1)  BANKRUPTCY:  In re Pegasus Gold Corporation, 03-15958 (9th Cir. Jan. 11, 2005).  At issue here was the bankruptcy court’s post-confirmation subject matter jurisdiction and the scope of a state’s waiver of Eleventh Amendment immunity. The USCA concluded that even though a bankruptcy court’s post-confirmation “related to” jurisdiction is substantially more limited than its pre-confirmation jurisdiction, there was a sufficiently close nexus in this case between the current action and the original bankruptcy proceeding to confer subject matter jurisdiction on the bankruptcy court.  Nonetheless, because the current adversarial action was not “logically related” to the original proofs of claims that the State of Montana filed in the underlying bankruptcy action, the State did not waive its Eleventh Amendment immunity with respect to the current action.  Thus, the claims against it must be dismissed.  Rymer and Hawkins (author), Circuit Judge, and Brewster, District Judge.  B. Morris of Helena, MT, for the appellants;  E. Miller of Reno, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

2)  BANKRUPTCY:  In re Fowler, 03-16112 (9th Cir. Jan. 12, 2005). At issue in this case was the effect of a conversion from Chapter 11 to Chapter 13 bankruptcy proceedings on the priority status of a post-petition, pre-conversion administrative expense claim.  The Fowlers appealed the district court’s order reversing the bankruptcy court, and determining that 11 USC Sec. 348(d) requires that federal employment taxes, incurred as administrative expenses in operating their nursing home business after the Fowlers filed for Chapter 11 bankrptcy protection, but before they converted to Chapter 13, retained their priority status as administrative expenses under 11 USC Sec. 503(b).  The USCA affirmed the district court, holding that the claim retained its administrative expense priority upon conversion.  Rymer, Tallman (author), and Bea, Circuit Judge.  E. Sparks of Tucson, AZ, for the appellants;  T. Clark of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

3)  BANKRUPTCY:  Sherwood Partners, Inc., v. Lycos, Inc., 03-55247 (9th Cir. Jan. 12, 2005).  At issue here is whether the Bankruptcy Code preempts a state statute that gives an assignee selected by the debtor the power to void preferential transfers that could not be voided by an unsecured creditor.  Lycos had removed to federal court on diversity grounds and moved to dismiss, arguing that Cal. Civ. Proc. Code Sec. 1800 was preempted by the Bankruptcy Code.  The district court denied Lycos’s motion and eventually granted summary judgment to Sherwood Partners.  Holding that Sec. 1800 is preempted by the Bankruptcy Code, the USCA remanded to the district court for dismissal of the complaint.  Dissenting, Judge Nelson disagreed with the majority’s preemption analysis.  She thought the reasoning by which the majority reached its result would preempt any number of state laws governing voluntary assignments for the benefit of creditors because those laws have the effect of altering the incentives of various affected parties to initiate bankruptcy proceedings.  But, she noted, Congress has not indicated that voluntary assignments, generally, or preferential transfer avoidance statutes, specifically, are to be preempted.  Nor, she added, is the nature of the regulated activity—distribution of a debtor’s assets—such that it is impossible to conclude that the state and federal schemes could not co-exist.  D.W. Nelson (dissenting), Kozinski (author), and Graber, Circuit Judge.  J. Monroe of San Francisco, CA, for the defendant-appellant;  I. Sulmeyer of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

4)  TAXATION:  Davis v. IRS, 03-72240 (9th Cir. Jan. 24, 2005).  Petitioner Evelyn Davis, the personal representative of the estate of her late husband, appealed a Tax Court decision upholding the determination of a deficiency in the taxes paid on the Davis estate.  She claimed that the terms of an amended trust included in the estate give her an unrestricted right to all of the trust income for life, and that her interest in the trust income qualified for a marital deduction under IRC Sec. 2056(b)(7).  The USCA affirmed.  Neither the Declaration of Trust nor the Amendment contained language suggesting that Mr. Davis intended the interest passing to his surviving spouse in trust to qualify for a marital deduction under Sec. 2056(b)(7), and the estate presented no evidence from which such an intent might be inferred.  Farris, D.W. Nelson, and Gould (author), Circuit Judge.  R. Calone of Stockton, CA, for the petitioner;  AAG E. O’Connor of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

 5)  TAX EVASION:  USA v. Trevino, 02-10545 (9th Cir. Jan. 18, 2005).  Trevino appealed his conviction for conspiracy to defraud the United States under 18 USC Sec. 371 and attempting to evade or defeat a tax under 26 USC Sec. 7201.  The convictions resulted from erroneous tax returns prepared and filed on Trevino’s behalf by her accountant for tax years 1989, 1990, 1991, and 1992.  Trevino sought but was denied a new trial in the district court.  She appealed, making three arguments:  1) that the trial court erred in failing to instruct the jury that her good faith belief that her tax returns were proper constituted a complete defense to the charges against her;  2) that the prosecutor engaged in misconduct; and, 3), that Jury Instruction number 44 impermissibly created a presumption of her knowledge of the contents of her erroneous 1992 tax returns.  The USCA affirmed, finding that the instruction’s erroneous presumption that Trevino knew the amount shown on her return did not relieve the government of any material burden, and was thus harmless in light of the instructions as a whole and did not require a new trial.  Dissenting in part, Judge Tashima could not agree with the majority that the admittedly erroneous “presumption” was harmless.  Because he did not find the error to have been harmless, he also dissented from so much of the majority’s judgment as affirms the convictions on Courts One and Three.  However, he agreed with the majority that the erroneous instruction was harmless as to Count Two.  Tashima (dissenting in part) and Clifton, Circuit Judges, and Leighton (author), District Judge.  A. Capozzi of Fresno, CA, for the defendant-appellant;  AUSA J. Conklin of Fresno, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

6)  INSURANCE:  PMI Mortgage Insurance Co. v. American International Specialty Lines Insurance Company, 03-15728 (9th Cir. Jan. 14, 2005).  PMI sells mortgage guaranty insurance to residential mortgage lenders who provide loans to homebuyers considered to be at risk of defaulting on their mortgages.  The insurance covers a lender for losses incurred when a borrower defaults on the repayment of a mortgage loan and the collateral is not sufficient to make the lender whole.  In 1999, a putative class of plaintiffs who had obtained mortgage insurance through PMI’s lender clients sued PMI in the Southern District of Georgia (the Baynham action).  The Third Amended Class Complaint alleged that PMI was undercharging its lender clients for various insurance products and services in exchange for customer referrals on mortgage insurance.  Since the lender clients had not passed these savings on to their customers, plaintiffs claimed that this scheme violated the anti-kickback provisions of the Real Estate Settlement Procedures Act (“RESPA”).  The Baynham action was settled for $10 million.  When the Baynham action arose, PMI held a Financial Institution Professional Liability Insurance policy issued by American International Specialty Lines Insurance Company (AISLIC), which required AISLIC to pay PMI up to $10 million for any loss covered by the policy.  On consolidated appeals to review the district court’s grants of summary judgment in favor of AISLIC and excess policy issuers, Columbia Casualty and Federal Insurance Company, the USCA reversed and remanded with instructions to enter summary judgment in favor of PMI.  It held that the plain text of the PMI policy and the basic principles of insurance policy interpretation under California law supported a finding of coverage, and the implications of prevailing case law on professional malpractice polices, while only indirectly relevant, did not compel a contrary result.  The USCA thus held that PMI’s losses stemming from the Baynham action were covered by the policy as arising from alleged wrongful acts in the rendering of professional services as those terms are defined in the policy.  The fact that the Baynham claim alleged a RESPA violation, while not determinative, bolstered this conclusion.  Cudahy (author), Graber, and Fisher, Circuit Judges.  D. Goodwin of San Francisco, CA, for the plaintiff-appellant;  M. Bonino of San Francisco, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

7)  INSURANCE:  Principal Life Insurance Co. v. Robinson, 03-35376 (9th Cir. Jan. 6, 2005).  Principal Life Insurance Company, Equity FC, Ltd., and Petula Associates, Ltd., a subsidiary of Principal, (collectively “Principal”) appealed the district court’s dismissal of Principal’s action for declaratory relief relating to a material dispute over a rent recalculation provision in a ground lease.  The district court concluded that the case was not ripe for adjudication and thus that it lacked subject-matter jurisdiction.  Because the district court arrived at this conclusion by mistakenly applying a ripeness standard derived from cases involving administrative agencies, the USCA reversed its jurisdiction determination.  Because the district court did not articulate reasons for its provisional disinclination to exercise jurisdiction pursuant to Brillhart v. Excess Ins. Co., 316 US 491 (1942), and its progeny, the USCA remanded to allow the district court to address the relevant factors and then to exercise its discretion.  Consequently, the USCA also vacated the award of fees and costs.  Trott (author) and Kleinfeld, Circuit Judges, and Pollak, District Judge.  G.F. Hammond of Portland, OR, for the plaintiffs-appellants;  L. Block of Portland, OR, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

8)  EMPLOYMENT DISCRIMINATION:  Al-Safin v. Circuit City Stores, Inc., 03-35297 (9th Cir. Jan. 14, 2005).  Circuit City appealed the district court’s denial of its motion to dismiss and to compel arbitration of Mohammed Al-Safin’s employment discrimination claims.  The district court held that the arbitration agreement between Circuit City and Al-Safin is unconscionable under Washington state law, and thus unenforceable.  The USCA affirmed.  It found the agreement substantively unconscionable.  Although it had serious doubts about whether it was procedurally unconscionable as well, the USCA did not decide that issue as the agreement’s substantive unconscionability alone rendered it invalid under Washington law.  Dissenting, Judge Bea thought the majority erred in its premise that the Circuit City Dispute Resolution Rules and Procedure (“DRRP”) in effect in 1998 that is at issue.  Rather, he thought that the modification provisions in Rule 19 of the DRRP in effect in 1998 is enforceable under Washington law (or, at the very least, that there is sufficient doubt as to certify that question to the Washington Supreme Court) and, thus, that it is the DRRP in effect at the time Al-Safin ultimately filed his Arbitration Request Form and accompanying filing fee that governed the arbitration here.  Judge Bea also thought that the DRRP in 2003 was not substantively unconscionable under Washington law. He would thus reverse or certify the relevant questions to the Washington Supreme Court.  Tashima (author), Paez, and Bea (dissenting), Circuit Judges.  R. Berry of Sacramento, CA, for the defendant;  M. Subit of Seattle, WA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

