1)  INTELLECTUAL PROPERTY / TRADE DRESS: Creative Computing v. Getloaded.com, 02-35856 (9th Cir. Oct. 15, 2004).  Creative Computing developed an internet site, “The Internet Truckstop,” to match loads with trucks.  It has a feature called “radius search” that lets a truck driver in a specific location with space in his truck, find all available loads in whatever mileage radius he likes.  It also lets a shipper post a load so that a trucker with space can find it.  The site was created early in internet history and has worked so well that it has come to dominate the load-board industry.  Getloaded decided to compete, but not honestly.  After it set up a load-matching site, it wanted to get a bigger piece of Creative’s market.  Creative wanted to prevent that, so it prohibited assess to its site by competing load-matching services.  The Getloaded officers thought trucking companies would probably use the same login names and passwords on truckstop.com as they did on getloaded.com.  Getloaded’s president used the login name and password of a Getloaded subscriber, in effect impersonating the trucking company, to sneak into truckstop.com.  Getloaded’s vice-president accomplished the same thing by registering a defunct company., RFT Trucking, as truckstop.com subscribers.  These tricks enabled them to see all the information available to Creative’s bona fide customers.  Getloaded’s officers also hacked into the code Creative used to operate its site.  Once in, they examined the source code for the valuable radius-search feature. In the resulting suit involving trade dress and copyright infringement claims, the USCA affirmed the judgment for Creative as Getloaded had violated the federal Computer Fraud and Abuse Act.  D.W. Nelson, Kleinfeld (author), and Fisher, Circuit Judges.  J. Dozier of Glen Allen, VA, for the appellant;  S. Anderson of Boise, ID, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  ENVIRONMENTAL LAW: The Cetacean Community v. Bush, 03-15866 (9th Cir. Oct. 20, 2004).  The plaintiffs here are the world’s cetaceans. The USCA dismissed their challenge to the Navy's use of sonar during wartime conditions as the cetaceans lacked standing to sue in their own name under the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Administrative Procedure Act.  The USCA agreed with the district court in Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium, 836 F. Supp. 45, 49 (D. Mass. 1993), that “if Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.” Hug, Alarcon, and W. Fletcher (author), Circuit Judges.  L. Sinkin of Hilo, HI, for the appellant;  A. Navaro of Washington, DC, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  ENVIRONMENTAL LAW: City of Sausalito v. O’Neill, 02-16585 (9th Cir. Oct. 20, 2004).  The City of Sausalito sued to enjoin the development and rehabilitation of Fort Baker, a nearby former military base.  Under the plan chosen by the National Park Service, a conference and retreat center, with a maximum of 350 guest rooms, will be established near the Fort’s Parade Ground using both rehabilitated historic structures and new structures, and parking will be provided for a maximum of 455 cars in already-disturbed areas.  The Bay Area Discovery Museum on the Fort will be expanded, and its parking facilities relocated and expanded.  In addition, the Coast Guard is authorized to build a small addition to its existing facility and the Presidio Yacht Club’s facilities and marina will be opened to the public.  The magistrate judge, hearing the case by consent, granted the defendants summary judgment, holding that the City lacked standing to assert many of its claims, and that the other claims failed on the merits.  The USCA held that the City has standing to assert all of its claims.  However, with the exception of its claims under the Coastal Zone Management Act and the Marine Mammal Protection Act, its claims all failed on the merits.  The USCA thus remanded for further proceedings consistent with this opinion.  Canby, W. Fletcher (author), and Tallman, Circuit Judges.  S. Volker of Oakland, CA, for the appellant;  J. Bryson of Washington, DC, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  ENVIRONMENTAL LAW:  National Wildlife Federation v.  U.S. Army Corps of Engineers, 03-35235 (9th Cir. Oct. 4, 2004).  The U.S. Army Corps of Engineers’ Record of Decision regarding the operation of dams in the state of Washington complied with the state's water quality standards for temperature, as required by the Clean Water Act's incorporation of state water quality law. Dissenting, Judge McKeown thought the majority had misstated the issue and that the actual legal issue was whether the record supported the Corps’ decision that the sole  cause of the “temperature exceedences” is the existence (not the operation) of the dams, and thus that the Corps bears no obligation to comply with the Act. Brunetti, McKeown (dissenting), and Gould (author), Circuit Judges.  K. Boyles of Seattle, WA, for the plaintiffs-appellants; D. Cummings of Lapwai, ID, for the plaintiff-intervenor-appellant;  S. Quast of Washington, DC, for the defendant-appellee;  L. Beale of Seattle, WA, for the defendants-intervenors-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  ENVIRONMENTAL LAW: Klamath-Siskiyou Wildlands Center v. Bureau of Land Management, 03-35461 (9th Cir. Oct. 28, 2004).  The appellant, an environmental organization, challenged two timber sales proposed by the Bureau of Land Management (“BLM”) in the South Fork Little Butte Creek watershed in the Cascade Mountains of southwest Oregon.  It claims that BLM’s environmental assessments (“EAs”) are legally insufficient because (1) they fail to adequately evaluate and discuss the potential cumulative environmental impacts posed by the sales in combination with other major activities in the watershed, and (2) the environmental effects of the two sales, along with two other adjacent proposed sales, should have been discussed in a single National Environmental Policy Act (“NEPA”) document.  The district court entered summary judgment in favor of the BLM.  The USCA reversed that judgment because BLM’s analyses did not sufficiently consider the potential cumulative impacts posed by the timber sales.  The EAs did not reflect a hard look at the effects from proceeding with all of the anticipated projects and did not provide sufficient information to permit meaningful public scrutiny.  BLM could not simply offer conclusions;  rather, it must identify and discuss the impacts that will be caused by each successive timber sale, including how the combination of those various impacts is expected to affect the environment, so as to provide a reasonably thorough assessment of the projects’ cumulative impacts.  Judge Reinhardt concurred in part and dissented in part.  He agreed that the BLM did not sufficiently consider the potential cumulative impacts posed by the sales.  But, he did not agree with the majority’s decision not to require the BLM to produce a single NEPA review document at this time.  Because the sales were governed by a single proposal and because there are “substantial questions” about the potential cumulative impacts posed by the sales, he would require the BLM to analyze the sales in a single NEPA document.  Reinhardt (dissenting in part), Silverman, and Clifton (author), Circuit Judges.  B. Bell of Williams, OR, for the plaintiff-appellant;  R. Nesbit of Portland, OR, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  ANIMAL RIGHTS / CONSTITUTIONAL LAW:  Kuba v. 1-A Agricultural Association, 02-16989 (9th Cir. Oct. 19, 2004).  Kuba demonstrates on behalf of animal rights at the Cow Palace near San Francisco each year when a circus or rodeo is playing there. The Palace is owned by the State of California and operated by 1-A Agricultural Association.  In 1988, the Association adopted a “First Amendment Expression Policy” which prohibits individuals from demonstrating outside the Palace except in designated “free expression zones,” none of which is near an entrance.  Kuba maintained that these zones do not allow demonstrators access to patrons of the Palace adequate to engage in conversation or hand out leaflets.  He challenged the Policy, facially and as applied to him, as violative of the First Amendment, Equal Protection, and Due Process clauses of the U.S. Constitution, and the free speech, equal protection, and due process protections of the California Constitution.  Both parties moved for summary judgment.  The district court held that the policy was a permissible time, place and manner regulation, dismissed Kuba’s motion for summary judgment, granted the Association’s motion, and dismissed Kuba’s complaint with prejudice.  The USCA reversed.  It found that the Policy enforced by the Association is unconstitutional on its face.  Leavy, Paez, and Berzon (author), Circuit Judges.  D. Blatte of Berkeley, CA, for the plaintiff;  C. Getz of San Francisco, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  BANKRUPTCY / SANCTIONS:  In re Hercules Enterprises, Inc., 02-16958 (9th Cir. Oct. 29, 2004).  Hansbrough appealed the district court’s judgment affirming the bankruptcy court’s award of sanctions against him for contempt of court, and its determination that the sanctions would not be dischargeable in any personal bankruptcy filing Hansbrough might make in the future.  The USCA noted that the bankruptcy court had the authority to sanction Hansbrough, the corporate debtor’s principal, for his repeated failure to comply with court orders.  However, a bankruptcy court cannot adjudicate the subsequent dischargeability of a sanction properly imposed on a non-debtor.  While the court can impose a sanction that generally will not be dischargeable under 11 USC Sec. 523(a)(7) in a future bankruptcy, the determination of dischargeability ultimately remains the province of the bankruptcy court presiding over that debtor’s bankruptcy case. The USCA thus vacated the bankruptcy court’s determination of non-dischargeability.  Tashima and Clifton, Circuit Judges, and Leighton (author), District Judge.  J. Hansbrough pro se;  J. Fries of Phoenix, AZ, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  CONSUMER PRODUCT SAFETY ACT:  USA v. Mirama Enterprises, Inc., 02-56466 (9th Cir. Oct. 28, 2004).  At issue here was the appropriate range of penalties for violating the reporting requirements of the Consumer Product Safety Act, 15 USC Secs. 2064(b), 2068(a)(4), and 2069(a)(1).  Mirama, a California corporation that distributes electric kitchen appliances, including juice extractors that employ a rapidly spinning metal grater, whose sharp teeth pulverized fruits and vegetables inserted through a plastic chute.  Mirama began receiving consumer reports of failed juicers—including reports of exploding juicers that threw with great violence pieces of the plastic cover and shreds of the razor-sharp separator screen as far as eight feet.  It reported none of this to the Consumer Product Safety Commission, but some of its consumers did and the Commission asked Mirama to report what it knew about the dangers posed by its juicers.  A few months later, Mirama and the Commission jointly announced that the juicers were being recalled.  The government subsequently sued Mirama, alleging that the company violated the reporting requirements of 15 USC Sec. 2064(b)(2) and (b)(3).  The district court granted partial summary judgment for the government.  After an evidentiary hearing, the court held that Mirama’s failure to report each potentially dangerous product sold or distributed for sale to consumers was a separate offense, bring the total number of offenses to somewhere between 30,000 and 40,000.  The court ordered Mirama to pay $300,000 plus costs.  The USCA affirmed.  Sec. 2064(b) requires a manufacturer, distributor or retailer of a product to notify the Commission if it obtains information that reasonably suggests that the product creates serious risk of injury.  Under Sec. 2069(a)(1), failure to report is a separate offense with respect to each individual unit on the market or in the hands of consumers.  The district court thus properly held that Mirama’s failures to report constituted 30,000 to 40,000 separate offense, and did not abuse its discretion in imposing a $300,000 penalty, regardless of whether the juicers were actually defective.  Kozinski (author), O’Scannlain, and Silverman, Circuit Judges.  P. Jasperse of Washington, DC, for the plaintiff-appellee;  J. Morris of San Diego, CA, for the defendant-appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  TORTS / INTERNATIONAL LAW:  The Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Cubic Defense Systems, Inc., 02-56498,    (9th Cir. Oct. 7, 2004).  These consolidated appeals arose from attempts by Flatow and Elahi to collect on default judgments they obtained against Iran in the U.S. District Court for the District of Columbia.  That court found Iran liable for terrorists acts that resulted in the deaths of Flatow’s daughter and Elahi’s brother.  In both cases, the district court assessed substantial compensatory and punitive damages against Iran.  Meanwhile, Iran’s Ministry of Defense (“MOD”) successfully petitioned the District Court for the Southern District of California to confirm an arbitration award issued in its favor by the International Chamber of Commerce.  That $2.8 million award had been issued against a supplier of military equipment, Cubic Defense Systems, and related to a claimed breach of contract by Cubic in providing military hardware to MOD.  Flatow moved unsuccessfully to intervene in that case.  Later, both Flatow and Elahi moved to attach MOD’s judgment against Cubic.  With respect to Flatow, but not also Elahi, the district court granted MOD’s motion for a determination that its judgment against Cubic was immune from attachment.  On appeal, the USCA granted Elahi's motion to attach Iran's judgment against Cubic but denied Flatow’s motion to attach as Flatow had relinquished any claim to attaching the Cubic judgment by accepting payments pursuant to the Victims Protection Act.   B. Fletcher (author), Wardlaw, and Fisher, Circuit Judges.  A. Van Patten for the plaintiff-appellee;  S. Perles of Washington, DC, for appellant Flatow;  J. Mook of Alexandria, VA, for plaintiff-intervenor Elahi. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  TAXATION:  Ronald Moran Cadillac, Inc. v. USA, 02-57052 (9th Cir. Oct. 12, 2004).  The plaintiff filed a claim for refund of income taxes for the year 1992 with the IRS pursuant to 26 USC Sec. 7422.  When six months passed without the IRS acting on these claims, the plaintiff filed a complaint in district court.  The district court granted the government’s cross-motion for summary judgment and entered judgment finding that the plaintiff was entitled only to the refund that the government conceded was due for taxable year 1992. The USCA affirmed.  Noonan and Kleinfeld, Circuit Judges, and White (author), District Judge.  A. Taylor of Santa Ana, CA, for the appellant;  F. Ugolini of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  TELECOMMUNICATIONS LAW:  Qwest Corporation v. City of Portland, 02-35473 (9th Cir. Oct. 12, 2004). Qwest, a telecommunications provider, appealed the district court’s summary judgment in favor of the City of Portland and other Oregon cities who intervened in the action (collectively “the cities”).  Qwest maintained that the Federal Telecommunications Act of 1996 (“FTA”), 47 USC Sec. 253, preempts the municipal ordinances pursuant to which the franchise fees were assessed.  The district court ruled that the cities’ ordinances and various franchise agreements were not preempted by the FTC.  The district court also determined that the revenue-based fees imposed on the telecommunications providers by the cities were valid under the FTA.  Because the district court failed to conduct an individualized Sec. 253 preemption analysis for each city’s ordinance, and misapplied City of Auburn v. Qwest, 260 F.3d 1160 (9th Cir. 2001), the USCA remanded the case to the district court for additional consideration.  Because the district court correctly concluded that Qwest’s challenge to the cities’ gross revenue based fees was barred by claim and issue preclusion, the USCA affirmed that ruling. Judge Ferguson concurred in the decision to remand for additional consideration as to whether each individual city ordinance at issue was preempted by Sec. 253.  In so doing, however, Judge Ferguson thought the district court must consider whether the cities’ ordinances in whole or in part survive preemption under the safe harbor provisions of the FTA, particularly Sec. 253(c).  He thought the district court must also determine whether individual provisions of a particular city ordinance that might be found to be preempted by Sec. 253 can be severed from the remaining provision of the ordinance that might not be found to be pre-empted.  Alarcon, Ferguson (concurring), and Rawlinson (author), Circuit Judges.  D. Goodnight of Seattle, WA, for the plaintiff-appellant;  J. Rogers of Portland, OR, for the defendant-appellee;  P. Beery of Portland, OR, and W. Gary of Eugene, OR, for the intervenors. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  REAL PROPERTY / DISCRIMINATION: Holley v. Crank, 99-56611 (9th Cir. Oct. 26, 2004).  In a Federal Housing Administration claim alleging discrimination, the USCA reversed the summary judgment in favor of defendant Meyer, a designated officer/broker of Triad, Inc., in order that it can be determined whether he is (1) personally liable as principal for the actions of his agent Crank, (2) personally liability for negligent supervision of his agent, and (3) whether his liability can be based on piercing the corporate veil.  Hug (author) and B. Fletcher, Circuit Judges, and Illston, District Judge.  E. Brancart of Pescadero, CA, for the plaintiffs-appellants;  D. Benedon of Woodland Hills, CA, for the defendant-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  POST-JUDGMENT INTEREST:  Fidelity Federal Bank v. Durga Ma Corp., 02-56548, 02-56381 (9th Cir. Oct. 29, 2004).  In case No. 02-56548, Fidelity Federal Bank appealed the district court’s order granting Durga Ma Corporation’s motion under the Federal Arbitration Act.  The order confirmed an arbitration award against Fidelity in favor of Durga Ma arising out of a breach of contract claim.  In case No. 02-56381, Fidelity appealed the district court’s order denying Fidelity’s motion to vacate the award.  Fidelity maintained that the award should be vacated under 9 USC Sec. 10 due to the evident partiality of an arbitrator appointed by Durga Ma.  The arbitrator agreed to “act neutrally” but failed to disclose certain family and business relationship with Durga Ma’s attorneys.  These two case were consolidated for appeal.  The USCA affirmed.  It held that Fidelity waived its right to seek vacatur of the arbitration award based on the evident partiality of the arbitrator initially appointed by Durga Ma.  Fidelity had constructive notice of the arbitrator’s potential connections to the Durga Ma attorneys but did not object to the arbitrator’s appointment or his failure to make disclosures until after an interim award was entered in favor of Durga Ma.  Pregerson, Beezer (author), and Tallman, Circuit Judges.   T. Maggio of Chicago, IL, for the appellant;  P. Brown of Beverly Hills, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  POST-JUDGMENT INTEREST:  Fidelity Federal Bank v. Durga Ma Corp., 03-56447 (9th Cir. Oct. 29, 2004).  Durga Ma Corporation appealed a district court’s order granting Fidelity Federal Bank’s motion pursuant to Fed. R. Civ. P. 60(b) to change the awarded post-judgment interest from the California statutory rate of 10% to the federal rate of 1.76% interest per year pursuant to 28 USC Sec. 1961.  The USCA held that the district court acted within its discretion when it granted Fidelity’s motion and affirmed the application of the federal post-judgment interest rate.  Pregerson, Beezer (author), and Tallman, Circuit Judges.  P. Brown of Beverly Hills, CA, for the appellant;  S. Blackstone of Chicago, IL, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  CIVIL FORFEITURE: USA v. Real Property Located at 5208 Los Franciscos Way, Los Angeles, 03-15396 (9th Cir. Oct. 1, 2004).  In January 1999, Anahit was advised of an ongoing probe into her company related to health care fraud. At that time she recorded a gift deed purporting to transfer the defendant property to the Markarians.   She was subsequently tried by a jury and found guilty of the fraud.  In October 2001, the government filed this action, seeking to forfeit the defendant property on the basis that, inter alia, it was acquired with funds traceable to a federal health care offense, which rendered the property subject to forfeiture pursuant to 18 USC Secs. 981(a)(1)(c) and 1956(c)(7)(F). In July 2002, the government moved for summary judgment on the grounds that the Markarians lacked Article III standing to contest the forfeiture.  Specifically, the government argued that Anahit’s transfer of the property to the Markarians was fraudulent under California’s Uniform Fraudulent Transfer Act, and that the Markarians thus could not establish an ownership interest in the property sufficient to give them standing.  The district court entered a summary judgment in favor of the government. The USCA affirmed.  Because the district court properly determined on the record before it that the Markarians lacked a sufficient interest in the defendant property to confer Article III standing, the Markarians had no legal basis upon which to object to the forfeiture. Noonan and Clifton, Circuit Judges, and Fogel (author), District Judge.  K. Owen of Castro Valley, CA, for the claimants-appellants;  AUSA C. Linn of Sacramento, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  PRELIMINARY INJUNCTIONS / ELECTION LAW: Nader v. Brewer, 04-16880 (9th Cir. Oct. 15, 2004).  Ralph Nader and Peter Camejo, independents who ran for President and Vice-President in the November 2004 general election, and some of their political supporters appealed the district court’s denial of their motion for injunctive relief against Brewer in her official capacity as Secretary of the State of Arizona. The appellants maintained that Arizona’s election statutes were unconstitutional, and sought to have Nader’s and Camejo’s names added to Arizona’s ballot. Early voting began in Arizona on September 30, 2004.  The USCA affirmed the district court’s order denying the preliminary injunction. Regardless of the appellants’ probability of success on the merits, their delay in bringing their action and the balance of hardships in favor of the appellees were so great that the district court did not abuse its discretion in deciding that the appellants are not entitled to relief. Kleinfeld, Tashima, and Gould, Circuit Judges.  Per Curiam. C. Ertl of Milwaukee, WI, for the plaintiffs;  J. Funkhouser of Phoenix, AZ, for the defendant; T. Irvine of Phoenix, AZ, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  DIVERSITY JURISDICTION / ARBITRATION: Theis Research, Inc. v. Brown & Bain, 02-16839 (9th Cir. Oct. 20, 2004).   In a case in which a party seeks to vacate an arbitration award, the amount in controversy for diversity jurisdiction under 28 USC Sec. 1332(a) is measured by the amount in dispute in the underlying litigation between the parties, and not by the amount of the arbitration award. Thompson (author) and Trott, Circuit Judges, and Weiner, District Judge.  P. Johnson of Oakland, CA, for the plaintiff;  P. Renne of San Francisco, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  AMERICANS WITH DISABILITIES ACT: Christopher S. v. Stanislaus County, 03-15178 (9th Cir. Oct. 8, 2004).  Three autistic children who are part of a special education program in Stanislaus County, California, filed an action against the county and local educational authorities alleging that the policy of providing a shorter school day to autistic students constitutes discrimination in violation of the Americans with Disabilities Act of 1990, Sec. 504 of the Rehabilitation Act of 1973, and California anti-discrimination statues.  The district court dismissed the action for failure to exhaust administrative remedies under the Individuals with Disabilities Education Act because the children had not sought a due process hearing from the State of California.  On appeal, the children argued that the district court erred in dismissing their action for lack of jurisdiction because they sufficiently exhausted their administrative remedies by pursuing a complaint resolution procedure to completion.  The USCA agreed and reversed the district court’s dismissal of the case.  Dissenting, Judge Clifton found faulty the majority’s “pivotal assumption” that the agency expertise which could be obtained and applied in a due process hearing would not be useful and is not needed to resolve the challenge in this case.  He agreed with the district court that this challenge should not be substantively litigated in federal court before it has been addressed via the appropriate administrative process by and agency with greater expertise. Tashima (author) and Clifton (dissenting), Circuit Judges, and Leighton, District Judge.  J. Carrillo of Sacramento, CA, for the plaintiffs-appellants; J. Olson of Modesto, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  AMERICANS WITH DISABILITIES ACT: McGary v. City of Portland, 02-35668 (9th Cir. Oct. 27, 2004).  McGary brought this action against the City of Portland, alleging that the City discriminated against him on the basis of his disability, in violation of the Fair Housing Act, the Americans with Disabilities Act, and parallel state and local laws, when it denied his request for additional time to clean his yard in order to comply with the City’s nuisance abatement ordinance.  The district court dismissed McGary’s complaint for failure to state a claim upon which relief could be granted under Fed. R. Civ. Proc. 12(b)(6).  On appeal, the USCA held that McGary adequately pled that the City discriminated against him by failing to reasonably accommodate his disability under the relevant statutes. The USCA thus reversed the judgment of the district court and remanded for further proceedings. D.W. Nelson (author), Kleinfeld, and Fisher, Circuit Judges.  K. Berkowitz of Portland, OR, for the plaintiff-appellant;  T. Reeve of Portland, OR, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  NATIVE HAWAIIAN LAW:  Kahawaiolaa v. Norton, 02-17239 (9th Cir. Oct. 27, 2004).  At issue in this appeal is whether the exclusion of native Hawaiians from the Department of Interior’s regulations acknowledging the federally recognized status of Indian tribes comprises discrimination in violation of the Equal Protection component to the Fifth Amendment Due Process Clause.  The USCA concluded that the regulations do not violate the Fifth Amendment under rational basis scrutiny.  Browning, Reinhardt, and Thomas (author), Circuit Judges.  W. Schoettle of Honolulu, HI, for the appellants.  E. Peterson of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  IMMIGRATION LAW:  Sael v. Ashcroft, 02-71872 (9th Cir. Oct. 14, 2004).  The petitioners sought asylum from Indonesia.  The Immigration Judge granted the petition for review, but the Board of Immigration Appeals reversed.  The USCA granted the petition for review as the lead petitioner had established a well-founded fear of future persecution on account of her Chinese ethnicity.  She demonstrated that Indonesians of Chinese descent are a disfavored group and that she is particularly at risk, based on past threats and acts of violence against her. The USCA remanded so that the Attorney General could exercise his discretion as to whether to grant relief.  B. Fletcher (author), Trott, and Fisher, Circuit Judges.  R. Ryan of San Francisco, CA, for the petitioners;  J. Bernstein of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  IMMIGRATION LAW: Singh v. Ashcroft, 03-70217 (9th Cir. Oct. 21, 2004).  The IJ ordered Singh removed to India pursuant to 8 USC Sec. 1227(a)(2)(E)(I) on the ground that he committed a “crime of domestic violence” when he committed the Oregon crime of harassment, Or. Rev. Stat. Sec. 166.065(1)(a)(A), against his spouse. The USCA granted Singh’s petition and vacated the IJ’s removal order. It found that Oregon’s harassment law reaches acts that involve offensiveness by invasion of personal integrity, but that do not amount to the use, attempted use, or threatened use of “physical force.”  The statute thus does not require as necessary elements of conviction action that meets the federal definition of a “crime of violence” under 18 USC Sec. 16(a).  The respondent thus failed to satisfy its burden to show that Singh had committed a “crime of domestic violence” under Sec. 1227(a)(2)(E)(I), warranting his removal.  Graber, Gould (author), and Berzon, Circuit Judges.  T. Hasche of Portland, OR, for the petitioner;  AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  IMMIGRATION LAW: Membreno v. Ashcroft, 03-71214 (9th Cir. Oct. 19, 2004).  Membreno, a native and citizen of Mexico, entered the U.S. as a temporary resident on June 22, 1987.  She was subsequently arrested after firing a gun at the owner of a restaurant which competed with a restaurant owned by Membreno and her husband.  She pled guilty to felony assault with a firearm in violation of California Penal Code Sec. 245(a)(2).  The court suspended the imposition of her sentence and granted her three years probation, the first 189 days of which was to be served in the county jail.  On April 12, 2000, she was seized at the San Ysidro port of entry.  The INS served her with a Notice to Appear, charging that she was removable as an alien who had committed a crime involving moral turpitude.  The IJ later ordered her deported and removed to Mexico.  The BIA summarily affirmed that decision but Membreno failed to appeal.  Later, however, she filed a motion to reopen the deportation proceedings, arguing that she was not removable because her assault charge fell within the “petty offense” exception of 8 USC Sec. 1182(a)(2)(A)(ii)(II) and could not therefore be construed as a crime involving moral turpitude.  The BIA denied that motion and Membreno appealed.  The USCA dismissed the appeal, finding that the petty offense exception did not apply.  Hall, Brunetti, and Graber, Circuit Judges.  Per Curiam.  S. Potts of Los Angeles, CA, for the petitioner;  A. Maclachlan of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  IMMIGRATION LAW: Rivera v. Ashcroft, 03-35548 (9th Cir. Oct. 18, 2004).  Rivera’s habeas petition alleged that he is a U.S. citizen who was wrongly removed to Mexico, that his due process rights were violated during removal proceedings, and that he is entitled to a declaration by the district court that he is a U.S. citizen.  The USCA found that the district court has jurisdiction to hear Rivera’s citizenship claim and remanded for further proceedings on that claim.  Dissenting, Judge Callahan, thought the majority had implicitly decided what has yet to be determined—Rivera’s citizenship—and reasoning backward from that decision, created jurisdiction in the district court where none had previously existed.  Pregerson, Ferguson (author), and Callahan (dissenting), Circuit Judges.  C. Nance of Seattle, WA, for the plaintiff;  K. Schimpff of Seattle, WA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  IMMIGRATION LAW:  USA v. Ortiz-Lopez, 03-10339 (9th Cir. Oct. 6, 2004).  The defendant challenged his conviction under 8 USC Sec. 1326 for illegal reentry into the United States following removal.  He based his challenge on a collateral attack on the underlying removal. He argued, and the government agreed, that in his removal proceeding the Immigration Judge did not inform him that he was eligible for a fast-track voluntary departure under 8 USC Sec. 1229c(a)(1).  The USCA concluded that the district court erred in finding that because the defendant’s previous California conviction for cocaine possession was an “aggravated felony,” he could not have been prejudiced by the IJ’s failure to inform him about relief from removal. The USCA thus reversed and remanded for further proceedings.  B. Fletcher, Trott, and Fisher, Circuit Judges.  Per Curiam.  AFPD J. Carr of Las Vegas, NV, for the defendant-appellant;  AUSA R. Bork of Las Vegas, NV, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  IMMIGRATION LAW:  Akhtar v. Burzynski, 02-57037 (9th Cir. Oct. 5, 2004).  Sese and Angeles appealed the district court’s grant of summary judgment for the Director of the Missouri Service Center of the INS, the INS, the Commissioner of the INS, and Attorney General Ashcroft.  Both appellants are natives and citizens of the Philippines and children of lawful permanent residents of the United States.  Their parents petitioned on their behalf to obtain permanent resident status.  While they awaited visa processing, they were granted V non-immigrant visas which allowed them to reunite with their families in the United States. These visas were terminated shortly after they received them, on the day before their 21st birthdays.  They now challenge the “age-out” provisions of the regulations promulgated by the INS, arguing that the provisions are contrary to Congress’s intent in enacting the underlying statute. The USCA found the age-out provisions of 8 CFR Sec. 214.15(g), as interpreted by the INS, to be contrary to congressional intent and to frustrate congressional policy.  The INS’s construction was thus not owed the deference normally granted and the USCA invalidated the age-out provisions of Sec. 214.15(g), and reversed and remanded for further consideration consistent with this opinion.  Browning (author), Reinhardt, and Wardlaw, Circuit Judges.  R. Dupont of Pasadena, CA, for the plaintiffs;  AUSA L. Weidman of Los Angeles, CA, for the defendants;(Download the full text of this decision at www.cc9.uscourts.gov/)

