1)  ANTITRUST / PUBLIC UTILITIES:  Public Utility District No. 1 v. Dynegy Power Marketing, Inc., 03-55191 (9th Cir. Sept. 10, 2004).  This case arose out of the California energy crisis of 2000-01, when shortages of power and high electricity prices caused blackouts and turmoil in the electricity markets of the west coast.  Public Utility District No. 1, a utility providing electricity to consumers in Washington state, sued generators and traders of wholesale electricity for violations of California's antitrust and consumer protection laws.  It maintained that the defendants manipulated the market and restricted electricity supplies in order to cause artificially high prices in the market from which it purchased power.  The USCA affirmed the district court's dismissal of the suit on preemption grounds.  The Federal Energy Regulatory Commission (FERC) approved the tariffs that govern California wholesale electricity markets.  Thus, if the prices in those markets were not just and reasonable or if the defendants sold electricity in violation of the filed tariffs, the plaintiff's only option is to seek a remedy before the FERC.  Schroeder (author), Canby, and Tallman, Circuit Judges.  S. Berman of Seattle, WA, for the appellant;  T. Houlihan of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  ANTITRUST / PUBLIC UTILITIES:  MetroNet Services Corp. v. Qwest Corp., 01-35406 (9th Cir. Sept. 24, 2004). After Quest offered volume discounts on phone services to businesses with more than 20 phone lines, MetroNet began purchasing those services from Quest and reselling them to small businesses with 20 or fewer phone lines.  MetroNet received the volume discounts by aggregating the phone lines of these small businesses.  In order to eliminate resale of its services, Qwest changed the pricing structure of its calling features and required its customers have at least 21 lines at each location in order to receive the volume discount.  MetroNet sued, alleging that Qwest maintained a monopoly over the market for small business telephone services.  The USCA affirmed the district court's grant of summary judgment for Qwest on MetroNet's essential facilities and monopolization claims;  Qwest's change in pricing in order to eliminate arbitrage did not amount to exclusionary conduct.  Browning, Fisher (author), and Tallman, Circuit Judges.  J. Phillips of Seattle, WA, for plaintiffs-appellants;  T. Boeder of Seattle, WA, for the defendant-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

3)  TRADEMARKS:  Jerry's Famous Deli, Inc. v. Papanicolaou, 03-55114 (9th Cir. Sept. 9, 2004).  In this protracted trademark dispute between two deli-style restaurants, both featuring a New York / Broadway theme, including an extensive menu of deli-style fare, Broadway show posters, celebrity photos, and stage lighting fixtures, the USCA upheld the district court's finding of civil contempt against the defendant for violation of a stipulated injunction governing trademark use;  however, the USCA vacated and remanded the district court's disgorgement of profits sanction because the record did not provide a rationale for rejecting the defendant's challenges to the auditor's calculations.  McKeown (author) and, Bybee, Circuit Judges, and Breyer, District Judge.  D. McCarthy of Los Angeles, CA, for the defendant-appellant;  S. Young of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  INTELLECTUAL PROPERTY / CONTRACTS: Polar Bear Productions v. Timex Corp., 03-35188 (9th Cir. Sept. 3, 2004).  Timex arranged with Polar Bear Productions to produce film footage featuring some of the stars of whitewater kayaking, paddling through exotic locales and using equipment bearing the Timex logo.  Timex continued using the footage well beyond any permission to do so.  Two jury verdicts awarded in excess of $2 million to Polar Bear.  On appeal, the USCA vacated the jury award, finding that the evidence at trial was insufficient to support a finding that the loss and indirect profits resulted from Timex's infringements.  It also concluded that the district court erred in barring prejudgment interest, and it reversed the district court's grant of Timex's motion for summary judgment on Polar Bear's trademark claims under state law.  The USCA remanded the actual damages award with instructions for the district court to remit the amount related to lost profits.  It vacated the damages award for Timex's profits as speculative.  It also reversed the district court's determination that prejudgment interest is unavailable under the Copyright Act of 1976 and remanded for reconsideration consist with it opinion.  Finally, it reversed the district court's dismissal of Polar Bear's state law trademark infringement claim.  Brunetti, McKeown (author) and, Gould, Circuit Judges.  R. Lukes of Missoula, MT, for the plaintiff-appellee;  R. Zissu of New York, NY, and R. Bender of Missoula, MT, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

 5)  COPYRIGHTS:  Grosso v. Miramax Film Corp., 01-57255 (9th Cir. Sept. 8, 2004).  The USCA affirmed the district court's grant of summary judgment in favor of Miramax on Grosso's copyright claim;  Grosso had alleged that Miramax stole ideas and themes from his copyrighted screenplay "The Shell Game" and used them in its movie "Rounders."  While noting that the two works are not substantially similar, the USCA found that Grosso's claim for breach of an implied contract was not preempted by the Copyright Act as it alleged an extra element, the bilateral expectation of compensation, which transformed the action from one arising under the federal Act to one sounding in contract under California state law.  This contract claim sought compensation not for the actual written script, but for the idea allegedly embodied in the scrip and shared with Miramax.  Schroeder (author), Thompson, and Graber, Circuit Judges.  J. Marder of Los Angeles, CA, for the appellant;  R. Charnley of Santa Monica, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  SECURITIES:  Nursing Home Pension Fund, Local 144 v. Oracle Corp., 03-15883 (9th Cir. Sept. 1, 2004).  Purchasers of Oracle stock appealed a district court's dismissal under Rule 12(b)(6) of their revised second amended complaint against Oracle and three of its officers.  They argued that the district court erred in dismissing their complaint as it set forth allegations that raised a strong inference of scienter, as required by the Private Securities Litigation Reform Act (PSLRA) and Rule 9(b).  The USCA reversed and remanded.  The PSLRA was designed to eliminate frivolous or sham actions, not actions with substance.  The complaint of alleged false representations, both as to current facts and future estimated profits and sales as well as the improper revenue adjustment and unusual stock sales, provided a basis for the cause of action against Oracle and its three executives.  Ferguson (author), Reinhardt, and Paez, Circuit Judges.  S. Svetcov of San Diego, CA, for the appellants;  D. Falk of Palo Alto, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  TAXATION:  USA v. Boulware, 02-10287 (9th Cir. Sept. 14, 2004).  The USCA reversed the defendant's convictions for filing false returns.  The district court abused its discretion by excluding evidence of a state-court judgment that directly supported the defense and directly contradicted the government's theory of the case—that the defendant had stolen money from his closely-held corporation, Hawaiian Isles Enterprise (HIE), and gifted it to his girlfriend.  As the error went to the heart of the defense and was not harmless beyond a reasonable doubt, the defendant is entitled to a new trial.  Dissenting, Judge Silverman thought that the district court did not abuse its discretion in refusing to admit the state court judgment into evidence, as it did no more than establish that, as between the girlfriend and HIE, the money belonged to HIE, and this, Judge Silverman thought, had no bearing on whether the defendant diverted corporate funds to his girlfriend for his own benefit without paying tax on that money.  Tashima (author), Thomas, and Silverman (dissenting), Circuit Judges.  D. O'Connor of Honolulu, HI, for the defendant-appellants;  K. Quesnel of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  ENVIRONMENTAL LAW / ATTORNEYS' FEES:  Association of California Water Agencies v. Evans, 03-15380 (9th Cir. Sept. 24, 2004).  The plaintiffs pursued the instant action against the Secretary of Commerce and the National Marine Fisheries Service (NMFS), alleging that the defendants violated the Endangered Species Act (ESA) when the NMFS designated certain lands in California and in the Pacific Northwest as critical habitats without conducting an adequate economic impact analysis.  The case was dismissed as moot after the defendants settled a separate, but related case in another district, resulting in a remand of the designations of the very same critical habitats at issue in this case.  The USCA held that the plaintiffs were entitled to fees and costs pursuant to ESA fee-shifting provision, because, although their suit was rendered moot, bringing it resulted in the plaintiffs achieving their goals.  The plaintiffs' suit was a "catalyst" to bringing about the defendants' voluntary change of conduct and new interpretation of ESA Sec. 4(b)(2).  Hug (author), Alarcon, and W. Fletcher, Circuit Judges.  A. Avila of Washington, DC, for the appellants;  G. Wilkinson of Riverside, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  ENVIRONMENTAL LAW:  Ground Zero Center for Non-Violent Action v. U.S.  Dept. of Navy, 02-36096 (9th Cir. Sept. 21, 2004).  The USCA affirmed the district court's summary judgment for the Navy on the plaintiff's claim that the Navy failed to review the probable significant environmental impacts of an accidental missile explosion during operations at the Navy's Bangor, Washington, submarine base.  The USCA concluded that because the Navy has only limited discretion in the operation of the "Backfit Program" (a program to upgrade eight Trident submarines in the Bangor fleet) and within that discretion the risk of a missile explosion is remote, the National Environmental Policy Act does not require the Navy to issue an Environmental Impact Statement for such an accident. Similarly, because of the Navy's limited discretion and the remoteness of a possible accidental missile explosion, the Endangered Species Act did not require the Navy to consult with the National Marine Fisheries Service about whether such an accident would jeopardize the continued existence or adversely affect the critical habitat of threatened salmon species inhabiting the Hood Canal.  Brunetti, McKeown, and Gould (author), Circuit Judges.  D. Mann of Seattle, WA, for the appellants;  K. Kovacs of Washington, DC, for the appellees (Download the full text of this decision at www.cc9.uscourts.gov/)

10 ENVIRONMENTAL LAW:  Headwaters, Inc. v. U.S. Forest Service, 01-35898 (9th Cir. Sept. 8, 2004).  The USCA dismissed the plaintiff's suit contesting the validity of Forest Service timber sales on res judicata grounds, as the current plaintiff's interests had already been litigated by other environmental groups.  Dissenting, Judge Berzon thought the majority had decided that two environmental organizations who had never litigated the validity of several of the timber sales were precluded from doing so because counsel for other organizations, a year earlier, signed a dismissal with prejudice of a similar challenge;  she thought the majority had proposed a novel preclusion rule that could not be squared with the Circuit's precedents or well-established principles of due process.  Goodwin, Hug (author), and Berzon (dissenting), Circuit Judges.  L. Cooper of Williams, OR, for the appellants;  T. Aagaard of Washington, DC, for the appellee.  ((Download the full text of this decision at www.cc9.uscourts.gov/)

