1)  BANKRUPTCY:  In re Focus Media, Inc., 03-55858 (9th Cir. Nov. 2, 2004; amended Nov. 16, 2004).  The USCA held that in an adversary proceeding in bankruptcy court, a lawyer can be deemed to be the client's implied agent to receive service of process when the lawyer has repeatedly represented the client in the underlying bankruptcy case, and where the totality of the circumstances demonstrates the intent of the client to convey such authority;  it also held that Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 US 308 (1999), does not bar the issuance of a preliminary injunction freezing assets where fraudulent conveyance or equitable causes of action are pleaded in the bankruptcy context.  Thompson, Silverman (author), and Wardlaw, Circuit Judge.  J. McCoy of Newport Beach, CA, for the defendant-appellant;  P. Anderson of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

2) TAXATION / MAIL FRAUD / MONEY LAUNDERING / SENTENCING:  USA v. Butler, 02-50182 (9th Cir. Nov. 23, 2004).  Butler challenged his sentence for mail fraud, money laundering, and related tax offenses.  At issue was whether, under the Sentencing Guidelines, as amended on Nov. 1, 2001, counts of mail fraud in violation of 18 USC Sec. 1341 and money laundering in violation of 18 USC Sec. 1957 should be grouped together.  The USCA held that the district court erred in failing to consider Guidelines Amendment 634 which provides that counts of fraud and money laundering arising from the same conduct are to be grouped together into one count.  The USCA thus vacated Butler’s sentence and remanded for resentencing.  Browning (author), Rymer, and Graber, Circuit Judges.  R. Rome of Van Nuys, CA, for the defendant-appellant;  D. Wang of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

3)  TAXATION:  May Trucking Company v. Oregon Department of Transportation, 03-35381 (9th Cir. Nov. 12, 2004).  In this case of first impression, the USCA held that the Tax Injunction Act, 28 USC Sec. 1341, applies to the International Fuel Tax Agreement (“IFTA”), a multi-jurisdictional taxation program in which one state collects taxes imposed by another.  The USCA also held that a taxpayer has a “plain, speedy and efficient remedy” within the meaning of the Tax Injunction Act so long as it may obtain a full and fair hearing in the courts of the state whose tax that taxpayer challenges.  The USCA thus affirmed the decision of the district court, which held that the Act deprives the court of subject matter jurisdiction to hear the claim that IFTA precludes Oregon’s collection of certain fuel taxes.  Graber (author), Gould, and Berzon, Circuit Judges.  G. Carey of Portland, OR, for the appellant;  AAG J. Adams of Salem, OR, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  LABOR LAW:  Intl. Assoc. of Machinists, Local 964 v. BF Goodrich Aerospace Aerostructures Group, 03-55085 (9th Cir. Nov. 1, 2004).  Labor Management Relations Act Sec. 302(a), proscribing employer payments to union representatives, unambiguously applies to a collective bargaining agreement’s requirement that a company pay salary and benefits to a full-time union representative of the company’s employees.  Kozinski, O’Scannlain (author), and Silverman, Circuit Judge.  T. Kennedy of Phoenix, AZ, for the plaintiff-appellant;  D. Rosenfeld of Oakland, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  AMERICANS WITH DISABILITIES ACT:  Pardi v. Kaiser Permanente Hospital, Inc., 02-16447 (9th Cir. Nov. 15, 2004).  Pardi appealed the district court’s grant of summary judgment in favor of his former employer, Kaiser Permanente Hospital, Inc., on four claims:  (1) violations of the Americans with Disabilities Act;  (2) intentional infliction of emotional distress;  (3) interference with prospective economic advantage;  and (4) breach of contract.  The district court granted summary judgment for Kaiser on all claims based on a settlement agreement and release, the California litigation privilege, and failure of proof of the state claims.  The USCA affirmed the judgment on the claims of intentional infliction of emotional distress, interference with prospective economic advantage, and violation of the ADA with regard to pre-settlement agreement acts.  However, it vacated the judgment as to the claims of breach of contract and violation of the ADA and remand these claims for trial.  Wallace and McKeown, Circuit Judges, and Moskowitz (author), District Judge.  E. Dove of Sacramento, CA, for the plaintiff-appellant;  T. Martinchek of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

 6)  CIVIL RIGHTS /  ATTORNEYS’ FEES:  Democratic Party of Washington State v. Reed, 02-35422 (9th Cir. Nov. 17, 2004).  The Democratic, Republican, and Libertarian Parties prevailed against the Secretary of State for the State of Washington in this civil-rights case.  They sued to eliminate Washington’s “blanket primary.”  Each political party objected to the Washington system whereby its own adherents could not choose its nominees.  They prevailed on their claim that the Washington system is unconstitutional.  The lawsuit was brought under 42 USC Sec. 1983 and other laws by the Democratic Party;  the other parties intervened as plaintiffs.  The USCA granted the plaintiffs’ motions for attorneys’ fees on appeal, but it did not address attorneys’ fees for litigation in district court.  The USCA granted judgment in favor of the Democratic Party for $132,313, the Republican Party for $66,777.50, and the Libertarian Party for $36,579, as attorneys’ fees on appeal pursuant to 42 USC Sec. 1988, against the defendant Secretary of State in his official capacity.  Kleinfeld (author) and McKeown, Circuit Judge, and Breyer, District Judge.  D. McDonald of Seattle, WA, for the appellant Democratic Party of Washington State, et al.  J. White of Kirkland, WA, for appellants Republican State Committee of Washington, et al.  R. Shepard of Tacoma, WA, for the appellants Libertarian Party of Washington State, et al.  AAG J. Pharris of Olympia, WA, for appellee Reed;  J. Johnson of Olympia, WA, for appellee Washington State Grange, et al. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  IMMIGRATION:  Lanza v. Ashcroft, 02-73538 (9th Cir. Nov. 22, 2004).  Lanza, a native of Argentina, sought review of a final Board of Immigration Appeals order denying her petitions for asylum, withhold of removal, and relief under the Convention Against Torture.  An Immigration Judge found the asylum application untimely and that Lanza had not establish extraordinary circumstances to excuse that untimeliness.  Alternatively, the IJ denied Lanza’s asylum claim on the merits.  He also denied Lanza’s petitions for withholding of removal and CAT relief.  The USCA upheld the BIA’s denial of Lanza’s withholding to removal and CAT claims.  It vacated the BIA’s denial of Lanza’s asylum claim and remanded for proceedings consistent with this decision.  Judge Paez concurred in the decision to remand Lanza’s asylum claim because it was impossible to discern whether the BIA’s order dismissing Lanza’s appeal from the IJ’s decision was based on untimeliness, and thus outside the USCA’s jurisdiction.  Judge Paez agreed that, in this procedural context, the matter should be remanded to the BIA to specify the basis for its decision so that the USCA could determine if it has jurisdiction over Lanza’s asylum claim. However, Judge Paez dissented from the majority’s decision to reach the merits of Lanza’s withholding of removal and CAT claims.  Because the asylum and withholding claims were factually interrelated and, in his view, it would be best to avoid piecemeal resolution of Lanza’s claims, Judge Paez would remand all of her claims to the BIA.  Gould and Paez (dissenting in part), Circuit Judges, and Silver (author), District Judge.  D. Kowalski of Austin, TX, for the petitioner;  P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  CIVIL PROCEDURE:  Pincay v. Andrews, 02-56577 (9th Cir. Nov. 15, 2004).  In this case a law firm missed a critical filing deadline:  the 30-day time period in which to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(1)(A).  The rule, however, provides for a grace period of 30 days within which a lawyer in such a fix may ask the district court for an extension of time, and the court, in the exercise of its discretion, may grant the extension if it determines that the neglect of the attorney is “excusable.”  Here the trial judge found excusable neglect.  A majority of the active non-recused Ninth Circuit judges voted to rehear a prior three-panel decision to consider whether the creation of a per se rule against delegation to paralegals, or any per se rule involving missed filing deadlines, is consistent with the Supreme Court’s leading authority on excusable neglect, Pioneer Investment Services Co. v. Brunswick Associated Ltd. Partnership, 507 US 380 (1993).  The en banc panel held that per se rules are not consistent with Pioneer and that that the district court did not abuse its discretion.  It thus affirmed the district court’s order granting the defendant’s motion for an extension of time to file the notice of appeal.  Concurring, Judge Berzon joined the majority’s opinion in full, but wrote separately to emphasize the two points she thought were dispositive of the case and to explain why she could not agree with an otherwise persuasive dissent.  Dissenting, Judge Kozinski would hold that the error here—whether made by the lawyer or the calendaring clerk—is inexcusable;  he would dismiss the appeal as untimely.  Schroeder (author), Kozinski (dissenting), Rymer, Kleinfeld, Thomas, Silverman, McKeown, Gould, Berzon (concurring), Rawlinson, and Callahan, Circuit Judge.  N. Papiano of Los  Angeles, CA, for the plaintiffs-appellants;  D. Boies of Armonk, NY, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