9)  WRONGFUL DEATH:  Rivera v. Philip Morris, Inc.,03-16100 (9th Cir. Jan. 28, 2005).  Rivera brought a wrongful death action in Nevada state court individually, as Guardian ad Litem for his children and as executor of his deceased wife’s estate, against Philip Morris, Inc.  He asserted state law claims for strict product liability based on theories of failure-to-warn and design-defect, fraud based on theories of fraudulent concealment and fraudulent misrepresentation, and conspiracy.  He claimed that his wife smoked Marlboros manufactured by Philip Morris beginning in the summer of 1969 until her death from lung cancer in 1999.  Following a timely and proper removal to federal court under diversity jurisdiction, the district court granted summary judgment in favor of Philip Morris on the grounds that 1) the strict product liability claim was preempted by the Federal Cigarette Labeling and Advertising Act of 1965, or alternatively, as a matter of law, the claim failed under Nevada’s common knowledge test;  2) the fraudulent concealment claim was preempted by the same federal statute, or alternatively, evidence was lacking that the decedent would have acted differently if Philip Morris had disclosed material information concerning the health effects of smoking;  3) the fraud claim was not preempted under federal law but evidence was absent that the decedent saw, heard, or read and relied upon any misrepresentation by Philip Morris; and 4) the conspiracy claim necessarily failed because it was a derivative of other underlying claims.  Rivera did not appeal the dismissal of his strict liability design-defect claim.  In addition, he also did not present any argument regarding to the dismissal of his conspiracy claim and thus waived that issue on appeal. Finally, he could not identify any misrepresentation by Philip Morris that his late wife saw and relied upon in deciding to smoke cigarettes in general and Marlboros in particular.  The USCA thus affirmed in part and remanded for further proceedings.  Farris (author), D.W. Nelson, and Gould, Circuit Judges.  M. Johnson of Seattle, WA, for the plaintiff-appellant;  J. Desmond of Los Angeles, CA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

10)  EXCESSIVE FORCE:  Smith v. City of Hemet, 02-56445 (9th Cir. Jan. 10, 2005).  The USCA heard this case en banc to clarify the law regarding whether, under Heck v. Humphrey, 512 US 477 (1994), a 42 USC Sec. 1983 action for excessive force is necessarily barred by a plaintiff’s conviction under California Penal Code Sec. 148(a)(1) for willfully resisting, delaying, or obstructing a peace officer in the performance of his duties.  The USCA also took the occasion to bring the Ninth Circuit into line with other Circuits with respect to the definition of “deadly force.”  On the record, the USCA could not conclude that Smith’s Sec. 1983 action was barred by Heck.  His successful prosecution of this action would not necessarily impugn his earlier conviction.  Moreover, considering the evidence in the light most favorable to Smith, a reasonable jury could find that the defendants used excessive force.  Finally, the USCA overruled Vera Cruz v. City of Escondido, 139 F.3d 659 (9th Cir. 1998), and adopted the more generally accepted definition of “deadly force.”  However, it did not decide whether the officers used deadly force here.  It left that question for initial consideration on remand.  Judge Silverman, joined by Judges Kleinfeld and Callahan, dissented, noting that Smith’s actions, however numerous, culminated in one arrest.  Smith was then convicted, by guilty plea, of resisting a police officer.  In California, a conviction for resisting arrest establishes that the force used to effect the arrest was not excessive.  That is why Smith’s Sec. 1983 excessive force lawsuit was barred by Heck.  If he were successful in his lawsuit, the civil judgment in his favor would, Judge Silverman thought, be inconsistent with his criminal conviction.  Schroeder, Pregerson, Reinhardt (author), Kleinfeld, Thomas, Silverman (dissenting), W. Fletcher, Paez, Berzon, Bybee, and Callahan, Circuit Judges.  R. Mann of Los Angeles, CA, for the plaintiff;  J. Biggs of Hemet, CA, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/)

11)  DEFAMATION:  Knievel v. ESPN, 02-26120 (9th Cir. Jan. 4, 2005).  Motorcycle stuntman Evel Knievel and his wife were photographed when they attended ESPN’s Action Sports and Music Awards in 2001.  The photograph depicted Evel, who was wearing a motorcycle jacket and sunglasses, with his right arm around his wife and his left arm around an unidentified woman.  ESPN published the photograph on its “extreme sports” website with the caption:  “Evel Knievel proves that you’re never too old to be a pimp.”  The Knievels brought suit against ESPN in state court, contending that the photo and caption were defamatory because they accused Evel of soliciting prostitution and implied that his wife was a prostitute.  ESPN removed the action to federal court and moved to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).  The court granted ESPN’s motion on the ground that the photo and its caption were not defamatory as a matter of law.  The USCA affirmed.  Read in the context of the satirical, risqué, and sophomoric slang found on the rest of the site, the word “pimp” could not reasonably be interpreted as a criminal accusation.  Judge Bea dissented.  He thought the word “pimp” is reasonably susceptible to a defamatory meaning and that it is not for the appellate panel to say that the publication “did not hurt the plaintiffs by tending to deprive them of friendly association with a considerable number of respectable members of their community.” Mencher v. Chesley, 297 N.Y. 94, 102 (1947).  Rather, Judge Bea thought “it is the right of the plaintiffs to have a jury say whether the false words did, in fact, so defame them.” Id.  Tashima (author), Paez, and Bea (dissenting), Circuit Judges.  W. Dahood of Anaconda, MT, for the plaintiffs-appellants;  N. Siegel of Washington, DC, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/)

12)  PRODUCT LIABILITY:  Ford Motor Company v. Todecheene, 02-17048 (9th Cir. Jan. 11, 2005).  This case concerns the extent to which a tribal court may exercise jurisdiction over a products liability action arising out of a roll-over accident occurring on tribal trust land.  The driver, an on-duty law enforcement officer employed by the Navajo Department of Public Safety, died.  The road is a reservation road, maintained by the Tribe.  There is no federal or state right-of-way, and the road is not located on non-Indian fee land.  The district court remanded the matter to tribal court, ruing that federal removal statute, 28 USC Sec. 1441, did not provide for removal of actions from tribal court to federal court.  Ford did not appeal the subsequent tribal ruling.  Instead it sought injunctive and declaratory relief in federal court to halt the tribal court proceeding.  The district court issued the requested preliminary injunction, analyzing the tribal court’s jurisdiction under Montana v. USA, 450 US 544 (1981).  It held that Ford was not required to exhaust tribal court remedies before challenging the tribal court’s jurisdiction in federal court, because jurisdiction was plainly lacking and exhaustion would only delay the proceedings.   The USCA affirmed.  Under Montana, the tribal court’s limited jurisdiction over nonmembers was in effect, because the case did not fall within either the consensual relations or self-government exceptions articulated in Montana.  The matter was sufficiently exhausted in federal court.  Judge Fletcher dissented because the majority failed to follow McDonald v. Means, 309 F.3d 530, amending prior opinion at 300 F.3d 1037 (9th Cir. 2002), which held that tribal courts have subject matter jurisdiction over a suit between a tribal member and a nonmember arising out of an accident on tribal land.  Silverman, W. Fletcher (dissenting), and Rawlinson (author), Circuit Judges.  E. Fitzhugh of Tempe, AZ, and L. Tapahe of Window Rock, AZ, for the defendants-appellants;  R. Derevan of Irvine, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

13)  MEDICAL MALPRACTICE / JURISDICTION:  Dees v. Billy, 03-16004 (9th Cir. Jan. 19, 2005).  At issue here was whether the USCA had jurisdiction to review a district court order that stayed the plaintiff’s medical malpractice action, compelled arbitration, and administratively closed the case.  The USCA dismissed the action, finding that because the district court did not issue “a final decision with respect to an arbitration,” 9 USC Sec. 16(a)(3), the USCA was without jurisdiction to review this interlocutory order.  O’Scannlain (author), Cowen, and Bea, Circuit Judges.  W. Walker of Oakland, OR, for the appellant;  D. Greer of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

14)  ADULT ENTERTAINMENT:  Gammoh v. City of La Habra, 04-56072 (9th Cir. Jan. 26, 2005).  This case involves constitutional challenges to a city ordinance requiring “adult cabaret dancers” to remain two feet away from patrons during performances.  The district court rejected the challenges by dismissing some of the claims on the pleadings and granting summary judgment as to other.  The USCA denied emergency motions for a stay of enforcement of the ordinance pending appeal and affirmed.  It found that the ordinance had been thoroughly researched and narrowly tailored to combat the negative side-effects of adult businesses that the City’s research identified.  The City had designed an ordinance that fell within what has previously been accepted as constitutional in the Ninth Circuit, despite the minimal amount of clothing that the dancers wear when performing.  The ordinance was not vague or overbroad, and the appellants raised no genuine issue of material fact regarding their takings or First Amendment claims.  Tashima, Fisher, and Tallman (author), Circuit Judges.  S. Wellman of Laguna Hills, CA, for the plaintiffs-appellants;  D. Fox of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

15)  ATTORNEYS’ FEES:  USA v. Hristov, 03-10179 (9th Cir. Jan. 27, 2005).  On an issue of first impression, the USCA held that a timely-filed motion for attorneys’ fees under the Hyde Amendment can be amended under the “relation-back” doctrine, outside the statutory deadline for filing such a motion, to include required information that was omitted from the motion when initially filed.  D.W. Nelson (author), Kleinfeld, and Gould, Circuit Judges.  N. Glazer of Century City, CA, for the appellant;  AUSA R. Wenthe of Las Vegas, NV, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

16)  NATIVE AMERICAN LAW / FISHING RIGHTS:  USA v. Washington, 03-35145 (9th Cir. Jan. 6, 2005).  Appellant Samish Indian Tribe sought by means of Fed. R. Civ. Proc. 60(b)(6) to reopen USA v. Washington, 476 F. Supp. 1101 (W.D. Wash. 1979), aff’d 641 F.2d 1368 (9th Cir. 1981), a judgment that denied the Samish treaty fishing rights on the ground that the tribe had not maintained an organized tribal structure.  The Samish argued that “federal recognition” of their tribe in 1996 was an extraordinary circumstance that justified reexamining their treaty fishing rights.  The district court denied their motion to reopen, holding that federal recognition is of limited relevant to the Samish’s treaty fishing rights, that the 1979 judgment was not erroneous, and that reopening the judgment would be extremely disruptive.  The USCA reversed, finding that federal recognition is a sufficient condition for the exercise of treaty rights, and because the Samish met the mandatory criteria for federal recognition, they necessarily met the condition for the exercise of treaty rights.  The district court erred in ruling that, because non-recognition cannot impact vested treaty rights, recognition is irrelevant.  The district court misinterpreted Circuit precedents, and thus abused its discretion, in ruling that the fact of federal recognition had no impact on whether the Samish may exercise treaty fishing rights.  In addition, the USCA found that the district court’s finality concerns did not independently support its denial of the Samish’s Rule 60(b)(6) motion.  Dissenting, Judge Bea thought that the majority erred in two ways:  First, federal recognition as a tribe has never been required to establish off-reservation fishing rights pursuant to the Treaty of Point Elliott (1855), and the Samish were not precluded by Washington from presenting evidence of having maintained an organized tribal structure, which evidence could have supported a finding that they were entitled to such treaty fishing rights.  Second, neither the federal recognition of the Samish Tribe by the Bureau of Indian Affairs nor the BIA’s underlying factual findings constitute evidence that the Samish maintained an organized tribal structure to which a district court determining treaty status must accord any deference.  Tashima (author), Paez, and Bea (dissenting), Circuit Judges.  C. Dorsay of Portland, OR, for the appellant Samish Indian Tribe;  E. Peterson of Washington, DC, for the United States;  D. Raas of Bellingham, WA, for the Indian nations.(Download the full text of this decision at www.ce9.uscourts.gov/)