11) ENVIRONMENTAL LAW / LACHES:  Grand Canyon Trust v. Tucson Electric Power Company, 03-15584 (9th Cir. Sept. 2, 2004).  In December 1977, Tucson Electric Power Company received an EPA permit to build a coal-powered electric generating plant near Springerville, Arizona.  Twenty-four years later, the Grand Canyon Trust brought this action against Tucson Electric to enforce the federal Clean Air Act.  Grand Canyon maintained that Tucson's 1977 permit was invalid and thus that Tucson operated Springerville for many years in violation of the Act.  The district court initially granted partial summary judgment to Tucson on the merits of one of Grand Canyon's claims, and subsequently granted summary judgment to Tucson on the entire action based on the equitable defense of laches.  The USCA vacated and remanded for further proceedings.  It assumed, without deciding, that laches is available as a defense against a private attorney general suing under the Act, and that Apache Survival Coalition v. USA, 21 F.3d 895 (9th Cir. 1994), requires it to be applied "sparingly."  The USCA also assumed, without deciding, that Grand Canyon unduly delayed in bringing this action.  However, a lengthy delay, even if unexcused, that does not result in prejudice does not support a laches defense.  And Tucson made no claim that its defense suffered any evidentiary-based prejudice due to Grand Canyon's delay.  All the prejudice claimed by Tucson was "expectation-based."  The district court found that Tucson was prejudiced because Grand Canyon allowed it to operate Springerville Unit 1 since 1985 and Unit 2 since 1990 before finally bring this action in 2001.  However, the USCA could not see how that delay prejudiced Tucson.  Rather, it appeared that Grand Canyon's delay worked to the benefit of Tucson because it allowed it to recover some or all of its investment in Springerville before the Grand Canyon action was filed.  The district court also found that Grand Canyon's delay would prejudice Tucson by increasing its liability for civil penalties.  The USCA disagreed.  First, there may be a statute of limitations defense to the assessment of civil penalties.  But that question was not address by the district court.  Second, to the degree that any civil fines might be available, consistent with the statute of limitations, would be inequitable, laches is not the most appropriate vehicle for avoiding that inequity.  T.G. Nelson, W. Fletcher (author), and Berzon, Circuit Judges.  R. Zars of Laramie, WY, for the appellant;  H. Nickel of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  BANKRUPTCY:  In re Nielsen, 02-35983 (9th Cir. Sept. 7, 2004).  The debtor's failure to properly list a creditor on the bankruptcy court's mailing list did not justify revocation of the discharge in a no-assets Chapter 7 bankruptcy, where no deadline had been set for creditor claims because there were no assets to claim.  Kleinfeld (author), Gould, and Tallman, Circuit Judges.  J. Nelson of Toledo, WA, for the appellant;  R. Nielsen pro per.  (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  DECEPTIVE BUSINESS PRACTICES:  Federal Trade Commission v. Garvey, 03-55179 (9th Cir. Sept. 1, 2004).  The FTC appealed a district court's ruling on summary judgment that its suit against the defendants was barred by res judicata;  it also appealed a ruling following a bench trial that retired baseball player Steven Garvey and Garvey Management Group relied on adequate substantiation and thus were not liable for Garvey's advertising claims for the weight loss product herein at issue.  The USCA affirmed in part and reversed in part.  It found that the defendants in the first action were not sufficiently connected to the current defendants to justify barring the FTC's claims against the current defendants.  Most significantly, there was no indication that the defendants in the earlier action were acting on behalf of the current defendants.  The USCA further found that the FTC failed to show that Garvey was recklessly indifferent to the truth of his statements or was aware that fraud was highly probable and intentionally avoided the truth.  He had first-hand anecdotal evidence of the efficacy of the product, as he and his wife had tried it, and he had information that purported to present scientific bases for his claims.  The USCA thus found that the substantiation he had was sufficient—at least for someone in Garvey's position—to avoid participant liability.  Pregerson (author), McKeown, and Bybee, Circuit Judges.  J. Daly of Washington, DC, for the appellant;  E. Glynn of Washington, DC, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  EMPLOYMENT DISCRIMINATON:  Porter v. California Department of Corrections, 02-16537 (9th Cir. Sept. 10, 2004).  Porter, a correctional officer, filed a complaint alleging that she was the victim of continuing sexual harassment, discrimination and retaliation as a result of her rejection of sexual advances by correctional officers Wheeler and DeSantis in 1995 and 1996.  The district court granted the California Department of Corrections' motion for summary judgment, holding that (1) the temporal gap between the complaints of sexual harassment and the alleged acts of retaliation precluded Porter from showing a causal link, and (2) the alleged incidents of sexual harassment could not be considered with the allegations of retaliation for the purpose of stating a viable cause of action.  The USCA reversed.  It held that although Porter's claims for harassment in 1995 and 1996 were time-barred, she was not precluded from attempting to show a causal link between some earlier harassment and some more recent alleged acts of discrimination or retaliation.  Judge Tallman concurred that the district court erred when it determined that Porter failed to show a prima facie case of a hostile work environment and retaliation;  however, contrary to the majority, he would hold that the facts alleged by Porter do not support a quid pro quo claim that a tangible employment action resulted from refusal to submit to a supervisor's sexual demands. Judge Tallman would thus affirm the summary judgment dismissal of that claim.   Schroeder, Tallman (dissenting in part), and Callahan (author), Circuit Judges.  S. Hirsch of San Francisco, CA, for the plaintiff-appellant;  B. Lockyer of Sacramento, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  EMPLOYMENT DISCRIMINATON:  Coons v. Sec. of the Treasury, 02-15665 (9th Cir. Sept. 1, 2004).  Coons alleged that he was demoted by his employer, the Internal Revenue Service, in violation of the Rehabilitation Act because of his "disability" (an inability to travel extensively) for which he requested reasonable accommodations.  He also alleged that the IRS demoted him in retaliation for making disclosures protected by the Whistleblower Protection Act.  The USCA held that the district court correctly found that Coons was not disabled within the meaning of the Rehabilitation Act and that he failed to make a prima facie case of retaliation.  However, because he had made protected disclosures, the USCA reversed in part the district court's summary judgment.  Because the Merit Systems Protection Board (MSPB) failed to address causation in Coons' Whistleblower claim, the USCA instructed the district court to remand to the MSPB for it to consider whether Coons had been demoted due to the disclosures.  Hug (author), B. Fletcher, and Tashima, Circuit Judges.  M. Dryovage of San Francisco, CA, for the appellant;  AUSA A. Simmons of San Francisco, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  EMPLOYMENT DISCRIMINATON / FIRST AMENDMENT:  Lytle v. P. Kay Carl, Brian Cram, and School District, 02-16244 (9th Cir. Sept. 1, 2004).  The Clark County School District appealed a judgment entered on a jury verdict in an action brought under 42 USC Sec. 1983 by a kindergarten teacher in the District who maintained that the District violated her constitutional rights by retaliating against her because of an earlier action she brought and won against the District.  The district court denied the District's post-trial motion for a judgment as a matter of law.  The USCA affirmed, upholding the district court's judgment that municipal liability could be imposed on the District under Sec. 1983 based on the actions of Superintendent Cram and Assistant Superintendent Goldman, whom it concluded were "final policymakers," and that there was sufficient evidence to support a jury conclusion that Goldman engaged in retaliation and ratified retaliatory acts by other District employees.  Alarcon, Beezer, and W. Fletcher (author), Circuit Judges.  R. Vannah of Las Vegas, NV, for the appellee;  K. Banke of Oakland, CA, for the appellant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  ERISA:  Carpenters Health and Welfare Trust v. Vonderharr, 02-57183 (9th Cir. Sept. 15, 2004).  In a 29 USC Sec. 1132(a)(3) action for reimbursement of medical payments from a personal injury recovery obtained by an employee health benefit plan participant, the USCA dismissed the plaintiff's state law claims and remanded;  the relief sought is not available under ERISA.  Canby, Noonan, and Thomas (author), Circuit Judges.  G. Selvo of Los Angeles, CA, for the appellant;  C. McClellan of San Diego, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

18) SOVEREIGN IMMUNITY:  Phiffer v. Columbia River Correctional Institute, 01-35984 (9th Cir. Filed Sept. 13, 2004; amended Sept. 21, 2004).  The Supreme Court vacated and remanded this case for further consideration in light of Tennessee v. Lane, 124 S.Ct. 1978 (2004).  Upon further consideration, the USCA found its initial decision consistent with Lane.  It thus reissued its original decision in per curiam form without amendment:  1) the denial of a state's motion for judgment on the pleadings on grounds of Eleventh Amendment immunity is an interlocutory appeal and need not await final judgment, 2) the appellate court need not look in each case to determine whether the appeal involves a "serious and unsettled question of law," and 3) a state waives Eleventh Amendment immunity under Sec. 504 of the Rehabilitation Act by accepting federal funds.  Concurring, Judge O'Scannlain wrote separately to note that it is still an open question whether Title II of the Americans with Disabilities Act validly abrogates state sovereign immunity where a fundamental right is not at issue.  Per Curiam.  O'Scannlain (concurring), Fernandez, and Fisher, Circuit Judges.  AAG J. Metcalf of Portland, OR, for the appellants;  D. Scott of Lake Oswego, OR, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  PUBLIC UTILITIES:  California v. Federal Energy Regulatory Commission, 02-73093 (9th Cir. Sept. 9, 2004).  The USCA held that the FERC's authorization of market-based tariffs in this case complied with the Federal Power Act, but that the FERC abused its administrative discretion by declining to order refunds for violations of its reporting requirements.  The USCA thus granted California's petition in part and remanded to the FERC for further proceedings.  The FERC had improperly concluded that retroactive refunds were not legally available.  Thomas (author), McKeown, and Clifton, Circuit Judges.  DAG P. Stein of San Francisco, CA, for the petitioner;  B. Pacella of Washington, DC, for the respondent;  K. Irvin of Washington, DC, for the intervenor.(Download the full text of this decision at www.cc9.uscourts.gov/)