9)  IMMIGRATION:  Gonzalez-Gonzales v. Ashcroft, 03-71647 (9th Cir. Nov. 29, 2004).  The petitioner, a native and citizen of Mexico, entered the U.S. illegally in 1983.  He later married a U.S. citizen and the couple had three children.  His spouse petitioned for an immediate relative visa on his behalf in 1988, but then did not pursue the matter beyond the initial filing;  the petitioner never obtained a visa or U.S. citizenship.  In 1993, the couple divorced, and he assumed sole custody of the children, which he has since maintained.  On May 2, 2000, he was convicted of “assault in the fourth degree / domestic violence,” stemming from a November 17, 1999 assault on a woman with whom he was in a “family member or household relationship.”  He was incarcerated for 150 days following for this offense.  The INS then served him with a Notice to Appear, charging him with removability pursuant to 8 USC Sec. 1182(a)(6)(A)(I) for entering the U.S. without being admitted or paroled.  He conceded removability, but requested the cancellation of removal pursuant to 8 USC Sec. 1229b(b)(1). The USCA held that an inadmissible alien who has been convicted of a crime of domestic violence is also ineligible for cancellation of removal.  D.W. Nelson and Thomas (author), Circuit Judges, and Ezra, District Judge.  M. Adams of Granger, WA, for the petitioner;  J. Cunningham of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  IMMIGRATION:  Taha v. Ashcroft, 02-73499 (9th Cir. Nov. 19, 2004).  Taha, a native and citizen of Sudan, petitioned for review of a BIA decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture.  Taha claimed that he was persecuted on account of his membership in the Umma political party and opposition to the Sudanese government.  The IJ denied Taha relief, finding that his testimony was not credible.  On appeal, the BIA agreed with the IJ that Taha’s credibility was “hampered” and “degraded.”  As a result, the BIA held that Taha had not demonstrated eligibility for any of the relief he sought.  The USCA granted the petition and remanded.  It concluded that the BIA exaggerated the significance of the “discrepancies” between Taha’s testimony and his asylum application, and that it incorrectly determined that Taha’s testimony was not specific.  Thus, the BIA’s adverse credibility determination was not supported by substantial evidence.  The BIA also erred by failing to independently evaluate Taha’s CAT claim.  Beezer and Kozinski, Circuit Judges, and Schwarzer, District Judge.  Per Curiam.  S. Hasan of Falls Church VA, for the petitioner;  J. Williams of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  IMMIGRATION:  Kaur v. Ashcroft, 02-74196 (9th Cir. Nov. 12, 2004).  Kaur petitioned for review of the BIA’s denial of her application for asylum and withholding of deportation.  She argued that the BIA’s decision was not supported by substantial evidence and that the IJ denied her a full and fair hearing because he did not allow a percipient witness, Kaur’s son, to testify in support of her asylum claim.  The USCA agreed that the IJ denied Kaur a full and fair hearing.  It thus granted the petition for review and remanded to the BIA with instructions to order a new hearing.  Hall, Brunetti, and Graber (author), Circuit Judges.  J. Singh of San Francisco, CA, for the petitioner;  D. Ginsburg of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  IMMIGRATION:  Li v. Ashcroft, 02-72597 (9th Cir. Nov. 19, 2004).  At issue here was whether an alien defendant was removable after conviction for an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000,” 8 USC Sec. 1101(a)(43)(M)(i), even though monetary loss is not an element of the crimes of which he was convicted.  Applying the “modified categorical approach,” the USCA held that the requisite amount of loss is not demonstrated unequivocally by the charging document and the judgment of conviction.  The USCA thus granted the petition for review.  Concurring, Judge Kozinski thought that Judge Graber’s opinion correctly applied the law of the Ninth Circuit, but also that Circuit law is wrong here and needs to be overruled by an en banc court.  Wallace, Kozinski (concurring), and Graber (author), Circuit Judges.  Z. Nightingale of San Francisco, CA, for the petitioner;  J Paisner of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  IMMIGRATION:  Shire v. Ashcroft, 03-70044 (9th Cir. Nov. 18, 2004).  Shire, a native and citizen of Somalia, petitioned for review of a BIA decision affirming an IJ decision which denied Shire’s application for asylum, withholding of removal, and for relief under the Convention Against Torture (“CAT”) based on an adverse credibility finding.  The IJ thus ordered Shire deported.  The BIA affirmed.  However, the USCA granted the petition, finding that Shire’s testimony was detailed, internally consistent, and consistent with his statement accompanying his asylum application.  Overall the record lacked evidence upon which an adverse credibility determination could be made. The USCA thus rejected the adverse credibility determination and deemed Shire credible.  The USCA remanded for the IJ to consider Shire’s withholding and CAT claims.  T.G. Nelson, Tashima (author), and Fisher, Circuit Judges.  B. Connolly of San Jose, CA, for the petitioner;  A. Mai of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  IMMIGRATION:  Morales-Izquierdo v. Ashcroft, 03-70674 (9th Cir. Nov. 18, 2004).  At issue here was whether the reinstatement procedures established by the Attorney General at 8 CFR Sec. 241.8 violated the Immigration and Nationality Act.  Sec. 241.8 vested an immigration officer with the authority to determine the admissibility or deportability of an alien.  The USCA found Sec. 241.8 to be in conflict with Sec. 240(a) of the Act.  It thus granted the petition for review and remanded the case to the Board of Immigration Appeals for further proceedings.  The USCA noted that the plain statutory language, supported by the structure of the legislation, provides that an immigration judge must conduct all proceedings for deciding the inadmissibility or deportability of an alien.  The Attorney General’s promulgation of a regulation vesting that authority in immigration officers conflicted with the statute and was thus ultra vires to INA Sec. 240(a).  D.W. Nelson, Reinhardt, and Thomas (author), Circuit Judges.  R. Pauw of Seattle, WA, for the petitioner;  I. Campbell of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  IMMIGRATION / JUDICIAL NOTICE:  Circu v. Ashcroft, 02-73420 (9th Cir. Nov. 22, 2004).  Circu, a native and citizen of Romania, petitioned for review of a BIA decision denying her claim for asylum, but permitting her to voluntarily depart the United States.  Circu maintained that the IJ and BIA violated her right to due process by relying on the State Department’s 1999 Country Report on Human Rights Practices in Romania, a document never introduced into evidence.  The USCA denied the petition.  Because the IJ found that Circu suffered past persecution, she was entitled to the legal presumption of a well-founded fear of future persecution.  However, the IJ determined that conditions had changed, in part, by taking judicial notice of the 1999 Report, which was published after the hearing before the IJ.  The USCA found that although the IJ should have referenced the 1997 Report, which had been entered into evidence, her reliance on the 1999 Report was a harmless or nonmaterial error that did not amount to an abuse of discretion.  Since it was not an abuse of discretion for the IJ to consider the 1999 Report, the INS successfully rebutted Circu’s presumption of future religious persecution.  Finally, because Circu did not have a well-founded fear of future persecution should she be returned to Romania, the IJ did not err in concluding that she did not qualify for asylum.  As a result, she necessarily failed to satisfy the more rigorous standard for withholding of deportation.  Dissenting, Judge Hawkins thought that what happened in this case would be unimaginable in any civil or criminal court in America:  the immigration equivalent of a trial is held; the record of the proceeding is complete and the trier of fact retires to consider that record and render a decision.  Two years later, without warning or an opportunity to rebut its contents, the judge decides the case based on a document that did not exist at the time of the hearing.  The BIA then ignores a request to remand the case to rebut the evidence.  To approve this result, the majority, Judge Hawkins adds, inexplicably argues that the petitioner had an opportunity to rebut the new evidence, even though it is plain she did not, and ignores Narayan v. Ashcroft, 384 F.3d 1065 (9th Cir. 2004), which requires that the BIA address remand motions of this type.  O’Scannlain, Siler (author), and Hawkins (dissenting), Circuit Judges.  S. Dulberg of San Francisco, CA, for the petitioner;  AUSA P. Keisler of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  IMMIGRATION:  Salvador-Calleros v. Ashcroft, 02-71727 (9th Cir. Nov. 23, 2004).  The petitioner challenged the denial of her application for cancellation of removal.  Specifically, she challenged the IJ’s discretionary hardship determination and the BIA’s decision to streamline her appeal.  She also challenged the constitutionality of the hardship standard applied by the IJ and the constitutionality of the BIA’s streamlining regulations.  Finally, she moved for a stay of removal and voluntary departure pending disposition of her petition for review.  Because it lacks jurisdiction to review either the IJ’s discretionary hardship determination or the BIA’s application of its streamlining regulations to an appeal in which the discretionary hardship determination is the only factor in dispute, the USCA dismissed in part the petition for review.  Because it concluded that the hardship standard applied by the IJ falls within the broad range authorized by statute, and found that the petitioner’s constitutional challenge to the streamlining regulation to be foreclosed by Circuit precedent, the USCA denied the balance of the petition for review.  However, the USCA held that both the motion for stay of removal and the motion for stay of voluntary departure encompassed within it were timely filed.  B. Fletcher (author), Leavy (dissenting in part), and Wardlaw, Circuit Judges.  A. Vazquez of Pasadena, CA, for the petitioner;  F. Isgro of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  CRIMINAL LAW:  USA v. Smith, 04-50046 (9th Cir. Nov. 23, 2004).  Smith entered a conditional guilty plea to the charge of knowing possession of counterfeit currency which the police was found in a wallet in the backseat of the car Smith was driving when stopped for speeding;  he reserved the right to appeal the district court’s denial of his pre-trial motion to suppress evidence.  On appeal, he argued that the district court erred in (1) reversing its initial grant of his motion to suppress, (2) denying the motion to suppress, and (3) applying an incorrect standard of review to adjust his sentence.  The USCA affirmed the district court.  First, a district court may reconsider its prior rulings so long as it retains jurisdiction over the case, as was the case here.  Second, the USCA concluded that the search was a valid search incident to arrest because, at the time of the search, the officers had probable cause to arrest Smith, and the search was roughly contemporaneous with his arrest.  Third, because Smith waived “any right to appeal or collaterally attack the conviction and sentence,” the USCA did not reach Smith’s contention that the district court erred in applying the preponderance of evidence rather than the clear and convincing evidentiary standard.  Judge Wardlaw concurred in the judgment.  However, she thought the majority had announced a new rule that muddied an area of Fourth Amendment jurisprudence which the Supreme Court has said must be clear, and in so doing rendered a decision that was inconsistent with prior Ninth Circuit law:  by holding that, in some not fully delineated circumstances, a warrantless search of a vehicle incident to an arrest may precede the arrest, the majority requires police officers to consider both whether a pre-arrest automobile search is sufficiently contemporaneous with the arrest, and whether probable cause precedes the search, even if an arrest does not.  Thompson, Silverman, and Wardlaw (concurring), Circuit Judges.  Per Curiam.  M. Petrik of San Diego, CA, for the defendant-appellant;  AUSA K. Mulcahy of San Diego, CA, for the plaintiff-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  CRIMINAL LAW / EVIDENCE:  USA v. Washington, 02-10526 (9th Cir. Nov. 2, 2004).  The USCA reversed the defendant's conviction for being a felon in possession of a firearm where the district court had improperly denied the defendant's motion to suppress evidence after police officers' violated the defendant's Fourth Amendment rights on four separate occasions during their encounter with the defendant;  a seizure can occur when a person is confronted by six officers, five of whom are uniformed and visibly carrying weapons, and all six of whom are “around” him, moved him away from the door to his residence and refused to heed his request to shut the door to his residence;  the USCA also concluded that the defendant’s written consent to search his room, the officers’ discovery of his gun, and his confession to owning that gun were tainted by the four constitutional violations and that the district court should have granted the defendant’s motion to suppress.  Judge Beam, without comment, concurred in the result reached by the majority.  Pregerson (author), Beam (concurring), and Paez, Circuit Judges.  AFPD C. Hahn of Reno, NV, for the defendant-appellant;  AUSA C. Denney of Reno, NV, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  EVIDENCE:  USA v. Mann, 03-30432 (9th Cir. Nov. 19, 2004).  Mann and Pollender were each convicted in a jury trial of three counts of conspiring to manufacture methamphetamine, possessing with the intent to distribute methamphetamine, and possessing listed chemicals with the intent to manufacture methamphetamine.  They were also each convicted of possessing an unregistered “pen gun” in violation of 26 USC Secs. 5861(d) and 5845(e);  in addition, Pollender was convicted of possessing two firearms while being a convicted felon.  Both men also were convicted of two counts of possessing a firearm in furtherance of their drug trafficking conspiracy, in violation of 18 USC Sec. 924(c).  Pollender appealed the district court’s denial of his timely motion to suppress evidence seized during a search of his rural campsite, alleging that, despite his repeated requests, the searching officers failed to present him with a copy of the search warrant at the scene.  In the alternative, he argued that the evidence should be suppressed because the search warrant violated the Fourth Amendment’s particularity requirement.  Both Mann and Pollender appealed the district court’s denial of their motions for acquittal on the grounds that the evidence introduced at trial was insufficient to support a conviction on the charge that they each possessed two firearms in furtherance of their drug trafficking conspiracy.  Because the USCA concluded that insufficient evidence was introduced at trial to demonstrate that the appellants’ firearm possession was “in furtherance of” their drug trafficking crime, it reversed. The USCA otherwise affirmed.  Schroeder, Tashima, and Bybee (author), Circuit Judges.  D. Duke of Billings, MT, for the appellant;  J. Singdahlsen of Washington for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  EVIDENCE:  USA v. Garcia-Beltran, 03-30162 (9th Cir. Nov. 18, 2004).  Garcia-Beltran appealed from a judgment of conviction following a conditional plea of guilty to illegally reentering the United States in violation of 8 USC Sec. 1326(a) and (b)(2).  Prior to his guilty plea, Garcia-Beltran moved to suppress all evidence gathered as a result of his “illegal” arrest, including “identity evidence,” which he described as fingerprints, statements and photographs.  Although Garcia-Beltran sought to suppress all such evidence, his motion focused on fingerprint exemplars taken from him shortly after his arrest.  In opposing the motions, the government conceded that the police did not have probable cause to arrest Garcia-Beltran, but argued that the identity evidence did not implicate the Fourth Amendment and thus was not subject to suppression.  The district court agreed and denied the motion.  As permitted by his conditional plea agreement, Garcia appealed this ruling.  The USCA held that the district court erred to the extent it failed to consider the fingerprint evidence separately.  It remanded for an evidentiary hearing so that the district court could make factual findings regarding the appellant’s fingerprinting.  If on remand the court determines that the fingerprints were taken for an “investigatory” purpose (i.e., to connect Garcia-Beltran to alleged criminal activity), then the fingerprint exemplars should be suppressed.  The USCA thus vacated the judgment and remanded for further proceedings.  Trott. Paez (author), and Berzon, Circuit Judges.  AFPD N. Bergeson of Portland, OR, for the defendant-appellant;  AUSA F. Noonan of Portland, OR, for the plaintiff-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  CONFRONTATION CLAUSE:  USA v. Schoneberg, 03-30127 (9th Cir. Nov. 17, 2004).  Schoneberg was charged in an 11-defendant indictment with participating in a marijuana-distribution and money-laundering conspiracy.  However, he was tried alone.  Woodbury, the undisputed head of the group, had pled guilty and been sentenced pursuant to a plea bargain to serve a little under four years.  His bargain reserved the possibility of a sentence reduction after his testimony against his co-conspirators.  In Schoneberg’s trial, Woodbury and a third conspirator who had also pled guilty pursuant to a plea bargain, and also Schoneberg’s ex-fiancée all testified for the government.  The case turned on whether the jury believed Woodbury or Schoneberg.  Schoneberg got Woodbury’s plea agreement into evidence, but was not permitted to cross examine Woodbury about whether his testimony was affected by the government’s promise to move for a sentence reduction if his testimony satisfied the government.  The trouble began when the defense kept insisting that the government and not the jury would determine Woodbury’s credibility.  Defense counsel was unsuccessful in persuading the district judge that he was entitled to explore Woodbury’s incentive to please the government.  He did, however, get Woodbury to admit he had a motive to testify against Schoneberg in order to get his “Rule 35 motion.”  The jury convicted Schoneberg on both counts.  He was sentenced to serve 78 months of imprisonment. Woodbury had received only 42 months.  On appeal, the USCA noted that Schoneberg’s inquiry was cut off, and that the judge’s emphatic admonitions that the jury and not the prosecutor would judge whether Woodbury was telling the truth vitiated the predicate that Schoneberg’s counsel had laid down.  The USCA was thus unable to place the ruling within the area of permissible discretion.  Though constitutional error had been established, it was not suffi-cient to compel a result.  But, the USCA could not conclude that the error here was harmless, particularly because Schoneberg testified and gave a possible and not implausible account.  It was plausible that, as the government would have it, Schoneberg was plainly and simply a marijuana dealer working for Woodbury.  But Schoneberg’s account was also plausible.  He could have sold small quantities of marijuana that Woodbury had sold him some years before, but not since. He could have been merely an enthusiastic marijuana user who enjoyed almost half a pound of marijuana with his girlfriend, but did not sell any.  The case turned on who was telling the truth, Woodbury or Schoneberg, and the judge’s rulings and admonitions left the jury completely understanding Schoneberg’s motivation to lie, but not fully informed about Woodbury’s.  The USCA thus reversed.  D.W. Nelson, Kleinfeld (author), and Fisher, Circuit Judge.  P. Hoovestal of Helena, MT, for the appellant;  AUSA J. Sykora of Billings, MT, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