17)  IMMIGRATION:  San Pedro v. Ashcroft, 02-74367 (9th Cir. Jan. 28, 2005).  The petitioner sought review of the BIA’s affirmance of an IJ decision to deny him a waiver of removal under INA Sec. 237(a)(1)(H).  The USCA had jurisdiction to review only the statutory eligibility elements under Sec. 237(a)(1)(H) and lacked jurisdiction to review discretionary denial of the waiver.  The petitioner also argued that the streamlining of his appeal to the BIA violated his due process rights, but the USCA noted that this argument was foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 849-50 (9th Cir. 2003).  D.W. Nelson (author), Kozinski, and Graber, Circuit Judges.  N. Milner of San Diego, CA, for the petitioner;  A. Nicastro of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/)

18)  IMMIGRATION:  Hernandez-Guadarrama v. Ashcroft, 03-72084 (9th Cir. Jan. 10, 2005).  The petitioner, a native and citizen of Mexico and a conditional permanent resident of the United States, sought review of a BIA decision which affirmed an IJ’s order finding the petitioner removable from the United States for alien smuggling under INA Sec. 237(a)(1)(E)(i).  The USCA concluded that the government failed to establish removability by “clear, unequivocal, and convincing evidence.”  A single affidavit from a self-interested witness not subject to cross-examination did not rise to the level of clear, unequivocal, and convincing evidence required to prove deportability. The USCA thus vacated the order of deportation and reversed the BIA’s decision.  D.W. Nelson, Reinhardt (author), and Thomas, Circuit Judges.  M. Adams of Seattle, WA, for the petitioner;  AAG P. Keisler of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/)

19)  IMMIGRATION:  Azarte v. Ashcroft, 02-73947 (9th Cir. Jan. 18, 2005).  Under the Illegal Immigration Reform and Immigrant Responsibility Act, the BIA abuses its discretion when it dismisses a motion to reopen, timely filed by an alien during his voluntary departure period, because the alien subsequently fails to depart prior to the end of that period while awaiting the BIA’s decision.  The USCA thus concluded that the BIA had to decide the motion on the merits.  Reinhardt (author), McKeown, and Paez, Circuit Judges.  M. Pineda-Kamariotis of San Francisco, CA, for the petitioner;  AAG P. Keisler of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/)

20)  IMMIGRATION:  Moran v. Ashcroft, 02-73551 (9th Cir. Jan. 20, 2005).  Moran petitioned for review of an order of the BIA affirming the finding of the IJ that he was ineligible for cancellation of removal because he encouraged two aliens to enter the country illegally.  The aliens he encouraged are his wife and son.  While the statutory scheme governing the requirements for cancellation of removal preserves eligibility for individuals whose involvement in “alien smuggling” is limited to helping their own family members, including spouses and children, the statutory provisions make clear that for acts of smuggling occurring after May 5, 1988, the “family member” waiver does not apply to a spouse who was not a spouse at the time of the smuggling.  Because Moran and his wife were married after he helped her enter the country illegally, he does not fall within the exception to the alien smuggling provision, and his involvement in helping his son and his future wife (the mother of his son) cross the border in 1993 renders him ineligible for cancellation of removal.  The USCA thus denied the petition for review.  Concurring Judge Fletcher noted that this is but one example of the harsh effects and unintended consequences current immigration laws visit upon immigrant families, although the result the majority reached here, while at odds with Congress’s intent to promote family unification, is compelled by the text of the provisions that comprise the statutory scheme.  B. Fletcher (author & concurring), Rymer, and Paez, Circuit Judges.  C. Christenson of Washington, DC, for the petitioner;  N. Nardone of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

21)  IMMIGRATION:  Perez-Martin v. Ashcroft, 03-70923 (9th Cir. Jan. 12, 2005).  In this petition for review of his removal order, the petitioner challenged the Legalization Appeals Unit’s (“LAU”) denial of his 1988 application for temporary resident status as a Special Agricultural Worker (“SAW”).  He claimed both that the LAU erred substantively in denying his application, and that the Immigration Judge and Board of Immigration Appeals erred in refusing to review the LAU’s decision as part of the removal proceedings against Perez.  The USCA held that it had jurisdiction to review the denial of SAW status, and that neither the IJ nor the BIA had such jurisdiction.  However, on the merits, the USCA denied the petition for review.  B. Fletcher (author), Noonan, and Paez, Circuit Judges.  O. Korenberg of Sherman Oaks, CA, for the petitioner;  E. Stevens of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

22)  IMMIGRATION:  Carty v. Ashcroft, 03-71392 (9th Cir. Jan. 19, 2005).  Finding that the phrase “intent to evade” is synonymous with “intent to defraud” within the meaning of the removal provisions of the Immigration and Nationality Act (“INA”), the USCA dismissed Carty’s petition for relief from a BIA decision affirming the IJ’s determination that willful failure to file state income taxes under California Revenue and Taxation Code Sec. 19406 (1992) is a crime involving moral turpitude, thereby subjecting Carty to removal pursuant to INA Sec. 237(a)(2)(A)(ii) for conviction of two or more crimes involving moral turpitude. Dissenting, Judge Canby thought that Circuit precedent required a contrary result.  Canby (dissenting), Rymer, and Hawkins (author), Circuit Judges.  M. Ball of San Francisco, CA, for the petitioner;  E. Durant of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

23)  IMMIGRATION:  Ali v. Ashcroft, 03-71731 (9th Cir. Jan. 19, 2005).  Ali petitioned on behalf of herself and her two sons, all natives of Somalia, for review of the BIA’s denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).  The IJ dismissed the asylum claim based on findings that Ali failed to establish that her past persecution was on account of an enumerated ground and had firmly resettled in Ethiopia prior to entering the United States.  The IJ granted Ali voluntary departure to Somalia in lieu of removal.  The BIA affirmed without opinion.  The USCA found Ali statutorily eligible for asylum.  Because Ali did not receive an offer of permanent residence, or its equivalent, while in Ethiopia, she was not firmly resettled prior to her entrance into the United States.  Finding that Ali had shown past persecution even under the higher standard required for withholding of removal, a presumption operates regarding her ability to show future threats to his life or freedom.  The USCA remanded to the IJ to exercise discretion on the asylum claim and for further consideration of the withholding of removal claims.  The USCA affirmed the IJ’s denial of Ali’s application for relief under CAT.  D.W. Nelson (author) and Thomas Circuit Judges, and Ezra, District Judge.  R. Baum of Portland, OR, for the petitioners;  F. McLaughlin of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

24)  IMMIGRATION:  Penuliar v. Ashcroft, 03-71578 (9th Cir. Jan. 12, 2005).  Penuliar, a lawful permanent resident, pled guilty to two counts of unlawful driving or taking a vehicle in violation of California Vehicle Code Sec. 10851(a), and one count of evading an officer in violation of California Vehicle Code Sec. 2800.2(a).  Classifying both convictions as “aggravated felonies” under the Immigration and Nationality Act (“INA”), an Immigration Judge, affirmed by the BIA, found Penuliar ineligible for cancellation of removal and voluntary departure, and ordered that Penuliar be deported pursuant to 8 USC Sec. 1227(a)(2)(A)(iii).  Concluding that Penuliar’s convictions do not constitute “aggravated felonies” under the INA, the USCA granted his petition for review.  Browning, Pregerson (author), and Berzon, Circuit Judges.  M. Triebel of Newport Beach, CA, for the petitioner;  N. Nardone of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

25)  IMMIGRATION:  Medina v. Ashcroft, 03-71966 (9th Cir. Jan. 4, 2005).  Medina is a permanent resident, having been admitted as an immigrant from Cuba in 1976.  He petitioned for review of an order of removal entered by an Immigration Judge and affirmed without opinion by a single member of the Board of Immigration Appeals.  The IJ ordered Medina’s removal because the State of Nevada convicted him of attempting to be under the influence of a controlled substance—namely, THC-carboxylic acid.  The USCA concluded that Medina is not removable under 8 USC Sec. 1227(a)(2)(B)(i) because the government failed to establish that his Nevada conviction was for “other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.”  Dissenting, Judge Rymer noted that the majority’s opinion turned on its view that “Medina has been ordered removed from this country because he personally used a small amount of marijuana.”  But, she thought this was not at all why Medina was ordered removed.  He was ordered removed based on his controlled substance conviction for the offense of attempting to be under the influence of THC-carboxylic acid in violation of Nev. Rev. Stat. Secs. 193.330 and 453.411.  Judge Rymer thought this satisfied the government’s burden of proving that Medina was convicted of a controlled substance violation other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.  Canby (author), Rymer (dissenting), and Hawkins, Circuit Judges.  V. Montoya of Las Vegas, NV, for the petitioner;  S. Houser of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