20)  CONSTRUCTION CONTRACTS:  The Burlington Insurance Co. v. Oceanic Design & Construction, 02-17317 (9th Cir. Sept. 8, 2004).  Under Hawaii law, homeowner claims for breach of contract and breach of contract-related tort duties against a home builder did not give rise to coverage within the scope of a commercial general liability insurance policy.  Tashima and Clifton (author), Circuit Judges, and Leighton, District Judge.  G. Clay of Honolulu, HI, for the appellant;  S. MacDonald of Honolulu, HI, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  TORT / JURISDICTION:  Kuntz v. Lamar Corp., 03-35032 (9th Cir. Sept. 24, 2004).  Kuntz was severely injured when a metal rod he was removing from a billboard came in contact with an electric transmission line operated by the defendant, Kootenai Electric Cooperative, Inc.  A year before the accident, the Cooperative moved the transmission line to within eight feet of the billboard.  Kuntz sued in district court, asserting jurisdiction based on diversity of citizenship.  The jury awarded substantial damages against the Cooperative and the company that had engaged Kuntz to work on the billboard, Lamar Corporation.  On appeal, the Cooperative maintained that the district court lacked subject matter jurisdiction over the action because, although incorporated, it should be treated as a partnership or unincorporated association for purposes of diversity of citizenship.  Alternatively, the Cooperative argued that it enjoys sovereign immunity as a federal instrumentality.  The USCA affirmed, finding that the Cooperative was properly treated as a corporation for the purpose of diversity jurisdiction as it had been incorporated under state law.  The unconventional nature of the corporation did not deprive it of its corporate status or its susceptibility to treatment as a corporation under 28 USC Sec. 1332(c)(1).  Canby (author), Wardlaw, and Gould, Circuit Judges.  W. Hickman of Seattle, WA, for the appellant;  H. Goodfriend of Seattle, WA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  TORTS / STATUS OF FORCES AGREEMENTS:  Moore v. The United Kingdom, 01-36146 (9th Cir. Sept. 23, 2004).  NATO's Status of Forces Agreement precluded a suit against the U.K. under the Foreign Sovereign Immunities Act of 1976 for non-commercial torts committed by its servicemen while present within the U.S.  The exclusive tort remedy lay in a suit against the U.S. under the Federal Torts Claims Act.  B. Fletcher, Hamilton, and Berzon (author), Circuit Judges.  J. Holcomb of Bainbridge Island, WA, for the appellant;  S. Soni of Washington, DC, for the amicus curiae. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  WARSAW CONVENTION:  Rodriguez v. Air New Zealand, Ltd., 02-56473 (9th Cir. Sept. 3, 2004).  Neither the plaintiff's development of deep vein thrombosis (DVT) nor the airline's failure to warn of the risks of developing DVT during air travel constitutes an "accident" for purposes of the Warsaw Convention.  T.G. Nelson, Tashima (author), and Fisher, Circuit Judges.  C. Robbins of Los Angeles, CA, for the appellant;  R. Margo of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  ABSTENTION:  Gilbertson v. Albright., 02-35460 (9th Cir. Sept. 3, 2004).  Younger abstention principles apply to actions at law as well as to injunctive or declaratory relief because a determination that the federal plaintiff's constitutional rights have been violated would have the same practical effect as a declaration or injunction on pending state proceedings.  However, federal courts should not dismiss actions where damages are at issue;  damages actions should be stayed until state proceedings are completed.  The USCA thus receded from statements in Green v. City of Tucson, 255 F.3d 1086, 1098, 1102 (9th Cir. 2001) (en banc), that direct interference is a threshold requirement of Younger abstention, and that Younger only precludes, but does not delay, the federal court action.  Schroeder, Pregerson, O'Scannlain, Rymer (author), Kleinfeld, Silverman, Graber, Wardlaw, Fisher, Rawlinson, and Bybee, Circuit Judges.  J. Brown of Salem, OR, for the appellant;  R. Wasserman of Salem, OR, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  CONTEMPT:  In re Grand Jury Subpoena, 04-10097 (9th Cir. Sept. 2, 2004).  The district court held John Doe in contempt.  On appeal, he challenged the denial of his motion to quash a subpoena duces tecum.  The government had served Doe with the subpoena in conjunction with an antitrust investigation into price fixing in the Dynamic Random Access Memory chip market.  The USCA reversed and remanded, concluding that, due to the breadth of the subpoena and the government's limited knowledge of the documents sought, Doe's production of the documents would have a testimonial aspect protected by the Fifth Amendment right against self-incrimination.  The district court erred when it determined that producing these documents was not testimonial because their existence, possession, and authenticity was a "foregone conclusion."  Hug. Canby (author), and Tallman, Circuit Judges.  C. Morris of San Francisco, CA, for the appellant;  A. Limmer of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  MINING CLAIMS:  Mt. St. Helens Mining v. USA., 03-35498 (9th Cir. Sept. 3, 2004).  Mount St. Helens Mining and Recovery Ltd., a partnership, filed the underlying suit against the Dept. of Agriculture, alleging that it violated the Mt. St. Helens National Volcanic Monument Act and the Mt. St. Helens National Volcanic Monument Completion Act by failing to timely acquire the partnership's patented mineral interests located within the Mount St. Helens Monument.  After the suit was filed, the DoA and U.S. Forest Service offered to exchange land outside the Monument's boundaries valued at $242,000 for the mineral interest owned by the partnership.  The partnership rejected the offer and the government moved for summary judgment.  The district court granted the motion, concluding that the offer was not arbitrary, capricious, or contrary to law.  The USCA affirmed.  Brunetti (author), McKeown, and Gould, Circuit Judges.  R. Hailey of Spokane, WA, for the appellant;  AUSA P. Winn of Seattle, WA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  FIRST AMENDMENT / TOBACCO ADS:  R.J. Reynolds Tobacco Co.  v. Shewry, 03-16535 (9th Cir. Sept. 28, 2004).  Three tobacco companies claimed that California violated their First Amendment rights by imposing a surtax on cigarettes and then using some of the proceeds of that surtax to pay for advertisements that criticize the tobacco industry.  The tobacco companies maintained that this constituted a compelled subsidization of speech prohibited by the First Amendment, analogous to USA v. United Foods, Inc., 533 U.S. 405 (2001).  California countered that the advertisements are government speech entirely immune from First Amendment attack.  The tobacco companies conceded that the imposition of the tax itself is not unconstitutional and that the message produced by the government's advertisements created no First Amendment problem apart from its method of funding.  Rather, they argued for an independent First Amendment violation based on the close nexus between the government advertising and the excise tax that funds it.  The USCA rejected this contention as unsupported by the Constitution and Supreme Court precedents, and as so unlimited in principle as to threaten a wide range of legitimate government activity.  The USCA also rejected the tobacco companies' claim that the advertisements violated their rights under the Seventh Amendment or the Due Process Clause.  The USCA thus affirmed the district court.  Dissenting, Judge Trott saw the issue to be whether the government, consistent with the First Amendment's right against the abridgment of free speech, may create a public information program against a industry funded by a targeted excise tax imposed solely upon that industry and which is segregated in a special state health education account.  He thought not.  Review under any of the available standards, he said, reveals that the compelled assessments constitute an exceptional case of government intrusion on the right not to be compelled to finance speech.  Such state action, he said, offends the very essence of the First Amendment.  B. Fletcher, Trott (dissenting), and Fisher (author), Circuit Judges.  H.J. Escher III of San Francisco, CA, for the plaintiffs-appellants;  DAG K. Leaf of Sacramento, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  FIRST AMENDMENT / ADULT ENTERTAINMENT:  Dream Palace v. County of Maricopa, 00-16531 (9th Cir. Sept. 27, 2004).  The USCA held that certain portions of a local ordinance imposing licensing requirements and operating restrictions on adult entertainment establishment violated the First Amendment.  While holding unconstitutional prohibitions on specified sexual activity, the USCA instructed the district court on remand to enjoin the disclosure to the public of information provided by permit applicants. However, as most of the provisions in the ordinance, including the licensing scheme, and multiple operating restrictions, withstood scrutiny, the USCA concluded that the invalid portions should be severed and that the remainder could remain in force.  Concurring, Judge Canby said that were he writing on a blank slate, he would dissent from the majority's decision to uphold the prohibition against the operating hours of adult-oriented businesses;  he thought the hours restrictions violate the holding of a majority in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).  Canby (concurring), O'Scannlain (author), and W. Fletcher, Circuit Judges.  G. Garrou of Los Angeles, CA, for the appellants;  S. Boehm of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  ESTABLISHMENT CLAUSE / NATIVE AMERICAN LAW:  Cholla Ready Mix, Inc. v. Civish, 03-15423 (9th Cir. Sept. 1, 2004).  Cholla Ready Mix appealed the district court's dismissal of its complaint alleging that Arizona's policy against using materials mined from the Woodruff Butte in state construction projects violates its rights under the Establishment Clause, 42 USC Secs. 1981, 1983, and 2000d, and the Arizona Constitution.  The Hope Tribe, Zuni Pueblo, and Navajo Nations had passed resolutions against mining the materials because of Woodruff Butte's religious, cultural, and historical significance, and that led to the state policy.  The USCA affirmed, finding that all of the allegations in Cholla's complaint were barred by the Eleventh Amendment, time barred, or fail to state a claim upon which relief could be granted.  B. Fletcher (author), Trott, and Fisher, Circuit Judges.  W. Pendley of Lakewood, CO, for the plaintiff-appellant;  AAG J. Smith of Phoenix, AZ, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  CIVIL RIGHTS / IMMUNITY:  Genzler v. Longanbach, 02-56572 (9th Cir. Sept. 27, 2004).  Genzler sought damages under 42 USC Sec. 1983 for violations of his constitutional rights during the investigation and prosecution of his state criminal homicide trial.  Upon evaluating the timing and nature of the conduct of Longanbach (a County Deputy District Attorney) and O'Brien (an investigator in the same office), the USCA found a genuine issue of material fact as to whether they were engaged in advocacy intimately associated with the judicial process when they interviewed a key witness.  However, the USCA found no genuine dispute that the involvement of Pfingst, Thompson, and Pippen (supervisors in the County District Attorney's Office) constituted advocacy associated with the judicial process.  Pregerson, Cowen, and W. Fletcher (author), Circuit Judges.  R. Young of San Diego, CA for the appellants;  P. Hosey of San Diego, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

