1)  SECURITIES:  SEC v. Gemstar-TV Guide Intl., 03-56129 (9th Cir. May 12, 2004).  At issue here was a question of first impression:  whether under the Sarbanes-Oxley Act of 2002, 15 USC Sec. 78u-3 ("Sec. 1103"), certain termination payments to high-level corporate officials are "extraordinary" payments, subject to involuntary retention in an escrow account compelled by court order.  Because there was no evidence as to what would be "ordinary" payments under comparable circumstances, the USCA held that the district court erroneously determined that the payments proposed by Gemstar-TV were "extraordinary" under Sec. 1103;  the USCA thus vacated the escrow order and remanded for further proceedings.  Dissenting, Judge Trott thought the majority had unintentionally overlooked the distinctive statutory context in which this case arose.  Trott (dissenting), Rawlinson, and Bea (author), Circuit Judges.  M. Rice of New York, NY, for the intervenors;  R. Humes of Washington, DC, for the applicant;  S. Prosser of San Diego, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  BANKING:  Community Bank of Arizona v. G.V.M. Trust, 03-15305 (9th Cir. May 7, 2004).  On a question of first impression, the USCA held that if a state has not enacted a statute providing for the appraisal of dissenting shareholders' shares when a state bank merges into a national banking association, the default appraisal procedures of the National Bank Consolidation and Merger Act, 12 USC Sec. 215a, govern the appraisal.  Hall, T.G. Nelson, and Graber (author),  Circuit Judges.  R. Segal of Phoenix, AZ, for the defendant;  P. Carter of Minneapolis, MN, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  LICENSING AGREEMENTS / USURY:  D-Beam Ltd. v. Roller Derby Skates, 01-56007 (9th Cir. May 6, 2004).  Evans invented a "Solid State Skate Truck" designed to be incorporated into roller skates and skateboards;  patents were secured by D-Beam, a California limited partnership of which Evans was general partner and majority owner;  D-Beam licensed the patents to Roller Derby, an Illinois corporation;  Roller Derby loaned Evans money pursuant to promissory notes repayable out of his share of D-Beam's royalty payments;  representing himself and D-Beam pro se, Evans sued Roller Derby in California state court on breach of contract, fraud, breach of fiduciary duty, embezzlement, usury, and civil conspiracy allegations;  all of the claims, except that for usury, arose out of the licensing contact between D-Beam and Roller Derby;  the usury claim arose out of the promissory notes;  Roller Derby removed the case to federal district court on the basis of diversity jurisdiction;  the district court demanded that Evans retain counsel to represent D-Beam, pursuant to a local rule requiring corporations and other entities to be represented by counsel;  while D-Beam was represented by counsel, all the claims relating to Roller Derby's conduct under the licensing agreement were disposed of on summary judgment;  Evans' usury claim proceeded through discovery and a bench trial, Evans again representing himself pro se, after which the court entered judgment for Roller Derby on that claim.  On appeal to the Ninth Circuit, the court dismissed all claims on behalf of D-Beam for lack of jurisdiction; it had jurisdiction over the usury claim and affirmed, holding that the district court properly found that the notes were not absolutely repayable.  Hall, Trott (author), and Callahan, Circuit Judges.  M. Sacksteder of Mountain View, CA, for the plaintiffs;  K. Vogel of San Diego, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  BANKRUPTCY / PETITION PREPARERS:  Taub v. Weber, 02-36018 (9th Cir. May 5, 2004).  This case arose out of an adversary proceeding by the U.S. Trustee against Taub, a bankruptcy petition preparer.  Applying Oregon law, the USCA concluded that Taub, was properly found to have engaged in the unauthorized practice of law by interpreting the terms "market value" and "secured claim or exemption" in connection with his completion of bankruptcy forms.  McKeown (author) and Fisher, Circuit Judges, and Gonzales, District Judge.  B. Taub pro per;  W. Courshon of Seattle, WA, for the U.S. Trustee for Region 18.  (Download the full text of this decision at www.cc9.uscourts.gov/)

5) BANKRUPTCY / DAMAGES:  In re Dawson, 02-16903 (9th Cir. May 18, 2004).  "Actual damages" under 11 USC Sec. 362(h) do not include damages for emotional distress suffered by a debtor when a creditor violates the automatic stay that follows from the filing of a bankruptcy petition.  Hall and Graber (author), Circuit Judges, and Weiner, District Judge.  A. Dell'Ario, of Oakland, CA, for the plaintiffs;  W. Malcolm of Irvine, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

 6)  BANKRUPTCY:  In re Enewally, 02-57119 (9th Cir. May 27, 2004).  A Chapter 13 bankruptcy plan may not provide for dividing a loan into secured and unsecured claims, commonly referred to as "lien stripping," with the debtor satisfying the secured claim beyond the life of the Chapter 13 plan.  Canby, Rymer, and Thomas (author), Circuit Judges.  T. Kemerer of Long Beach, CA, for the appellants-cross-appellees;  A. Wolf of Newport Beach, CA, for the appellee-cross-appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  ANTITRUST LAW:  Action Embroidery Corp. v. Atlantic Embroidery, Inc., 02-56770 (9th Cir. May 27, 2004).  On questions of first impression, the USCA held that venue and personal jurisdiction are independent requirements under Sec. 12 of the Clayton Act;  joining sister Circuits, the USCA adopted the doctrine of "pendent personal jurisdiction."  It thus held that in the instant case the federal district court has personal jurisdiction over the federal anti-trust claims and may, in its discretion, exercise pendent personal jurisdiction over the state-law claims contained in the same complaint.  Pregerson, Cowen, and W. Fletcher (author), Circuit Judges.  J. Petersen of Beverly Hills, CA, for the appellants;  J. Murphy of San Francisco, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