22)  JURY INSTRUCTIONS / SEX CRIMES / CIVIL COMMITMENT:  Brock v. Seling, 02-35444 (9th Cir. Nov. 22, 2004).  This habeas appeal challenged jury instructions regarding the mental condition required to support civil commitment under the Sexually Violent Predator’s Act (“SVPA”).  Brock, civilly committed as a sexually violent predator, argued that the jury instructions supporting his commitment failed to satisfy due process requirements detailed in Kansas v. Crane, 354 US 407 (2002.  The state responded that Brock’s due process argument was not properly exhausted in state court nor raised in district court and that the jury instructions satisfied Crane’s requirement that a person convicted under the SVPA be shown to suffer “serious difficulty” controlling dangerous behavior.  The USCA held that the jury instructions met Crane’s requirements despite the omission of the phase “lack of control.”  Because the U.S. Supreme Court does not require a fact finder to make specific determinations of “lack of control” or “volitional impairment” before ordering civil commitment of a sexually violent predator, Brock’s habeas petition had been properly denied.  Schroeder, Browning, and Tashima, Circuit Judges.  Per Curiam.  M. Sun of Los Angeles, CA, for the petitioner; C. Gregoire of Olympia, WA, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  CONFRONTATION CLAUSE:  Parle v. Runnels, 02-16896 (9th Cir. Nov. 1, 2004).  The USCA held that the non-testimonial diary of an unavailable declarant may be admitted into evidence over a Confrontation Clause objection if an examination of the diary itself and the circumstances surrounding its creation indicate that the diary contains particularized guarantees of trustworthiness.  Hall (author) and O’Scannlain, Circuit Judges, and Beistline, District Judge.  M. Buchanan of San Diego, CA, for the petitioner;  DAG B. Ortega of San Francisco, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  CRIMINAL LAW / EVIDENCE / SENTENCING:  USA v. Padilla, 02-50636 (9th Cir. Nov. 2, 2004).  The USCA upheld the defendant's conviction for being a felon in possession of a firearm over his challenges that the district court erred by (1) not granting his motion for a new trial, (2) admitting statements made to police, and (3) admitting expert testimony relating to gang behavior.  His conviction was not affected by a subsequent order vacating the predicate state felony conviction.  However, in the interest of judicial economy, the USCA remanded so that the district court could address in the first instance sentencing issues raised by Blakely v. Washington, 124 S.Ct. 2531 (2004).  Wallace, Canby (author), and Thomas, Circuit Judges.  DFPD C. Gunn of Los Angeles, CA, for the defendant-appellant;  AUSA W. Bottger of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  EVIDENCE / SENTENCING:  USA v. Sandoval, 03-30486 (9th Cir. The Memo decision of Aug. 19, 2004 has been redesignated a published decision dated Nov. 19, 2004).  Sandoval pleaded guilty to being a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1).  He challenged the district court’s denial of his motion to suppress the evidence and his sentence.  The USCA affirmed the denial of the motion to suppress the evidence, but remanded for resentencing because the sentence enhancement was based on an incorrect judgment that Sandoval’s prior guilty plea to third-degree assault in Washington constituted a conviction of a crime of violence.  Under the categorical approach set forth in Taylor v. USA, 495 US 575, 602 (1990), third-degree assault in Washington does not qualify as a crime of violence as that term is defined in U.S. Sentencing Guideline Sec. 4B1.2.  Under Washington law, it is possible to commit third-degree assault through an unlawful touching that does not involve substantial physical force or seriously risk physical injury.  Consequently, that crime is not categorically a crime of violence.  Under the modified categorical approach, the information, plea agreement, and judgment in the record did not exclude the possibility that Sandoval’s guilty plea to third-degree assault was for conduct that did not involve substantial physical force and did not seriously risk physical injury.  The USCA thus concluded that Sandoval’s prior guilty plea did not constitute a crime of violence under either the categorical or the modified categorical approach, and that Sandoval’s sentence was improperly enhanced.  Hall (author), Kleinfeld, and Callahan, Circuit Judges.  A. Walstrom of Yakima, WA, for the appellant;  J. Hagarty of Yakima, WA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  SENTENCING:  USA v. Vargas-Amaya, 03-50577 (9th Cir. Nov. 22, 2004).  The defendant appealed the district court’s revocation of his term of supervised release and imposition of an additional sentence;  he maintained that the district court lacked jurisdiction under 18 USC Sec. 3583(i) to revoke his supervised release.  The USCA held that the district court lacked jurisdiction to consider the alleged violations of supervised release because the warrant issued during the term of the defendant’s supervised release was not based on facts supported by oath or affirmation, as required by the Fourth Amendment.  T.G. Nelson, Tashima (author), and Fisher, Circuit Judges.  A. Krueger of San Diego, CA, for the defendant-appellant;  AUSA R. Bunker of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  HABEAS CORPUS:  Gantt v. Roe, 99-55477 (9th Cir. Nov. 22, 2004).  The petitioner was convicted of murder and robbery in state court and sentenced to life in prison without possibility of parole.  The most significant claim in his habeas petition was that the prosecution failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 US 83 (1963).  The USCA reversed and remanded so that the district court might determine whether the state disputes that the prosecution failed to disclose that neither Khan nor Ferdous, both potentially holding relevant evidence, recognized the victim’s photos.  If the state does not dispute this, the district court shall hold an evidentiary hearing and resolve the dispute.  If the petitioner’s claim that this evidence was not disclosed is either conceded or found to be true, the district court shall issue a conditional writ of habeas corpus ordering that the petitioner be released unless he is retried within a reasonable time to be set by the district court.  Hall, Kozinski (author), and Rawlinson, Circuit Judges.  G. Simon of Los Angeles, CA, for the petitioner;  B. Lockyer of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  HABEAS CORPUS:  Lewis v. Mayle, 03-16152 (9th Cir. Nov. 29, 2004).  This case involves a murder that only one of two people could have committed:  the appellant, Lewis, or his nephew, Berg.  Lewis was convicted of second degree murder and sentenced to an aggregate term of 95 years to life.  Berg served as the primary witness for the prosecution.  Despite the antagonistic positions of the two men, Lewis was represented at trial by a lawyer who had represented Berg on another mater immediately prior to undertaking Lewis’ defense.  Lewis maintains that his successive representation presented a conflict of interest that adversely affected his defense.  The California Court of Appeal rejected Lewis’ conflict of interest claim and affirmed the judgment.  The U.S. District Court denied his federal habeas petition.  The USCA reversed and remanded with directions to grant the habeas petition.  It noted that the potential for a severe conflict of interest in this case was readily apparent from the outset.  The state trial judge should never have let a conflicted attorney represent Lewis.  Moreover, Lewis showed that the potential conflict did in fact develop into an actual conflict of interest that adversely affect his representation.  The state court’s decision rejecting the claim was an unreasonable application of clearly established federal law.  Ferguson (author), Reinhardt, and Paez, Circuit Judges.  J. Toney of Woodland, CA, for the petitioner-appellant;  DAG C. Tennant of Sacramento, CA, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  HABEAS CORPUS:  Rios v. Garcia, 03-55072 (9th Cir. Nov. 15, 2004).  The USCA reversed the district court’s grant of a conditional writ of habeas corpus in this case because the California Superior Court’s decision affirming the petitioner’s sentence was not contrary to or an unreasonable application of clearly established federal law.  The USCA noted that it is barred from affirming issuance of the writ on the alternative Sixth Amendment grounds asserted by the petitioner in his cross-appeal because he had not been granted a certificate of appealability as to those issues.  Canby, Hansen, and Rawlinson (author), Circuit Judges.  DAG Q. Shum of San Diego, CA, for the respondent-appellant;  D. Jarcho of Washington, DC, for the petitioner-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  HABEAS CORPUS / DOUBLE JEOPARDY:  Stow v. Murashige, 03-17036 (9th Cir. Nov. 19, 2004).  After being tried in state court for attempted murder arising out of Stow’s alleged separate machete attacks on two homeless men over disputes involving alcohol, the jury returned a verdict of guilty on the charge of attempted first degree murder.  It also returned “Not Guilty” verdicts on the two counts of attempted second degree murder.  The trial court entered judgment on the guilty verdict and sentenced Stow.  Neither the court nor counsel questioned the propriety of the jury’s not guilty verdicts on the charges of attempted second degree murder;  however, the record does not reflect whether counsel or the court were aware that the jury had written “Not Guilty” on verdict form next to those two counts before the court entered judgment.  On direct appeal, the Hawaii Supreme Court reversed the jury’s judgment of conviction of attempted first degree murder.  However, it held that the not guilty verdicts on the two counts of attempted murder did not, in substance, constitute acquittals and thus the state could retry Stow for attempted second degree murder without subjecting him to double jeopardy.  Following remand by the Hawaii Supreme Court, but before the retrial began, Stow, pursuant to 28 USC Sec. 2244, sought federal habeas relief on the ground that a retrial on the charges of attempted second degree murder would violate his Fifth Amendment right against double jeopardy.  The district court granted Stow’s petition and the state appealed.  The USCA held that Stow’s habeas petition was properly considered under 28 USC Sec. 2241, not Sec. 2254, because at the time Stow filed his petition he was not “in custody pursuant to the judgment of a State court.”  Thus, to obtain habeas relief, Stow had only to show that a retrial would violate his right against double jeopardy.  The USCA further held that the jury's "Not Guilty” verdicts created a double jeopardy bar to Stow’s impending retrial on the charges of attempted second degree murder.  To do otherwise, and allow an appellate court over six years later to speculate whether the jury really meant to acquit when it wrote “Not Guilty,” would create an unwarranted exception to the “fundamental” and “absolute” rule of double jeopardy that a jury’s verdict of acquittal is final.  The USCA thus affirmed.  Fernandez, Paez (author), and Rawlinson, Circuit Judges.  D. Tengan of Maui, HI, for the respondent;  P. Wolff of Honolulu, HI, for the petitioner.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  INTELLECTUAL PROPERTY / DAMAGES:  Chieco v. Willis & Geiger, 01-16926 (9th Cir. Nov. 17, 2004) (unpublished).  Rymer, Tallman, and Bea, Circuit Judges. 