26)  IMMIGRATION:  Movsisian v. Ashcroft, 03-70298 (9th Cir. Jan. 20, 2005).  Movsisian, a native and citizen of Armenia and a Pentecostal Christian, petitioned for review of a BIA decision summarily affirming an IJ’s denial of asylum and withholding of deportation.  He also sought review of the BIA’s summary denial of his motion to reopen and to remand asylum proceedings. The IJ denied asylum and withholding of deportation, holding that Movsisian’s fear of being drafted into the Armenian military did not provide a basis for relief.  The IJ also found that the evidence did not support Movsisian’s claim that he was a genuine religious conscientious objector to military service.  Finally, the IJ determined that Movsisian’s future fear of persecution on account of his religion was speculative. The USCA denied the petition as to Movsisian’s challenge to the IJ’s denial of asylum and withholding of deportation, but granted the petition as to Movsisian’s motion to reopen and remanded to allow the BIA to provide specific and cogent reasons supporting its determination.  Judge Goodwin concurred in the majority’s holding that the BIA abused its discretion in failing to articulate reasons for denying Movsisian’s motion to reopen and in remanding for a statement of reasons.  However, he dissented from the majority’s opinion on the merits of Movsisian’s case for asylum and withholding of deportation.  He though no convincing reasons had been offered for the USCA first to decide, on the merits, that Movsisian had a losing case, and then to remand that case to the forum from which the appeal was taken, so that it could state its reasons for the denial.  Schroeder, Goodwin (dissenting in part), and Tashima (author), Circuit Judges.  T. Everett of Los Angeles, CA, for the petitioner;  C. Wynn of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/)

27)  IMMIGRATION FRAUD:  USA v. Tirouda, 03-50433 (9th Cir. Jan. 10, 2005).  The Tiroudas appealed from judgments convicting them of passport and immigrant fraud in violation of 18 USC Secs. 371, 1542, and 1546.  At issue on appeal was whether the district court violated the Tiroudas’ due process rights by instructing the jury to consider an alleged accomplice’s testimony, which favored the Tiroudas, with greater caution than the testimony of other witnesses.  Also at issue was whether the district court erred in failing to define “accomplice” in the same instruction.  Joining the Fifth and Seventh Circuits, the USCA found no error in giving an accomplice witness instruction when the accomplice’s testimony favors the defendant.  Nor did the failure to define “accomplice” in that instruction amount to plain error since, taken as a whole, the instructions were clear and any lack of clarity did not prejudice the Tiroudas.  Wallace, T.G. Nelson, and Wardlaw (author), Circuit Judge.  M. Fleming, R. Garcia, and M. McCabe of San Diego, CA, for the appellants;  AUSA R. Haines of San Diego, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

28)  EFFECTIVE ASSISTANCE OF COUNSEL:  USA v. Wells, 03-35178 (9th Cir. Jan. 11, 2005).  Wells was convicted of conspiracy to defraud the United States, conspiracy to manufacture and distribute methamphetamine, and conspiracy to invest illegal drug profits in a business, investment of proceeds from drug transactions in a business, and distribution of methamphetamine.  After unsuccessfully pursuing remedies on direct appeal, he filed a 28 USC Sec. 2255 motion, which the district court denied.  The USCA granted a certificate of appealability limited to the issue of whether an actual conflict of interests adversely affected Wells’ counsel’s representation of him.  The USCA affirmed.  There was no evidence that the fee agreement at issue here affected the attorney’s handling of any issue in the case.  In fact, the record indicated that the attorney’s performance was unaffected by the fee arrangement and, as the district court found, he put on a spirited defense of Wells.  Dissenting, Judge Fletcher thought that Wells was denied effective assistance in two respects:  His defense attorney labored under an actual conflict of interest, his fees were paid by an indicted co-conspirators, and the record established that the fee arrangement adversely affected the attorney’s representation.  Second, the attorney was absolutely unwilling to negotiate with the government on Wells’ behalf even though it could have materially decreased his sentence.  B. Fletcher (dissenting), Hamilton (author), and Berzon, Circuit Judges.  M. Topel of San Francisco, CA, for the defendant;  AUSA J. Seykora of Helena, MT, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

29)  CRIMINAL LAW / NOTICE:  USA v. Bichsel, 04-30126 (9th Cir. Jan. 13, 2005).  This case presented an issue of first impression:  because the indoor posting of applicable federal regulations was inconspicuous to visitors outside the U.S. Courthouse in Tacoma, is actual notice sufficient to meet the conspicuous posting requirement of 40 USC Sec. 1315 for the enforcement of 41 CFR Sec. 102-74.385, failure to comply with the lawful order of a federal police officer.  The USCA held that actual notice is fair and adequate notice, and affirmed Bichel’s conviction under the regulation.  Bichel had chained himself to the doors of the courthouse on March 19, 2003 in protest of the impending war to liberate Iraq.  Bichel and his fellow protesters fancied themselves as “doing a citizens” arrest of the United States government.”  Hawkins (author), Thomas, and McKeown, Circuit Judges.  C. Fieman of Tacoma, WA, for the defendant;  J. Coopersmith of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

30)  DOUBLE JEOPARDY / ALIEN SMUGGLING:  USA v. Schemenauer, 04-50256 (9th Cir. Jan. 12, 2005).  The defendant took this interlocutory appeal from the district court’s denial of her motion to dismiss after the jury hung at the end of her first trial.  She argued that the district court erred in denying the motion because she was entitled to a judgment of acquittal under Fed. R. Crim. P. 29(a), and that a second trial on charges that she brought illegal aliens into the United States for financial gain and without presentation would thus violate her rights under the Double Jeopardy Clause.  The USCA dismissed the appeal for want of appellant jurisdiction, and it declined to issue a writ of mandamus.  Hug, Pregerson, and Berzon (author), Circuit Judges.  A. Krueger of San Diego, CA, for the defendant;  AUSA C. Bressler of San Diego, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

31)  SEARCH & SEIZURE:  USA v. Mayo, 04-10076 (9th Cir. Jan. 14, 2005).  Mayo appealed the district court’s denial of his motion to suppress evidence found during a search of his vehicle.  While responding to a call about suspicious narcotics activity, officers arrested Mayo for a felony violation of California vehicle code.  They searched his car incident to this arrest and found bags of stolen mail.  Mayo sought to suppress this evidence on the grounds that the officers: 1) lacked reasonable suspicion to detain him, 2) unreasonably broadened the length and scope of their investigation during his detention, 3) lacked probable cause to arrest him on the vehicle code violation, and 4) expanded the scope of the search incident to arrest beyond constitutional limits when they searched the hatchback area of his car.  The USCA affirmed.  In rejecting all four claims, it joined other circuits in ruling that, for purposes of an vehicle search incident to arrest, officers may search the cargo area behind the rear seat of a hatchback.  Canby (author), Rymer, and Hawkins, Circuit Judges.  T. Warriner of Sacramento, CA, for the appellant;  AUSA N. Wong of Sacramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

32)  SEARCH & SEIZURE:  USA v. Combs, 03-30456 (9th Cir. Jan. 11, 2005).  Combs appealed his conviction for maintaining a place for the manufacture of controlled substances, attempting to manufacture methamphetamine, being a felon in possession of a firearm, and criminal forfeiture.  He argued that the district court erred in denying his motion to suppress evidence resulting from a search of his residence because the police did not physically knock on his door and thus failed to adequately “knock and announce” before executing the search warrant.  Whether the Fourth Amendment requires an actual “knock” before a search can be conducted was an issue of first impression.  The USCA held that under the totality of the circumstances presented in this case, the police acted reasonably in executing the warrant without first physically “knocking” on the front door of Combs’ residence.  Because there was no Fourth Amendment violation, the USCA affirmed the district court.  Hall, Kleinfeld, and Wardlaw (author), Circuit Judges.  L. Wells of Anchorage, AK, for appellant;  AUSA J. Farrington of Anchorage, AK, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

33)  EVIDENCE:  USA v. Beck, 03-30470 (9th Cir. Jan. 5, 2005).  Beck was tried for bank robbery pursuant to 18 USC Sec. 2113(a).  The district court denied pre-trial motions to exclude evidence of photographic identification and in-court eye witness identification of Beck, and also to prevent Beck’s probation officer from giving lay opinion testimony identifying Beck as the person in the bank’s surveillance photograph.  Beck also appealed the district court’s denial of his trial motion to exclude the government from presenting rebuttal testimony of an FBI agent.  The USCA affirmed.  The district court did not err in admitting the in-court identification testimony of a bank teller because the pretrial identification procedures were not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.  Neither did the district court abuse its discretion in admitting the lay opinion identification testimony of Beck’s probation officer because his testimony was rationally based and helpful to the determination of a fact in issue.  Likewise, the district court did not abuse its discretion in allowing Agent Whipple’s rebuttal testimony to rehabilitate the methodology of the FBI’s photospread procedures.  Wallace, Gould (author), and Berzon, Circuit Judges.  AFPD C. Schatz of Portland, OR, for the defendant-appellant;  AUSA F. Noonan of Portland, OR, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

34)  SEIZED PROPERTY / JURISDICTION:  USA v. Kama, 03-30231 (9th Cir. Jan. 13, 2005).  Kama appealed the district court’s decision to deny his motion to return 2.49 grams of medically prescribed marijuana seized by Portland police.  In so ruling, the district court concluded that it lacked equitable jurisdiction to consider the motion.  On appeal, Kama argued only the merits of his motion and failed to address the threshold issue of whether the district court’s abused its discretion in declining to exercise equitable jurisdiction.  The USCA affirmed, concluding that, as Kama waived the equitable jurisdiction issue by failing to raise it in his opening brief, his arguments concerning the merits of his motion were moot.  Judge Ferguson concurred that Kama waived his challenge to the district court’s ruling that it lacked equitable jurisdiction to entertain the motion, but he wrote separately to underscore the district court’s disruption of state judicial administration by granting the DEA a seizure warrant without first waiting for the full enforcement of a valid order issued by the county circuit court and in assuming concurrent in rem jurisdiction over the subject marijuana.  Ferguson (concurring), Trott (author), Kleinfeld, Circuit Judges.  R. White of Portland, OR, for the defendant;  M. Quinlivan of Washington, DC, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

35)  BANK FRAUD:  USA v. Omer, 03-30513 (9th Cir. Jan. 19, 2005).  Omer appealed from his conviction and sentence for bank fraud in violation of 18 USC Sec. 1344(1).  He maintained that the district court erroneously denied his pretrial motion to dismiss in which he argued that the indictment was fatally deficient for failing to allege materiality of the fraud.  The USCA reversed.  The indictment’s failure to recite an essential element of the charged offense, the materiality of the scheme or artifice to defraud, is a fatal flaw requiring dismissal of the indictment.  Hawkins, Thomas, and McKeown, Circuit Judges.  Per Curiam.  M. Sherwood, Missoula, MT, for the appellant;  AUSA K. McLean of Missoula, MT, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

conviction for simple assault on an Indian child less than 16 years of age on a reservation in violation of 18 USC Secs. 1152 and 113(a)(5).  Her sole claim of error was that the case against her was brought under the wrong statute.  The government had charged her under Sec. 1152, which covers offenses committed in Indian country, but excepts crimes committed by an Indian against another India.  Bruce maintained that she is an Indian and that the government should have charged her under 18 USC Sec. 1153, which covers certain offenses committed by an Indian in Indian country.  The district court denied her motion to dismiss for this reason.  The USCA reversed, concluding that Bruce presented sufficient evidence that, if believed, established her Indian status and that the district court’s error was not harmless. O’Scannlain, Rymer (dissenting), and Bybee (author), Circuit Judges.  J. Rhodes of Missoula, MT, for the defendant;  M. Hurd of Billings, MT, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