8)  ENVIRONMENTAL LAW:  Vigil v. Leavitt, 02-72424 (9th Cir. May 10, 2004).  On July 25, 2002, the EPA approved Arizona's "serious area state implementation plan" for airborne particulate matter in the metropolitan Phoenix, Maricopa County, area and granted Arizona's request for an extension of the statutory attainment deadline from December 31, 2001 to December 31, 2006.  The petitioners, who are interested Phoenix residents, maintained that the EPA's actions were arbitrary and capricious or otherwise not in accordance with the Clean Air Act because the EPA approved Arizona's general permit rule for controlling agricultural emissions without requiring all feasible measures and, specifically, controls currently implemented in the South Coast region of California;  they also maintained that the EPA approved the plan without requiring Arizona to mandate the use of CARB diesel, a fuel standard adopted by the California Air Resources Board;  finally, the petitioners maintained that it was arbitrary and capricious for the EPA to grant an extension of the statutory deadline to December 31, 2006.  The USCA granted the petition in part, vacated portions of the EPA's final approval of Arizona's state implementation plan for Maricopa County, and remanded to the EPA for further consideration of whether Arizona's decision to reject CARB diesel as an emissions control measure satisfied the "best available control measures" and the "most stringent measures" (MSM).  The USCA also remanded the question of Arizona's eligibility for the extension, insofar as that question depended on the EPA's determination regarding MSM.  Finally, the USCA awarded the petitioners the costs of litigation, including reasonable attorney and expert witness fees, related to the appeal.  Graber, Wardlaw, and Bybee (author), Circuit Judges.  J. Herr-Cardillo of Tucson, AZ, for the petitioners;  A. Purdy of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  CONSUMER LAW:  Kelly v. Fleetwood Enterprises, Inc., 03-35050 (9th Cir. May 27, 2004).  This consumer dispute arose from the plaintiffs' purchase of a leaky motor home manufactured by Fleetwood Motor Homes of California;  they sued the defendant's parent company for damages;  because their loss of enjoyment and punitive damages claims are not cognizable under the Magnuson-Moss Warranty Act, their federal claims failed to meet the Act's $50,000 threshold amount in controversy;  nor did their claims fall within the Oregon Lemon Law;  the USCA thus upheld the district court's dismissal of the action.  Goodwin, McKeown (author), and Fisher, Circuit Judges.  D. Gerlt of Portland, OR, for the plaintiffs-appellants;  T. Sondag of Portland, OR, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  DISABILITY DISCRIMINATON:  Farrell v. Principi, 02-35929 (9th Cir. May 11, 2004).  The case arose out of a disability discrimination claim which Farrell filed with the EEOC against his employer, the Veterans Administration Medical Center in Roseburg, Oregon;  Farrell received a favorable decision from the EEOC Administrative law Judge;  the Department of Veterans Affairs then issued a final order granting Farrell partial relief;  Farrell then filed a civil action in district court, seeking further relief.  His case turned on whether he sought to enforce the final order or sought de novo review of his discrimination claim.  The government argued that the action merely sought to enforce the final order.  The district court agreed and dismissed the complaint for failure to exhaust administrative remedies.  The USCA reversed and remanded, finding that the district court erred in dismissing the disability discrimination claim for failure to exhaust administrative remedies;  Farrell had sought a de novo review of the disposition of his administrative complaint, not enforcement of the final order of the Department of Veterans Affairs granting him partial relief.  McKeown and Fisher, Circuit Judges, and Gonzalez (author), District Judge.  D. Force, Eugene, OR, for the appellant;  J. Sutherland of Eugene, OR, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  WORKERS' COMPENSATION:  Stevedoring Services of America v. Price, 02-71207 (9th Cir. May 11, 2004).  At issue here was the proper method of calculating an injured employee's average annual earnings under the Longshore and Harbor Workers Compensation Act ("LHWCA"), 33 USC Sec. 901 et seq. (2001), and to what extent the LHWCA limits an employee's total disability compensation from multiple awards when the employee has received a permanent partial disability award and a subsequent permanent total disability award.  The USCA adhered to the holding of Matulic v. Director, OWCP, 154 F.3d 1052, 1058 (9th Cir. 1998), that calculating an employee's average annual earnings under Sec. 910(a), does not excessively overcompensate him when he has worked more than 75% of the workdays in the year preceding his injury.  The USCA also held that when an increase in an employee's average weekly wage between the time of a prior permanent partial disability and subsequent permanent total disability is not caused by a change in his wage-earning capacity, permitting him to retain the full amount of both awards does not result in "double dipping."  Finally, the USCA held that Sec. 906(b)(1) delineates the maximum compensation that an employee may receive from each disability award, not from all awards combined.  Trott, Fisher (author), and Gould, Circuit Judges.  J. Dudrey of Portland, OR, for the petitioners;  C. Robinowitz of Portland, OR, and R. Metz of Seattle, WA, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ATTORNEY DISCIPLINE / EMPLOYMENT LAW:  In re Complaint of Judicial Misconduct, 03-89057 (9th Cir. May 5, 2004).  This case concerns a petition for the review of the dismissal of a judicial misconduct compliant;  the complainant is a former provisional employee of the U.S. Probation Office of a district court in the Ninth Circuit;  when she was terminated from employment by the Probation Department, she appealed her termination to the chief district judge, who upheld the termination;  she then appealed the chief judge's determination, and the matter was assigned to a court committee for review;  that committee also upheld the termination.  The complainant then filed a judicial misconduct complaint against the chief district judge and the district judge who chaired the review committee, alleging that they abused their authority, denied her due process, and had a conflict of interest;  the complaint was referred to the Chief Judge of the Circuit for review, pursuant to 28 USC Sec. 352(a);  upon review, the Chief Judge dismissed the complaint for failing to allege conduct that would constitute judicial misconduct and for a lack of evidence that would support a finding of misconduct.  The Judicial Council of the Ninth Circuit then denied the current petition for review, albeit on a different ground that that relied upon by the Chief Judge:  the complainant, the Council concluded, could not pursue her personnel matter through the judicial misconduct procedure because routine personnel decisions involving court employees are the kind of administrative function that does not directly implicate the "effective and expeditious administration of the business of the courts; the Council and the Chief Judge thus lacked jurisdiction over this judicial misconduct complaint.  Concurring in the result, Judge Kleinfeld said he would affirm the Chief Judge's decision for the reasons she gave.  Alarcon, Kozinski, Kleinfeld (concurring), Tashima (author), and W. Fletcher, Circuit Judges, and Patel, Coughenour, Ezra, Shanstrom, and Levi, District Judges.  Judges Alarcon and Levi did not participate in the disposition;  Judge Patel was recused and did not participate in the disposition.  (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  LABOR LAW:  Mortensen v. County of Sacramento, 03-15185 (9th Cir. May 24, 2004).  Sacramento County Sheriff Deputy Mortensen appealed the district court's summary judgment for his employer;  at issue was whether the Fair Labor Standards Act ("FLSA"), 29 USC Sec. 207(o), requires the County to allow its deputies to use accrued compensatory time off ("CTO") on days they specifically request unless that would "unduly disrupt" the law enforcement agency's functions within the meaning of Sec. 207(o)(5);  Mortensen argued that the USCA must defer to the Department of Labor regulations and opinion letter construing Sec. 207(o)(5) and rule that deputies are entitled to use CTO on a specifically requested date;  the County maintained that its leave policy and the parties' collective bargaining agreement comply with the FLSA because the County grants CTO use within a reasonable time—up to one year—after a deputy makes a request;  the County insisted that under both the statute and its long-established leave practice, it may deny a CTO request for a specific date if all leave openings are full.  The USCA affirmed the judgment for the County;  it did not defer to the Department of Labor regulations because the statutory language is clear;  joining the Fifth Circuit, the USCA held that the text of Sec. 207(o)(5) unambiguously states that once an employee requests the use of CTO, the employer has a reasonable period of time to grant the request;  the statutory language precludes an employee from forcing an employer to grant CTO in accordance with the employees' wishes;  the USCA further held that the County's implementation of its leave policy, which may result in denying a specific request when there are no available leave openings, and the parties' collective bargaining agreement regarding CTO use are consistent with Sec. 207(0)(5).  Schroeder, Tallman (author), and Callahan, Circuit Judges.  D. Mastagni of Sacramento, CA, for the plaintiff-appellant;  T. Cassidy of Sacramento, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  TRUTH-IN-LEASING REGS:  Owner-Operator Independent Drivers Association v. Swift Transportation Co., 03-15735 (9th Cir. May 12, 2004).  The plaintiffs in this class action are independent truck drivers, known in the industry as "owner-operators," and an association of owner-operators;  the defendants are federally regulated motor carriers that contract with owner-operators to transport cargo;  federal Truth-in-Leasing regulations require that motor carriers and owner-operators enter into written leases that explicitly address certain contractual issues, such as compensation and duration;  the plaintiffs maintained that the defendants' standard form lease agreements failed to comply with these regulations;  they moved for a preliminary injunction.  The district court applied the "traditional" balancing test and denied the motion.  The plaintiffs appealed, asserting that the district court committed an error of law by applying the traditional equity balancing test to their motion;  they argued that it should have granted the motion for injunctive relief upon a showing of "reasonable cause" to believe that the defendants' leases violated the Truth-in-Leasing regulations.  The USCA disagreed, finding that the "reasonable cause" test applies only when Congress makes clear its intent to depart from the traditional equity balancing test used to grant or deny preliminary injunctions;  because Congress has not made such an intent clear, the USCA applied the traditional test and affirmed the district court.  Canby, W. Fletcher (author), and Tallman, Circuit Judges.  J. Moody of Washington, DC, for the appellants;  B. Michael of Phoenix, AZ, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

15)  MANDAMUS REMEDIES / SANCTIONS:  Cole v. U.S. District Court for the District of Idaho, 03-73027 (9th Cir. May 4, 2004).  The USCA here considered a petition for a writ of mandamus arising from a magistrate's sanction of disqualification imposed on the petitioners' counsel by revocation of counsel's pro hac vice status;  the petitioners established that the magistrate clearly erred in imposing this sanction without giving the petitioners' counsel notice and an opportunity to be heard on the specific grounds for disqualification and revocation of status;  but because mandamus is an extraordinary remedy and the petitioners did not take advantage of an available remedy by seeking review of the magistrate's decision before the district court, the USCA denied the petition;  when review of a magistrate's decision is available as a matter of right by motion for reconsideration before a district court, the opportunity should be taken before extraordinary review by mandamus is sought.  D.W. Nelson, Fisher, and Gould (author), Circuit Judges.  M. Winters of San Jose, CA, for the petitioners;  G. Tollefson of Boise, ID, for the real-parties-in-interest.(Download the full text of this decision at www.cc9.uscourts.gov/)

16)  CIVIL PROCEDURE:  Haeuser v. Department of Law, Government of Guam, 02-72249 (9th Cir. May 24, 2004).  This case required the USCA to consider the timing and nature of its review of a decision of the Supreme Court of Guam.  Specifically: whether a petitioner must at that time seek USCA review of a decision by the Supreme Court of Guam when that decision remands the case to the trial court for further substantive determinations, and whether review of a decision of the Supreme Court of Guam under 48 USC Sec. 1424-2 requires the USCA to give a degree of deference to a conclusion by the Supreme Court that the trial court erred in its factual findings.  Although it noted that it must give deference to Guam Supreme Court conclusions regarding matters of local law, the USCA found it could not uphold its decision to reverse a lower court's factual findings, where it acknowledges that it did not review the evidence presented and where the evidence in the record supporting the lower court's finding is significant;  under these circumstances, the USCA held that the Guam Supreme Court's reversal of the Superior Court's findings constituted manifest error.  Reinhardt, Thomas, and Clifton (author), Circuit Judges.  M. Thompson of Hagatna, GU, for the petitioner;  AAG E. Heisel of Hagatna, GU, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

17) INTERLOCUTORY REVIEW:  USA v. Lewis, 03-10181 (9th Cir. May 25, 2004).  This case arose from an incident on June 20, 1994, when Lewis, then California correctional officer, shot an inmate during a prison-yard disturbance.  A federal grand jury charged Lewis with violating 18 USC Sec. 242, Deprivation of Rights Under Color of Law, and 18 USC Sec. 924(c), Use of a Firearm in relation to a Crime of Violence.  Lewis subsequently appealed the district court's denial of his motion to dismiss the indictment;  he raised two issues:  First, can he seek interlocutory review of the district court's denial of his "fair warning" defense?  And, second, did the prosecution's alleged Brady violations raise double jeopardy concerns?  The USCA answered both questions in the negative.  It dismissed Lewis's fair warning claim for lack of jurisdiction; and, although it had jurisdiction over his double jeopardy claim because it raised a colorable claim, it concluded that the substance of that double jeopardy claim lacked merit.  Wallace, McKeown, and Callahan (author), Circuit Judges.  D. Riordan of San Francisco, CA, for the appellant;  AUSA E. Frick of San Francisco, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