27)  IMMIGRATION LAW:  Alcaraz v. INS, 01-71171 (9th Cir. Oct. 1, 2004).  The petitioners sought review of a BIA decision affirming an IJ decision that ordered their removal and denied their application for suspension of deportation.  The petitioners were statutorily eligible for suspension of deportation at the time they submitted their application.  Before their applications were to be heard on the merits, however, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Sec. 309 of which retroactively made them ineligible for suspension of deportation. Specifically, Sec. 309(c)(5) retroactively changed the date that the clock stopped for calculating whether an alien meets the seven-year residency requirement for suspension of deportation.  As a result, when the petitioners went to their scheduled merits hearing, they were denied suspension of deportation because they fell 30 days short of the residence requirement under the Act’s new statutory scheme.  The USCA granted the petition in part, denied in part, and remanded.   First, it found that it was not barred from hearing the petitioners’  “repapering” claim by 8 USC Sec. 1252(g).  Second, the USCA concluded that its failure to review the repapering issue would result in manifest injustice. Third, it found that the government was not prejudiced by the petitioners’ failure to raise the issue in their opening brief because after oral argument, the USCA called for and received supplemental briefs by both parties on the repapering issue.  Fourth, the USCA declined to address whether the memoranda issued by the agency were sufficient to establish a policy to which the agency was bound under the Accardi doctrine.  The USCA remanded that issue to the agency for a determination in the first instance under the legal standards set out in the USCA’s opinion.  Finally, remand was appropriate given the Circuit’s general policy of allowing agencies to address issues in the first instance, and was especially appropriate here, where the repapering issue was raised at a late stage in the proceedings.  Remand was also proper because further factual development regarding the nature and extent of agency statements regarding repapering may be warranted.  Pregerson (author), Tashima, and Clifton, Circuit Judges.  V. Pradis of Los Angeles, CA, for the petitioners;  M. Candaux of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  IMMIGRATION:  Baltazar-Alcazar v. INS,  02-73363 (9th Cir. Oct. 21, 2004).  At issue here was whether the petitioners were denied the right to counsel when the Immigration Judge banned an entire law firm from representing them at their deportation hearing.  The USCA concluded that the petitioners did not knowingly and voluntarily waive their statutory right to counsel of choice and that they were prejudiced by the denial of that right.  The USCA thus granted the petition for review.  McKeown (author) and Bybee, Circuit Judges, and Breyer, District Judge.  V. Chan of Los Angeles, CA, for the petitioners;  P. Fiorino of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  IMMIGRATION:  Khotesouvan v. Morones, 04-35417 (9th Cir. Oct. 27, 2004).  At issue here is whether the government may continue to detain an alien ordered removed who has been held in custody for fewer than 90 days, but whose removal is not reasonably foreseeable.  The USCA held that an alien ordered removed whose removal is not reasonably foreseeable cannot raise a colorable claim for release under the Due Process clause of the Fifth Amendment until at least 90 days of detention have passed.  Hall (author), Kleinfeld, and Callahan, Circuit Judges.  AFD C. Dahl of Portland, OR, for the appellants;  AUSA K. Bauman of Portland, OR, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  IMMIGRATION:  Chavez-Perez v. Ashcroft, 02-72422 (9th Cir. Oct. 27, 2004).  The petitioner is an alien who was convicted in Oregon for first-time drug possession.  Though this conviction might be expunged from his record sometime in the future pursuant to Oregon’s rehabilitative statute, he has not yet qualified for this relief, and so the INS ordered him removed as an alien convicted of a felony controlled substance offense.  At issue is whether this removal order violates the petitioner’s rights under the Equal Protection clause.  The USCA concluded that because at the time his deportation order was upheld the petitioner had suffered a judgment of conviction for a drug offense, the INS had a rational basis for treating him differently from those aliens whose convictions have previously been expunged, or whose charges were deferred and later dismissed.  The USCA thus upheld the decision of the BIA and dismissed the petition for review.  Judge Fletcher dissented.  He believed that the majority misunderstood and misapplied Circuit precedent. Reavley, W. Fletcher (dissenting), and Tallman (author), Circuit Judges.  J. Bennett of El Cerrito, CA, for the petitioner;  C. Piccotti of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  SPEEDY TRIAL RIGHTS: USA v. Brandon P., 03-10646 (9th Cir. Oct. 13, 2004).  The defendant was convicted of first-degree murder, kidnapping and aggravated sexual abuse.  He challenged the district court's denial of his motion to dismiss for violation of his speedy trial rights under the Juvenile Delinquency Act, and its order transferring his case for adult prosecution.  The USCA dismissed the appeal of the denial of the motion to dismiss on speedy trial grounds for lack of jurisdiction and affirmed the district court’s decision to transfer the defendant for adult prosecution. Pregerson and Kozinski, Circuit Judges, and Rhoades (author), District Judge. T. Hoidal of Phoenix, AZ, for the defendant-appellant;  AUSA J. Ruffennach of Phoenix, AZ, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  CRIMINAL LAW & PROCEDURE: USA v. Cunag, 03-50067 (9th Cir. Oct. 7, 2004). The USCA affirmed Cunag's conviction for possessing stolen mail over his challenge that the police had illegally seized the stolen mail from a hotel room.  Cunag sought to suppress the stolen mail evidence from the hotel room which Cunag procured by registering under a false name, using a dead woman's credit card and providing admittedly forged authorization and identification documents.  The record conclusively demonstrated that the hotel manager had taken affirmative steps to repossess the room and to reassert control over it before calling the police and confronting Cunag.  It, fully supported the district court’s findings and conclusions that (1) Cunag was not lawfully present in the hotel room because he procured it through fraud, and (2) that he had no reasonable expectation of privacy in it, either objective or subjective, at the time of the disputed search.  Hall, Trott (author), and Callahan, Circuit Judges.  W. Harris of South Pasadena, CA, for the defendant-appellant;  AUSA P. Rhyne of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  JURY INSTRUCTIONS: USA v. Ramirez-Robles, 03-30122 (9th Cir. Oct. 21, 2004).  The defendant appealed his jury convictions for distribution of methamphetamine and conspiracy to distribute methamphetamine.  The charged transaction took place between the defendants girlfriend and a government informant.  At trial the girlfriend testified that she was acting at the defendant’s direction.  On appeal, the defendant maintained that there was insufficient evidence to convict him, that the district court erred by admitting evidence of his prior bad acts, and that the district court erred by excluding polygraph evidence without a Daubert hearing.  The USCA affirmed. It found that the evidence presented was sufficient to uphold the conviction.  The district court did not abuse its discretion in admitting the evidence of the defendant’s prior conviction for possession of methamphetamine for sale and the testimony of one Juan Mendez that the defendant had been selling him methamphetamine at the time of the charged transaction. Although it was an abuse of discretion to admit the defendant’s prior conviction for possession of a user quantity of methamphetamine, that error was harmless.  Finally, the district court did not err in excluding the polygraph testimony under Federal Rule of Evidence 403.  Its highly prejudicial nature outweighed the probative value of the polygraph testimony.  Hug (author), McKeown, and Fisher, Circuit Judges.  R. Fredericks of Eugene, OR, for the defendant;  AUSA D. Fong of Medford, OR, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  SENTENCING:  USA v. Fernandez, 01-50082 (9th Cir. Oct. 27, 2004).  The appellants were convicted on a variety of RICO and drug-trafficking charges relating to their participation in, or involvement with, the “Mexican Mafia” or “Eme,” a “gang of all gangs” which wields a significant amount of control over several California prisons and jails as well as street gangs in the Los Angeles area.   Four of the appellants raised challenges to their sentences.  The USCA affirmed the conviction of all the appellants, affirmed the sentences of three, and remanded for resentencing in the cases of three.  However, the USCA stayed the issuance of the mandate as to all the appellants except one pending the Supreme Court’s resolution of the impact of Blakely v. Washington, 124 S. Ct. 2531 (2004), on the federal Sentencing Guidelines.  B. Fletcher (author), Canby, and Rawlinson, Circuit Judges.  K. Stern of Woodland Hills, CA, and D. Ricker of Malibu, CA, for the defendants-appellants;  AUSA R. Dugdale of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  SENTENCING:  USA v. Smith, 03-30482 (9th Cir. Oct. 15, 2004).  The USCA affirmed Smith's conviction for retaliating against a federal witness in violation of 18 USC Sec. 1513(b)(2), but vacated her 33 month sentence and remanded for the district court to determine whether her crime constituted aberrant behavior, which would allow for a downward departure. As the government conceded at oral argument, Smith had been a law-abiding citizen, and this crime represented a departure from her “normal way of life.”  The USCA found that the district court’s analysis of the aberrant behavior issue rested on clearly erroneous factual findings, and it was not clear from the record that the district court understood its authority and decline to depart as a matter of discretion.  B. Fletcher (author), Hamilton, and Berzon, Circuit Judges.  J. Yellin of Havre, MT, for the defendant-appellant;  AUSA J. Thaggard of Great Falls, MT, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  SENTENCING:  USA v. Tzoc-Sierra, 03-10490 (9th Cir. Oct. 13, 2004).  The USCA affirmed the defendant's drug conviction and sentence over the government's challenge that the district court erred in granting a downward departure based on factors forbidden by the Sentencing Guidelines. Applying the new standard of review mandated by 18 USC Sec. 3742, the USCA concluded that the downward departure was justified by the disparity between the defendant's sentence and that of his co-defendants.  Schroeder, Canby (author), and Tallman, Circuit Judges.  AUSA B. Ferg of Tucson, AZ, for the appellant;  AFPD M. Janes of Tucson, AZ, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  SENTENCING:  USA v. Mayfield, 02-50381 (9th Cir. Oct. 29, 2004).  Mayfield appealed his sentence, imposed following his conviction after a jury trial, for possession of cocaine base with intent to distribute in violation of 21 USC Sec. 841(a).  The USCA affirmed. The government is not required by 21 USC Sec. 851(a) or by due process constraints to refile an information charging a prior felony drug conviction, and regive the notice required by Sec. 851(a), before the start of a defendant’s retrial.  The district court thus did not err in sentencing Mayfield in light of the enhanced penalties provided under 21 USC Sec. 841(b)(1)(A). Nor did the district court violate Blakely v. Washington, 124 S.Ct. 2531 (2004), or USA v. Ameline, 376 F.3d 967 (9th Cir. 2004), in imposing a 262-month sentence.  Thompson (author), Silverman, and Wardlaw, Circuit Judges.  D. Evans of Pasadena, CA, for the defendant;  AUSA T. Mack of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  SENTENCING:  USA v. Atondo-Santos, 04-10095 (9th Cir. Oct. 6, 2004).  The defendant pleaded guilty to possession with intent to distribute and importation of cocaine. As calculated in the Presentence Report, the Sentencing Guidelines recommend a sentence in the range of 108-135 months for these offenses, based on a total office level of 31 and a criminal history category of one.  The district court first sentenced the defendant in July 2001 to a sentence of 66 months in prison, departing downward from the Guidelines range on a finding of aberrant behavior.  The USCA reversed and remanded upon finding that the district court failed to articulate its reasons for the departure.  Upon remand, the district court imposed the identical sentence of 66 months, this time basing its downward departure on “minimal role,” as set forth in USSG Sec. 3B1.2(a), and on Koon v. USA, 518 US 81 (1996).  At that time the USCA concluded that further briefing and argument on the issues were necessary and that the record did not provide an adequate basis to decide the defendant’s eligibility for either the “minimal role” or Koon downward departure.  Again, the USCA reversed and remanded.  At its third and most recent sentencing hearing, the district court again sentenced the defendant to 66 months in prison. The USCA reversed, and exercising its supervisory power under 28 USC Sec. 2106, reassigned the case to a different district court judge for resentencing. Following the second remand, the district court received no new evidence to support its Koon and “minimal participant” departures.  Rather, it reiterated facts already in evidence, some of which constituted forbidden or discouraged grounds for departure under the Guidelines, and then sentenced the defendant to the same sentence of 66 months, ignoring the USCA’s reminder that Koon did not purport to create a new basis for departure, but merely clarified that the courts are not limited in the factors that may be considered for sentencing purposes.  The USCA noted that, in light of the history of the case and the previous remands, it is clear that the judge would have substantial difficulty in putting out of his mind his repeated, previously-expressed views that a 66 month sentence is appropriate. Goodwin (author), Hawkins, and Fisher, Circuit Judges.  C. Cabanillas of Tucson, AZ, for the plaintiff-appellant;  H. Torralba of Tucson, AZ, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  RESTITUTION:  USA v. Hayes, 02-10203 (9th Cir. Oct. 8, 2004).  Hayes was charged with operating a Ponzi scheme in involving the sale to Hawaii residents of working interests in Louisiana oil and gas leases.  The prosecution claimed that Hayes and his partners led investors to believe that as much as 85% of the invested funds were being used to acquire and run new oil and gas properties, whereas Hayes actually used most of this money to fund his lavish lifestyle.  At trial, the prosecution introduced evidence that of the $1,187,000 Hayes collected ostensibly for oil exploration and development, some $981,000 was deposited into bank accounts under Hayes’s direct personal control.   On May 7, 1993, Hayes was convicted by a jury of 14 counts of mail fraud, one count of wire fraud, and two counts of interstate transportation of stolen money.  He was sentenced to 20 years in prison, and ordered to pay $424,705 in restitution to individual non-federal victims of his fraudulent activity and $850 in special assessments and court costs.  He appealed and the USCA affirmed the trial court in an unpublished memorandum decision.  Hayes commenced paying the restitution as ordered.  The USCA subsequently ordered a new trial, finding that Hayes had not been made aware of the “dangers and disadvantages of self-representation.”  On remand, the district court granted the government motion to dismiss the case because the government had lost exhibits necessary for a new trial.  Hayes then sought reimbursement his restitution payments.  The USCA affirmed. Under the circumstances presented by this case, it concluded that Hayes was not entitled to reimbursement.  The government had properly held the restitution funds until the conviction was final and then distributed the money to identifiable victims.  Reinhardt, Thomas (author), and Clifton, Circuit Judges.  M. Wilkowski of Honolulu, HI, for the defendant;  AUSA H. Yee of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  HABEAS CORPUS: Gibson v. Ortiz, 03-56518 (9th Cir. Oct. 4, 2004).  The USCA found that the district court properly granted Gibson habeas relief where the use of California Jury Instruction, Criminal, No. 2.50.01, which pertains to evidence of prior sexual offenses, had allowed the jury to find guilt by relying on facts found only by a preponderance of the evidence;  this violated Gibson’s due process rights under In re Winship, 397 U.S. 358 (1970), which requires the prosecution to prove every element charged in a criminal offense beyond a reasonable doubt. Kleinfeld, Wardlaw (author), and Berzon, Circuit Judges.  R. Goldsen of Goleta, 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/)

