 20, 2004).  The USCA reversed a magistrate judge's order authorizing the involuntary administration of medication for the purpose of making a defendant competent to stand trial;  the magistrate judge lacked the authority to issue the order;  an involuntary medication order is not the type of pretrial mater the Federal Magistrates Act permits district courts to delegate to the final authority of a magistrate judge.  D.W. Nelson (author), Gibson, and Graber, Circuit Judges.  A. Krueger of San Diego, CA, for the defendant;  AUSA G. Heenan of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  CONSTITUTIONAL LAW / EDUCATION LAW: Parents Involved In Community Schools v. Seattle School District, No. 1, 01-35450 (9th Cir. July 27, 2004).  A school district's use of race to determine which student applicants will be admitted to oversubscribed high schools violates the federal Equal Protection Clause.  Dissenting, Judge Graber thought that the plan adopted by the Seattle school district for high school assignments was constitutional notwithstanding its inclusion of a racial-tiebreaker procedure for choosing which student applicants it will admit to the City's most popular high schools. Reavley, O'Scannlain (author), and Graber (dissenting), Circuit Judges.  D. Ritter of Seattle, WA, for the plaintiff;  M. Madden of Seattle, WA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  CONSTITUTIONAL LAW:  Squaw Valley Development Company v. Goldberg, 02-17346 (9th Cir. July 20, 2004).  The plaintiffs, Squaw Valley Development Company, Squaw Valley Ski Corporation, and Squaw Valley Preserve, alleged that two employees of the California Regional Water Quality Control Board, Lahontan Region, subjected them to selective and over-zealous regulatory oversight in violation of equal protection and substantive due process laws;  the district court entered summary judgment for Board employees Singer and Goldberg on the ground that they were entitled to qualified immunity because there was no triable issue of material fact that a constitutional violation had been committed.  Because the plaintiffs presented evidence that Singer may have been motivated by personal animus, the USCA reversed the summary judgment as to the plaintiffs' "class of one" equal protection claim against Singer, but affirmed on the remaining claims.  Tashima (author) and Clifton, Circuit Judges, and Leighton, District Judge.  G. Robertson of Reno, NV, for the plaintiffs-appellants;  DAG J. Richards of Oakland, CA, for the defendants-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  CIVIL PROCEDURE / CIVIL RIGHTS:  Maduka v. Sunrise Hospital, 03-15332 (9th Cir. July 15, 2004).  Sunrise Hospital hired Maduka, an American of African ancestry, as an anesthesiologist in 1997;  shortly after completing the hospital's monitorship program, Maduka was involved in two incidents that prompted the revocation of his staff privileges.  Maduka filed a federal civil rights action against the hospital alleging discrimination based on race.  The district court dismissed the complaint pursuant to Fed. R. Civ. Proc. 12(b)(6) for failure to state claim upon which relief could be granted;  the USCA reversed, finding that Maduka's conclusory allegations of racial discrimination were sufficient to move the case forward.  The USCA noted that to survive a Rule 12(b)(6) motion to dismiss, a complaint asserting a claim for employment discrimination pursuant to 42 USC Sec. 1981 must contain only a short and plain statement of the claim showing that the pleader is entitled to relief.  Fed. R. Civ. P. 8(a)(2).  However, the USCA found that the district court had not followed the teaching of Swierkiewicz v. Sorema N.A., 534 US 506 (2002), that the Federal Rules do not contain a heightened pleading standard for employment discrimination suits.  The USCA thus reversed and remanded so that the district court may, in the first instance, determine whether Maduka's complaint satisfied the simply requirements of Rule 8(a).  Wallace (author), Kozinski, and Thomas, Circuit Judges.  R. Scarlett of San Francisco, CA, for the plaintiff-appellant;  J. Bailey of Las Vegas, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  AMERICANS WITH DISABILITIES ACT:  Disability Rights Action Committee v. Las Vegas Events, 02-17163 (9th Cir. July 13, 2004).  In an action brought under the Americans with Disabilities Act, the USCA held that the private groups staging the National Finals Rodeo at a publicly-owned arena in Las Vegas did "operate" that facility and thus could be sued under Title III of the ADA for failure to make a place of public accommodation accessible for disabled individuals.  Hawkins, Paez, and Berzon (author), Circuit Judges.  R. Armknecht of Lindon, UT, for the plaintiff-appellant;  E. Youchah of Las Vegas, NV, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  IMMIGRATION:  Sabangan v. Powell, 03-16426 (9th Cir. July 1, 2004).  The plaintiffs appealed the judgment of the district court against them in their suit to establish that they are U.S. citizens entitled to U.S. passports.  Under the Fourteenth Amendment as applied to the Commonwealth of the Northern Mariana Islands, where the plaintiffs were born, the plaintiffs are citizens of the U.S. and entitled to U.S. passports.  Farris, Noonan (author), and Rawlinson, Circuit Judges.  R. Yana of Saipan, CNMI, for the plaintiffs;  AUSA G. Baka of Saipan, CNMI, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION:  USA v. Rivera-Sillas, 03-50244 (9th Cir. July 15, 2004).  The USCA affirmed the denial of motions to dismiss the underlying indictment;  consistent with prior rulings of the Fifth and Ninth Circuits, the USCA held that the defendant's general intent to reenter the U.S. may be inferred from the fact that he previously was deported and subsequently was found in the United States.  Thus because the indictment alleged that the defendant was "deported, removed, and subsequently present without consent of the Attorney General," it "fairly conveyed" that his presence was a voluntary act.  T.G. Nelson (author), Tashima, and Fisher, Circuit Judges.  S. Barth of San Diego, CA, for the defendant;  AUSA J. Huynh for San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  IMMIGRATION:  Juarez v. Ashcroft, 02-72506 (9th Cir. July 19, 2004).  In this pre-Illegal Immigration Reform and Immigrant Responsibility Act case, the USCA reversed the denial of petitioner's motion to reopen her deportation case, finding that because she has U.S. citizen children and strong ties to the community, compelling circumstances supported a remand for consideration of her application for a suspension of deportation. Goodwin, Pregerson (author), and Tallman, Circuit Judges.  R. Godinez of Los Angeles, CA, for the petitioner;  L. Perez of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  IMMIGRATION:  USA v. Ortega-Ascanio, 03-50096 (9th Cir. July 15, 2004).  In this illegal reentry case, the USCA found that the defendant established a "fair and just reason" for withdrawing a plea when he sought to withdraw his plea before sentencing so that he could move to dismiss his indictment based on an intervening Supreme Court decision.  McKeown and Bybee, Circuit Judges, and Breyer (author), District Judge.  M. Stratton of Los Angeles, CA, for the defendant;  D. Saunders of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  IMMIGRATION:  Khup v. Ashcroft, 02-74059 (9th Cir. July 16, 2004).  The USCA reversed the BIA's denial of the petitioner's applications for asylum, withholding of removal, and protection of the Convention Against Torture;  the USCA granted the petition for review because the record compelled a finding that the plaintiff had suffered from past persecution and was more likely than not to be tortured if returned to Burma (now Myanmar).  Thompson, Tashima (author), and Rawlinson, Circuit Judges.  T. Mills of New York, NY, for the petitioner;  R. Curtis of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  IMMIGRATION:  Siong v. INS, 99-71524 (9th Cir. July 23, 2004).  The petitioner successfully challenged the dismissal of his motion to reopen deportation proceedings after showing plausible grounds for relief;  he showed prejudice from his former counsel's failure to file a timely notice of appeal to the BIA. The BIA thus abused its discretion in denying the motion to reopen.  Reinhardt, Tashima (author), and Berzon, Circuit Judges.  S. Scribner of Santa Rosa, CA, for the petitioner;  D. McClain of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  IMMIGRATION:  Khan v. INS, 02-73906 (9th Cir. July 2, 2004).  Khan petitioned for review of the BIA's affirmance of an Immigration Judge's denial of his motion to reopen his removal proceedings;  he claimed that the notice he was given of his hearing was inadequate, and that a master calendar hearing was improper because the notice and hearing were not translated into a language he understood and thus violated due process.  Holding that the government was not constitutionally required to provide translations in this case, the USCA concluded that the BIA did not abuse its discretion in refusing to reopen the case;  the USCA thus denied the petition for review.  Alarcon, Beezer (concurring), and W. Fletcher (author), Circuit Judges.  M. Guajardo of San Francisco, CA, for the petitioner;  C. Federighi of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  IMMIGRATION / SENTENCING:  USA v. Nunez-Rodelo, 03-10660 (9th Cir. July 29, 2004).  The USCA affirmed the defendant's sentence for unlawful reentry after removal over his challenge that, because he had been deported, he is not subject to 8 USC Sec. 1326(b)(2), which refers to removal;  Sec. 1326(b)(2), as amended, merely changed the terminology from "deportation" to "removal" and still covers deported aliens.  Fernandez (author), Paez, and Clifton, Circuit Judges.  AFPD M. Powell of Reno, NV, for the appellant;  AUSA R. Rachow of Reno, NV, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  UNCONSTITUTIONAL STOPS:  USA v. Gudino, 03-30023 (9th Cir. July 22, 2004).  The defendant's motion to suppress his identity, which was disclosed as a result of an unconstitutional stop, was properly denied because the simple fact of who a defendant is cannot be excluded, regardless of the nature of the violation leading to his identity.  Kleinfeld (author), Gould, and Tallman, Circuit Judges.  A. Gallagher of Great Falls, MT, for the appellant;  AUSA C. Rostad of Great Falls, MT, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  FACIALLY DEFECTIVE ANTICIPATORY SEARCH WARRANTS: USA v. Grubbs, 03-10311 (9th Cir. July 26, 2004).  The defendant successfully challenged the denial of his motion to suppress evidence on the grounds that a police officer's failure to present an affidavit designating the triggering events or conditions precedent to the operability of the search warrant rendered the warrant constitutionally invalid and the search illegal;  because the defendant entered a conditional guilty plea, he may withdraw his plea if he elects to do so.  B. Fletcher and Reinhardt (author), Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge.  Q. Denvir of Sacramento, CA, for the defendant;  AUSA C. Skipper of Sacramento, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  CRIMINAL LAW:  Guam v. Quidachay, 03-10081 (9th Cir. July 1, 2004).  According to the victim's testimony, a man entered her place of employment, pointed a gun at her, and asked for money;  he then instructed her to remove her clothes and to finger herself by inserting her finger in her vagina.  Quidachay was subsequently identified and convicted of robbery and criminal sexual conduct in violation of 9 Guam Code Sec. 25.15(a).  The USCA affirmed, finding that Quidachay had engaged in sexual penetration of the victim within the meaning of Sec. 25.15(a).  Farris, Noonan (author), and Rawlinson, Circuit Judges.  C. Van De Veld of Hagatna, GU, for the defendant-appellant;  AAG L. Littlepage of Hagatna, GU, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  CRIMINAL LAW:  USA v. Bucher, 03-10197 (9th Cir. July 20, 2004).  