1)  ANTITRUST / TRADE REGULATION:  Dagher v. Saudi Refining, Inc., 02-56509 (9th Cir. June 1, 2004).  In a class action alleging that the defendants conspired to fix nationwide prices for the Shell and Texaco brands of gasoline through the creation of a national alliance consisting of two joint ventures, the USCA reversed the District Court's ruling that the plaintiffs failed to create a triable issue of fact under the Sherman Act.  The plaintiffs had presented sufficient evidence to create a triable issue of fact as to whether the alliance's unified pricing scheme constituted a per se violation of Sec. 1 of the Sherman Act.  Dissenting in part, Judge Fernandez agreed that the plaintiffs lacked standing as to Saudi Refining, Inc. and thus concurred in the result of part of the majority's opinion;  however, he also thought that the case presented a fairly straightforward question to which the answer is "no":  namely, whether where former competitors who have created a bona fide joint venture to which all of their assets and operations in segments of their business are contributed, there will be a per se violation of antitrust laws, if the joint venture sets the price of the goods it sells?  Reinhardt (author), Fernandez (dissenting in part), and Rawlinson, Circuit Judges.  D. Shulman of Minneapolis, Minn., for the appellants;  S. Senator of Los Angeles, CA, for appellee Shell Oil Company;  P. Butler of Washington, DC, for appellee Texaco, Inc.;  B. Merryman of Los Angeles, CA, for the appellee Saudi Refining, Inc. (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  THE RIGHT OF PUBLICITY / JURISDICTION: Schwarzenegger v. Fred Martin Motor Company, 02-56937 (9th Cir. June 30, 2004).  Arnold Schwarzenegger appealed the district court's dismissal of his suit against Fred Martin Motor Company, an Ohio car dealership, for lack of personal jurisdiction.  Without his permission, the dealership ran full-page color advertisements in an locally-circulated Ohio newspaper, each including a photo of Schwarzenegger portrayed as the "Terminator."  Schwarzenegger brought suit in California, alleging that these unauthorized uses of his image infringed his right of publicity.  The USCA affirmed the district court's dismissal for lack of personal jurisdiction.  Schwarzenegger had shown neither general nor specific jurisdiction over the dealership in California;  he failed to show that the dealership had continuous and systematic general business contacts, that approximated physical presence in California, such that it could be sued there for any act it has committed anywhere in the world.  Moreover, while he made out a prima facie case that the dealership committed intentional acts that may have caused him harm, he failed to make out a prima facie case that the dealership expressly aimed its acts at California.  As he failed to satisfy all three parts of the Calder v. Jones, 465 US 783 (1984), effects test, he failed to show that the dealership purposefully directed its conduct at California.  Kleinfeld, Wardlaw, and W. Fletcher (author), Circuit Judges.  J. Martin and D. Howell of Los Angeles, CA, for the appellant;  R. Weatherup of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  TAXATION / JURY INTIMIDATION:  USA v. Rutherford, 03-10158 (9th Cir. June 10, 2004).  In this tax evasion case, the district court erred in failing to allow juror testimony to show intimidation because government agents sat directly behind the prosecution table throughout the trial and allegedly glared at jurors.  The defendants had to prove only the existence of juror intimidation by the IRS, and not also an intent to intimidate.  On remand, the USCA instructed the district court to allow the parties to introduce evidence regarding the jurors' perceptions of the agents' conduct and any discussions among the jurors concerning the possibility of IRS retaliation if they voted to acquit. After reviewing the evidence, if the district court determines that the agents' conduct raised a risk of influencing the verdict, then the presumption of prejudice should be applied.  B. Fletcher and Reinhardt (author), Circuit Judges, and Restani, Court of Intl. Trade Judge.  K. Mirch of Reno, NV, for the defendants-appellants;  R. Lindsay of Washington, DC, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  BANKRUPTCY:  In re JWJ Contracting Co., Inc., 03-15388 (9th Cir. June 14, 2004).  The bankruptcy court rejected the Trustee's preference claim and granted summary judgment to subcontractor Endo Steel, holding that JWJ Contracting Company's payment to Endo within the 90 days preceding the filing of JWJ's bankruptcy petition, replaced a previously dishonored check, was a contemporaneous exchange for new value in the form of Endo's earlier release of a Little Miller Act bond claim, and thus was exempt from avoidance under Bankruptcy Code Sec. 547(c)(1).  The Bankruptcy Appellate Panel reversed, holding that because Endo had given JWJ an unconditional release of the bond claim in exchange for what turned out to be a  NSF check, the subsequent payment that replace the NSF check was given in exchange for what has become an unsecured debt and did not result in a contemporaneous exchange for new value.  The USCA agreed and affirmed the BAP's decision.  Thompson (author), Tashima, and Rawlinson, Circuit Judges.  M. Rubin of Phoenix, AZ, for the plaintiff-appellant;  T. Axelsen of Phoenix, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  BANKRUPTCY:  In re Northern Merchandise, Inc., 02-36065 (9th Cir. June 14, 2004).  Frontier Bank appealed a decision of the Bankruptcy Appellate Panel ("BAP") affirming in part the bankruptcy court's summary judgment in favor of a Chapter 7 Trustee, in the Trustee's action alleging that Frontier received a fraudulent transfer from Chapter 7 Debtor Northern Merchandise, Inc.  Frontier challenged the BAP's ruling that the debtor did not receive reasonably equivalent value under 11 USC Sec. 548(a)(1)(B) in exchange for a security interest it granted to Frontier and, thus, Frontier was not protected under Sec. 548(c).  The USCA reversed, finding that the BAP erred in ruling that the debtor did not receive reasonably equivalent value in exchange for the security interest it granted the defendants. The defendants thus were protected by 11 U.S.C. 548(c).  There was no record evidence that Frontier's receipt of the security interest was an attempt to defraud the debtor's creditors.  Rather, the transaction was simply a means for the debtor to obtain a loan that it would otherwise not be able to receive.  The transaction was not intended to, nor did it result in, any net loss to the debtor's estate.  Frontier thus acted in good faith in receiving the security interest.  Leavy, Wardlaw (author), and Gould, Circuit Judges.  D. Riley of Seattle, WA, for the appellant;  D. Hacker of Seattle, WA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  ENVIRONMENTAL LAW:  USA v. Alisal Water Corp., 02-16594 (9th Cir. June 3, 2004).  A judgment creditor is not entitled to intervene as a matter of right under Fed. R. Civ. P. 24(a) in an environmental enforcement action that may impair the creditor's ability to collect a debt.  Schroeder, Tallman, and Callahan (author), Circuit Judges.  E. Kessler of San Francisco, CA, for the plaintiff-appellee;  M. Fogelman of San Francisco, CA, for the plaintiff-intervenor-appellant;  W. Last of San Mateo, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

7) ERISA:  Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 99-56346 (9th Cir. June 1, 2004).  An ERISA disability plan administrator did not abuse her discretion in denying the plaintiff benefits.  The evidence that she was disabled was slight, and its reliability questionable.  Her physicians failed to respond to requests for explanations of why fibromyalgia disabled her from working.  The plaintiff asked the court to accept a more conclusory remark to that effect from a treating physician, but the USCA noted that to accept a conclusory remark without any explanation is much more easily characterized as arbitrary than what the administrator did. D.W. Nelson, O'Scannlain, and Kleinfeld (author), Circuit Judges.  T. Falvey of Pasadena, CA, for the appellant;  T. Kaufman of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

8)  ERISA / FLSA:  Ballaris v. Wacker Siltronic Corp., 02-35956 (9th Cir. June 3, 2004).  Ballaris sued Wacker to recover 1) unpaid overtime wages under the Fair Labor Standards Act ("FLSA"), 2) unpaid overtime wages under the Oregon wage and hour laws, and 3), equitable remedies and unpaid benefits on account of the company's failure to keep accurate records and to make contributions to employee benefit plans, as required by ERISA.  The USCA found that under FLSA the employer improperly failed to pay employees for time spent dressing in uniforms to work in a "clean" room.  Moreover, the employer could not offset dressing time against an employee's paid lunch period.  The USCA remanded the case for a determination of the amount of unpaid wages due the plaintiffs for time spend in gowning and related activities, putting on and taking off plant uniforms, traveling between clean rooms and locker rooms, and participating in "pass down" briefings.  Reinhardt (author), Silverman, and Clifton, Circuit Judges.  J. Koch of Portland, OR, for the plaintiff;  B. Campbell of Portland, OR, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  EMPLOYMENT DISCRIMINATION:  Enlow v. Salem-Keizer Yellow, 02-35881 (9th Cir. June 10, 2004).  Enlow appealed an order denying his motion for partial summary judgment regarding his Age Discrimination in Employment Act claim, and an order granting Salem-Keizer Yellow Cab Company's cross-motion for summary judgment;  Enlow maintained that he was entitled to summary judgment because he presented direct evidence that Yellow Cab permanently discharged him solely because of his age, 72.  The USCA affirmed the denial of his motion, concluding that Yellow Cab had presented sufficient evidence to raise a genuine issue of material fact regarding whether it terminated Enlow's employment temporarily without discriminatory intent;  the USCA also reversed the order granting Yellow Cab's motion for summary judgment because the district court erred in concluding that Enlow failed to present prima facie evidence that Yellow Cab acted with a discriminatory motive or intent.  Dissenting in part, Judge Ferguson thought that the uncontested facts established a violation of the Age Discrimination in Employment Act and that in ruling otherwise the majority fundamentally misconstrued the discriminatory intent that must be show in a case of facial discrimination.  Alarcon (author), Ferguson (dissenting in part), and Rawlinson, Circuit Judges.  J. Razor of Salem, OR, for the plaintiff;  R. Custis of Portland, OR, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  EMPLOYMENT LAW:  RUI One Corp. v. City of Berkeley, 02-15762 (9th Cir. June 16, 2004).  Berkeley's "living wage" ordinance, which requires certain employers to pay their employees wages approximating the real cost of living in Berkeley, is constitutional, as amended, despite challenges alleging Contracts Clause, Due Process, and Equal Protection violations.  Dissenting, Judge Bybee thought that the City employed its sovereign power to secure terms it failed to negotiate in its proprietary capacity with the plaintiff, RUI One Corporation.  Through an amendment it imposes obligations on a small number of businesses holding long-term contracts with the City and, moreover, makes these obligations retroactive.  Judge Bybee thought that this amendment was a rule of neither general nor prospective applicability, and that the City violated the Contract Clause of the U.S. Constitution because it has impaired by legislation, obligations of its own contracts.  Graber, Wardlaw (author), and Bybee (dissenting), Circuit Judges.  R. Wasserman of Oakland, CA, for the plaintiff;  M. Albuquerque of Berkeley, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  ADMIRALTY / ATTORNEY'S FEES:  The Port of Stockton v. Western Bulk Carrier,, 02-16221 (9th Cir. June 15, 2004).  In a maritime dispute, a party who fails to properly seek attorneys fees in one action is deemed to have waived them and may not bring a separate claim for them in another action.  Schroeder, O'Scannlain (author), and Tashima, Circuit Judges.  G. Koelzer of Los Angeles, CA, for the appellant;  M. Griffin of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ZONING LAW:  Congregation Etz Chaim v. City of Los Angeles, 02-56487 (9th Cir. June 16, 2004).  The City of Los Angeles could not revoke a building permit it issued authorizing renovations to a home used by the plaintiffs as a place of worship.  Because it agreed with the district court that the plaintiff was entitled to rely on issuance of the building permit by the City, the USCA affirmed the district court's order lifting the stop-work order issued by the City.  The district court did not err when it applied equitable estoppel principles and lifted the City's stop-work order.  The plaintiff's permit application was reviewed and approved by the City and the subsequent renovations were undertaken in reliance upon the issuance of a valid building permit.  Dissenting, Judge Aldisert would reverse the judgment of the district court and allow the City to revoke the permit, which he thought contravened the Los Angeles Municipal Code and the explicit limitations and directions of the Settlement Agreement entered into by the parties after five years of administrative proceedings and litigation in federal and state courts.  Judge Aldisert concluded that the plaintiff did not possess a vested right in carrying through the renovations to their completion.  Because he thought the permit was invalid, he would hold that the district court committed reversible error in applying the doctrine of equitable estoppel against the City.  Aldisert (dissenting), Tallman, and Rawlinson (author), Circuit Judges.  C. Henry of Los Angeles, CA, for the defendant-appellant;  K. Davis of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