41)  HABEAS CORPUS: Carter v. Giurbino, 02-56538 (9th Cir. Oct. 5, 2004).  The California Supreme Court issued a postcard denial of Carter’s habeas petition, citing only In re Lindley, 177 P.2d 918 (1947), which stands for the California rule that a claim of insufficient evidence can only be considered on direct appeal, and not in habeas proceedings.  In denying Carter’s federal habeas petition, the district court held that the Lindley rule is an independent and adequate state procedural bar and that Carter had procedurally defaulted his sufficiency of evidence claims by failing to pursue them to conclusion on direct appeal.  The USCA agreed and affirmed. Thompson, Silverman (author), and Wardlaw, Circuit Judges.  J. Sies of Los Angeles, CA, for the petitioner-appellant;  DAG S. Mercer of Los Angeles, CA, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  HABEAS CORPUS:  Gaston v. Palmer, 01-56367 (9th Cir. Oct. 28, 2004).  Gaston, a state prisoner, sought review of the district court’s dismissal of his habeas petition.  The district court held that Gaston’s petition was time-barred under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act.  Gaston conceded that he filed his petition more than one year after the statutory period began to run, but he made three arguments why the statute should be tolled.  The USCA agreed with his third argument, and held, on the facts of this case, that Gaston is entitled to tolling during the time his state court habeas applications were pending.  “Pending,” in this context, includes the intervals between the dismissal of one state application and the filing of the next one.  Because Gaston is allowed tolling for the time his state court applications were pending, his federal habeas petition is timely and the USCA reversed the dismissal of his petition and remanded for further proceedings.  Kleinfeld (dissenting), Wardlaw, and W. Fletcher (author), Circuit Judges.  G. Simon of Los Angeles, CA, for the petitioner;  A. Gaston of Vacaville, CA, for the petitioner.  K. Brodie of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  HABEAS CORPUS: Casey v. Moore, 03-35294 (9th Cir. Oct. 12, 2004).  Casey appealed the district court’s denial of his habeas petition, insisting that a biased jury, convened for a trial in an improper venue, convicted him after considering impermissible hearsay evidence, and after improper closing argument from the prosecutor, all in violation of the U.S. Constitution.  As Casey had not shown that prejudice could be presumed or that actual prejudice existed as a result of pretrial publicity, the USCA affirmed the district court’s denial of his motion to change venue.  The state trial court’s decision to keep the trial in Chelan County was not contrary to or an unreasonable application of federal law.  Casey’s two remaining claims—regarding alleged Confrontation Clause violations and prosecutorial misconduct—were not fairly presented to the Washington state courts, although they were exhausted upon Casey’s filing of his habeas petition because no other state remedies then remained available. Casey is not procedurally barred from exhausting these claims properly in Washington state, and an independent and adequate state procedural bar precluded the USCA review of the claims concerning hearsay and prosecutorial misconduct in closing argument.  The USCA dismissed these two claims, and affirmed the district court’s ruling that pretrial publicity did not require a venue change to preserve due process.  Canby, Wardlaw, and Gould (author), Circuit Judges. J. Browne of Seattle, WA,  for the petitioner;  AAG D. Sheythe and DAG P. Weisser of Olympia, WA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  PAROLE:  Swift v. California Dept. of Corrections, 02-57136 (9th Cir. Oct. 5, 2004).  Swift appealed the district court’s dismissal of his 42 USC Sec. 1983 action against two California parole officers.  He alleged that his Fourth Amendment rights were violated as a result of (1) the officers’ investigation of his suspected parole violations, (2) their ordering of his arrest pursuant to a parole hold, and (3) their initiation of parole revocation proceedings.  The district court found the officers entitled to absolute immunity under Sellars v. Procunier, 641 F.2d 1295 (9th Cir. 1981), and Anderson v. Boyd, 714 F.2d 906 (9th Cir. 1983).  However, the USCA found that the officers’ right to immunity was not controlled by these cases.  Applying the functional approach to absolute immunity in accordance with Antoine v. Byers & Anderson, Inc., 508 US 429 (1993), and Miller v. Grammie, 335 F.3d 889 (9th Cir. 2003) (en banc), it held that parole officers are not absolutely immune from suits arising from conduct distinct from the decision to grant, deny, or revoke parole. T.G. Nelson, Tashima (author), and Fisher, Circuit Judges.  J. Swift of Grants Pass, OR, for the plaintiff;  DAG R. Wolfe of San Diego for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  TAXATION / FRAUD:  Said v. CIR, 03-74445 (9th Cir. Oct. 25, 2004) (unpublished).  Kleinfeld, Tashima, and Gould, Circuit Judges. 