31)  IMMIGRATION / LABOR & EMPLOYMENT LAW: Sagana v. Tenorio, 03-15779 (9th Cir. Sept. 7, 2004).  The Nonresident Workers Act, which limits a nonresident alien's ability to seek and engage in employment as a condition for entry, does not violate that alien's constitutional rights to freely market his labor under the Fourteenth Amendment.  Schroeder, Goodwin (author), and Wallace, Circuit Judges.  J. Hill of Saipan, MP, for the plaintiff-appellant;  AUSA J. Livingston of Saipan, MP, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  IMMIGRATION:  Zara v. Ashcroft, 02-74077 (9th Cir. Sept. 7, 2004).  The petitioner, a native and citizen of the Philippines, overstayed her visitor's visa.  Claiming that she feared she would be killed by members of the Aquino Party if she returned to the Philippines because she was an active member of the Marcos party, she sought review of the Board of Immigration Appeals' affirmance, without opinion, of the immigration judge's denial of her application for asylum, withholding of removal, voluntary departure and relief under the Convention Against Torture.  The USCA dismissed the petition for lack of jurisdiction as the petitioner failed to exhaust in her appeal to the BIA issues she presents in her petition for review.  Specifically, the only issue she raised in her appeal to the BIA was her challenge to the IJ's finding that the Aquino Party was no longer in power when she left the Philippines and the impact that alleged error had on her other applications for relief.  She did not present to the BIA the critical issue she now presented to the USCA concerning the IJ's adverse credibility finding, nor did she challenge the IJ's determination that she presented insufficient evidence of "torture" as that term is defined in CAT, nor did she contend that the IJ abused his discretion in denying her request for voluntary departure.  Dissenting, Judge Tashima thought that because the IJ's decision was the final agency determination under review in this streamlined case, he would hold that the petitioner exhausted her administrative remedies by raising them before the IJ as once a BIA appeal is streamlined, the USCA has jurisdiction to review any issue considered by the IJ.  Thompson (author), Tashima (dissenting), and Rawlinson, Circuit Judges.  R. Rodis of San Francisco, CA, for the petitioner;  R. Curtis of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  IMMIGRATION:  Mashiri v. Ashcroft, 02-71841 (9th Cir. Sept. 22, 2004).  The USCA affirmed the denial of the petitioner's application for asylum where her credible testimony compelled a finding of past persecution and the respondent failed to rebut the presumption of a well-founded fear of future persecution. The USCA remanded so that the AG could further consider the petitioner's asylum and withholding claims.  Hug, B. Fletcher (author), and Wardlaw, Circuit Judges.  K. Mautino of San Diego, CA, for the petitioner;  L. Perez of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION:  Lagandaon v. Ashcroft, 02-73216 (9th Cir. Sept. 9, 2004).  The Board of Immigration Appeals (BIA) erred in determining that the petitioner was statutorily ineligible for cancellation of removal by virtue of the physical-presence requirement based on a year, other than a leap year, being 365 days, including the day of the alien's arrival in the United States.  The USCA granted the petition for review and remanded for the BIA to determine whether the petitioner should, as a matter of discretion, receive the relief for which he is statutorily eligible.  The USCA noted that the IJ said he would have granted such relief but for his erroneous view of the petitioner's eligibility.  T.G. Nelson, W. Fletcher, and Berzon (author), Circuit Judges.  M. Ungar of San Francisco, CA, for the petitioner;  T. Scadron of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  IMMIGRATION:  Camposeco-Montejo v. Ashcroft, 02-74259 (9th Cir. Sept. 17, 2004).  The petitioner, a native and citizen of Guatemala, sought review of the Board of Immigration Appeals' affirmation, without opinion, of a decision of the Immigration Judge denying his application for asylum, withholding of removal, and relief under the Convention Against Torture, but granting voluntary departure.  The USCA granted the petition as the IJ's conclusion that the petitioner had firmly resettled in Mexico was not supported by substantial evidence.  However, the petitioner had waived the right to petition for review of his withholding of removal claim, although the USCA noted that, on remand, the IJ may wish to reconsider the decision and engage in the requisite individualized analysis of the petitioner's claim.  Because the USCA granted the petition, it did not need to address the BIA's decision to streamline.  Thompson, Tashima (author), and Rawlinson, Circuit Judges.  S. O'Grady of San Francisco, CA, for the petitioner;  R. Curtis of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  IMMIGRATION:  Narayan v. Ashcroft, 03-70199 (9th Cir. Sept. 16, 2004).  The USCA reversed the denial of the petitioner's application for asylum and withholding of removal as the Immigration Judge failed to apply the regulatory presumption of a well-founded fear of future prosecution after the petitioner established that he suffered past persecution.  The petitioner, an ethnic Indian and citizen of Fiji, had been attacked and stabbed in 1987 by a group of ethnic Fijians during a military coup staged by ethnic Fijians;  when he sought medical care for his wounds from a local medical facility, he was denied treatment;  when he reported the attack to the ethnic Fijian-controlled police, they refused to investigate;  in 1988, ethnic Fijians burglarized his apartment several times;  during one of these home invasions, he was stabbed a second time, and again, when he report the invasions and attack to the police, they did nothing;  in 1997, the petitioner was again "bashed" by a group of ethnic Fijians and the police did nothing.  Hawkins (author), Thomas, and Bea, Circuit Judges.  R. Jobe of San Francisco, CA, for the petitioner;  N. Ascoli of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  IMMIGRATION:  Perez-Enriquez v. Ashcroft, 03-70244 (9th Cir. Sept. 9, 2004).  The USCA dismissed the petition for review where the Board of Immigration Appeals' properly determined that for purposes of 8 USC Sec. 1227(a)(1)(A) "time of adjustment status" refers to the date of the petitioner's automatic adjustment to lawful permanent resident.  Hall and Callahan (author), Circuit Judges, and Bertelsman, District Judge.  R. Gibbs of Seattle, WA, for the petitioner;  I. Campbell of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  IMMIGRATION:  Khotesouvan v. Morones, 04-35417 (9th Cir. Sept. 13, 2004).  At issue here was whether the government may continue to detain an alien ordered removed who has been held in custody for less than 90 days and 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 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 appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  IMMIGRATION:  Oliveira v. Ashcroft, 02-16945 (9th Cir. Sept. 9, 2004).  Oliveira is a permanent resident alien who was ordered removed to Portugal after his 1998 conviction in California state court for possession of methamphetamine.  In his habeas petition, he argued that the Immigration Judge and Board of Immigration Appeals erred in concluding that he was an aggravated felon, because his conviction was a "wobbler" offense that the state court sentenced as a misdemeanor.  The district court denied his petition, ruling that his conviction constituted an aggravated felony because it was a controlled substance offense that was punishable by more than one year's imprisonment under state law.  The USCA reversed, finding that the offense of conviction was not an aggravated felony because it would not be punishable as felony under federal drug laws and did not contain a trafficking element.  Hug, B. Fletcher, and Tashima (author), Circuit Judges.  J. Bennett of El Cerrito, CA, for the petitioner;  AUSA J. Ruffennach of Phoenix, AZ, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  IMMIGRATION:  Reyes-Reyes v. Ashcroft, 03-72100 (9th Cir. Sept. 13, 2004).  The petitioner sought review of a BIA decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT).  Because the asylum was denied as untimely, the USCA lacked jurisdiction to reach the merits of that matter.  However, it had jurisdiction to review the withholding and CAT claims, and because the Immigration Judge (IJ) invoked the wrong standard in analyzing the denial of the these claims, it granted the petition and remanded for further consideration.  Concurring, Judge Bybee noted that INS regulations implementing CAT define "torture" as severe pain or suffering, intentionally inflicted on a person "at the instigation of or with the consent of or acquiescence of a public official or other person acting in an official capacity" where "acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity." 8 CFR Sec. 208.18(a)(1), (7) (2004).  While Judge Bybee thought that the petition should be granted and the matter remanded, he also faulted the record as the IJ had failed to address whether a public official might have been aware of such activity and breached his legal responsibility to intervene to prevent such activity.  McKeown (author), Bybee (concurring), and Breyer, Circuit Judges.  C. White of Davis, CA, for the petitioner;  P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  IMMIGRATION:  Ndom v. Ashcroft, 02-74419 (9th Cir. Sept. 10, 2004).  Petitioner Ndom is a native and citizen of Senegal from the Casamance region;  he left Casamance when it was plagued by armed conflict between government forces and secessionist rebels.  He petitioned for review of an order by the BIA that affirmed, without opinion, an IJ's denial of his application for asylum and withholding of removal.  The USCA granted the petition in part and remanded.  It concluded that the plaintiff is entitled to withholding of removal as his treatment by the Senegalese armed forces constituted persecution on account of an imputed political opinion and entitled him to a presumption of a well-founded fear of persecution.  T.G. Nelson, W. Fletcher, and Berzon (author), Circuit Judges.  R. Nwadibia of San Francisco, CA for the petitioner;  E. Radford of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  IMMIGRATION:  Arreola-Arreola v. Ashcroft, 01-71596 (9th Cir. Sept. 8, 2004).  The USCA treated the plaintiff's petition for review as a habeas petition and transferred it to the district court on grounds that the transfer served the interests of justice since the plaintiff raised a colorable constitutional claim.  Assuming that the petitioner's factual representations are true, he raised a serious due process challenge to the reinstatement process as it is applied to him.  However, the USCA noted that it lacked jurisdiction to review the petitioner's collateral attack on his removal order on direct appeal, but that the district court would have jurisdiction to consider any legal challenges to that order in habeas proceedings under 28 USC Sec. 2241.  Pregerson, Beam, and Paez (author), Circuit Judges.  M. Van Der Hout of San Francisco, CA, for the petitioner;  P. Sandhu of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  IMMIGRATION:  Lara-Torres v. Ashcroft, 02-72329 (9th Cir. Sept. 8, 2004).  The USCA denied three consolidated petitions over the petitioners' challenge of ineffective assistance of counsel where the counsel's legal approach was a tactical miscalculation, not ineffective assistance, and did not undermine the fundamental fairness of the proceedings.  Concurring in the judgment, Judge McKeown would deny petitioner Lara-Torres' petition simply on the ground that the BIA was correct to conclude that the original attorney committed a tactical miscalculation rather than ineffective assistance of counsel;  she agreed that the error should be judged against the Due Process Clause of the Fifth Amendment, but wrote separately because she could not join the majority in its effort to forge new constitutional boundaries where resolution could be reached on much narrower grounds;  Judge McKeown thought the resolution of this case could be accomplished by adherence to the principle of judicial restraint, and that substantial record evidence supported the BIA's conclusion that the strategical errors committed by Lara-Torres's attorney did not rise to the level of constitutional infirmity.  Wallace (author) and McKeown (concurring), Circuit Judges, and Moskowitz, District Judge.  M. Van Der Hout of San Francisco, CA, for the petitioners;  R. Verby of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  IMMIGRATION:  Zheng v. Ashcroft, 03-70087 (9th Cir. Sept. 2, 2004).  Zheng, a citizen of the People's Republic of China, petitioned for review of the denial of his applications for asylum and withholding of removal.  He maintained that local Chinese officials forced is wife to abort their first child because they had not reached the legal age for marriage and were not authorized to have a child.  He also claimed that the officials fined them for violating family planning policies and instructed one of them to report for sterilization after his wife's second pregnancy.  The Immigration Judge found that Zheng was not credible, and the Board of Immigration Appeals summarily affirmed.  The USCA granted the petition for review as the IJ's adverse credibility finding was not supported by substantial evidence.  It concluded that Zheng is automatically eligible for asylum, and remanded to the BIA to exercise its discretion whether to grant Zheng asylum and, if necessary, to determine whether Zheng is eligible for withholding of removal.  T.G. Nelson, Tashima, and Fisher (author), Circuit Judges.  D. Su of El Monte, CA, for the petitioner;  R. Blaya of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  PROBABLE CAUSE / FAX PROCEDURE:  USA v. Bueno-Vargas, 03-50381 (9th Cir. Sept. 21, 2004).  A customs agent's statement of probable cause to detain an arrested person pending further proceedings, made under penalty of perjury and sent to a magistrate judge by fax satisfied the Fourth Amendment's requirement of an "Oath or affirmation."  The "weekend fax procedure" herein at issue satisfies the Fourth Amendment requirement that the government obtain a judicial determination of probably cause within 48 hours of a warrantless arrest.  D.W. Nelson, Kozinski, and Graber (author), Circuit Judges.  T. Scott of San Diego, CA, for the defendant-appellant;  J. Wyderko of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