13) RENT CONTROL / TAKINGS:  Ventura Mobilehome Communities Owners Association v. City of San Buenaventura, 02-56566 (9th Cir. June 10, 2004).  The City of San Buenaventura adopted its Mobile Home Park Rent Stabilization Ordinance in 1981, noting "the lack of alternative homesites for mobile home residents" and a "virtual monopoly" in the rental of mobile home park spaces;  the Ordinance imposed a rent control structure for the claimed purpose of protecting mobile home residents from unreasonable rent increases.  The plaintiff brought regulatory takings claims based on the Ordinance.  The district court dismissed the claims as unripe.  The USCA agreed.  It also concluded that, although the plaintiff may have adequately alleged a timely as-applied regulatory takings claim, such a claim would not have been ripe either.  The plaintiff's due process claim was precluded because such a claim is in reality an unsuccessful takings claim.  And, the plaintiff's equal protection claim failed because the Ordinance is rationally related to a legitimate state interest.  Silverman, Gould, and Bea (author), Circuit Judges.  R. Coldren of Santa Ana, CA, for the plaintiff-appellant;  R. Boehm of Ventura, CA, of San Diego, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  ESTABLISHMENT CLAUSE:  Buono v. Norton, 03-55032 (9th Cir. June 7, 2004).  The plaintiffs maintained that the presence of a Latin cross, the "preeminent symbol of Christianity," on federally-owned land in the Mojave National Preserve, which is managed by the National Park Service, violated the Establishment Clause. The district court granted summary judgment for the plaintiffs and enjoined the defendants from allowing continued display of the cross.  After reviewing the grant of summary judgment de novo, The USCA affirmed, notwithstanding that the land on which the cross sits was in the process of being transferred to private ownership.  Citing Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1274 (9th Cir. 1998), the USCA held that even if the transfer were completed, the defendants had not carried their burden of showing that 1) subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, and 2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.".  Kozinski (author) and T.G. Nelson, Circuit Judges, and Restani, Court of Intl. Trade Judge.  AAG T. Sansonetti of Washington, DC, for defendants-appellants;  P. Eliasberg of Los Angeles, CA, for the plaintiffs-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  PREJUDGMENT INTEREST / CLERICAL ERRORS: McCalla v. Royal Maccabees Life Insurance, 02-17051 (9th Cir. June 3, 2004).  Revisiting a judgment to include mandatory prejudgment interest is not a clerical error under Fed. R. Civ. Proc. 60(a), which sets no time limit within which correction must occur, but instead is an alteration or amendment under Fed. R. Civ. Proc. 59(e), which requires that the motion be filed no later than 10 days after entry of the judgment.  T.G. Nelson, W. Fletcher, and Berzon (author), Circuit Judges.  C. Humbert of Walnut Creek, CA, for the defendant-appellant;  G. McNally of Reno, NV, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  CLASS ACTIONS:  Irwin v. Mascott, 02-16543 (9th Cir. June 4, 2004).  The plaintiffs are a class of California residents who received debt collection letters from Commonwealth Equity Adjustments, Inc., a debt collection agency;  the class action complaint alleged that the content and delivery method of Commonwealth's collection letters violated federal and state law;  the parties consented to proceed to judgment before a magistrate judge, who found for the plaintiff class and issued a permanent injunction against Commonwealth and its agents and affiliates.  Commonwealth, its president, and  Hyde, a non-party corporate officer of Commonwealth, were subsequently found in contempt for violating the injunction and sanctioned by the magistrate judge.  They appealed the finding of contempt and the sanctions, claiming that they had "substantially complied" with the injunction;  Hyde asserted, in addition, that the magistrate judge lacked jurisdiction over him.  The USCA disagreed with both contentions and affirmed the magistrate judge in all respects. Canby, W. Fletcher (author), and Tallman, Circuit Judges.  M. Ellis of Sacramento, CA, for the appellants;  P. Arons of Chicago, IL, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  CIVIL PROCEDURE:  Maldonado v. Harris, 03-15007 (9th Cir. June 4, 2004).  Maldonado appealed the district court's dismissal of his action under 42 USC Sec. 1983, which raised several First Amendment challenges to California's Outdoor Advertising Act.  The district court held that, insofar as Maldonado's constitutional claims were ripe for review, it lacked jurisdiction to review them under the Rooker-Feldman doctrine;  it also held that some of Maldonado's challenges were precluded under California law due to his failure to raise the claims in earlier state proceedings;  based on these findings, the district court granted the defendant's motion to dismiss.  The USCA reversed.  It held that the district court erred in dismissing Maldonado's challenges to the Act on the ground that they were barred on Rooker-Feldman, claim preclusion or ripeness grounds;  it also held that the plaintiff's challenge regarding his commercial signs was barred by the statute of limitations, but that his facial challenge to the statute and his as-applied challenge relating to non-commercial advertisements were not barred;  the USCA thus reversed the dismissal of Maldonado's Sec. 1983 action and remanded so that his claims could be heard on the merits.  B. Fletcher (author) and Reinhardt, Circuit Judges, and Restani, Court of Intl. Trade Judge.  D. Zell of Burlingame, CA, for the plaintiff-appellant;  DAG D. Weingarter of San Francisco, CA,  for the defendants-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  CIVIL PROCEDURE:  In re Lorillard Tobacco Company, 03-16553 (9th Cir. June 7, 2004).  This case arose from the district court's denial of Lorillard Tobacco Company's application for an ex parte order to seize purportedly counterfeit cigarettes.  The case raised the novel issue of whether a seizure order authorized under the trademark law, 15 USC Sec. 1116(d), is an injunction, and whether an interlocutory order denying seizure is thus appealable under 28 USC Sec. 1292(a)(1).  The USCA concluded that because the district court's denial of a motion for an ex parte seizure order is neither an automatically appealable literal refusal of an injunction nor a practical denial of injunctive relief, it lacked jurisdiction to consider Lorillard's appeal.  Dissenting, Judge Callahan thought the court had jurisdiction to hear Lorillard's appeal, and that the district court did not abuse its discretion or clearly err in denying Lorillard's motion;  he would affirm.  Wallace, McKeown (author), and Callahan (dissenting), Circuit Judges.  J. Bailey of Las Vegas, NV for the plaintiff-appellant.(Download the full text of this decision at www.cc9.uscourts.gov/)

19)  CIVIL PROCEDURE:  Valdez v. Allstate Insurance, Company, 03-16253 (9th Cir. June 22, 2004).  Valdez appealed from a summary judgment granted in favor of Allstate Insurance Company on her claim under Arizona tort law for breach of the duty of good faith and fair dealings.  Because the record did not indicate whether the district court properly exercised diversity jurisdiction, the USCA remanded the case.  Wallace (author), Kozinski, and Thomas, Circuit Judges.  W. Arnett of Tempe, AZ, for the plaintiff-appellant;  K. Forsyth of Phoenix, AZ, for the defendant-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