       Said appealed pro se the Tax Court’s decision finding income tax deficiencies for 1993, 1994, and 1995, and holding Said liable for penalties for all three years under IRC Sec. 6663(a).  The USCA reviewed the Tax Court’s decision to enforce a stipulation of facts for an abuse of discretion, and reviewed the Tax Court’s findings of fact for clear error. The USCA rejected Said’s contention that they should be relieved of their written stipulation of facts because they did not raise any objections to the stipulation at trial and enforcement would not result in manifest injustice.  See Tax Ct. R. 91(d)-(e) (requiring objections to be made in the stipulation or at trial and stating that stipulations are binding except in cases where “justice so requires”);  Bail Bonds by Marvin Nelson, Inc. v. CIR, 820 F.2d 1543, 1547 (9th Cir. 1987) (holding stipulation generally enforced unless manifest injustice would result).  The Tax Court did not err in disallowing Said’s deductions above and beyond those conceded by the CIR because Said presented only his vague and generalized testimony at trial, and the calculations in his post-trial briefing were not supported in the record.  See Boyd Gaming Corp. v. CIR, 177 F.3d 1096, 1098 (9th Cir. 1999) (taxpayer must produce sufficient evidence to show entitlement to a claimed deduction).  The USCA agreed with the Tax Court that Said is liable for the penalty under IRC Sec. 6663(a) because the underpayment of his tax liabilities was attributable to fraud.  See Bradford v. CIR, 796 F.2d 303, 307 (9th Cir. 1986) (holding that fraud may be inferred from circumstantial evidence, including such “badges of fraud” as understatement of income, inadequate records, and failure to cooperate with tax authorities).  The USCA thus affirmed.