The USCA upheld the defendant's conviction for intentional interference with a park ranger engaged in an official duty where the defendant warned a suspect that the ranger might arrest him;  even though there was no direct evidence of what the defendant said to the suspect, reasonable inferences could be drawn from the facts to provide sufficient evidence.  Dissenting, Judge Noonan thought it was no service to justice to uphold a conviction on the basis of a scenario unsupported by the evidence.  Farris (author), Noonan (dissenting), and Rawlinson, Circuit Judges.  AFPD A. Silvert of Honolulu, HI, for the defendant-appellant;  AUSA L. Bracco of Honolulu, HI, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  SENTENCING / RESTITUTION:  USA v. Doe, 03-10186 (9th Cir. July 6, 2004).  The USCA found that it could exercise jurisdiction over this appeal under both 28 USC Sec. 1291 and 18 USC Sec. 3742 and remanded for resentencing.  The defendant successfully challenged a restitution order levied against him on the grounds that the government did not prove that the amounts imposed reflected the losses of identified victims.  Ferguson (author), Reinhardt, and Paez, Circuit Judges.  AFPD J. Carr of Las Vegas, NV, for the defendant-appellant;  AUSA J. Drennan of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  SENTENCING:  USA v. Matthews, 02-10445 (9th Cir. July 7, 2004).  Since the defendant's conviction as described in the information and plea transcript did not allow the category of his conduct to be narrowed beyond "burglary of an occupied building," and both parties had agreed that "occupied" meant only lack of abandonment and did not indicate that a person was physical presence in the building, the USCA said it could not conclude that the defendant's burglary of an occupied building necessarily presented a serious risk of physical harm to a person.  The USCA thus held that it was error to include this conviction as a "crime of violence" under the "otherwise" clause of Sentencing Guideline Sec. 4B1.2(a)(2).  The USCA vacated the sentence and remanded to the district court for resentencing in accordance with this opinion.  Cudahy (author), Beezer, and Kleinfeld, Circuit Judges.  AFPD J. Lambrose of Las Vegas, NV, for the defendant-appellant;  AUSA P. Ko of Las Vegas, NV, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  SENTENCING:  USA v. Ameline, 02-30326 (9th Cir. July 21, 2004).  The defendant's sentence was vacated and remanded because, under Blakely v. Washington, 124 S.Ct. 2531 (2004), the district court violated the defendant's right to have the facts underlying his sentence found beyond a reasonable doubt;  specifically, the facts underlying the calculation of his base offense level and his sentence enhancement were not found by a jury beyond a reasonable doubt;  the USCA held that Blakely's definition of statutory maximum applies to the determination of the base offense presumptive ranges under Guideline Sec. 2D1.1(c), as well as to the determination of the applicability of an upward enhancement under Sec. 2D1.1(b)(1).  Dissenting, Judge Gould said he agreed with Part II.A of USA v. Pineiro, 03-30437, 2004 WL 1543170 (5th Cir. July 12, 2004), which held that the Guidelines are not affected by Blakely;  he said he also agrees with the dissent in USA v. Booker, 03-4225, 2004 WL 1535858, (7th Cir. July 9, 2004) (Easterbrook, J. dissenting).  Wardlaw, Gould (dissenting), and Paez (author), Circuit Judges.  B. Fay of Bozeman, MT, for the appellant; AUSA L. Harper of Great Falls, MT, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  SENTENCING:  USA v. Ray, 03-30339 (9th Cir. July 23, 2004).  The Montana district court did not exceed it statutory or inherent authority, or the limits of the Constitution, by issuing a standing order directing the U.S. Attorney, within 20 days after sentencing occurs in each criminal case, to assemble and file with the court clerk a report of sentencing to be sent on to the U.S. Sentencing Commission such that would satisfy a reporting requirement Congress imposed on the courts. Judge Clifton joined in Secs. I, II, and III of Judge Graber's opinion;  Judge Brewster joined in Sec. I, III, and IV of Judge Graber's opinion.  A majority thus held that the district court acted within the scope of its statutory and inherent authority when issuing the order and that the order did not violate the constitutional doctrine of separation of powers. The order remains in effect. Graber (author) and Clifton (dissenting in part), Circuit Judges, and Brewster (dissenting in part), District Judge.  S. Lane of Washington, DC, for the plaintiff-appellant;  A. Gallagher of Great Falls, MT, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  SENTENCING:  USA v. Morgan, 02-50603 (9th Cir. July 23, 2004).  Defendant Goodman challenged her convictions for bank fraud and making false statements to a federally insured financial institution in connection with her unauthorized acquisition and use of several business lines of credit;  she argued that the trial court erred in allowing the government to introduce a bankruptcy petition into evidence and in questioning her extensively from the bench.  The USCA affirmed her convictions.  Co-defendant Morgan did not challenge his convictions but challenged the sentence and restitution order, arguing that the district court erroneously included interest and finance charges in its calculation of the total amount of loss for both sentencing and restitution.  Goodman joined in Morgan's challenge to the sentence, but did not challege the district court's restitution order in her case.  The USCA held that in light of a 2001 amendment to the U.S. Sentencing Guidelines, the district court erred in including interest and finance charges in its calculation of the total amount of loss for sentencing purposes.  The USCA thus vacated the sentences and remanded for resentencing.  The restitution orders, however, were proper and affirmed.  D.W. Nelson, Gibson, and Graber (author), Circuit Judges.  A. Peterson of Irvine, CA, for the defendants;  AUSA M. Raphael of Los Angeles, CA, the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  SENTENCING:  USA v. Granbois, 03-30383 (9th Cir. July 22, 2004).  The defendant 1996 conviction for abusive sexual contact under 18 USC Sec. 2244(a)(3) constituted a conviction for a "crime of violence" for purposes of the Career Offender Guideline, U.S.S.G. Sec. 4B1.1;  the district court did not err when it used that conviction, in addition to the defendant's unchallenged 1998 conviction, to determine that the defendant was a career offender.  Pregerson, Thompson (author), and Callahan, Circuit Judges.  D. Ness of Great Falls, MT, for the defendant-appellant;  K. Richter of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  HABEAS CORPUS / DEATH SENTENCES:  Sanders v. Woodford, 01-99017 (9th Cir. July 8, 2004).  The USCA held that the district court correctly rejected the petitioner's claim that the jury that convicted him was drawn from a jury venire that unconstitutionally failed to reflect the number of Hispanics in Kern County, California, where he was tried.  However, the USCA also concluded that the California Supreme Court neither independently reweighed aggravating and mitigating sentencing factors, nor conducted an appropriate harmless-error analysis.  As this error was not harmless, the USCA reversed the district court's denial of the habeas petition as it related to the imposition of the death penalty and remanded with instructions to grant the petition if the state does not either provide a new penalty trial or replace the death sentence with another legally appropriate sentence.  D.W. Nelson, Kleinfeld, and Fisher (author), Circuit Judges.  N. Rivkind of Berkeley, CA, for the petitioner;  DAG J. Kirkland of Sacramento, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  HABEAS CORPUS:  Hamilton v. Newland, 02-15972 (9th Cir. July 1, 2004).  The USCA concluded that the district court erred in treating the petitioner's motion as a second or successive habeas petition which lacked the required court approval, rather than solely as a Fed. R. Civ. Proc 60(b)(6) motion;  however, the USCA denied the motion on the merits because, under traditional 60(b) analysis, the petitioner could not show any "extraordinary circumstance" necessary to qualify for 60(b)(6) relief.  Schroeder (author), Thomas, and Clifton, Circuit Judges.  W. Pyle of Berkeley, CA, for the petitioner;  DAG G. Ott of San Francisco, CA, for the respon-dent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  HABEAS CORPUS:  Bruce v. Terhune, 02-16992 (9th Cir. July 19, 2004).  At issue on this appeal from the denial of a petition for a writ of habeas corpus arising out of a prosecution for lewd and lascivious conduct with a child was whether the state court unreasonably applied clearly established Federal law on burden of proof and whether sufficient evidence existed to support the conviction.  The USCA concluded that its review of the record revealed nothing to cast doubt on the jury's verdict;  because a rational trier of fact could have been persuaded beyond a reasonable doubt that the petitioner was guilty of lewd and lascivious conduct with a child, habeas relief was unwarranted.  Concurring, Judge O'Scannlain noted that because he agreed that the petitioner's claim failed whether the appellate panel applied Jackson v. Virginia, 443 US 307 (1979), as a freestanding test on habeas review or filtered Jackson through the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), he concurred in the rejection of the petitioner's insufficient evidence claim on the former grounds.  Judge O'Scannlain wrote separately to express what he considered to be the better view that the AEDPA requires the appellate panel to evaluate a state court's application of Jackson for objective unreasonableness.  Browning, O'Scannlain (concurring), and Fisher, Circuit Judges.  Per Curiam.  AFPD A. McClintock of Sacramento, CA, for the petitioner;  B. Lockyer of Sacramento, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  HABEAS CORPUS:  Dennis v. Budge, 04-99003 (9th Cir. July 30, 2004).  Butko, a lawyer, appealed the district court's denial of her petition for a writ of habeas corpus filed on behalf of her former client, Dennis, a Nevada state prisoner, who is scheduled to be executed on August 12, 2004;  she also sought a stay of execution.  The district court held that Butko lacked standing as Dennis's "next friend" and dismissed the petition;  it also denied motions to proceed in forma pauperis, for appointment of counsel, and stay of execution.  The USCA affirmed the dismissal of the petition;  and, as Butko lacked standing, the USCA also lacked jurisdiction to stay the execution.  Concurring, Judge Berzon agreed with the majority's conclusion that the district court's next friend determination should be affirmed, but she did not agree with the route the majority takes to reach that conclusion;  in particular, while the majority purports to observe the standard articulated in Rees v. Peyton, 384 US 312 (1966) (per curiam), she did not think the substance of the opinion was faithful to that representation;  rather, the majority opinion appears to be based on a vision of mental processes which precludes the possibility that an individual with intact cognitive capacity may, nonetheless, be unable to make a rational choice, not so much because the choice is not rational in an objective sense, or because the individual in general lacks the capacity to make rational choices, but because, for the person making the particular decision is not a choice;  instead, the individual's mental disorder dictates the outcome;  as she read Rees, it requires that where the defendant is seeking immediate execution and thereby precluding any later reconsideration of the legality of the proceedings leading to that end, there is a separate inquiry required that focuses on such volitional rather than cognitive aspects of the defendant's mental makeup.  Rymer (author), Berzon (concurring), and Callahan, Circuit Judges.  AFPD M. Pescetta of Las Vegas, NV, for the petitioner;  DAG R. Wieland of Reno, NV, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  TAXATION:  Lamanna v. CIR,. 03-73129 (9th Cir. July 21, 2004) (unpublished).  Hawkins, Thomas, and Bybee, Circuit Judges. 