37)  SUPERVISED RELEASE / SEX OFFENDERS:  USA v. Antelope, 03-30334 (9th Cir. Jan. 27, 2005).  Antelope is a convicted sex offender.  The terms of his supervised release offered him treatment, but at a price he was not willing to pay.  He thus repeatedly refused to incriminate himself as part of his sex offender treatment.  In particular, he declined to detail his sexual history in the absence of any assurance of immunity because of the risk that he might reveal past crimes and that his admission could then be used to prosecute him.  In response, the government twice revoked his conditional liberty and sent him to prison.  Antelope maintained that the government’s actions violated his Fifth Amendment right against compelled self-incrimination.  Finding that the Constitution does not countenance the sort of government coercion imposed on Antelope, and finding his claim ripe for adjudication, the USCA reversed the revocation of his supervised release.  However, it upheld another the release term prohibiting Antelope from access to any online computer service.  Finally, the USCA vacated and remanded the release term prohibiting Antelope access to “any pornographic, sexually oriented or sexually stimulating materials.”  Brunetti, McKeown (author), and Gould, Circuit Judges.  AFPD J. Rhodes of Missoula, MT, for the defendant;  AUSA M. Hurd of Billings, MT, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

38)  SENTENCING:  USA v. Alvarez-Gutierrez, 04-10241 (9th Cir. Jan. 14, 2005).  The defendant pleaded guilty to illegal entry after deportation in violation of 8 USC Sec. 1326 (2003).  In sentencing, the district court enhanced the base offense level by eight levels pursuant to Guideline Sec. 2L1.2(b)(1)(C) (2003), which provides for such an increase when a defendant was previous deported after conviction of an “aggravated felony.”  The defendant had been previously deported after conviction of statutory sexual seduction, a gross misdemeanor under Nevada state law.  The district court determined that this conviction constituted “sexual abuse of a minor” for purposes of applying the Guideline, and thus was a conviction of an “aggravated felony” under 8 USC Sec. 1101(a)(43)(A) (2003).  The USCA affirmed.  Because it affirmed the district court’s enhancement by its reliance upon the definition of “aggravated felony” in Sec. 1101(a)(43)(A), it did not decide whether the enhancement was also appropriate under Sec. 1101(a)(43)(F) (2003).  Concurring, Judge Reinhardt noted that the majority dutifully applied the law as construed in this and other circuits.  Judge Berzon dissented.  She thought that absent clearly expressed congressional intent to the contrary, historical practice, common sense, and a recent Supreme Court decision all urged construing Sec. 1101(a)(43)(A) to require that an offense be a felony before it can constitute an “aggravated felony.”  Reinhardt (concurring), Thompson (author), and Berzon (dissenting), Circuit Judges.  J. Kaufmann of Tucson, AZ, for the defendant;  AUSA B. Ferg of Tucson, AZ, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

39)  SENTENCING:  USA v. Asberry, 04-30009 (9th Cir. Jan. 11, 2005).  Asberry appealed his sentence for possessing ammunition as a felon, in violation of 18 USC Sec. 922(g)(1) (2000).  On appeal, he challenged the district court’s rulings that:  1) an Oregon conviction for Rape in the Third Degree constitutes a “crime of violence” under Sentencing Guidelines Sec. 4B1.2(a);  2) the Rape in the Third Degree conviction and a Delivery of Marijuana for Consideration conviction were not related under Guidelines Sec. 4A1.2(a)(2);  and, 3), discretionary downward departure from the Guidelines was neither allowed nor warranted under Guidelines Sec. 5K2.0.  The USCA had jurisdiction over the appeal of the first two rulings pursuant to 28 USC Sec. 1291 and 18 USC Sec. 3742(a).  It did not have jurisdiction over the appeal of the third ruling.  The USCA affirmed in part and dismissed in part.  Judge Bea concurred in all sections of the majority opinion, except as to Secs. II.B and II.C;  he wrote separately because although he thought USA v. Granbois, 376 F.3d 993 (9th Cir. 2004), controlled the case, he sees it as wrongly decided because, in holding there is no difference between the “crime of violence” definitions in Secs. 4B1.2 and 2L1.2, Granbois ignores the inclusion of the “statutory rape” and “sexual abuse of a minor” terms in Sec. 2L1.2, and the exclusion of those terms in Sec. 4B1.2.  Given such clear differences in text, Judge Bea thought that to say the two sections mean the same is contrary to basic principles of statutory construction.  Judge Bea also thought that Granbois’ reliance on USA v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. 2003), was misplaced because Pereira-Salmeron considered the broader and more inclusive “crime of violence” definition under Sec. 2L1.2, a definition different from that of Sec. 4B1.2 at issue in Granbois.  Wallace, Gould (author), and Bea (concurring), Circuit Judges.  AFPD N. Bergeson of Salem, OR, for the defendant-appellant;  AUSA F. Weinhouse of Salem, OR, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

40)  DEATH PENALTY:  Beardslee v. Woodford, 05-15042 (9th Cir. Jan. 14, 2005).  Beardslee, a California death row inmate whose execution was scheduled for Jan. 19, 2004, appealed the district court’s order denying his motion for a preliminary injunction against state defendants.  He sought to prevent his execution in accordance with California’s lethal injection protocol, arguing that such an execution would violate his Eighth Amendment right to be free from cruel and unusual punishment and, potentially, his First Amendment right to freedom of speech.  He also filed an emergency motion for a stay of execution.  The USCA affirmed the district court, and denied the motion.  The district court did not abuse its discretion in denying the injunction, given the limited record and context of the case.  The USCA expressed no opinion on the ultimate merits of the claims.  Tashima, Thomas, and Paez, Circuit Judges.  Per Curiam.  S. Lubliner of Petaluma, CA, for the plaintiff;  AAG D. Gilletter of San Francisco, CA for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

41)  HABEAS CORPUS:  Henderson v. Lampert, 03-35738 (9th Cir. Jan. 28, 2005).  State prisoner Henderson appealed from the district court’s judgment denying his habeas petition.  The USCA affirmed.  As the petition raised the same claims he had raised in an earlier petition dismissed on grounds of state procedural default, and because he cannot now challenge the grounds on which the first petition was dismissed, the current petition is “second or successive” and barred by 28 USC Sec. 2244(b)(1).  Wallace (author), Gould, and Berzon, Circuit Judges.  AFPD B. Creel of Portland, OR, for the petitioner;  AAG T. Sylwester of Salem, OR, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/)

42)  HABEAS CORPUS:  Garcia v. Carey, 02-56895 (9th Cir. Jan. 20, 2005).  The petitioner was convicted of robbery in California state court.  The jury found that the robbery was gang related, and that a gun had been used.  Garcia’s sentence was increased because of those findings.  After exhausting state remedies, Garcia filed a habeas petition challenging his sentence in federal court pursuant to 28 USC Sec. 2254.  The district court granted the petition on the ground that there was constitutionally insufficient evidence to support the imposition of the gang and gun sentencing enhancements.  The State appealed.  The USCA affirmed the district court’s grant of habeas relief.  There was a total failure of proof that the petitioner committed the robbery with the specific intent to promote, further, or assist in any criminal conduct by gang members; the firearm enhancement depended on the gang enhancement.  Dissenting, Judge Wallace thought that the majority misinterpreted the requirements of Penal Code Sec. 186.22(b)(1), failed to credit the rational inferences that could be made from the record, and misapplied the provisions of the Antiterrorism and Effective Death Penalty Act of 1996.  Wallace (dissenting), Canby (author), and Thomas, Circuit Judges.  DAG L. Daniels of Los Angeles, CA, for the respondent;  I. Guillen of Covina, CA, for the petitioner.(Download the full text of this decision at www.ce9.uscourts.gov/)

43)  HABEAS CORPUS:  Rose v. Palmateer, 03-35937 (9th Cir. Jan. 24, 2005).  State prisoner Rose appealed from the district court’s denial of his 28 USC Sec. 2254 petition.  He argued that he properly exhausted the claim that his confession and reenactment of events were unlawfully introduced and should have been suppressed;  he also argued that he did not validly waive his Ex Post Facto Clause objection to his sentence.  The USCA affirmed, finding that the district court did not err when it held that Rose failed to exhaust his Fifth Amendment claim, which he thus procedurally defaulted.  Moreover, the district court properly concluded that Rose validly waived his Ex Post Facto objection.  Wallace (author), Gould, and Bea, Circuit Judges.  N. Grefenson of Salem, OR, for the petitioner;  AAG T. Sylwester of Salem, OR, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

44)  HABEAS CORPUS:  Buckley v. Terhune, 03-55045 (9th Cir. Jan. 25, 2005).  Terhune, Director of the California Department of Corrections, appealed the district court’s grant of Buckley’s 28 USC Sec. 2254 habeas petition.  The USCA found that the district court did not give the appropriate level of deference to the state court’s determination of facts.  Because that determination was not unreasonable under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the USCA reversed.  The district court’s judgment resulted from a misapplication of the strict standard of review mandated by the AEDPA.  Dissenting, Judge Bea saw this case as being controlled by Sec. 2254(d)(1), whereas the majority applied Sec. 2254(d)(2).  Second, were the relevant legal issue whether Buckley “understood” or “knew” or “believed” he was pleading to a “15 years to life” sentence rather than a “15 years maximum” sentence, Judge Bea said he would agree with the majority.  He thought there was sufficient evidence in the record made before the state court on the habeas hearing so that its finding that Buckley “well knew” he was pleading to “15 years to life” was not “unreasonable.”  But, Judge Bea thought, at the time of the state habeas proceeding, clearly established Federal law, as determined by the Supreme Court, made the interpretation and construction of the plea agreement a matter of state law.  When the sentencing judge failed either to sentence Buckley according to the parties’ intent as objectively manifested in the agreement or to give Buckley an opportunity to withdraw his plea, the sentence imposed violated Buckley’s constitutional rights because it rendered his plea involuntary.  Where a defendant is misled as to the consequences of his plea, the plea is involuntary.  Trott (author), Rawlinson, and Bea (dissenting), Circuit Judges.  DAG N. Hill of Los Angeles, CA, for the respondent.  A. Bloom of San Diego, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/)