        Chieco, an independent copywriter, successfully sued Lands’ End and Willis & Geiger, a new defunct subsidiary of Lands’ End for copyright infringement.  The jury awarded Chieco zero dollars in actual damages and $32,000 in statutory damages.  Chieco appealed.  The USCA affirmed.

        First, Chieco maintained that the district court abused its discretion by denying his Federal Rule of Civil Procedure 50(b) motion for judgment as a matter of law.  Because Chieco made no Rule 50(a) motion at the close of all the evidence, the district court was within its discretion to deny his Rule 50(b) motion.  Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426, 1428 (9th Cir. 1986).  Second, Chieco also argued that the district court abused its discretion in refusing to instruct the jury on vicarious infringement, contributory infringement, and imputed knowledge.  Because there was no record evidence that Willis & Geiger employees knew of the infringement or had any ability to control the infringing activities, all three requested instructions were properly refused.  Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996) (contributory infringement requires knowledge of the infringing activities).  Id. at 262 (vicarious liability requires that the individual have the right and ability to supervise the infringing activity). Third, Chieco appealed the district court’s admission of testimony from Dr. Lynde, Lands’ End’s expert witness.  Although the required procedure when objection is made to the propriety of an expert witness is to make a determination of reliability on the record for any witness offered under Federal Rule of Evidence 702 or 703, even assuming that the district court did not make the required determination, any error on this record was harmless.  The jury did not accept Lynde’s expert testimony regarding Chieco’s claimed actual damages, and awarded zero damages.  Fourth, Chieco argued that the district court made certain statements that prejudiced him and improperly influenced the jury’s damages award. To the contrary, the record indicated that the district court exhibited exemplary patience during a complicated two-week trial.  Moreover, Chieco’s argument was predicated on a mischaracterization of the district court’s judge’s statement that had no prejudicial effect on Chieco.  Kern v. Velolor Lorentzen, Inc., 899 F.2d 772, 780 (9th Cir. 1990) (judicial comments that may be misunderstood out of context are not necessarily prejudicial).  In any event, the district court judge clarified his statements, curing any possible prejudicial effect.  In addition, Chieco argued that the district court erred by omitting a line from the special jury verdict form regarding the calculation of actual damages.  The special verdict form was an accurate statement of the law.  There was no error.  Finally, on cross-appeal in a consolidated case, the district court did not abuse its discretion in denying each party its attorneys’ fees.

2)  INTELLECTUAL PROPERTY:  Laparade v. Ivanova, 02-56222 (9th Cir. Nov. 5, 2004) (unpublished).  Thompson, Silverman, and Wardlaw, Circuit Judges.

