1)  TAXATION:  Siddiqui v. USA, 02-17123 (9th Cir. Mar. 9, 2004).  The plaintiffs appealed from the district court's limitation of its award under 26 USC Sec. 7431 to $6,000 in statutory damages, and the denial of punitive damages for the unauthorized disclosure of income tax return information;  the USCA affirmed, holding that only one act of unauthorized disclosure occurred, even though it was before an audience of one hundred;  the USCA also held that under Sec. 7431 punitive damages are precluded absent proof of actual damages.  Alarcon (author), Beezer, and W. Fletcher, Circuit Judges.  J. Busby of Phoenix, AZ, for the plaintiffs-appellants;  R. Rosenstein of Washington, DC, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  TAX EVASION:  USA v. Pang, 03-10032 (9th Cir. Mar. 30, 2004).  The defendant unsuccessfully challenged his jury conviction for unlawful structuring of currency transactions, income tax evasion, and filing false tax returns;  he was sentenced to 24 months imprisonment.  The USCA affirmed. The checks herein at issue were properly admitted as they were self-authenticating and not hearsay.  Tashima, Thomas, and Silverman (author), Circuit Judges.  M. Schainbaum of San Francisco, CA, for the defendant-appellant;  AUSA T. Moore of San Francisco, CA, for the plaintiff-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  BANKRUPTCY / SECURITIES:  Decker v. Advantage Fund Ltd., 01-17406 (9th Cir. Mar. 29, 2004). The Trustee appealed the district court's FRCP 12(b)(6) dismissal of her action which asserted claims against all the appellees for avoidance of fraudulent transfers made in violation of California fraudulent transfer law and for avoidance of fraudulent transfers made in violation of the Bankruptcy Code;  her action also asserted a claim against just RGC International Investors and Advantage Fund for violation of Sec. 16(b) of the Securities Exchange Act of 1934.  The USCA affirmed.  First, the fraudulent transfer claims were properly dismissed because the action, directed at recovery of corporate stock, would not restore property to the bankruptcy estate or avoid an estate obligation;  the USCA agreed with the appellees that the unissued preferred stock transferred to them for $40 million did not constitute "an interest of the debtor in property." Unissued stock has no value to the corporation, as opposed to its shareholders, because stock only represents portions of equity in the corporation itself.  Second, Sec. 16(b) is inapplicable because the appellees were not the beneficial owners of more than 10% of the common stock because the convertible security (preferred stock) that they held was subject to a conversion cap that would bar conversion once the owner reached a threshold of 4.9% ownership;  after that, the remaining preferred stock would not be allowed to be converted, and thus was not convertible under 17 CFR Sec. 240.13d-3(c);  the agreements under which these appellees obtained the convertible securities also explicitly prevented them from ever obtaining the "right to acquire beneficial ownership of such security" under Sec. 240.13d-3(d)(1)(I);  thus they never obtained such status and thus are not subject to Sec. 16(b).  Brunetti (author) and Tashima, Circuit Judges, and Ezra, District Judge.  J. Wurms of Oakland, CA, for the appellant;  H. Leiderman of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  BANKRUPTCY / SANCTIONS:  In re DeVille, 02-16459 (9th Cir. Mar. 15, 2004).  The bankruptcy court exercised its inherent power in imposing compensatory sanctions on a defendant and its counsel, for a series of bankruptcy filings and removal petitions aimed at blocking the progress of a state court civil action;  the obstructionist techniques involved a series of bankruptcy filings and concurrent removal petitions from the state court to the bankruptcy court on behalf of certain of the state-court defendant—each removal delaying trial in the state court until the granting of a remand petition.  as Federal Rule of Bankruptcy Procedure 9011(c)(2) requires that penalty sanctions be paid "into court," the penalties here were properly set aside by the Bankruptcy Appellate Panel.  B. Fletcher and Tashima, Circuit Judges, and Pollak (author), District Judge.  A. Smith of San Francisco, CA, for the appellants  T. Eastridge of Alameda, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  BANKRUPTCY:  In re George, 01-16293 (9th Cir. Mar. 18, 2004).  The California Uninsured Employers Fund's claim against an employer who failed to purchase workers' compensation insurance was not an "excise tax" for purposes of federal bankruptcy law.  Baldock, Kleinfeld (author), and Rawlinson, Circuit Judges.  M. Hansen of Sacramento, CA, for the appellants;  J. Siqueiros of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

 6)  BANKRUPTCY LAW:  In re Rodeo Canon Development Corp., 02-56999 (9th Cir. Mar. 30, 2004).  The non-bankrupt partner in this case is entitled to disgorgement of the proceeds of the sale of property, pending the outcome of the property ownership dispute being litigated in a pending adversary proceeding;  while the debtor held legal title to the property, its partner claimed that the property was owned by the partnership, not the estate;  the outcome of the ownership dispute, would determine whether the indebtedness secured by liens on the property would be satisfied out of the proceeds from the sale or out of the debtor's assets.  Kozinski and Noonan, Circuit Judges, and Schwarzer (author), District Judge.  L. Khoury of Los Angeles, CA, for the appellants;  D. Weinstein of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  ENVIRONMENTAL LAW:  Ocean Advocates v. U.S. Army Corps of Engineers, 01-36133 (9th Cir. Mar. 15, 2004).  Ocean Advocates (OA), an environmental group, appealed a summary judgment in favor of the U.S. Army Corps of Engineers and BP West Coast Products (BP);  OA challenged the issuance and extension of a permit allowing BP to build an addition to its existing oil refinery dock in Cherry Point, Washington.  The USCA affirmed the district court's denial of BP's motion for summary judgment on the grounds that OA lacked standing and that laches barred this action;  the USCA also reversed the district court's denial of OA's summary judgment motion on the grounds of the National Environmental Policy Act and the Magnuson Amendment to the Marine Mammal Protetion Act;  finally, the USCA remanded the case to the district court with instructions to remand to the Corps so that it can prepare a full Environmental Impact Statement considering the impact of reasonably foreseeable increases in tanker traffic, and re-evaluate the dock extension's potential violation of the Magnuson Amendment;  the USCA instructed that the district court direct the Corps to revoke the permit or place conditions on the operation of the dock extension if necessary to ensure compliance with the law;  it also said the district court should enter an injunction freezing tanker traffic to and from the BP refinery at pre-2000 levels until the Corps prepares an EIS and reassesses the permit under the Magnuson Amendment.  D.W. Nelson (author) and Thomas, Circuit Judges, and D. Pregerson, District Judge.  J. Arum of Seattle, WA, for the plaintiff;  E. Spencer of Seattle, WA, for the intervenor;  R. Spritzer of Washington, DC, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