2)  TAXATION / ADMISSIONS / SANCTIONS:  Salera v. CIR, 03-73217 (9th Cir. Oct. 29, 2004) (unpublished).  Kleinfeld, Tashima, and Gould, Circuit Judges. 

        Salera appealed pro se the Tax Court’s summary judgment in favor of the CIR in his action contesting tax deficiencies for the years 1997 and 1998.  The USCA had jurisdiction pursuant to 26 USC Sec. 7482, reviewed de novo, and affirmed.  The Tax Court properly granted summary judgment to the CIR because Salera failed to respond to a request for admission that he deposited income from his chiropractic practice into his trust, and that he systematically wrote checks from those trusts for his personal use and enjoyment, such as for a duck club membership and made payable to cash.  See Tax Court Rule 90(c) (stating that a request for admissions to which a taxpayer fails to respond is deemed admitted);  Neely v. U.S., 775 F.2d 1082, 1094 (9th Cir. 1985).  The Tax Court properly held that Salera was not entitled to deductions because he failed to present any evidence support that assertion.  See Zmuda v. CIR, 731 F.2d 1417, 1421 (9th Cir. 1984).  The USCA granted Salera’s March 10, 2004 motion to filed a late brief, which the USCA considered, and ordered the late brief filed.  Finally, the USCA granted the CIR’s motion for sanctions in the amount of $1,500.  See Grimes v. CIR, 806 F.2d 1451, 1454 (9th Cir. 1986) (per curiam) (“Sanctions are appropriate when the result of an appeal is obvious and the arguments of error are wholly without merit.”)