45)  HABEAS CORPUS:  Marshall v. Taylor, 03-56836 (9th Cir. Jan. 13, 2005).  Marshall appealed the district court’s denial of his habeas petition based upon an alleged violation of Faretta v. California, 422 US 806 (1975).  He had asked to represent himself on the morning of his state court trial.  The state trial court, however, denied his request on the impermissible ground that he lacked the requisite skill and knowledge to represent himself.  The California Court of Appeal affirmed on the proper ground that the request was untimely.  On appeal, Marshall argued that the California Court of Appeal decision was contrary to Faretta and that its finding of untimeliness was based on an unreasonable determination of the facts.  The USCA disagreed.  In the absence of clear Supreme Court precedent defining when a Faretta request becomes untimely, the California Court of Appeal was free to determine that under People v. Windham, 560 P.2d 1187, 1191 (Cal. 1977), Marshall’s request on the day of trial was untimely.  It did so, and its affirmance rested on state law consistent with Supreme Court precedent.  The record also clearly supported its finding of untimeliness.  Its affirmance thus rested on a reasonable determination of the facts.  As a result, Marshall had not established grounds for habeas relief pursuant to 28 USC Sec. 2254(d) and the USCA affirmed the district court’s denial of his habeas petition.  Wallace, T.G. Nelson (author), and Wardlaw, Circuit Judges.  DFPD S. Kennedy of Los Angeles, CA, for the petitioner-appellant;  DAG P Tarwater of Los Angeles, CA, for the respondents-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

46)  HABEAS CORPUS:  Cooks v. Newland, 03-56326 (9th Cir. Jan. 19, 2005).  State prisoner Cooks appealed a district court's judgment denying his habeas petition.  He argued that the California Court of Appeal unreasonably applied Faretta v. California, 422 US 806 (1975), and Gideon v. Wainwright, 372 US 335 (1963), in affirming his robbery convictions.  Cooks argued that the state trial court should not have consolidated two separate criminal cases in which he was a defendant, representing himself in one case and represented by counsel in the other.  This, he asserted, improperly forced him to choose between invoking his constitutional right to self-representation, as recognized in Faretta, and his Gideon right to counsel on both charges.  The USCA affirmed.  The state court’s decision was not “contrary to” Faretta or Gideon.  As Cooks conceded, neither case, nor any other Supreme Court decision, holds that the right to an attorney or the right to represent oneself prevents a joinder of two separate cases.  The state court thus did not apply a rule that contradicts the law set forth in the Supreme Court's cases.  Wallace, T.G. Nelson, and Wardlaw (author), Circuit Judges.  A. Rubin of Los Angeles, CA, for the petitioner;  DAG D. Glassman of Los Angeles, CA, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/)

47)  PRISONERS’ RIGHTS:  Watts v. McKinney, 03-16665 (9th Cir. Jan. 10, 2005).  Hudson v. McMillian, 503 US 1 (1992) proscribes the use of force for the malicious and sadistic purpose of causing harm.  Watts’ declaration under oath in his opposition to defendant’s motion for summary judgment described the vengeful acts of a frustrated investigatory, and identified the unconstitutional purpose and deeds.  The USCA held that to suppose that any reasonable person, let alone a trained prison officer, would not know that kicking a helpless prisoner’s genitals was cruel and unusual conduct was beyond belief.  B. Fletcher, Noonan (author), and Thomas, Circuit Judges.  DAG J. Perkell of San Francisco, CA, for the defendant;  C. Watts in pro per. (Download the full text of this decision at www.ce9.uscourts.gov/)

 1)  TRADEMARK INFRINGEMENT / ATTORNEYS’ FEES:  Matrix Motor Co. Inc. v. Toyota Motor Sales, USA, Inc., 03-56359 (9th Cir. Jan. 5, 2005) (unpublished).  Schroeder, Gould, and Clifton, Circuit Judges.

       Matrix Motor Company appealed the district court’s summary judgment dismissal of its trademark infringement suit against Toyota Jidosha Kabushiki Kaisha t/a Toyota Motor Corporation, Toyota Motor Sales, U.S.A., and Toyota North America (collectively “Toyota”).  Matrix Motor alleged that Toyota’s use of the name “Toyota Matrix” to describe its passenger vehicle infringed on Matrix Motor’s alleged trademark in the Matrix mark.  Trademark rights can be established through prior use of the mark in the sale of goods or services.  Sengoku Works, Ltd. v. RMC Intl., Ltd., 96 F.3d 1217, 1219-20 (9th Cir. 1996).  A mark “is not meritorious of trademark protection until it is used in public in a manner that creates an association among consumers between the mark and the mark’s owner.”  Brookfield Communications, Inc. v. West Coast Entm’t Corp., 174 F.3d 1036,1051 (9th Cir. 1999).  There is no triable issue of fact as to whether Matrix Motor made prior use of the “Matrix” mark on automobiles.  Matrix Motor never sold a car in the United States bearing the “Matrix” name on its exterior.  At most, Matrix Motor used the “Matrix” name on interior car parts that were not visible to the public.  Matrix Motor did not engage in sufficient use of the mark on automobiles to establish trademark rights.  It thus cannot succeed in a trademark infringement suit.  The district court awarded Toyota $1,123,000.25 in attorneys’ fees and costs.  Under the Lanham Act, “the Court in exceptional cases may award reasonable attorney fees to the prevailing party.”  15 USC Sec. 1117(a).  The interpretation of what constitutes an exceptional case is a question of law reviewed de novo.  Earthquake Sound Corp. v. Bumper Indus., 352 F.3d 1210, 1216 (9th Cir. 2003).  A plaintiff’s case can be found to be exceptional when it is groundless, unreasonable, vexatious, or pursued in bad faith.  Stephen W. Boney, Inc. v. Boney Serv., Inc., 127 F.3d 821, 825-27 (9th Cir. 1997).  The district court found that Matrix Motor “grossly exaggerated its claims and had no competent evidence to support those claims.”  It also found that Matrix Motor’s misconduct during discovery made it very costly and difficult for Toyota to defend against the claims.  Toyota sought reimbursement for $1,294,290.08 in fees and costs;  the district court awarded it $1,123.000.25.  The district court had already awarded Toyota fees and costs it had expended to bring a motion for discovery sanctions, an amount totaling $6,944.25.  Because Matrix Motor did not engage in prior use of the mark and the likelihood of confusion between the two marks was near zero, the USCA agreed with the district court that the case was exceptional.  The district court reviewed the amount of fees and costs carefully, stating it would review the amount of the request “with a fine tooth comb.”  Matrix Motor made no specific objections to the amount of the request.  The district court reduced the claim by more than $100,000 for instances of duplication and inefficiency.  The USCA concluded that there was no abuse of discretion as to the amount of fees and costs.

2)  COPYRIGHT INFRINGEMENT / ATTORNEYS’ FEES:  Contessa Food Products, Inc. v. Lockpur Fish Processing Co., Ltd., 03-55415 (9th Cir. Jan. 3, 2005) (unpublished).  Schroeder, Goodwin, and Clifton, Circuit Judges.

       Contessa Food Products appealed dismissal on summary judgment of its copyright infringement claims against Berdex Seafood, Inc. Coast to Coast Seafood, Inc., Mazzetta Company, Slade Gorton & Company, and Hanwa America Corporation.  Contessa also appealed dismissal on summary judgment of its Lanham Act claims for disgorgement of profits and injunctive relief against the aforementioned defendants, as well as against defendants Fishery Products International, Sea Port Products Corporation, and Admiralty Island Fisheries, Inc.  Defendants Mazzetta, Hanwa, and Slade cross-appealed the district court’s decision denying their request for attorneys’ fees under the Copyright Act.

       The USCA affirmed the dismissal of Contessa’s copyright and trademark claims.  It reversed the decision to deny Mazzetta, Hanwa, and Slade attorneys’ fees under the Copyright Act and remanded to the district court for a determination of the reasonable attorneys’ fees each incurred defendant against Contessa’s copyright claims.  Contessa acknowledged that these defendants did not themselves copy its Boiling Shrimp Image, claiming instead that they were liable for contributory copyright infringement.  Sony Corp. of America v. Universal City Studios, Inc., 464 US 417, 435 (1984) (explicitly recognizing contributory copyright infringement as a viable theory of liability under the Copyright Act).  The three elements required to establish contributory copyright liability are:  1) direct infringement by a primary infringer, 2) knowledge of the infringement, and 3) material contribution to the infringement. MGM Studios, Inc. v. Grokster, Ltd., 380 F.3d 1154, 1160 (9th Cir. 2004);  Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996) (noting that contributory liability is based in tort law and “stems from the notion that one who directly contributes to another’s infringement should be held accountable.”)  Assuming, arguendo, that Contessa has a protectable copyright in the Image, the element of direct infringement is easily established given that it is undisputed that Lockpur Fish Processing Co., copied the Image with only de minimis modifications and placed it on some of the packaging it used to ship frozen block shrimp from Bangladesh to the United States.  However, Contessa cannot succeed on a theory of contributory liability against any of these defendants because it failed to establish a genuine issue of material fact that any of the defendants knew or had reason to know of Lockpur’s infringement.  Even assuming that some employees of at least some defendants were aware that Contessa used the Image to market its product, there was no basis in the record for making the leap that they knew that Lockpur was using the Image on some of the inner packaging contained within the master cartons of shrimp it sold to the defendants when the defendants subsequently resold the shrimp without opening the master cartons.  Moreover, Lockpur only used the Image on some of its inner packaging.  Even if some of the defendants’ employees did occasionally break open the master shipping cartons for sampling, quality control or partial sales, Contessa can only speculate that these employees saw the infringing packaging.  Mere speculation is not sufficient to create a genuine issue of material fact sufficient to defeat summary judgment.  The district court thus did not err in dismissing Contessa’s copyright claims against all the defendants.  The USCA also reversed the district court’s decision denying Mazzetta, Slade, and Hanwa attorneys’ fees under the Copyright Act.  It does not further the aims of the Copyright Act to force a party to defend itself against a charge of copyright infringement when the proponent of the copyright can produce no evidence from which a reasonable inference can be drawn that the party engaged in any infringing activity.  Fogerty v. Fantasy, Inc., 510 US 517, 526-27 (1994).  Because there was no admissible record evidence that Slade, Hanwa or Mazzetta ever possessed, let alone distributed, the allegedly infringing packaging, the district court abused its discretion in denying their request for attorneys’ fees.  The USCA thus remanded to the district court for an individualized determination of the total amount of reasonable attorneys’ fees each incurred in defendant against Contessa’s copyright claims.  Moreover, without reaching the issue of whether Contessa has a valid trademark in the Image, the USCA concluded that the district court did not err in dismissing Contessa’s trademark claims against the defendants.  As an initial matter, Contessa did not introduced any evidence supporting a reasonable inference that five of the eight defendants ever used the Image in commerce.  Thus, as a matter of law, defendants Mazzetta, Slade, Hanwa, Sea Port Products, and Admiralty Island Fisheries could not be held liable for trademark infringement, and as to these defendants Contessa was not entitled to any remedy under the Lanham Act.  Although Contessa introduced evidence supporting a reasonable inference that defendants Fishery Products, Berdex and Coast to Coast distributed product in packaging containing the Image, the USCA denied Contessa’s request for disgorgement of profits because of an absence of any evidence supporting a reasonable inference that any of the defendants willfully infringed its alleged trademark.  Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1406 (9th Cir. 1993).  Likewise, the USCA denied Contessa’s request for injunctive relief because the district court did not abuse its discretion in concluding, inter alia, that where the defendants had permanently terminated business relations with Lockpur and had neither commercial interest nor motivation to use the allegedly infringing Image, there was not a reasonable likelihood that any allegedly infringing behavior would recur.  Thus, as to all the defendants, the USCA affirmed the district court’s dismissal of Contessa’s request for disgorgement of profits under the Lanham Act, as well the district court’s decision denying Contessa injunctive relief.  Costs were taxed against Contessa.