8)  LAND USE / FREE EXERCISE OF RELIGION:  San Jose Christian College v. City of Morgan Hill, 02-15693 (9th Cir. Mar. 8, 2004).  The City of Morgan Hill denied a re-zoning application submitted by San Jose Christian College.  The district court granted summary judgment in favor of the City.  The USCA affirmed, finding the City's zoning requirements to be general laws of neutral application that do not violate the Free Exercise Clause; it further found that neither the zoning laws nor the California Environmental Quality Act (CEQA), which is designed to inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities, imposed a substantial burden on the College's free exercise of religion and that, accordingly, the strict scrutiny requirement of the Religious Land Use and Institutionalized Persons Act of 2000 is not triggered;  the City reasonably determined that the College failed to meet the requirements of its zoning ordinance and CEQA;  because the College failed to raise a genuine issue of material fact regarding its claims, entry of summary judgment in favor of the City was appropriate.  Canby, Kleinfeld, and Rawlinson (author), Circuit Judges.  J. Dodd of San Jose, CA, for the plaintiff-appellant;  J. Ramirez of Costa Mesa, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  CONSUMER PRODUCTS:  Churchill Village v. General Electric, 01-17059, (9th Cir. Mar. 16, 2004).  The district court considered the relevant factors and did not abuse its discretion in approving a class action settlement concerning defective dishwashers manufactured by the defendant;  counsel who sought fees neither on behalf of a party nor as a party but on the theory that their involvement in the action led to the successful settlement lacked standing to pursue a fee award under Cal. C. Civ. Proc. Sec. 1021.5.  Schroeder, O'Scannlain (author), and Tashima, Circuit Judges.  C. Krislov of Chicago, Il, for the applicants in intervention-appellants;  G. Donaldson of San Francisco, CA, for the plaintiffs-appellees;  H. Bogard of Louisville, KY, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  ANTIDUMPING TARIFFS:  USA v. Universal Fruits & Vegetables Corp., 02-55340 (9th Cir. Mar. 17, 2004).  The Court of International Trade had exclusive jurisdiction over this False Claims Act suit brought by the U.S. against an importer who schemed to evade antidumping tariffs by transshipping garlic from China through South Korea.  Reinhardt, O'Scannlain (author), and Fisher, Circuit Judges.  G. McCoy of Encino, CA, for the appellant;  D. Hallward-Driemeier of Washington, DC, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  EMPLOYMENT LAW:  McGinest v. GTE Service Corp., 01-57065 (9th Cir. Mar. 11, 2004).  Since material questions of fact remained as to whether the employer created and failed to remedy a racially hostile working environment and as to whether its failure to promote the plaintiff was based on racial discrimination, the USCA reversed summary judgment for the defendant on these two claims;  however, it affirmed the district court's dismissal of the plaintiff's retaliation claim, as he failed to establish a prima facie case of retaliation.  Judge O'Scannlain agreed that the hostile work environment claim had to be reversed, but for different reason than offered by the majority;  he also concurred in the majority's decision to affirm the summary judgment dismissal on the retaliatory failure to promote claim;  however, he disagreed with the majority on the disparate treatment claim, which he would affirm. Reinhardt, O'Scannlain (dissenting in part), and Paez (author), Circuit Judges.  D. Cohn of Encino, CA, for the plaintiff-appellant;  J. Nutter of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  EMPLOYMENT LAW:  Ceballos v. Garcetti, 02-55418 (9th Cir. Mar. 22, 2004). Ceballos claimed that he was subjected to adverse employment actions by his supervisors at a county district attorney's office in retaliation for engaging in protected speech;  for purposes of summary judgment, qualified immunity was not available to the individual defendants as the law clearly established that Ceballos' speech, alleging police wrongdoing, addressed a matter of public concern and his interest in the speech outweighed his employer's interest in avoiding inefficiency and disruption.  Judge O'Scannlain concurred in the opinion that Roth v. Veterans' Administration of the United States, 856 F.2d 1401 (9th Cir. 1988), controlled the result, but also thought Roth was wrongly decided and ought to be overruled, perhaps even by rehearing the present case en banc.  Reinhardt (author), O'Scannlain (concurring), and Fisher, Circuit Judges.  H. Guizar of Montebello, CA, for the plaintiff;  C. Lee of Glendale, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  EMPLOYMENT LAW:  Leever v. City Of Carson, 02-16525 (9th Cir. Mar. 4, 2004).  An agreement made pursuant to 29 CFR Sec. 785.23 to compensate an officer for overtime spent caring for her police dog must take into account some approximation of the hours she actually worked or could reasonably be required to work;  the district court determined that the agreement was reasonable as a matter of law solely because it was negotiated by the City and police union at arms-length and incorporated into the collective bargaining agreement;  because the district court had not consider all the facts and circumstances surrounding the agreement in reaching its conclusion that the agreement was reasonable, the USCA reversed the summary judgment for the City and remanded for further proceeding consistent with its opinion.  B. Fletcher and Tashima (author), Circuit Judges, and Pollak, District Judge.  D. Williams of Carson City, NV, for the plaintiff;  M. Forsberg of Carson City, NV, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  EMPLOYMENT LAW:  Hernandez v. Hughes Missile Systems, Co., 01-15512 (9th Cir. Mar. 23, 2004).  For 25 years, beginning in 1966, Hernandez worked for Hughes Missile Systems, which has since been purchased by Raytheon Company;  in 1986, his drug and alcohol problem began affecting his work;  in August 1986, rather than face termination for absenteeism as a result of his problem, he accepted Raytheon's offer to enter a treatment program;  upon finishing this program, Hernandez went back to work for the company;  but in 1991, his attendance problems recurred and on July 11, 1991, he arrived at work showing signs of drug or alcohol impairment;  he submitted to a drug test pursuant to company policy;  after testing positive for cocaine, he resigned in lieu of being discharged for violating the company's workplace code of conduct;  the "Employee Separation Summary" noted the reason for Hernandez's separation only as "discharge for personal conduct (quit in lieu of discharge)."  In 1994, Hernandez applied with Raytheon for the same position he held prior to his discharge;  Raytheon rejected Hernandez's application, as his file revealed prior misconduct, the drug test and results, and evidence of his continuous "alcohol dependence," "cannabis dependence," and "cocaine abuse," as well as his referral to a treatment program.  Hernandez then proceeded to the Equal Employment Opportunity Commission and onto the courts.  On remand from the Supreme Court, the issue was whether there was sufficient evidence from which a jury could conclude that Raytheon made its employment decision based on Hernandez's status as disabled despite it proffered explanation.  In the light most favorable to Hernandez, the record gave rise to a genuine issue of fact as to whether the decision not to re-hire him was based on his disability.  The USCA again reversed the district court grant of summary judgment for the company.  Reinhardt (author), Magill, and Fisher, Circuit Judges.  S. Montoya of Phoenix, AZ, for the appellant;  P. Grossman of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  CONTRACTS / ERISA: Providence Health Plan v. McDowell, 02-35263 (9th Cir. Mar. 24, 2004).  The district court erred in dismissing the plaintiff's breach of contract claim as preempted under ERISA because the claim was merely for reimbursement based upon a third-party settlement and did not "relate to" the ERISA plan;  however, the USCA upheld the district court's dismissal of a second action which sought equitable relief under ERISA's civil enforcement provision, 29 USC Sec. 1132(a);  because the plaintiff here sought ordinary damages based on contractual remedies that arise under state law, its claim was not within ERISA's civil enforcement provisions.  Brunetti (author), T.G. Nelson, and Graber, Circuit Judges.  W. Gary of Eugene, OR, for the plaintiff-appellant;  G. Carey of Portland, Or, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  ERISA: Wright v. Oregon Metallurgical Corp., 02-35853 (9th Cir. Mar. 11, 2004).  Affirming the dismissal of plaintiffs' claims with prejudice pursuant to FRCP 12(b)(6), the USCA held that defendants' decision to comply with the lawful terms of the employee pension plan following the employer's merger was consistent with ERISA's fiduciary requirements, even though plan participants were thereby deprived of the "premium" generated by the merger.  Graber, Tallman, and Clifton (author), Circuit Judges.  G.  Greenwald of Columbus, OH, for the plaintiffs;  D. Greenfeld of Washington, DC, and B. Ortelere of Philadelphia, PA. for the defen-dants. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  ERISA:  Mathews v. Chevron Corp., 02-15936 (9th Cir. Mar. 26, 2004).  Chevron appealed from an injunction requiring it to modify its retirement plan records to reflect that six of the plaintiffs here were involuntarily terminated and thus eligible for payment of a "Special Involuntary Termination Enhancement" ("SITE") benefit;  Chevron's statements to the plaintiffs regarding the likelihood of SITE benefits breached ERISA's fiduciary duties;  since it did not actively misinform the plaintiffs prior to April 22, Chevron should have won summary judgment as to all plaintiffs who based their retirement decisions on statements made prior to that date.  Wallace (author) and O'Scannlain, Circuit Judges, and Beistline, District Judge.  H. Shapriro of New Orleans, LA, for the defendant;  T. Moukawsher of Groton, Conn., for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  IMMUNITY:  Embury v. King, 02-15030 (9th Cir. Mar. 16, 2004).  When a state removes a case to federal court, it waives Eleventh Amendment immunity.  Canby, Kleinfeld (author), and Rawlinson, Circuit Judges.  S. Kumagai of San Francisco, CA, for the appellant;  F. Blum of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  ARBITRATION:  Bushley v. Credit Suisse First Boston, 03-15901 (9th Cir. Mar. 16, 2004).  The USCA lacked jurisdiction to review a district court order denying arbitration in one forum requested by the defendant when the same order compelled arbitration in an alternate forum requested by the defendant;  because the district court ordered arbitration pursuant to 9 USC Sec. 4, its order was not appealable under 9 USC Sec. 16(b)(2).  Leavy (author), Paez, and Berzon, Circuit Judges.  M. Early of San Francisco, CA, for the defendant; T. Duckworth of San Francisco, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  QUALIFIED IMMUNITY:  Martin v. City of Oceanside, 02-56177 (9th Cir. Mar. 11, 2004).  Martin sued the City of Oceanside and two of its police officers under 42 USC Sec. 1983, alleging that the officers violated his Fourth Amendment rights during an incident in which they entered Martin's home without a warrant in order to check on the welfare of an occupant;  the district court determined that the officers were entitled to qualified immunity, and thus granted their motion for summary adjudication;  it also granted the City's motion for summary adjudication on the ground that the City's officers had not committed a constitutional violation;  Martin appealed the district court's specific determination that the officers were entitled to qualified immunity based on the "emergency aid" exception to the Fourth Amendment warrant requirement.  The USCA affirmed, finding that the officers reasonably believed that someone inside Martin's home was potentially in need of emergency aid, and in entering the home were motivated by a desire to assist that person rather than gather evidence.  The USCA thus affirmed the summary judgment on the basis of qualified immunity.  Trott (author), Rawlinson, and Bea, Circuit Judges.  J. Dunn of San Diego, CA, for the plaintiff-appellant;  P. Walls of Oceanside, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  CIVIL PROCEDURE / JURISDICTION:  Special Investments, Inc. v. Aero Air, Inc., 02-55788 (9th Cir. Mar. 2, 2004).  Special Investments brought this action against Twin Commander Aircraft Corporation and others in the Los Angeles, California Superior Court;  the defendants removed the case to federal district court, which determined that it did not have subject matter jurisdiction and remanded;  before the remand, however, the district court decided that there was no personal jurisdiction over Twin Commander and dismissed it from the case;  Special Investments appealed that decision.  The USCA construed the appeal as a petition for a writ of mandamus, granted the writ, and directed the district court to vacate its personal jurisdiction order.  Judge Fernandez concurred in the result, but for different reasons which, he said, avoid undermining Ninth Circuit jurisprudence regarding the curing of premature appeals, do not declare that the district court erred in not doing what no party has asked it to do, and do not unnecessarily convert a direct appeal into a petition for mandamus.  Pregerson, Fernandez (concurring), and Berzon (author), Circuit Judges.  E. Marshall of Santa Monica, CA, for the plaintiff;  G. Hanken of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  CIVIL PROCEDURE / INTERNATIONAL LAW:  Brockmeyer v. Marquis Publications, Ltd., 02-56283 (9th Cir. Mar. 24, 2004).  Service of process by an American plaintiff on an English defendant through regular mail to a post office box is valid under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents because Article 10(a) of the Hague Convention allows for service by mail and England's domestic laws do not prohibit service by mail to a post office box.  Dissenting, Judge Fletcher said he agreed the majority's conclusion that Article 10(a) does not "interfere" with service by mail;  but he strongly disagreed with it conclusion that Rule 4(f)(2)(A) authorizes service of process by international mail;  he thought that not only is the existing case law uniform in holding that service by international mail is not authorized under Rule 4(f)(2)(A), but there is no need to depart from this consistent understanding of the rule since a competent attorney already has ample means of serving process on a foreign defendant under Rule 4(f) without relying on the extraordinary expedient of ordinary international first class mail.  Silverman (author), W. Fletcher (dissenting), and Rawlinson, Circuit Judges.  A. Israel of Long Beach, CA, for the defendant;  D. Cavanaugh of New York, NY, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  FIRST AMENDMENT:  Galvin v. Hay, 00-17425 (9th Cir. Mar. 18, 2004).  On March 9, 1997, members of an advocacy group, Religious Witness with Homeless People ("RWHP"), conducted a protest at the San Francisco Presidio National Park;  they opposed a plan by the National Park Service, which administers the Presidio, to tear down 466 units of former army housing at the site;  the Park Service proposed restoring the area to its natural environment;  RWHP wanted the units converted into housing for the poor and homeless;  Lt. Hay of the Park Police refused to allow RWHP members to conduct a march through the Presidio unless they promised not to engage in civil disobedience;  Galvin did not agree to this and instead RWHP members gathered at the Presidio site in front of a building containing both the Park's administration offices and a Visitor Center, but some distance away from the units at issue;  Galvin and other RWHP members were again informed by Hay that unless they promised not to engage in civil disobedience, no permit would be issued for their planned march;  the demonstrators again refused to make this bargain;  instead, they unfurled banners, set up a portable public address system, and began a prayer service;  the police informed them that if they did not move to a location 150 to 175 yards away designated as a "First Amendment area," and marked out with a circle of orange traffic cones, they would be arrested; eighty-three protestors refused to move and were arrested.  Most of the eighty-three were later convicted of demonstrating without a permit in violation of 36 CFR Sec. 2.51;  those convicted appealed to the Ninth Circuit, which reversed the convictions and held that the arrests violated the demonstrators First Amendment rights.  The plaintiffs in the present case, who are four of the arrested protestors, then sued Hay and another police officer and their employer, the United States, on behalf of a class composed of all of the demonstrators.  The district court dismissed all of the plaintiffs claims;  subsequently, after the parties agreed to a stipulation of facts, the district court granted, on qualified immunity grounds, the defendants' motion for summary judgment concerning the alleged constitutional tort arising from the defendants' dispersal of the prayer service.  Viewing the evidence in the light most favorable to RWHP, the nonmoving party, and drawing all reasonable inferences in favor of RWHP, the USCA affirmed the district court's ruling on qualified immunity and liability under the Federal Tort Claims Act and thus affirmed the grant of summary judgment.  Hug and Berzon (author), Circuit Judges, and Lasnik, District Judge.  D. Cunningham of San Francisco, CA, for the plaintiffs;  R. Loeb of Washington, DC, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  SOCIAL SECURITY BENEFITS:  Batson v. Commissioner of the Social Security Administration, 02-35471 (9th Cir. Mar. 9, 2004).  Substantial evidence supported the ALJ's determination that the plaintiff was not disabled for purposes of the Social Security Act;  the ALJ did not err in giving minimal evidentiary weight to the opinions of treating physicians in this instance, or in concluding that plaintiff's testimony was not credible.  Dissenting, Judge Graber thought that the ALJ's reasons for rejecting the physician's opinion were not supported by substantial evidence in the record, and one of the ALJ's reasons for disbelieving the plaintiff was not supported by any evidence;  Judge Graber would thus reverse and remand.  Aldisert, Graber (dissenting), and Gould (author), Circuit Judges.  F. Shebley of Oregon City, OR, for the plaintiff-appellant;  D. Burdett of Seattle, WA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  IMMIGRATION:  Shivaraman v. Ashcroft, 02-72436 (9th Cir. Mar. 12, 2004).  Shivaraman, an Indian national and U.S. legal permanent resident, appealed the BIA's decision finding him removable for having been convicted of a crime involving moral turpitude committed within five years of his "date of admission."  He maintained that the BIA erred in holding that his "date of admission," for purposes of his removal proceeding, was not the date of his lawful entry to the U.S. upon inspection and authorization by an immigration officer, which was more than five years before he committed his crime, but rather the later date of his adjustment of status to legal permanent resident.  The USCA agreed.  It granted the petition and vacated the order of deportation, holding that where an alien is "admitted" to the U.S. pursuant to the unambiguous definition set forth in INA Sec. 101(a)(13)(A), and where he maintains continuous lawful presence in the U.S. thereafter, the date of his lawful entry constitutes the triggering date for purposes of the five-year removal provision of INS Sec. 237(a)(2)(A)(i).  Browning, Reinhardt (author), and Thomas, Circuit Judges.  G. Singh of Honolulu, HI, for the petitioner;  J. Cunningham of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  IMMIGRATION:  Andia v. Ashcroft, 02-70648 (9th Cir. Mar. 2, 2004).  The petitioners were deported in absentia after failing to appear at their deportation hearing;  they moved to reopen, claiming they had not received notice of the hearing.  The IJ denied the motion on the grounds that the petitioners did not file their motion until seven months after they discovered the deportation order;  the BIA upheld the IJ's decision as an proper exercise of discretion.  The USCA granted the petition to review and remanded for further proceedings because the statute and regulations governing the timing of this suit allow the parties to seek reopening of an in absentia deportation order at "any time," 8 USC Sec. 1252b(c)(3)(B) (1994), on lack-of-notice grounds.  Tashima, Berzon, and Clifton, Circuit Judges. Per Curiam.  S. Hill of Los Angeles, CA, for the petitioners;  J. Lightbody of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  IMMIGRATION:  USA v. Hovsepian, 99-50041 (9th Cir. Mar. 2, 2004).  The district court committed errors of law by resentencing Hovsepian and sealing the records of his conviction;  it also erred in granting an injunction barring the INS from deporting him on any ground not existing at the time of his original sentencing;  although it properly resentenced Yacoubian under the Federal Youth Corrections Act, its order sealing his conviction records was too broad;  and, although the court properly exercised exclusive jurisdiction over the defendants naturalization applications pursuant to 8 USC Sec. 1447(b), it failed to undertake a complete analysis of those applications as it failed to consider certain evidence.  Schroeder, D.W. Nelson, Kleinfeld, Hawkins, Thomas, Graber (author), McKeown, Gould, Paez, Berzon, and Clifton, Circuit Judges.  AUSA J. Rosenbluth of Los Angeles, CA, for the plaintiff;  M. Lightfoot of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  IMMIGRATION:  Thomas v. Ashcroft, 02-71656 (9th Cir. Mar. 2, 2004).  The petitioners, a family, are citizens and natives of South Africa; they entered the U.S. as visitors, but then requested asylum pursuant to INA Sec. 208;  petitioner Michelle Thomas testified that her family came to the U.S. to avoid threats of physical violence and intimidation they received due to abuses committed by her father-in-law, allegedly a racist who abused his black workers;  the IJ concluded that Michelle failed to meet her burden of showing that she and her family suffered persecution based on any of the five statutory grounds whether race or political opinion was at issue;  the BIA affirmed the IJ.  