       In consolidated cases arising from the Lamannas' petitions seeking a redetermination of tax deficiencies asserted by the CIR for tax years 1986 to 1991, the Tax Court granted the CIR's motion for entry of decision, enforcing the Stipulation of the Settled Issues signed by all parties.  It determined pursuant to this Stipulation that for the 1986 tax year the Lamannas owe $3,096 plus interest and penalties, but for tax years 1987 to 1991 the Lamannas owe nothing.

       The USCA affirmed in part and remanded to correct an undisputed error in calculating the total amount due.  The Lamannas claimed multiple errors by the Tax Court.  First they argued mutual mistake because they understood the Stipulation clause setting forth "total Schedule E Expenses" to exclude line 19 of the Schedule E form, entitled "Depreciation expenses," and the CIR understood otherwise.  The CIR argued that the Stipulation is valid and binding on the parties, and that the record does not support the Lamannas' contentions, but concedes that the Stipulation was incorrectly implemented in the Tax Court's decision because the stipulated Schedule A mortgage interest expense deduction of $5,218 was not used in the calculation.  The Lamannas' asserted belief was not reasonable;  the clause is not ambiguous.  The only reasonable interpretation of "total Schedule E expenses" includes all expenses listed on Schedule E, without any provision for the Lamannas' asserted exclusion of their "Depreciation expense."