18) PHYSICIAN ASSISTED SUICIDE: Oregon v. Ashcroft, 02-35587 (9th Cir. May 26, 2004).  A doctor, a pharmacist, several terminally ill patients, and the State of Oregon challenged an interpretive rule issued by Attorney General John Ashcroft which declared that physician assisted suicide violates the Controlled Substance Act of 1970 ("CSA");  this, the "Ashcroft Directive," criminalizes conduct specifically authorized by Oregon's Death With Dignity Act, which was enacted by ballot measure and authorizes physicians to prescribe lethal doses of controlled substances to terminally ill Oregon residents.  The USCA held that, although the district court lacked jurisdiction over this matter, the USCA had original jurisdiction pursuant to 21 USC Sec. 877 over "final determinations, findings, and conclusions of the Attorney General" made under the CSA.  The USCA then found the Ashcroft Directive unlawful and unenforceable because it violated the plain language of the CSA, lacked clear congressional authority, and overstepped the bounds of the AG's statutory authority.  Dissenting, Judge Wallace found nothing in the CSA's text or legislative history that authorized the majority to deny deference to the Ashcroft Directive;  as an interpretive rule, Judge Wallace thought the Ashcroft Directive was not subject to the APA's notice-and comment rulemaking procedures, did not violate the CSA's non-preemption provision, and neither exceeded the AG's statutory authority under the CSA nor pushed the limit of congressional authority under the Commerce Clause;  finally, he thought the petitioner failed to demonstrate that the Ashcroft Directive's interpretation of Sec. 1306.04 was arbitrary and capricious.  Tallman (author), Lay, and Wallace (dissenting), Circuit Judges.  G. Katsas of Washington, DC, for the defendants-appellants;  R. Rocklin of Salem, OR, for the plaintiff-appellee;  N. van Aelstyn of San Francisco, CA, for the plaintiffs-intervenors-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  AMERICANS WITH DISABILITIES ACT:  Lentini v. California Center for the Arts, Escondido, 01-56612 (9th Cir. May 27, 2004).  The plaintiff is a quadriplegic and uses a wheelchair for mobility;  her action arose after she was barred from attending a performance at the defendant's Escondido, California facility;  at all relevant times, she was accompanied by her small, Shih Tzu / Poodle, which functions as her service dog by providing minimal protection and retrieving small dropped items.  The defendant barred the plaintiff because she refused to leave her dog outside the facility after it barked at prior performances.  The district court found in favor of the plaintiff on all of her claims brought under Title III of the Americans with Disability Act ("ADA"), California's Unruh and Disabled Persons Act, and California Civil Code Secs. 51, 52, and 54, but not also on her claims of retaliation and negligence; the district court further found that the noises the dog made at prior performances were intended to alert the plaintiff to a possibly dangerous situation.  It ordered the defendant to modify its policies to give persons with disabilities the "broadest feasible access" to its facility, and found the defendants jointly and severally liable to the plaintiff for $7,000, representing the statutory minimum of $1,000 each for the performances the plaintiff was deterred from attending as a result of the defendant's discrimination.  The USCA affirmed the district court's judgment in all respects.  The ordered modification of the defendant's facilities were both necessary and reasonable to accommodate individuals with disabilities;  insofar as the defendant had violated the ADA, a showing of intentional discrimination was not needed for an award of damages under the Unruh and Disabled Persons Act.  Goodwin, Pregerson (author), and Tallman, Circuit Judges.  M. Hogan of San Diego, CA, for the defendants-appellants;  A. Vandeveld of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  CIVIL RIGHTS / STANDING:  Thinket Ink Information Resources, Inc. v. Sun Microsystems, Inc., 02-16754 (9th Cir. May 17, 2004).  If a corporation either suffers discrimination harm cognizable under 42 USC Sec. 1981 or acquires an imputed racial identity, that corporation is sufficiently within the statutory zone of interest to have prudential standing to bring an action under Sec. 1981.  Tashima, Thomas (author), and Silverman, Circuit Judges.  R. Bolanos of Redwood City, CA, for the appellant;  D. Fallek of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  LAND USE / ADULT STORES:  World Wide Video of Washington v. City of Spokane, 02-35936 (9th Cir. May 27, 2004). This appeal raised two issues:  First, whether Spokane's ordinances regulating the location of adult-oriented retail businesses are constitutional;  and, second, whether an amortization period is required in this context and, if so, whether a reasonable amount of time was allotted for the plaintiff to either relocate its adult stores or change the nature of its retail operations.  Because the record revealed no genuine issue of material fact regarding either of these issues, the USCA affirmed the district court's summary judgment for Spokane.  Graber, Tallman (author), and Clifton, Circuit Judges.  G. Levy of Seattle, WA, on for the plaintiff-appellants;  S. Smith of Seattle, WA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  CIVIL RIGHTS / CONSTITUTIONAL LAW / TORTS:  Awabdy v. City of Adelanto, 02-57118 (9th Cir. May 20, 2004).  Two weeks before the 2000 election, Awabdy suffered a significant setback in his campaign for another term on the City Council of Adelanto when the San Bernardino County District Attorney charged him with embezzling public funds.  Awabdy pled not guilty prior to election day and, over one year later, the Superior Court granted a motion by a deputy District Attorney to dismiss the charge in the interest of justice; by then, however, Awabdy was no longer serving on the City Council, for he had been defeated at the polls.  After the charge was dismissed, Awabdy filed this action under 42 USC Sec. 1983, alleging that the criminal proceedings were initiated on the basis of false accusations and conspiratorial conduct by several Adelanto officials who sought to deprive him of his First, Thirteenth, and Four-teenth Amendment rights;  the district court granted the defendants' motion to dismiss under Fed. R. of Civil Proc. 12(b)(6).  The USCA reversed as to all claims with the exception of those relating to the Thirteenth Amendment, which it affirmed.  Awabdy had properly alleged malicious conduct with the purpose of depriving him of his rights to free speech and equal protection.  However, the Thirteenth Amendment prohibits "peonage—a condition in which the victim is coerced by threat of legal sanction to work off a debt to a master."  It is beyond doubt that Awabdy would not be able to prove that the defendants had him prosecuted in order to coerce him to remain in the employment of Adelanto until he worked off a debt. Reinhardt (author), Thompson, and Wardlaw, Circuit Judges.  S. Hodge of Victorville, CA, for the plaintiff;  M. Battersby of San Bernardino, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  IMMIGRATION:  Thai v. Ashcroft, 03-35626 (9th Cir. May 3, 2004).  8 USC Sec. 1231(a)(6), as construed by Zadvydas v. Davis, 533 US 678 (2001), does not authorize the continued and potentially indefinite detention of an alien based on a determination that the alien's mental illness makes him specially dangerous to the community;  because the petitioner's removal is not reasonably foreseeable, his continued post-removal-period federal detention is not authorized by Sec. 1231(a)(6);  the USCA noted that the government may still subject the petitioner to supervision with conditions after he is released from detention and incarcerate him for violations of those conditions.  Hug, Graber, and Clifton (author), Circuit Judges.  J. Dryden of Washington, DC, for the respondent;  AFPD J. Stansell of Seattle, WA, for the petitioner. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  IMMIGRATION:  Lopez v. Ashcroft, 02-73357 (9th Cir. May 3, 2004).  The petitioner, a Guatemalan who entered the U.S. in 1991 without inspection by immigration officers, subsequently established past political persecution and was thus presumed to have a well-founded fear of future prosecution.  The USCA concluded that it was appropriate to permit the BIA on remand to assess whether changed country conditions rebutted the presumption based on the proper legal standards including an individualized determination;  otherwise, the USCA noted, it would be improvidently bypassing the agency's expertise in immigration matters committed in the first instance to the agency;  accordingly, on the petition for review of the asylum claim, having held that the petitioner established past persecution on account of political opinion, and that the BIA's prior alternative assessment of changed country conditions was incomplete, the USCA remanded on the asylum claim to permit the BIA to conduct further proceedings relating to changed country conditions.  Silverman, Gould (author), and Bea, Circuit Judges.  E. Zneimer of Los Angeles, CA, for the petitioner;  J. Braunstein of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  IMMIGRATION:  Kebede v. Ashcroft, 02-73135 (9th Cir. May 3, 2004).  The petitioner's failure to report her rape during her asylum interview or on her application did not support the IJ's adverse credibility finding;  the petitioner, who was from a family that was powerful during the rule of Haile Selassie, maintained that the abuse she suffered at the hands of soldiers of the Dergue revolutionary government qualified her for discretionary relief on humanitarian grounds;  as it could not decide this matter in the first instance, the USCA remanded for a determination of whether the petitioner's past persecution was atrocious, such that it warranted asylum.  Goodwin (author), Pregerson, and Tallman, Circuit Judges.  S. Ronald of Calabasas, CA, for the petitioner;  V. Lum of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  IMMIGRATION:  Singh v. Ashcroft, 02-72759 (9th Cir. May 18, 2004).  The petitioner's ineffective assistance of counsel claim should have been characterized as a motion to reopen, rather than as a motion to reconsider;  moreover, it is entitled to equitable tolling due to the ineffective assistance;  in addition, the USCA held that in the BIA's denial of the motion to reopen, it improperly relied on its earlier statement purporting to affirm the dismissal of the petitioner's appeal on the merits, and because the correctness of its earlier decision on the merits was not before it, the BIA improperly required the petitioner to submit a brief on the merits as part of his motion to reopen;  finally, the USCA held that in his motion to reopen the petitioner established prejudice resulting from his former counsel's failure to file a brief.  The USCA thus concluded that the BIA abused its discretion in denying the motion.  Canby, W. Fletcher (author), and Tallman, Circuit Judges.  A. Bhakhri of Burlingame, CA, for the petitioner;  M. Candaux of Washington, DC, for the respondent.  ((Download the full text of this decision at www.cc9.uscourts.gov/)

27) IMMIGRATION:  Hoque v. Ashcroft, 02-72404 (9th Cir. May 19, 2004).  The USCA reversed the Immigration Judge's adverse credibility determination, finding that it was not supported by substantial evidence;  the petitioners, husband and wife, clearly suffered political persecution in Bangladesh by members of a political group the Bangladeshi government was unable to control because of the husband's political beliefs and activity in support of the Bangladesh Nationalist Party;  a presumption of eligibility for asylum was proper.  Beezer (author) and Kozinski, Circuit Judges, and Schwarzer, District Judge.  D. Nakatsuma of Los Angeles, CA, for the petitioners;  J. Dryden of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  IMMIGRATION:  Singh v. Ashcroft, 02-72145 (9th Cir. May 13, 2004).  The USCA found that the record supported the Immigration Judge's adverse credibility determination in this case;  the petitioner, a Sikh from the Punjab state in India and a native and citizen of India, thus failed to establish past persecution or a well-founded fear of future persecution.  Dissenting, Judge Hawkins thought that as the record could not be described as adequate, the proper course should be to grant the petition for review and remand the transcript for clarification;  although the petitioner did not specifically argue translation on appeal, Judge Hawkins thought the petitioner had presented the argument to the BIA and thus had preserved the issue for review.  Rymer (author), Hawkins (dissenting), and Bybee, Circuit Judges.  A. Kaufman of San Francisco, CA, for the petitioner;  R. Rocque of Washington, DC, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