The USCA granted the petition and remanded;  substantial evidence did not support the BIA's determination that the petitioners did not suffer alleged persecution on any of the five statutory grounds.  Judge Fernandez dissented: First, he noted that within the Circuit there is little authority for the proposition that a family, as such, is a social group.  Second, he could see no basis for holding that every blow or crime perpetrated against a person is persecutory, without any real consideration of who did it and why.  Third, while the Circuit has said that persecution can be by groups, it has never extended the concept to the point of saying that a few disgruntled employees, who attack a hated boss's family, comes within the group concept for asylum purposes.  Fourth, there is no evidence that South African authorities are "unable or unwilling" to protect this family, and others, from crimes committed against them.  Finally, the record does not support a determination that the family could not protect themselves by moving to another city in South Africa, rather than coming all the way to the U.S.  In short, Judge Fernandez thought the majority's decision expands and extends general language in Ninth Circuit cases almost beyond recognition in order to grant asylum to people who are in no proper sense true refugees and makes a mockery of the serious concerns that lie behind the virtually universal desire to protect people who are truly being persecuted in their own countries.  Pregerson (author), Fernandez (dissenting), and Berzon, Circuit Judges.  E. Horwitz of Woodland Hills, CA, for the petitioners;  H. Smith of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  IMMIGRATION:  Tovar-Landin v. Ashcroft, 02-71359 (9th Cir. Mar. 18, 2004).  Tovar-Landin, a native and citizen of Mexico, petitioned for review of the BIA's summary affirmance of the Immigration Judge's order of removal—specifically, the IJ's denial of the petitioner's request for the privilege of voluntary departure in lieu of removal at the conclusion of the proceedings.  The USCA noted that, at the conclusion of a removal proceeding, a alien may be granted voluntary departure only if he has been physically present in the United states for at least one year.  Tovar-Landin maintained that this regime violated the right to due process and equal protection.  However, the USCA held that the petitioner's due process challenge could not be sustained because there is no fundamental right to the wholly discretionary relief of voluntary departure;  the equal protection challenge was similarly denied because Congress's one-year requirement is not "wholly irrational."  Silverman (author), Gould, and Bea, Circuit Judges.  K. Bove of Escondido, CA, for the petitioner;  E. Kanter of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  IMMIGRATION:  Chen v. Ashcroft, 02-73673 (9th Cir. Mar. 30, 2004).  Chen entered the U.S. from China in 2001, and was intercepted and detained at SFO; on her asylum application, she stated that she has a nine-year-old son living in China, and was pregnant with a second child;  she said she and her husband had been fined for an unauthorized pregnancy by China's family planning officials;  she also alleged that she was unable to obtain permission to have a second child in China due to her "city residency" and that she would be forced to undergo an abortion and sterilization, and would face fines for having a second child;  she also said that her second child would be unable to obtain social, health, and educational benefits due to China's "coercive family planning" policies.  The USCA granted the petition for review and remanded.  It found that the IJ's finding that Chen did not have a nine-year-old son in China was not supported by substantial evidence;  it remanded because the BIA and IJ failed to determine whether Chen faced forcible abortion, sterilization, or other persecution in China.  Alarcon (author), Beezer, and W. Fletcher, Circuit Judges.  J. Macy of Sacramento, CA, for the petitioner;  M. Taylor of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  IMMIGRATION:  Guo v. Ashcroft, 02-73527 (9th Cir. Mar. 23, 2004).  Guo petitioned for review of a BIA's decision denying him asylum and withholding of removal; the USCA granted the petition, concluding that the IJ's adverse credibility finding and his finding that Guo was not subjected to past persecution were not supported by substantial evidence;  the USCA remanded with instructions that the agency determine whether the government can rebut the presumption that Guo has a well-founded fear of future persecution because he is a Christian;  the USCA also remanded to permit the Attorney General to exercise his discretion with respect to whether the application for asylum should be granted.  Alarcon (author), Beezer, and W. Fletcher, Circuit Judges.  E. Hovakemian of Pasadena, CA, for the petitioner;  M. Taylor of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  IMMIGRATION:  Damon v. Ashcroft, 02-71677 (9th Cir. Mar. 11, 2004).  The evidence compelled the conclusion that the Korean alien in this case entered her marriage in good faith and not for the purpose of procuring an immigration benefit.  Paez (author), Berzon, and Bea, Circuit Judges.  S. Strack of Honolulu,  HI, for the petitioners;  B. O'Connor of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  IMMIGRATION:  USA v. Batterjee, 03-10152 (9th Cir. Mar. 24, 2004).  The defendant appealed from a district court conviction for being a non-immigrant alien in possession of a firearm and ammunition in violation of 18 USC Secs. 922(g)(5)(B) and 924(a)(2);  he claimed that since federal officials affirmatively misled him as to his eligibility to possess these items under Sec. 922(g)(5), the district court erred in rejecting his affirmative defense of entrapment by estoppel;  the USCA reversed, finding that the evidence established a credible defense of entrapment by estoppel;  the outdated version of Form 4473 presented to him by the federal firearms licensee did not provide him with notice that he could not possess or receive a firearm under Sec. 922(g)(5).  Hug, Alarcon (author), and W. Fletcher, Circuit Judges.  D. Danneman and L. Kasten of Phoenix, AZ, for the defendant;  AUSA H. Sukenic of Phoenix, AZ, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION:  Ma v. Ashcroft, 02-70956 (9th Cir. Mar. 15, 2004).  Ma is a native and citizen of China.  In denying his motion to reconsider or reopen its decision to deny him asylum, the BIA ruled that only a spouse in a marriage registered in China can establish past persecution and qualify as a refugee on the basis of his wife's forced abortion or sterilization.  Granting the petition and remanding for further proceedings, the USCA held that the protections of INA Sec. 101(a)(42)(B), which grants asylum to victims of China's population control policy, applies to husbands whose marriages are recognized by China and to husbands whose marriages would be legally recognized but for China's coercive family planning policies.  Browning, Reinhardt (author), and Thomas, Circuit Judges.  J. Li of Honolulu, HI, for the petitioner;  M.J. Wright of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  IMMIGRATION / CRIMINAL LAW:  Ruiz-Morales v. Ashcroft, 02-70693 (9th Cir. Mar. 24, 2004).  Since a mayhem conviction under California Penal Code Sec. 203 is an "aggravated felony," 8 USC Sec. 1252(a)(2)(C) barred the USCA from reviewing the BIA's order of removal and denial of asylum, as well as the constitutional and statutory claims he raised in his petition for review.  Trott, Rawlinson (author), and Bea, Circuit Judges.  B. Lerner of Carson, CA, for the petitioner;  L. Lightbody of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  IMMIGRATION:  Flores-Chavez v. Ashcroft, 01-70748 (9th Cir. Mar. 25, 2004).  The petitioner was 15 years old when the INS detained him for illegally entering the United States and then released him into the custody of an adult relative;  because this juvenile was not given proper notice of his deportation proceedings, the BIA erred in failing to reopen his proceedings;  the INS must serve notice both to the "juvenile," as defined in 8 CFR Sec. 242.24, and to the person to whom the regulations authorizes release.  Wardlaw (author) and Berzon, Circuit Judges, and Ishii, District Judge.  M. Guajardo of San Francisco, CA, for the petitioner;  C. McIntyre of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  IMMIGRATION:  Singh v. Ashcroft, 02-70867 (9th Cir. Mar. 18, 2004).  The BIA properly dismissed Singh's appeal from the denial of his applications for asylum, withholding of deportation and protection under the Convention Against Torture;  the BIA is authorized to summarily dismiss an appeal where the petitioner "indicates on Form EOIR-26 or Form EOIR-29 that he or she will file a brief or statement, or reasonably explain his or her failure to do so, within the time set for filing," 8 CFR Sec. 3.1(d)(2)(i)(E), in cases where the petitioner's description of the grounds for appeal in the Notice of Appeal lacks the requisite specificity.  The USCA has consistently upheld the BIA's exercise of this authority;  Singh's case did not merit different treatment.  Schroeder, Tallman (author), and Callahan, Circuit Judges.  M. Ahluwalia of San Francisco, CA, for the petitioner;  R. McCallum of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  IMMIGRATION:  Taha v. Ashcroft, 02-73499 (9th Cir. Mar. 31, 2004).  An asylum applicant's testimony that government agents detained him, beat him, and forced him to sit on a small bottle, causing injuries which later required bowel surgery, can serve as a basis for a finding of incredibility when asylum application makes no mention of the alleged events.  Dissenting Judge Kozinski thought that on the record considered as a whole, the BIA had exaggerated the importance of the discrepancies between Taha's testimony and his asylum application and incorrectly found that Taha's testimony was not specific.  Beezer and Kozinski (dissenting), Circuit Judges, and Schwarzer (author), District Judge.  L. Wayland of City of Industry, CA, for the petitioner;  J. Williams of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  EXTRADITION / TERRORISM:  Barapind v. Enomoto, 02-16944 (9th Cir. Mar. 10, 2004).  The USCA upheld an alien's extradition, as requested by his native India which sought to try him for murder, attempted murder, and robbery;  the indiscriminate killings of civilians and police officers does not qualify for the "political offense" exception to extradition, even if politically motivated.  Farris and Trott (author), Circuit Judges, and Weiner, District Judge.  J. Sekhon of San Francisco, CA, for the petitioner;  FPD C. Hahn and AUSA S. Boone of Fresno, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  SEARCH & SEIZURE:  USA v. Barajas-Avalos, 02-30301 (9th Cir. Mar. 10, 2004).  The defendant was convicted of conspiracy to manufacture methamphetamine and attempting to manufacture and manufacturing methamphetamine in violation of federal law;  he received concurrent sentences of imprisonment for 360 months;  he sought reversal of the judgment on the ground that the court erred in denying his motion to suppress evidence seized pursuant to a search warrant;  he contends that the facts relied upon by the judge in issuing the warrant were derived from earlier observations made by police during an unwarranted trespass onto his rural land and the natural clearing surrounding his trailer.  The USCA concluded that the defendant did not show that the officers violated the Fourth Amendment by viewing the interior of his trailer through a window;  because the curtilage doctrine applies to the area immediately surrounding a home, not to an empty structure used occasionally as sleeping quarters, the natural clearing surrounding the trailer was not protected from trespass by the Fourth Amendment;  probable cause thus existed for the search warrant.  Dissenting in part, Judge Ferguson thought that the majority had had correctly noted that individuals have no legitimate expectation of privacy in "open fields," with the exception of "the area immediately surrounding the home." He also thought the majority had correctly concluded that the trailer was not a home;  there was nothing the trailer to indicate that it was being used as a home;  however, Judge Ferguson noted that the federal agents did not know that the property surrounding the trailer was not protected until they stood next to the trailer and peered through the window with a flashlight;  this put the cart before the horse;  the majority solved this problem by holding that the Fourth Amendment only prohibits the police from peering through the windows of homes which are "traditional structures," but may look through the windows of campers, trailers, tents, and similar living spaces as much as they please without a search warrant.  Judge Ferguson rejected this solution.  Alarcon (author), Ferguson (dissenting in part), and Rawlinson, Circuit Judges.  J. Rice of Portland, OR, for the defendant;  AUSA F. Weinhouse of Portland, OR, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  SEARCH & SEIZURE:  USA v. Bautista, 02-50664 (9th Cir. Mar. 26, 2004).  The defendant, the registered occupant of a motel room, retained a legitimate expectation of privacy with respect to that room in the face of an unconfirmed report that a stolen credit card was used to reserve the room;  because the defendant's rental period had not expired and he had not been evicted, he retained a legitimate expectation of privacy in the room;  his Fourth Amendment rights were violated by the warrantless search of the room without probable cause;  a police officer's command that the defendant's wife open the door to the room rendered his actions after that point acquiescence to a claim of lawful authority, rather than the product of freely given consent;  no significant intervening time, space, or event provided a buffer between the officer's entry and the wife's subsequent consent to a search of the room, rendering the evidence obtained pursuant to the search tainted by the illegal entry.  Reinhardt, Fernandez, and Rawlinson (author), Circuit Judges.  T. Scott of San Diego, CA, for the defendant;  AUSA M. Inciong of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  EVIDENCE:  USA v. Barajas, 02-10668 (9th Cir. Mar. 9, 2004).  The evidence was sufficient to support the finding that the defendant was guilty of aiding and abetting the growing of marijuana and that he lied when he said he was hired to hand-pick tomatoes in the remote mountain area at a site where more than 1,000 marijuana plants were being grown;  the district court did not err in refusing to apply a minor role adjustment to his offense score, or in adjusting upward for obstruction of justice.  Alarcon (author), Beezer, and W. Fletcher, Circuit Judges.  N. Reyes of Fresno, CA, for the defendant;  AUSA K. Rooney for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  WIRETAPS / EVIDENCE:  USA v. Gomez, 03-50106 (9th Cir. Mar. 2, 2004).  The government appealed from the district court's order suppressing evidence obtained from court-authorized wiretaps requested by the FBI in connection with its investigation of a large drug-trafficking operation and which yielded information leading to the indictment of the defendants;  the district court suppressed the wiretap-procured evidence, because the application for the wiretap failed to include a full and complete statement of the government's need for the use of the wiretap and, that given the apparent availability of confidential informants, the wiretaps were not necessary.  The USCA disagreed and reversed, finding that the government's application for an order authorizing the wiretaps included a full and complete statement regarding the necessity of the wiretap, and the issuing court appropriately exercised its discretion in finding that the necessity requirement had been met.  Friedman, Trott (author), and Rawlinson, Circuit Judges.  AUSA M. Raphael of Los Angeles, CA, for the plaintiff;  T. Lannen and D. Dudley of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  CRIMINAL PROCEDURE:  USA v. Mack, 03-10204 (9th Cir. Mar. 30, 2004).  Mack appealed his conviction and sentence for distribution of cocaine base after a trial in which re represented himself;  on appeal, he asserted that the district court erred when it truncated the trial by excluding him from the courtroom and then denying him the right to call witnesses and the right to present closing arguments.  The USCA agreed and reversed.  Fernandez (author), Hawkins, and Thomas, Circuit Judges.  M. Posin of Las Vegas, NV, for the defendant;  AUSA M. Inciong of Las Vegas, NV for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  CRIMINAL PROCEDURE:  USA v. Tapia-Marquez, 03-50167 (9th Cir. Mar. 9, 2004).  A criminal defendant, whose appeal of a judgment revoking his supervised release became moot when he was released from custody while the appeal was pending, was not entitled to vacatur of the judgment where existing precedent squarely foreclosed the only issue he raised on appeal.  Silverman (author), Gould, and Bea, Circuit Judges.  M. Anderson of San Diego, CA, for the defendant;  AUSA M. Rehe of San Diego, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  CONTEMPT:  USA v. Glass, 03-50609 (9th Cir. Mar. 17, 2004).  The district court, concerned that indigent legal services be provided only to impecunious defendants, held the defendant in summary criminal contempt under Fed. R. Crim. Proc. 42(b) for making false statements during the court's inquiry into her eligibility for such services.  The USCA found no fault with the district court's admonitions that defendants be forthcoming about their financial circumstances so the court can determine whether appointed counsel is needed,  and it did not pretermit the possibility that a failure to do so could support a conviction for criminal contempt,  however, the USCA held that summary proceedings were inappropriate for adjudicating whether the defendant's conduct was contemptuous;  it thus reversed her conviction and remanded with instructions that any further contempt proceedings relating to the district court's summary contempt findings be conducted under Rule 42(a) and delayed until the conclusion of the defendant's underlying criminal trial.  Skopil, Noonan, and Berzon (author), Circuit Judges.  DFPD J. Locklin of Los Angeles, CA, for the defendant;  AUSA J. Joseph of Santa Ana, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  CRIMINAL LAW:  Doe v. Tandeske, 99-35845 (9th Cir. Mar. 17, 2004).  Doe asserts that Alaska's sex offenders registration law violates his right to procedural due process because it deprives him of protected liberty interests without notice or the right to be heard;  the USCA held that caselaw did not permit it to reach any other result than that the law does not violated Doe's due process rights.   D.W. Nelson, Reinhardt, and Thomas, Circuit Judges. Per Curiam.  D. Thompson of Anchorage, AK, for the plaintiffs;  K. Rosenstein of Anchorage, AK, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  CRIMINAL LAW:  USA v. McNeil, 02-30039 (9th Cir. Mar. 24, 2004).  Because defendant's false statements on his Criminal Justice Act 23 Financial Affidavit, which were submitted to support his request for court-appointed counsel, were made during a judicial proceeding, they are not subject to prosecution under 18 USC Sec. 1001(b);  the USCA thus reversed his conviction.  Hug (author), Graber, and Clifton, Circuit Judges.  J. M. Ashley of Helena, MT, for the defendant;  W. Mercer of Billings, MT, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  CONSPIRACY:  USA v. Koonin, 02-50350 (9th Cir. Mar. 25, 2004).  For purposes of a prosecution for conspiracy, the day on which the last overt act is committed in furtherance of the conspiracy is excluded from the statute of limitation period;  the clock starts the day after the last overt act.  Noonan, Tallman, and Rawlinson (author), Circuit Judges.  L. Branton of Los Angeles, CA, for the defendant;  AUSA S. Harrigan of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  CRIMINAL LAW / TERRORISM:  USA v. Naghani, 02-50168 (9th Cir. Mar. 26, 2004).  Sixteen days after September 11, 2001, Naghani, a passenger on Air Canada Flight 792, went to the lavatory shortly after take-off from the Los Angeles International Airport and lit a cigarette, setting off a smoke alarm;  when flight attendants investigated, a verbal confrontation ensured, beginning with Naghani's refusal to admit to smoking and refusal to reveal where he had put whatever had caused the smoke;  it concluded with Naghani's purported threat that either he or his people would "kill all Americans."  Naghani, an Iranian national and U.S. resident alien, denied making these remarks and denied refusing to cooperate;  a jury nevertheless convicted him, and the district court sentenced him to 33 months imprisonment for interfering with the duties of flight attendants in violation of 49 USC Sec. 46504.  The USCA affirmed, concluding that the district court properly found that Naghani was aware of the risk created by his smoking, obstreperous behavior and threats, and that such conduct constituted a gross deviation from a standard of ordinary care;  he should have been aware that his behavior would divert the flight attendants away from their regular duties.  Beezer and Fisher (author), Circuit Judges, and England, District Judge.  G. Ivens of Glendale, CA, for the defendant-appellant;  AUSA E. Yang of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  MAJOR CRIMES ACT:  USA v. Bird, 02-30246 (9th Cir. Mar. 3, 2004).  The USCA dismissed for lack of jurisdiction an interlocutory appeal seeking the dismissal of Major Crimes Act indictments for failure to allege that the victim is an Indian, an essential element of 18 USC Sec. 1153;  the USCA dismissed without reaching the merits of the appellants' claim because it lacked jurisdiction to determine whether the indictment alleges sufficient facts to state an offense until a final judgment has been entered after trial;  the USCA also rejected the appellants' request to treat the appeal as an application for writ of mandamus.  Browning, Alarcon (author), and Clifton, Circuit Judges.  D. Ness of Helena, MT, for the defendants;  K. Richter of Billings, MT, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