      Based on the record, the Tax Court's factual finding of no credible evidence to support the Lamannas' claims of lack of formal consent, fraud, and being misled by opposing counsel was not clearly erroneous.  The Lamannas' alleged unilateral mistake was also insufficient to modify or rescind the Stipulation.  No manifest injustice resulted from enforcing the Stipulation because the Lamannas achieved a result that drastically reduced their tax liability, as alleged by the CIR, thus avoiding the risk and expense of proceeding to trial.  The Tax Court did not err in its interpretation of the Stipulation and did not abuse its discretion in enforcing the Stipulation.  However, the court committed clear error by failing to incorporate the stipulated Schedule A mortgage interest expense deduction of $5,218 into its calculations.  The USCA thus affirmed in part, vacated in part, and remanded the decisions of the Tax Court for recalculation of the amount of taxes, interest and penalties properly due based on the stipulated Schedule A mortgage interest expense deduction of $5,218. 

2)  TAXATION:  Hyler v. CIR,. 03-71277 (9th Cir. July 9, 2004) (unpublished).  O'Scannlain, Siler, and Hawkins, Circuit Judges.

       Hyler appealed the Tax Court's finding that the IRS properly mailed notices of deficiency for 1995 and 1997 to his "last known address," thereby allowing the IRS to enforce collection of the deficiencies.  The Tax Court found that the address on his 1997 return, his last return before the notice mailings, was his "last known address." 

      The USCA affirmed.  Hyler argued that the address on his 1997 return was not his "last known address" because his representative, Connie Stone, notified the IRS of a different address in September 1998 after he filed the 1997 return in August.  The Tax Court, however, never found that Stone's notification came in September;  rather, the Tax Court found that her notification came in August, just before Hyler filed the 1997 return.  Because evidence in the record supported this finding, the USCA concluded that the Tax Court did not clearly err in finding that the 1997 return was filed after any notification by Stone, and thus represents Hyler's last known address.  In addition, Hyler argued that his subsequent dealings with the IRS listed a different address.  However, "correspondence bearing an address different from that on the most recent return does not, by itself, constitute clear and concise notice.  In order to supplant the address on his/her most recent return, the taxpayer must clearly indicate that the former address is no longer to be used."  King v. Comm'r, 857 F.2d 676, 681.  Hyler's subsequent dealings failed to provide clear and concise notice that the address from his 1997 return was no longer to be used.

3)  TAXATION:  Henderson v. CIR,. 03-73305 (9th Cir. July 16, 2004) (unpublished).  Hawkins, Thomas, and Bybee, Circuit Judges.

       Henderson appealed pro se the order of the Tax Court denying his motion for reconsideration following the Tax Court's judgment holding that his receipt of income pursuant to a settlement agreement with Morgan Stanley, Dean Witter & Company was not excludable from taxable income under 26 USC Sec. 104(a)(2).  The USCA affirmed.  The Tax Court did not abuse its discretion because the record reflected that Henderson's settlement agreement stemmed from damage to his credit reputation, not from physical injury or physical sickness.  Even assuming that he suffered from a pre-existing physical sickness, he failed to submit evidence demonstrating that harm to his reputation resulted in personal injuries.

4)  BANKRUPTCY:  Danfer v. Gaughan,. 03-16519 (9th Cir. July 15, 2004) (unpublished).  Hawkins, Thomas, and Bybee, Circuit Judges.

     Danfer appealed pro se the district court's judgment affirming the bankruptcy court's denial as untimely his motion for relief from judgment asking the bankruptcy court to vacate its order approving a settlement between the trustee and creditors.  The USCA affirmed.  On May 14, 2001, the trustee for the Chapter 7 debtor entered into a settlement agreement with various parties to settle claims which constituted assets to the estate.  The bankruptcy court approved the settlement on June 27, 2001 and the other parties were released from any claims Sun had against them.  Danfer did not oppose this settlement until June 25, 2002, although he testified that he was aware of the settlement in September 2001.  The bankruptcy court thus did not abuse its discretion by finding that Danfer failed to file his Rule 60(b) motion within the requisite "reasonable time" or that he failed to demonstrate circumstances beyond his control prevented timely action to protect his interests.

5)  BANKRUPTCY:  In re Shah,. 03-35795 (9th Cir. July 15, 2004) (unpublished).  Hawkins, Thomas, and Bybee, Circuit Judges.   Chapter 7 debtor Shantu Natvaral Shah appealed pro se the district court's order affirming the bankruptcy court's summary judgment of nondischargeability of debts owed Carl T. Madsen, Inc.  The USCA affirmed, finding that the bankruptcy court did not err by finding that the debt in question resulted from a willful and malicious injury and thus was not subject to discharge pursuant to 11 USC Sec. 523(a)(6). 

6)  BANKRUPTCY:  USA v. Minter,. 03-30042 (9th Cir. July 30, 2004) (unpublished).  Brunetti, T.G. Nelson, and Graber, Circuit Judges.

      Minter appealed his conviction and sentence for bankruptcy fraud and appealed the district court's imposition of restitution.  His convictions stemmed from a bankruptcy proceeding filed in late 1997 and Minter's fraudulent business dealings with various parties around this time. 

       The USCA affirmed with respect to the sufficiency of the evidence and denial of new trial.  Title 18 USC Sec. 152(1) proscribes knowingly and fraudulently concealing from a custodian, trustee, or in connection with a case under Title 11, from creditors of the U.S. Trustee, any property belonging to the estate of a debtor.  The debtor's estate includes assets held at the time of the petition, as well as those acquired post-petition.  11 USC Secs. 541, 1306.  On appeal, Minter maintained that there was insufficient evidence that he omitted certain assets involved in count eight "willfully" or "fraudulently."  The USCA disagreed.  To show concealment, it is suffi-cient to show that "one withholds knowledge of assets about which the trustee should be told."  USA v. Weinstein, 834 F.2d 1454, 1462 (9th Cir. 1988).  As Minter conceded, his bankruptcy attorney testified that he reviews with all clients what assets and liabilities must be disclosed and gives them forms that further explain this.  Ample evidence was adduced at trial that demonstrated that Minter disregarded this advice and continued to transact business with the omitted assets, including conveying an airplane and exercising stock options.  That was sufficient to demonstrate Minter's interest in these assets and his awareness of his duty to disclose them.  Count nine of the indictment alleged that Minter fraudulently and intentionally omitted two debts from his bankruptcy estate in violation of 18 USC Sec. 152(3).  Here there was ample evidence for a reasonable juror to conclude that Minter intentionally and fraudulently omitted from his bankruptcy petition the debt owed to a German woman with whom he was engaged in an extramarital affair and debts incurred in the purchase of Pegasus Air.  First, it was undisputed that Minter knowingly incurred these obligations prior to December 3, 1997, the date he filed his bankruptcy.  It was equally undisputed that Minter did not report these debts on his schedule of liabilities.  Finally, as with court eight, Minter's intent to conceal was established by his bankruptcy attorney's testimony that, at the outset of the bankruptcy, he advised Minter of his obligation to disclose all disputed and undisputed debts, and that when he later inquired into these debts, Minter continued to deny their existence.
 Minter next maintained that the trial court erred in denying his motion for a new trial based upon admission of prejudicial and irrelevant evidence admitted as to count seven.  Count seven alleged that Minter committed wire fraud on Neal Fort when he fraudulently induced her to invest $150,000 in a pig effluent venture.  Fort testified to the truthfulness of all of the acts alleged in court seven of the indictment.  Other witnesses, including the appraiser of the airplane and Minter's business partner in the effluent project, corroborated Fort.  The government also introduced documents relating to the transfer of funds from Fort's bank account in Washington to a bank account in Houston.  At the close of the government's case, the court dismissed count seven for lack of venue.  It advised the jury to not consider the documentary evidence pertaining to the transfer but that they could consider the other evidence as it related to the other charges.  The district court did not abuse its discretion in denying Minter's motion.  The bulk of the evidence that came in through count seven was evidence of concealed assets and Minter's intent to keep these assets out of the bankruptcy court's knowledge, and thus both were directly related to the fraud charges.  In addition, Minter could not show prejudice, even if some of the other admitted evidence was not relevant, because there was sufficient, other relevant evidence presented at trial to allow the jury to convict Minter.  Moreover, the jury's decision to acquit Minter of receipt of stolen funds and two counts of perjury demonstrates that they thoroughly considered the evidence and were not improperly influenced by the evidence admitted as to count seven.