29)  IMMIGRATION:  GE v. Ashcroft, 02-73700 (9th Cir. May 13, 2004).  The petitioner maintained that he is a victim of China's coercive population control program and thus a refugee eligible for asylum under Sec. 101(a)(42)(B) of the Immigration and Nationality Act;  he further argued that he is entitled to withholding of removal.  The USCA concluded that the Immigration Judge's adverse credibility determination was unsupported and that because the petitioner's wife was forced to undergo an abortion under China's one-child policy, the petitioner was statutorily eligible for asylum.  But, because the BIA had not considered whether the petitioner had met the more stringent requirements for withholding of removal, the USCA remanded for the BIA to determine, in the first instance, whether there is a clear probability that he would be persecuted if returned to China.  Pregerson, Beezer (author), and Tallman, Circuit Judges.  F. Nelson of San Gabriel, CA, for the petitioner;  J. Andre of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  IMMIGRATION / ILLEGAL REENTRY / SPEEDY TRIAL ACT: USA v. Solorzano-Rivera, 03-10284 (9th Cir. May 21, 2004).  The defendant appealed his conviction for illegal reentry into the U.S. under 8 USC 1326;  he maintained that the government violated his rights under the Speedy Trial Act of 1974, 18 USC Secs. 3161 and 3162, and that the district court erred in instructing the jury that the defendant had the burden of proving duress by a preponderance of the evidence.  The USCA held that the period between the entry of the defendant's plea and his subsequent plea withdrawal was properly excluded from the statutory period to indict under Sec. 3161(h)(1)(I);  as the defense of duress cannot negate voluntariness where the defendant jumped the border fence, the defendant was properly required to establish duress by a preponderance of the evidence.  Hall (author) and Graber, Circuit Judges, and Weiner, District Judge.  A. Baggot of Apache Junction, AZ, for the defendant; AUSA J. Lopez for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  RE-ENTRY AFTER DEPORTATION:  USA v. Martinez-Martinez, 03-50230 (9th Cir. May 13, 2004).  The USCA upheld the defendant's conviction and 51-month sentence for attempted re-entry after deportation in violation of 8 USC Sec. 1326;  the defendant failed to show juror bias and was not persuasive with respect to his contention that he did not possess the specific intent required to convict under Sec. 1326 for attempted re-entry because the combined effect of heroin, methamphetamine, and Rohypnol (the "date rap drug") rendered him "blacked out";  in addition, the USCA found that his hospitalization between the time of his arrest and his indictment had been properly excluded under the Speedy Trial Act.  Hall (author), Trott, and Callahan, Circuit Judges.  T. Burns of San Diego, CA, for the defendant-appellant;  AUSA R. Haines of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  IMMIGRATION:  Knezevic v. Ashcroft, 02-72384 (9th Cir. May 24, 2004).  The petitioners, ethnic Serbs and citizens of Bosnia-Herzegovina, sought review of the BIA's summary affirmance of an Immigration Judge's denial of their application for asylum and withholding of deportation.  The USCA concluded that the IJ's decision that the petitioners failed to establish past persecution or a well-founded fear of future persecution based on their Serbian ethnicity was not supported by substantial evidence;  the USCA thus granted the petition for review and remanded the case so that the BIA could determine the reasonableness of requiring the petitioners to relocate, and for it to reconsider the petitioners' application for asylum and withholding of deportation.  Silverman, Gould, and Bea (author), Circuit Judges.  D. Nelson of San Diego, CA, for the petitioners;  P. Keisler of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  IMMIGRATION:  Mariscal-Sandoval v. Ashcroft,  02-71925 (9th Cir. May 28, 2004).  The petitioner did not make an "entry" into the U.S. when the INS failed to properly issue him a parole extension;  he thus was not entitled to deportation proceedings.  Judge Beezer concurred in the judgment but wrote separately with respect to the dissolution of the stay orders entered during the course of this appeal;  the circumstances, if any, under which the Ninth Circuit should continue a stay in effect after decision are limited, he said;  when a petitioner has failed to prevail on his asylum or removal claims, the time to depart has arrived and the court should vacate the stay.  Pregerson, Beezer (concurring), and Tallman (author), Circuit Judges.  R. Montes of San Diego, CA, for the petitioner;  T. Healy of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION:  Sidhu v. Ashcroft, 02-73220 (9th Cir. May 27, 2004).  The petitioner did not make an "entry" into the U.S. within the meaning of 8 USC Sec. 1101(a)(13) when she was merely detained by authorities before exiting the secondary inspection area at an airport;  she thus was thus properly placed in exclusion proceedings and not entitled to deportation proceedings.  Pregerson, Beezer, and Tallman (author), Circuit Judges.  G. Sarin of Los Angeles, CA, for the petitioner;  L. Perez of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  IMMIGRATION:  Simeonov v. Ashcroft, 02-71545 (9th Cir. May 27, 2004).  The USCA denied the petitioner's petition for review of the Board of Immigration Appeals' final order dismissing his appeal from the Immigration Judge's decision denying his request for suspension of deportation;  the petitioner had sought a ruling that the Nicaraguan Adjustment and Central American Relief Act of 1997 ("NACARA") entitled him as a substantive matter to apply for suspension of deportation even though he had been placed in exclusion proceedings and had been under a final order of exclusion since 1992;  the purpose of the NACARA is not to create a remedy of suspension of deportation for persons paroled into the U.S. and subject to a final order of deportation;  rather, its purpose is to grant procedural relief to qualified aliens, allowing them to begin anew their ongoing proceedings without being subject to the stop-time rule of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA");  thus, even if the petitioner were to satisfy the requirements of NACARA Sec. 203, he nevertheless would be ineligible for suspension of deportation because he never legally entered the U.S. and is subject to a final order of deportation;  in light of the plain language of IIRIRA Sec. 309(c), as amended by NACARA, and legal precedent concluding that suspension of deportation is unavailable to aliens in exclusion proceedings, the USCA found that the BIA's determination that the petitioner was ineligible for suspension of deportation was supported by the plain and sensible meaning of IIRIRA Sec. 309(c) and the Immigration and Naturalization Act ("INA") Sec. 244(a);  finally, the BIA's sua sponte analysis of the petitioner's statutory eligibility for suspension of deportation and its failure to reach the merits of his claim did not violate his due process rights;  even if it were to find such a violation, the USCA said the petitioner's claim would fail because he suffered no prejudice:  assuming arguendo that the petitioner met all of the requirements under NACARA Sec. 203 and INA Sec. 244(a), he still would be ineligible for suspension of deportation as a matter of law.  Canby, Wardlaw (author), and Gould, Circuit Judges.  T. Simeonov in pro se;  M. Wright of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  CRIMINAL LAW:  Moore v. Rowland, 03-15587 (9th Cir. May 19, 2004).  The petitioner argued that, contrary to People v. Landry, 212 Cal. App. 3d 1428 (1989), California's second-degree felony murder rule is a judicially—rather than statutorily—created offense, and thus violates California's separation of powers;  because his conviction for second-degree murder may have been based on an unconstitutional felony-murder theory, he further argued that it violated his Fourteenth Amendment due process rights under Hicks v. Oklahoma, 447 US 343 (1980).  The USCA affirmed, finding that even if the petitioner were correct about Landry, a separation of powers violation does not fall within the ambit of Hicks, which concerns the erroneous deprivation of a jury's discretion to impose appropriate criminal punishment;  the petitioner's argument was also foreclosed by Murtishaw v. Woodford, 255 F.3d 926 (9th Cir. 2001), which held that a state's violation of its separation-of-powers law does not give rise to a federal due process violation.  Wallace, Kozinski, and Thomas, Circuit Judges.  Per Curiam.  M. Greenberg of Oakland, CA, for the petitioner.  AAG G. Engler of Oakland, CA, for the respon-dent. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  SEARCH & SEIZURE:  USA v. Brooks, 02-50539 (9th Cir. May 13, 2004).  The defendant, convicted in federal district court on three counts of bank robbery, challenged the admission of incriminating evidence police seized in a search of his hotel room without a warrant.  At issues was whether the district court committed reversible error by denying the defendant's pretrial motion to suppress the evidence where the search was prompted by a "911" emergency call to the police from a hotel guest, staying in an adjacent room, who thought she heard the sounds of a woman being beaten.  The USCA affirmed, finding that the pretrial motion to suppress evidence seized during the warrantless search was properly denied;  given the tendency of victims of domestic abuse to be less than forthcoming when the aggressor remains on the scene, the search was an objectively reasonable way to address the exigency.  Silverman, Gould (author), and Bea, Circuit Judges.  DFPD M. Knox of Los Angeles, CA, for the defendant;  AUSA D. McCormick of Santa Ana, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  SEARCH & SEIZURE:  USA v. Camacho, 02-50629 (9th Cir. May 27, 2004).  The defendant, a U.S. citizen, appealed his conviction for importation of marijuana in violation of 21 USC Secs. 952 and 960;  he maintained that the district court should have suppressed the marijuana Customs inspectors found during a border search of the vehicle he drove to the San Ysidro, California, point of entry.  At issue is the use of a radioactive density measure device called a "Buster."  Because use of the Buster, involves no greater intrusion on the defendant than caused by other more typical vehicle searches, the Buster density search was a valid border search that did not require reasonable suspicion.  Noting that the Supreme Court recently made clear that reasonable suspicion is usually not required for officers to conduct non-destructive boarder searches of property, USA v. Flores-Montano, 124 S.Ct. 1582, 1585-87 (2004), the USCA concluded that there was no record evidence that the Buster search posed any danger to the defendant or his vehicle.  Fisher (author) and Bybee, Circuit Judges, and Mahan, District Judge.  E. Johnson of San Diego, CA, for the defendant-appellant;  AUSA J. Smith of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  JUVENILES / SPEEDY TRIALS:  USA v. Doe, 02-10170 (9th Cir. May 11, 2004).  The speedy-trial provisions of the Delinquency Act, 18 USC Sec. 5036 starts the 30-day clock running with the commencement of the federal detention of the juvenile on federal delinquency charge for which the delinquent is in custody pending trial;  the record certification requirements of Sec. 5032 are not jurisdictional.  Schroeder, Canby (author), Reinhardt, Trott, T.G. Nelson, Hawkins, Thomas, W. Fletcher, Berzon, Tallman, and Rawlinson, Circuit Judges.  R. Salter of Tucson, AZ, for the defendant-appellant;  AUSA R. Gordon of Tucson, AZ, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