20)  CONSTITUTIONAL LAW / HEALTH LAW:  Tucson Woman's Clinic v. Eden, 02-17375 (9th Cir. June 18, 2004).  The plaintiffs are physicians who provide abortions in their private medical practices in Arizona;  they challenged the constitutionality of a statutory and regulatory scheme which requires the licensing and regulation of any medical facility in which five or more first trimester abortions in any month or any second or third trimester abortions are preformed.  The district court granted the plaintiffs summary judgment in part.  The USCA reversed the summary judgment for the plaintiffs on their undue burden claims.  It affirmed the district court's grant of summary judgment to the defendants on the plaintiffs' equal protection claims and their standardless delegation claim.  The USCA affirmed the grant of summary judgment to the plaintiffs on their Fourth Amendment and informational privacy claims.  It also affirmed the partial grant of summary judgment to the plaintiffs on their vagueness claims, and partial grant of summary judgment to the defendants these claims.  Finally, it remanded to the district court for further proceedings on the undue burden claim.  Tashima, Thomas (author), and Silverman, Circuit Judges.  B. Jones of New York, NY, for the plaintiffs-appellants;  K. Ray of Phoenix, AZ, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  HEALTH LAW:  Erringer v. Thompson, 03-16408 (9th Cir. June 10, 2004).  The class of Medicare beneficiaries in this case were denied coverage for their health care services based on Local Coverage Determinations ("LCDs");  they challenged rules issued by the Secretary of Health and Human Services which give criteria to contractors for adopting the LCDs;  they maintained that the criteria governing the LCDs are substantive rules required to be promulgated under either the notice and comment requirements of the Administrative Procedures Act ("APA"), or the promulgation requirements of the Medicare Act.  The district court held that the unpublished criteria are not subject to the formal rule-making requirements of the APA and Medicare Act because they are interpretive rules.  The USCA affirmed.  O'Scannlain, Siler, and Hawkins (author), Circuit Judges.  S. Hart of Tucson, AZ, for the plaintiffs;  O. Lev of Washington, DC, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  DISABILITY INSURANCE:  Hangarter v. Provident Life and Accident Ins. Co., 02-17423 (9th Cir. June 25, 2004).  The plaintiff, a chiropractor, obtained an "own occupation" disability insurance policy;  she filed a claim for total disability based on shoulder, elbow, and wrist pain;  the defendant insurer paid her benefits for an 11-month period and then terminated the benefits based upon the opinion of its medical examiners and claim investigators that she was not "totally disabled" and continued to work and earn income, making her ineligible for benefits under her policy.  The plaintiff then brought a diversity action alleging violation of Cal. Bus. & Prof. Code Sec. 17200 (the Unfair Competition Act), breach of contract, breach of the covenant of good faith and fair dealing, and intentional misrepresentation against the insurer and its parent.  The jury returned a $7,670,849 verdict in plaintiff's favor, $5 million of which was for punitive damages.  On appeal, the USCA upheld the district court's post-verdict denial of judgment as a matter of law;  it also reversed the district court's permanent injunction under the Unfair Competition Act, finding that the district court erred in determining that the plaintiff had Article III standing to pursue injunctive relief under the Act;  Article III standing requires that the injury be actual or imminent, not conjectural or hypothetical;  the plaintiff, however, had no contractual relationship with the defendants and thus was not personally threatened by their conduct;  as she lacked standing to prosecute an Unfair Competition Act claim for injunctive relief, the USCA directed that the district court vacate the injunction.  Goodwin, Tashima, and Clifton (author), Circuit Judges.  H. Green of San Francisco, CA, for the defendants-appellants;  R. Bourhis of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  SOCIAL SECURITY:  Gillett-Netting v. Barnhardt, 03-15442 (9th Cir. June 9, 2004).  Two minor children conceived by invitro fertilization after their father's death are entitled to insurance benefits under the Social Security Act because they are their father's legitimate children and thus his dependants under Arizona law.  The children's mother conceived the children using sperm that the father deposited before undergoing chemotherapy for cancer.  The Commissioner of Social Security had maintained that the children are not the father's children under the Act and that they were not dependent on the father at the time of his death.  B. Fletcher (author) and Reinhardt, Circuit Judges, and Restani, Court of Intl. Trade Judge.  H. Elul of New York, NY, for the plaintiff-appellant;  S. Swingle of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  FEMA / STORM DAMAGE:  Public Utility District No. 1 of Snohomish County, Washington v. Federal Emergency Management Agency, 03-35104 (9th Cir. June 14, 2004).  FEMA did not act in an arbitrary and capricious manner when it conducted post-award audits of the federal disaster relief grants issued to the plaintiff for damages incurred due to storms.  In addition, res judicata did not apply to FEMA's initial calculations of "amounts eligible."  Canby, Wardlaw, and Gould (author), Circuit Judges.  M. Goldfarb of Seattle, WA, for the plaintiff-appellant;  C. Hancock of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  FIRST AMENDMENT:  Southern Oregon Barter Fair v. Jackson County, Oregon, 02-35560 (9th Cir. June 24, 2004).  The USCA upheld the district court ruling in this case in which the plaintiffs challenged Oregon's Mass Gathering Act.  It found that the Act constituted a proper content-neutral time, place and manner regulation.  Alarcon, Rawlinson, and Bybee (author), Circuit Judges.  B. Michaels of Eugene, OR, for the plaintiff-appellant;  AAG C. Hutchins of Salem, OR, for the defendant-intervenor-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  CIVIL RIGHTS / EVIDENCE / IMMUNITY: Butler v. Cervantes, 02-57049 (9th Cir. June 4, 2004).  The plaintiffs, six black men, were tried in California state court for the felony-murder of a police officer who had been shot and killed while chasing a fleeing suspect through a San Diego park in 1988;  the defendants in the instant action were the prosecutor in the murder trial: namely, the  San Diego's Deputy District Attorney, and his investigator.  The star witness during the 1993-94 murder trial was then then-incarcerated Darin Palmer, who had agreed to cooperate with the prosecution;  four of the six plaintiffs were found guilty, one pleaded guilty to a lesser charge, and one was acquitted;  the five convicted defendants were sentenced to long prison terms.  In 1997, an article in the San Diego Union-Tribune described favors provided Palmer by the DDA and his investigator, including claims that they repeatedly transferred Palmer from prison for sexual trysts with various women in the DA's office.  Photos of Palmer having sex in the DA's office accompa-nied the article.  The five convicted defendants then filed habeas petitions in state court.  That court granted the petitions and vacated the convictions.  The trial judge disqualified the San Diego AG in favor of the California AG who offered a plea bargain.  The convicted defendants accepted the offer, pleaded guilty to voluntary manslaughter, received time served, and were immediately released.  The five convicted defendants and one acquitted defendant then brought a 42 USC Sec. 1983 action against the DDA and his investigator.  These defendants moved for summary judgment based on absolute immunity.  After their motions were granted in part and denied in part, they appealed that part of the district court's order denying summary judgment.  The USCA vacated and remanded, holding that the district court applied an incorrect evidentiary standard as it had incorrectly understood the law to require it to assume that factual allegations in a plaintiff's Sec. 1983 complaint are true when a defendant moves for summary judgment based on official immunity.  Based on that misunderstanding, the district court did not rule on the admissibility of evidence proferred by the plaintiffs, but rather simply assumed that the factual allegations in the complaint were true without regard to whether they had evidentiary support.  Pregerson, Cowen, and W. Fletcher (author), Circuit Judges.  E. Iredale of San Diego, CA, for the appellees;  J. Wood of La Jolla, CA, and M. Hill of San Diego, CA, for the appellants. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  ARBITRATION / NATIVE AMERICAN LAW: Peabody Coal Company v. Navajo Nation, 03-15272 (9th Cir. June 15, 2004).  The district court lacked subject matter jurisdiction over a suit brought by a non-Indian corporation against the Navajo Indian Tribe.  The suit sought enforcement of an arbitration settlement agreement made between Peabody Western Coal Company and the Navajo Nation setting royalty rates for coal mined pursuant to a commercial lease.  The lease had been approved by the Department of the Interior.  Peabody maintained that the federal question was the enforceability of commercial Indian mineral leases approved by the Secretary of the Department of Interior.  The USCA held that Peabody's claim did not meet the requirements of federal question jurisdiction under 28 USC Sec. 1331, and thus affirmed the district court's dismissal.  Schroeder, Tallman (author), and Callahan, Circuit Judges.  T. Reed of Alexandria, VA, for the plaintiffs;  T. Fenzl of Phoenix, AZ, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  NATIVE AMERICAN LAW / LABOR LAW:  Snyder v. The Navajo Nation, 02-16632 (9th Cir. June 10, 2004).  The Fair Labor Standards Act did not apply to tribal police officers' overtime claims where law enforcement was an intramural matter within the meaning of Donovan v. Couer d'Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985).  Schroeder (author), Tallman, and Callahan, Circuit Judges.  E. Fitzhugh of Tempe, AZ, for the plaintiffs-appellants;  D. Bobroff of Window Rock, AZ, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  IMMIGRATION: Lopez-Alvarado v. Ashcroft, 02-74204 (9th Cir. June 15, 2004).  Under 8 USC Sec. 1229b(b)(1), to qualify for the discretionary relief of cancellation of removal, an alien must, as a threshold matter, have been physically present in the United States for a continuous period of no less than ten years immediately preceding the date of the application.  In denying the petitioner's application for cancellation or removal, the Immigration Judge improperly required documentary evidence of the time element, despite substantial evidence supporting continuous presence and the lack of an adverse credibility finding.  Because the IJ did not advance legitimate reasons for rejecting the testimony, the Board of Immigration Appeals erred in affirming his decision.  The USCA thus granted the petition for review and remanded for consideration of the discretionary determinations of extreme hardship and moral character.  Reinhardt, McKeown (author), and Paez, Circuit Judges.  D. Smith of San Francisco, CA, for the petitioner;  AUSA P. Keisler of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  IMMIGRATION:  Sun v. Ashcroft, 02-36132 (9th Cir. June 4, 2004).  Petitioner Sun was born in a refugee camp in Thailand as a Cambodian refugee;  he entered the U.S. in 1979 at the age of 2 1/2 months;  his status was adjusted to lawful permanent resident in 1983, retroactive to his date of entry.  In 2001, he pled guilty to possession of a stolen firearm and was sentenced to a year and a day in jail.  The INS then issued a Notice to Appear, alleging that Sun was removable due to the firearm conviction.  The Notice was amended to charge an aggravated felony.  In 2002, an Immigration Judge issued an order of removal on this basis, finding Sun ineligible for asylum and cancellation of removal.  Sun then withdrew his applications for withhold of removal and relief under the Convention Against Torture.  He waived his right to appeal, thereby making his removal order final.  He next filed a habeas petition in federal district court where a magistrate judge recommended that the petition be denied.  The district court judge adopted her report without comment. The USCA affirmed.  Sun's failure to exhaust his administrative remedies prevented the USCA from reviewing his refugee status claim.  The USCA thus concluded that no constitutional violation would arise from Sun's removal.  Thompson, Hawkins, and Berzon (author), Circuit Judges.  R. Pauw of Seatle, WA, for the petitioner;  AUSA C. Pickrell of Seattle, WA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  IMMIGRATION:  Dinu v. Ashcroft, 02-74208 (9th Cir. June 18, 2004).  Police harassment which included threats of prosecution, but where no charges were brought, did not constitute harassment on account of political opinion for purposes of asylum.  Dissenting, Judge Thomas noted that the petitioner was taken into police custody every month for an extended period, beaten, and threatened with death if he did not sign a false confession;  he claimed, without contradiction, that these beatings were motivated by a desire on the part of the police to discredit the former Ceausescu regime by trying to "find guilty people or invent them so the communist can justify their overthrow of the former president." Believing that the immigration judge failed to apply the presumption that the motive for persecution is political in the absence of a legitimate government prosecution and that the IJ also failed to apply the proper mixed-motive analysis, Judge Thomas would grant the petition for review.  Wallace, Kozinski (author), and Thomas (dissenting), Circuit Judges.  R. Jobe of San Francisco, CA, for the petitioner;  AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  IMMIGRATION:  Garcia-Martinez v. Ashcroft,02-74068 (9th Cir. June 14, 2004).  Based on the court's finding that, in the minds of the Guatemalan military, the plaintiff's rape was due to her village's political affiliation with the guerillas, and that her rape was clearly persecution, the USCA remanded the case to the BIA for a determination of eligibility for asylum or other relief.  Thompson, Tashima, and Rawlinson (author), Circuit Judges.  R. Cardozo of Oakland, CA, for the petitioner;  P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  IMMIGRATION:  Acevedo-Carranza v. Ashcroft, 03-55822 (9th Cir. June 7, 2004).  The defendant's 28 USC Sec. 2241 habeas petition was properly denied as it raised an issue for which he had not exhausted his judicial remedies;  in addition, the USCA lacked authority to cure the defect by transferring the case to itself.  The defendant failed to exhaust his judicial remedies prior to petitioning for habeas review by not timely petitioning for review on the issue of whether he was an aggravated felon.  Hall, Trott, and Callahan (author), Circuit Judges.  M. Hilts of San Diego, CA, for the petitioner;  AUSA S. Bettany of San Diego, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION:  Lopez-Molina v. Ashcroft, 02-74095 (9th Cir. June 2, 2004).  At issue here was whether 8 USC Sec. 1252(a)(2)(C), the jurisdiction-stripping provisions of the Illegal Immigration Reform and Immigrant Responsibility Act, which deprives appellate courts of jurisdiction to review orders of removal where the alien is removable by reason of having "committed a criminal offense," applies when the alien is found removable on the ground that an immigration official has "reason to believe" that the alien is an illicit drug trafficker.  The USCA found reasonable, substantial, and probative evidence for the Immigration Judge to have "reason to believe" that the alien here knowingly participated in illicit drug trafficking, and is thus removable under Sec. 1182(a)(2)(c).  The USCA found itself barred from reviewing that removal order;  in addition, the USCA was precluded from direct review of the alien's evidentiary and due process claims.  Dissenting, Judge Tashima disagreed that the jurisdiction-stripping provision applied, and, as there had been no finding that the alien committed a criminal offense, he would hold that the USCA had jurisdiction and would reach the merits of the petition.  Tashima (dissenting) and Clifton (author), Circuit Judges, and Leighton, District Judge.  B. Polis of Tucson, AZ, for the petitioner;  G. Holm of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  IMMIGRATION:  Tokatly v. Ashcroft, 03-70473 (9th Cir. June 10, 2004).  The petitioner, a native of Syria and legal permanent resident, appealed the BIA's streamlined decision finding him removable for having been convicted of a "crime of domestic violence."  The USCA found the Taylor v. USA, 495 US 575 (1990), "categorical and modified categorical approach" applicable to INA Sec. 237(a)(2)(E)(i), and that neither the BIA nor itself may look beyond the record to determine whether the crime for which the alien was convicted is a "crime of domestic violence" under the statute.  The USCA thus held that the IJ erred in relying on testimonial evidence adduced at the immigration proceeding, including the petitioner's own admissions regarding the nature of his relationship with the victim, and in finding him removable under Sec. 237(a)(2)(E)(i).  Reinhardt (author), Silverman, and Clifton, Circuit Judges.  J. Redfern of Washington, DC, for the respondent;  R. Hecht of Eugene, OR, for the petitioner. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  IMMIGRATION:  Laing v. Ashcroft, 03-56158 (9th Cir. June 7, 2004).  Laing, a native of Jamaica, appealed the district court's denial of his 28 USC Sec. 2241 habeas petition.  Because the district court erred in finding that Laing had exhausted his judicial remedies and in determining that exhaustion would be futile, the USCA remanded to the district court to vacate its order denying the writ and to dismiss the petition.  Hall, Trott, and Callahan (author), Circuit Judges.  AUSA C. Ford of Los Angeles, CA, for the respondents;  R.W. McMillan of Pasadena, CA, for the petitioner. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  IMMIGRATION:  Njuguna v Ashcroft, 02-73143 (9th Cir. June 28, 2004).  Njuguna, a citizen of Kenya, entered the United States on a visitor's visa and overstayed;  he asserted a well-founded fear of persecution due to political opinion as the basis for his asylum;  his fear stemmed from his assisting two Kenya women escape from Saudi royal family's employ while they were with that family on a visit to the United States.  The family had asked a Kenyan Minister for two Kenyan women who could work for them as domestic servants.  The women later claimed they had been treated as slaves;  they applied for and received U.S. asylum. These events allegedly triggered retaliatory acts against Njuguna's family in Kenya.  The USCA held that Njuguna was eligible for asylum and withholding of deportation due his well founded fear of persecution based on his political views.  It vacated the BIA's denial of withholding of removal and asylum, granted withholding of removal, held Njuguna eligible for asylum, and remanded to the Attorney General to exercise his discretion whether to grant asylum.  Hug (author), B. Fletcher, and Wardlaw, Circuit Judges.  D. Hamilton of Buena Park, CA, for the petitioner;  A. Drucker of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