52) NO-KNOCK ENTRY / EXIGENT CIRCUMSTANCES:  USA v. Bynum, 03-10231 (9th Cir. Mar. 26, 2004).  Given the existence of exigent circumstances threatening officer safety—the presence of a firearm coupled with evidence that the defendant was willing and able to use it—the no-knock entry while executing the high-risk search warrant in this case violated neither the Fourth Amendment nor 18 USC Sec. 3109.  Schroeder, Tallman (author), and Callahan, Circuit Judges.  R. Lucherini of Las Vegas, NV, for the defendant;  AUSA D. LaHood of Las Vegas, NV, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  SENTENCING / ARMED CAREER CRIMINAL ACT / EVIDENCE:  USA v. Keesee, 02-10333 (9th Cir. Mar. 1, 2004).  The defendant unsuccessfully challenged his sentence enhancement;  he argued that two of his prior convictions could not be used to enhance his sentence under the Armed Career Criminal Act, 18 USC Sec. 924(e) because they are more than ten years old;  his only authority for this assertion is an evidence rule, Fed. R. Evid. 609(b), which limits the use of old convictions for impeachment of credibility.  However, Rule 609b) neither purports to limits, not has the effect of limiting, the time period for which prior crimes may be considered under Sec. 924(e)(1).  Canby, Kleinfeld (author), and Rawlinson, Circuit Judges.  J. Rood of Phoenix, AZ, for the appellant;  AUSA F. Battista of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  SENTENCING:  USA v. Alvarado-Guizar, 02-30220 (9th Cir. Mar. 22, 2004).  On an matter of first impression, the USCA joined the Second and Eighth Circuits, and held that a district court need not make specific factual findings in electing not to impose a two-level sentencing enhancement for obstruction of justice.  Hug, Graber (author), and Clifton, Circuit Judges.  AUSA J. Kirk of Yakima, WA, for the plaintiff;  E. Alden of Kennewick, WA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  SENTENCING:  USA v. Sarbia, 03-10276 (9th Cir. Mar. 22, 2004).  Sarbia appealed from a 63-month sentence imposed in this case following his conviction for possession of a firearm by a felon in violation of 18 USC Sec. 922(g)(1);  the district court adjusted his sentence upward pursuant to Sentencing Guideline Sec. 2K2.1(a)(4)(A);  Sarbia maintained that the district court erred in determining that his prior 1994 Nevada state court conviction of attempting to discharge a firearm at an occupied structure was a "crime of violence" as defined by Sec. 4B1.2 of the Guidelines.  The USCA affirmed as the Guidelines and prior Ninth Circuit precedent treat attempted commission and actual commission of an offense the same for purposes of defining "crime of violence" under Sec. 4B1.2;  the defendant's prior state conviction of attempting to discharge a firearm at an occupied structure was properly deemed a "crime of violence."  Hug, Alarcon (author), and W. Fletcher, Circuit Judges.  AUSA T. Dougherty of Las Vegas, NV, for the plaintiff;  AFPD J. Carr of Las Vegas, NV, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  SENTENCING:  USA v. Rios-Beltran,. 03-30177 (9th Cir. Mar. 24, 2004).  It is the statutory maximum, not the range of sentences applicable under a state's sentencing guidelines, that determines whether an offense qualifies as a felony for federal sentencing purposes;  because Oregon law authorize a maximum term of imprisonment of more than one year for the defendant's prior conviction, the conviction herein was for an "aggravated felony" within the meaning of U.S. Sentencing Guidelines Sec. 2L1.2(b)(1)(C);  the district court thus properly applied an eight-level enhancement in calculating the defendant's sentence. Hug, Graber, and Clifton (author), Circuit Judges.  R. W. Curtis of Boise, ID, for the defendant;  AUSA A. Burrow of Boise, ID, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  SENTENCING:  USA v. Liang,. 02-10549 (9th Cir. Mar. 31, 2004).  Extraordinary eyesight may not be considered a "special skill" supporting an enhanced sentence in a casino card cheating scheme.  O'Scannlain (author) and Tashima, Circuit Judges, and Matz, District Judge.  L. Flangas of Las Vegas, NV, for the appellant;  AUSA D. Bogden of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  CAPITAL CASES:  Webster v. Woodford, 02-99009 (9th Cir. Mar. 5, 2004).  This capital case presented the issue of whether the petitioner's due process rights were denied by a judicial expansion of California's definition of death-qualifying special circumstances in Bouie v. City of Columbia, 378 U.S. 347 (1964);  the USCA held that they were not and reversed the district court;  specifically, the California Supreme Court's construction of the elements of robbery and lying in wait did not violate Bouie.  Schroeder, Thomas (author), and Clifton, Circuit Judges.  P. Whalen of Sacramento, CA, for the appellant;  J. Thomson of Berkeley, CA, for the appellees.  ((Download the full text of this decision at www.cc9.uscourts.gov/)

