1) SECURITIES: In re Daou Systems, Inc., 02-56989 (9th Cir. Feb. 2, 2005). Plaintiffs, former Daou Systems investors, alleged that Daou and some of its officers systematically and fraudulently violated the Generally Accepted Accounting Principles in order to artificially inflate the price of Daou's stock. They also alleged that they incurred substantial personal losses due to their purchases of Daou stock at the inflated prices. The district court determined that plaintiffs failed to state sufficiently particularized claims under the 1933 Securities Act and the 1934 Exchange Act and thrice granted plaintiffs leave to amend. Plaintiffs appealed the district court's dismissal of their Third Amended Complaint with prejudice. The defendants cross-appealed the district court's failure to consider, sua sponte, whether to impose sanctions against plaintiffs and plaintiffs' attorneys. The USCA affirmed in part, reversed in part, and remanded. Plaintiffs' complaint, although lengthy and repetitive, stated a sufficiently particularized claim for accounting fraud under the heightened pleading standards of the Private Securities Litigation Reform Act. The USCA thus did not reach the plaintiffs' request for leave to amend or the defendants' request for attorneys' fees. B. Fletcher, Pregerson, and Brunetti (author), Circuit Judges. E. Isaacson of San Diego, CA, for the plaintiffs; M. McCloskey of San Diego, CA, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/)

2) BANKRUPTCY: In re Beachport Entertainment, 03-55251 (9th Cir. Feb. 3, 2005). Ehrenberg, the Chapter 7 Trustee in this case, appealed a BAP decision dismissing his appeal from a Bankruptcy Court order granting summary judgment for the California State University Fullerton Foundation. He brought an adversary proceeding in Bankruptcy Court seeking to avoid an allegedly fraudulent transfer made by debtor Beachport Entertainment to the Foundation. The BAP dismissed the Trustee's appeal for failure to provide it with the judgment or the order being appealed, the complaint, and the answer, in violation of FRBP 8009. While appreciating the BAP's frustration with counsel's failure to follow the procedural rules, the USCA concluded that dismissal was an inappropriately harsh sanction. It thus reversed and remanded for the BAP to consider alternative sanctions. Tashima (author), Fisher, and Tallman, Circuit Judges. R. Parker of Los Angeles, CA, for the appellants; P. Gale of Newport Beach, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

3) BANKRUPTCY: Lockyer v. Mirant Corporation, 04-15024 (9th Cir. Feb. 10, 2005). The Attorney General of California brought this action under Sec. 16 of the Clayton Act seeking divestment by the Mirant defendants of three electrical generating plants. The district court granted a stay pursuant to Landis v. North American Co., 299 US 248 (1936), pending the resolution of Mirant's Chapter 11 peti-tions in a bankruptcy court in Texas. The USCA held that the district court had jurisdiction to determine whether the automatic stay of the Texas bankruptcy court applied to the Attorney General's suit, and that the Attorney General's suit came within the "police or regulatory power" exception of 11 USC Sec. 362(b)(4) to the automatic stay. The USCA further held that, under the circumstances of this case, a Landis stay was not justified. The USCA thus vacated the stay and remanded to allow the Attorney General's suit to proceed on the merits of his Clayton Act claim. W. Fletcher (author) and Fisher, Circuit Judges, and Winmill, District Judge. H. Saferstein of Santa Monica, CA, for the plaintiffs-appellants; B. Merryman of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) BANKRUPTCY / ATTORNEYS' FEES: In re Miller, 03-35894 (9th Cir. Feb. 2, 2005). Snavely appealed an order of the District Court for the District of Montana which affirmed an order of the Bankruptcy Court for the District of Montana which awarded debtor-in-possession Miller $90,000 in attorneys' fees based on Snavely's breach of her fiduciary duties as trustee of a trust under which Miller was a beneficiary. Snavely filed a petition for bankruptcy in the Bankruptcy Court for the Western District of Washington on March 15, 2002, maintaining that the Montana Bankruptcy Court's order of March 26, 2002 violated the automatic stay triggered by the earlier filing of her bankruptcy petition in the Washington bankruptcy court. The USCA reversed upon concluding that the automatic stay enjoined the Montana bankruptcy court from entering an award of attorneys' fees until after the expiration or lifting of the stay. It expressed no view regarding the merits of the award of attorneys' fees. Alarcon (author), W. Fletcher, and Rawlinson, Circuit Judges. J. Jorgensen of Washington, DC, for the appellant; J. Binney of Missoula, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) DECLARATORY JUDGMENTS / SETTLEMENTS: Gator.com Corp. v. L.L. Bean, Inc., 02-15035 (9th Cir. Feb. 15, 2005). At issue here was whether a declaratory judgment action initiated to determine the legality of a software vendor's pop-up advertising program was rendered moot by a settlement under which the vendor permanently modified its software and the website owner relinquished all claims. The USCA dismissed, finding there to be no live controversy before it because the parties' settlement agreement resolved all facets of their dispute and thereby mooted this appeal. Concurring, Judge Tashima, joined by Judges Rymer and McKeown, noted that even assuming that the dissent is correct that the parties continue to contest-with a monetary stake in the outcome-the issue of personal jurisdiction, that did not amount to an Art. III "case or controversy." The case or controversy at stake in this litigation was whether the plaintiff's pop-up ad program violated L.L. Bean's trademark and other primary rights. As the majority concluded-and the dissent did not challenge-that controversy was concluded by the settlement agreement. Dissenting, Judge Fletcher, join by Judges Graber and Paez, disagreed with the majority's conclusion that the appeal was moot because the parties' settlement agreement resolved all facets of their dispute. Rather, the dissent thought that the only question on appeal had not been resolved: the parties continue to dispute whether a federal district court in California has personal jurisdiction over L.L. Bean. Schroeder, Ferguson, O'Scannlain (author), Rymer, Tashima (concurring), Graber, McKeown, W. Fletcher (dissenting), Gould, Paez, and Bybee, Circuit Judges. M. Traynor of San Francisco, CA, and D. Bergeson of San Jose, CA, for the appellant; P. Brann of Lewiston, Maine, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) INSURANCE: Hendricks v. Bank of American, 03-55754 (9th Cir. Feb. 25, 2005). Defendant Mutual Indemnity (Bermuda), Ltd., appealed from a district court order enjoining co-defendant Bank of America from honoring Mutual's efforts to drawn down on a letter of credit posted by plaintiff Hendricks. The USCA affirmed. Since Mutual had not shown that the district court abused its discretion or based its discretion on an erroneous legal standard or on clearly erroneous findings of fact, the USCA affirmed the district court's pre-liminary injunction. Wallace (author), Noonan, and McKeown, Circuit Judges. V. Connelly of Chicago, IL, for the defendant-appellant; B. Meckler of Los Angeles, CA, for the plaintiffs-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