7)  BANKRUPTCY:  In re Upland Partners,. 03-15621 (9th Cir. June 30, 2004) (unpublished).  Leavy, Thomas, and Fisher, Circuit Judges.

       Ellis appealed the district court's order dismissing his appeal of a bankruptcy court order because he was not an "aggrieved party" entitled to appeal the decision. 

       The USCA dismissed the case.  In addition to the traditional standing requirements, the bankruptcy court imposes a prudential standing requirement that a party must be a "person aggrieved" by the bankruptcy court's order.  Duckor Spradling & Metzger v. Baum Trust (In re P.R.T.C., Inc.), 177 F.3d 774, 777 (9th Cir. 1999).  An appellant is aggrieved if "directly and adversely affected pecuniarily by an order of the bankruptcy court".  The order must diminish the appellant's property, increase its burden, or detrimentally affect its rights."  Id. (citing Fondiller v. Roberston (In re Fondiller), 707 F.2d 441, 442 (9th Cir. 1983)).  Whether Ellis is a "person aggrieved" is a question of fact reviewed for clear error. Id.  The party invoking federal jurisdiction must establish standing to sue.  Ellis alleges that the bankruptcy court's order decreased the value of the bankruptcy estate of which Ellis is an equity holder.  However, the USCA found that Ellis' argument failed.  It found no evidence of record demonstrating how the bankruptcy court's order decreases or increases the value of the estate.  Ellis stated that the agreement at issue obligated other parties to make "certain payments" to the debtor;  however, he has not alleged what these payments are or how they could be recovered.  In his individual capacity he did not meet the definition of a "person aggrieved."  The USCA said its decision that Ellis lacks standing is based on statements by the bankrptcy court upon which the district court relied in making its determination that Ellis lacked standing.  The bankrptcy court stated that it did not decide the following questions:  (1) whether Ellis retained rights under the Second Amended and Restated Kulamanu Development Agreement ("SARKDA");  2) whether Ellis had to be a party to an effective release of SARKDA;  or 3) what effect the release would have without Ellis' participation.  The USCA's decision was also premised on its understanding that Ellis retained the right to challenge the validity of the release order in a separate proceeding.  The district court properly determined that Ellis was not a "person aggrieved."

8)  AMERICANS WITH DISABILITIES ACT: Zivkovic v. Southern California Edison Co.,. 02-57168 (9th Cir. July 1, 2004) (unpublished). Trott, Rymer, and Thomas, Circuit Judges.

       Zivkovic appealed the judgment entered after a bench trial following the remand of Zivkovic v. Southern California Edison Company, 302 F.3d 1080 (9th Cir. 2002), on his claim that Southern California Edison ("Edison") discriminated against him in violation of the Americans with Disabilities Act.

      The USCA affirmed.  Zivkovic maintained that the district court committed legal error in concluding that Edison did not fail to engage in the interactive process or make reasonable accommodation for his hearing loss, 42 USC Secs. 12111(9) and 12112(b)(5)(A).  However, the court's legal conclusions follow from its findings that Zivkovic said he read lips well, that a sign language interpreter was offered but declined for the second interview, that he never asked for an interpreter during a second interview, that he was offered the written questions to read during the first interview but did not ask to read any questions during the second session, that Edison did not refuse to repeat questions when asked, that Zivkovic did not appear to have difficulty understanding or promptly answering questions nor did he say that he could not understand the questions, and that when his response seemed short or incomplete the question was repeated.  Although Zivkovic offered testimony to the contrary with respect to many of these fact, the court's findings were supported by the exhibits and testimony of Scott Fagan, Edgar Sumpter, Juan Ortega, and Rudolph Rea.  The district court resolve all credibility issues in Edison's favor.  Based on these findings, which are not clearly erroneous, Edison fulfilled its duty to engage in the interactive process and to provide a reasonable accommodation.  Zivkovic also maintained that the district court mistakenly intertwined the issue of reasonable accommodation with that of pretext.  The USCA disagreed.  The court had to, and did, determine whether Edison discriminated against Zivkovic by not hiring him, and in that connection, found that Edison's articulated reasons were not pretextual.  The court did not confuse that finding with its task of also determining whether Edison appropriately engaged in the interactive process and offered a reasonable accommodation.  Finally, Zivkovic suggests that Edison's test was improper under 42 USC Sec. 12112(b)(6) and (b)(7). But, the USCA declined to consider this issue as it was not pursued in the district court or preserved by argument in the opening brief.

9)  CORPORATIONS / CONVERSION / FRAUDULENT CONVEYANCES: Cohen v. Joint Health Ventures,. 02-17314 (9th Cir. July 15, 2004) (unpublished).  T.G. Nelson, Graber, and W. Fletcher, Circuit Judges.

      Diamond Benefits Life Insurance Company ("Diamond") was purchased from its corporate parent by Resolute, Inc., a holding company.  Resolute, led by Charles Christopher, improperly used Diamond assets to finance the purchase.  In addition, shortly after the deal was consummated, another Resolute officer, Wayne Reeder, improperly used Diamond assets to pay off his own outstanding loans.  Diamond, through its receiver, brought several actions seeking to recover its stolen assets. Diamond has since resolved its claims against Christopher, Reeder, and others.  In the instant consolidated cases, Diamond brought suit against its former patent corporations, Joint Health Ventures ("Joint Health") and Adventist Health System / West ("West"), and against the successors-in-interest of the banks whose loans were paid off with money misappropriated from Diamond, HomeFed Bank ("HomeFed") and Continental Illinois National Bank & Trust Company of Chicago ("Continental").  The district court granted summary judgment to all defendants on all claims.  Diamond appealed.

       On de novo review, the USCA reversed in part, affirmed in part, and remanded.  The district court granted summary judgment on Diamond's claim that Joint Health committed fraud by making misrepresentations in Diamond's 1987 Annual Statement and in the Form A's filed with Arizona and California, as well as by omission.  Joint Health did not make any representations at all in Diamond's 1987 Annual Statement.  The allegedly false statements in the Form A's are either non-actionable statements of intent or opinion, or were withdrawn.  Moreover, in these circumstances, Joint Health did not have a duty to speak, so it did not commit fraud by omission.  The USCA affirmed this portion of the district court's judgment.