40)  COMMITMENT ORDERS:  USA v. Friedman, 03-10422 (9th Cir. May 6, 2004).  A commitment order issued pursuant to 18 USC Sec. 4241(d) and based on a finding that the defendant is incompetent to stand trial on federal criminal charges, is an immediately appealable collateral order;  the defendant's paranoid schizophrenia prevented him from working with his attorney, rendering him "unable" to "assist properly in his defense" within the meaning of Sec. 4241(d).  T.G. Nelson, W. Fletcher (author), and Berzon, Circuit Judges.  J. Frick of Sacramento, CA, for the defendant-appellant;  P. Ferrari of Sacramento, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  MODEL GRAND JURY CHARGE:  USA v. Navarro-Vargas, 02-50663 (9th Cir. May 4, 2004).  The defendant appealed his conviction, contending that the district court should have dismissed his indictment because:  First, the charge given by the district court to the grand jury denied his Fifth Amendment right to the unfettered judgment of the grand jurors by instructing them not to consider the wisdom of criminal laws and that they should not be concerned about the possible punishment in the event of conviction;  second, the charge violated his Fifth Amendment right to the grand jury's independent exercise of its discretion by instructing the grand jury that it should indict if it found probable cause;  and, third, 21 USC Secs. 841 and 960 are unconstitutional.  The USCA affirmed, concluding that the court's use of the model charge's instruction not to consider the wisdom of criminal laws did not impermissibly infringe on the grand jury's independent exercise of its discretion.  Dissenting, Judge Kozinski would vacate the defendant's conviction and remand with instructions that the district court dismiss the indictment, with leave for the government to seek a new indictment from a grand jury not infected by the erroneous instruction.  Beezer (author) and Kozinski (dissenting), Circuit Judges; and Schwarzer, District Judge.  M. Winder of San Diego, CA, for the defendant-appellant;  AUSA D. Mitchell of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  EVIDENCE / SENTENCING:  USA v. Plancarte-Alvarez, 03-50062 (9th Cir. May 11, 2004).  The USCA upheld the defendant's convictions for importing and possessing marijuana with the intent to distribute;  evidence of a prior marijuana smuggling incident was properly admitted per Federal Rule of Evidence 404(b);  Apprendi did not bar the district court from including the quantity of marijuana involved in the prior incident when setting the base offense level;  finally, the USCA affirmed the defendant's sentence but did so without prejudice to the government, so that it may move to vacate the sentence and have the defendant resentenced in the event that he should return to this country.  Browning, Thompson (author), and Wardlaw, Circuit Judges.  B. Coleman of San Diego, CA, for the defendant;  D. Curnow of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  SENTENCING:   USA v. Miguel, 03-10217 (9th Cir. May 27, 2004).  Miguel and Johnson, were caught smuggling a group of five Mexican children and young adults in a four-door Dodge Stratus near Tucson;  Miguel had been pulled over by sheriff's deputies who may have mistakenly believed the car's registration had expired;  the five illegal aliens, whose ages ranged from 4 to 19 years old, were lying unrestrained on the folded-down back seat and in the connecting trunk;  one of the children, a five-year-old boy, was unconscious and unresponsive when first discovered;  the defendants pled guilty;  at sentencing, the district court enhanced the sentences based on three criteria:  First, intentionally or recklessly creating a substantial risk of death or serious bodily harm under Guideline Sec. 2L1.1(b)(5) (2002);  second, actual bodily injury to the five-year old boy under Sec. 2L1.1(b)(6) (2002); and, third, vulnerability of the victims under Sec. 3A1.1(b)(1) (2002).  The USCA held that the district court did not abuse its discretion in enhancing the defendant's sentence for recklessly creating a substantial risk of death or bodily harm, and that the deputies had reasonable suspicion to stop the vehicle based on a reasonable and good faith belief.  O'Scannlain, Hawkins, and Fisher (author), Circuit Judges.  R. Slater and H. Levitt of Tucson, AZ, for the defendants-appellants.  AUSA S. Tsethlikai of Tucson, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  SENTENCING:  USA v. Fish, 03-30362 (9th Cir. May 28, 2004).  The defendant's predicate crime of "unlawful possession of a destructive device" (a metal pipe bomb) in violation of Or. Rev. Stat. Sec. 166.382, did not constitute "a crime of violence" under the Sentencing Guidelines such as to allow an increased offense level under Guidelines Secs. 2k2.1(a)(4)(A) and 4B1.2(a).  Reinhardt, Silverman, and Clifton (author), Circuit Judges.  S. Sady of Portland, OR, for the defendant-appellant;  K. Immergut of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  SENTENCING:  USA v. Navidad-Marcos, 03-10234 (9th Cir. May 5, 2004).  District court erred in applying a 16-level aggravated felony enhancement under Sentencing Guideline Sec. 2L1.2(b)(1)(A)(i) on account of the appellant's 1994 conviction for violation of California Health and Safety Code Sec. 113779(a);  the appellant maintained that the 1994 conviction was "overbroad" in that his conviction under Sec. 113779(a) could have been for conduct that would not qualify as a "drug trafficking" aggravated felony justifying the 16-level enhancement;  but, looking to the judgment abstract alone, the district court concluded that the conviction qualified for the enhancement under the Sentencing Guidelines;  it thus denied the appellant's objections and applied the 16-level enhancement.  The USCA vacated the sentence and remanded for re-sentencing, concluding that the abstract of judgment was insufficient to establish unequivocally that the appellant was convicted of a "drug trafficking" offense for purposes of Sec. 2L1.2.  Wallace, Kozinski, and Thomas (author), Circuit Judges.  AFPD M. Powell of Reno, NV, for the appellant;  AUSA B. Sullivan of Reno, NV, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  SENTENCING:  USA v. Kovac, 03-10386 (9th Cir. May 12, 2004).  Under the circumstances presented by this case, the USCA held that a statement in a state pre-trial sentence report describing a conversation between the defendant and a law enforcement officer was insufficient to designate the defendant as a career offender under Sentencing Guideline Sec. 4B1.1.  Wallace, Kozinski, and Thomas (author), Circuit Judges.  AFPD A. Allen of Las Vegas, NV, for the appellant;  AUSA T. Dougherty of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  SENTENCING:  USA v. Lynch, 02-30216 (9th Cir. May 13, 2004).  Lynch appealed his conviction and 20-year sentence for violation of the Hobbs Act and his conviction and 5-year consecutive sentence for using or carrying a firearm during the commission of a crime of violence in violation of 18 USC Sec. 924(c)(1)(A), both arising out of the robbery and murder of Brian Carreiro in Montana.  The USCA found that the evidence clearly established a direct effect on interstate commerce, and, that, as previously determined by the Ninth Circuit, Sec. 924(c)(1)(A) is not unconstitutional as being beyond the scope of Congress' power under the Commerce Clause;  the USCA also found that there was probable cause for an adequate showing of necessity for the issuance of the Clark County, Nevada wiretaps;  the evidentiary rulings of the district court precluding propensity evidence of the character of Larry Pizzichiello were not erroneous, and the aiding and abetting instruction on the use or carrying of a firearm was not in error and sufficient evidence supported Lynch's conviction on the use of a firearm count;  finally, the district court properly cross referenced the murder Guideline in determining the defendant's Guideline offense level.  Judge Berzon joined the majority's opinion except  as concerned the sufficiency of the evidence under the Hobbs Act;  she also agreed with the conclusion that the Hobbs Act reached Lynch's actions, but thought Ninth Circuit law required the majority to reach that result in a different fashion than followed by the majority.  Hawkins and Berzon (concurring), Circuit Judges, and Quackenbush, District Judge.  Per Curiam.  J. Clarke of Spokane, WA, for the defendant-appellant;  J. Dren-nan of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  SENTENCING:  USA v. Iniguez, 01-50553 (9th Cir. May 26, 2004).  The USCA took this case en banc to clarify the meaning of the term "total punishment" as used in Sentencing Guideline Sec. 5G1.2(d), which permits consecutive or stacked sentences under specified circumstances.  The USCA concluded that "total punishment" under Sec. 5G1.2(d) is the sentence chosen by the district court "from the appropriate sentencing range," United States v. Joetzki, 952 F.2d 1090, 1097-98 (9th Cir. 1991), and is not limited to the minimum sentence in the guideline range.  Schroeder, Pregerson, Rymer, Kleinfeld, Tashima, Thomas, Graber, McKeown (author), Fisher, Berzon, and Rawlinson, Circuit Judges.  G. Scotti of Beverly Hills, CA, for the defendant-appellant;  D. Yang of Santa Ana, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  SENTENCING:  USA v. Benitez-Perez, 03-10419 (9th Cir. May 20, 2004).  The defendant maintained that his 1992 conviction cannot serve as a qualifying drug trafficking offense because he did not serve more than 13 months in prison as required by Guideline Sec. 2L1.2(b)(1)(A)(i);  he points to application note 1(A)(iv)(2002), which provides that if all or any part of a sentence of imprisonment was probated, suspended, deferred, or stayed, "sentence imposed" refers only to the portion that was not probated, suspended, deferred, or stayed;  based on this note he argued that "parole" is the equivalent of sentence suspension and thus that his parole prior to serving 13 months disqualifies his conviction.  The USCA disagreed.  Although, the Ninth Circuit had not previously addressed this specific contention, it has explained that "sentence imposed" for purposes of Sec. 2L1.2(b)(1) means "the actual sentence imposed by the judge."  USA v. Moreno-Cisneros, 319 F.3d 456, 459 (9th Cir. 2003).  Moreno-Cisneros thus held that the sentence imposed by a judge does not include "good-time credits and similar nonjudicial (and thus difficult-to-ascertain) sentence adjustments."  Id at 459 n1.  Analytically, the USCA found no relevant difference between Moreno-Cisneros and the circumstances presented by the instant case.  Other circuits have also rejected parole as a sentencing altering event.  The USCA thus concluded that parole has no effect on the calculation of a qualifying offense under Sentencing Guideline Sec. 2L1.2.  Wallace, Kozinski, and Thomas (author), Circuit Judges.  F. Atcheson of Reno, NV, for the defendant;  AUSA C. Denny of Reno, NV, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