7) ENERGY CONSERVATION: Air Conditioning and Refrigeration Institute v. Energy Resources Conservation and Development Commission, 03-16621 (9th Cir. Feb. 3, 2005). This case presented the question of whether federal law preempted California appliance regulations requiring appliance manufacturers to submit data about their appliances to California's Energy Resources Conservation and Development Commission, mark their appliances with basic information such as brand name and energy performance, and be subjected to related compliance and enforcement rules. The USCA concluded that federal law did not preempt California's regulations. It thus revered the district court's decision finding the regulations preempted and permanently enjoining the Commission from enforcing these regulations. The USCA vacated the injunction and remanded. Dissenting, Judge Noonan noted that the statutes at issue deliberately spell out what is preempted by federal law; state regulations preempted are those that require "disclosure of information with respect to the energy use, energy efficiency or water use … other than the information required under section 6294 of this title." 42 USC Sec. 62979(a)(1)(B). Judge Noonan noted that where federal regulations do not require disclosure of such information to the federal government, a state is expressly prohibited from requiring such disclosure to consumers or to a state authority. Judge Noonan thus would affirm the district court. B. Fletcher, Noonan (dissenting), and Thomas (author), Circuit Judges. W. Chamberlain of Sacramento, CA, for the appellants; J. Hodges of Washington, DC, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

8) AMERICANS WITH DISABILITIES ACT: Beentjes v. Placer County Air Pollution Control District, 03-15598 (9th Cir. Feb. 4, 2005). The Placer County Air Pollution Control District is charged under state law with the responsibility of enforcing state and national air quality standards within its region. Beentjes is a former employee of the District as an air pollution control specialist. This case arose when the District terminated Beentjes after he was diagnosed with a serious pulmonary disease and efforts to accommodate his condition were unsuccessful. Beentjes sued the District under the Americans with Disabilities Act and sought damages and injunctive relief. The District moved for summary judgment on the ground that, as an arm of the state, it is entitled to sovereign immunity under the Eleventh Amendment. The district court, employing the five-factor test of Mitchell v. Los Angeles Community College District, 861 F.2d 198, 201 (9th Cir. 1988), and reaffirmed in Belanger v. Madera Unified School District, 963 F.2d 248, 250-51 (9th Cir. 1992), determined that the District was not entitled to sovereign immunity and denied the motion. In the interlocutory appeal, the District challenged that ruling on the ground that the district court failed to recognized the District's unique status as an enforcement agency under California's implementation plan for the federal Clean Air Act. The USCA had jurisdiction over this appeal under the collateral order doctrine and affirmed. It held that the District is not an arm of the state and thus not entitled to sovereign immunity under the Eleventh Amendment. Ferguson, Reinhardt, and Paez (author), Circuit Judges. M. Evans of Sacramento, CA, for the appellant; R. Bushnell of San Francisco, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

9) CONTRACTS: Hambleton Brothers Lumber Co. v. Balkin Enterprises, Inc., 03-35480 (9th Cir. Feb. 11, 2005). The USCA held that the district court did not abuse its discretion by granting defendant Ballinger's motion to strike the James Hambleton deposition errata or the Dale Kinsey declaration. On Hambleton Brothers claims of breach of contract, piercing of the corporate veil, fraudulent concealment, and unfair or deceptive trade practices pursuant to the Washington Consumer Protection Act, the USCA affirmed the district court's grant of summary judgment. On Hambleton Brothers claim under Or. Rev. Stat. Sec. 60.645, the USCA held that Hambleton Brothers has alleged facts sufficient to create a genuine issue of material fact; the USCA thus reversed the district court's grant of summary judgment on the Sec. 60.645 claim and remanded for further proceedings not inconsistent with its decision. Wallace, Gould (author), and Berzon, Circuit Judges. K. Rylander of Vancouver, WA, for the plaintiff-appellant; M. Comstock of Salem, OR, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