      These consolidated appeals involve a dispute between Ivanova, individually and as Executor of the Estate of Reyes,  and Columbia Pictures over the rights to Spanish language motion pictures starring Ivanova’s deceased father Cantinflas.  Columbia’s and Ivanova’s competing claims to ownership of the worldwide intellectual property rights and related rights in Cantinflas motion pictures were litigated before District Judge Rea in a three-phase bench trial.  After conducting the second phase of the trial, Judge Rea permanently enjoined Ivanova from licensing, distributing, marketing or otherwise exploiting or benefiting from 34 Cantinflas motion pictures.  In violations of the injunction, Ivanova licensed certain motion pictures for DVD release and refused to turn over film elements as ordered by the court.  The court held Ivanova in contempt and ordered him to appear and pay daily fines.  Ivanova failed to do so and the court issued a warrant for his arrest.  Ivanova has not surrendered to the court nor has the presented himself for arrest.  Within weeks of the entry of judgment in the trial before Judge Rea, Ivanova filed a “new” action against Columbia, which was assigned to Judge Tevrizian.  In this “new” action, Columbia filed counterclaims and a motion for sanctions under Rule 11, arguing that Ivanova’s claims were barred by the judgment previously entered by Judge Rea.  In an order filed June 9, 2003, Judge Tevrizian determined that the bulk of Ivanova’s claims were indeed barred, and struck those claims.  Judge Tevrizian awarded Rule 11 sanctions in favor of Columbia and against Ivanova and his counsel for having filed the barred claims.  The sanctions were in the sums of $38,651.75 for attorney fees and $857.52 for costs.  In determining the amount of the attorney fees award, the court reduced the hourly rates claimed by Columbia’s attorneys, and reduced the number of billed hours by 50%.  Thereafter, Ivanova’s counsel failed to appear at a scheduling conference to deal with the copyright claims that remained in the case.  As a sanction, Judge Tevrizian ordered judgment entered against Ivanova on those remaining claims.  The court also ordered judgment entered in favor of Columbia on its counterclaims.  Ivanova moved for relief under Federal Rule of Civil Procedure 60(c), arguing that counsel’s failure to attend the scheduling conference was due to excusable neglect.  The court denied the motion.  The final judgment entered by Judge Tevrizian contained a permanent injunction which provided that “Ivanova shall immediately withdraw and/or cause to be withdrawn any registrations or filings whereby the Estate claims ownership of any rights, including copyrights, in any of the 34 Pictures.”  Ivanova’s requests, filed in the district court and in the USCA, for a stay of the injunction were denied.  Ivanova failed to comply with the injunction issued by Judge Tevrizian.  He refused to withdraw the registration by which he claimed ownership of the 34 Cantinflas motion pictures and notified the court that he would not withdraw the Mexican copyright.  As a result, he was held in contempt by Judge Tevrizian and a warrant was issued for is arrest.  Consistent with his response to the arrest warrant issued by Judge Rea, Ivanova failed to surrender or present himself for arrest pursuant to the warrant issued by Judge Tevrizian.  Ivanova appealed Judge Rea’s judgment on three grounds:  First, he argued that the district court lacked personal and subject matter jurisdiction. Second, he argued that the district court erred in limiting phase two of the trial to U.S. contract law.  Third, he argued that the district court’s extraterritorial injunction was an abuse of discretion.  In the second consolidated case, Ivanova and his attorney each appealed Judge Tevrizian’s Rule 11 sanctions order.  Ivanova also appealed the judgment.  In the third consolidated case, Columbia appealed Judge Rea’s failure to order disgorgement of money Ivanova received from licensing Cantinflas motion pictures in Mexico.

      The USCA found that the district court had subject matter jurisdiction pursuant to 17 USC Sec. 104A and 28 USC Sec. 1338(a).  Personal jurisdiction existed over Ivanova in the case before Judge Tevrizian because Ivanova was the plaintiff in that case. In the case before Judge Rea, personal jurisdiction existed over Ivanova because he made a general appearance by actively participating in the trial.  Ivanova called witnesses, adduced evidence probative of the merits, and made numerous motions on the merits including a motion for summary judgment.  Columbia argued that Ivanova’s appeal of Judge Rea’s judgment and of Judge Tevrizian’s sanctions order and judgment should be dismissed under the fugitive disentitlement doctrine.  The USCA agreed.  Under that doctrine, a court may dismiss a civil appeal where the party seeking relief is a fugitive from justice.  Ivanova has refused to abide by the district court’s orders, and has refused to surrender to the warrants issued for his arrest.  He is a fugitive from justice.  The USCA thus dismissed Ivanova’s appeals.  Because there is an identity of interest between Ivanova and the Estate of Reyes (Ivanova is the executor of the Estate and claims to be the sole heir), the USCA concluded that the Estate must share the same fate.  The USCA thus dismissed the Estate’s appeals.  Ivanova is precluded by the fugitive disentitlement doctrine from challenging Judge Tevrizian’s Rule 11 sanctions imposed against him.  Ivanova’s counsel is not so precluded, but the USCA affirmed the sanctions order against him on the merits.  The contract claims resolved by Judge Rea determined that Columbia owned all of the right, title and interest in 28 of the Cantinflas motion pictures.  This foreclosed a new attempt to obtain the same rights in the guise of copyright claims filed in the “new” action before Judge Tevrizian.  Although there were some claims in the new filing that were not precluded by Judge Rea’s judgment, the claims that were precluded were substantial, formed the nucleus of the claims disputed by the parties, and supported the district court’s award of Rule 11 sanctions.  The USCA thus affirmed Judge Tevrizian’s imposition of those sanctions against Ivanova and his counsel.  The USCA declined to reduce the amount of the sanctions, or to remand to the district court for it to consider a reduction. The district court had already made a substantial reduction in the hourly rate and the number of hours claimed by Columbia’s attorneys. 

       Columbia also argued that Judge Rea erred by declining to order disgorgement of the money Ivanova received from licensing Cantinflas motion pictures in Mexico.  Disgorgement is an equitable remedy and a district court has broad discretion in deciding whether to employ it.  Here, Columbia offered no reason why it cannot pursue its disgorgement claim in the courts of Mexico and obtain such legal relief as to which it may be entitled.  Thus, from what appeared in the record, Columbia had an adequate remedy at law that it could pursue.  The district court’s failure to include in its judgment an express ruling on the disgorgement claim did not mean the court overlooked the claim.  The claim was presented to the court, and by not granting it, the court denied it.  The USCA concluded that the district court did not abuse its discretion by declining to order disgorgement.

3)  ENVIRONMENTAL LAW: Lathan v. Vermillion, 03-55291 (9th Cir. Nov. 24, 2004).  (unpublished)  Fernandez, Silverman, and Callahan, Circuit Judges. 

      The Lathans, husband and wife owners of several environmental businesses, including Chemtrans, a liquid bulk materials transportation company, appealed the district court’s grant of summary judgment for Vermillion, a fire captain employed by the County of Los Angeles.  On appeal, the Lathans maintained that the district court erred when it held that their civil rights actions under 42 USC Sec. 1983 and other federal statutes were barred by the applicable one-year statute of limitations.  The USCA affirmed.

       Vermillion came to the Lathans’ place of business on July 29, 1996, and again on June 5, 1997, with a fire crew to investigate complaints of noxious odors.  The Lathans alleged that thereafter they were subjected to repeated and continuous visits, inspections, and raids by the Los Angeles Country Fire Department, including an August 14, 1997, raid, which involved 30 state and federal agencies.  During the raid, the plaintiffs were presented with a search warrant based on an August 9, 1997 affidavit by Ann Ialli, a Hazardous Substances Scientists for the Department of Toxic Substances Control.  On July 24, 1997, Vermillion filed a personal injury action against the Lathans, alleging that he was injured during his inspection of the Lathans’ facilities on July 29, 1996.  In January 1998, the Lathans were able to examine the affidavit forming the basis of the August 9, 1997, search warrant, which purportedly gave notice to them that Vermillion had allegedly made accusations against them giving rise to their scrutiny by government agencies.  Although the Lathans maintained that the personal injury suit was fraudulent, the suit was settled.  On January 22, 1999, the Lathans sued Vermillion and some John Does for violation of their First, Fourth and Fourteenth Amendment rights.  They alleged that they were subjected to unreasonable searches and seizures as a result of Vermillion’s allegations.  Vermillion moved for summary judgment under Fed. R. Civ. P. 56 alleging, among other things, that the Lathans’ causes of actions were time-barred.  The district court agreed and granted summary judgment.  On appeal, the Lathans argued that the district court erred by not tolling the statue of limitations because they could not have discovered Vermillion’s identity as a potential wrongdoer sooner than January 1998, when they read Ialli’s affidavit, which contained references to Vermillion.  The USCA noted that in Sec. 1983 cases, it borrows the forum state’s statute of limitations and tolling rules unless they are inconsistent with the federal policy underlying the cause of action under consideration.  The USCA found no California authority holding that an applicable statute of limitations is tolled unless both the cause of action and the identity of a wrongdoer have been discovered.  However, even assuming that California law would toll the statute of limitations if the identity of a potential defendant is unknown, California law requires that a plaintiff do more than wait for a wrongdoer’s identity emerge.  The doctrine of “delayed discovery” requires that a plaintiff plead facts showing that he was not at fault for failing to discover the underlying cause of action or “had no actual or presumptive knowledge of facts sufficient to put him on inquiry.”  Prudential Home Mortgage Company v. The Superior Court of Orange County, 66 Cal. App. 4th 1236, 1247 (1998).  The Lathans were on inquiry notice of Vermillion’s identity over a year before they filed suit in January, 1999.  During one of the 1996 inspections, Vermillion personally accused Lathan of spilling toxic chemicals and told Lathan that “I report what I saw.”  Vermillion also filed a personal injury action alleging toxic injury against the Lathans in July of 1997.  The Lathans were also aware of the identities of the various state and federal agencies involved in the investigations and did not allege that they made any effort to discover the source of the allegations against them by inquiring to these agencies.  The USCA thus affirmed the district court’s grant of summary judgment on the statute of limitations ground.

4)  BANKRUPTCY:  In re Sun World International, Inc., 04-55723 (9th Cir. Nov. 10, 2004) (unpublished).  Fernandez, Silverman, and Callahan, Circuit Judges. 

       OZ Master Fund, Ltd. And OZF Credit Opportunities Master Fund, Ltd. (the appellants), unsecured creditors of Sun World, appealed from the district court’s affirmance of the bankruptcy court’s approval in Sun World’s chapter 11 bankruptcy proceeding of an initial settlement of claims by Cadiz, Inc., the holder of all of Sun World’s outstanding stock.  The USCA affirmed the bankruptcy court’s approval of the initial settlement.  In rejecting the appellant’s arguments, the USCA found that (1) there was an adequate record before the bankruptcy court, (2) the record reflects that the bankruptcy court considered the requisite factors, and (3) the bankruptcy court did not abuse its discretion in approving the initial settlement.  See In re Castillo, 297 F.3d 940, 945 (9th Cir. 2002) (a bankruptcy court’s exercise of discretion will not be disturbed absent “a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” (quoting In re Eisen, 31 F.3d 1447 (9th Cir. 1994)

5)  BANKRUPTCY:  In re Cool Fuel, Inc., 03-55473 (9th Cir. Nov. 24, 2004) (unpublished).  Fernandez, Silverman, and Callahan, Circuit Judges. 

       The California State Board of Equalization (“The Board”) appealed the dismissal on summary judgment of its claim against Cool Fuel, a licensed fuel wholesaler, for unpaid use taxes and pre-petition interest on diesel fuel sold during 1993.  The USCA reversed the bankruptcy court’s order of summary judgment in favor of Cool Fuel and remanded the case to the bankruptcy court with instructions to enter summary judgment in favor of the Board.

