2) TAXATION: Fargo v. CIR, 04-72190 (9th Cir. May 8, 2006). Claiming economic hardship and exceptional circumstances, the taxpayers appealed a decision of the Tax Court holding that the Commissioner of Internal Revenue did not abuse his discretion by rejecting their offer to pay $7,500 in compromise of the some $104,000 in interest owed on their 1983 and 1984 federal income tax liabilities. The USCA rejected the taxpayers' contention that Congress specifically contemplated longstanding cases such as theirs when it enacted 26 USC Sec. 7122, and that it all but required that such cases be compromised. The USCA held that the CIR had not relinquished his discretion to compromise longstanding cases. Beezer, Hall (author), and Wardlaw, Circuit Judges. D. Brager of Los Angeles, CA, for the appellants; R. Hutter of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) COPYRIGHTS: Wall Data, Inc. v. Los Angeles County Sheriff's Dept., 03-56559 (9th Cir. May 17, 2006). The L.A. County Sheriff's Department purchased 3,663 licenses to Wall Data's software, but installed it on 6,007 computers. At issue was whether that conduct constituted copyright infringement. The difficulty was that, although the software was installed on 6,007 computers, those computers were configured such that the total number of workstations able to access the installed software did not exceed the total number of licenses purchased. The USCA held that such copying constitutes infringement despite the Department's configuration. It thus affirmed the district court's final judgment and award of attorneys' fees and costs to Wall Data. Schroeder, Pregerson (author), and Trott, Circuit Judges. D. Martin of Los Angeles, CA, for the defendants; T. Gamlen of Palo Alto, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) COPYRIGHTS: Laws v. Sony Music Entertainment, 03-57102 (9th Cir. May 24, 2006). Debra Laws brought suit against Sony Music Entertainment for misappropriating her voice and name in the song "All I Have" by Jennifer Lopez and L.L. Cool J. The district court found that Sony had obtained a license to use Laws' recording of "Very Special" and that Laws' claims for violation of her common law right to privacy and her statutory right of publicity were preempted by the Copyright Act. The USCA affirmed, but noted that not every right to publicity claim is preempted by the Act and that its holding did not extinguish common law or statutory rights of privacy, publicity, and trade secrets, or the general law of defamation and fraud (or any other similar cause of action), so long as those causes of action do not concern the subject matter of copyright and contain qualitatively different elements than those contained in a copyright infringement suit. Elektra/Asylum Records ("Elektra") copyrighted Laws' performance of "Very Special" and licensed its use to Sony. If Laws has wished to retain control of her performance, she should have either retained the copyright or contracted with the copyright holder, Elektra, to give her control over its licensing. Her remedy, if any, lies in an action against Elektra, not Sony. Farris, Fernandez, and Bybee (author), Circuit Judges. R. Ivie of Los Angeles, CA, for the appellant; R. Frackman of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) TRADEMARKS: Dept. of Parks & Recreation for the State of California v. Bazaar del Mundo, Inc., 05-55828 (9th Cir. May 24, 2006). The Dept. of Parks and Recreation for the State of California ("State") appealed the denial of its motion to preliminarily enjoin Bazaar del Mundo from using the registered trademarks "Casa de Bandini" and "Casa de Pico" in the operation of restaurants located outside the boundaries of the Old Town San Diego State Historic Park. At issue was whether the State owns any protectable interest in the trademarks. Because it agreed with the district court that the State failed to introduce sufficient evidence of ownership of the marks and thereby failed to establish the requisite degree of likelihood of success on the merits, the USCA affirmed the denial of injunctive relief. Beezer, Hall, and Wardlaw (author), Circuit Judges. R. Sybert of San Diego, CA, for the plaintiff; J. Brooks of San Diego, CA, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/)

6) TELECOMMUNICATIONS LAW: Sprint PCS v. La Canada-Flintridge, 05-55014 (9th Cir. Filed Jan. 17, 2006; amended May 23, 2006). At issue here was whether portions of a city ordinance preempted by state law can constitute substantial evidence supporting denying under federal law a telecommunications company a permit to construct a wireless antenna. The Telecommunications Act of 1996 requires that permit denials be supported by substantial evidence. Because the City overstepped its regulatory authority under state law, its wireless ordinance was not viable, and no evidence supported the City's permit denial. The USCA thus reversed the district court's ruling that that substantial evidence supported the city's permit denial. Hall, O'Scannlain (author), and Paez, Circuit Judges. J. Flynn of Irvine, CA, for the appellants; S. Grossberg of Rancho Cucamonga, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) LABOR LAW: Oregon Columbia Brick Masons Joint Apprenticeship Training Committee v. Gardner, 03-35864 (9th Cir. May 22, 2006). At issue here was whether an Oregon prerequisite for state recognition of a proposed apprentice training committee-that it be "necessary to serve the needs of the various apprenticeable occupations," Or. Rev. Stat. Sec. 660.135(1), a requirement know as the "needs" requirement-is preempted by ERISA. Affirming the district court, the USCA concluded that Oregon's "needs" requirement does not "relate to" ERISA. It neither "refers to" nor has an impermissible "connection with" ERISA plans. The "needs" requirement is thus not preempted. Reinhardt, Berzon (author), and Bybee, Circuit Judges. J. Stewart of Portland, OR, for the plaintiffs-appellants; AAG E. Hadlock of Salem, OR, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