10) TRUTH IN LENDING: Jones v. E*Trade Mortgage Corp., 03-55575 (9th Cir. Feb. 11, 2005). The Joneses appealed a judgment of the district court dismissing their complaint with prejudice for failure to state a cause of action under the Truth in Lending Act against E*Trade Mortgage Company and E*Trade Bank. Holding that the Joneses stated a viable complaint, the USCA reversed and re-manded. E*Trade made the argument that if the loan in question had never closed, the Joneses would not have had the right to rescind. However, that argument was irrelevant to the case. The loan did close. The Joneses did have a right to rescind. What that right included was not clear due to the representations of a mortgage sales manager and what appears to have been the corporate policy of E*Trade. The vitality of the Joneses claim under the Truth In Lending Act gave vitality to their state claims as well. B. Fletcher, Noonan, (author), and Paez, Circuit Judges. D. Harris of Chicago, IL, for the plaintiffs-appellants; D. Lobel of McLean, VI, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) LABOR LAW: Jenkins v. County of Riverside, 03-55412 (9th Cir. Feb. 9, 2005). Jenkins alleged in this 42 USC Sec. 1983 action that the County of Riverside deprived her of her property right in continued public employment in violation of the Fifth and Fourteenth Amendments when she was summarily terminated in 1998. A prior Ninth Circuit panel concluded that Jenkins would prevail on such a claim so long as she was a "regular" employee at the time of her termination. The Ninth Circuit was now asked to determine whether she was a "regular" or "temporary " employee of Riverside County as defined by Sec. 1(t) and 1(v), respectively, of County Ordinance 440. The first panel to consider this question held that a genuine issue of material fact existed as to whether Jenkins as "qualified" for regular employment within the County and remanded to the district court for further discovery. No other deficiency in the record was identified and the prior panel's holding that the "qualification" question is determinative is the law of this case. Disposition of this appeal thus turned entirely on whether Jenkins was, in fact, "qualified" for regular employment. Because it held that she was so qualified under California law, for purposes of this case she was a de facto "regular" employee within the meaning County Ordinance 440. The USCA thus reversed and remanded for further proceedings. Browning, Pregerson, and Berzon, Circuit Judges. D. Roth of Riverside, CA, for the plaintiff-appellant; C. Lockwood of San Bernardino, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) LABOR LAW: U.A. Local 342 Apprenticeship & Training Trust v. Babcock & Wilcox Construction Company, 03-16018 (9th Cir. Feb. 1, 2005). Babcock & Wilcox Construction Company entered into the National Industrial Maintenance Agreement ("NIMA"), a collective bargaining agreement, with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("U.A."). Whenever local U.A. unions work on projects that fall within the scope of the NIMA, the terms of any local labor agreements to which the unions may also be parties apply only to the extent that the NIMA incorporates them. The local agreement at issue here provided for a variety of fund contributions, including 75 cents per hour of work to the U.A. Local No. 342 apprentice training fund and 25 cents to industry promotion funds. Babcock properly exercised its discretion under the NIMA and declined to pay the 25 cents into the industry promotion funds. However, it did not contribute an equal amount into the apprentice training fund, as required by the local agreement. The apprentice training fund sued. The district court granted the fund's motion for summary judgment and referred the remaining matters, including damages, to a magistrate judge. The parties agreed to a stipulated judgment in conformity with the district court's order. Babcock appealed. The USCA affirmed. The text of the NIMA supported the fund's position. Kozinski (author), W. Fletcher, and Bybee, Circuit Judges. S. Dye of San Francisco, CA, for the defendant-appellant; W. Flynn of San Francisco, CA, for the plaintiffs-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