3)  PRODUCTS LIABILITY:  Guidi v. Stryker Corp., 03-55410 (9th Cir. Jan. 7, 2005) (unpublished).  Browning, Pregerson, and Berzon, Circuit Judges.

       When Tanya Guidi was seventeen years old, a congenital hip disorder forced her to undergo total hip replacement surgery.  Ten years later, she noticed that her left hip would “catch and pop with pain.”  After conferring with the orthopaedic surgeon who had implanted her prosthetic hip, Guidi was advised that the prosthesis had worn out and was severely damaging her pelvic bone.  Guidi consulted with a second orthopaedic surgeon, who also advised her that the hip prosthesis had worn out and that she needed to undergo restorative surgery.  Guidi underwent restorative surgery on March 8, 2001.  After that surgery, it was discovered that her hip prosthesis was defective and not simply worn out.  Guide then filed suit against Stryker Corporation and Howmedica Osteonics Corp. (collectively “Stryker”), the makers of the hip prosthesis.  In her suit, Guidi sought damages for strict product liability, negligent product liability, breach of duty to warn, breach of warranty, and general negligence.  At issue on appeal was the district court’s order granting Stryker’s motion for summary judgment.  In so ruling, the district court concluded that Guidi had knowledge that the hip prosthesis was defective thirteen months before she filed suit and, thus, that her suit was barred by the statute of limitations.  The USCA reversed.  Viewing the evidence in the light most favorable to the nonmoving party, the USCA had to determine whether any genuine issues of material fact existed and whether the district court correctly applied the relevant substantive law.  The USCA noted that summary judgment is appropriate where “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.”  Fed. R. Civ. P. 56(c);  Celotex Corp. v. Catrett, 477 US 317, 322 (1986).  In California, a personal injury action in a products liability must be brought within one year of the accrual of the plaintiff’s claim.  Cal. Civ. Proc. Code Sec. 340(3) (2001).  A cause of action begins to accrue on the date of the plaintiff’s injury, unless the discovery rules applies.  Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1120 (9th Cir. 1994).  “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.”  Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1110 (1988).  Taking the facts in the light most favorable to Guidi, by January 2001, she knew only that her hip would occasionally slip in and out of place, during which time it would make a popping sound.  After she saw a second orthopaedic surgeon on February 28, 2001, she knew that her pelvic bone was severely damaged and that her hip prosthesis was missing half of its cup.  Thus, as of February 28, 2001, Guidi knew she was injured and required surgery, but she did not know, or necessarily have reason to suspect, that a defective product might have tortiously caused her injury.  Indeed, until her hip prosthesis was removed on April 9, 2001, Guidi had no reason to know or suspect that her injury was the result of anything other than whether doctors had told her—namely, that her hip prosthesis had deteriorated over time.  Because she filed suit within one-year of that date, her suit was not time-barred.  See Hopkins, 33 F.3d at 1120 (“Under California’s discovery rule, the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause.”)  The USCA thus reversed and remanded for further proceedings the district court’s summary judgment in the defendants’ favor.

4)  MALICIOUS PROSECUTION:  Jaisinghani v. Byrne, 03-55276 (9th Cir. Jan. 7, 2005) (unpublished).  Hug, Pregerson, and Berzon, Circuit Judges.

       Appellant Jaisinghani, along with Valles, Rust, and International Plastics and Packaging (“IPP”), was charged with a number of transportation of hazardous waste violations in 1997.  Valles, Rust, and IPP pled nolo contendere to the charges on March 19, 1998, and the charges were dismissed against Jaisinghani at the same proceeding.  Subsequently, Jaisinghani filed a 42 USC Sec. 1983 malicious prosecution action against defendants EPA Agent Dugger and Byrne, a peace officer with the Los Angeles District Attorney’s office.  The defendants moved for summary judgment and the district court granted the motion.  Jaisinghani appealed that decision, arguing that the district court erred in granting the motion with respect to two elements:  favorable termination and conspiracy.  The USCA held that the district court did not err in granting the motion regarding favorable termination and, thus, did not reach the second issue.  To succeed in his Sec. 1983 malicious prosecution action, Jaisinghani had to establish that the defendants prosecuted him with malice and without probable cause, and that they did so for the purpose of denying him equal protection or another specific constitutional right. Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004).  The underlying proceedings must have terminated favorably—that is, in a manner demonstrating Jaisinghani’s innocence.  A dismissal resulting from negotiation, settlement or agreement is generally not deemed a favorable termination of the proceedings because such a settlement specifically avoids a determination on the merits.  When the proceedings terminate through a negotiated settlement, the inquiry is fact-intensive and depends on the specific language of the settlement.  The district court correctly determined that Jaisinghani could not establish a favorable termination.  Although he noted that he pled to nothing, the agreement at the March 1, 1998 court proceedings was specifically a conditional dismissal:  The charges against Jaisinghani would only be dropped if cashier’s checks, tendered in payment of fees amounting to $150,000, cleared by the next court proceeding.  According to statements by Jaisinghani’s lawyer at those proceedings, Jaisinghani waived the preliminary hearing as well as “any time and [gave] up any claims regarding any offense with respect to the timing or jurisdiction of a refiling” if the checks did not clear.  Regardless of whether Jaisinghani was ultimately the source of the funding for those checks, he waived certain rights and essentially guaranteed the payment of $150,000 in fees in exchange for the dismissal of the case against him.  Pender v. Radin, 29 Cal. Rptr. 2d 36, 40 (Cal. Ct. App. 1994) (noting that when a party gives up something in exchange for the dismissal of charges, the termination is not favorable).  Jaisinghani thus could not establish a favorable termination of the proceedings and the district court correctly granted summary judgment against him.

5)  BANKRUPTCY:  In re Miller, 03-35905 (9th Cir. Jan. 28, 2005) (unpublished).  Alarcon, W. Fletcher, and Rawlinson, Circuit Judges. 

         The law firm of Davis Wright Tremaine LLP (“DWT”), appealed from the denial of its motion for an order to show cause why debtor–in-possession Miller has not funded a distribution account with $71,842.13 that DWT claims is due.  DWT’s claim for $71,842.12 represents one-third of the fees DWT incurred while representing the Margueritte Miller Living Trust (“Trust”), of which Douglas w  as a one-third beneficiary.  DWT maintained that the bankruptcy court erred in holding that its application did not constitute a valid informal proof of claims.  For documents to constitute an informal proof of claim, “they must state an explicit demand showing the nature and amount of the claim against the estate, and evidence an intent to hold the debtor liable.”  In re Sambo’s Restaurants, Inc., 754 F.2d 811, 815 (9th Cir. 1985).  Bankruptcy courts, as courts of equity, liberally construe what types of documentation will constitute an informal proof of claim.  Id. At 816.  DWT’s application is a valid informal proof of claim because it evidenced an intent to hold the debtor liable and stated an explicit demand showing the nature and amount of the claims against the estate.  Id. At 815.  Even though DWT’s application can be read to demand more than Miller owed, a proof of claim that is not a “model of clarity and completeness” can still be a valid proof of claim. In re Avery, 272 B.R. 718, 723 (E.D. Cal. 2002) (holding that a proof of claim which did not specify an amount on its face was valid because the proof of claim’s attachments gave detailed financial information).  The bankruptcy court thus erred in concluding that DWT’s application was not a valid claim.  However, the error was harmless because DWT’s claim nonetheless was considered and adjudicated at the October 29, 2001 hearing as part of the Trust’s proof of claim.  DWT was not now entitled to another hearing on its claim.  DWT maintained that the bankruptcy court’s January 25, 2002 order violated DWT’s procedural due process rights because DWT did not receive notice that the fee request would be adjudicated at the October 29, 2001 hearing, and the bankruptcy court’s order only indirectly referenced disposal of DWT’s claim.  Although DWT was not named as a party to the October 29, 2001 hearing and its application was not mentioned in the bankruptcy court’s October 23, 2001 pretrial order, DWT received actual notice that its claim would be adjudicated at the October 29, 2001 hearing date.  In its October 23, 2001 order, the bankruptcy court stated that objections to the Trust’s proof of claim would be heard at the October 29, 2001 hearing.  DWT received notice of Miller’s objections to its application and therefore knew that its request for fees was a contested matter.  DWT’s fees were included in the Trust’s proof of claim as well as DWT’s own informal proof of claim, and DWT therefore knew or reasonably should have known that its fees would be a subject of the October 29 hearing.  Moreover, the bankruptcy court gave DWT notice that its claim had been disallowed.  In its January 25, 2002 order, the bankruptcy court held that DWT’s application was duplicative and excessive.  The bankruptcy court disallowed DWT’s “probate attorney fees” in the Trust’s proof of claim.  No procedural due process violation occurred.