38)  IMMIGRATION:  San Pedro v. Ashcroft, 02-74367 (9th Cir. June 23, 2004).  The petitioner, a citizen of the Philippines, entered the U.S. in 1987 on a preference visa as the unmarried son of a U.S. citizen.  He willfully misrepresented to the INS that he was unmarried when, in fact, he had been married since 1983 to a woman living in the Philippines.  The Board of Immigration Appeals upheld an immigration judge's decision to deny the petitioner a waiver of removal under Immigration and Nationality Act Sec. 237(a)(1)(H) based on the willfully misrepresentation of his marital status at the time of entry.  The petitioner challenged this determination.  The USCA denied the petition.  D.W. Nelson (author), Kozinski, and Graber, Circuit Judges.  N. Milner of San Diego, CA, for the petitioner;  A. Nicastro of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  IMMIGRATION:  Cheema v. Ashcroft, 02-71311 (9th Cir. June 24, 2004).  The petitioner and his wife sought review of an order of the Board of Immigration Appeals denying them asylum and the withholding of deportation and holding them eligible for relief under the Convention Against Torture but granting them only deferral of removal.  The USCA held that the BIA's denial of withholding and asylum for the wife could not be sustained due to the lack of any evidence that reasonable grounds existed to believe that she is a danger to the security of the Untied States;  the USCA remanded to permit the BIA to exercise discretion on the withholding and asylum petitions of the husband;  the USCA sustained the BIA's deferral of removal for both petitioners and its denial of full relief to the husband under the Convention.  Dissenting, Judge Rawlinson thought that, "contrary to the majority's apparent view, our country should not become a haven for those who desire to foment international strife from our shores." He noted that the BIA's finding that the petitioner materially supported terrorist activity was bolstered by substantial evidence, including the petitioner's own testimony.  Noonan (author), McKeown, and Rawlinson (dissenting), Circuit Judges.  R. Jobe of San Francisco, CA, for the petitioners;  E. Kanter of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  IMMIGRATION:  Wong v. INS, 02-35727 (9th Cir. June 25, 2004). The plaintiff claimed that the INS interfered with her First Amendment right to practice religion by denying her vegetarian meals, subjecting her to strip searches, and denying her access to her followers.  The appeal raised issued regarding the scope of jurisdiction-stripping provisions of the Immigration and Nationality Act, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the boundaries of the constitutional protections afforded aliens returning from abroad, and the availability of the qualified immunity defense to federal officials facing Religious Freedom Restoration Act claims.  The defendants moved to dismiss for lack of subject matter jurisdiction, failure to state a claim, and qualified immunity.  The magistrate judge recommended the denial of the motion to dismiss in a report of her findings and recommendations, which was adopted in full by the district court.  The USCA affirmed the denial of the INS officials' motion to dismiss on all claims against the individual defendants.  It declined to exercise jurisdiction over the government's appeal and remanded the remainder of the action for further proceedings.  Goodwin, Hug, and Berzon (author), Circuit Judges.  AUSA A. Murphy of Washington, DC, for the defendants;  Z. Tewksbury of Portland, OR, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  SEX & THE INTERNET:  USA v. Dhingra, 03-10001 (9th Cir. June 8, 2004).  The USCA concluded that 18 USC Sec. 2422(b) (proscribing use of the internet to solicit sexual activity from a minor) is neither facially unconstitutional as overbroad, vague, nor violative of the First or Tenth Amendments for incorporating state criminal sex offense statues.  The USCA thus affirmed the defendant's conviction and sentence to 24 months custody and three years probation.  Wallace, Noonan, and McKeown (author), Circuit Judges.  W. Weiner of San Francisco, CA, for the appellant;  AUSA H. Horsley of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  DRUG OFFENSES:  USA v. Ford, 03-10194 (9th Cir. June 8, 2004).  Where Ford had been acquitted for "knowingly opening" real estate for the purpose of distributing cocaine, the government is collaterally estopped from later prosecuting him for "managing and controlling" the same real estate for drug-dealing. O'Scannlain (author), Hawkins, and Fisher, Circuit Judges.  S. Shaheen of Richmond, CA, for the defendant;  AUSA M. Scott of Fresno, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  CRIMINAL LAW:  USA v. Anderson, 02-10600 (9th Cir. June 10, 2004).  Anderson appealed the district court's judgment convicting him of conspiracy and money laundering.  Holding that the government failed to specify one of the offenses identified by 18 USC Sec. 1956 as an offense permissibly represented in a sting operation, the USCA overturned the defendant's conviction for money laundering.  It affirmed his conviction for conspiracy.  Judge Wallace concurred with the majority, except in its analysis of bank fraud as "specified unlawful activity" under Sec. 1956(a)(3);  he agreed that Anderson's conviction had to be reversed because an undercover agent represented that the money he gave Anderson was fraudulently obtained from his clients rather than from a financial institution.  But, he thought the majority did not need to go further than this.  He thus did not agree that the USCA had also to reverse on the ground that the agent failed to represent to Anderson that the financial institutions allegedly involved were federally insured.  Wallace (concurring), Noonan (author), McKeown, Circuit Judges.  M. Ware of Sacramento, CA, for the defendant;  AUSA B. Wagner of Houston, TX, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  SEARCH & SEIZURE:  USA v. Cunag, 03-50067 (9th Cir. June 14, 2004).  Cunag sought to suppress stolen mail seized by police from a hotel room which he had procured by registering under a false name, using a dead woman's credit card, and providing admittedly forged authorization and identification documents.  The record contained ample and compelling evidence that he was not lawfully present in the hotel room because he had procured it by fraud.  The USCA thus held that Cunag had no legitimate expectation of privacy in the room, and affirmed the district court's denial of his motion to suppress the evidence.  Hall, Trott (author), and Callahan, Circuit Judges.  W. Harris of South Pasadena, CA, for the defendant;  AUSA P. Rhyne of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  SEARCH & SEIZURE:  USA v. Nielsen, 03-30347 (9th Cir. June 9, 2004).  Nielsen appealed his conviction and sentence for possession of methamphetamine with the intent to distribute in violation of 21 USC Sec. 841(a)(1).  He maintained that the warrant issued to search his home was unsupported by probably cause, that testimonial hearsay was introduced at his trial in violation of the Confrontation Clause, and that the district court erred in declining to grant a downward adjustment for acceptance of responsibility.  The USCA affirmed.  Probable cause existed for the search warrant as all of the informants named in the supporting affidavit stated that they had first-hand knowledge of the defendant's drug trafficking based on their own drug buys.  In addition, the district court did not err in failing to grant a sentence adjustment for acceptance of responsibility.  Tashima, Paez, and Bea (author), Circuit Judges.  R. Yengich of Salt Lake City, UT, for the defendant;  W. Mercer of Billings, MT, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  SEARCH & SEIZURE / CIVIL RIGHTS: Boyd v. Benton County, 02-35776 (9th Cir. June 28, 2004).  The USCA upheld the district court's conclusion that a material issue of fact existed as to whether the plaintiff's Fourth Amendment rights were violated during the execution of a search warrant during which police used a "flash-bang" device to subdue the plaintiff; but the USCA also agreed with the district court that the law governing the officers' conduct and the plaintiff's rights under the circumstances of this case were not clearly established at the time of the plaintiff's injury. The plaintiff had maintained that the use of the "flash-bang" device constituted excessive force.  McKeown and Fisher, Circuit Judges, and Gonzalez (author), District Judge.  R. Foley of Portland, OR, for the plaintiff-appellant-cross-appellee;  R. Franz of Springfield, OR, for the defendants-appellees-cross-appellants;  J. Schroer of Portland, OR, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