       Several of Diamond's claims against Joint Health and West turn on whether these parent corporations had sufficient knowledge before transferring Diamond to Resolute that they should have reasonably suspected that Resolute was planning to loot Diamond once it acquired control. Such reasonable suspicion would trigger a fiduciary duty to either refuse to transfer Diamond, or at least to further investigate Resolute.  Such reasonable suspicion would also deprive the parent corporations of the defense to Diamond's claims of conversion and fraudulent conveyance that they took the purchase price in good faith.  The district court granted summary judgment to Joint Health and West on these claims on the ground that the facts known to them were not, as a matter of law, sufficient to have prompted a further investigation into Resolute and its plans for Diamond or to negate their good-faith defense.  The USCA disagreed and held that Diamond has shown sufficiently suspicious circumstances to create genuine issues of material fact as to what Joint Health and West knew before transferring Diamond to Resolute, as to whether these facts should have given rise to a reasonable suspicion that Resolute would loot Diamond, and as to whether Joint Health and West took the purchase price in good faith and thereby became bona fide holders for value.  The USCA thus reversed the grant of summary judgment on the following claims against Joint Health:  Breach of Fiduciary Duty, Aiding and Abetting Fraud, and Aiding and Abetting Breach of Fiduciary Duty.  The USCA likewise reversed the grant of summary judgment on the Conversion and Receipt of Fraudulent Conveyance claims against Joint Health and West.  To the extent that its holdings conflict with the district court's orders denying numerous motions by the parties as moot, the USCA vacated those mootness-based orders.  Finally, the district court granted summary judgment on Diamond's claims that HomeFed and Continental committed conversion in accepting Diamond's money to satisfy Reeder's loans, and that Home Fed received a fraudulent conveyance in doing so.  Because these lenders took the stolen funds in good faith and for valuable consideration, Arizona law provides a complete defense to Diamond's claims.  The USCA thus affirmed the district court's grant of summary judgment in favor of HomeFed and Continental. 

10)  CONTRACTS / TORTS: Maxner Company, Ltd. v. Costco Wholesale Corp.,. 03-35865 (9th Cir. July 12, 2004) (unpublished).  Brunetti, McKeown, and Gould (concurring), Circuit Judges.

      Maxner Company appealed the district court's dismissal under Fed. R. of Civil Proc. 52(c) of its claim that Costco Wholesale Corporation intentionally interfered with Maxner's contract with a third party, Chrisha Creations, Ltd. 

      The USCA affirmed.  Under Washington state law, the tort of intentional interference with a contractual relationship consists of five elements:  1) the existence of a valid contractual relationship or business expectancy;  2) that defendants had knowledge of that relationship; 3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy;  4) that defendants interfered for an improper purpose or used improper means; and 5) resultant damage.  Leingang v. Pierce County Medical Bureau, Inc., 930 P.2d 288, 300 (Wash. 1997).  In dismissing the claim following the presentation of Maxner's case at trial, the district court ruled that Maxner presented no evidence as to the second and fourth elements of intentional interference with a contractual relationship.  Following this ruling from the bench, the court also issued a written order setting out its findings of fact and conclusions of law which mandated a 52(c) judgment in Costco's favor.  The USCA said it found no error with either conclusion.  As the district court reasoned, Costco did not act by improper means in rejecting the dancing Easter bunnies it obtained from Chrisha, which Chrisha had Maxner manufacture to Costco's specifications.  In rejecting the bunnies, Costco acted pursuant to a clause in its contract with Chrisha, which allowed Costco to revoke acceptance of any merchandise that is later discovered to "allegedly contain any defect."  Chrisha concurred in Costco's decision and agreed to accept return of the bunnies.  Acting pursuant to a clear and valid contract clause is not interference through improper means.  Pleas v. City of Seattle, 774 P.2d 1158, 1163 (Wash. 1989).  As for the knowledge element, Maxner did not present sufficient evidence of Costco's awareness of Maxner at the time of its decision to reject the bunnies.  Since the decision to reject the bunnies occurred prior to Maxner's letter offering to cure any defects in the bunnies, the district court did not abuse its discretion in excluding the letter to demonstrate Costco's knowledge.  Fisher v. Parkview Props., Inc., 859 P.2d 77, 84 (Wash. Ct. App. 1993).  Moreover, since Maxner failed to present evidence of improper means, any error as to the admissibility of the letter was not prejudicial. Geurin v. Winston Indus., Inc., 316 F.3d 879, 882 (9th Cir. 2002).  Finally, the district court did not abuse its discretion in limiting the relevance of Chrisha's assignment to Maxner of Chrisha's letter of credit from Costco since Maxner failed to allege any additional relevance or theories as to this letter in its pleadings or pretrial order.  Eagle v. American Tel. and Tel. Co., 769 F.2d 541, 548 (9th Cir. 1985).

      Judge Gould concurred in the judgment and in that part of the memorandum disposition which held that there was no evidence that Costco used improper means.  While he thought the panel had correctly stated the Washington law elements of intentional interference with contractual relationship, he parted company with the panel's assessment of the second element, to effect that because Costco's rejection of the defective bunnies occurred before Costco received Maxner's letter, there was no knowledge of the contract relationship.  In Judge Gould's view, Costco knew that some party had manufactured the bunnies, and he would read the knowledge element more expansively to permit the tort to be assessed after Costco received Maxner's letter.  At that time, Judge Gould thought Costco had a duty to Maxner.  However, in light of Costco's contract with Chrisha, and the other evidence adduced at trial by Maxner, he agreed with the panel disposition's reasoning that the fourth element wasn't met.  As he understood the record and the rights of Costco under its contract, Judge Gould could not conclude that the evidence presented by Maxner at trial established either an improper purpose of Costco or that Costco used an improper means.  Accordingly, Judge Gould thought the claimed tort of interference with contract failed, and he concurred that the district court's judgment must be affirmed.

11)  INSURANCE:  Allstate Insurance Company v. Breeden,. 03-35199 (9th Cir. July 28, 2004) (unpublished).  Goodwin, W. Fletcher, and Tallman, Circuit Judges.

       Allstate sought and acquired a declaration by the district court that Breeden voided his fire insurance policy by misrepresenting the extent of his loss.  Breeden appealed the district court's adverse summary judgment.
 
       The USCA reviewed de novo the district court's construction of state law and its entry of summary judgment and then affirmed in part, reversed in part, and remanded for further proceedings.  First Breeden's fire policy provided that willful misrepresentation concerning a claimed loss would operate to void the policy.  In determining whether Breeden has violated his insurance policy, the district court relied exclusively on Callaway v. Sublimity Ins. Co., 858 P.2d 888 (Or. App. 1993).  This was error because Callaway involved an automobile insurance policy.  Since 1985, a different rule has existed in Oregon for fire insurance policies. See Eslamizar v. Am. States Ins. Co., 894 P.2d 1195, 1198-99 (Or. App. 1995).  In particular, reliance is treated differently in cases brought under fire insurance policies.  The USCA thus vacated the summary judgment to the extent it relied on Callaway and remanded for reconsideration based on Eslamizar.  Second, the district court properly entered partial summary judgment for Allstate on Breeden's counter-claim that the insurer was required to give specific reasons for denying his claim.  The cited requirement applies to underwriting decisions—i.e., decisions whether or not to provide coverage—not to decisions to deny claims under existing polices.  See Or. Rev. Stat. Sec. 746.650 (2004).  Finally, Breeden lacked standing to assert a claim that Allstate breached its contract with the mortgagee, Chase Manhattan Bank.  Partial summary judgment on that claim was appropriate as well. 

12)  PROPERTY:  Stanley v. Carr-Gottstein Properties,. 03-35200 (9th Cir. July 12, 2004) (unpublished).  Hall, Kleinfeld, and Wardlaw, Circuit Judges.

       Jose and Emelia Stanley appeal the district court's grant of summary judgment to Carr-Gottstein Properties ("the Developer").  They maintained that the district court erred in finding that:  1) they were not entitled to enforce, as third party beneficiaries, a stipulation between the Developer and the Municipality of Anchorage concerning the conveyance of an easement over the Developer's property;  and (2) the stipulation, if acted upon by the Municipality, would violate the Fifth Amendment. 