50)  HABEAS CORPUS / SEX OFFENDERS:  Bartlett v. Alameida, 03-55936 (9th Cir. May 10, 2004).  Bartlett is a state prisoner serving a 25-year-to-life sentence for failing to re-register as a sex offender pursuant to California's sex offender registration statute, Cal. Penal Code Sec. 290(a)(1)(A);  in his petition for a writ of habeas corpus, he argued that his conviction violated due process because the state was not required to prove that he had knowledge of the lifelong duty to register;  the district court denied the petition.  The USCA reversed and remanded: Lambert v. California, 355 US 225 (1957), requires the state to prove that Bartlett knew or probably knew of his lifelong duty to register as a sex offender;  the trial court erroneously instructed the jury that actual knowledge was not an element of the crime;  because the error was not harmless and the state court of appeal unreasonably determined that no Lambert error occurred, the district court erred by not granting Bartlett's petition;  the USCA thus reversed and remanded with instructions to grant the writ unless the state grants Bartlett a new trial within 60 days of the issuance of the USCA's mandate.  Skopil, Noonan, and Berzon, Circuit Judges.  Per Curiam.  B. Michel of Berkeley, CA, for the petitioner;  DAG K. Bissonnette of Los Angeles, CA, for  the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  HABEAS CORPUS / CONFESSIONS:  Taylor v. Maddox, 02-55560 (9th Cir. May 10, 2004).  The petitioner was serving a life sentence without the possibility of parole for a crime committed when he was 16 years old;  his conviction hinged on a full confession he gave after being arrested in his home late one night and interrogated by two police detective past 3 am;  pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, at issue before the USCA was whether the state courts were objectively unreasonable in finding that the confession was lawfully and voluntarily obtained.  The magistrate's report and recommendation adopted by the district court concluded that the petitioner did not rebut the presumption of correctness and did not demonstrate that the state courts' determinations were objectively unreasonable.  Based on its independent review of the record, however, the USCA concluded that the district court erred and that the petitioner was entitled to habeas relief;  it thus reversed and remanded with instructions to grant a conditional writ of habeas corpus, ordering the petitioner's release unless California notifies the district court within 30 days of the issuance of the USCA's mandate that it intends to retry the petitioner based on evidence other than the illegally-obtained confession, and actually commences the retrial within 70 days of issuance of the mandate.  Kozinski (author) and T.G. Nelson, Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge.  S. Park of Van Nuys, CA, for the petitioner;  DAG D. Chuang of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  HABEAS CORPUS / DEATH PENALTY:  Allen v. Woodford, 01-99011 (9th Cir. May 6, 2004).  Allen, an inmate who orchestrated three murders from behind bars was properly denied habeas relief;  the evidence of his guilt was overwhelming, and just as over-whelmingly plain was that his representation at the penalty phase of his trial fell below an objective standard of reasonableness;  but, even if counsel had adequately prepared for the penalty phase, there was no reasonable probability that the result would have been a sentence other than death;  moreover, sentencing Allen to another life term would achieve none of the traditional purposes underlying punishment;  he continues to pose a threat to society, and has proven that he is beyond rehabilitation, and has shown himself more than capable of arranging murders from behind bars;  if the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted.  Graber, Wardlaw (author), and Clifton, Circuit Judges.  M. Satris of Bolinas, CA, for the appellant;  DAG W. Campbell of Sacramento, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  PRISONERS' RIGHTS:  Austin v. Williams, 02-16546 (9th Cir. May 17, 2004).  Austin, a state prisoner, filed a 42 USC Sec. 1983 retaliation claim against a correctional officer after that officer allegedly exposed his genitalia to Austin and then filed a false disciplinary report against him when Austin complained to prison officials.  The USCA reversed and remanded for further proceedings with respect to Austin's retaliation for exercising First Amendment rights claim;  it affirmed the district court's judgment in all other respects.  The district court had incorrectly concluded that the retaliation claim was barred by Sandin v. Conner, 515 US 472, 487 (1995).  Canby (author), W. Fletcher, and Tallman, Circuit Judges.  S. Austin pro se;  L. Colbert of Sacramento, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  PRISONERS' RIGHTS:  McQuillion v. Schwarzenegger, 01-16037 (9th Cir. May 19, 2O04).  The district court dismissed the plaintiffs' civil rights complaint alleging a conspiracy on the part of the Board of Prison Terms and California's governor to deny parole to inmates serving life sentences.  The USCA affirmed.  It dismissed the plaintiff's claims for declaratory and injunctive relief as moot, and collateral estoppel barred his claim for damages against members of the Board.  In addition, Heck v. Humphrey barred all of the plaintiffs' claims for damages, and the co-plaintiffs lacked standing to seek prospective relief.  Cudahy, Goodwin (author), and Kleinfeld, Circuit Judges.  S. Defilippis of San Jose, CA, for the plaintiffs-appellants;  DAG M. Williams of Sacramento, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  PATENT INFRINGEMENT:  Saint-Gobain Industrial Ceramics, Inc.  v. CRC Crystal Research Corp., 03-15275 (9th Cir. May 26, 2004) (unpublished).  B. Fletcher, Trott, and Fisher, Circuit Judges.

       CRC Crystal Research Corporation appealed the district court's order construing the parties' Sept. 11, 2002 oral settlement agreement as including a mutual release which intended to and specifically did release any claims CRC may believe it presently has for patent infringement. CRC maintained that it did not agree to release any such claims, pointing to the express reservation of its rights in the consent injunction included as part of the Sept. 10, 2002 settlement agreement between Saint-Gobain Industrial Ceramics ("SGIC") and the other defendants, including Optoscint, Inc.  The discussion of the settlement agreement before the district court on Sept. 11, 2002 by counsel for both sides was ambiguous as to the nature and scope of releases between the parties, and the district court attempted to resolve those ambiguities in a sensible fashion.

       The USCA said it ordinarily defers to the district court's decision whether to enforce a settlement and accept its findings of fact in that regard unless they are clearly erroneous.  However, this was not an ordinary case.  Although the district court did not abuse its discretion, it made its decision in the absence of important information concerning the parties' understanding of the Sept. 10 agreement and its relationship to the related settlement with CRC on Sept. 11.  It thus was unable to exercise a genuine application of that discretion.  During oral argument, the USCA questioned the counsel who negotiated the two settlements.  Their candid responses clarified that SGIC had not discussed nor considered necessary a release from CRC for possible patent infringement claims because it did not believe CRC had any such claims to assert.  According to counsel, Optoscint (as patent owner and licensor) had already released its claims in the Sept. 10 settlement, and SGIC thus considered the reservation of CRC's rights in the consent injunction as without effect.  Whether or not this assumption was correct, SGIC did not believe there was a need to seek a release from CRC of such claims.  This new information suggested that the district court's factual finding that "the only reasonable interpretation is that a mutual release was intended" was erroneous or at least too broad.  Apparently, neither party to the Sept. 11, 2002 settlement agreement bargained for or agreed that any mutual release CRC may have agreed to would have encompassed whatever patent infringement claims CRC might have had against SGIC as of the date of the settlement.  The USCA noted that normally it could not consider evidence that was not available to the district court when it rendered its opinion.  It thus remanded to the district court to reconsider the nature and scope of any release CRC may have agreed to, particularly regarding whatever patent infringement claims CRC might have had against SGIC as of the date of the settlement, in light of the new information discussed above.  The USCA thus vacated the judgment and remanded the case to the district court for further proceedings.

2)  INTELLECTUAL PROPERTY:  Electronic Arts, Inc. v. Hebrew University of Jerusalem, 03-15270 (9th Cir. May 7, 2004) (unpublished).  T.G. Nelson, W. Fletcher, and Berzon, Circuit Judges.
 
        Electronics Arts ("EA") appealed the district court's January 21, 2003, order denying its request for attorneys' fees pursuant to the Astaire Celebrity Image Protection Act., Cal. Civ. Code Sec. 3344.1.  Hebrew University of Jerusalem ("HUJ") cross appealed the district court's denial of its request for an award of costs and maintained that the district court lacked subject matter jurisdiction over the suit.  The USCA affirmed the district court's order with respect to subject matter jurisdiction and costs.  However, it reversed the order with respect to the availability of attorneys' fees, and remanded for a determination of whether EA was the prevailing party and, if so, of the amount the amount of fees.

        The district court had asserted jurisdiction over EA's request for declaratory judgment that its use of Albert Einstein's likeness in its Command & Conquer video game series did not infringe on HUJ's post-mortem publicity rights under the Declaratory Judgment Act, 28 USC Sec. 2201.  "The purpose of the Declaratory Judgment Act is 'to relieve potential defendants from the Damoclean threat of impending litigation which a harassing adversary might brandish, while initiating suit at his leisure—or never.'" Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 (9th Cir. 1990) (quoting Societe de Conditionnement v. Hunter Eng'g Co., 655 F.2d 938, 943 (9th Cir. 1981).  When an actual controversy exists, 28 USC Sec. 2201(a) states that the court's exercise of that jurisdiction is discretionary.  The district court exercised its jurisdiction after determining that an actual controversy existed.  The district court's factual findings supported that determination and were consistent with the record.  HUJ alleged in communications with EA that EA's use of Albert Einstein's likeness in the Command & Conquer video game series constituted an infringement of its post-mortem publicity rights, and that although HUJ preferred to settle the dispute amicably, it was prepared to refer the matter to its "aggressive" outside litigator.  That assertion is sufficient to establish a case or controversy even if one assumes that an explicit threat of litigation is necessary to establish a case or controversy in an intellectual property declaratory judgment action.  The USCA did not decide whether such a threat is essential.

       Under California law, attorneys' fees are unavailable in an ordinary declaratory relief action unless a statute provides for them.  California Civil Code Sec. 3344.1, the statute at issue here, provides for the award of attorneys' fees to the "prevailing party or parties in any action under" it.  EA maintained that its declaratory judgment action is brought "under" Sec. 3344.1 and triggers the mandatory attorneys' fees clause.  Relying on Filarsky v. Superior Court, 28 Cal. 4th 419, 430 (2002), the district court rejected this contention, holding that Sec. 3344.1 does not contemplate any actions brought by the alleged infringer.  In Filarsky the California Supreme Court rejected the position that a  declaratory judgment action under the general California declaratory judgment statute, Cal. Civ. Proc. Code Sec. 1060, is the "functional equivalent" of an action brought under Cal. Gov. Code Secs. 6258 and 6259.  Id.  Section 6258 allows any person to bring an injunction or declaratory judgment action for the inspection of public records.  Section 6259(d) requires the award of costs and attorneys' fees against (1) the public agency should the plaintiff prevail in litigation filed pursuant to this section or (2) the plaintiff if the court finds that the plaintiff's case is clearly frivolous.  Section 3344.1 is quite different from the statutory scheme at issue in Filarsky.  Most obviously, Sec. 3344.1 does not address declaratory judgment actions.  Instead, it broadly provides for liability to holders of post-mortem publicity rights when those rights are violated.  Unlike Cal. Gov. Code Sec. 6258, Sec. 3344.1 does not specify which of the affected parties may bring suit.  Instead, it refers to "the person who violated the section" and "the injured party or parties."  Similarly, with respect to attorneys' fees, Sec. 3344.1 provides that attorneys' fees will be awarded to the prevailing party, regardless of whether the prevailing party is the holder of the publicity rights or the alleged infringer.  Further, the legislature considered and rejected restricting attorneys' fees to the "injured party."  Thus, the broad language of Sec. 3344.1, unlike the statute at issue in Filarsky, does not restrict to one affected party or the other the authority to bring suit "under" the statute or to receive attorneys' fees.  In these respects, Sec. 3344.1 is similar to the federal Copyright Act, 17 USC Sec. 505.  Section 505 provides for a discretionary award of attorneys' fees to the "prevailing party" in "any civil action under it."  Courts have interpreted that provision to permit fees for declaratory judgment plaintiffs.  The almost identical language in Sec. 3344.1 should be interpreted and applied the same way.  The USCA thus concluded that an action brought to declare the rights and responsibilities of affected parties under Sec. 3344.1 is brought under the statute regardless whether the suit is filed by the person who allegedly violated the statute or the injured party.  Consequently, attorneys' fees in such an action are available to the declaratory judgment plaintiff if it prevails. 