8) ERISA: Miller v. Xerox Corp. Retirement Income Guarantee Plan, 04-55582 (9th Cir. May 8, 2006). At issue here was whether a procedure used by Xerox to reduce pension benefits at final retirement to account for earlier benefit distributions violates ERISA. The USCA concluded that Xerox's method violates ERISA because it impermissibly reduces pension benefits by more than the accrued pension benefits attributable to the earlier distributions. The USCA thus reversed and remanded for further proceedings. Pregerson, Noonan, and Thomas (author), Circuit Judges. J. Strain of Redondo Beach, CA, for the appellants; L. von Eschen of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) EMPLOYMENT DISCRIMINATION: Berry v. Dept. of Social Services, Tehama County, 04-15566 (9th Cir. May 1, 2006). Berry alleged that his public employer, the Tehama County Department of Social Services violated his rights under the First Amendment of the U.S. Constitution and Title VII of the Civil Rights Act of 1964 by prohibiting him from discussing religion with his clients, displaying religious items in his work cubicle, and using a conference room for prayer meetings. The district court granted the Department summary judgment. The USCA affirmed. Applying the balancing standard set forth in Pickering v. Board of Education, 391 US 563 (1968), the USCA concluded that the Department successfully navigated between not respecting its employee's right to the free exercise of his religion and violating the Establishment Clause of the First Amendment by appearing to endorse religion. Specifically, the USCA found that the public employer's interests in avoiding violations of the Establishment Clause and in maintaining the conference room as a nonpublic forum outweigh the resulting limitations on Berry's free exercise of his religion at work. The USCA also held that the public employer was not required to further accommodate Berry's religious views under Title VII. Farris, Tashima, and Callahan (author), Circuit Judges. A. Poidmore of Roseville, CA, for the plaintiff; J.S. Smith of Sacramento, CA, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/)

10 DISCRIMINATION: Colbern v. Selig, 04-55647 (9th Cir. May 9, 2006). The appellants (Colbern, individually and on behalf of all similarly situated retired Major League Baseball players) claimed that Major League Baseball ("MLB") violated Title VII by excluding them from medical and supplemental income plans devised by MLB for former Negro League players, and committed battery by sub-jecting them to a dangerous regimen of cortisone shots and other drugs without their informed consent. The appellants sought reversal of the district court's grant of summary judgment on their Title VII and battery claims. The USCA affirmed, concluding that the appellants failed to make a prima facie showing of discrimination under Title VII, and failed to offer evidence of the commission of a battery sufficient to survive summary judgment. With respect to the Title VII claim, the USCA held in the alternative that appellees Selig, as Commissioner of MLB, and other appellees had a legitimate non-discriminatory reason for the actions they took and that such reason was non-pretextual. Reinhardt (author) and Rawlinson, Circuit Judges, and Fogel, District Judge. G. Serlin of Woodland Hills, CA, for the plaintiffs-appellants; H. Ganz of Los Angeles, CA, for the defendant-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) TORTS / INSURANCE: Vacek v. U.S. Postal Service, 04-15961 (9th Cir. May 24, 2006). Vacek was hit by a Post Office truck, and then suffered again when the Post Office deny his claim because it got lost in the mail. Vacek subsequently appealed the district court's judgment dismissing his Federal Tort Claims Act claim for lack of subject matter jurisdiction. The USCA affirmed. At issue was whether the Post Office is entitled to immunity from suit when its employees lose a plaintiff's claim in the mail. Based on Bailey v. USA, 642 F.2d 344 (9th Cir. 1981), the answer is "yes." Concurring, Judge Thomas thought that subsequent case law undermined Bailey, and because he thought Bailey had been incorrectly decided, he wrote separately to urge a re-examination of the Bailey rule. Wallace (author), Hawkins, and Thomas (concurring), Circuit Judges. H. Truett of San Francisco, CA, for the appellant; K. Ryan of San Francisco, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) TORTS: Conrad v. USA, 04-15402 (9th