59)  HABEAS CORPUS / SENTENCING:  Robinson v. Ignacio, 02-17298 (9th Cir. Mar. 10, 2004).  A habeas petitioner's Sixth Amendment right to counsel was violated when the trial court denied his timely request for representation at sentencing based on the notion that once waived, the right to counsel cannot be re-asserted;  the USCA concluded that the petitioner is entitled to a new sentencing hearing, for which he should be represented by counsel;  because of the fundamental importance of the right to counsel, the petitioner need not prove prejudice and a harmless error analysis is not required.  Hawkins, Thomas, and Clifton (author), Circuit Judges.  AFPD J. Lambrose of Las Vegas, NV, for the petitioner;  DAG J. Warwick of Carson City, NV, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  HABEAS CORPUS:  Jackson v. Giurbino, 02-57117 (9th Cir. Mar. 26, 2004).  A jury convicted Jackson of rape and first-degree murder with special circumstances following his trial in state superior court;  because Jackson did not personally commit the murder, his conviction turned on application of the state's felony-murder doctrine;  Jackson appealed from the Federal District Court's denial of his habeas petition under 28 USC Sec. 2254, seeking to vacate his conviction and sentence of life in prison without the possibility of parole.  The USCA affirmed in part, reversed in part, and remanded;  it noted that it did not grant relief on the basis of Doyle v. Ohio, 426 US 610 (1976), because Jackson did not object at trial to the prosecutor's remarks on Jackson's silence;  however, the USCA agreed with Jackson's claim of prejudicial admission of evidence in violation of Miranda;  it thus granted the petition and vacated Jackson's felony-murder conviction;  the USCA left Jackson's conviction on the rape charge undisturbed and permitted the state court to revoke its suspension of his sentence for that crime.  Dissenting, Judge O'Scannlain thought that any error from the admission of Jackson's inculpatory statement was harmless;  the jury, he thought, had ample evidence that Jackson raped and beat the victim; Jackson's semen was present in the victim; the state's medical expert testified that her injuries suggested that she had been raped; and Jackson's own medical expert conceded that the victim's vaginal injuries were almost certainly the result of rape, and he agreed that her injuries were fresh and that she was likely raped while she lay supine; this evidence was entirely consistent with Rollin's testimony that he witnessed Jackson beating and then having intercourse while on top of the victim a few short hours before she was murdered;  in view of the overwhelming forensic evidence of rape, it is difficult to see how the jury could not conclude that Rollins saw Jackson raping the victim.  Bright (author), O'Scannlain (dissenting), and McKeown, Circuit Judges.  L. Bray of Ventura, CA, for the appellant;  R. Anderson of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  HABEAS CORPUS / STATUTE OF LIMITATIONS:  USA v. Battles, 00-15134 (9th Cir. Mar. 30, 2004).  In was undisputed that Battles filed his habeas petition too late unless the transcript delivery delays entitled him to equitable tolling or the delay entitled him to relief on the basis that the facts on which he founds his claims could not have been discovered earlier through the use of due diligence. 28 USC Sec. 2255(a).  The USCA first determined that equitable tolling applies to the one year time limitation in Sec. 2255;  it then remanded this case for the district court to determine whether Battles is entitled to such tolling.  Fernandez (author), Hawkins, and Thomas, Circuit Judges.  D. Frick of Sacramento, CA, for the defendant;  AUSA R Bender of Sacramento, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  HABEAS CORPUS:  Chia v. Cambra, 99-56361 (9th Cir. Mar. 4, 2004).  Statements, made by a participant in the murder of DEA agents were reliable and crucial to the petitioner's defense;  the trial court's exclusion of this evidence constituted an objectively unreasonable application of clearly established federal law;  the USCA thus reversed and remanded with instructions to grant the writ of habeas corpus.  Dissenting, Judge Brunetti would uphold the dismissal of the petition;  he thought that the statements did not bear sufficient indicia of reliability, and that excluding them as inadmissible hearsay did not deny the petitioner his due process rights under Chambers v. Mississippi, 410 U.S. 284 (1973).  D.W. Nelson (author), Brunetti (dissenting), and Kozinski, Circuit Judges.  J. Dirks of Sacramento, CA, for the petitioner;  DAG V. Baker of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  HABEAS CORPUS:  Caswell v. Calderon, 02-17177 (9th Cir. Mar. 18, 2004).  On this appeal from the district court's denial of a habeas corpus petition and denial of leave to amend the petition, the USCA decided two issues:  First it held moot Caswell's claim that the California Board of Prison Terms violated the Ex Post Facto Clause when it calculated his term of confinement.  Second, it held that Caswell should be granted leave to amend his habeas petition to add a due process claim, but not also an equal protection claim.  O'Scannlain and Tashima, Circuit Judges, and Matz (author), District Judge.  E. Multhaup of Mill Valley, CA for the petitioner;  M. Williams of Sacramento, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1) TAXATION:  FRGC Investment, LLC v. CIR, 03-70443 (9th Cir. Mar. 15, 2004) (unpublished).  T.G. Nelson, Graber, and W. Fletcher, Circuit Judges.