13) ERISA / SECURITIES: Securities & Exchange Commission and Eighth District Electrical Pension v. Lennon, 03-35406 (9th Cir. Feb. 2, 2005). In these consolidated appeals, the beneficiaries to a receivership complained about various aspects of the receiver's plan of distribution. The district court approved the plan of distribution. It concluded that each of the three pieces of real property herein at issue should be included in the receivership estate and distribution plan. The USCA affirmed. Dissenting in part, Judge Fletcher said he agreed with the majority's opinion except in one respect: unlike the majority, he would hold that the district court erred in approving the 50% offset for damages recovered by ERISA plans from third parties. Reavley (author), W. Fletcher (dissenting in part), and Tallman, Circuit Judges. C. Carson and B. Lyon of Portland, OR, for the claimants-appellants; S. Elias of Washington, DC, for the ap-pellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) ERISA / THE SEPARATE JUDGMENT RULE: Ford v. MCI Communications Corp Health & Welfare Plan and ITT Hartford In-surance Group, 03-55216 (9th Cir. Feb. 28, 2005). The USCA held that its consideration of Rule 58 of the Federal Rules of Civil Procedure and Rule 4 of the Federal Rules of Appellate Procedure required the conclusion that an order granting summary judgment in this case was sufficiently final and the appeal timely. No separate document was entered setting forth the judgment. Because Ford appealed within the time limits set forth in Appellate Rule 4(a), as construed in harmony with Rule 58, her appeal was timely. On the merits, the USCA affirmed the district court's grant of summary judgment in favor of ITT Hartford Insurance Group because: 1) ERISA claims may not be brought against the claims administrator; 2) claims asserting a breach of fiduciary duty are not cognizable when the asserted breach is predicated upon the mishandling of an individual claim; and 3) Ford's assertion of claims under specific ERISA provisions precluded relief under ERISA's "catchall" provision. Canby, Hansen, and Rawlinson (author), Circuit Judges. D. Dydzak of Los Angeles, CA, for the plaintiff-appellant; C. Knox of San Francisco, CA, for the defendants appellants. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) ACT OF STATE DOCTRINE / CONTEMPT / DISCOVERY: Philippine National Bank v. U.S. District Court, 04-71843 (9th Cir. Feb. 4, 2005). The Philippine National Bank petitioned for a writ of mandamus to prevent the U.S. District Court for the District of Hawaii from pursuing contempt and discovery proceedings against the Bank because of the Bank's transfer of funds to the Republic of the Philippines pursuant to a judgment of the Philippine Supreme Court. The USCA found jurisdiction under 28 USC Sec. 1651(a) and concluded that the district court's orders violate the act of state doctrine. The USCA thus issued the writ and directed the district court to refrain from any further action against the Philippine National Bank in this action or any other action involving any of the funds that were the subject of the decision of the Philippine Supreme Court dated July 15, 2003. Goodwin, Canby (author), and Tallman, Circuit Judges. J. Ziegler of Los Angeles, CA, for the petitioner; J. Bartko of San Francisco, CA, for real-parties-in-interest. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) AMERICANS WITH DISABILITIES: Butler v. Adams, 04-15478 (9th Cir. Feb. 7, 2005). Butler is a prisoner incarcerated the California Substance Abuse Treatment Facility and State Prison in Corcoran, California. His eyesight is impaired. The prison maintained no Inmate Assistance Program to help him to go to the dining hall, the law library, religious services, prison self-help activities, or medical appointments. There were also no Braille programs and no legal technical assistant to help him, and there were no railings he could use in moving to the restroom, shower room, day room, or telephone. He injured himself by hitting the water fountain on his way to the restroom. He hurt his head and back by slipping on soap in the shower, and he broke a tooth walking into a wall on his way to the shower. He continues to injury himself because of the lack of railings. The district court dismissed Butler's action, brought under the American with Disabilities Act against California prison officials, for failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1996. The USCA reversed and remanded, holding that Butler complied with the grievance procedure afforded him by the state for ADA complaints. Noonan (author), Tashima, and Callahan, Circuit Judges. J. Hobler of Sacramento, CA, for the plaintiff-appellant; DAG J. Wolff of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) WRONGFUL DEATH: Dorn v. Burlington Northern Santa Fe Railroad Company, 03-35071 (9th Cir. Feb. 7, 2005). This case involved an appeal from a jury verdict awarding the plaintiff in a wrongful-death and survivorship action $6,655,200 in compensatory and punitive damages. The defendant sought a new trial, arguing that the district court reached an incorrect legal conclusion that infected certain evidentiary rulings, the jury instructions, and the manner in which the punitive-damages phase of the trial was conducted. The USCA agreed that, in light of cumulative trial errors, the district court should have granted the defendant's motion for a new trial on both liability and damages. Having jurisdiction under 28 USC Sec. 1291, the USCA reversed the judgment and remanded. Kleinfeld and Callahan (author), Circuit Judges, and Bertelsman, District Judge. C. Cole of Washington, DC, for the defendant-appellant; A. Blewett of Great Falls, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) PROPERTY / QUIET TITLE ACTIONS: Commonwealth of the Northern Mariana Islands, 03-16556 (9th Cir. Feb. 24, 2005). This appeal addressed ownership rights to submerged lands off the shores of the Commonwealth of the Northern Mariana Islands. The Commonwealth filed this quiet title action agianst the United States, requesting declaratory and injunctive relief to establish the Com-monwealth as the owner of the submerged lands underlying the "internal," "archipelagic," and "territorial" waters adjacent to the Com-monwealth. The United States counter-claimed on the title dispute and in addition sought a judgment decreeing two laws passed by the Commonwealth to be unenforceable assertions of the Commonwealth's ownership of the submerged lands. The district court entered summary judgment in favor of the United States. The USCA affirmed. It held that the United States acquired paramount interest in the seaward submerged lands found off the shores of the Commonwealth. Laws passed by the Commonwealth to the contrary are inconsistent with the paramountcy doctrine and preempted by federal law. Beezer (author), Graber, and Bybee, Circuit Judges. AAG J. Livingstone of Saipan, MP, for the plaintiff; D. Shilton of Washington, DC, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) IMMIGRATION: Ngongo v. Ashcroft, 03-70903 (9th Cir. Feb. 14, 2005). Ngongo, a native and citizen of the Congo, petitioned for review of a BIA decision ordering her deported as a alien who procured by fraud a visa to remain in the United States. The USCA de-nied the petition. It found that the BIA did not err in affirming the IJ's decision on the first petition before the second I-130 was fully adjudicated. Even if the District Director approved the I-130 on remand, Ngongo would not have been automatically entitled to an ad-justment of status. Moreover, Ngongo did not have an absolute constitutional right to testify at a time of her own choosing during the deportation hearing. Because the IJ needed to compare Ngongo's testimony with the testimony of Chambers, whom she had married, requiring Ngongo to testify first was not unreasonable. Ngongo's counsel still argued her case, and she could not show that she was prejudiced by presenting the witnesses in a different order than originally planned. Even though she maintained that the IJ dictated how she could present her case, the IJ acted well within his discretion. The lack of prejudice necessarily implied that Ngongo's counsel was not so inadequate that the outcome of the proceedings would have been any different. Dissenting, Judge Hawkins noted that, without even asking for an explanation, the majority seemed content to approve the removal of someone the agency says has entered into a fraudulent marriage, while the same agency finds no proof that fraudulent marriage exists. No responsible, sane system of justice should sanction such a result, judge Hawkins concluded. O'Scannlain, Siler (author), and Hawkins (dissenting), Circuit Judges. V. Castro of San Jose, CA, for the petitioner; AUSA P. Keisler for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