        Because it regarded fees as unavailable to EA under Sec. 3344.1, the district court did not reach the issue of whether EA qualifies as a prevailing party under the statute.  EA argued that, as a matter of law, it qualifies as a prevailing party under the catalyst theory, and urged the USCA to so decide.  But, the USCA declined to address the issue.  Both parties assumed that the catalyst theory ought to be used to determine whether EA is the prevailing party.  Currently pending before the California Supreme Court, however, is the question whether California should reconsider the catalyst theory in light of Buckhannon Bd. & Care Home v. W. Va. Dept. of Health & Human Res., 532 US 598 (2001), which rejected the catalyst theory.  Given the factual intricacies underlying the prevailing party ruling in this case, the lack of a previous finding by the district court, and uncertainty as to applicable law, the USCA remanded the prevailing party ruling.  Finally, because HUJ's request for costs had been premised on the applicability of state law instead of Fed. R. of Civ. Proc. 68, a recent Ninth Circuit decision forecloses its cross-appeal for costs.  See Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1027-28 (9th Cir. 2003) (holding that Rule 68 must be applied without regard to the source of the subject matter jurisdiction or the substantive law at issue).

3)  COPYRIGHT INFRINGEMENT:  Stern v. Sinatra, 02-57120 (9th Cir. May 19, 2004) (unpublished).  Browning, Rymer, and Graber, Circuit Judges.

      Nancy Sinatra and her associated businesses (collectively "Sinatra") jointly appealed the district court's decision not to award them attorneys' fees after granting their summary judgment motion.  Phil Stern cross-appealed the district court's decision to enter summary judgment in favor of Sinatra.  The district court found that Stern did not possess a valid copyright in the photograph "F.S. in Corridor Walking Away" at the time he initiated this copyright infringement action.  However, the court declined to award attorneys' fees in Sinatra's favor. 

       The USCA affirmed.  It was undisputed that Stern took the photograph in 1954 or 1955, and that the photograph appeared in Look magazine in 1957 with a credit to "Phil Stern, Globe."  There is no evidence permitting a reasonable inference that the publication in Look was unauthorized.  As Stern testified under oath, "this is authorized by Globe Photos, which is automatically authorized by me since I made them my agent and they would sell my—what I would call my file photos."  Stern's 28 year statutory copyright term under the 1909 Copyright Act began to run from the time of the 1957 publication in Look and persisted until 1985, when Stern failed to renew it.  At that time the photograph fell into the public domain.  Stern's inclusion of the photograph in a 1996 copyright registration for "Frank Sinatra Images" did not alter this photograph's public domain status.  Without a valid copyright in this photograph, Stern's additional claims again Sinatra for unjust enrichment and violation of the Digital Millennium Copyright Act, 17 USC Sec. 1203, failed as a matter of law.  Thus, as the district court concluded, summary judgment for Sinatra was appropriate.  Nor could the USCA say that the district court abused it discretion in denying Sinatra's request for attorneys' fees.

4)  TAXATION / SANCTIONS:  Kolker v. CIR, 03-74029 (9th Cir. May 17, 2004) (unpublished).  Canby, Kozinski, and Paez, Circuit Judges.

       Kolker appeals pro se the Tax Court's order dismissing Kolker's petition disputing tax deficiencies and additions to tax asserted by the CIR and directing Kolker to pay $10,000 in sanctions to the United States pursuant to Sec. 6673(a) of the Tax Code.  The USCA concluded that the Tax Court did not err in dismissing the petition for failure to state a claim upon which relief can be granted because the petition failed to set forth any clear and concise assignments of error or any facts demonstrating any error in the CIR's determinations, as required by Tax Court Rule 34(b)(4) and (5).  Kolker's only challenge to the Tax Court's sanctions award was that the erroneous dismissal of the petition rendered the sanctions award moot.  This contention was unavailing because the dismissal of the petition was not erroneous.  The USCA granted the CIR's motion that Kolker be sanctioned pursuant to 28 USC Sec. 1912 and Fed. R. App. P. 38 for bringing a frivolous appeal.  It awarded damages to the government in the amount of $1,500.  Finally, the USCA denied Kolker's motion "to admit newly discovered evidence," construed as a motion to supplement the record on appeal.

5)  TAXATION:  Schmidt v. United States, 03-16351 (9th Cir. May 19, 2004) (unpublished).  Canby, Kozinski, and Paez, Circuit Judges.

       The Schmidts, and their three children, appealed pro se the district court's judgment in favor of the United States in the government's action to reduce federal tax assessments to judgment and to foreclose federal tax liens pursuant to 26 USC Secs. 7402 and 7403.  The USCA affirmed for the reasons set forth in the district court's May 30, 2003 order granting summary judgment, and its July 16, 2003 order denying the Schmidts' Motion to Vacate Judgment and overruling their objections to the proposed Order of Judicial Sale.

6)  BANKRUPTCY:  In re Hansen, 03-15600 (9th Cir. May 26, 2004) (unpublished).  O'Scannlain, Siler, and Hawkins, Circuit Judges.

        Trustee Wheeler and creditor Kralowec maintained that the bankruptcy court erred by applying the informal proof of claim doctrine to allow a claim by D&E Williams, Inc.  The USCA concluded that the bankruptcy court did not err in finding that the elements of the informal proof of claim doctrine were satisfied;  nor did it abuse its discretion in permitting amendment of the informal proof of claim.  See In re Holm, 931 F.2d 620, 622-23 (9th Cir. 1991);  In re Sambo's Restaurants, Inc., 754 F.2d 811, 815-17 (9th Cir. 1985).

7)  JOINT VENTURES / DISCOVERY / SECURITIES: GoodWorth Holdings, Inc. v. M.W. Suh,. 03-15128 (9th Cir. May 24, 2004) (unpublished). Ferguson, Reinhardt, and Paez, Circuit Judges.

        GoodWorth Holdings, a Texas corporation, appealed the district court's summary judgment in favor of defendants M.W. Suh and J.P. Morgan Securities.  GoodWorth also challenged the district court's denial of two discovery motions and its refusal to reconsider the grant of summary judgment. 

       The USCA upheld the dismissal of all of GoodWorth's claims.  The district court found no genuine issue of material fact as to the existence of a joint venture between GoodWorth and Suh, and concluded that no such venture was formed.  The USCA decided that it did not need to resolve whether in reaching this conclusion, the district court impermissibly made credibility determinations and weighed conflicting evidence.  The USCA noted that it may affirm a district court's grant of summary judgment on any basis supported by the record, even if the lower court made mistakes of law or relied on incorrect reasons.  The USCA affirmed the district court because GoodWorth failed to allege, or to present evidence, regarding at least one element of each of its causes of action against Shu and J.P. Morgan.  GoodWorth's breach of contract claims against both defendants failed because of its inability to prove damages with any reasonable certainty. To obtain damages from the loss of anticipated profits, the plaintiffs must show "a reasonable probability that the profits would have been earned except for the breach of the contract."  James v. Herbert, 149 Cal. App. 2d 741, 749 (App. 1957).  Here, GoodWorth presented no evidence to show that it could have closed the deal the joint venture contemplated, and thus was unable to show that it would have earned profits but for any breach by the defendants.  The district court dismissed GoodWorth's fiduciary duty claim against J.P. Morgan because it found that an entity called "H&Q" did not stand in a fiduciary relationship with GoodWorth.  The existence of such a relationship is a question of fact to be resolved by examining the facts and circumstances of a particular case.  Under this fact specific inquiry, and contrary to the decision of the district court, GoodWorth established a genuine issue of material fact with respect to the existence of such a relationship.  Nevertheless, it did not create a triable issue with respect to either breach or damages.  To state a cause of action for breach of fiduciary duty, a plaintiff must show (1) the existence of a duty (2) breach, and (3) damages proximately caused by the breach. Roberts v. Lomanto, 112 Cal. App. 4th 1553, 1562 (App. 2003).  Because GoodWorth could not show damages proximately caused by any breach by either defendant, its fiduciary duty claims against both parties failed.  In addition, the district court correctly ruled that GoodWorth did not raise a triable issue of fact regarding its fraud claims against either defendant.  The elements of fraud are:  1) a misrepresentation;  2) knowledge of falsity ("scienter");  3) intent to defraud, i.e., to induce reliance;  4)  justifiable reliance;  and 5) resulting damages.  Small v. Fritz Companies, Inc., 30 Cal. 4th 167, 173 (2003).  GoodWorth presented no evidence to demonstrate that Suh knew his statement to be false when he claimed that a Canadian bid for the telecommunications company's stock resulted in a "lockup" prevented other bids. Similarly, GoodWorth offered no evidence to show that H&Q's investment banker knew his representation to be false when he stated that the company had no interest in the stock deal, or to show that H&Q actually had an interest in GoodWorth's acquisition proposal in April 1999.  The USCA also affirmed the district court's dismissal of GoodWorth's securities claims.  Under either Texas or California securities law, GoodWorth failed to create a genuine issue of material fact regarding whether Suh or J.P. Morgan bought, sold, offered to buy, or offered to sell any securities.

       GoodWorth's challenges to the denial of several of its motions were similarly unavailing.  First, the district court did not abuse its discretion in denying GoodWorth's Fed. R. Civ. P. 45(c) motion to compel discovery from third parties.  That motion was untimely, and the court was not required to excuse plaintiff's ignorance of the unambiguous local rule that limited the time for such motions.  Second, the district court may well have abused its discretion in relying on deposition testimony of Jae Woo Lee, a witness who was disclosed late by defendant Suh.  Federal R. Civil Proc. 37(c)(1) calls for exclusion of improperly disclosed evidence without requiring a party to move for that sanction, and "contemplates stricter adherence to discovery requirements."  Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001).  Nevertheless, the grant of summary judgment to defendants can be affirmed on appeal even if Lee's testimony is excluded.  Finally, the district court did not abuse its discretion in denying GoodWorth's Fed. R. Civil Proc. 59(e) motion to alter or amend the summary judgment order.  GoodWorth did not show that the new evidence it sought to offer could not have been obtained earlier through due diligence.  Nor did it establish that the summary judgment order was based on a "manifest error of law or fact." McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc).

8)  EMPLOYMENT LAW:  Agha v. Rational Software Corporation,. 03-35298 (9th Cir. May 14, 2004) (unpublished).  Goodwin, McKe-own, and Fisher, Circuit Judges.