 FRGC Investment appealed the tax court's denial of its petition for readjustment of its partnership filing for 1997.  The USCA affirmed.  The tax court was not required to decide which party had the burden of proof under 26 USC Sec. 7491.  Whatever the burden of proof, the preponderance of the evidence favored the Commissioner of Internal Revenue (CIR).  That being so, the burden of proof did not come into play.  The USCA assumed, without deciding, that the CIR had the burden of proof.  Whether a taxpayer sustained an abandonment loss is a factual question.  A.J. Indus., Inc. v. USA, 503 F.2d 660, 667 (9th Cir. 1974).  Even assuming that the CIR had the burden of proof, the tax court did not clearly err in finding that FRGC did not abandon the real estate project in question.  James Mehen, for example, withdrew the plan before the county board could vote on it so that a denial would not prevent resubmission of the project within a year;  FRGC did not cancel escrow for nearly six weeks after the county board met, a period during which it continued to pay Mehen for services related to the project;  and the investors were not given a chance to vote on whether to abandon the project until January 1998, when simultaneously they were presented with a third (and, this time, successful) purchase agreement for the real property.

2) TAXATION / FRIVOLOUS RETURN PENALTIES:  Nitschke v. USA, 03-16043 (9th Cir. Mar. 24, 2004) (unpublished).  B. Fletcher, Leavy, and Wardlaw, Circuit Judges.

 Nitschke appealed pro se the district court's summary judgment for the U.S. in Nitschke's action seeking to set aside the result of an IRS Collection Due Process (CDP) hearing held before an IRS Appeals Officer regarding a $500 frivolous return penalty imposed on Nitschke in 1999.  Nitschke maintained that although he appeared telephonically at the CDP hearing, he did not receive the notice of assessment of the frivolous return penalty and thus any assessment against him is invalid.  He further maintained that the district court erred by considering on summary judgment evidence from the IRS which was not presented at the CDP hearing.  The Ninth Circuit previously affirmed the tax court's ruling that Nitschke filed a frivolous tax return in 1999.  Nitschke v. CIR, 76 Fed. Appx. 137 (9th Cir. 2003).  Here, the district court correctly determined that there was no genuine issues of material fact regarding the frivolous nature of Nitschke's challenge to the penalty.  26 USC Sec. 61(a);  Olson v. USA, 760 F.2d 1003 (9th Cir. 1985);  Wilcox v. CIR, 848 F.2d 1007 (9th Cir. 1988).  As the district court held, the IRS complied with the procedures for administrative collection of taxes in 26 USC Sec. 6330, and Nitschke's arguments to the contrary were meritless.  The district court did not abuse its discretion in its evidentiary rulings on Nitschke's requests to strike the declaration of an IRS employee and attached exhibits.  Fed. R. Civ. P. 56(e);  Fed. R. Evid. 803(6) and 801(d)(2). 

3) TAXATION / COLLECTION ACTIONS:  Hill v. CIR, 03-72859 (9th Cir. Mar. 15, 2004) (unpublished).  B. Fletcher, Leavy, and Wardlaw, Circuit Judges.

 Hill appeals pro se the tax court's summary judgment upholding the CIR's determination approving proposed collection actions to be taken with respect to an income tax assessment against Hill for 1998.  The USCA affirmed.  Summary judgment was proper because the IRS presented uncontroverted evidence establishing that it provided Hill with adequate notice. See Hughes v. USA, 953 F.2d 531 (9th Cir. 1992).  And, in addition, Hill's statement that he did not receive notice is insufficient to create a genuine issue of material fact on this issue.  See Hansen v. USA, 7 F.3d 137, 138 (9th Cir. 1993) (per curiam).  Hill also failed to raise a genuine issue of material fact as to whether the IRS appeals officer abused his discretion in determining, pursuant to 26 USC Sec. 6330(c)(1), that the IRS met the requirement of applicable law and administrative procedures.  The tax court did not err by considering the IRS exhibits as part of the administrative record.  See, Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 551 (9th Cir. 1989) (the whole administrative record consists of all documents and materials directly or indirectly considered by agency decision-makers).

4) TAXATION / FALSE RETURNS:  USA v. Kim, 03-30192 (9th Cir. Mar. 10, 2004) (unpublished).  O'Scannlain, Rymer, and Bybee, Circuit Judges.

 Kim appealed the sentence imposed by the district court following her guilty plea for aiding and assisting in the filing of false income tax returns in violation of 26 USC Sec. 7206(2).  She argues that the government breached the plea agreement, and she sought specific performance of the sentencing recommendation contained in the plea agreement.  The USCA affirmed.  It declined to address this issue for the first time on appeal, as Kim made no such claim in the district court.  There was no plain error.

5) TAXATION / CONSPIRACY TO DEFRAUD:  USA v. Anderson, 03-30018 (9th Cir. Mar. 23, 2004) (unpublished).  Hug, McKeown, and Fisher, Circuit Judges.

 In this consolidated appeal from a joint criminal trials, defendants Anderson, Richard Flowers, Dorothy Flowers, Weakley, and Kirkham all raise challenges to convictions for conspiracy to defraud the government under 18 USC Sec. 371.  Richard Flowers also challenged his conviction for willful failure to file a tax return under 26 USC 7203, and Kirkham and Anderson challenge their convictions for tax evasion under 26 USC Sec. 7201.  In addition Richard and Dorothy Flowers challenged the district court's calculation of tax loss for sentencing purposes.  The government cross-appealed, claiming that the district court erred in calculating the sentences of Richard and Dorothy Flowers, Weakley, and Kirkham.

 The USCA affirmed all the convictions of all the defendants.  In addition, based on the government's cross-appeals,  it vacated and remanded the sentences of Richard and Dorothy Flowers and Weakley, but not Kirkham, to the district court for further consideration.

 First, the district court did not err in giving the supplemental jury instruction.  As the defendants conceded, the supplemental instruction correctly stated the law in informing the jurors that they were not limited to considering overt acts specifically enumerated in the indictment and that they could consider only overt acts committed within the statute of limitations.  Any late change resulting from the supplemental instruction did not prejudice the defendants because the indictment itself specifically alleged that the defendants had committed overt acts in addition to those specifically enumerated, the trial court limited the jury's consideration to over acts "substantially similar" to those listed in the indictment, and the evidence presented at trial suggested to the defendants that overt acts beyond those enumerated in the indictment would be considered by the jury.  See USA v. Wycoff, 545 F.2d 679, 683 (9th Cir. 1976) (upholding a late jury instruction when harmless beyond a reasonable doubt).  Nor were the defendants closing arguments prejudiced by the additional accurate instruction on the stature of limitations.  Numerous overt acts were described at trial, any one of which, committed by any one of the co-conspirators within the stature of limitations, would have sufficed to convict all the defendants of conspiracy.  With regard to the statute of limitations, the defendants might have emphasized to the jury at closing argument that it was limited to considering overt acts committed during the statutory period, but the district court's supplemental instruction had the same effect.  The government was not judicially estopped from relying on overt acts not specifically listed in the indictment, because the govern-ment did not assert inconsistent positions. Hefland v. Gerson, 105 F.3d 530, 534-36 (9th Cir. 1997). The indictment itself charged acts beyond those specifically enumerated, and the government never argued that the jury was precluded from considering unenumerated overt acts.

 Second, the district court did not err by failing to instruct the jury on multiple conspiracies.  A multiple conspiracies instruction is required where "the proof at trial indicates that a jury could reasonably conclude that some of the defendants were only involved in separate conspiracies unrelated to the overall conspiracy charged in the indictment."  USA v. Anguiano, 873 F.2d 1314, 1317 (9th Cir. 1989).  Because the proof at trial clearly demonstrated that all the defendants participated in a single scheme to defraud the government by commingling funds in a warehouse bank with the appropriate intent, no jury could have reasonably concluded that the defendants were involved only in separate unrelated conspiracies.  