       The USCA affirmed.  The Stanleys outbid the Developer for a landlocked parcel of land (Lot 2) that abuts their residence (Lot 8) and two parcels of land (Lots 10 and 11) in the Developer's then undeveloped Discovery Heights Subdivision, Phase IV.  Although the Stanleys have physical access to Lot 2 from their residence, the property does not border a legal right of way (i.e., street access), which is required by the Municipality for them to lawfully subdivide the land.  After initially requiring that the Developer provide legal access to Lot 2 through Lots 10 and/or 11 to receive platting approval for Phase IV, a decision which prompted the underlying suit, the Municipality entered a joint stipulation which allowed the underlying suit, the Municipality entered a joint stipulation which allowed the Developer to record its plat while the Municipality reserved the right to require such an easement.  The Municipality later concluded that requiring the Developer to convey an easement to Lot 2 would be an unconstitutional exaction.  The parties jointly moved to vacate the stipulation.  The district court granted their motion, but before the court dismissed the case, the Stanleys intervened seeking enforcement of the stipulation as third party beneficiaries.  The district court recognized the Stanleys' status as third party beneficiaries, but granted the Developer's motion for summary judgment because the court had already vacated the stipulation.  The district court also found that, even if the stipulation was otherwise enforceable, the easement required would violate the Fifth Amendment's Takings Clause.

       The Restatement (Second) of Contracts provides that "in the absence of terms in a third party beneficiary contract prohibiting change or modification of a duty to an intended beneficiary, the promisor and promise retain power to discharge or modify the duty by subsequent agreement."  Karo v. San Diego Symphony Orchestra Ass'n, 762 F.2d 819, 822 (9th Cir. 1985) (citing Restatement (Second) of Contracts Sec. 311(1), (2) (1981)).  However, "the power to modify terminates when the beneficiary materially changes position in justifiable reliance on the promise before receiving notification of the modification." Id;  Restatement (Second) of Contracts, Sec. 311, cmt. g ("If there is a material change of position in justifiable reliance on the promise, the change of position precludes discharge or modification of the contract without the beneficiary's consent.")  The Stanleys neither materially changed their position in justifiable reliance on the stipulation nor assented to it at the Municipality or the Developer's request, and alternative prerequisite for enforceability.  As a result, their rights as beneficiaries never vested, Restatement (Second) of Contracts Sec. 311(3), and the Municipality and Developer retained power to modify and/or terminate the stipulation.  The district court thus did not err in ruling that the Stanleys could not enforce the stipulation.  Even if they had relied on the stipulation or assented to it at the request of the principals, their right to enforce the easement provision would be contingent upon the Municipality's performance of the condition precedent.  See Kennedy Assocs. v. Fischer, 667 P.2d 174, 178 (Alaska 1983) (stating that "the non-occurrence of a condition precedent precludes an action by the promise to enforce the contract."); State v. Osborne, 607 P.2d 369, 371 (Alaska 1980) (noting that where the promise fails to perform his part of the bargain, the promisor's duty of counter performance never matures);  Restatement (Second) of Contracts, Sec. 309(2) (providing that if a contract ceases to be binding in whole or in part because of a condition the right of any beneficiary is to that extent discharged or modified).  Because the Municipality never requested that the Developer convey the easement, the stipulation's condition precedent was not satisfied and the Stanleys' right to enforce the stipulation never vested.  The district court thus properly determined that the Stanleys could not enforce the stipulation.  Finally, the USCA noted that its resolution of the third party beneficiary issue moots the Stanleys' Fifth Amendment claim.  Specifically, because the Stanleys have no right to enforce the stipulation, and because the Municipality has conclusively determined that it will not do so, the Stanleys were in no position to challenge the stipulation's constitutionality.  The USCA noted that it thus did not need to address this issue and declined to do so.

13)  AVIATION:  USA v. Hays,. 03-10083 (9th Cir. July 2, 2004) (unpublished).  Lay, Hawkins, and Bybee, Circuit Judges.

      The defendant appealed his conviction on three counts of making a false statement in a matter within the jurisdiction of the Federal Aviation Administration.  The defendant argues that the district court erred by denying his motion to suppress evidence seized pursuant to a search warrant, amending the charges with which he was indicted, and admitting evidence that was unduly prejudicial.  Finding no reversible error with respect to any of the defendant's contentions, the USCA affirmed the judgment of the district court.  First, the search warrant identified specific categories of business record produced by Hays Aviation, all of which were related to maintenance repairs and annual inspections, properly limited in time and scope, and was not constitutionally overbroad.  See USA v. Washington, 797 F.2d 1461, 1468 (9th Cir. 1986).  Second, the district court did not err by admitting evidence of the falsified logbooks discovered in the defendant's airplane.  The district court held that because the defendant divulged that he kept business records in his airplane, the agents had probable cause to search the plane pursuant to the automobile exception to a warrantless search.  The defendant has not challenged the application of the automobile exception to the search of his airplane, but only that probable cause supported the search.  Without deciding the correctness of applying the "automobile exception" to airplanes, the USCA held that the district court did not err by concluding that the defendant's divulgence provided probable cause.  See USA v. Pinela-Hernandez, 262 F.3d 974, 977-78 (9th Cir. 2001)  Neither did the district court amend the defendant's indictment.  It informed the jury of the charges that appeared in the defendant's indictment, instructed the jury that the defendant was only on trial for the crimes charged in the indictment, and provided the jury with a copy of the indictment.  There was no indication in the record that the defendant was convicted of a crime other than that with which he was charged.  However, the USCA agreed with the defendant's contention that the district court abused its discretion by admitting evidence of dangerous defects found in the airplanes certified by the defendant.  This evidence had only a very slight probative value and did not outweigh its prejudicial effect.  The government did not need this prejudicial evidence to prove the elements of the defendant's crime which was completed when the defendant signed his name to the certification.  Nevertheless, the USCA concluded that this error was harmless.  Evidence of the defects did not have "substantial influence" over the verdict, and did not eviscerate the government's proof of every element of the defendant's crime beyond a reasonable doubt.

14)  IMMIGRATION:  Singh v. Ashcroft,. 03-70332 (9th Cir. July 9, 2004) (unpublished).  O'Scannlain, Siler, and Hawkins, Circuit Judges.

        Ajmer Singh, a native of India, sought review of a BIA removal order.  He sought asylum, withholding of removal, and relief under the Convention against Torture.  The Immigration Judge denied asylum because she found Singh's account of past persecution lacked credibility and he failed to establish a well-founded fear of future persecution.

      The USCA denied the petition.  It directly reviewed the IJ's decision because the BIA affirmed without opinion.  It noted that it had to uphold the IJ's decision if substantial evidence supported the adverse credibility determination.  Monjaraz-Munoz v. INS, 327 F.3d 892 (9th Cir. 2003).  Under this highly deferential standard, the USCA said it must affirm the adverse credibility determination "unless any reasonable adjudicator would be compelled to conclude to the contrary."  8 USC Sec. 1252(b)(4)(B).  According to Singh, Indian police persecuted him, and would persecute him again should he be deported, because they believe he supports militant Sikhs.  He claims the police arrested and tortured him twice.  The IJ found Singh incredible based on specific discrepancies in his testimony.  The USCA concluded that substantial evidence supported the IJ's adverse credibility finding.  In particular, the record substantiated the IJ's finding that Singh was not consistent concerning how the police electrically shocked him.  These discrepancies went to the heart of Singh's claim as they described his past persecution.  In addition, the record supported the IJ's finding that Singh contradicted himself regarding the militant Sikhs' visit to his uncle's farm.  That went to the heart of Singh's persecution claim since, in addition to police persecution, he claimed a fear that the militants would persecute him as retribution for making the complaint.  Given these discrepancies, the USCA said it could not say that a "reasonable adjudicator would be compelled to conclude" that Sing was credible.  8 USC Sec. 1252(b)(4)(B).  Because Singh failed to qualify for discretionary asylum, he necessarily failed the more stringent standard for mandatory withholding.  Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000).  Finally, the USCA said it could not review Singh's Convention Against Torture claim because he did not raise it with the BIA. 