       In 1993, Hill, a vice president and salesman for Cool Fuel, sold 11 million gallons of diesel fuel to retailers.  Under California Revenue & Taxation Code Sec. 8736 (repealed by Stats. 1994, Chap. 912, Sec. 8, effective Sept. 27, 1994, operative July 1, 1995), a sale of diesel fuel was a taxable “use” of the fuel that was due and payable upon the delivery of a wholesaler’s fuel to a retailer.  Hill led Cool Fuel to believe he was selling the fuel to Sunshine Western, a licensed wholesaler, in tax-free transactions, but instead sold the fuel under the name of High Desert, a shell corporation operated by himself and others, to service station retailers.  It was not disputed that Hill paid Cool Fuel for the cost of the fuel and its profits, but kept the taxes instead of remitting them to the Board.  Following an investigation by a Board auditor, the Board made an initial deficiency determination that Cool Fuel owed $2,514,284 in taxes and interest.  Litigation of the matter was treated as an adversary proceeding, and after extensive discovery, the parties filed cross-motions for summary judgment.  On April 8, 2002, the bankruptcy court granted summary judgment for Cool Fuel, denied the Board’s motion for summary judgment, and disallowed the Board’s claim for unpaid fuel taxes.  The Board appealed to the district court, which affirmed the bankruptcy court.  On the Board’s appeal, the Board maintained that the bankruptcy court erred in holding that Cool Fuel was not liable for taxes on the sales of fuel to retailers because Hill sold the fuel, not Cool Fuel.  The USCA found the Board’s argument to be sound.  It was not disputed that the fuel was sold by Hill to retailers, that Hill paid Cool Fuel its costs and profits from these sales, and that Hill kept the taxes instead of remitting them to the Board.  Cool Fuel was liable for the transactions of Hill, its agent, committed within the scope of his employment with the company.  Although the bankruptcy court relied on responses by the Board to Requests for Admission under Fed. R. Civ. P. 36 to conclusively establish that Cool Fuel did not sell fuel to retailers, the admissions at most established that Hill deceived parties at both ends of the fuel transactions as to the identity of the buyers and sellers.  The mere fact that Hill may have used a sham corporation to deceive parties at both ends of the transactions as to the true identities of the buyers and sellers did not relieve Cool Fuel of its tax obligations.  Cool Fuel argued, however, that it was not liable for the taxes because Hill acted as a dual agent, serving both buyer and sellers, without Cool Fuel’s knowledge.  This argument lacked merit.  A principal that “puts an agent in a position that enable the agent, while apparently acting within his authority, to commit a fraud upon third persons is subject to liability to such third person for the fraud.” Reusche v. California Pacific Title Company, 231 Cal. App. 731, 738 (1965).  Cool Fuel also argued that it could avoid tax liability because Hill allegedly embezzled the fuel.  The USCA disagreed.  Cool Fuel relied primarily upon a 1967 letter-form opinion from the Board, which held that a certain type of embezzlement by an employee did not result in taxable income to the employer.  But here Hill paid Cool Fuel for the diesel fuel.  If Hill may be said to have “embezzled” anything, it was cash in the form of the use tax collected from the retailers.  But, the 1967 letter-form opinion states that it does not apply to the embezzlement of cash.  The USCA thus reversed the bankruptcy court’s order of summary judgment in favor of Cool Fuel and remanded the matter to the bankruptcy court with instructions to enter judgment in favor of the Board and that each party bear its own costs.

6)  BANKRUPTCY:  In re Catambay, 02-56903 (9th Cir. Nov. 5, 2004) (unpublished).  B. Fletcher, Pregerson, and Brunetti, Circuit Judges. 

      The USCA found that Marilyn Ting signed an enforceable Assignment of Proceeds that allowed Catambay to collect the life insurance proceeds at issue in this case.  Under that Agreement, Catambay was to receive the proceeds and “make such distributions in the manner as I [Ms. Ting] have previously agreed with Ms. Catambay.”  But, the USCA found no record evidence as to the terms of the distribution agreement referenced in the Assignment of Proceeds.  In the absence of such evidence, the USCA found no proper support for the bankruptcy court’s chosen distribution of the proceeds.  The USCA thus reversed and remanded for further factual development by the bankruptcy court as to the existence and terms of the distribution agreement between Catambay and Ting.

7)  BANKRUPTCY:  In re Radden, 03-55104 (9th Cir. Nov. 23, 2004) (unpublished).  Fernandez, Silverman, and Callahan, Circuit Judges. 

      Charles Montgomery and Kirkwood Development, Inc., appealed the Bankruptcy Appellate Panel’s decision which, for the most part, affirmed the bankruptcy court’s determination that a purchase money deed of trust in favor of United International Mortgage and Investment, Inc., had priority over their judgment liens.  The USCA agreed with the BAP and affirmed the bankruptcy court in part, but vacated in part on account of mootness.  First, the bankruptcy court did not err when it determined that United had priority.  Under California law, purchase money deeds of trust have priority over general judgment liens previously filed against a debtor.  Cal. Civ. Code Sec. 2898(a).  It is apparent that United was a purchase money lender. Even if there is a “good faith” requirement before a purchase money lien has priority, that is satisfied when, as here, the lender advanced the money and that money was actually used for purchase money purposes.  Second, the USCA agreed with the bankruptcy court and the BAP that on the record of this case there is no basis for holding United responsible to Montgomery and Kirkwood for wrongdoing by United employee.  That wrongdoing enabled the borrower to obtain a purchase money loan from United despite his terrible credit history, all of which inured to the detriment of United.  Third, the USCA agreed with the BAP that, even if Kirkwood did have a judgment lien, United’s purchase money lien had priority.  There was no need to pass on the validity of the judgment lien itself.  Thus, the issue was moot and the judgment had to be vacated in that respect.  Fourth, because United’s foreclosure had been completed, any claim that a stay should be granted to stop the foreclosure was also moot.  Fifth, the denial of the motion to stay expungement of lis pendens was moot because, as the USCA held, United had priority.  Moreover, the property had not been sold to a third party, who was not bound by the expungement lis pendens in any event.  Sixth, upon expungement of the lis pendens, the bankruptcy court properly imposed fees and costs upon Montgomery.  Seventh, to the extent Montgomery attempted to raise other issues by generally referring to them without briefing them, the USCA declined to consider those issues.  The USCA thus affirmed, except for instructing the bankruptcy court to vacate as moot its decision regarding the validity of Kirkwood’s judgment lien. It remanded solely for that purpose.  It further ordered that United shall recover its costs on appeal.

8)  TAXATION / FRAUD / MONEY LAUNDERING:  USA v. Butler, 02-50182 (9th Cir. Nov. 23, 2004) (unpublished).  Browning, Rymer, and Graber, Circuit Judges. 

      Butler appealed his jury conviction and sentence for 16 counts of mail fraud, money laundering, and tax offenses.  The USCA affirmed the convictions, but vacated the sentence and remanded for resentencing.  Butler argued that the district court abused its discretion by granting the government’s motion to take a videotaped deposition from witness Barr pursuant to Federal Rule Criminal Procedure 15.  He did not dispute that Barr’s ill-health made it impossible for him to travel to testify in person. He claimed that the motion was untimely, but pointed to no way in which any delay prejudiced his case.  He cited no case in which a district court’s grant of a Rule 15 motion was held to be an abuse of discretion.  The USCA concluded that the district court acted within its discretion.  Butler claimed that the jury’s conviction on Counts Two and Seven, both mail fraud charges, were not supported by sufficient evidence.  Under 18 USC Sec. 1341, the essential elements of mail fraud are: (1) a scheme to defraud, and (2) a knowing use of the mail to execute the scheme.  The statute also criminalizes causing the use of the mails and covers the use of private carriers, such as Federal Express.  Butler apparently accepted the sufficiency of the evidence to support the first element of the mail fraud counts.  At issue, then, was the second element: whether there was sufficient evidence that Butler knowingly used or caused the use of the mails or a private courier “for the purpose” of furthering the scheme.  “Knowing use of the mail” encompasses a broad range of conduct.  “Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes’ the mails to be used.”  Pereira v. USA, 347 US 1, 8-9 (1954).  Bolten’s $15,000 check, the basis for Count Two, was sent to Butler’s company via Federal Express in December 1994 with a note on the face of the check reading “two units.”  The standard price of one unit of the Montgomery SMR was $7,500.  “Circumstantial evidence and inference drawn from it may be sufficient to sustain a conviction.”  USA v. Jackson, 72 F.3d 1370, 1381 (9th Cir. 1995). A rational jury could have found beyond a reasonable doubt that Butler induced Bolten to use Federal Express to transmit an investment in his fraudulent scheme, thereby furthering the scheme.  The conviction on Count Seven likewise was supported by sufficient evidence.  Count Seven involved a letter sent by investor Hilgard’s attorney, demanding a refund of Hilgard’s investment.  USA v. Sampson, 371 US 75 (1962), held that fraudulent mailings sent after the receipt of the victims’ money could be “for the purpose” of furthering the fraudulent scheme at least if the letters had “the purpose of lulling [the victims] by assurance that the promised services would be performed.”  Id. at 81.  The mailings that created mail fraud liability in Sampson “were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place.”  USA v. Maze, 414 US 395, 403 (1974) (interpreting Sampson).  USA v. Brutzman, 731 F.2d 1449, 1454 (9th Cir. 1984), held that mailings from investors in a fraudulent scheme seeking refunds would be “cause” by the defendant with the purpose of furthering his scheme.  The USCA declined Butler’s invitation to distinguish Brutzman on the ground that the letter in his case was sent by the victim’s attorney rather than the victim.  The jury’s conviction on Count Seven was supported by sufficient evidence.  Butler also maintained for the first time on appeal that the district court should have instructed the jury that it had to agree on the particular scheme that Butler’s mail fraud furthered in order to convict on the mail fraud counts.  Even when a jury is presented with multiple courts or schemes, it may be possible to protect the defendant’s right to a unanimous jury verdict by means of a single general instruction that their verdict must be unanimous. USA v. Echeverry, 698 F.2d 375, 377 (9th Cir. 1983) (per curiam), as modified at 719 F.2d 974, 974 (9th Cir. 1983).  “A specific instruction that the jury must agree on a particular set of facts is required only where … the complex nature of the evidence, a discrepancy between the evidence and the indictment, or some other particular factor creates a genuine possibility of juror confusion.”  USA v. Frazin, 780 F.2d 1461, 1468 (9th Cir. 1986).  The USCA saw no genuine possibility of juror confusion about the scheme at issue here.  The district court’s instruction referred to “the scheme or the plan alleged in the first superseding indictment.”  The indictment, the government’s opening statement and closing argument, and the evidence concerned only the Montgomery SMR.  The district court did not err by failing to give a unanimity instruction.