20) IMMIGRATION: USA v. Vela-Robles, 03-10691 (9th Cir. Feb. 7, 2005). Vela-Robles appealed his conviction for illegal reentry after deportation in violation of 8 USC Sec. 1326. He maintained that the district court erred in denying, for lack of a factual basis, his requested jury instruction on the need for freedom from official restraint to support a finding of illegal reentry. The USCA affirmed. A district court is not required to give an instruction on a defendant's official restraint theory when there is no evidence to support the theory. The USCA held that the district court did not abuse its discretion in determining that there was an insufficient factual basis for Vela-Robles' requested instruction because he presented no evidence showing that he was under constant observation or surveillance by government officials from the moment he crossed the border until he was apprehended. D.W. Nelson, Kleinfeld, and Gould (author), Circuit Judges. P. Matiatos of Tucson, AZ, for the appellant; AUSA N. Leonardo of Tucson, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) SEARCH & SEIZURE / ILLEGAL ALIEN IN POSSESSION OF FIREARMS: USA v. Martinez-Garcia, 03-30532 (9th Cir. Feb. 11, 2005). Martinez-Garcia appealed his conviction for possessing a firearm as an illegal alien, in violation of 18 USC Sec. 922(g)(5)(2000). He maintained that the firearm seized pursuant to a search warrant for his home, should have been suppressed due to alleged violations of the Fourth Amendment and Federal Rule of Criminal Procedure 41. Both arguments turned on the fact that the state police officers began their search while waiting for a Spanish-speaking federal officer to arrive before serving Martinez-Garcia, who does not speak English, with the search warrant. Martinez-Garcia further maintained that the district court erred in providing him with only a limited hearing pursuant to Franks v. Delaware, 438 US 154 (1978), and that, in light of allegedly misleading statements and omissions in the affidavit submitted to obtain the search warrant, the warrant was not supported by probable cause. The USCA affirmed. The "totality of the circumstances" indicated probable cause to search Martinez-Garcia's home. The affidavit detailed ample evidence that criminality was afoot at the premises to be searched. The district court correctly denied his motion for a hearing. Wallace, Gould (author), and Bea, Circuit Judges. AFPD T. Moro of Portland, OR, for the defendant-appellant; AUSA D. Fong of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) SEARCH & SEIZURE / ILLEGAL ALIENS / NATIVE AMERICAN LAW: USA v. Becerra-Garcia, 03-10654 (9th Cir. Feb. 2, 2005). Becerra-Garcia challenged the district court's denial of his motion to suppress evidence, namely the discovery by tribal rangers of illegal aliens in his van while crossing the Tohono O'odham Nation. Although the scope of the rangers' authority and the location of the stop on reservation land informed its analysis, the USCA found that the case boiled down to a determination of whether the rangers' stop of Becerra-Garcia was reasonable. The USCA concluded that it was and thus affirmed. The USCA noted that its holding is consistent with its general recognition that Indian tribes are sovereigns with the power to enforce internal laws. Intrinsic in tribal sovereignty is the power to exclude trespassers from the reservation, a power that necessarily entails investigating potential trespassers. Holding that the minimally intrusive investigatory stop was reasonable evinces our respect for both the Fourth Amendment and tribal sovereignty. Meskill, Trott, and McKeown (author), Circuit Judges. L. Tucker of Tucson, AZ, for the defendant; AUSA E. Markovich of Tucson, AZ, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

23) SEARCH & SEIZURE: USA v. Osife, 04-10172 (9th Cir. Feb. 22, 2005). Osife was arrested for urinating on the ground next to his truck in the parking lot of a grocery store. As he was seated in a patrol car, the police searched the cab of his truck. Underneath a plastic bag on the driver's seat was a Beretta .40 caliber pistol. A records check revealed that the gun had been stolen. A federal grand jury returned an indictment against Osife, charging him with being a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1). Osife pleaded not guilty and moved to suppress the evidence gathered during the warrantless search of his truck. After an evidentiary hearing, the district court denied Osife's motion to suppress, finding that the gun was discovered during a permissible search incident to a lawful arrest. At issue on appeal was whether the Fourth Amendment permits police to search an automobile after arresting its recent occupant, even when evidence related to the crime for which the person was arrested is unlikely to be found. The USCA found Osife's appeal to be without merit. O'Scannlain (author), Cowen, and Bea, Circuit Judges. R. McWhirter of Phoenix, AZ, for the appellant; M. Pfister of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) EVIDENCE: USA v. Charley, 03-10579 (9th Cir. Feb. 3, 2005). A federal jury convicted Charley of three counts of first degree murder in violation of 18 USC Secs. 1111, 1153(a), and three counts of using a firearm during and in relation to a crime of violence in violation of 18 USC Secs. 924(c) and (j). Charley appealed her conviction alleging that the district court erred in denying motions to sup-press her statements to law enforcement officers because the statements were obtained in violation of her rights under the Fourth and Fifth Amendments. The USCA affirmed. The district court did not err in holding that Charley was not in custody when Sergeant Billie detained her at the Begay residence and brought her to her own home to investigate what had happened to her children. The USCA also held that the district court did not err in denying Charley's motion to suppress her statements to Agent Purscell because Charley's right to counsel was not violated. D.W. Nelson, Kleinfeld, and Gould (author), Circuit Judges. P. McGillicuddy of Phoenix, AZ, for the defendant-appellant; AUSA J. Ruffennach of Phoenix, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) CONFRONTATION CLAUSE: Bockting v. Bayer, 02-15866 (9th Cir. Feb. 22, 2005). Bockting's conviction for sexual abuse and life sentence stem from a trial in which the only witness to the conduct, his six-year old stepdaughter, did not testify at trial, but whose interview with a detective was admitted as key evidence. The stepdaughter's statements at the interview contradicted her testimony at a preliminary hearing where she claimed not to remember what happened with her father. Admission of the interview evidence without cross-examination violated Bockting's constitutional right to be confronted with the witnesses against him. Resolution of this case rested on interpretation of an intervening case: Crawford v. Washington, 541 US 36, 124 S.Ct. 1354 (2004). Crawford definitively held that testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine. Because the stepdaughter's testimony, which was not subject to cross-examination, was central to the conviction, its admission could not be classified as harmless error. The USCA concluded that the Crawford rule is a "new rule," a "watershed rule," and one "without which the likelihood of an accurate conviction is seriously diminished,." The rule is retroactive. Thus, as Crawford must be applied in this pending habeas case, the USCA granted Bockting's petition for a writ of habeas corpus. Concurring, Judge Noonan thought that Crawford did not announce a "new rule" but instead was a "correction of a misinterpretation," and thus that retroactivity was not an issue. Judge Wallace agreed with Judge McKeown's opinion that Crawford established a new rule that did not apply retroactively to state convictions on habeas review unless it satisfied one of two narrow exceptions. However, he did not agree that Crawford fell within either exceptions. He would hold that Crawford's new procedural rule did not qualify for retroactive application and would analyze Bockting'' Confrontation Clause claim under pre-Crawford jurisprudence. In so doing, he would reject that claim under the Antiterrorism and Effective Death Penalty Act of 1996 and affirm the district court's denial of Bockting's habeas petition. Wallace (dissenting in part), Noonan (concurring), and McKeown (author), Circuit Judges. FPD F. Forsman of Las Vegas, NV, for the appellant; DAG V. Schulze of Las Vegas, NV, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