15)  IMMIGRATION:  Pantovic v. Ashcroft,. 02-72900 (9th Cir. July 12, 2004) (unpublished).  T.G. Nelson, Tashima, and Fisher, Circuit Judges.

      Pantovic petitioned for review of the BIA's streamlined affirmance of the IJ's decision in this case.  The IJ had denied the petitioner's claim for asylum and withholding of removal, and for relief under the Convention Against Torture. 

      The USCA granted the petition and remanded.  The IJ appears to have misunderstood the basis of the petitioner's claims:  his fear of future persecution based on draft notice and a judgment against him from the Serbian army which he received after he came to the United States.  The IJ treated the petitioner's claim as though it were based on past persecution.  Because the IJ never addressed the petitioner's claim, and because substantial evidence did not support the IJ's adverse credibility finding, the USCA granted the petition.  The petitioner's actions after he arrived in the United States and the timing of his asylum claim were entirely consistent with his claim.  He did not fear persecution when he first came to the United States.  His fear arose after he received draft notices and then the judgment against him.  The law specifically acknowledges that such a change in circumstances may justify as asylum claim.  The petitioner's wife and daughter were not similarly eligible for the draft.  The fact that they were not persecuted, though they remained behind, thus carried little weight.  The USCA noted that the record did not support the IJ's blanket characterization of the Milosevic regime's treatment of individuals with opposing political viewpoints at the time the petitioner retired from the military.  Neither did it support the IJ's characterization of the petitioner's status as a known traitor while he was still in the military.  The IJ's conclusion that the petitioner's ability to retire conflicted with his testimony was thus speculative.  Similarly, the IJ's conclusion that the petitioner gave internally inconsistent reasons for his retirement also finds no support in the record.  The petitioner's testimony was consistent.  He explained that, although he did not know of the precise atrocities inflicted by the Serbian military in Bosnia until after he retired, he knew—and opposed—the basis of the war: an extreme form of nationalism. Accordingly, he sought retirement.  The USCA granted the petition for review of his claims. 

16)  IMMIGRATION:  Korin v. Ashcroft,. 03-70665 (9th Cir. July 25, 2004) (unpublished).  Leavy, Thomas, and Fisher, Circuit Judges.

       Korin, a native and citizen of Yemen, petitioned for review of a BIA order summarily affirming an immigration judge's order denying his applications for asylum and withholding of deportation.  Applying the transitional rules under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the USCA found that substantial evidence did not support the IJ's adverse credibility determination because the record did not support the IJ's finding that there were discrepancies or inconsistencies in Korin's written and oral statements about his combat experience and tribal origins.  The discrepancy between birth dates on Korin's documents was minor, and the IJ did not explain why the discrepancy was significant for Korin's asylum claim. The USCA remanded to the BIA for a determination, accepting Korin's testimony as credible, as to whether Korin is eligible for asylum or withholding of deportation, and for the exercise of discretion whether to grant his asylum application. 

17)  IMMIGRATION:  Asl v. Ashcroft,. 03-70687 (9th Cir. July 25, 2004) (unpublished).  Leavy, Thomas, and Fisher, Circuit Judges.

       Asl, a native and citizen of Iran, petitioned pro se for review of a BIA order dismissing his appeal from an IJ's decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture. 

       The USCA granted the petition for review and remanded.  The BIA's adverse credibility determination, based on the perceived inconsistency that petitioner testified that he ended his studies at an Iranian university in February 1999, and yet testified that he participated in student demonstrations and a boycott of classes in July 1999, was not supported by substantial evidence in the record.  The finding failed to account for evidence in the hearing transcript showing a general confusion regarding conversion of dates in the Iranian calendar to the Gregorian calendar, as well as the petitioner's specific testimony that he thought he left the university in February 1999, but he was "a little confused" about that date.  See Zahedi v. INS, 222 F.3d 1157, 116-67 (9th Cir. 2000) (noting that minor inconsistencies in dates attributable to language problems have no bearing on credibility).  Moreover, minor inconsistencies relating to dates cannot serve as the sole basis for an adverse credibility determination.  See Bandari v. INS, 227 F.3d 1160, 1160 (9th Cir. 2000) (noting that discrepancies in dates "which reveal nothing about an asylum applicant's fear of his safety" cannot form the basis of an adverse credibility finding).  Although the petitioner was not required to corroborate his testimony, see Abovian v. INS, 219 F.3d 972, 978 (9th Cir. 2000), the BIA's finding that he failed to provide documents corroborating his student status after 1997 was not supported by the record, because the BIA failed to address the Iranian court "verdict" showing that the petitioner was charged with "participation in student demonstrations of 7/9/99," see Zahedi, 222 F.3d at 1163-64 (finding that Iranian court documents showing petitioner was accused of a crime relating to his political activities independently make out the objective component of his asylum claim).  Neither the BIA nor the IJ addressed whether the petitioner's testimony, if credible, would be sufficient to establish eligibility for the relief he requests.  The USCA thus remanded to the BIA for proceedings consistent with this memorandum.

18)  IMMIGRATION:  Singh v. Ashcroft,. 03-71489 (9th Cir. July 25, 2004) (unpublished).  Leavy, Thomas, and Fisher, Circuit Judges.

       Singh, a native and citizen of India, petitioned for review of the BIA's dismissal of his appeal from an Immigration Judge's denial of his application for asylum and withholding of removal.  The USCA granted the petition and remanded for further proceedings. 

       By contending that no adverse credibility determination was made, Singh's brief misstated the content of the BIA and IJ decisions.  While this error bespeaks troubling neglect of the record by counsel, the USCA retained discretion to review the issue of credibility because the government briefed it, and thus suffered no prejudice from Singh's failure to properly raise the issue.  Reviewing the grounds supporting the adverse credibility finding for substantial evidence, the USCA concluded that this standard was not met.  It requires specific explanations of why adverse credibility grounds are significant.  The IJ, whose findings the BIA adopted, did not adequately explain why Singh's trip to Thailand "undercuts" his credibility, particularly given Singh's plausible explanation.  Second, the IJ's reliance on the omission of treatment details in a corroborating letter by Singh's doctor was impermissible.  See Singh v. Ashcroft, 301 F.3d 1109, 1112) ("As the doctor's letter is not inconsistent with Singh's testimony, it cannot serve as the basis for the … adverse credibility determination.")  Similarly, the "gurudwara" letter's failure to mention Singh's first arrest was an inadequate basis for impugning his credibility.  Third, there was no inconsistency between Singh's father's affidavit, stating that the police disposed of Singh's uncle's body, and Singh's testimony that his aunt found the body.  The omission of this detail from Singh's declaration was also "insufficient to uphold an adverse credibility finding."  See Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000).  Fourth, the IJ's conjecture concerning what the police did with the uncle's body and whether Singh's parents would have been interrogated could not constitute substantial evidence.  Fifth, the IJ's disbelief of Singh's recounting of his first arrest did not support the credibility finding because Singh's explanation of why only some "AISSF" members were arrested was plausible.  Moreover, the IJ's reference to "normal police procedure" was speculative, and his attachment of significance to Singh's first indication that he didn't know what had happened to the other three arrested with him appeared to be based on a misapprehension of testimony that could not detract from Singh's credibility.  Sixth, while the USCA said it permits the use of a country report to discredit a general assertion made by an applicant regarding the context in which his alleged persecution took place, the refuted assertion must go to the heart of a petitioner's claim.  The IJ's reference to generalizations about Sikhs' standing in India was not sufficiently tailored to Singh's claim to uphold an adverse credibility finding against him.  Finally, the IJ's requirement that Singh's uncle's death be corroborated was erroneous in the absence of substantial evi-dence showing that such documentation was easily available.