47)  BATSON CHALLENGES:  Paulino v. Castro, 02-55924 (9th Cir. June 14, 2004).  The defendant, a black man on trial for kidnapping, robbery, and murder, made a valid prima facie Batson challenge based on the prosecutor's failure to show race-neutral grounds for striking five black jurors;  the process employed by the trial court to evaluate the defendant's objection contravened the procedure out-lined in Batson; in particular, it did not let the defendant to explain the basis for his objection  Kozinski (author), O'Scannlain, and Silverman, Circuit Judges.  T. Law of Sherman Oaks, CA, for the petitioner;  AAG R. Anderson of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  FIREARMS & DRUGS:  USA v. Krouse, 02-50458 (9th Cir. June 4, 2004).  On an matter of first impressions, the USCA addressed what it means to possess a firearm "in furtherance of" a drug trafficking offense under 18 USC Sec. 924(c)(1)(A).  It found a sufficient nexus between weapons found in the defendant's home office and a drug trafficking operation also discovered in that office support his conviction for possession of a firearm in furtherance of a drug trafficking offense under Sec. 924.  It upheld his conviction and 161-month sentence.  Goodwin, Pregerson, and Tallman (author), Circuit Judges.  W. Kopeny of Irvine, CA, for the defendant;  AUSA T. Tristan of Santa Ana, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  ENTRAPMENT:  USA. Ross, 02-50226 (9th Cir. June 21, 2004).  The USCA affirmed the defendant's drug trafficking conviction, finding that he had not been prejudiced by the government's behavior, including its failure to disclose that a key informant had been rewarded with illegally obtained permanent resident status.  Kozinski and T.G. Nelson, Circuit Judges, and Restani (author), Court of Intl. Trade Judge.  F. Ragen of San Diego, CA, for the defendant;  AUSA R. Haines of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  DURESS DEFENSE:  USA v. Verduzco, 03-50044 (9th Cir. June 29, 2004).  At issue here was whether the defendant, who drove a marijuana-laden vehicle into the U.S. from Mexico, was validly convicted of illegal drug importation.  The defendant denied neither his act nor intent;  instead, he maintained that drug traffickers forced him to smuggle the drugs.  The USCA concluded that the defendant was properly convicted, despite his vigorous duress defense, and that the trial court acted within its discretion in admitting his prior drug offense.  Bright, O'Scannlain (author), and McKeown, Circuit Judges.  T. Scott of San Diego, CA, for the defendant;  AUSA D. Bishop of San Diego, CA, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  CONSPIRACY:  USA v. Recio, 99-30135 (9th Cir. June 15, 2004).  The U.S. Supreme Court remanded the USCA initial opinion in this case, finding that it relied upon the criminal conspiracy rule set out in USA v. Cruz, 127 F.3d 791 (9th Cir. 1997) (a conspiracy continues until there is affirmative evidence of abandonment, withdrawal or defeat of the conspiratorial objective), which it had overruled.  A majority of the USCA panel recognized that Cruz was erroneous, but reversed the defendants' convictions on other grounds and remanded to the district court with instructions to vacate the defendants' conspiracy to distribute cocaine and marijuana convictions and to order a new trial.  Dissenting, Judge Gould thought that the majority had persisted in reversing the defendants' convictions on faulty grounds;  the majority, he thought, now had substituted its will for the jury's verdict on what are essentially questions of fact, and that the majority contravened the considered verdicts of the jury which found the defendants guilty beyond a reasonable doubt.  Browning (author), B. Fletcher, and Gould (dissenting), Circuit Judges.  M. Shurtliff of Boise, ID, and T. Sullivan of Caldwell, ID, for the defendants-appellants; T. Moss of Boise, ID, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