Third, the district court did not err in denying Anderson and Kirkham's motions for acquittal.  There was sufficient evidence to demonstrate a single conspiracy, because all the defendants "had reason to believe that their own benefits derived from the operation were probably dependent upon the success of the entire venture."  USA v. Baxter, 492 F.2d 150, 158 (9th Cir. 1973). 

Fourth, there was sufficient evidence from which the jury could reasonably conclude that Dorothy Flowers willfully entered into an agreement to defraud the United States, because the government introduced substantial circumstantial evidence of willfulness.  See USA v. Marabelles, 724 F.2d 1374, 1379-1380 (9th Cir. 1984) (permitting the trier of fact to infer willfulness from circumstantial evidence).  

Fifth, the district court did not abuse its discretion by refusing to admit into evidence additional materials offered by Anderson to demonstrate willfulness, nor did it err in refusing to admit similar materials offered by Kirkham.  Under Federal Rule of Evidence 403, a district court may properly exclude material when the probative value is substantially outweighed by a danger of prejudice or needless presentation of cumulative evidence.  Both Anderson and Kirkham were allowed to set forth the basis of their willfulness and to show to the jury that they relied on extraneous material in developing their theories about tax law, and neither Rule 403 nor dicta in USA v. Powell, 955 F.2d 1206, 1214 (9th Cir. 1991), suggests that failing to admit the additional material offered by the defendants constituted an abuse of the district court's discretion.  The USCA said it was also unpersuaded by Anderson's claim that the district court erred by refusing to admit evidence that he was a member of the Mormon Church, because Anderson has not shown that his church membership would have been relevant to his willfulness defense and the district court could have properly refused to admit such evidence under Rule 403. 

Sixth, the district court did not abuse its discretion in admitting evidence concerning Kirkham's relationship with Arnold and Dorothy Mitchell, because such evidence was admissible under Federal Rule of Evidence 404(b) to show Kirkham's mental state and met the requirements for admitting such evidence set out in USA v. Smith, 282 F.3d 758, 768 (9th Cir. 2002).  

Seventh, the district court did not abuse its discretion in ruling that Weakley could not introduce the testimony of an expert witness to demonstrate that he suffered from "exceptionally and excessively rigid thinking," because even if true, such thinking would not constitute a defense to willful violation of the tax laws.  See USA v. Scholl, 166 F.3d 964, 971 (9th Cir. 1999).  USA v. Finley, 301 F.3d 1000 (9th Cir. 2002), does not compel a different result, because the testimony at issue in that case went directly to an element of the crime charged.

 Eighth, the district court did not err by denying Richard Flowers' motion to suppress evidence.  The affidavit in support of the search warrant provided a sufficient basis for the issuing magistrate's finding of probable cause, regardless of the single alleged misstatement in the affidavit.  See USA v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir. 2002) (holding that an appellant panel need only find that the issuing magistrate had a substantial basis for finding probable cause).  Nor was the search warrant unreasonably overbroad, because "a generalized seizure of business documents may be justified if the government establishes probable cause to believe … that all of the business's records are likely to evidence criminal activity.  

Ninth, the district court did not clearly err in calculating the tax loss attributable to Richard and Dorothy Flowers.  The method employed by the district court was reasonably designed to calculate the tax loss that resulted from the defendants' conduct, and was thus appropriate under the U.S. Sentencing Guidelines Sec. 2T1.1 commt. 1. 

Tenth, the district court imposed concurrent sentences for Richard Flowers' two convictions for failure to report income tax, apparently believing it had authority to do so under 18 USC Sec. 3584, which permits a district court to impose concurrent sentences even when the sentencing guidelines mandate consecutive sentences, but in so doing the district court must follow the procedures applicable to departing downward from the guidelines, considering, for example, whether the case presents circumstances not taken into consideration by the sentencing commission.  USA v. Lail, 983 F.2d 263, 264 (9th Cir. 1992) (holding that a district court's decision under Sec. 3584 to impose concurrent sentences when the guidelines mandate consecutive sen-tences must comply with the procedures for a downward departure).  The sentencing guidelines mandate consecutive, not concurrent, sentences for Richard Flowers because his "total punishment" under the guidelines was at least 97 months, less than the combination of the statutory maximum punishments for his three counts of conviction.  See U.S. Sentencing Guidelines Sec. 5G1.2 (requiring consecutive sentences when the sentence imposed on the court carrying the highest statutory maximum is less than the "total punishment").  In deciding to impose concurrent sentences on Richard Flowers under Sec. 3584, however, the district court did not apply a downward departure analysis as it was required to do. Because it is unclear on the record whether the district court would have imposed concurrent sentences in Richard Flowers' case had it properly applied Sec. 3584 by conducting a downward departure analysis, the USCA vacated and remanded his sentence to the district court.  The USCA said USA v. Vieke, 348 F.3d 811, 813-814 (9th Cir. 2003), did not affect its determination, because its disposition rests on the district court's application of Sec. 3584, an issue which the government properly preserved through an objection at sentencing.  It also appeared to the USCA that the district court departed downwards in sentencing Dorothy Flowers and Weakley largely because it did not want these two defendants to suffer the same punishment as Richard Flowers, whom the district court judged more culpable.  Because the USCA remanded Richard Flowers' sentence to the district court, it also vacated and remanded the sentences of Dorothy Flowers and Weakley so that the district court may determine whether a change in Richard Flowers' sentence would affect the sentences of those two defendants.   Finally, the USCA declined to vacate and remand Kirkham's sentence to the district court.  Because there is considerable uncertainty in the record as to whether or not the Mitchells' involvement with the Christian Patriots' Association was independent of Kirkham, the district court did not abuse its discretion in concluding that the only act that Kirkham had the specific intent to aid and abet or that was a "reasonably foreseeable" consequence of his jointly undertaken criminal activity with the Mitchells was writing a single check transferring funds form the Mitchells' account to the Christian Patriots' Association.  See Sentencing Guidelines Sec. 1B1.3 commt. 1 (noting that "the focus is on the specific acts and omissions for which the defendant is to be held accountable in determining the applicable guideline range, rather than on which the defendant is criminally liable for an offense as a principal, accomplice, or conspirator").

6)  BANKRUPTCY:  In re Garcia, 02-17202 (9th Cir. Mar. 10, 2004) (unpublished).  Rymer, Hawkins, and Bybee, Circuit Judges.

 The USCA reversed the conclusion of the Bankruptcy Appellate Panel and the bankruptcy court that a resulting trust was formed in favor of Hortencia Rosa with respect to real property owned in the name of the debtor, Delores Garcia.  "A resulting trust arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest."  Lloyds Bank of Cal. v. Wells Fargo Bank, 187 Cal. App. 3d 1038, 1042 (1986 (citing Restatement (Second) of Trusts Sec. 404).  In re Sale Guar. Corp., 220 B.R. 660, 664 (9th Cir. BAP 1998) (same).  Both the bankruptcy judge and the BAP correctly concluded that the initial transaction between Garcia and the sellers did not create a resulting trust in favor of Rosa, because the parties clearly intended that Garcia would have the beneficial interest in the property and would ultimately repay Rosa for the down payment.  Restatement (Second) of Trusts Sec. 445 ("Where a transfer of property is made to one person and the purchase price is ad-vanced by another as a loan to the transferee, no resulting trust arises.")  However, the bankruptcy judge and BAP then both considered a "second time period," beginning in 1996, when Garcia was unable to make the payments and Rosa took over.  Because Rosa and Garcia orally intended for Rosa to become the beneficial owner at this time, the lower courts found that a resulting trust existed under California law.  However, an essential element was missing from the sisters' 1996 agreement—a transfer of the property.  See Lloyds Bank., 187 Cal. App. 3d at 1042.  the only transfer of the property occurred in 1995, at a time when the intent of the parties was for Garcia to be both the legal and beneficial owner.  In 1996, Rosa agreed to assume Garcia's obligation to pay the remainder of the purchase price to the sellers, the Duartes.  At common law, however, the intention of the parties at the time of the transfer controls: "Where a transfer of property is made to one person, no resulting trust arises merely because another person subsequently pays or assumes an obligation to pay for the property." Restatement (Second) of Trusts Sec. 457.  The comment to Sec. 457 further illustrates this principle, explaining that where the purchaser (Garcia) takes an obligation to pay the seller (the Duartes) the purchase price on credit, the fact that another person subsequently pays the purchase price "is not sufficient to create a resulting trust in [her] favor, although at the time of the payment it is agreed that [she] shall have the beneficial interest in the property." Restatement (Second) of Trusts Sec. 457, commt. A.  The Restatement emphasizes that a resulting trust does not arise from this arrangement unless the other person pays or agrees to pay the purchase price at the time of the purchase/transfer. Id.  California adheres to this common law principle.  In Martin v. Kehl, 145 Cal. App. 3d 228, 239 (1983), the parties each contributed 50-50 to the down payment on a piece of property, but title was taken only in Kehl's name.  Kehl then made most of the subsequent payments on the note.  The court, however, found that the fact Kehl had contributed more than 50% of the overall purchase price did not matter, and that, based on the original intentions of the parties at the time of the transfer, she held half of the property in resulting trust for Martin.  Id. at 243 ("proportional payment of consideration at the time of conveyance must be distinguished from subsequent monetary contributions … for installment payments after the title has been acquired, which do not secure an interest by way of a resulting trust");  see also Keene v. Keene, 57 Cal. 2d 657, 667 (1992) (holding that a resulting trust cannot be predicated upon contributions occurring after legal title had vested in defendant).  Because the parties did not intend for Rosa to be the beneficial owner of the property at the time of the original transfer, and because no additional transfer of the property occurred when the parties changed their intentions in 1996, no resulting trust was created in favor of Rose under California law.  The USCA thus reversed and remanded to the bankruptcy court for further proceedings in accordance with this disposition.

7)  BANKRUPTCY:  In re Straightline Investments, 03-15256 (9th Cir. Mar. 5, 2004) (unpublished).  Rymer, Hawkins, and Bybee, Circuit Judges.