       Agha, a Kuwaiti-born immigrant of Arab descent, appealed from the district court's grant of summary judgment for defendant Rational Software Corporation ("Rational") in this Title VII action.  Agha sought a trial on his federal and state claims that he was terminated improperly due to his race. 

       Agha was employed by Rational from August 2000 to November 2001 as a Corporate Account Representative ("CAR").  Each CAR works on a sales team with software engineers, account executives, and a field sales representative, and each team is assigned a sales quota.  Within a few months of Agha's hiring, team members were reporting problems with his performance, including problems with his written English in e-mails to customers.  His direct supervisor, Sales Manager Nora Drake, noted that Agha was tardy to meetings and in submitting reports.  On the other hand, Agha was also complimented for doing a "great job" and for "always having such a great attitude."  Just a few months before he was terminated, he was recognized for turning in the most orders for the month of July and for generating the most revenue for the last week of that month.  On October 9, 2001, Drake gave Agha a written Performance Improvement Plan ("PIP"), which set performance goals for a 30-day probationary period.  Agha failed to meet the PIP goals and was terminated on November 12, 2001.  Agha argued that he was terminated because of race-based discrimination that arose following the September 11, 2001, terrorist attacks.  He proffered affidavits of two co-workers who stated that Drake's behavior towards Agha changed dramatically after 9/11.  The affidavits supported Agha's claim that Drake's friendliness and warmth were replaced by a cold and distant demeanor.  Agha testified that in late September 2001, Drake said to him, "You can't speak Arabic at work and you can't hang around with your Arabic friends and all of your channels at home are Arabic channels and I don't like that."  Drake recalls the conversation as an attempt to encourage Agha to improve his English skills so as to better his communication with customers:  "The discussion was, 'If you're not taking business English classes and you're only speaking English at work for eight hours, how are you improving your English skills?"  Agha challenged the district court's finding that the statement allegedly made by Drake was a stray comment not tied to the termination decision.
The USCA noted that at the summary judgment phase, all evidence is viewed in the light most favorable to the non-movant.  Drake's statement, standing alone, is evidence of discriminatory animus.  The comment, as presented by Agha, evinces animus against his participation in the Arab-American community.  Spoken directly to Agha only a few weeks before Drake's initiation of termination proceedings, the statement is sufficiently tied to the termination to be relevant to Agha's claim.  Agha presented sufficient evidence to raise a genuine issue of material fact for trial.  The district court erred in dismissing his disparate treatment claim at the summary judgment phase.  Agha appealed the grant of summary judgment with respect to his hostile work environment claim be conceded that the claim in his reply brief.  The USCA thus affirmed the district court's decision with respect to that claim.

9)  IMMIGRATION:  Naser v. Ashcroft,. 02-73383 (9th Cir. May 5, 2004) (unpublished).  Kleinfeld, Wardlaw, and Berzon, Circuit Judges.

       Naser, an ethnic Tajik and Shiite Moslem citizen of Afghanistan, appealed the BIA's denial of his motion for reconsideration of the BIA's refusal to reopen his asylum and withholding of deportation proceedings.  The BIA ruled that it had not erred in its earlier denial for untimeliness of Naser's second motion to reopen.  It had reasoned that Naser had not presented evidence of materially changed circumstances that would affect his asylum claim, and alternately found that the Taliban's fall from power eliminated any potential risk to Naser. 

      The USCA granted the petition.  It found that the BIA abused its discretion by failing to take notice of the evidence of changed country conditions contained in Naser's second motion to reopen in 2000.  Instead, in its decision on the 2000 motion, the BIA rejected Naser's argument that country conditions had changed, noting that the Taliban were in power both in 1996, when Naser filed his first motion to reopen, and in 2000.  However, in Naser's 1996 motion, he presented only generalized evidence about the brutality of the new Taliban regime, and thus was unable to demonstrate that he would be singled out for persecution based on a protected ground.  By contrast, in his 2000 motion, Naser offered specific uncontroverted evidence of Taliban-ordered mass killing of Shiites and Tajiks that occurred in 1998, a significant change in country conditions which would support Naser's claim of persecution or a well-founded fear of persecution based on his ethnic and religious heritage.  Although Naser's 2000 motion was facially untimely, 8 CFR Sec. 3.2(c)(2), the time limit does not apply to motions which are "based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing." 8 CFR Sec. 3.2(c)(3)(ii).  In denying the motion to reopen by finding that Naser had already presented evidence of the Taliban's ascendancy to power in Afghanistan, the BIA abused its discretion by erroneously equating the Taliban's actions in 1996 to those in 1998, and thus finding that country conditions had not materially changed.  All the evidence presented to the BIA demonstrated that the Taliban's atrocities in 1998 were far different from those committed in 1996 and, more importantly for Naser's asylum claim, were directly aimed at massacring Afghan citizens who shared Naser's background.  Naser could not have presented proof of the Taliban's increasing atrocities against ethnic Tajiks and Shiite Moslems in 1996 because these atrocities did not begin to occur until 1998.  As the government conceded at oral argument, it presented no evidence that Tajiks and Shiite Moslems were persecuted any earlier than 1998.  The facts are to the contrary:  As the documentation provided in the 2000 motion to reopen demonstrates, the Taliban came to power in 1994, but did not begin to actively persecute Tajiks and Shiites until well after the 1996 motion to reopen was filed.  Naser's new evidence of the Taliban's mass killings established his prima facie eligibility for relief.  Contrary to its own regulation governing consideration of second motions to reopen, 8 CFR Sec. 3.23(b)(4)(i), the BIA disregarded substantial evidence of persecution of similarly situated people that Naser presented in his 2000 motion, and relied only on the evidence presented in the 1996 motion regarding general living conditions under the Taliban.  Had the BIA complied with its own regulations and considered the material, newly discovered evidence offered in Naser's 2000 motion that a pattern or practice of persecution of Shiites and Tajiks existed, Naser would have been eligible for relief.  Instead, the BIA based its decision on an erroneous view of the law or a clearly erroneous assessment of the facts.  Because the BIA abused its discretion in failing to reopen Naser's proceedings, it thus follows that it abused its discretion in denying Naser's motion to reconsider.  Additionally, by taking administrative notice of the fall of the Taliban (and thus assuming that any danger to Naser had been alleviated) without allowing Naser the opportunity to present evidence of how his asylum claim would be affected by this regime change, the BIA denied Naser due process.  Thus, the BIA's alternative ground for denying the motion to reconsider is invalid as well.  Finally, Naser petitioned for a stay of exclusion proceedings while his application for status adjustment was pending before the Department of Homeland Security.  While it recognized that the petition will become moot if Naser's application is granted, the timeline for a decision on the application is far from certain.  Because it granted Naser's petition, the USCA noted that a stay would have only the effect of foreclosing another potential avenue of relief.

10)  IMMIGRATION:  Shergill v. Ashcroft,. 03-70093 (9th Cir. May 14, 2004) (unpublished).  Canby, Kozinski (dissenting), and Paez, Circuit Judges.

       Shergill, a native and citizen of India, petitioned for review of the Board of Immigration Appeals' decision summarily affirming an Immigration Judge's denial of his application for asylum, withholding of removal, and relief under Art. 3 of the Convention Against Torture ("CAT"). 

       The USCA granted the petition for review in part, and denied it in part.  Substantial evidence did not support the IJ's adverse credibility finding because she did not identify inconsistencies that went to the heart of Shergill's asylum claim, and did not give Shergill the opportunity to explain the alleged inconsistencies.  Shergill testified that Indian police arrested him once for giving money to terrorists, and that on another occasion Indian police posed as terrorists, extorted money from Shergill, and then accused him of helping terrorists.  Because Shergill testified that both events occurred, the record did not support the IJ's conclusion that Shergill testified inconsistently about whether Indian police arrested him for helping terrorists.  Moreover, the IJ concluded that Shergill's testimony lacked detail.  Shergill, however, had testified in detail about his arrest, including that police detained him for four days, beat him "mercilessly," and hung him upside down.  Substantial evidence thus did not support the IJ's finding.  See Akinmade v. INS, 196 F.3d 951, 957 (9th Cir. 1999) (holding that lack of detail is not a valid basis for an adverse credibility finding where the applicant was not asked to provide further detail).  In addition, contrary to the IJ's conclusion, Shergill was not required to submit corroborating evidence to support his asylum claim because the IJ had no valid reason to question his credibility.  Shergill also demonstrated that he was persecuted on account of an imputed political opinion.  The record shows that police believed that Shergill was associated with a militant, anti-government group.  Because the record supports the conclusion that Shergill suffered past persecution on account of an imputed political opinion, he is entitled to the presumption that he has a well-founded fear of future persecution.  The USCA thus remanded to the BIA for a determination whether the government can rebut the presumption that Shergill has an objectively well-founded fear of persecution. Shergill also did not satisfy the more stringent standard for withholding of removal because he did not demonstrate a clear probability of persecution.  Because Shergill failed to demonstrate that it was more likely than not that he would be tortured if returned to India, the IJ properly denied his CAT claim.  Finally, contrary to Shergill's contention, the BIA's failure to articulate reasons for its decision did not violate due process.

      Dissenting, Judge Kozinski thought that substantial evidence supported the IJ's adverse credibility finding.

11)  IMMIGRATION:  Asatryan v. Ashcroft,. 03-70037 (9th Cir. May 14, 2004) (unpublished).  Canby, Kozinski, and Paez, Circuit Judges.

        Asatryan, a native of Iran and a citizen of Armenia, along with his wife and minor child, who are natives and citizens of Arme-nia, petitioned pro se for review of a BIA decision summarily affirming an Immigration Judge's denial of their applications for asylum, withholding of removal, and relief under Art. 3 of the Convention Against Torture ("CAT"). 

       The USCA denied the petition.  Substantial evidence supported the IJ's adverse credibility finding.  Asatryan testified that he was persecuted in Armenia because of his membership in the Seventh Day Adventist church.  However, he submitted a document indicating that he was a member of the Armenian Evangelical Baptist Church, and then testified inconsistently about whether he was a member of that church.  This inconsistency is substantial and goes to the heart of Asatryan's asylum claim.  See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir. 2001) (inconsistencies are not minor when they relate to the basis for the petitioner's alleged fear of persecution).  In addition, Asatryan testified that he returned to Armenia for a visit in December of 1998, and lived with his family until June of 1999, during which time he attended prayer meting without incident.  See Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (a claim of persecution is undercut when the applicant has returned to the home country without incident).  Asatryan did not satisfy the more stringent standard for withholding of removal.