3)  UNFAIR COMPETITION:  California v. Transcanada Power, L.P., 03-15585 (9th Cir. Oct. 12, 2004) (unpublished).  Schroeder, Canby, and Tallman, Circuit Judges.

       These consolidated cases resulted from the electricity crisis that gripped California in the summer of 2000.  The State of California, by its Attorney General, filed suit in state court against each of the respondents, alleging that they had violated California’s proscription against unfair competition under Sec. 17200 of the California Business and Professions Code by failing to file “the charge, rate, price or contract” for “each and every sale or purchase of wholesale energy” with the Federal Energy Regulation Commission (“FERC”) as required by the Federal Power Act, and in charging “unfair, unreasonable, and therefore unlawful” rates in violation of the Act.  The USCA affirmed, concluded that disposition of this case is wholly controlled by California v. Dynegy, Inc., 375 F.3d 831 (9th Cir. 2004), and Pub. Util. Dist. No. 1 of Snohomish County v. Dynegy Power Mktg., Inc., 03-55191, 2004 WL 2021424 (9th Cir. Sept. 10, 2004) (“Snohomish”).   Dynegy held that California as plaintiff could not circumvent federal jurisdiction by couching undeniably federal law claims in state law terms.  Both of California’s claims in this case—that the respondents failed to file rates with FERC and charged unjust and unreasonable rates—are wholly predicated on violations of the Federal Power Act, which are within the exclusive jurisdiction of the federal courts.  See 16 USC Sec. 825p.  Removal was thus proper.   Dynegy also held that a “state that voluntarily brings suit as a plaintiff in state court cannot invoke the Eleventh Amendment when the defendant seeks removal to a federal court of competent jurisdiction.”  Dynegy, 375 F.3d at 848.  California thus was not entitled to use it Eleventh Amendment immunity as a shield against removal.   Snohomish held that field preemption, conflict preemption, and the filed rate doctrine all preclude a district court from deciding a case that requires it to determine a fair price for wholesale electricity, even in a market-based system, because to do so interferes with FERC’s exclusive jurisdiction to set wholesale electricity rates.  Here, California claims that the respondents charged an unjust and unreasonable rate, thereby implicitly asking the district court to determine what a price in a competitive market would have been.  Such a determination would violate all three preemption doctrines. Id. Moreover, Dynegy said that “remedies for breach and non-performance of FERC-approved operating agreements in the interstate wholesale electricity market fall within the exclusive domain of FERC.”  Dynegy, 375 F.3d at 852.  FERC decided that it need require only quarterly rate filings under a market-based tariff system “to assume that [sellers are] not exercising market power in the relevant market.”  See California v. B.C. Power Exch. Corp. 99 FERC Para. 61,247 (2002), 2002 WL 320355504, at *12. FERC further decided that the only remedy necessary for the respondents’ failure to file a quarterly report was to order the respondents retroactively to comply with the quarterly filing requirement.  See Id., at *16-19.  If California objects to this remedy, it must address its objection to FERC, not to the federal courts.  The district court correctly dismissed all of California’s claims.

4)  UNFAIR TRADE PRACTICES:  Thrush v. The Hillman Group, Inc., 03-16015 (9th Cir. Oct. 20, 2004) (unpublished).  Hall, Brunetti, and W. Fletcher, Circuit Judges.

      Thrush challenged the district court’s grant of summary judgment in favor of Hillman with respect to his claim that Hillman gave away products with the intent to injure Thrush in violation of California’s Unfair Trade Practices Act, Bus. & Prof. Code Sec. 17043.  Exercising jurisdiction under 28 USC Sec. 1291, the USCA affirmed the district court’s ruling.  Sitting in diversity, the USCA applied the substantive law of California.  The California Unfair Trade Practices Act provides that “it is unlawful for any person engaged in business within this state to sell any article or product at less than the cost thereof to such vender, or to give away any article or product for the purpose of injuring competitors or destroying competition.”  Cal. Bus. & Prof. Code Sec. 17043.  In granting summary judgment, the district court held that the racks herein at issue amounted to a permissible ancillary gift as a matter of law.  Co-Opportunities, Inc. v. Nat. Broadcasting Co., Inc., 510 F. Supp. 43, 50 (N.D. Cal. 1981) (holding that “the language in Sec. 170043 about ‘giving away’ a product refers to the giving away of a product that one normally sells”).  Because the district court found that Hillman was giving away racks, a product it did not normally sell, the court held that there could be no Sec. 17043 violation.  The district court erred, however, in considering this characterization dispositive.  As the California Court of Appeal held in Paramount General Hospital Co. v. National Medical Enterprise, Inc., 42 Cal. App. 3d 496 (1974), “From the point of view of the Act’s purpose—the fostering and encouragement of competition—it cannot matter which element of a package is functionally ‘ancillary’ to the other:  what is vital is whether the part of the package clearly covered by the Act is so substantial that cost-cutting with respect to it can be used as a means to injure or destroy competition.”  Id. at 503.  Therefore, the proper inquiry is whether the combined sale price for the racks and fasteners is less than the cost to Hillman of the racks and fasteners taken together.  Thrush presented no evidence that Hillman sold racks and fasteners, as a package, for less than the total cost of the package.  The USCA thus affirmed the district court’s grant of summary judgment in favor of Hillman.

5)  SECURITIES / SANCTIONS:  Blank v. Securities and Exchange Commission, 03-71845 (9th Cir. Oct. 12, 2004) (unpublished).  Hall, Brunetti, and Graber, Circuit Judges.

       The petitioner sought review of an order of the SEC which upheld sanctions imposed by the American Stock Exchange.  The USCA affirmed.   In his April 21, 1997 affidavit, the petitioner swore that he had not “transferred” the stocks for which he was requesting a replacement certificate.  He maintained that this statement was true, whereas the SEC found that it was false.  Both parties agreed that the petitioner transferred his shares to Coleman in satisfaction of his outstanding note, when he executed an irrevocable stock power in favor of Coleman in January 1997.  Substantial evidence in the record supported the SEC’s further finding that those shares were never transferred back to the petitioner.  For example, the petitioner requested that replacement stock certificates be sent directly to Coleman when the original were lost, and the certificates stayed in Coleman’s possession.  Nine days after the supposed transfer back to the petitioner, he insisted that the shares were not his, that they had been “incorrectly journaled” in his account, and that this notation should be removed.  Coleman complied with his request.  Moreover, the March 27 agreement, which the petitioner signed, provided that “Coleman shall retain” the stock.

6)  SECURITIES:  Securities and Exchange Commission v. Gahr, 03-15879 (9th Cir. Oct. 12, 2004) (unpublished).  Rymer, Tallman, and Bea, Circuit Judges.

     Petitioner Gahr, a Canadian national, appealed from the district court’s entry of default judgment against him after he failed to file an answer to a SEC complaint alleging various violations of federal securities laws in connection with Chill Tech, Inc.  He argued that his failure to answer the complaint was “excusable neglect” under Fed. R. Civ. P. 60(b), caused by his naivete and unfamiliarity with the American judicial system.  The USCA rejected this argument and affirmed the district court’s decision.  To successfully set aside a default judgment because of excusable neglect, Gahr must show that:  (a) he was not culpable of conduct that led to the default;  (b) he has a meritorious defense to the complaint;  and (c) the SEC would not be prejudiced by reopening the case.  Franchise Holding II, LLC v. Huntington Restaurants Group, Inc. 375 F.3d 922 (9th Cir. 2004).  Gahr bears the burden of showing that all three factors weigh in favor of vacating the default judgment.  Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1987).  Gahr failed to show that any of the three factors favor vacatur.  The record indicated that Gahr knew that SEC had filed a complaint against him, initially requested an extension, acknowledged that he was required to file an answer in district court, and retain and attorney to represent him on other matters related to the SEC’s investigation—all evidence of his comprehension and sophistication in dealing with the American judicial process.  Yet, inexcusably Gahr failed to file any answer.  Secondly, Gahr’s supposed meritorious defense, that he was not a “control person” in Chill Tech, is irrelevant since any individual may be liable for the claims brought by the SEC in its civil enforcement action.  Finally, Gahr supplied no evidence that the SEC will not be prejudiced by reopening the case.  Thus, because Gahr meets none of the conditions excusing him from filing an answer, the USCA affirmed the district court’s entry of default judgment.
 

7)  CONTRACTS:  Cooper v. City of Ashland, 03-15169 (9th Cir. Oct. 6, 2004) (unpublished).  Beezer, W. Fletcher, and Fisher, Circuit Judges.

        Cooper appealed from a jury verdict on his breach of contract claims.  In the event of reversal, the City of Ashland cross-appeals, contending that it was error to change venue to the Northern District of California.  Cooper’s claim arose out of an oral settlement agreement he and the City entered into in 1990 following disputes about a subdivision that Cooper wished to develop in Ashland.  As part of the agreement, the City promised to provide a letter from its engineering department explaining the requirements that Cooper would have to meet in order for the project to go forward.  The parties agreed that District Court Judge Michael Hogan, who had overseen the settlement negotiations, would decide whether the City’s letter was adequate, and that there would be no appeal from his determination.  At the time the settlement agreement was reached, Judge Hogan, speaking in open court, described his role in the agreement as follows:   “The city will give Mr. Cooper a letter from their engineering department, a letter which is satisfactory to me, which explains any other requirements the city may have concerning the subdivision.”  After the parties agreed on settlement terms, Judge Hogan continued to oversee discussions between Cooper and the City.  In August 1993, Judge Hogan determined that a series of letters and other communications between the City and Cooper were adequate to satisfy the City’s engineering letter requirement.  In October 1993, Judge Hogan entered an order stating that the settlement agreement was valid and enforceable and that the City had complied with it.  Cooper then sued the City for breach of contract.  The district court granted summary judgment for the City on the basis of Judge Hogan’s order.  The USCA reversed, holding that under a Supreme Court case decided after the settlement was reached, Kokkonen v. Guardian Life Ins., Co., 511 US 375 (1995), Judge Hogan lacked jurisdiction to enforce the agreement.  Based on Kokkonen, the USCA held that his conclusion that the City had complied with the agreement’s terms lacked binding legal effect in the sense of a judgment of the court.  At trial on remand, Cooper moved in limine to exclude Judge Hogan’s testimony and transcripts of post-settlement proceedings before him.  The district court denied these motions, but limited Judge Hogan’s testimony to his views on the sufficiency of the engineering letter, barring him from testifying about the ultimate enforceability of the settlement agreement.  Following testimony by Judge Hogan and by several other witnesses, the jury found for the City.  Cooper maintained that the district judge erred by admitting Judge Hogan’s testimony and the transcripts of the proceedings before him, by failing to instruct the jury that under Oregon law a contract must be performed within a reasonable time if no term for performance is specified, and by not recusing herself. 