46) SEARCH & SEIZURE / IMMUNITY:  KRL v. Moore, 02-15296 (9th Cir. Sept. 27, 2004).  The defendants appealed the district court's denial of summary judgment, contending that they are entitled to immunity from the action brought by KRL, a California general partnership, and several members of the Womack family. KRL had purchased a defunct gas station in Jackson, California, in order to convert the real property into a parking lot.  Robert Womack oversaw the removal of an underground gas storage tank.  Upon learning of the removal of the tank, Amador County officials expressed concern about environmental contamination and referred the matter to the Amador County District Attorney's office, which began a criminal investigation.  The tank was located on KRL property and Womack's home address.  A search of the property was conducted pursuant to a warrant supported by an affidavit given by Moore, a California Highway Patrol Officer. A grand jury indicted Womack and others on 21 counts, most of which concerned the tank removal and disposal.  Womack was also indicted for fraud in connection with the use of a contractor's license number, and perjury relating to DMV records.  Moore submitted a second affidavit in support of a warrant to further search the property.  It stated that "we have now additionally embarked on the early stages of tracking unreported income and the monies of the Womack's [sic] via their various questionable transfers of personal and real property and the tax implications of those activities." The resulting warrant authorized the seizure of a broad range of documents.  After finding evidence not within the scope of the warrant, Moore interrupted the search and returned to court with Deputy D.A. Irey to obtain an extended warrant authorizing the seizure of documents dating back to 1990.  The plaintiffs maintained that the officers seized documents dating as far back as 1977.  Moore subsequently submitted an affidavit in support of a third search warrant to search for buried vehicles and other hazardous waste and to obtain soil samples from yet another KRL property.  In September 2000, the D.A.'s office transferred Womack's criminal prosecution to the California Attorney General's office, which dropped all charges. No charges were ever filed against the plaintiffs.  The plaintiffs then filed this 42 USC Sec. 1983 action, claiming constitutional violations in connection with all three searches.  The defendants moved for summary judgment, seeking absolute or qualified immunity.  The USCA reversed the district court's denial of absolute immunity to the extent the defendants used the second warrant to gather evidence to prosecute the indictment.  It reversed the denial of qualified immunity to County DA Riebe for his role in approving the second warrant to investigate additional crimes.  The USCA affirmed the denial of qualified immunity to Hall, an investigator with the County DA's office, on the plaintiffs' claims that Hall unreasonably relied on and executed the second search warrant.  Finally, the USCA, affirmed the denial of absolute immunity to the defendants for their roles in the third search warrant, but reversed the denial of qualified immunity to Riebe and Hall on the claim of judicial deception.  The USCA remanded for further proceedings. Goodwin (author), Tashima, and Wardlaw, Circuit Judges.  D. Womack of Sacramento, CA, and W. Scott of Stockton, CA, for the appellants;  S. Moyer of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  SEARCH & SEIZURE:  Motley v. Parks, 02-56648 (9th Cir. Sept. 21, 2004).  The USCA reversed a grant of qualified immunity to police officers on allegations arising from their parole search of the home of the mother of the parolee's son.  The officers violated the plaintiff's Fourth Amendment rights in conducting the search without substantial evidence that the parolee lived there.  Judge Brunetti dissented since at the time the actions complained of were not clearly constitutional violations.  B. Fletcher (author), Pregerson, and Brunetti (dissenting), Circuit Judges.  K. Bloomfield of Venice, CA, for the plaintiffs-appellants;  R. Delgadillo and AUSA D. Pinchas of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

48) SEARCH & SEIZURE: USA v. Cortez-Rocha, 03-50491 (9th Cir. Sept. 21, 2004).  The USCA upheld the defendant's drug conviction following his conditional guilty plea for importation of marijuana in violation of 21 USC Secs. 952 and 960.  The defendant claimed that the district court should have suppressed the drugs discovered during a border search of his vehicle because the invasive search of his spare tire was invalid.  However, the USCA found that the search of the spare was not a "particularly offensive" search requiring reasonable suspicion.  Because the government's authority to conduct suspicionless inspections at the border includes the search conducted in this case, the district court did not err in denying the defendant's motion to suppress.  Dissenting, Judge Thomas said that rather than adopt a bright line rule and give the government carte blanche to search and destroy all personal property at the border that does not affect vehicular operation, he would employ the usual, common sense, totality of the circumstances balancing test to determine when a search is so destructive as to require reasonable suspicion;  in the present context, the major factors included in this analysis would be the degree of destruction, the ease with which the damage can be repaired, and the convenience, cost, and efficiency of non-destructive or less-destructive searching methods that were available at the search site;  here, Judge Thomas thought that such factors clearly demonstrate that reasonable suspicion was required to cut open the spare time and that reasonable, non-destructive search methods were readily accessible as the government admits that both a drug dog and a density buster were available at the site, and, in addition, the government could have removed the tire from the rim without destroying it.  Trott (author), Rymer, and Thomas (dissenting), Circuit Judges.  E. Johnson of San Diego, CA, for the appellant;  AUSA P. O'Toole of San Diego, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  SEARCH & SEIZURE:  USA v. Gourde, 03-30262 (9th Cir. Sept. 2, 2004).  Gourde entered a conditional guilty plea to one count of possession of visual depictions of minors engaged in sexually explicit conduct in violation of 18 USC Secs. 2252(a)(4)(B) and (b)(2) and 2256.  As stated in the plea agreement, he admitted possessing more than 100 images of child pornography on his home computer;  however, he conditioned his plea on his right to appeal the district court's denial of his motion to suppress the images seized from his computer.  He asserted that the affidavit in support of the search lacked sufficient indicia of probable cause because it con-tained no evidence that he actually downloaded or otherwise possessed child pornography;  moreover, he maintained that the officers acted objectively unreasonable in relying on the allegedly unlawful warrant. The USCA agreed and reversed. The district court erred in refusing to suppress the evidence seized from Gourde's computer as the affidavit failed to present sufficient indicia of probable cause.  Moreover, given the completely uncorroborated evidence of probable cause, the officers acted objectively unreasonably in seeking and relying on the deficient warrant.  Judge Gould concurred in the majority opinion, the logic of which is required by Circuit precedent, but were he to examine anew the issue whether law enforcement officials had probable cause to search Gourde's room and home computer for downloaded images of child pornography, and were he free to look only at first principles and Supreme Court precedent, he said he would be more inclined to decide that there was probably cause for this search made upon a warrant.  Brunetti (author), McKeown, and Gould (concurring), Circuit Judges.  AUSA J. Freeman of Seattle, WA, for the appellee;  C. Fieman of Tacoma, WA, for the appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  JURY INSTRUCTIONS:  USA v. Hugs, 02-30390 (9th Cir. Sept. 13, 2004).  The USCA upheld Hugs' conviction for involuntary manslaughter, in violation of 18 USC Secs. 1153 and 1112, over his challenge that the trial court's jury instructions altered the charges brought against him by the grand jury.  The USCA also held that the erroneous instructions did not affect Hugs' rights under the plain error rule.  And, it affirmed the special condition of supervised release requiring Hugs to provide a DNA sample pursuant to the procedures set out in 42 USC Sec. 14135a, as a minimal intrusion into his right to privacy.  Browning, Alarcon (author), and Clifton, Circuit Judges.  R. Hammond of Billings, MT, for the appellant;  K. Richter of Billings, MT, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  PROBABLE CAUSE:  Jones v. Santa Monica, 03-55211 (9th Cir. Sept. 10, 2004).  The procedures of the City of Santa Monica for determining probable cause after a warrantless arrest are not facially unconstitutional under the Fourth and Fourteenth Amendments.  The petitioner wrongly maintained that the procedure violated the Fourth and Fourteenth Amendments because it did not provide an arrestee with an opportunity for personal appearance before the magistrate at the time the probable cause determination is made and because the application for probable cause submitted to the magistrate is made on a pre-printed form.  Canby (author), Hansen, and Rawlinson, Circuit Judges.  P. Mills of Los Angeles, CA, for the appellant;  A. Serritella of Santa Monica, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  JURY INSTRUCTIONS:  USA v. Kaur, 03-30306 (9th Cir. Sept. 10, 2004).  Kaur was convicted of possessing and distributing pseudoephedrine knowing or having "reasonable cause to believe" that it would be used to manufacture methamphetamine.  The USCA affirmed his conviction over his challenge to the district court's jury instruction which explained the "reasonable cause to believe" mental state referred to in 21 USC Sec. 841(c)(2).  The USCA found that the district court did not abuse its discretion in formulating the instruction, and that it's instruction fairly and accurately described the required mental state.  Pregerson (author), Ferguson, and Callahan, Circuit Judges.  D. Miller of Spokane, WA, for the appellant;  AUSA R. Smoot of Spokane, WA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  EVIDENCE / AIRPORT SECURITY:  USA v. Camper, 03-50442 (9th Cir. Sept. 22, 2004).  The USCA affirmed the defen-dant's conviction under 18 USC Sec. 1001 (2000) for making a false statement to the government over the defendant's challenge that the evidence was insufficient to prove that his answers to a criminal history questionnaire as part of an airport security badge applica-tion was false;  the questionnaire asked, and the defendant answered falsely, a question about convictions for possessing a gun in an unlawful manner and the evidence was sufficient to support the conviction.  D.W. Nelson, Gibson (author), and Graber, Circuit Judges.  DFPD J. Locklin of Los Angeles, 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/)