       DWT maintained that the bankruptcy court erred in holding that the January 25, 2002 order disposed of DWT’s claim because the bankruptcy court mistook DWT for another law firm and never dealt with DWT’s claim for one-third of $163,587.50, which was a portion of its fee request in the Trust’s proof of claim.  The bankruptcy court’s July 17, 2002 order addressed and rejected DWT’s contention that the bankruptcy court had confused DWT with another law firm.  Moreover, although the bankruptcy court only identified $45,571.78 of DWT’s fee request in its July 17, 2002 order, the record demonstrated that the bankruptcy court disposed of DWT’s entire claim.  The bankruptcy court stated that it would not consider paying any amount to DWT beyond what DWT had already been compensated.  The USCA thus agreed with the bankruptcy court that its order disposed of DWT’s claim.  Finally, DWT argued that the bankruptcy court erred in holding that DWT’s claim was not an allowed claim under the terms of Miller’s confirmed Chapter 11 plan.  The USCA disagreed.  Miller’s plan defined an “allowed claim” as “a claim: (a) in respect to which a Proof of Claim has been filed with the Court within the applicable period of limitation fixed by order of the Court pursuant to Bankruptcy Rule 3003, or (b) scheduled in the list of creditors prepared and filed with the Court pursuant to Bankruptcy Rule 1007(b) and not listed as disputed, contingent or unliquidated as to amount, in either case as to which no objection to the allowance thereof has been interposed or as to which any such objection has been determined by an order or judgment which is no longer subject to appeal or certiorari proceeding is pending.”  DWT’s claim was not an allowed claim because an “objection to the allowance thereof” had been “interposed” by Miller.  The bankruptcy court expressly disallowed DWT’s application as duplicative and disallowed the Trust’s request for these attorneys’ fees following trial on the proof of claim.

6)  IMMIGRATION:  Marzan v. Ashcroft, 03-74676 (9th Cir. Jan. 14, 2005) (unpublished).  Beezer, Hall, and Silverman, Circuit Judges.

       Marzan, his wife and son, natives and citizen of the Philippines, petitioned for review of the Board of Immigration Appeals (“BIA”) decision affirming an Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”).  Where as here, the BIA affirms without opinion, the USCA reviews the IJ’s decision.  The USCA denied the petition for review.  Substantial evidence supported the IJ’s finding that Marzan failed to establish that the threats he received, both over the phone and in person, from the Nationalist Army of the Philippines (“NAP”) and the New People’s Army (“NPA”) constituted past persecution. Lim v. INS, 224 F.3d 929, 936-37 (9th Cir. 2000) (holding that threats, standing alone, constitute past persecution is only a small category of cases, and only when the threats are so menacing as to cause significant actual “suffering or harm”).  Moreover, substantial evidence supported the IJ’s finding that Marzan failed to establish a well-founded fear of future persecution because Marzan failed to show that the NPA still exists and the State Department reports indicates that the NPA was active in only 2% of the country and that former Marcos adherents have been able to return to the country without difficulty.  Molina-Estrada v. INS, 293 F.3d 1089, 1096 (concluding that when a petitioner has not established past persecution, the IJ may rely on a State Department report in considering whether the petitioner has demonstrated that there is a good reason to fear future persecution).  Because Marzan failed to establish eligibility for asylum, he necessarily failed to satisfy the more stringent standard for withholding of removal.  Marzan did not challenge the IJ’s denial of CAT relief.  That issue was thus was waived.  Pursuant to Desta v. Ashcroft, 365 F.3d 741 (9th Cir. 2004), the petitioner’s motion for stay of removal included a timely request for stay of voluntary departure.  Because the removal stay was continued based on the government’s filing of a notice of non-opposition, the voluntary departure period was also stayed, nunc pro tunc, as of the filing of the motion for stay of removal.  This stay will expire upon issuance of the mandate.

7)  IMMIGRATION:  Chandi v. Ashcroft, 03-71318 (9th Cir. Jan. 13, 2005) (unpublished).  Beezer, Hall, and Silverman, Circuit Judges.

       Chandi, a native and citizen of India, petitioned for review of the decision of the BIA affirming without opinion the IJ’s decision removing him from the United States because of his convictions under Cal. Penal Code Secs. 488, 496A, 8 USC Sec. 1160(b)(7)(A)(ii), and 18 USC Sec. 371.  The USCA noted that Sec. 1252(a)(2)(C) deprives it of jurisdiction over a petition for review from an alien “who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.”  8 USC Sec. 1227(a)(2)(A)(ii).  Chandi’s convictions for petty theft, receipt of stolen property, and conspiracy to create and supply false immigration documents are all crimes involving moral turpitude.  The USCA thus dismissed the petition for review in part.  Chandi’s contention that the IJ denied him due process by admitting documents concerning his 1988 federal conviction lacked merit because Chandi failed to indicate how the admission of these documents prejudiced him.  Cuadras v. INS, 910 F.2d 567, 573 (9th Cir. 1990) (In a removal hearing, an alien is entitled to the Fifth Amendment guaranty of due process, which is satisfied only by a ‘full and fair hearing.’  However, such a hearing is denied only if the error complained of causes the alien to suffer some prejudice.)  The USCA thus dismissed the petition in part and denied it in part.

8)  IMMIGRATION:  Bozoian v. Ashcroft, 03-71307 (9th Cir. Jan. 12, 2005) (unpublished).  Beezer, Hall, and Silverman, Circuit Judges.

      Bozoian is a stateless Armenian Christian born in Lebanon.  He and his family petitioned pro se for review of the BIA’s decision, affirming without opinion the IJ’s denial of asylum, withholding of removal, and relief under the Convention Against Torture.  The USCA denied the petition.  Bozoian maintained that the suffered past persecution and has a well-founded fear of future persecution in Lebanon on the basis of his Armenian ethnicity, his Christian religion, and his membership in a particular social group of stateless natives in Lebanon.  Substantial evidence supported the IJ’s finding that Bozoian’s personal experience of past discrimination in education and employment did not amount to persecution.  Additionally, the evidence did not compel a finding that Bozoian’s status as a stateless native of Lebanon, or his inability to obtain Lebanese citizenship for himself or his family, amounted to persecution on account of a protected ground.  El Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir. 2004) (holding that stateless Palestinians from Kuwait were eligible for asylum given evidence that they would be subjected to extreme economic persecution and abuse).  By failing to qualify for asylum, Bozoian necessarily failed to satisfy the more stringent standard for withholding of removal.  Bozoian also failed to show that it was more likely than not that he would be tortured upon return to Lebanon for purposes of relief under the Convention Against Torture.  Pursuant to Desta v. Ashcroft, 365 F.3d 741, 750 (9th Cir. 2004), petitioners’ motion for stay of removal included a timely request for stay of voluntary departure.  Because the stay of removal was continued based on the government's filing of a notice of non-opposition, the voluntary departure period was also stayed, nunc pro tunc, as of the filing of the motion for stay of removal and this stay will expire upon issuance of the mandate.

9)  IMMIGRATION:  Alslamh v. Ashcroft, 04-70096 (9th Cir. Jan. 12, 2005) (unpublished).  Beezer, Hall, and Silverman, Circuit Judges.

      Hassan Alslamh, a native and citizen of Syria, petitioned for review of the BIA’s dismissal of his appeal from an IJ’s denial of his application for asylum, withholding  of removal and relief under the Convention Against Torture (“CAT”).   The USCA denied the petition.  The record did not compel the conclusion that Alslamh was threatened because of his Christian faith rather than because he unintentionally sold a defective auto part.  Accordingly, substantial evidence supported the agency’s determination that Alslamh failed to establish past persecution or a well-founded fear of persecution on account of a protected ground.  Because Alslamh failed to prove eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal.  Alslamh also failed to establish eligibility for CAT relief because he did not show that it was more likely than not that he would be tortured if returned to Syria.

10)  IMMIGRATION:  Mebrahtu v. Ashcroft, 03-71142 (9th Cir. Jan. 12, 2005) (unpublished).  Beezer, Hall, and Silverman, Circuit Judges.

      Mebrahtu, a native and citizen of Ethiopia, petitioned for review of the decision of the BIA affirming the IJ’s denial of asylum and withholding of removal.  The USCA granted the petition.  Mebrahtu testified that he feared persecution by the Ethiopian authorities because his parents were born in Eritrea.  The IJ found that Mebrahtu’s mother was born in Eritrea, but found the evidence regarding his father’s ethnicity inconsistent.  The BIA held that the dispositive issue was Mebrahtu’s failure to corroborate his assertion that his father is Eritrean.  The country conditions reports in the administrative record state that “Ethiopia’s policy of deporting people of Eritrean origin after war between the two countries broke out in May 1998 has not developed into a systematic, countrywide operation to arrest and deport anyone of full or part Eritrean descent.”  See Amnesty International, Amnesty International Witnesses Cruelty of Mass Deportations, African News Online, Jan. 29, 1999.  Moreover, “Ethiopians married to Eritreans are forbidden to leave and forced to watch helplessly while their spouse and children are deported.” Id.  The 1999 State Department Report on Human Rights Practices in Ethiopia confirms the mass deportations and detention of Eritreans and Ethiopians of Eritrean origin.  Given these country conditions reports, and Mebrahtu’s mother’s undisputed Eritrean ethnicity, substantial evidence did not support the IJ’s determination that Mebrahtu failed to provide evidence that Ethiopian officials would consider him to be Eritrean.  Substantial evidence also did not support the BIA’s determination that the Mebrahtu’s father’s ethnicity is the dispositive issue in the case.  The USCA thus granted the petition for review and remanded for further proceedings as to Mebrahtu’s eligibility for asylum and withholding of removal.

11)  IMMIGRATION:  Durakovic v. Ashcroft, 03-71086 (9th Cir. Jan. 12, 2005) (unpublished).  Beezer, Hall, and Silverman, Circuit Judges.

      Durakovic, an ethnic Albanian Muslim from Montenegro, petitioned pro se for review of the decision of the BIA affirming without opinion the IJ’s denial of asylum, withholding of removal, and protection under the Convention Against Torture.  The USCA denied the petition.  Substantial evidence supported the IJ’s determination that the Yugoslavian army’s single unsuccessful attempt to recruit Durakovic for military service did not constitute past persecution. Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (holding that threats did not compel finding of past persecution where neither the applicant nor his family was ever touched, robbed imprisoned, forcibly recruited, detained, interrogated, trespassed upon, or even closely confronted).  Substantial evidence also supported the IJ’s finding that Durakovic’s fear of future harm was not objectively well-founded.  Acewicz v. INS, 984 F.2d 1056, 1060-61 (9th Cir. 1993) (finding no well-founded fear given changed political conditions in country of origin).  In failing to qualify for asylum, Durakovic necessarily failed to satisfy the more stringent standard for withholding of removal.  Because Durakovic presented no evidence that it was more likely than not that he would be tortured upon return to Montenegro, the IJ properly rejected his claim under the Convention Against Torture.