26) CONFESSIONS: Anderson v. Alameida, 04-15751 (9th Cir. Feb. 2, 2005). Petitioner Anderson appeared before a New Hampshire state court and waived extradition to California on an arrest warrant issued in an 8-year-old murder and robbery case. Later, as two San Francisco police inspectors drove him to Boston's Logan International Airport, he confessed to the crimes. On appeal from the denial of his writ of habeas corpus, the petitioner argued that his trial attorney's failure to argue for the exclusion of his carride confession was a violation of his Sixth Amendment right to counsel. The USCA affirmed. A police inspector filing a complaint seeking an arrest warrant is not a critical stage that commits the prosecutor to trial. The state appellate court followed Ninth Circuit law in finding that no right to counsel attaches at arrest or at an extradition hearing. Moreover, the petitioner waived the extradition process, thereby obviating the asserted need for California to formally prosecute him in order to remove him to California. The state court's denial of the petitioner's ineffective assistance of counsel claims thus was not unreasonable. Noonan and Callahan, Circuit Judges, and Jones (author), District Judge. L. Gibbs of Berkeley, CA, for the petitioner-appellant; D. Gillette of San Francisco, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) PLEA AGREEMENTS: USA v. Jeronimo, 03-30394 (9th Cir. Feb. 23, 2005). At issue here was whether a plea agreement was enforceable and effectively waived the right of appeal. The USCA concluded that it was without jurisdiction to assess the merits of this direct appeal because the appeal waiver in Jeronimo's plea agreement was unambiguous and the record as currently constituted failed to demonstrate that the agreement was not knowingly and voluntarily made. Dissenting, Judge Berzon thought the majority failed to address the crux of this case: whether Jeronimo's plea was knowingly and voluntarily made in light of his lawyer's representations. Wallace, Gould (author), and Berzon (dissenting), Circuit Judges. R. Fredericks of Eugene, OR, for the defendant-appellant; AUSA F. Papagni of Eugene, OR, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

28) SEXUALLY VIOLENT PREDATOR ACT: Jackson v. California Department of Mental Health, 03-17068 (9th Cir. Feb. 28, 2005). Jackson challenged California's jurisdiction to confine him under its Sexually Violent Predator Act (SVPA). Before he filed his federal habeas petition, his SVPA confinement term expired, and he voluntarily recommitted himself. The USCA concluded that he lacked standing to bring his suit. Because Jackson failed to demonstrate that he had standing to challenge the state court's jurisdiction to order his confinement, the district court lacked jurisdiction to consider his habeas petition. The USCA thus vacated the district court's judgment and remanded with instructions that Jackson's petition be dismissed. Pregerson and Kozinski (author), Circuit Judges, and Rhoades, District Judge. AFD D. Porter of Sacramento, CA, for the petitioner; DAG C. Meyers of Sacramento, CA, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/)

29) SENTENCING: USA v. Ameline, 02-30326 (9th Cir. Feb. 9, 2005). In light of USA v. Booker, 125 S.Ct. 738 (2005), the USCA granted Ameline's petition for a rehearing to reconsider USA v. Ameline, 376 F.3d 967 (9th Cir. 2004). In its original opinion, the USCA held that, because Ameline's sentence was based on facts found by the district judge by a preponderance of the evidence, his sentence violated the Sixth Amendment as construed by Blakely v. Washington, 124 S.Ct. 2531 (2004). The USCA vacated Ameline's sentence and remanded for resentencing with directions that, if necessary, a jury determine the amount of drugs attributable to Ameline and whether he possessed a weapon in connection with his conviction, two factors that could enhance his sentence under the Sentencing Guidelines. This original opinion was consistent with Booker's holding that the Sixth Amendment, as construed in Blakely, applies to the Sentencing Guidelines. However, it was at odds with the Court's severability remedy that eliminated the mandatory nature of the Sentencing Guidelines. Applying Booker, the USCA concluded that 1) the Court's holding in Booker applies to all criminal cases pending on direct appeal at the time it was rendered; 2) because Ameline did not raise a Sixth Amendment argument at the time of sentencing the USCA reviews for plain error; 3) Ameline's sentence violated the Sixth Amendment and constituted plain error; and 4) the error seriously affected the fairness of Ameline's proceedings. Ameline's sentence imposed under the mandatory Sentencing Guidelines violated his Sixth Amendment rights as construed by Blakely and Booker and this violation constituted plain error. The USCA thus vacated Ameline's sentence and remanded for resentencing. Wardlaw, Gould, and Paez (author), Circuit Judges. B. Fay of Bozeman, MT, for the appellant; AUSA L. Harper of Great Falls, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) SENTENCING: USA v. Ruiz-Alonso, 03-50125 (9th Cir. Feb. 11, 2005). In this illegal reentry case, the United States appealed the district court's decision at sentencing to depart downward by four levels. The defendant sought to dismiss the appeal due to the gov-ernment's alleged failure to demonstrate that it had "the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General" to proceed with this appeal, as required by 18 USC Sec. 3742(b). Joining its sister circuits, the USCA held that Sec. 3742(b) does not impose a jurisdictional requirement. Thus even if the government failed to obtain permission to proceed with this appeal, the USCA had jurisdiction. The USCA also held that Sec. 3742(b) survives United States v. Booker, 125 S.Ct 738 (2005). Having concluded that it had jurisdiction over the government's appeal, the USCA nevertheless vacated the district court's sentence and remanded for resentencing in accordance with Booker, which was decided after the government appeal in the instant case, because the USCA could not say that the district judge would have imposed the same sentence in the absence of mandatory Guidelines and de novo review of downward departures. Browning, Rymer, and Graber (author), Circuit Judges. AUSA N. Spiegel of Los Angeles, CA, for the plaintiff-appellant; DFPD J. Libby of Los Angeles, CA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