52)  COLLATERAL ATTACKS:  USA v. Crowell, 03-30041 (9th Cir. June 30, 2004).  At issue here was whether a person convicted of a crime may collaterally attack her conviction by moving to expunge the records of her conviction.  The USCA held that she cannot do so and affirmed the judgment of the district court.  The defendant could not employ a motion for expungement as a substitute for an appropriate post-conviction challenge to her conviction;  insofar as she had not obtained a judgment that her conviction must be vacated or otherwise set aside, the defendant sought equitable relief and the district court lacked ancillary jurisdiction to grant her motion.  Alarcon, Rawlinson, and Bybee (author), Circuit Judges.  DFPD S. Sady of Portland, OR, for the defendant-appellant;  AUSA J.R. Scruggs of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  SENTENCING:  USA v. Crawford, 01-50633 (9th Cir. June 21, 2004).  The defendant appealed the district court's denial of his motion to suppress a statement that he made to law enforcement officers, maintaining that the statement was taken in violation of his Fourth Amendment protection against unreasonable searches and seizure and in violation of his entitlement to Miranda warnings under the Fifth Amendment.  He also appealed the district court's imposition of a two-level sentence enhancement for physical restraint of a victim during the commission of the offense.  The USCA affirmed the defendant's conviction, but vacated his sentence and remanded for resentencing.  The defendant successfully challenged the enhancement for restraining his victim because the district court failed to determine whether he had a "sustained focus" constituting physical restraint as required by USA v. Parker, 241 F.3d 1114 (9th Cir. 2001), in cases that do not involve forcible restraint of the victim.  The USCA assumed, without deciding, that the parole search of the defendant's residence, and his detention during it, were illegal under the Fourth Amendment;  but, it also found that it did not need to decide whether "Fourth Waivers" are valid, what they mean, or whether suspicionless parole searches violate the Fourth Amendment;  rather, the USCA concluded that under Supreme Court precedents governing an analysis of the relationship between an illegal detention or illegal search and a defendant's confession, the defenant's confession was admissible.  Judge O'Scannlain joined Judge Trott's concurrence in its entirety;  as he thought there was no Fourth Amendment violation, he joined Judge Graber's majority opinion except as to Part A.1, which he said assumes the contrary.  Judge Trott, joined by Judges O'Scannlain, Kleinfeld, Tallman, and Clifton, concurred in the majority's opinion to the extent that 1) it concludes that the defendant's incriminating statements were admissible against him at trial., and 2) affirms his conviction.  However, from Judge Trott's perspective, because the defendant was a California parolee and, as such subject to random searches as well as seizures and detention, he was not the victim of a Fourth Amendment constitutional violation.  Concurring, Judge Kleinfeld found Judge's Trott's approach preferable, because it usefully clarifies the constitutional relationship of states and parolees, and because New York v. Harris, 495 US 14 (1990), held that "attenuation analysis is only appropriate where, as a threshold matter, courts determine that 'the challenged evidence is in some sense the product of illegal government activity.'"  There was no illegal government activity here, Judge Kleinfeld thought, and that is the end of it.  Dissenting, Judge Fletcher, joined by Judges Pregerson and Tashima, thought that none of the explicit conditions of the defendant's parole authorized a suspicionless search whose sold purpose was to investigate a pre-parole crime.  Because the search and accompanying detention were conducted without any suspicion, Judge Fletcher thought they violated the Fourth Amendment.  Schroeder, Pregerson (dissenting), Kozinski, O'Scannlain (concurring), Trott (concurring) Kleinfeld (concurring), Tashima (dissenting), Graber (author), W. Fletcher (dissenting), Tallman, and Clifton, Circuit Judges.  M. McCabe of San Diego, CA, for the defendant-appellant;  AUSA D. Curnow of San Diego, CA, for the plaintiff-appellee;  DAG D. Calandra of Sacramento, CA, for the intervenor.  (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  SENTENCING:  USA v. Kellum,  02-50555 (9th Cir. June 24, 2004).  On a matter of first impression, the USCA held that where a defendant was charged under two separate indictments that were later grouped together for sentencing, he was eligible for a 2-level downward acceptance of responsibility sentence adjustment where he pleaded guilty to the charges in one indictment but went to trial and was convicted under charges in the other indictment.  Silverman, Gould (author), and Bea, Circuit Judges.  DFPD J. Libby of Los Angeles, CA, for the defendant-appellant;  AUSA G. Weingart of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  SENTENCING:  USA v. Awad, 01-50408 (9th Cir. June 9, 2004).  Awad appealed the sentence imposed on him following his guilty plea to one count of illegally possessing pseudoephedrine in violation of 21 USC Sec. 841(d)(2).  The USCA concluded that the district court erred in imposing the sentence as it was based on the mistaken view that the defendant's presentence cooperation could be assessed later via a Fed. R. Crim. Proc. 35(b) motion;  the district court's refusal to characterize the defendant as "minimal participant" in the offense, which would justify a further downward departure, was not erroneous.  Hall (author), O'Scannlain, and McKeown, Circuit Judges.  T. Law of Sherman Oaks, CA, for the defendants;  AUSA T. O'Brien of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  SENTENCING:  USA v. Wright, 03-30142 (9th Cir. June 15, 2004).  The defendant James Wright appealed his 15-year sentence for the production of material involving the sexual exploitation of his 11-month old son.  His wife, Tracy, appealed her 20-year sentence for the possession and receipt of material involving the sexual exploitation of several children.  Both challenged the district court's 4-level upward departure under Sentencing Guideline Sec. 5K2.8 for extreme conduct, and both challenged the application of the 2-level vulnerable victim adjustment of Guideline Sec. 3A1.1.  Tracy separately maintained that the court improperly used her relevant conduct—which included the production of images of her husband engaging in sexually explicit conduct with their 3-year old son, a 17-month old girl, a 3-year old girl, and a 13-year old girl—to apply Guideline Sec. 2G2.2(c)'s cross-reference to Guideline Sec. 2G2.1.  The USCA held that the district court did not err in calculating the Wrights' sentences.  It rejected the defendants' appeal of the upward sentence departures for extreme conduct and vulnerable victim.  D.W. Nelson (author), Kleinfeld, and Fisher, Circuit Judges.  O. Jupiter of Seattle, WA, and Z. Olbertz of Tacoma, WA, for the defendants-appellants;  AUSA K. Warma of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  SENTENCING:  USA v. Hernandez-Hernandez, 02-30429 (9th Cir. June 30, 2004).  The USCA concluded that the defendant's 16-level sentencing enhancement did not violate Apprendi because the government did not have to charge in the indictment, presented to the jury, and prove beyond a reasonable doubt that the defendant previously was deported pursuant to a felony conviction;  the district court properly applied this enhancement because the defendant's prior convictions for false imprisonment qualified as "crimes of violence."  The USCA upheld the district court's determination that the defendant's prior conviction for threats to do harm may be counted under Sentencing Guideline Sec. 4A1.2(c)(1) because it is not similar to the listed offense of disorderly conduct.  Dissenting in part, Judge Kleinfeld said he concurred in all of the majority's opinion except for part III, which applies the "modified categorical approach" to the defendant's prior conviction, resulting in a 16-level increase in the defendant's offense level. As to that part, Judge Kleinfeld dissented.  Kleinfeld (dissenting in part), Gould, and Tallman (author), Circuit Judges.  R. Pennell of Yakima, WA, for the defendant-appellant;  AUSA J. Kirk of Yakima, WA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  HABEAS CORPUS:  Anderson v. Morrow, 02-35675 (9th Cir. June 7, 2004).  In 1993, Anderson was convicted of first-degree rape and sodomy under Oregon law which prohibit sexual intercourse with a person "incapable of consent by reason of mental defect."  The USCA denied his habeas petition, finding that the trial court did not err in failing to admit evidence of his rape victim's sexual history and reputation and that the Oregon law was not unconstitutionally vague.  Dissenting in part, Judge Berzon thought that weighty state and personal liberty interests were placed at issue by an extremely important question raised at oral argument:  Does Lawrence v. Texas, 123 S. Ct. 2472 (2003), which creates a substantive due process right to private consensual sex, have any bearing on the precision with which the government must act when criminalizing an otherwise consensual sexual act on the ground that one of the participants is too retarded to consent to sexual contact?  Judge Berzon thought that, although the majority reached the issue, procedural obstacles and prudential considerations militated against doing so.  Serious constitutional questions such as this one should not, she thought, be decided after 90 seconds of oral argument on appeal from the denial of federal habeas relief.  She dissented from the majority's decision to reach this issue and also from the majority's treatment on the merits the petitioner's Lawrence argument.   Goodwin (author), Hug, and Berzon (dissenting in part), Circuit Judges.  AFPD T. Hester of Portland, OR, for the petitioner;  AAG K. Cegla of Salem, OR, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  HABEAS CORPUS / PERJURY:  Chein v. Shumsky, 01-56320 (9th Cir. June 25, 2004).  The USCA granted the defendant's habeas petition, finding that there was constitutionally insufficient evidence to supporting his perjury convictions which were based upon his providing misleading information regarding his medical credentials.  Dissenting, and joined by Judges Rymer, T.G. Nelson, Rawlinson, and Clifton, Judge O'Scannlain did not believe that the State of California deprived Chein of his constitutional rights. Schroeder, O'Scannlain (dissenting), Rymer, T.G. Nelson, Hawkins, McKeown, Wardlaw, Gould, Berzon (author), Rawlinson, and Clifton, Circuit Judges.  C. Sevilla of San Diego, CA, for the petitioner;  B. Ferriera of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  HABEAS CORPUS:  Martinez v. Garcia, 02-56678 (9th Cir. June 10, 2004).  When jury instructions contain two theories of guilt, one of which is untenable, and the court cannot discern which theory the jury relied upon, a structural error has occurred.  Specifically, the USCA said it could not determine whether the jury found that Martinez committed attempted premeditated murder with respect to Robert Jimenez or whether the jury applied the transferred intent doctrine to convict Martinez.  This is particularly true since the prosecution, in its opening statement and closing argument, argued premeditation with respect to the attempted murder of Peter Jimenez, but, with respect to Robert Jimenez, it relied on the transferred intent doctrine.  The USCA reversed district court's denial of the defendant's habeas petition, as the state court's failure to apply the precepts governing undifferentiated alternative theories of conviction resulted in a decision that is contrary to the clearly established federal law articulated in Carella v. California, 491 US 263 (1989), Boyde v. California, 494 US 370 (1990), and Mills v. Maryland, 486 US 367 (1988).  The USCA remanded with instructions to grant the petition unless the state, within a time to be established by the district court, elects to retry Martinez on the attempted murder charge.  Aldisert, Tallman, and Rawlinson (author), Circuit Judges.  M. Marshall of Pasadena, CA, for the petitioner;  DAG W. Robinson of San Diego, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  HABEAS CORPUS:  Medina v. Hornung, 02-56484 (9th Cir. June 23, 2004).  The USCA denied the defendant's habeas petition because a federal court reviewing a state court harmless error analysis under 28 USC Sec. 2254(d)(1)'s "unreasonable application" clause must first determine the objective unreasonableness of the state court's harmless error analysis;  if the state court's decision does not rise to the level of objective unreasonableness, the USCA said its inquiry ends;  however, if he state court's analysis is objectively unreasonable, thereby reflecting an unreasonable application of clearly established federal law, the USCA said it then applies the test of Brecht v. Abrahamson, 507 US 619 (1993), to determine whether the petitioner is entitled to habeas relief.  Noonan, Tallman, and Rawlinson (author), Circuit Judges.  C. Sevilla of San Diego, CA, for the petitioner-appellant;  DAG S. Oetting of San Diego, CA, for the respondent-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  HABEAS CORPUS:  Lounsbury v. Thompson, 02-35863 (9th Cir. June 29, 2004).  Lounsbury appealed the denial of his habeas petition, which alleged substantive and procedural errors affecting the determination of his competency to stand trial.  The jury had convicted him in March 1993, rejecting his insanity defense.  The Oregon Court of Appeals affirmed without opinion.  The Oregon Supreme Court denied review.  Lounsbury proceeded to federal court, claiming that he was not mentally competent at trial and that the state courts had denied him due process by ignoring his burden of proof argument.  The district court held that his due process claim (that he was tried while incompetent) was procedurally defaulted because it was not included in his petition for review to the Oregon Supreme Court.  Relying in part on Peterson v. Lampert, 277 F.3d 1073, 1074 (9th Cir. 2002), vacated by 295 F.3d 933 (2003), the district court rejected Lounsbury's assertion that the question of his fitness to stand trial was a "necessary corollary" to the burden of proof issue that he had raised in his state court petition for review.  This ruling presented the primary question on appeal.   The USCA reversed.  Because the error in declaring a procedural default kept the district court from deciding Lounsbury's substantive competency claim, the USCA remanded the case to the district court to give it the opportunity to decide whether the state court denied Lounsbury due process in finding him competent to stand trial.  Goodwin (author), Hug, and Berzon, Circuit Judges.  AFPD C. Schatz of Portland, OR, for the petitioner;  AAG T. Sylwester of Salem, R, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  HABEAS CORPUS:  Olvera v. Giurbino, 02-56134 (9th Cir. June 8, 2004).  The district court's dismissed Olvera's Sec. 2254 habeas petition because it contained unexhausted claims for relief in addition to exhausted claims.  State prisoner Olvera stated that only eleven days remained before the statute of limitations would run and requested that the district court permit him to withdraw his unexhausted claim, stay the petition, and let him to return with the withdrawn claims after exhausting state remedies.  The USCA concluded that the district court abused its discretion by failing to allow the petitioner to stay his petition so that he could properly exhaust claims without having his petition bared by the statute of limitations.  Hug (author), B. Fletcher, and Wardlaw, Circuit Judges.  W. Young of Santa Monica, CA, for the appellant;  DAG M. Cutler of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  HABEAS CORPUS:  Kennedy v. Lockyer, 01-55246 (9th Cir. June 14, 2004).  The USCA granted an indigent defendant's habeas petition because during his second trial, he was prejudiced by the state court's refusal to provide his new attorney with a complete copy of the first trial transcript.  Concurring, Judge Fisher wrote separately to respond specifically to the dissent's suggestion that the majority's finding of prejudice resulted from "lawyering from the bench."  While Judge O'Scannlain said he shared some of the majority's sympathy for the defendant—whose third strike resulted from the sale of less than one-tenth of one gram of a legal substance to an undercover officer—he dissented from its decision "to step into counsel's shoes and tango its way around the deference we owe to state courts as coordinate expositors of federal law."  Reinhardt (author), O'Scannlain (dissenting), and Fisher (concurring), Circuit Judges.  J. Price of Santa Monica, CA, for the appellant;  DAG L. Martin of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

65)  HABEAS CORPUS:  White v. Lambert, 02-35550 (9th Cir. June 10, 2004).  White challenged the State of Washington's authority to continue to confine him after his transfer from a Washington state prison to a privately-run prison in Colorado.  He did not challenge the validity of his state court conviction, but only the administrative decision to transfer him from one prison to another.  The USCA concluded that White's habeas challenge to the administrative decision transferring him from one prison to another in a different state failed because a prisoner does not have a constitutional right to imprisonment in a specific prison.  Noonan, Wardlaw, and Paez (author), Circuit Judges.  A. Schwering of Spokane, WA, for the petitioner;  C. Gregoire of Olympia, WA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