 The USCA noted that it may take jurisdiction over a bankruptcy appeal only when both the bankruptcy court order and the intermediate appellate decision are final.  28 USC Sec. 158(d).  This appeal failed the finality test on both levels and thus was dismissed for lack of jurisdiction.  As an initial matter, the bankruptcy court addressed only one of two interrelated causes of action and did not finally resolve the rights of the parties in regard to all remedies sought.  Nor could the claim that the bankruptcy court actually resolve be considered "discrete" considering the significant overlap in legal arguments between the two claims.  Recognizing the incomplete nature of the bankruptcy court's decision, the BAP treated the appeal as interlocutory, affirming on the one claim but remanding to the bankruptcy court for further factfinding on the second claim.  Under the Circuit's pragmatic balancing approach to jurisdiction over partial remands, it could not be said that allowing appeal on only one of two interrelated claims would avoid piecemeal litigation by terminating the case or obviating the need for factfinding with regard to the second cause of action.  This was particularly true in light of ongoing material factual disputes regarding the second cause of action. Id.  The USCA said it's analysis was reinforced by the appellee's admission that he has a legal obligation as trustee of the debtor's estate to pursue the second cause of action on remand, regardless of how the USCA ruled on the current appeal.  The USCA's mandate is to "avoid having a cause make two complete trips through the appellate process and endeavor not to interfere with the bankruptcy court's factfinding role."  In re Vylene Enterprises, Inc., 968 F.2d 887, 895 (9th Cir.).  The USCA thus dismissed the appeal for lack of jurisdiction and remanded to the BAP with instructions to remand further to the bankruptcy court for proceedings consistent with this disposition.

8)  BANKRUPTCY:  In re Upland Partners, 03-15166 (9th Cir. Mar. 24, 2004) (unpublished).  B. Fletcher, Wardlaw, and Clifton, Circuit Judges.

 Ellis, the sole equity security holder of Chapter 11 debtor Upland Partners, appealed pro se the district court's judgment affirming the bankruptcy court's civil contempt order against Ellis for violating the automatic stay, and imposing a sanction in the amount of $4,119.76.  Contrary to Ellis' contention, the bankruptcy court retained jurisdiction over the property that Ellis attempted to convey on March 6, 2002.  The bankruptcy court's termination of the automatic stay on March 5, 2002, for a limited purpose did not constitute an "abandonment" of the property.  Catalano v. Comm'r, 279 F.3d 682, 686 (9th Cir. 2002).  Ellis' reliance on Wilson v. Bill Barry Enters., Inc., 822 F.2d 859 (9th Cir. 1987), was unavailing as Wilson applied to facts and a statutory scheme markedly different from those found here.  Wilson held that "because of this statutory structure, the bankruptcy court's lifting of the automatic stay to allow the [creditor-lessor] to seek termination of the lease included [the debtor-lessee]'s right to petition for relief from termination, if declared." Id. at 861.  Also contrary to Ellis' contention, the bankruptcy court did not abuse its discretion when it ruled that Ellis violated the automatic stay because the records show that Ellis knew of the stay, his actions were intentional, and he failed to cure.  But even if—as Ellis contends—the land sale contracts were in escrow prior to the bankruptcy court's November 28, 2000 order, which decreed that the sale of certain lots then in escrow could be consummated, Ellis lacked authority to convey the lots because the order gave only the Trustee authority to consummate the pending sales.  Again, contrary to his contention, the bankruptcy court could sanction Ellis under 11 USCA Sec. 105(a).  In re Dyer, 322 F.3d, 1178, 1189-90 (9th Cir. 2003) ("the Trustee may be entitled to recover for violation of the automatic stay under section 105(a) as a sanction for ordinary civil contempt").  The amount of the sanction, $4,119.76, was not clearly erroneous because the records support the Trustee's claim that Ellis' violation of the automatic stay burdened the Trustee and the estate;  the bankruptcy court limited the amount to the time and costs for the reconveyance;  it gave Ellis the opportunity to submit objections;  the sanction was for the benefit of the estate, and was not punitive.

9)  BANKRUPTCY:  Educational Credit Management Corp. v. Moore, 02-17519 (9th Cir. Mar. 23, 2004) (unpublished).  B. Fletcher, Tashima, and Wardlaw, Circuit Judges.

 Educational Credit Management Corporation (ECMC) appealed from the district court's judgment affirming the final judgment of the bankruptcy court, which partially discharged the student loan debt owed by Peggy J. Moore to ECMC.  The USCA affirmed in part and reversed in part.  ECMC maintained that the bankruptcy court erred in partially discharging Moore's student loan pursuant to its equitable powers under 11 USC Sec. 105(a), despite the fact that Moore did not satisfy the three-part "undue hardship" test articulated in In re Rifino, 245 F.3d 1083, 1087 (9th Cir. 2001). A student loan may be discharged only on a finding that repayment of the debt would cause an "undue hardship" upon the debtor.  11 USC Sec. 523(a)(8);  see Rifino at 1087 (determining that a student debt imposes an undue hardship if: 1) the debtor cannot maintain, based on current income and expenses, a "minimal" standard of living for him and his dependents if forced to pay back the loans; 2) these financial difficulties are likely to persist for a significant portion of the repayment period of the student loans; and 3) the debtor has made good faith efforts to repay the loans).  Relying on In re Myrvang, 232 F.3d 1116, 1124 (9th Cir. 2000), the district court held that the bankruptcy court properly partially discharged Moore's student debt without a finding of undue hardship under its Sec. 105(a) powers.  The district court erred, however, by overlooking In re Saxman, 325 F.3d 1168 (9th Cir. 2003), in which the USCA stated that "partial discharge is sometimes warranted even if the substantive requirements for an undue hardship discharge have not been demonstrated."  Saxman at 1174.  Both the district court and the bankruptcy court conceded that Moore had not satisfied the three-part undue hardship test to discharge her student loan pursuant to 11 USC Sec. 523(a)(8).  The USCA thus held that she is not entitled to a partial discharge of her debt.  Contrary to ECMC's contentions, the bankruptcy court did not abuse its discretion by ordering that each side bear its own fees and costs.  Renfrow v. Draper, 232 F.3d 688, 693 (9th Cir. 2000). 

10)  BANKRUPTCY:  In re Shiflett-Kann, 02-56850 (9th Cir. Mar. 19, 2004) (unpublished).  Kozinski, O'Scannlain, and Silverman, Circuit Judges.

 The bankruptcy court did not err in refusing to permit Shiflett-Kann to attack collaterally the November 1998 state court order dismissing her action as barred under the five year rule of Cal. Code of Civil Proc. Secs. 583.310 and 583.360 (Deering 1999).  The state court decision was neither a modification nor a violation of the automatic stay, see In re Gruntz, 202 F.3d 1074, 1084 (9th Cir. 2000), and the state court decision in no way implicated the core administrative functions or integrity of the uniform federal bankruptcy system.  Id. at 1083-84.  Rather, the bankruptcy court affirmatively authorized the state court action by lifting the automatic stay.  See In re McGhan, 288 F.3d 1172, 1179 n.8 (9th Cir. 2002);  Gruntz, 202 F.3d at 1084.  In such circumstances, "a valid state court judgment cannot be enjoined or otherwise upset by a federal court on grounds that would not be available in the state court." In re Highway Truck Drivers & Helpers Local Union #107, 888 F.2d 293, 299 (9th Cir. 1989);  see also 28 USC Sec. 1738, and Shiflett-Kann neglected to pursue timely relief in the state appellate courts, which stood ready to correct any error.

11)  IMMIGRATION:  Mousavi v. Ashcroft, 02-73921 (9th Cir. Jan. 8, 2004) (unpublished).  Silverman, Gould, and Bea, Circuit Judges.

 Mousavi petitioned for review of a BIA's summary decision upholding an Immigration Judge's decision which denied Mousavi's application for asylum and withholding of removal and granted his request for voluntary departure.  Mousavi contested only the denial of asylum.  The IJ found Mousavi not credible based on many inconsistencies in his testimony and inconsistencies between his written application for asylum and his testimony.  After reviewing his written application and all the testimony presented, the USCA held that substantial evidence supported the IJ's negative credibility finding.  Mousavi's story was full of inconsistencies.  For instance, he stated in his August 27, 1998 application that he was persecuted in Iran because he was a moderate Muslim, but at the hearing he admitted he practiced the same form of Islam practiced by the governing officials in Iran, and that it was not a moderate form at all.  Also at the hearing, he dropped his claim that he would be persecuted for being a moderate Muslim and said he would be persecuted because the Iranian officials thought he was a Christian convert.  In addition, he testified that in October 1997, he was stopped in Iran by armed guards who searched his car and found various Christian materials.  He said the guards beat him, causing a severe injury to his back and spinal cord and that they shot their rifles in his direction, but then he testified that he was able to jump up and run away when the guards were laughing and that they did not stop him.  He also left out the fact that they shot their rifles in his direction from his written application, which was otherwise very detailed.  Mousavi also testified that his back injury continued to plague him even until the hearing, but he said he could not provide a note from his U.S. doctor because the doctor had been "out of town" for several months.  He also testified that he was afraid he would be killed if he returned to Iran because of the October 1997 incident, but he admitted he did voluntarily return to Iran from Turkey after this incident.  When questioned about why he would return if he were really afraid of being killed, he said that the guards did not begin searching him until after he returned from Turkey and so he did not take the threat seriously.  This directly contradicted his earlier testimony that the guards were looking for him immediately after the October 1997 incident, and his written application in which he says he immediately went into hiding.  Finally, Mousavi said he intended to convert to Christianity and that his would place his life in danger, but the pastor he brought to support this claim said that Mousavi still had not converted to Christianity even after several months of study, and that he had not started attending his church until 18 months after he was placed in removal proceedings.  In fact, the pastor would not characterize Mousavi as a Christian. Further, Mousavi's written application, prepared several months after he says he started attending church, said nothing about him attending church. These examples of the many inconsistencies in Mousavi's testimony go to the heart of his application for asylum.  He was given a full and fair opportunity to present his written application, his own testimony and that of a witness, and he was provided with a Farsi interpreter.  Substantial evidence supported the IJ's ruling.

12)  IMMIGRATION:  Kadric v. Ashcroft, 02-71998 (9th Cir. Jan. 8, 2004) (unpublished).  Hall and Graber, Circuit Judges, and Weiner, District Judge.

 Kadric, a native of the former Yugoslavia, petitioned for review of a BIA order affirming an Immigration Judge's opinion and order denying Kadric's applications for asylum and withholding of deportation.  The USCA denied the petition.  Substantial evidence supported the IJ's claim that Kadric was not credible.  Although he claimed to be a practicing Muslim, and his asylum application claimed persecution on account of his Muslim religion, he was unable to name the Muslim sect to which he belonged or the mosque he said he attended.  When an applicant claims asylum on the basis of religious persecution, inconsistencies that go to the sincerity of the applicant's religious beliefs may support an adverse credibility finding.  Substantial evidence also supported the IJ's finding that Kadric did not suffer past persecution even if he were credible.  The receipt of failing grades from Serbian professors, while discriminatory, does not necessarily rise to the level of persecution.