31) SENTENCING: USA v. Moreno-Hernandez, 03-30387 (9th Cir. Feb. 18, 2005). Under Oregon law, assault in the fourth degree, normally a "Class A misdemeanor" punishable by no more than one year in prison, is a "Class C felony" punishable by up to five years in prison when committed, inter alia, in the presence of the victim's minor child. At issue on this appeal was whether the presence of the victim's minor child should be considered in ascertaining whether the Oregon statute defines a "felony" for purposes of the Sentencing Guidelines. Sentencing factors based on some aspect of the defendant's legal history, such as recidivist sentencing enhancements, are not considered in determining whether a state-law offense is a felony. However, the USCA declined to extend these precedents to cases such as the instant one, where the sentencing factor is based on circumstances of the crime itself. Substantive offense-based enhancements are inseparable from the underlying offense and must be considered in determining the maximum available sentence. Wallace, Gould, and Berzon (author), Circuit Judges. R. Stone of Medford, OR, for the defendant-appellant; AUSA R. Thomson of Medford, OR, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) HABEAS CORPUS: Galvan v. Alaska Department of Corrections, 03-35083 (9th Cir. Feb. 9, 2005). This habeas corpus appeal turned on the issue of exhaustion. To exhaust a federal constitutional claim in state court, a habeas petitioner must have, at the very least, explicitly alerted the court that she is making a federal constitutional claim. Here, the petitioner failed to do that. Kleinfeld (author), Gould, and Tallman, Circuit Judges. AFPD M. Geddes of Anchorage, AK for the petitioner; AAG K. Rosenstein of Anchorage, AK, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

33) HABEAS CORPUS: Morrison v. Mahoney, 03-35161 (9th Cir. Feb. 23, 2005). The USCA affirmed the district court's denial of Morrison's habeas petition and denied his motion to broaden the Certificate of Appealability to include a claim of ineffective assistance of counsel. He did not fairly present this to the highest court of the State of Montana, and in any event, appeared to have no reasonable claim that his federal right to the effective assistance of counsel had been denied. Hall, Kleinfeld, and Callahan (author), Circuit Judges. AFPD M. Donahue of Helena, MT, for the defendant-appellant; AAG C. Schmidt of Helena, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

34) HABEAS CORPUS: Cooper-Smith v. Palmateer, 03-35794 (9th Cir. Feb. 16, 2005). Petitioner Cooper-Smith appealed the district court's denial of his writ of habeas corpus for alleged ineffective assistance of counsel. The district court denied the petition after declining to expand the record under Rule 7 of the Rules Governing 28 USC Sec. 2254 cases. The Petitioner objected to this decision. He also presented the uncertified issue that his sentence violated Apprendi v. New Jersey, 530 US 466 (2000). The USCA affirmed the denial of the petitioner's habeas petition and affirmed the decision not to expand the record under Rule 7. It also declined to expand the Certificate of Appealability in order to reach the petitioner's Apprendi issue. T.G. Nelson (author) and Rawlinson, Circuit Judges, and Schwarzer, District Judge. S. Sady of Portland, OR, for the petitioner-appellant; AAG C. Alexander of Salem, OR, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) PRISONERS' RIGHTS / FIRST AMENDMENT: Prison Legal News v. Lehman, 03-35608 (9th Cir. Feb. 1, 2005). The Washington Department of Corrections ("DOC") appealed from the grant of summary judgment and permanent injunctive relief on a claim brought by the Prison Legal News ("PLN") and Rollin Wright that the DOC prohibition against the receipt by inmates of non-subscription bulk mail and catalogs violates the First and Fourteenth Amendments. The 13 individual defendants ("prison officials") appealed from the denial of their motion for summary judgment based on their defense of qualified immunity from damages as a result of restricting inmates from receiving third-party legal materials. The USCA affirmed the district court's decision. Under the test laid out in Turner v. Safley, 482 US 78, 89-90 (1987), the DOC's ban on non-subscription bulk mail and catalogs is not rationally related to a legitimate penological interest and is thus unconstitutional. Although the ban violated PLN's First Amendment rights, the prison officials were entitled to qualified immunity because their actions did not violate clearly established law. The USCA also held that the district court did not err by declining to grant qualified immunity to the officials for their policies regarding third-party legal materials. If the evidence produced at trial demonstrates that the DOC applied its policy in a discriminatory fashion based on the contents of the legal materials as PLN contends, the prison officials are not entitled to qualified immunity because they violated clearly established law. The district court correctly concluded that this disputed factual question must be resolved at trial. Alarcon (author), W. Fletcher, and Rawlinson, Circuit Judges. S. Inglis of Olympia, WA, for the defendants-appellants; J. Wing of Seattle, WA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

36) PRISONERS' RIGHTS / GRIEVANCES: Andrews v. King, 02-17440 (9th Cir. Feb. 11, 2005). Andrews, an inmate in California State Prison-Solano, filed a pro se complaint under 42 USC Sec. 1983 challenging the way in which prison officials administered the process for resolving prisoner grievances. After the district court granted Andrews' motion to proceed in forma pauperis ("IFP"), the defendants filed a motion for summary judgment, arguing that Andrews was not entitled to proceed IFP under the "three strikes" provision of 28 USC Sec. 1915(g). The district court granted the defendants' motion and dismissed Andrews' complaint without prejudice, ruling that Andrews failed to demonstrate that he did not have three strikes under Sec. 1915(g). Whether the burden of establishing the existence or non-existence of three strikes rests with the defendant or with the prisoner-plaintiff was an issue of first impression in the Ninth Circuit. The USCA held that when the defendant challenges a prisoner's right to proceed IFP, the defendant bears the burden of producing sufficient evidence to establish that Sec. 1915(g) bars the plaintiff's IFP status. Once the defendant has made out a prima facie case, the burden shifts to the plaintiff to persuade the court that Sec. 1915(g) does not apply. Because here the defendants did not meet their initial burden, the USCA reversed the district court's dismissal of Andrews' complaint and remanded for further proceedings. Fernandez, Paez (author), and Rawlinson, Circuit Judges. R. Singla of San Francisco, CA, for the plaintiff-appellant; DAG M. Chan of Sacramento, CA, for the defendants-appellees; B. Herwig of Washington, DC, for the intervenor.(Download the full text of this decision at www.ce9.uscourts.gov/)

MEMORANDA
Unpublished decisions may not be cited to or by the courts of this circuit except when
relevant under the Doctrine of Law of the Case, Res Judicata, or Collateral Estoppel.
Rule 36-3

1) SECURITIES: Yoshikawa v. Securities and Exchange Commission, 03-74297 (9th Cir. Feb. 11, 2005) (unpublished). Fernandez, Graber, and Gould, Circuit Judges.