9)  TAXATION / THE “NET WORTH” METHOD:  USA v. Shang, 04-10063 (9th Cir. Nov. 22, 2004) (unpublished).  Canby, Rymer, and Hawkins, Circuit Judges.

      In this tax evasion case, the government chose to employ the net worth method, a circumstantial method of proof requiring “the exercise of great care and restraint,”  Holland v. USA, 348 121, 129 (1954), and as to which the government “assumes a special responsibility of thoroughness and particularity” in its investigation.  USA v. Hall, 650 F.2d 994, 999 (9th Cir. 1981).  Because the government proved a reasonable certain opening net worth and a sufficiently thorough investigation for tax years 1996 and 1998, the USCA affirmed the denial of Shang’s motion for acquittal as to those two counts.  However, the USCA reversed the conviction on the 1999 count because the government’s efforts resulted in a net worth calculation lacking the required “thoroughness and particularity.”  Hall, 650 F.2d at 999.  The government admitted that its net-worth calculation for tax year 1999 was off by some $47,000 in two respects: (1) making a “substantial understatement” of Shang’s 1999 tax liabilities by failing to discover a $34,000 credit line; and (2) missing seven checks totaling approximately $13,000 that did not clear before the end of 1999, even though they should have been counted to adjust the year-end bank balance.  Here, the computational error is 75% or 40%, depending on whether Shang’s client trust accounts are included.  While the government need not prove its calculation to be “mathematical certainty,” these errors stray far from that level of accuracy and into the realm of downright inaccuracy.  The USCA thus affirmed in part, reversed in part, and remanded for resentencing.

10)  SECURITIES:  Madden v. Deloitte & Touche., LLP, 02-56976 (9th Cir. Nov. 23, 2004) (unpublished).  Fernandez, Silverman, and Callahan, Circuit Judges.

      The plaintiffs challenged the district court’s denial of their motions to remand, its grant of summary judgment in favor of appellees Deloitte & Touche and Volpe, Brown, Wheelan & Company, and its denial of their motions for reconsideration.

      The USCA affirmed.  It reviewed de novo the district court’s grant of summary judgment and denial of the motions to remand for improper removal under the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”).  It reviewed the denial of the motions for reconsideration for an abuse of discretion.  The plaintiffs argued that the district court erred in denying remand and holding that SLUSA preempted their state law claims.  They argued that the common stock issued pursuant to the merger agreement between FPA Medical Management, Inc. and St. Joseph Medical Corporation / Orange Coast Managed Care Services, Inc. was not a “covered security” under SLUSA because the actual shares of stock were not listed on Nasdaq until after the alleged misrepresentations occurred.  A “covered security” under SLUSA includes a security that is “listed, or authorized for listing, on the National Market System of the Nasdaq Stock Market … or is a security of the same issuer that is equal in seniority or that is a senior security to a security.”  15 USC Secs. 77p(f)(3) and 77r(b)(1). The plaintiffs alleged in their first amended complaints filed in state court that: (1) FPA common stock was traded on Nasdaq at all times relevant to the action; (2) plaintiffs received FPA common stock; (3) the SEC approved registration of plaintiffs’ stock on February 17, 1998; and (4) fraud and misrepresentations, that occurred both before and after February 17, 1998, caused plaintiffs to acquire FPA common stock in exchange for their St. Joseph / Orange Coast stock.  These allegations were sufficient to allege that the FPA stock was a “covered security” under SLUSA.  The district court’s did not err in allowing removal of the amended complaints and holding that the state claims were preempted.  The plaintiffs also argued that the district court erred in granting summary judgment for Deloitte & Touche on a Sec. 11 claim on the ground that the alleged misrepresentation in the 1996 financial statement certified in the registration statement was not material.  Accountants are liable under Sec. 11 for the financial infor-mation that they certify in the registration statement.  15 USC Sec. 77k(a);  17 CFR Sec. 230.436(c);  Monroe v. Hughes, 31 F.3d 772, 774 (9th Cir. 1994).  Because Deloitte did not audit or certify the 1997 quarterly statements in the registration statement, the district court correctly held that Deloitte was not liable for FPA’s unaudited 1997 quarterly statements.  A misrepresentation or omission is material if “a reasonable shareholder would consider the misrepresentation or omission important, because it altered the total mix of available information.”  Provenz v. Miller, 102 F.3d 1478, 1489 (9th Cir. 1996).  The undisputed facts established that by March 1998 the market was fully aware of the material economic facts regarding the guaranteed access fund payments, FPA’s decision to account for the payments as revenue, and the controversial nature of the revenue treatment.  Because FPA changed drastically in the fifteen months after the 1996 audit, the district court did not err in holding that, as a matter of law, Deloitte’s approval of the 1996 guarantee access funds did not alter the total mix of information available to the reasonable shareholder in 1998.  The plaintiffs also argued that the district court erred in granting summary judgment for Deloitte on the issue of loss causation.  The court ruled that Deloitte established that their alleged misrepresentation did not cause the plaintiffs’ loss.  Lack of causation of loss is an affirmative defense of Sec. 11 claims.  15 USC Sec. 77k(e).  To establish a loss-causation defense, Deloitte must show that the depreciation in value of FPA’s stock resulted from factors other than the alleged material misstatement in the 1996 financial statement.  Undisputed expert testimony established that:  (1) FPA’s early 1988 stock price was not inflated by any misrepresentations regarding guaranteed access fund payments;  and (2) FPA’s stock decrease after March 20, 1998, was not caused by revelations regarding guaranteed access-fund payments.  The district court did not err in holding that the undisputed evidence established a loss-causation defense for Deloitte.  The plaintiffs next argued that the district court erred in granting summary judgment for Volpe, Brown, Wheelan & Company on the ground that it was not a Sec. 11 underwriter or a Sec. 12(a)(2) seller.  Because the undisputed facts established that this company was FPA’s financial advisor for the merger, did not act after the private merger agreement was signed, and did not participate in any way in the solicitation of the Orange Coast shareholders or participate in drafting, preparing, certifying or underwriting the registration statement, proxy or prospectus, the district court did not err in holding that it was not liable as an underwriter or seller for misstatements in the registration, proxy, prospectus, or public offering.  Finally, the plaintiffs maintained that the district court abused its discretion in denying their motions for reconsideration.  To obtain reconsideration, the plaintiffs had to establish that newly proffered evidence was discovered after the hearing and that they “could not with reasonable diligence have discovered and produced such evidence at the hearing.”  Frederick S. Wyle Prof. Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985).  Because the plaintiffs did not establish that they could not have discovered and produced the “new” evidence while the summary judgment proceedings were pending and because, in any event, the evidence would not have changed the outcome of the summary judgments, the district court did not abuse its discretion in denying the motions.

11)  SECURITIES:  Politzer v. Solomon Smith Barney, Inc., 03-56414 (9th Cir. Nov. 24, 2004) (unpublished).  Fernandez, Silverman, and Callahan, Circuit Judges.

      Politzer brought this putative class action in state court on behalf of himself and other clients of appellee Solomon Smith Barney.  He asserted claims based on California statute and common law to address alleged misrepresentations and omissions in connection with the purchase and sale of securities.  He specifically alleged damages from receiving biased and misleading advice on publicly-traded securities from the appellee.  The appellee removed the case to district court because the state-law claims were preempted by and subject to dismissal under the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”).  On appeal, Politzer challenged the district court’s denial of his motion to remand and its dismissal of his state-law claims.  The district court properly determined that it had removal jurisdiction over the case.  28 USC Sec. 1447(c).  The district court also correctly dismissed Politzer’s claims as pre-empted because SLUSA provides for the removal and dismissal of class actions brought pursuant to state law alleging misrepresentations in connection with the purchase or sale of a covered security.  15 USC Sec. 77p(b)-(c).  Falkowski v. Imation Corp., 309 F.3d 1123, 1128-29, 1131 (9th Cir. 2002).  Politzer also argues that he should be allowed to file an amended complaint to clarify his state-law claims.  However, the USCA said that request came too late as it was raised for the first time in his reply brief on appeal.  The USCA thus affirmed.

12)  IMMIGRATION:  El Hefnawi v. Ashcroft, 03-71682 (9th Cir. Nov. 24, 2004) (unpublished).  Reinhardt, Tashima, and Wardlaw, Circuit Judges. 

      El Hefnawi, who claims to be a native of Palestine and stateless, petitioned for review of a BIA order, affirming without opinion an IJ decision that found El Hefnawi not credible and thus denied his application for asylum and for withholding of removal and voluntary departure, and ordered him removed to Israel or, alternatively, to the Palestinian Authority.  The USCA denied the petition.  The IJ’s adverse credibility determination was supported by substantial evidence. Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001) (stating that the IJ’s adverse credibility finding is reviewed for substantial evidence and thus must be upheld unless the petitioner demonstrates that “no reasonable factfinder could conclude that he is ineligible for relief from removal”).  The IJ relied on contradictions between El Hefnawi’s testimony and his statements at the border regarding his reasons for seeking asylum.  The IJ also relied on numerous inconsistencies in El Hefnawi’s testimony regarding material aspects of his claim, such as his claimed identity and the alleged persecution by Islamic Jihad on account of his political opinion.  Pal v. INS, 204 F.3d 935, 938 (9th Cir. 2000) (stating that inconsistencies in the petitioner’s testimony regarding the alleged persecution “go to the heart of her asylum application” and thus justify an adverse credibility finding.)  On review, the USCA found that El Hefnawi failed to offer any argument sufficient to overturn the IJ’s decision.  The USCA thus denied the petition for review.