      The USCA affirmed.  First, it concluded that the district court did not err in admitting Judge Hogan’s testimony.  Federal Rule of Evidence 403 provides that relevant evidence may be excluded only “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”  Judge Hogan’s testimony had great probative value and was not unfairly prejudicial. The settlement agreement specifically assigned to Judge Hogan the role of determining whether the City had furnished a satisfactory letter from the engineering department. Because the sufficiency of the City’s performance was the central issue at trial, Judge Hogan’s testimony on this point was highly probative.  Moreover, Judge Hogan’s contractually assigned role as arbiter of the letter’s adequacy was distinct from his office as federal judge and was not conditional on his retention of formal jurisdiction over the case.  Cooper was not unfairly prejudiced by Judge Hogan’s testimony.  A judge’s testimony is not prejudicial merely because the jury may perceive a judge as possessing particular “prestige, dignity and authority.”  U.S. v. Fleming, 215 F.3d 930, 936 (9th Cir. 2000). Cooper’s second assignment of error is not preserved because he did not clearly objet at trial, as Fed. R. of Civ. P. 51 requires, to the court’s failure to give a “reasonable time” instructions to the jury.  To preserve a Rule 51 objection, litigants must be clear that they are objecting on legal grounds and not merely telling the district judge their preferences.  U.S. v. Parsons Corp., 1 F.3d 944, 945 (9th Cir. 1993).  Although Cooper’s attorney raised in passing to the trial judge the possibility of giving a “reasonable time” instruction, he appeared to accept the judge’s opinion that such an instruction was not necessary, and he did not pursue the issue further. Even if Cooper had preserved this objection, he was not prejudiced by the trial court’s failure to give the instruction.  An error in jury instruction is harmless if “the evidence would have supported a verdict for the [prevailing party] even with the requested instruction.”  Lambert v. Ackerly, 180 F.3d 997, 1008 (9th Cir. 1999).  Here, a “reasonable time” instruction would have been largely redundant because the jury was instructed that it could consider the City’s “lack of diligence in providing the engineering letter” in determining whether the City had breached its duty of good faith. 

8)  BANKRUPTCY FRAUD:  USA v. Tomlinson, 03-50558 (9th Cir. Oct. 8, 2004) (unpublished).  Hug, T.G. Nelson, and Wardlaw, Circuit Judges.

      Tomlinson and Lubanko appealed their convictions and sentences following their guilty pleas to bankruptcy fraud, equity skimming, conspiracy, false representation of a social security number, and false statement in bankruptcy.  They alleged that the district court erred (1) in calculating the amount of loss under the Sentencing Guidelines, (2) in denying them an evidentiary hearing as to the amount of loss, and (3) in calculating restitution.  They also argued that they should be permitted to withdraw their guilty pleas because of ineffective assistance of counsel.  The USCA had jurisdiction pursuant to 28 USC Sec. 1291, vacated the appellants’ sentences, and remanded for resentencing.  However, the USCA declined to entertain their ineffective assistance of counsel claims.  Claims of ineffective assistance of counsel are generally inappropriate on direct appeal.  U.S. v. Ross, 206 F.3d 896, 900 (9th Cir. 2000).  “Such claims normally should be raised in a habeas proceeding, which permit counsel to develop a record as to what counsel did, why it was done, and what, if any prejudice resulted.” Id.  The record here has not been sufficient developed to warrant consideration of the appellants’ claims, and the USCA declined to do so.  Although the parties have not briefed the question, potential Blakely issues exist with regard to the loss and restitution calculations which were based in part on facts neither found by a jury nor admitted by the appellants.  The USCA thus vacated the appellants’ sentences and remanded for reconsideration in light of U.S. v. Ameline, 02-30326 WL 1635808 (9th Cir. July 21, 2004) (applying Blakely v. Washington, 124 S.Ct. 2531 (2004) to the U.S. Sentencing Guidelines).  See U.S. v. Castro, 03-50444 (9th Cir. Aug. 27, 2004) (per curiam). 

9)  BANKRUPTCY:  In re Telsave Corporation, 03-16009 (9th Cir. Oct. 27, 2004) (unpublished).  Rymer, Tallman, and Bea, Circuit Judges.

       The defendant-creditor First Security Bank (“FSB”) appeals the Bankruptcy Appellate Panel’s decision affirming summary judgment for the plaintiff trustee, voiding a preferential pre-petition transfer from the debtor Telsave Corporation (“Telsave”) to FSB.  28 USC Sec. 158(d).  The USCA affirmed.  It reviewed de novo the bankruptcy court’s ruling on appeal from the BAP.   In re Jan Weilert RV, Inc., 315 F.3d 1192, 1196 (9th Cir. 2003).  Findings of fact are reviewed for clear error. Id. at 1196.  Bankruptcy court conclusions of law and summary judgment orders are reviewed de novo. In re Filtercorp, Inc., 163 F.3d 570, 578 (9th Cir. 1998).  FSB’s three arguments failed to save the preferential transfer from being voided by the bankruptcy estate. FSB’s unjust enrichment argument failed because in neither appeal did it discuss the elements of an unjust enrichment claim, cite any legal authority in support of its assertion that the bankruptcy estate will be unjustly enriched, or make any arguments going beyond bald conclusions.  FSB’s ordinary course of business defense (11 USC Sec. 547(c)(2)) argument failed because the final payment at issue was unusual in amount, there was no consistent date on which payments were made, and the debtor had only been making payments for a short period of time.  Additionally, FSB did not even present evidence as to whether the debt was incurred in the ordinary course of business in accordance with prevailing business standards.  In re Jan Weilert RV, Inc., 315 F.3d at 1197.  Finally, FSB’s “new value” defense (11 USC Sec. 547(c)(4)) failed because the text of the statute requires that the transfer of new value must be from such creditor to whom the alleged preferential transfer was made.  The creditor-transferee, not a third party, must be the one to extend new value to the debtor.  Given the lack of legal authority to support it, FSB failed to convince the USCA that his defense should be extended to transfers of alleged new value made by third parties other than the creditor-transferee. 

10)  BANKRUPTCY:  California v. USA, 04-55650 (9th Cir. Oct. 22, 2004) (unpublished).  Kleinfeld, Tashima, and Gould, Circuit Judges. 

       Appellants Thelma Spiritos and Polymnia Vouis appealed the district court’s denial of their motion for injunctive relief against bankruptcy trustee Neilson, and his counsel.  Because the district court subsequently dismissed the appellants’ actions against these appellees, the appellants’ interlocutory appeal merged with the dismissal of the claims.  See Securities & Exch. Comm’n v. Mount Vernon Memorial Park, 664 F.2d 1358, 1361 (9th Cir. 1982).  Therefore, the appeal of the denial of their motion for injunctive relief is moot.  See Mount Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir. 1992) (stating that when underlying claims have been decided, the reversal of a denial of preliminary injunction would have no practical consequences, and the issue is therefore moot).  Accordingly, the USCA dismissed the appellants’ appeal of the denial of injunctive relief as moot.  See Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985) (holding that federal courts lack jurisdiction to decide moot issues).

11)  IMMIGRATION:  Oukacine v. Ashcroft, 03-70992 (9th Cir. Oct. 22, 2004) (unpublished).  Reinhardt, Wardlaw, and Paez, Circuit Judges.

      Petitioners Mohammed and Mouloud Oukacine, two brothers who are natives and citizens of Algeria, petitioned for review of the Board of Immigration Appeals’ summary affirmance of the Immigration Judge’s denial of their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).  In cases of streamlining, the USCA noted that it reviews the IJ’s decision as if it were that of the BIA.  The IJ found that the brothers testified credibly and that they had a subjective fear of future persecution.  However, he also found that neither brother had been the victim of past persecution on account of a protected ground and that neither had a well-founded fear of future persecution on account of a protected ground.  The USCA agreed.  The brothers requested asylum and withholding of removal.  They fear persecution (1) by the government on account of their Berber ethnicity, (2) by the government on account of imputed anti-government opinion, and (3) by Islamic militant groups, which the government is unable or unwilling to control, on account of imputed pro-government opinion.  With respect to the first two grounds, the brothers did not demonstrate that they had been the victims of treatment by the government that rose to the level of persecution.  Nor did they show specific governmental threats of future persecution.  Moreover, there is no discussion of any governmental persecution of Berbers in the State Department Report, and the brothers’ other documentary evidence is equally inadequate to support a well-founded fear of such future persecution.  Additionally, while the people of Algeria still face serious civil strife and while the Algerian government punishes Islamic militants harshly, there is no evidence in the record that the government persecutes people like the brothers because of mistaken assumptions about their involvement with terrorist groups.  With regard to the third ground, while the Oukacine family may have been threatened by terrorist because of Mouloud’s refusal to provide them with medical supplies and while the government may have refused to protect the family, there is insufficient evidence that the threats were due to any motivation other than the desire to coerce Mouloud into turning over such supplies to the terrorists.  While threats by those opposing the government can be the basis of an asylum claim if the government is unwilling or unable to control the threatening group, the threats must be on the basis of a protected ground.  Otherwise, the claim fails.  INS v. Elias-Zacarias, 502 US 478, 481 (1992).  Because the brothers did not meet their burden for asylum, they likewise did not meet their burden for withholding of removal.  The USCA also found that the brothers are not entitled to relief under CAT, which requires that it be more likely than not that the alien will face torture as defined by the regulations upon removal. Reyes-Reyes v. Ashcroft, 2004 US App. Lexis 19156, *8-9 (9th Cir. 2004).  While CAT is not limited to torture on the basis of protected classifications, Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001), the brothers have not met their burden of establishing that they would likely be subjected to that level of harmful treatment if they returned to Algeria.

12)  IMMIGRATION:  Abramov v. Ashcroft, 03-71856 (9th Cir. Oct. 22, 2004) (unpublished).  D.W. Nelson and Thomas, Circuit Judges, and Ezra, District Judge. 