Yoshikawa petitioned pro se for review of a Securities and Exchange Commission's order affirming a disciplinary decision against him by the National Association of Securities Dealers ("NASD") for violating NASD Conduct Rules 3370 and 2110. The USCA denied the petition. Contrary to Yoshikawa's contention, the SEC properly concluded that the plain language of NASD Conduct Rule 3370(b)(2)(B) required a NASD member to make an "affirmative determination" regarding a proposed short sale before engaging in that sale. Furthermore, substantial evidence supported the SEC's factual finding that Yoshikawa did not effect the requisite "affirmative determination" before engaging in the disputed short sales. Finally, the SEC properly rejected Yoshikawa's argument that he was not liable for violating NASD Conduct Rule 3370 because others in the industry engaged in this same conduct. Cf United States v. One 1985 Mercedes, 917 F.2d 415, 421 (9th Cir. 1990) ("The fact that not all criminals are prosecuted is no valid defense to the one prosecuted.") The SEC thus properly concluded that Yoshikawa had also violated NASD Conduct Rule 2110, which requires a NASD member in the conduct of his business to observe high standards of commercial honor and just and equitable principles of trade. Yoshikawa's contention that the NASD selectively prosecuted him lacked merit. See Akland v. CIR, 767 F.2d 618, 622 (9th Cir. 1985) (rejecting defendant taxpayers' selective prosecution claim because they failed to show discriminatory effect and discriminatory intent).

2) COPYRIGHT INFRINGEMENT: Global Innovations, Inc. v. ALS Scan, Inc., 03-16625 (9th Cir. Feb. 24, 2005) (unpublished). Thomas, Paez, and Callahan, Circuit Judges.

Global Innovations appealed the district court's dismissal of its action seeking declaratory relief that it is not infringing on copyrighted adult entertainment images owned by ALS Scan, and that, as an Internet Service Provider, Global is entitled to the safe harbor defense provided by the Online Copyright Infringement Liability Limitation Act. 17 USC Sec. 512. The USCA affirmed the district court. The exercise of jurisdiction under the Declaratory Judgment Act is committed to the sound discretion of the district court. The USCA thus reviewed the district court's decision not to exercise its discretion to entertain Global's declaratory judgment action for abuse of discretion. Huth v. Hartford Ins. Co. of the Midwest, 298 F.3d 800, 802-03 (9th Cir. 2002). The district court refused to exercise its discretion for the following reasons: 1) it was clear from the submissions of both parties that ALS intended to sue Global in the U.S. District Court for the District of Maryland, that Global knew of the impending lawsuit and that, in an obvious effort to rush the court-house, filed the declaratory action in the Northern District of California; 2) neither party resides in California; 3) none of the events giving rise to the dispute occurred in California; 4) Global failed to establish that the court could exercise personal jurisdiction over the defendants; and 5) Maryland has a far greater interest in the resolution of the dispute and is a more convenient forum. The district court did not abuse its discretion in refusing the exercise its discretion to hear Global's declaratory relief action for the aforementioned reason.

3) BROKER COMMISSIONS: Prince v. SMG, 03-56050 (9th Cir. Feb. 23, 2005) (unpublished). Noonan, Thompson, and Hawkins, Circuit Judges.

Prince, an individual doing business as Prince Commercial Real Estate Services and F. David Bueche (collectively, "Brokers"), appealed the district court's dismissal of their complaint for failure to state a claim. The USCA affirmed. Although SMG and Aramark Entertainment (collectively, "Sellers") agreed to pay Brokers a commission in connection with the sale of Melodyland Christian Center, this sale never occurred. The Brokers did not have any separate listing agreement with the Sellers, and thus their right to a commission is limited by the language of the Melodyland agreements, and dependent on the closing of that sale. The documents attached to the complaint-in particular the right of first offer and the offering notice to the City of Anaheim (the "City")-contradict any allegation that the Sellers acted improperly to deprive the Brokers of their commission. Contrary to the Brokers' contention, the grant deed did not require the Sellers to offer the property to the City on the identical terms as a sale to another buyer; indeed, it did not even require the existence of another buyer or a bona fide offer to purchase. Nor could a clam for breach of contract or unjust enrichment based on the sale to the City prevail. Brokers were not parties to, or even mentioned in, the offering notice, the City's acceptance or the formal purchase agreement between the Sellers and the City. Absent a written promise to pay, the Brokers cannot recover. Cal. Civ. Code Sec. 1624(a)(4). The district court did not abuse its discretion by denying leave to amend. Sellers cross-appealed the denial of their motion for attorneys' fees. Sellers are entitled to attorneys' fees only if the Brokers would also have been entitled to fees had they prevailed. Real Prop. Serv. Corp. v. City of Pasadena, 25 Cal. App. 4th 375, 382 (1994). Brokers, however, were not party to the Melodyland purchase contract. As non-signatory beneficiaries of the Melodyland agreement, they could only collect the benefits the contracting parties agree to confer upon them. Sessions Payroll Mgmt., Inc. v. Noble Constr. Co., Inc., 84 Cal. App. 4th 671, 680 (2000). Here, that benefit was the right to a commission if the transaction closed; there is no indication that the attorneys' fee provision was intended to apply to anyone other than the buyer and seller. Even assuming the "sufficient nexus" test applies, the inclusion of a single provision promising to pay a commission did not provide a sufficient nexus between the Brokers and the remainder of the purchase contract.