13)  IMMIGRATION:  Fotoohighiam v. Ashcroft, 03-70126 (9th Cir. Nov. 5, 2004) (unpublished).  B. Fletcher, Hansen, and Rawlinson, Circuit Judges. 

      Fotoohighiam, a native and citizen of Iran, petitioned for review of a decision by the Board of Immigration Appeals (BIA) denying her application for relief under the Convention Against Torture (CAT), 8 CFR Sec. 1208.16(c).  The USCA denied the petition.
 The petitioner’s CAT claim was based on the Iranian  government’s alleged interest in her husband, Ali Khoshnevisrad.  He was reported to the Iranian government after being observed drinking beer, which reportedly is against Muslim teachings.  The petitioner maintained that thereafter her husband was considered by the government to be a bad Muslim.  She testified that, as punishment, he was harassed almost daily, fired from his job, forced to grow a beard and pray in public five times a day, sent to participate in the Iran/Iraq war, and arrested and imprisoned on two occasions.  He no longer resides in Iran.  The petitioner asserts that she was threatened and physically assaulted by government authorities and that her children were traumatized by witnessing the abuse.  The authorities also threatened to imprison the petitioner’s father, who lived in an apartment in the same building.  She testified that her parents are now permanent residents of the USA but that they still spend several months a year in Iran.  When in Iran, they reside in the same apartment that the petitioner had occupied in Tehran.  She testified that her parents are questioned from time to time about her whereabouts but said the authorities have not otherwise harassed or persecuted them.  The Immigration Judge (IJ) concluded that the petitioner and her children had not shown the court that they qualified for CAT relief, based on his finding that her testimony was not credible and on the fact that, although her parents were often in Iran for four to five months at a time, there was no evidence that they had ever been harmed or threatened.  The BIA affirmed, stating that it agreed with the IJ that, even assuming the petitioner’s credibility, she had not shown that she and her children would more likely than not be tortured if returned to Iran.  An alien is eligible for relief under CAT upon sufficient proof that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.  8 CFR Sec. 1208.16(c)(2).  The burden of proof is on the petitioner.  Credibility determinations aside, the USCA held that substantial evidence supported the conclusion that the petitioner failed to carry her burden of proof.  She did not show that it was more likely than not that she would be tortured if removed to Iran.  The IJ clearly stated that he found the testimony about her parents most damaging to her claim.  The petitioner’s father was also threatened, but he nevertheless visits Iran for several months of the year without being tortured or threatened with torture.  When reviewing asylum petitioners, the USCA noted that it has “allowed ongoing family safety to mitigate a well-founded fear, particularly where the family is similarly situated to the applicant and thus presumably subject to similar risk.   This reasoning also applies to CAT claims, because the CAT’s reach is narrower than that of asylum in that a petitioner seeking CAT relief must show that it is more likely than not that she will be tortured.  The government argued in its brief that the USCA lacks jurisdiction to address the merits of the CAT claim because it asserts that the agency never reached the merits of the claim, and instead disposed of the claim on adverse credibility grounds.  The USCA disagreed.  The BIA decided that the petitioner was not credible; and, even if credible, did not qualify for CAT relief.  The USCA is not deprived of jurisdiction to review the merits of a claim where the agency considered the substantive issue of whether the petitioner was entitled to relief.  The USCA also rejected the petitioner’s contention that the BIA adopted a finding that the IJ did not make when the BIA “agreed” with the IJ that “even assuming” credibility, the petitioner did not qualify for CAT relief. While the IJ did not use the language “even assuming credibility,” the IJ nevertheless clearly stated that the petitioner did not qualify for CAT relief because she had not shown that it is more likely than not that she or her children would be subject to torture in Iran.  Finally, the USCA rejected the petitioner’s contention that the IJ improperly considered a damaging letter in rendering his decision.  The court lacks jurisdiction to review this issue because the petitioner did not raise it before the BIA.  Because the evidence was not so compelling that a reasonable fact finder could not have failed to find the requisite likelihood of torture, the USCA denied the petition for review.

14)  IMMIGRATION:  Tian Hao Lei v. Ashcroft, 03-71826 (9th Cir. Nov. 8, 2004) (unpublished).  Canby, Rymer, and Hawkins, Circuit Judges. 

       Lei petitioned for review of a per curiam BIA decision which affirmed an IJ decision denying Lei asylum, withholding of removal, and protection under the Convention Against Torture.  The BIA conducted an independent review of the record and issued a reasoned decision affirming the IJ’s factual findings.  The USCA thus reviewed the BIA’s decision as the final agency decision in the case.  It reviewed the factual findings supporting the BIA’s decision for substantial evidence.  The BIA affirmed the IJ’s finding that Lei’s testimony was not credible.  An IJ’s adverse credibility determination is entitled to “considerable deference.”  Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994).  Nevertheless, an adverse credibility determination must be based on specific, cogent reasons that bear a legitimate nexus to the adverse credibility finding.  Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996), and it will be upheld only if based on “serious inconsistencies in the applicant’s testimony that go to the heart of his [asylum] application.”  Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003).  Minor or trivial inconsistencies that “reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.”  Osorio, 99 F.3d at 931.  Here, the IJ based her adverse credibility finding on several discrepancies between Lei’s testimony, his asylum interview, and the documentary evidence submitted in support of Lei’s application.  The most significant revolved around the length of time Lei was imprisoned. In his oral testimony and written affidavit in support of his application, Lei stated that he was imprisoned for eight months, from March to November 1993. However, Lei submitted a letter from the Public Security Bureau of Guang Men stating that Lei had been detained on March 3, 1993 but was released on March 6, 1993, the date of the letter. Lei offered no meaningful explanation for this discrepancy.  The IJ also found a major inconsistency regarding the duration of Lei’s employment at the restaurant where he attempted to organize a union.  While he stated in his asylum application that he worked at that restaurant until 1995, he testified at his removal hearing that he worked there only until 1993.  When asked on cross examination to explain the discrepancy, he testified that he worked full-time until 1993, but worked only on a part-time, unofficial basis between 1993 and 1995.  He had no explanation for how he could have continued working for the employer he had antagonized through accusations of bribery and labor law violations, while simultaneously hiding from the police who were searching for him.  These discrepancies went to the heart of Lei’s asylum claim as they related to the basis for his alleged fear of persecution.  Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir. 2001).  If Lei was imprisoned for only three days, rather than the eight months to which he testified, his claims of torture in prison were significantly undermined.  See Alvarez-Santos, 332 F.3d at 1249 (upholding an adverse credibility determination based on a “pivotal” omission from an asylum application, accompanied by an unreason-able explanation for the omission.)  Lei’s failure to explain how he could simultaneously continue, after 1993, to work at the restaurant where he had agitated for a labor union and avoid the local police who sought to arrest him, rendered questionable Lei’s contention that the police would arrest and harm him if he is forced to return to China.  Lei attacked the IJ’s speculation that the reason Lei was arrested may have been legitimate as an impermissible basis for an adverse credibility finding under Shah v. INS, 220 F.3d 1062, 1069 (9th Cir. 2000).  Lei also questioned the IJ’s conclusion that the August 6, 1994 arrest warrant did not contain Lei’s name.  However, even granting that Lei’s position on these two findings is correct, Lei had not pointed to any record evidence that would compel a reasonable adjudicator to conclude that the IJ’s adverse credibility finding must be set aside.  Without credible testimony, Lei failed to sustain his burden of demonstrating past persecution or a well-founded fear of persecution on account of one of the statutorily enumerated grounds needed to qualify for asylum.  His lack of credible testimony also prevented him from establishing eligibility for withholding of removal or for protection under the CAT because he failed to show that it was more probable than not that he would be subject either to persecution or to torture if returned to China.

15)  IMMIGRATION:  Dudgeon v. Ashcroft, 03-72622 (9th Cir. Nov. 9, 2004) (unpublished).  Alarcon, W. Fletcher, and Rawlinson, Circuit Judges. 

       Dudgeon petitioned for review of a BIA decision affirming the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).  She maintained that she suffered past persecution in Indonesia and that as a Muslim woman married to a Christian man she has a well-founded fear of future persecution if returned to Indonesia.  Where, as here, the BIA streamlines its review of the IJ’s decision, the USCA reviews the IJ’s decision directly as the agency’s final action.  Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003).  Substantial evidence supported the IJ’s conclusion that Dudgeon failed to establish sufficient individualized harm or risk of future harm to be eligible for asylum based on past persecution or a well-founded fear of future persecution.  Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (recognizing that “mere generalized lawlessness and violence” without a particularized risk to the petitioner is generally insufficient to support a claim of asylum).  The record shows that Dudgeon suffered no harm in Indonesia.  The incidents she described were manifestations of general civil unrest.  No evidence was presented that anyone in Indonesia targeted Dudgeon for harm or mistreatment.  Because Dudgeon did not satisfy the standard to qualify for asylum, she necessarily failed to meet the more stringent evidentiary standard required for withholding of removal.  In addition, Dudgeon was not entitled to CAT relief as she failed to demonstrate that it is more likely than not that she would be tortured if returned to Indonesia.

16)  IMMIGRATION:  Nazi v. Ashcroft, 03-70633 (9th Cir. Nov. 3, 2004) (unpublished).  B. Fletcher, Hansen, and Rawlinson, Circuit Judges.

      Ali Asghar Nazi and his daughter Asal, natives and citizens of Iran, petitioned for review of the BIA’s summary affirmance without opinion of an IJ’s denial of their applications for asylum, withholding of removal, and relief under the Convention Against Torture on the basis of an adverse credibility determination.  The USCA reviewed the adverse credibility determination for substantial evidence, noting that it can reverse only if a contrary finding is compelled.  The IJ’s adverse credibility determination was supported by substantial evidence.  The IJ based his determination on the discrepancy in the petitioner’s recollection of the number of times he was arrested, and the military promotions awarded to him despite his claim that he was considered a traitor.  On the record, the USCA could not say that a fact finder would be compelled to credit the petitioner’s testimony.  Nazi thus failed to establish eligibility for asylum and withholding of removal.  Substantial evidence also supported the IJ’s conclusion that Nazi was not entitled to relief under CAT because he did not demonstrate that it is more likely than not he would be tortured if returned to Iran.  The USCA ordered that the mandate be held in abeyance pending resolution of the petitioner’s motion to reopen.