54) EVIDENCE:  USA v. Staves, 03-50300 (9th Cir. Sept. 9, 2004).  The USCA affirmed the defendants' plea of guilty to federal drug trafficking offenses over their challenge to the denial of their motion to suppress evidence obtained through wiretapping.  The wiretap application contained a full and complete statement of the facts supporting the wiretap application, and the issuing judge did not abuse her discretion in concluding that a wiretap order was necessary to uncover the full scope of the drag trafficking conspiracy.  The district court properly denied Franks hearings on the motion to suppress.  Finally, Title III prohibits monitoring cloned cellphones without a court order.  B. Fletcher (author), Hansen, and Rawlinson, Circuit Judges.  W. Harris of South Pasadena, CA, and J. Rochlin of Los Angeles, CA, for the defendants-appellants;  AUSA T. Searight of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  SENTENCING:  USA v. Rojas-Flores, 03-50252 (9th Cir. Sept. 13, 2004).  The USCA affirmed the defendant's conviction under 18 USC Sec. 1791 for being a prisoner in possession of a prohibited object (sharpened steal objects concealed in his waist).  However, it reversed his sentence and remanded for resentencing upon finding that the defendant is entitled to a reduction for acceptance of responsibility.  T.G. Nelson, Tashima (author), and Fisher, Circuit Judges.  DFPD C. Gunn of Los Angeles, CA, for the appellant;  AUSA E. Silber of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  SENTENCING:  USA v. Montgomery, 03-30269 (9th Cir. Sept. 15, 2004).  The USCA reversed the defendant's conviction for mail fraud in violation of 18 USC Secs. 371 and 1341, as the district court had improperly admitted evidence that should have been excluded under the marital communications privilege, and that error was prejudicial;  in addition, because the district court enhanced the defendant's sentence seven levels on the basis of an amount of loss that was neither found by the jury nor alleged in the indictment, there was plain error.  Given that the district court must recalculate the restitution order, the USCA vacated the sentence now and remanded for further proceedings, rather than await further briefing in this developing area of sentencing law.  Goodwin (author), W. Fletcher, and Tallman, Circuit Judges.  AFPD M. Weintraub of Eugene, OR, for the defendant-appellant;  AUSA W. Fitzgerald of Eugene, OR, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  HABEAS CORPUS:  Isley v. Arizona Department of Corrections, 03-15858 (9th Cir. Sept. 15, 2004).  The USCA reversed the dismissal of plaintiff's 28 USC Sec. 2244 petition for habeas corpus, as his state petition for post-conviction relief was pending within the meaning of 28 USC Sec. 2244(d)(2) and entitled him to toll the one year statute of limitation period for filing federal post-conviction relief.  Dissenting, Judge Tallman thought that by holding that the petitioner's state petition was "pending" when he filed his Notice, the majority eschewed the holding of Woodford v. Garceau, 538 US 202 (2003), that a motion for the appointment of counsel does not commence a federal habeas case for purposes of the rule announced in Lindh v. Murphy, 521 US 320 (1997).  Schroeder (author), Canby, and Tallman (dissenting), Circuit Judges.  B. Isley pro se;  AAG K. Chamberlin of Phoenix, AZ, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  HABEAS CORPUS / THE VICINAGE CLAUSE:  Stevenson v. Lewis, 03-55784 (9th Cir. Sept. 22, 2004).  The USCA upheld the petitioner's rape and robbery convictions in Orange County, California, for crimes he committed in Los Angeles County;  the petitioner argued that he had been tried in the wrong county in violation of the vicinage clause of the Sixth Amendment.  But, the USCA noted that the U.S. Supreme Court has not yet decided whether the vicinage clause applies to the states through the Fourteenth Amendment.  Thus, the California Court of Appeal's decision that the petitioner was properly tried in Orange County is not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.  The USCA thus denied the habeas petition.  Thompson, Silverman (author), and Wardlaw, Circuit Judges.  S. Lubliner of Petaluma, CA, for the petitioner;  R. Cartwright-Ladendorf of San Diego, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  HABEAS CORPUS:  Smith v. Idaho, 02-36043 (9th Cir. Sept. 7, 2004).  The USCA upheld the defendant's lewd conduct conviction where he failed to show cause and prejudice such as to excuse the procedural default that resulted from his failure to comply with state rules during state post-conviction proceedings. B. Fletcher (author), Hamilton, and Berzon, Circuit Judges. P. Gordon of Boise, ID, for the petitioner;  DAG L. Anderson of Boise, ID, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  HABEAS CORPUS:  Salgado v. Garcia, 02-55557 (9th Cir. Sept. 13, 2004).  A two-judge Ninth Circuit panel properly may deny a certificate of appealability where the procedure is consistent with the authority granted by Congress.  Farris (author), Kozinski, and Silverman, Circuit Judges.  V. Wefald of Pasadena, CA, for the petitioner;  DAG A. Tate of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  HABEAS CORPUS / DEATH PENALTY:  Williams v. Woodford, 99-99018 (9th Cir. Sept. 10, 2004).  Williams, a California death row inmate, appealed the district court's denial of his 28 USC Sec. 2254 habeas petition challenging both his 1981 conviction on multiple counts of first-degree murder and armed robbery and his sentence of death;  he also appealed the district court's denial of his Fed. R. Civ. Proc. 60(b) motion for relief from the denial of his habeas petition.  The USCA affirmed the denial of the petition.  It found no constitutional basis to disturb Williams' conviction or death sentence.  However, it vacated the district court's order denying his Rule 60(b) motion because the district court lacked jurisdiction to consider it.  The USCA thus necessarily concluded that Williams was not entitled to relief from the conviction or sentence in the federal courts, but that he could petition for clemency with the Gover-nor of California.  While noting that these are not matters a federal court can consider in reviewing Williams' habeas petition, the USCA nevertheless noted that it was aware of his 2001 Nobel Peace Prize nomination for his efforts opposing gang violence from his prison cell, notably his line of children's books, subtitled "Tookie Speaks Out Against Gang Violence," and his creation of the Internet Project for Street Peace.  Hug (author), T.G. Nelson, and Gould, Circuit Judges.  DFPD C. Manes of Los Angeles, CA, for the petitioner;  DAG L. Brault of Los Angeles, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  HABEAS CORPUS:  Hunt v. Pliler, 01-56963 (9th Cir. Sept. 28, 2004).  Hunt had appealed the dismissal with prejudice of his habeas petition.  The case came before the USCA on remand from the Supreme Court, which vacated the USCA's prior decision and remanded for consideration in light of Pliler v. Ford, 124 S.Ct. 2441 (2004), which held that a district court is not required to warn a pro se litigant that it could not consider a motion to stay a mixed petition unless he first amends the petition and dismisses unexhausted claims and that his claims would be time barred under the Antiterrorism and Effective Death Penalty Act of 1996, upon his return to federal court if he dismissed his petition to return to state court to exhaust his claims.  In its prior decision the USCA vacated the district court's order dismissing Hunt's petition on three grounds:  (1) the court's failure to comply with the procedure governing designation of magistrate judges, (2) its abuse of its discretion in dismissing the petition with prejudice, and (3) its failure to advise Hunt of the option of staying his exhausted claims pending exhaustion of his unexhausted claims.  The USCA now adhered to its decision on the first two grounds and rejected the third.  It thus vacated the district court's decision and remanded.  If the district court determines the petition to be mixed, it should notify Hunt that it will dismiss the petition unless Hunt dismisses the unexhausted claims.  D.W. Nelson and T.G. Nelson, Circuit Judges, and Schwarzer (author), District Judge.  E. Multhaup of Mill Valley, CA, for the petitioner;  DAG R. Cullather of San Francisco, CA, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  TAXATION:  Hobbs v. CIR, 03-72990 (9th Cir. Sept. 17, 2004) (unpublished).  Pregerson, T.G. Nelson, and Graber, Circuit Judges.

       The taxpayers appealed pro se Tax Court orders granting summary judgment for the Commissioner of Internal Revenue (CIR), finding that he could proceed with his action to collect their 1996 federal income tax, and imposing sanctions. 

      The USCA affirmed.  The Tax Court properly concluded that the taxpayers were precluded from challenging their underlying tax liability during their Collection Due Process (CDP) hearing because they received a statutory notice of deficiency, 26 USC Sec. 6330(c)(2)(B), and failed to file a timely petition for redetermination of taxes.  The Tax Court also correctly held that the IRS Appeals Officer who conducted the CBP hearing properly verified the existence and propriety of the tax assessments. The Tax Court also properly determined that the taxpayers failed to raise a genuine issue of material fact.  The Tax Court thus correctly granted the CIR's summary judgment motion.  Finally, the Tax Court did not abuse its discretion in imposing sanctions of $2,500 against the taxpayers pursuant to 26 USC Sec. 6673 on the ground that their positions were frivolous and that they had maintained the proceedings primarily for delay.  See Wolf v. CIR, 4 F.3d 709, 716 (9th Cir. 1993) ("When taxpayers are on notice that they may face sanctions for frivolous litigation, it is within the Tax Court's discretion to award sanctions under section 6673.")

2)  ENVIRONMENTAL LAW:  Forest Conservation Council v. U.S. Forest Service, 03-16511 (9th Cir. Sept. 15, 2004) (unpublished).  Pregerson (dissenting), Kozinski, and Hawkins, Circuit Judges.

       The USCA affirmed the district court's grant of summary judgment to the U.S. Forest Service.  It was not arbitrary or capri-cious for the Service to conclude that its "Roads and Trails" decision fell within the parameters of Categorical Exclusions 31.1(b)(3), (4) and (5).  Nor was it arbitrary or capricious for the Service to conclude that its "Fence and Utility Line" decision fell within the parameters of Categorical Exclusions 31.1(b)(4) and 31.2(2).  See Alaska Ctr. for the Environment v. U.S. Forest Service, 189 F.3d 851 (9th Cir. 1999) (agency interpretation for own categorical exclusion controls unless plainly erroneous or inconsistent with terms).  Because the Service was entitled to treat the "Wildland / Urban Interface" decision as a separate project, the Forest Conservation Council's appeal from the denial of injunctive relief was mooted by the completion of the environmental assessment for that project.  See Aluminum Co. of Am. v. Admin'r, Bonneville Power Admin., 175 F.3d 1156, 1163 (9th Cir. 1999).