       Abramov, a native and citizen of the Ukraine, petitioned for review of the BIA’s summary affirmance under 8 CFR Sec. 1003.1(e)(4), without opinion, of the IJ’s denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture.  The USCA granted the petition for review and remanded.  In his oral decision, the IJ made a number of passing remarks questioning Abramov’s credibility.  However, because the IJ failed to make an explicit adverse credibility finding, the USCA said it had to presume Abramov’s testimony to be true.  Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994). Taken as true, Abramov was subjected to a groundless prosecution for rape because of his outspoken political beliefs.  Objective evidence in the record supported his claim that during this period fabricated rape charges were used by the Soviet regime against persons charging public officials with corruption.  His claim was further bolstered by the fact that, when the Soviet police searched his apartment as part of the criminal investigation, the only items taken were writings related to political activities, including a letter that he testified he had written to Pravda, a complaint of six typed pages alleging misconduct on the part of the head of the Belgordo-Dnestovskii port, and two student notebooks with the handwriting of Abramov about the alleged misconduct.  Further, the accusing witness was inconsistent in her statements, and there is evidence in the record that she may have been subject to coercion.

13)  IMMIGRATION:  Salhani v. Ashcroft, 03-70773 (9th Cir. Oct. 21, 2004) (unpublished).  Schroeder, Goodwin, and Tashima, District Judge. 

       The Salhani, husband and wife and citizens of Lebanon, petitioned for review of the BIA decision summarily affirming the IJ’s denial of their application for asylum, withholding of removal, and relief under the Convention Against Torture.  The petitioners maintained that the BIA’s summary affirmance procedures violate due process.  But, Falcon Carriche v. Ashcroft, 350 F.3d 845, 849-52 (9th Cir. 2003), held they do not.  The petitioners’ constitutional arguments are thus foreclosed.  The petitioners’ claims for asylum are barred by their failure to exhaust their administrative remedies with respect to the IJ’s finding of firm resettlement in Saudi Arabia.  They did not appeal this finding to the BIA.  Finally, in support of the claim for withholding of removal, the petitioners must establish a clear probability of future persecution in Lebanon.  The only evidence to support the claim of past persecution, and hence an inference of future persecution, relates to being stopped at a checkpoint in Lebanon, detained, harassed, and later released.  That evidence did not compel a finding of past persecution on account of a protected ground. See INS v. Elias Zacarias, 502 US 478 (1992).

14)  IMMIGRATION:  Yonan v. Ashcroft, 03-70195 (9th Cir. Oct. 22, 2004) (unpublished).  B. Fletcher, Leavy, and Berzon, Circuit Judges. 

       Yonan, a native and citizen of Iraq, petitioned for review of the BIA’s decision dismissing his appeal from an IJ’s denial of his application for asylum, withholding of removal, and relief under the UN Convention Against Torture (“CAT”).  Yonan’s wife and minor son applied for asylum as derivative beneficiaries of Yonan’s claim.  The USCA had jurisdiction under 8 USC Sec. 1252 and granted the petition.  “Where … the BIA has reviewed the IJ’s decision and incorporated portions of it as its own, we treat the incorporated parts of the IJ’s decision as the BIA’s.”  Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002).  The denial of asylum is reviewed for substantial evidence.  Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir. 2000).  Yonan claimed that he was persecuted on account of his religion during two distinct time periods:  first, in 1990-91 when he was conscripted into the Iraqi military and harassed, detained, beaten, and threatened with death;  and second, in 1997, in the Kurdish controlled region of Northern Iraq, where he was harassed and his wife was raped.  The IJ found that Yonan’s testimony was not credible with respect to the alleged persecution in 1990-91.  This finding was based on discrepancies in Yonan’s accounts of his presence in Iraq in 1991.  The BIA adopted the IJ’s findings regarding the discrepancies and Yonan’s lack of credibility.  Substantial evidence supports this adverse credibility determination.  Both the BIA and IJ, however, disregarded the alternate basis of asylum eligibility:  the harassment of Yonan and sexual abuse of his wife in 1997.  Yonan testified that he and his wife lived peacefully in Northern Iraq until 1996, when fighting broke out between the two major Kurdish factions.  Yonan and his family were targeted because he is a Chaldean Christian.  In May 1997, people from the Kurdish faction took Yonan from his home, interrogated him, and detained him for four hours.  When he returned home, he learned that two men from the same group had gone to his home while he was gone and had beaten and raped his wife, who was pregnant.  They fled to Turkey, where his wife had a miscarriage.  The wife testified at the hearing and confirmed Yonan’s account of her rape and their flight from Iraq. As the BIA did not indicate that it doubted the wife’s credibility, the USCA noted that it must take her version of the 1997 events as established.  Navas v. INS, 217 F.3d 646, 652 n.3 (9th Cir. 2000).  Yonan’s asylum application was also consistent with his testimony about the events of 1997.  The USCA thus remanded to the BIA for a determination in the first instance whether Yonan has established eligibility for asylum, withholding of removal, and relief under CAT abased upon the uncontested evidence provided by Yonan and his wife about the 1997 events in Northern Iraq.

15)  IMMIGRATION:  Wang v. Ashcroft, 03-73894 (9th Cir. Oct. 25, 2004) (unpublished).  Kleinfeld, Tashima, and Gould, Circuit Judges. 

      Wang, a native and citizen of China, petitioned for review of the BIA’s decision summarily affirming the IJ’s denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).  The USCA reviewed the adverse credibility determination for substantial evidence, and granted the petition.  It found that substantial evidence did not support the IJ’s adverse credibility finding.  The petitioner’s asylum claim was based on his arrest for holding Christian meetings at his home in China.  The IJ found that the petitioner was not credible based on minor inconsistencies and implausibilities not going to the heart of the petitioner’s religious asylum claim.  Two discrepancies were noted regarding dates, which are minor discrepancies that cannot support an adverse credibility finding. Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988) (“minor inconsistencies … such as discrepancies in dates which reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding”).  The IJ’s finding that the petitioner failed to testify in a “high spiritual tone” about “his love of God” was improper speculation regarding how the petitioner expresses his faith and cannot support an adverse credibility finding.  Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000).  Similarly, speculation regarding why the petitioner would hold religious meetings close to where a committee member lived and why the petitioner’s wife was not arrested, when she did not attend the meeting where the arrest occurred, were improper conjectures. Id.  The IJ’s finding that it was implausible that the petitioner had difficulty communicating on the flight to the U.S., did not look at his passport when he arrived, and did not have a conversation with an immigration inspector in Mandarin, were minor facts not going to the heart of his claim.  Whether the petitioner’s pastor in the U.S. told him that a second baptism would “cleanse” him was also a fact unrelated to his religious persecution in China and thus could not support an adverse credibility finding.  Finally, since the inconsistencies were not substantial, the petitioner was not required to provide corroboration of his claim.  Salaam v. INS, 229 F.3d 1234, 1239 (9th Cir. 2000).  The USCA thus concluded that substantial evidence did not support the adverse credibility determination and deem petitioner credible.  The USCA remanded for the BIA to consider the merits of the petitioner’s asylum, withholding of removal, and CAT claims.

16)  IMMIGRATION:  Ibrahim v. Ashcroft, 03-73721 (9th Cir. Oct. 26, 2004) (unpublished).  Kleinfeld, Tashima, and Gould, Circuit Judges. 

       Ibrahim, a native and citizen of Ethiopia, petitioned for review of a decision of the BIA affirming, without opinion, an IJ’s denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The USCA had jurisdiction under 8 USC Sec. 1252(a), reviewed the IJ’s ruling for substantial evidence, and denied the petition for review.  It found that substantial evidence supported the IJ’s conclusion that even if the petitioner’s testimony were taken as true, she failed to establish past persecution or a well-founded fear of future persecution on account of imputed political opinion.  The record was devoid of any suggestion that the Ethiopian government imputed to the petitioner her father’s or brother’s political views, or that their past political activity would lead to her persecution in the future.  Thus, there was no “evidentiary nexus” between the petitioner’s family members’ past persecution, and her fear of future persecution.  To the extent she claimed fear of persecution on account of her Oromo ethnicity, she failed to show a particularized risk of persecution.  Instead, she merely cited general conditions of discrimination in Ethiopia, which was not enough to satisfy her burden of proving eligibility for asylum.

17)  IMMIGRATION:  Mirmehdi v. INS, 03-56261 (9th Cir. Oct. 4, 2004) (unpublished).  Pregerson, McKeown, and Bybee, Circuit Judges. 

       Four brothers from Iran raised the issue of whether the district court properly denied their habeas petitions alleging improper revocation of bonds and subsequent detention without bond during their ongoing removal proceedings.  Separately, the brothers’ removal proceedings moved forward on a parallel track.  An IJ denied the asylum applications of all four brothers and found them ineligible for withholding removal.  Mohammad-Reza Mirmehdi and Mohsen Mirmehdi appealed the denial of asylum to the BIA.  Mostafa Mirmehdi and Mojtaba Mirmehdi did not appeal their asylum decision.  All four appealed the withholding of removal decision.  On August 20, 2004, the BIA affirmed the IJ’s denial of the asylum claims of Mohammad-Reza and Mohsen but granted all of the brothers withholding of removal.  Mostafa and Mojtaba did not appeal the denial of their asylum claim. They were ordered removed, although their removal was stayed.  They have no right to appeal from that order.  Once they were ordered removed, 8 USC Sec. 1231(a)(2) commands the AG to detain them.  Because the AG has independent, superceding reasons for detaining them, their appeals as to revocation of bonds were moot.  Mohammad-Reza and Mohsen appealed the denial of their asylum claims to the BIA, which in turn affirmed the denial.  Because they have now appealed the denial of their asylum claims, their appeals of the denial of bond revocation are not moot.  The bond revocation was predicated in large part on findings regarding their involvement in terrorist activity.  In light of the BIA’s findings to the contrary in its April 30, 2002 decision, the USCA found itself faced with contradictory findings by the BIA.  Agencies have a general duty of consistent dealing. When they change direction, whether on matters of law, policy, or fact, they have an obligation to explain themselves.  Ordinarily, consistency in factual findings are enforced through the Circuit’s collateral estoppel rules.  Here, the BIA did not invoke either res judicata or collateral estoppel.  Rather, the BIA took a second look at the facts and came to a different conclusion.  The BIA has not offered a satisfactory explanation of its inconsistent treatment of the Mirmehdis.  As to Mohammad-Reza and Mohsen, the USCA granted the petition and remanded these cases to the district court for review of the sufficiency of the evidence in light of the BIA’s decision finding no evidence connecting the Mirmhedis to terrorist activities.