66)  HABEAS CORPUS:  Leavitt v. Arave, 01-99008 (9th Cir. June 14, 2004).  Leavitt, a State of Idaho prisoner under sentence of death, brought a habeas petition in federal district court.  The district court granted habeas relief on his assertion that that the burden of proof instruction violated his due process rights.  The USCA concluded that Leavitt was not entitled to habeas relief as far as his conviction was concerned, but he was entitled to a new sentencing hearing.  It found that reasonable jurists in 1989 would not have felt compelled to hold that, on account of the challenged instruction in the context of all the instructions, there was a reasonable likelihood that the jury interpreted the instructions to allow conviction by proof less than beyond a reasonable doubt.  Judge Fernandez concurred but for different reasons as to parts I and IV.  Kozinski, Fernandez (concurring), and Rymer, Circuit Judges.  Per Curiam.  DAG L. Anderson of Boise, ID, for the respondent;  D. Nevin of Ketchum, ID, for the petitioner. (Download the full text of this decision at www.cc9.uscourts.gov/)

67)  HABEAS CORPUS:  Castillo v. McFadden, 03-15715 (9th Cir. June 1, 2004).  Castillo's amended petition alleged that the Arizona trial court denied him a fair trial in violation of the Fifth and Fourteenth Amendments of the U.S. Constitution by permitting the jury to view what Castillo maintained was a highly prejudicial videotape of his interrogation.  The USCA upheld the dismissal of the petition as Castillo had not exhausted his state court remedies.  Dissenting, Judge Hawkins said he would grant the writ and remand for the new trial;  he thought the evidence admitted was so prejudicial that despite the limiting instructions, it still had a substantial and injurious effect or influence in determining the jury's verdict, particularly considering that there was scant other evidence of Castillo's guilt.  Rymer, Hawkins (dissenting), and Bybee (author), Circuit Judges.  A. Rosenquist of Phoenix, AZ, for the petitioner;  AAG J. Saccoman of Phoenix, AZ, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

68)  PRISONERS' RIGHTS:  Walker v. Gomez, 99-55265 (9th Cir. June 7, 2004).  The plaintiff, a black California inmate at Calipatria State Prison, brought this 42 USC Sec. 1983 action seeking declaratory and injunctive relief and monetary damages;  he claimed that he was denied equal protection because, during three prison lockdowns, he was not allowed to resume his prison job until after similarly-situated inmates of other races resumed theirs.  The prison has a history of racial tension and violence.  The district court granted the defendant's motion for summary judgment.  The USCA affirmed in part, reversed in part, and remanded.  It held that race-based exclusion of inmates from prison work lists during lockdown following racial gang violence can violate equal protection if 1) the lockdowns occur fairly frequently and, by implication, work lists are employed with similar frequency, 2) there appear to be no limits on the duration of lockdowns, or the periods for which inmates might be excluded from a work list, and, 3), prison officials present no evidence of the specific connection between race-based exclusion from a work list and the promotion of safety, order, and investigation.  Concurring, Judge Fernandez thought the court of appeals should not decide qualified immunity issues in the first instance, but should leave them for the district court.  Dissenting, Judge Rymer thought that under the standards of Turner v. Safley, 482 US 78 (1987) (1987), the work lists comport with constitutional requirements, even though race-based, because they were a rational, temporary response by an otherwise fully integrated prison to a series of extremely violent, race-based incidents.  Kozinski (author), Fernandez (concurring), and Rymer (dissenting), Circuit Judges.  K. Walker in propria persona.  B. Lockyer of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)   TRADEMARKS:  Entrepreneur Media, Inc. v. Smith, 03-56431 (9th Cir. June 10, 2004) (unpublished).  Trott, Rymer, and Thomas, Circuit Judges.

      Smith appealed the district court's judgment against him following a bench trial.  First, he maintained that the district court failed to follow the prior panel's mandate and violated the law of the case in entering its findings of fact and conclusions of law.  However, the USCA noted that the prior panel merely decided that there were triable issues of fact that precluded summary judgment.  It did not decide these issues in favor of Smith as a matter of law.  The district court thus did not fail to observe the mandate of the prior panel on remand.  It did as the prior panel directed.  It held a bench trial on the disputed factual issues and entered a judgment based on its findings of fact and conclusions of law.  It did not violate the mandate.  Second, Smith challenged the district court's findings the likelihood of confusion.  Likelihood of confusion is guided by an eight factor test analyzing 1) the strength of the marks, 2) the similarity of the marks, 3) the relatedness of goods or services,  4) the intent in selecting the marks, 5) the evidence of actual confusion, 6) the marketing channels, 7) the likelihood of expansion of product lines, and 8) the degree of consumer care.  AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979).  Although these factors are important, the USCA noted that it is the totality of facts in a given case that is dispositive.  After a thorough examination of the record, the USCA concluded that the district court did not clearly err in its determination of likelihood of confusion based on the totality of the circumstances.  Third, the USCA found that the district court did not err in its damage award.  Even where there is no direct competition, profits may be awarded in order to make trademark infringement unprofitable under the rationale of unjust enrichment.  Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968).  Entrepreneur Media's expert also provided sufficient evidence of Smith's sales and costs to approximate is profits.  Fourth, the district court did not err in awarding attorney's fees if the acts of infringement are deliberate or willful.  Because Entrepreneur Media provided strong credible evidence that Smith intended to confuse consumers, attorney's fees were justified.  Finally, Smith waived his right to present the affirmative defense of fair use by failing to assert it before the trial court.  None of the other defenses or pleadings "fairly put" the district court "on notice as to the substance of the issue."  Nelson v. Adams USA, Inc., 529 US 460, 469 (2000).

2)  BANKRUPTCY:  Diamond v. Osborne,. 02-57156 (9th Cir. June 17, 2004) (unpublished). B. Fletcher, Pregerson, and Brunetti, Circuit Judges.

       Debtor Automotive Distributing for the Farwest ("ADF") was formed by Peter Osborne in 1994 when he acquired the auto-parts division of Bo-Den, Inc.  This transaction was financed by a loan from Bank of America.  In October 1994, and in conjunction with obtaining the BoA loan, ADF obtained $1 million in inventory and accounts receivable from Daytona Ignition Products, another company owned by Osborne.  ADF needed the funds to convince BoA to lend it money. One year later, BoA decided to terminate its loan to Osborne and demanded that he pay off the $2.6 million balance.  Osborne obtained the funds to pay off the loan from various people including his parents, Tom and Eva Jeffers, and a family friend, Vivian Vicondo.  These funds were placed in a trust account and applied to the BoA loan.  A few months later, in early 1996, ADF obtained a $4.5 million line of credit from Deutsche Financial Service Corporation ("DFSC").  Between January 31, 1996 and September 3, 1996, Osborne used his money to pay down the monies borrowed to pay off the BoA loan.  These payments went to Osborne's parents and/or their creditors and totaled $2,710,950. 
 On January 28, 1997, ADF filed for Chapter 11 bankruptcy, and it was subsequently converted to a Chapter 7 case.  Diamond, the bankruptcy trustee, filed this adversary proceeding to void the payments to the Jeffers and their creditors as preferential transfers.  Diamond also brought other claims against other defendants.  A bench trial on the preferential transfers was held with the only disputed issue being whether ADF was insolvent during the period the transfers were made and dismissed the remaining claims against the other defendants.  The bankruptcy court specifically adopted, with few adjustments, the figures for ADF's assets, liabilities, and adjustments to liabilities offered by Anne Renna, the Jeffers' expert.  Based upon those figures, the court concluded that ADF was a going concern, with assets of $12,249,721 and liabilities of $10,218,249 during the critical period.  The bankruptcy court identified further downward adjustments to ADF's assets of $1,300,210.  When these liabilities and adjustments were applied against ADF's assets, there was a resulting excess of $731,262 of assets.  The district court affirmed the bankruptcy court's finding that ADF was solvent but reversed its summary dismissal of Diamond's claims against the other defendants. Diamond appealed.  The Jeffers maintained that this appeal should be dismissed because the district court's order affirming in part and reversing in part the bankruptcy court's judgment was not a final one for purposes of 28 USC Sec. 158(d). 

      The USCA affirmed.  First, the USCA found that it had jurisdiction over this appeal because the only issue on appeal was whether ADF was insolvent, and resolving this issues did not require any further factual findings.  The order of remand simply reinstated Diamond's claim against the other defendants that had been summarily dismissed by the bankruptcy court.  Moreover, resolution of this issue would aid the bankruptcy court on remand.  Second, the USCA noted that determinations of whether an entity was a going concern and whether its assets exceed its liabilities were factual findings, and thus reviewed for clear error.  In reviewing the bankruptcy court's conclusion that ADF was solvent during the transfer period, the USCA did not find clear error.  Pursuant to 11 USC Sec. 547, a bankruptcy trustee may avoid any transfer of a debtor's property made during the preference period if the trustee can demonstrate that the  transfer was 1) to or for a creditor's benefit, 2) on account of an existing debt, and 3) while the debtor was insolvent.  Insolvency is a "financial condition such that the sum of [an] entity's debts is greater than all of such entity's property, at a fair valuation."  11 USC Sec. 101(32)(A).  The trustee must demonstrate insolvency by a preponderance of the evidence. In re Kaypro, 218 F.3d 1070, 1076 (9th Cir. 2000).  Determining whether an entity is solvent involves a two-part inquiry.  First, it must be determined whether the entity was going concern or on its death bed during the period of the transfers.  After determining the proper valuation standard, "the court must value the debtor's assets, depending on the status determined in the first part of the inquiry, and apply a simple balance sheet test to determine whether the debtor was solvent." In re DAK Indus., Inc., 170 F.3d 1197, 1199 (9th Cir. 1999).  The bankruptcy court's factual findings as to ADF's financial heath during the transfer period support its conclusion that it was a going concern.  Since ADF was a going concern, it must be valued from the standpoint of the debtor and as an active entity rather than as an entity on its deathbed.  As a going concern, ADF's inventory must be evaluated at its "fair market price … as if [it] had been sold as a unit, in a prudent manner, and within a reasonable time."  In re DAK Indus., Inc. 170 F.3d at 1200 n.3.  Diamond maintained that the bankruptcy court erred in its valuation of ADF's inventory.  However, Diamond failed to present any compelling evidence or authority demonstrating clear error on the part of the bankruptcy court.  With regard to his goodwill argument, while it may have been error for the bankruptcy court to consider Osborne's good relations with vendors, many other facts supported the bankruptcy court's valuation of the inventory.  These included the decrease in ADF's inventory levels between September 1995 and February 1996;  the consistent sales of inventory received from Daytona during this period;  and that many inventory items did not have shelf lives.  As to his remaining argument that the bankruptcy court erred in finding that his expert, Ballenger, had ascribed the wrong values to ADF's excess inventory, Diamond failed to explain how the inventory should have been valued or specifically why Ballenger testified that he used a going concern analysis, he relied on a report which used a liquidation approach.  In reviewing the record and the bankruptcy court's order, the USCA concluded that this also did not appear to be clear error.