      Dissenting, Judge Pregerson noted that following Arizona's June 2002 Rodeo-Chediski fire, the Forest Service authorized tree removal on over 37,000 acres of National Forest land.  The appellants claim that the Service violated the National Environmental Protection Act (NEPA) when it authorized the tree removal without first conducting an Environmental Impact Statement (EIS) or Environmental Assessment (EA) to evaluate the project's environmental impact.  Judge Pregerson agreed with the appellants that the Service violated the NEPA and disagreed with the majority's conclusion to the contrary.  The NEPA establishes a complex system for evaluating environmental management decisions and the environmental effects of proposed federal agency actions.  See 40 CFR Secs. 1500-08.  Depending on a proposed project's "effect on the human environment," the NEPA and Council on Environmental Quality (CEQ) regulations authorize federal agencies to fulfill their NEPA requirements in one of three ways.  First, the agency may prepare an EIS, see 40 CFR Sec. 1501.3, which, if properly completed, will always satisfy an agency's NEPA requirements, see City of Carmel-by-the-Sea v. U.S. Dept. of Trans., 123 F.3d 1142, 1150 (9th Cir. 1997).  Second, an agency may prepare a less-rigorous EA.  See 40 CFR Sec. 1508.9.  If the EA supports a Finding of No Significant Impact on the environment, the EA satisfied the agency's NEPA obligations in lieu of an EIS.  See Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1224 (9th Cir. 1988).  Finally, NEPA and CEQ regulations allow agencies to avoid the preparation of either an EIS or an EA if a proposed action properly falls within a Categorical Exclusion.  In this case, the Forest Service did not prepare an EIS or an EA to evaluate the environmental impact of its tree removal project.  Instead, it divided the project into three sub-parts and authorized each sub-part under the Categorical Exclusions enumerated in its Handbook.  The Service explained its decisions to do so in three separate memoranda—the "Roads and Trails," the "Fence and Utility Line," and the "Wildland / Urban Interface" memoranda.  As a threshold matter, Judge Pregerson disagreed with the majority's ap-proval of the Service's "divide and conquer" use of Categorical Exclusions.  The majority held that the Service "was entitled to treat the "Wildland / Urban Interface" decision as a separate project" and that the appellant "Forest Conservation Council's appeal from the denial of injunctive relief has been mooted by the completion of the environmental assessment for this project."  Judge Pregerson said that, in his view, the majority's conclusion was erroneous.  The NEPA prohibits an agency from breaking up a large or cumulative project into smaller components in order to avoid designating the project a major federal action that would be subject to NEPA analysis requirements.  Churchill v. Norton, 276 F.3d 1060, 1076 (9th Cir. 2001).  The record was replete with evidence—albeit mostly circumstantial—supporting the appellant's contention that the Service considered the three projects to be one and divided the project into three sub-parts to avoid NEPA analysis requirements and to survive litigation.  Because, Judge Pregerson thought that the Service's decision to break up the tree removal project so as "to avoid designating the project a major federal action" was improper, he would hold that the appellant's challenge to the Service's "Wildland / Urban Interface" decision was not moot and that the Service was required to prepare either an EIS or an EA for the aggregated tree removal operation as a whole.  Judge Pregerson said that even if he were to agree that  the Service properly divided the tree removal project into three sub-parts, he still could not agree with the majority's finding that the Service's use of Categorical Exclusions was not arbitrary and capricious.  West v. Sec'y of Dep't of Trans, 206 F.3d 920 (9th Cir. 2000) (describing NEPA requirements), held that the authorization of "an entirely new, $18 million, four-lane, 'fully-directional' interchange constructed over a former Superfund site and requiring 500,000 cubic yards of fill material, 30,000 tones of crushed surfacing, and 32,000 tones of asphalt concrete pavement" was an arbitrary and capricious application of the Federal Highway Administration Categorical Exclusion for "changes in [highway] access control."  Id. 206 F.3d at 928.  In particular, West found that none of the examples of projects properly authorized by the Categorical Exclusion—"resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes," installation of ramp metering control devices and lighting," and "bridge rehabilitation, reconstruction or replacement or the construction of grade separation to replace existing at-grade railroad crossings,"—approached the magnitude of the Federal Highway Administration interchange project.  Being bound by West, Judge Pregerson said he could not agree with the majority's finding that the Service's "Roads and Trails" and "Fence and Utility Line" decisions were properly authorized by the Cate-gorical Exclusions.  Nor could he agree that the Service's "Wildland / Urban Interface" decision was properly authorized by the Cate-gorical Exclusion.  The removal of trees on 14,951 acres of National Forest land, as authorized by the  Service's "Roads and Trails" decision, had nothing to do with the examples of actions properly excludable under the Categorical Exclusion listed in the Service's Handbook:  e.g., mowing lawns, replacing roofs, painting buildings, applying pesticides, resurfacing roads, grading a road, pruning vegetation, posting landline boundaries, applying herbicides to control poison ivy in camp grounds, applying insecticides at recreation sites, repaving a parking lot, and applying pesticides for rodent or vegetation control.  Similarly, the removal of trees on 3,008 acres of National Forest land, as authorized by the Service's "Fences and Utility Lines" decision, has nothing to do with the examples of actions properly excludable under the Categorical Exclusions listed in the  Service's Handbook:  e.g., resurfacing roads, grading a road, pruning vegetation, posting landline boundaries, replacing an underground cable trunk, or reconstructing a power line.  Finally, the removal of trees on 19,365 acres of National Forest land, as authorized by the Service's "Wildland / Urban Interface" decision, had nothing to do with the examples of actions properly excludable under the Categorical Exclusions listed in the  Service's Handbook:  e.g., thinning or brush control to improve growth or to reduce fire hazard, the opening of an existing road to a dense timber stand, and prescribed burning.  In this respect, Judge Pregerson said he agreed with the district court that the Service's "Wildland / Urban Interface" decision was not properly authorized by the Categorical Exclusions.  Because he thought the majority had improperly relieved the Service of its obligation to properly evaluate with either an EIS or EA the environmental impact of its tree removal operation, Judge Pregerson dissented.

3)  BANKRUPTCY:  In re Bryan, 03-55854 (9th Cir. Sept. 16, 2004) (unpublished).  Pregerson, T.G. Nelson, and Graber, Circuit Judges.

        The debtor appealed pro se the BAP's order affirming the bankruptcy court's order finding that $104,827.58 of a state court's judgment in favor of the debtor's sister, Patricia, is nondischargeable in bankrptcy.  The USCA affirmed.  It rejected the debtor's contention that the bankruptcy court was bound by the special verdict form awarding punitive damages for fraud in determining what portion of the state court's judgment was nondischargeable.  See 11 USC Sec. 523(a)(2)(A), (a)(6) (providing for nondischargeability of debts for money or property obtained by fraud or willful and malicious injury);  In re Comer, 723 F.2d 737, 740 (9th Cir. 1984) (bankruptcy court is not precluded by judgment from exercising its exclusive jurisdiction to determine the nature of debt for purposes of dischargeability).  The USCA agreed with the BAP that the bankruptcy court did not abuse its discretion by denying the debtor the opportunity to depose his niece because he did not point to any evidence, other than his own speculation, that his niece could provide information regarding Patricia's knowledge of facts he allegedly concealed from her.  See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (court's decision to deny discovery will be upheld unless the denial results in actual and substantial prejudice).  Finally, the USCA agreed with the BAP that the bankruptcy court did not clearly err in using the purchase price of the property to measure damages, because the broker's valuation opinion submitted by the debtor was not dated.  See In re Jan Weilert RV, Inc., 315 F.3d 1192, 1196 (9th Cir.), amended by 326 F.3d 1028 (9th Cir. 1003) (bankruptcy court's factual findings will be accepted absent clear mistake).

4)  BANKRUPTCY:  In re Umali, 02-15010 (9th Cir. Sept. 10, 2004) (unpublished). Ferguson, McKeown, and Rawlinson, Circuit Judges.  The opinion of Oct. 3, 2003 has been withdrawn.

      This appeal consolidates two cases.  The first filed by bankruptcy debtor Umali, No. 02-15010, sought reversal of the district court's ruling that no automatic stay existed in the Arizona bankruptcy case, because Umali filed his petition in violation of the 180-day filing bar imposed by the California bankrptcy court.  In the second appeal, No. 02-16379, Umali challenged the district court's affirmance of the bankruptcy court order retroactively annulling the automatic stay in the Arizona bankrptcy action.  In deciding to retroactively annul the automatic stay, the bankrptcy court weighed the following matters:  (1) the tax liens owned by the creditors;  (2) the existence of $1.2 million in unpaid property taxes, and the corresponding lessened value of the property;  (3) Umali's lack of equity in the property;  (4) the numerous bankruptcy petitioners filed by Umali;  (5) the property's irrelevance to effective reorganization of the bankrptcy estate; and (6) the uninsured status of the property.  The USCA found that, on balance, it could not say that the bankrptcy court abused its discretion when it weighed the facts and decided that retroactive annulment of the automatic stay was in order.  It noted that its conclusion that the bankrptcy court acted within its discretion in retroactively annulling the automatic stay rendered moot Umali's challenge to the district court's ruing that the automatic stay never existed.  It thus affirmed as to No. 02-16379 and dismissed as to No. 02-15010. 

5)  IMMIGRATION:  El Bitar v. Ashcroft, 03-70898 (9th Cir. Sept. 9, 2004) (unpublished).  Reinhardt, Tashima, and Wardlaw, Circuit Judges.

       Eyad El Bitar is a stateless native of Saudi Arabia of Palestinian descent.  He petitioned for review of the Board of Immigration Appeals' affirmance without opinion of the Immigration Judge's final order denying his application for asylum and withholding of removal. 

       The USCA denied the petition.  El Bitar sought asylum and withholding of removal on the ground that his stateless status it-self is a violation of the Universal Declaration of Human Rights, and that, because he is stateless, Saudi Arabia has denied him a series of rights, including the right to re-enter Saudi Arabia, despite having been born there, the right to attend a Saudi Arabian university and the right to employment without a Saudi Arabian sponsor.  Although El Bitar was born in Saudi Arabia, he is not a citizen because his father is Palestinian;  thus, when he left the country to travel to the U.S. under the auspices of his employer, but was subsequently fired by that employer, he was not allowed to obtain a visa to return.  Moreover, El Bitar was unable to obtain a worker's residence because Saudi Arabia requires that he first obtain a degree from a foreign university, which El Bitar claims he cannot afford.  He testified, however, that he is not "afraid of torture and things like that" and that the situation in Saudi Arabia is the same for all non-citizens of the country, not just stateless Palestinians.  Because the IJ did not make an adverse credibility finding, the USCA accepted El Bitar's testimony as true.  Nonetheless, El Bitar does not meet the requirements for asylum or withholding of removal.  Statelessness alone does not warrant asylum and because a person having no nationality is included amongst those who must show persecution under the statute, the lack of nationality alone cannot constitute persecution.  Nor does the discrimination based on El Bitar's non-citizenship rise to the level of persecution.  El Bitar testified that his father—who is also of Palestinian descent—was able to work for 25 years in Saudi Arabia on a worker's visa.  He also testified that if he obtains a university degree from a foreign university, he may be able to obtain a worker's visa.  Prasad v. INS, 47 F.3d 336, held that "particularized individual persecution, not merely conditions of discrimination in the country of origin, must be shown before asylum will be granted."  Furthermore, Li v. INS, 92 F.3d 985, 987 (9th Cir. 1996), quotes Faddoul v. INS, 37 F.3d 185, 190 (5th Cir. 1994), that "education, although undeniably important, is a matter of governmental policy rather than a fundamental right."  The USCA noted that the instant case is factually different from El Himri v. Ashcroft, 03-71152, 2004 WL 1879255 (9th Cir. Aug. 24, 2004), which granted asylum and withholding of removal in a case involving stateless Palestinian natives of Kuwait.  In El Himri, the IJ had found that after the Iraq-Kuwaiti war, Kuwait embarked on a "systematic effort to decrease its population of non-Kuwaiti residents. … Through forced expulsion, extreme persecution and discrimination, Kuwait decreased its Palestinian population from a pre-war total of 350,000 to a current population of about 35,000. … Palestinians who remained in the country were denied the right to work, go to school, or even obtain drinking water. … The government remains reluctant to issue work permits to the Palestinians still living in Kuwait. Non-Kuwaitis, especially those of targeted ethnicities, such as Palestinians, have a heightened risk of abuse by the police.  As a Palestinian woman, Haifa El Himri testified credibly that she would have a high risk of rape if she were to return to Kuwait."  Id. at *3.  The court further found that the El Himris "would not be able to avoid the state-sponsored economic discrimination that has been enacted against Palestinians living in Kuwait since the end of the Gulf War."  Id. *4.  "In sum … Kuwait's policies toward its Palestinian residents in effect make it impossible for them to continue living in Kuwait."  Id. *3.  El Bitar offered no evidence that Palestinians are treated differently than other non-citizens in Saudi Arabia or even that there has been any particularly hostile treatment of Palestinians.  Without such evidence, the USCA said it is unable to determine what components of Saudi Arabia's treatment is due to El Bitar's Palestinian background as opposed to Saudi Arabia's general immigration policy.  The "extreme economic discrimination" and targeted abuse demonstrated in El Himri is not present in the instant case.  El Bitar was able to find work, despite his lack of worker's residency, and lost his job not due to government persecution but rather as a result of nonperformance of his duties.  He may well be able to obtain new, albeit unofficial, employment if he returns to Saudi Arabia and has offered no evidence to the contrary.  He has not testified that he faces a high risk of physical abuse, or that he will be denied basic necessities, such as water.  As in Prasad and Faddoul, El Bitar cannot show that he has been singled out for differential treatment on the basis of his nationality or ethnicity, or that the hardships he faces constitute persecution per se.  Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995), cautioned that "persecution is an extreme concept that does not include every sort of treatment our society regards as offensive."  Thus, El Bitar has not shown that Saudi Arabia has or will persecute him on account of his "race, religion, nationality, membership in a particular social group, or political opinion."  8 USC Sec. 1101(a)(42)(A).

6)  IMMIGRATION:  Ghazal v.  v. Ashcroft, 03-71630 (9th Cir. Sept. 23, 2004) (unpublished).  Pregerson, T.G. Nelson, and Graber, Circuit Judges.

       Sameh Mohamed Mohamed Ghazal and Inaia Abdel Karim Abel El Maghraby, stateless individuals of Palestinian ethnicity, petitioned pro se for review of the Board of Immigration Appeals' decision summarily affirming an immigration judge's denial of their applications for asylum, withholding of removal, and relief under the Convention Against Torture.
     
        The USCA granted the petition.  First, as the facts were not disputed and were accepted as true by the IJ.  The USCA thus accepted them as true.  After the IJ considered undisputed evidence that Ghazal had been detained, forcibly deported, or turned away when he sought legal residency in Israel, Egypt, and the United Arab Emirates, the IJ held that Ghazal's statelessness did not amount to past persecution.  But the IJ did not reach the issue of Ghazal's fear of future persecution and the record remains undeveloped as to that issue.  The IJ failed to properly consider the State Department Country Reports and reports from the United Nations High Commissioner for Refugees regarding the treatment of Palestinians in both Israel and Egypt, the two designated countries of removal.  In addition, the IJ improperly designated Israel and Egypt as alternate countries of removal because the government failed to satisfy its burden of showing that either of these countries will accept the petitioners.  The USCA thus remanded to permit the BIA to conduct further proceedings consistent with El Himri v. Ashcroft, 378 F.3d 932 (9th Cir. 2004), in order to properly designate a permissible country of removal, and to determine whether the petitioners are eligible for asylum or withholding on the basis of a well-founded fear of future persecution

7)  IMMIGRATION:  Tarlanian v. Ashcroft, 03-70112 (9th Cir. Sept. 22, 2004) (unpublished).  Pregerson, T.G. Nelson, and Graber, Circuit Judges.

       Artour Tarlanian and his wife Margarita, natives and citizens of Armenia, petitioned for review of a BIA order summarily affirming an order of an immigration judge denying their application for asylum and withholding of removal.  The USCA granted the petition.  Substantial evidence did not support the IJ's finding that there were inconsistencies in Tarlanian's written and oral accounts of the incidents that formed the basis of his application for relief.  At his hearing, he described more fully how he came to be shot by police, but the omission of details from an applicant's earlier testimony cannot serve as the basis for an adverse credibility finding.  To the extent there appeared to be inconsistencies in Tarlanian's testimony, he explained them, and the IJ's reasons for rejecting his explanations were based on misunderstanding and improper speculation. The USCA remanded to the BIA for a determination, accepting Tarlanian's testimony as credible, of whether Tarlanian is eligible for asylum or withholding of removal, and, if he is eligible, whether to grant his asylum application.

8)  IMMIGRATION:  Pananyan v. Ashcroft, 02-73060 (9th Cir. Sept. 21, 2004) (unpublished).  Pregerson, T.G. Nelson, and Graber, Circuit Judges.
 
      Pananyan, a native and citizen of Armenia petitioned for review of the BIA's summary affirmance of an IJ's denial of his application for asylum and withholding of removal, and relief under the Convention Against Torture (CAT).   The USCA denied the petition.  Substantial evidence supported the IJ's conclusion that Pananyan has not established a well-bounded fear of future persecution.  His fear that he would be drafted into the military or alternatively jailed for refusing to serve was unfounded.  He testified that he pre-viously fulfilled his military duties, and had been honorably discharged.  He is now well beyond the Armenia draft age.  Even in the unlikely event he were drafted, conscription against religious belief does not constitute persecution.  His fear that he would be unable to proselytize and practice his religion if returned to Armenia was also an insufficient basis for his claim that he could be persecuted in the future.  Although Jehovah's Witnesses are not recognized as an official religious group in Armenia, the 1999 State Department Report indicates that they practice their religion openly.  The fact that they are not officially recognized may amount to discrimination, but "persecution is an extreme concept, which ordinarily does not include discrimination on the basis of … religion, as morally reprehensible as it may be."  See Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc).  Because Pananyan failed to establish eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal.   His constitutional challenge to the BIA's streamlining regulations was foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 849-52 (9th Cir. 2003).  The USCA did not consider whether the BIA erred by streamlining the case because substantial evidence supported the IJ's denial of the application for relief.

9)  IMMIGRATION:  Omer v. Ashcroft, 03-70920 (9th Cir. Sept. 20, 2004) (unpublished).  Reinhardt, Tashima, and Wardlaw, Circuit Judges.

      Mohamed Ahmed Omer, a native and citizen of Ethiopia, petitioned for review of a BIA decision affirming an IJ's denial of asylum and withholding of removal.  The USCA granted the petition, reversed, and remanded.  The IJ found that Omer's testimony regarding his past detention and torture by the government due to his membership in the All Amhara People's Organization was unsupported and seemingly inconsistent with information provided by the State Department report.  That raised a serious issue of credibility.  However, the Circuit has rejected exclusive reliance on State Department reports as the basis for adverse credibility determinations.  The passages relied upon by the IJ in the State Department report were general, and failed to identity specific, perhaps local, dangers to particular individuals.  Moreover, review of the record revealed that the report itself noted, in conformity with Omer's testimony, that "the governmental reality, especially at the local and regional level, does not always live up to the [central government's] announced respect for human rights.  Local administrators and members of the security forces committed human rights abuses, such as beating or mistreating detainees, and arresting citizens without court orders."  Because the IJ's reliance on the State Department report was neither supplemental, nor for the purpose of "refuting a generalized statement," bur was intended to discount "specific testimony regarding [Omer's] individual experience," Chebchoub v. INS, 257 F.3d 1038, 1044 (9th Cir. 2001), the adverse credibility determination was not based on specific, cogent reasons supported by the record.  The individual assessment letter, as the IJ's decision acknowledges, merely reiterates general conditions and contains no specific information regarding the applicant.  The IJ also explained that he "carefully observed" Omer as he testified and concluded that he was not telling the truth.  The IJ's observation was general, however, and did not "specifically and cogently refer to any aspect of [Omer's] demeanor" such that would support his negative credibility determination.  Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir. 2003).  Because, after making the adverse credibility finding, the IJ did not reach the merits of Omer's claims, the USCA remanded for the IJ to consider his application in the first instance, taking his testimony as credible.