3)  TAXATION:  Antlocer v. USA,. 03-56427 (9th Cir. June 22, 2004) (unpublished).  Leavy, Thomas, and Silverman, Circuit Judges. 

     Antlocer appealed pro se the district court's Fed. R. Civ. P. 12(b)(1) dismissal of his complaint against the United States seeking damages and asking the court to set aside an IRS determination regarding taxes he owes.  The USCA agreed with the district court that it lacked subject matter jurisdiction because Antlocer was attempting to mount a judicial challenge to an "equivalent" collection due process hearing, from which no such challenge can be made under 26 USC Sec. 6330.  As the district court held, Antlocer failed to filed a timely request with the IRS for a hearing following the notice of intent to levy.  He thus could not appeal the IRS determination to the district court.  The USCA also rejected Antlocer's contention that 28 USC Secs. 1331, 1340, and 1343 establish jurisdiction, because these statutes do not constitute a waiver of sovereign immunity. 

4)  TAXATION:  Rivera v. CIR,. 03-74411 (9th Cir. June 22, 2004) (unpublished). Leavy, Thomas, and Fisher, Circuit Judges. 

      Rivera appealed pro se the Tax Court's decision, following a bench trial which sustained a CIR ruling that he was liable for taxes assessed for 1984-1992, 1994, and 1997, and holding that the IRS had not erred by proceeding with collection actions for those years.  Rivera first maintained that the Tax Court erred by relying on IRS computer records, such as the IRS Form 4340 (Certificates of Assessments, Payments and Other Specific Matters), which, he asserted, were inaccurate and hearsay.  However, the Ninth Circuit has held that IRS Form 4340 is probative evidence in and of itself and, in the absence of contrary evidence, is sufficient to establish that notices and assessments were properly made.  Hansen v. USA, 7 F.3d 137, 138 (9th Cir. 1993).  IRS Form 4340 is not hearsay.  Hughes v. USA, 953 F.2d 531, 539-40 (9th Cir. 1992).  Rivera also maintained that the collection action against him violated the statute of limitations.  However, the record refuted this contention.  Rivera consented to a waiver of the statute of limitations under 26 USC Sec. 6501(c)(4) for tax years 1984-1988.  The Tax Court dismissed the CIR's collection action for tax years 1977-1983, and the remaining tax assessments were timely.  Kinsey v. CIR, 859 F.2d 1361, 1963 (9th Cir. 1988)

5)  TAXATION:  Bratton v. CIR,. 03-73369 (9th Cir. June 22, 2004) (unpublished).  Leavy, Thomas, and Fisher, Circuit Judges. 

      Bratton appealed pro se a Tax Court's decision granting the IRS's motion for entry of judgment based on the parties' settlement agreement in Bratton's action for redetermination of a tax deficiency for 1998.  The USCA affirmed.  The Tax Court's enforcement of a stipulation is reviewed for abuse of discretion.  Bail Bonds by Marvin Nelson, Inc. v. CIR, 820 F.2d 1543, 1547 (9th Cir. 1987).  A stipulation is treated as a conclusive admission by the parties to the stipulation unless otherwise permitted by the court or agreed upon by those parties. Tax Ct. R. 91(e).  The Tax Court will not permit a party to a stipulation to qualify, change, or contradict a stipulation in whole or in part, unless manifest injustice will result.  Bail Bonds, 820 F.2d. at 1546.  Here, Bratton negotiated the terms of, and stated on the record that he agreed to, the stipulations read into the Tax Court's record.  Bratton maintained that he was misled by the IRS attorney, but he presented no evidence that his consent was procured by government coercion or misconduct, or that enforcement of the stipulated agreement would be manifestly unjust.  Bail Bonds, 820 F.2d 1548.  The Tax Court thus did not abuse its discretion by permitting late filing of the CIR's answer to Bratton's petition.

6)  TAXATION:  Hinkson v. Hines,. 03-35230 (9th Cir. June 24, 2004) (unpublished).  Leavy, Thomas, and Fisher, Circuit Judges. 

     Hinkson appealed pro se from the district court's judgment dismissing his Bivens action alleging that the defendants violated his constitutional rights in the course of the investigation and subsequent criminal prosecution of his income tax violations.  The USCA affirmed.  It found that the district court properly dismissed the action against the U.S. on sovereign immunity grounds. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985).  Likewise, sovereign immunity barred the claims against IRS agents Morgan and Hines in their official capacities.  The district court also properly determined that defendant Albers was not liable for producing Hinkson's tax documents because he did so in good faith reliance on an official IRS summons. 26 USC Sec. 7609(i)(3).  The district court also correctly ruled that AUSA Cook was entitled to prosecutorial immunity for her actions.  Finally, claims against defendants Hines and Morgan in their individual capacities pursuant to Heck v. Humphrey, 512 US 477 (1994), were properly dismissed as a favorable outcome would undermine the criminal charges pending against Hinkson.  Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir. 2000).  The USCA construed the judgment as to these defendants as a dismissal without prejudice.

7)  WORKERS' COMPENSATION: Ruhd v. Liberty Northwest Insurance Corporation,. 03-35154 (9th Cir. June 8, 2004) (unpublished).  Tashima, Paez, and Bea (concurring), Circuit Judges.

       Ruhd appealed from a district court's order dismissing his action against Liberty Northwest Insurance Corporation for lack of subject matter jurisdiction.  The USCA agreed with the district court that Ruhd's complaint failed to allege the amount in controversy or specify Liberty's citizenship, both its place of incorporation and its principal place of business, and therefore failed to satisfy the jurisdictional requirements of 28 USC Sec. 1332(a).  Ordinarily, a party in Ruhd's position would be granted leave to amend his complaint to cure jurisdictional defects.  Montrose Chem. Corp. v. Am Motorists Ins. Co., 117 F.3d 1128, 1136 (9th Cir. 1997), "even if no request to amend the pleading was made. …"  Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).  However, such leave need not be given where an amendment would be futile such as in this case.  Here, leave to amend would have been futile in light of Ruhd's failure to exhaust his remedies before the Montana Workers' Compensation Court.  Mont. Code. Ann. Sec. 33-18-242(6)(b).  The USCA thus affirmed the district court's dismissal.

      Judge Bea concurred in the majority's ruling but wrote separately to add that Ruhd could still exhaust his claims before the Workers' Compensation Court.  Liberty conceded at oral argument that Ruhd's original application for benefits was timely and that the statute of limitations to file an action in the Workers' Compensation Court had not yet run for Ruhd's claims based on delay or refusal to pay workers' compensation benefits.

8)  IMMIGRATION:  Elian v. Ashcroft,. 02-72752 (9th Cir. June 2, 2004) (unpublished).  Goodwin, Pregerson, and Tallman, Circuit Judges.

      At issue here was whether the denials of petitioner Elian's applications for asylum, withholding of deportation, and protection under the Convention Against Torture ("CAT") were supported by substantial evidence.  The USCA found that they were and denied Elian's petition for review.  First, Elian failed to establish that he suffered past persecution by Israeli authorities, Hamas, or other Palestinians.  Although the cumulative effect of continued abuse may justify asylum even where the incidents of abuse considered individually do not rise to the level of persecution, the hardships inflicted on Elian were insufficient to establish eligibility for relief.  Unfulfilled threats standing alone constitute past persecution in only a small category of cases, and only when the threats are so menacing as to cause significant actual suffering or harm.  Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (holding that an alien who received numerous death threats and whose colleagues were murdered by the military did not suffer past persecution).  Moreover, under standards established in the Ninth Circuit, Elian's other past hardships do not rise to the level of persecution.  Fisher v. INS, 79 F.3d 955, 959 (9th Cir. 1996) (en banc) (finding harassment but not persecution where an Iranian woman was stopped at gunpoint for leaving strands of hair hanging out of her veil and had her residence searched by government officials for political dissents.)  Second, with regard to future persecution, although Elian's demonstration that he suffered past harassment was relevant to the USCA's analysis, because he failed to demonstrate that he suffered past persecution he was not entitled to the presumption of a well-founded fear of future persecution.  8 CFR Sec. 208.16(b)(1)(i).  The USCA thus separately evaluated Elian's prospects of future persecution.  To be well-founded, his fear of future persecution must be both subjectively genuine and objectively reasonable.  The Immigration Judge ordered Elian deported to the West Bank, or, alternatively, to Jordan.  As to the West Bank, Elian satisfied the subjective prong of the well-founded fear test by testifying credibly that he genuinely feared future harm if forced to return.  However, Elian did not maintain, and there was no evidence to suggest, that he would face persecution in Jordan on account of his status as a Christian Palestinian.  The IJ's decision to designate Jordan as an alternative to the West Bank was supported by substantial evidence.  Elian's failure to justify asylum with reference to Jordan doomed his petition.  But, even with regard to the West Bank, Elian failed the objective prong of the well-founded fear test because there was no credible, direct, and specific evidence in the record that would support a reasonable fear of persecution.  Ghaly v. INS, 58 F.3d 1425, 1428 (9th Cir. 1995).  Third, Elian's claim that he is stateless was belied by the record.  He was not expelled from the West Bank;  he left on his own decision.  And statelessness alone does not warrant asylum.  The Immigration and Nationality Act explicitly contemplates both asylum applicants with a "nationality" and asylum applicants with "no nationality."  Where an applicant has "no nationality,"  8 USC 1101(a)(42)(A) mandates evaluating the petition by reference to the country of "last habitual residence."  Elian's last habitual residence was either in the West Bank or in Jordan.  As he has not shown a well-founded fear of future persecution in either place, he is ineligible for relief.  Fourth, to be eligible for withholding of deportation, Elian had to meet the higher standard of showing a "clear probability" that his "life or freedom would be threatened" in Jordan or the West Bank on account of his Palestinian Christian identity.  Because Elian failed to establish the well-founded fear of persecution required to qualify for asylum, he necessarily could not show that he is eligible for withholding of deportation.  Finally, to establish eligibility for relief under the CAT, Elian had to show that it was more likely than not that he would be tortured if returned to the West Bank or Jordan. 8 CFR Sec. 1208.16(c)(2).  For the reasons discussed above, the USCA concluded that substantial evidence supported the IJ's determination that Elian failed to meet his burden.