Cir. May 10, 2006). After he was unsuccessfully prosecuted on charges involving an illegal gambling operation, Conrad, a 26 year veteran police officer, brought a Federal Tort Claims Act action against the United States alleging false arrest, false imprisonment, abuse of process, and malicious prosecution. He appealed a summary judgment for the government and a judgment on the merits in favor of the government. Finding no reversible error, the USCA affirmed. Conrad's indictment was handed down by a grand jury, establishing a rebuttable presumption of probable cause. Goodwin (author), B. Fletcher, and Fisher, Circuit Judges. B. Leighton of Clovis, CA, for the plaintiff-appellant; AUSA C. Cerna of Sacramento, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) COLLISIONS AT SEA: Crowley Marine Services v. Maritrans, Inc., 04-35724 (9th Cir. May 8, 2006). This case involved a matter of first impression regarding the application of the International Regulations for Preventing Collisions at Sea ("COLREGS"). Crowley Marine Services owned and operated a tug boat hired to accompany an oil tanker operated by Maritrans Operating Company to an oil platform in Puget Sound. During the crossing the two vessels collided, causing more than $2 million in damages. Each side identified violations of COLREGS as the alleged cause of the collision. The district court apportioned fault for the accident as 75% to Crowley and 25% to Maritrans. It found that the two vessels were operating in concert according to agreed maneuvers, and thus determined that several substantive provisions of the COLREGS at issue were inapplicable. Specifically, the court ruled that this situation presented "special circumstances" that provide an exception to the COLREGS. The USCA held that the plain language of the COLREGS precluded such a broad exception, and remanded for the district court to reconsider the relative liability of the parties. Cudahy, T.G. Nelson, and McKeown (author), Circuit Judges. V. Larson of Seattle, WA, for the plaintiff; M. Warner of Seattle, WA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) SAME SEX MARRIAGE: Smelt v. County of Orange, California, 05-56040 (9th Cir. May 5, 2006). Smelt and Hammer, two men who wished to marry each other, appealed district court orders which 1) abstained as to their claims that three sections of the California law relating to marriage are unconstitutional, and 2) ruled adversely to them on their claims that two sections of the Federal Defense of Marriage Act (DOMA) are likewise unconstitutional. The USCA affirmed in part, reversed in part, and remanded for dismissal of both DOMA claims. Smelt and Hammer lacked standing to attack the federal law-Secs. 1 and 2 of DOMA-and the district court properly abstained from deciding their attack on state law. The USCA thus affirmed the district court's decision to abstain until California state courts resolved the issue of whether the California Family Code sections that limit marriage to couples consisting of an unmarried man and an unmarried woman comply with the California constitution. The USCA also affirmed the district court's decision to dismiss as the DOMA Sec. 2 claim. However, the USCA vacated the district court's decision regarding the merits of the DOMA Sec. 3 claim and remanded with directions to dismiss that claim as well. Judge Farris concurred in the result. Farris (concurring), Fernandez (author), and Thomas, Circuit Judges. R. Gilbert of Santa Ana, CA, for the plaintiffs; T. Maksoudian of Santa Ana, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) PRELIMINARY ANTI-SUIT INJUNCTIONS: E&J Gallo Winery v. Andina Licores S.A., 05-16504 (9th Cir. May 1, 2006). E&J Gallo Winery appealed from the district court's denial of a preliminary injunction to enjoin Andina Licores S.A. from proceeding with litigation in Ecuador. On an interlocutory appeal, the USCA noted that Andina has involved Gallo in a messy, protracted, and potentially fraudulent litigation in Ecuador in direct contravention of a valid and enforceable forum selection clause. This, the USCA said, is a paradigmatic case for a preliminary anti-suit injunction. The district court erroneously applied the law and thus abused its discretion in denying the requested injunction. The USCA thus reversed and remanded to the district court with instructions to enter a preliminary injunction barring Andina from proceeding with litigation in Ecuador. However, in lieu of issuing the mandate immediately, the USCA said it would consider Andian's conduct between the filing date of this opinion and the date the preliminary injunction is entered in determining whether to impose sanctions under the USCA's inherent authority. Wallace (author), Hawkins, and Thomas, Circuit Judges. T. Gamlen of Palo Alto, CA, for the appellant; S. T. O'Rourke of Fresno, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) CIVIL PROCEDURE / INDISPENSABLE PARTIES: Merrill Lynch v. Arelma, Inc., 04-16401 (9th Cir. May 4, 2006). In this case interpleader was begun on Sept. 21, 2000 by Merrill, Lynch, the custodian of the assets of Arelma, Inc., now amounting to some $35 million. The Merrill Lynch account was found by the district court to have been established in 1992 by a deposit of $2 million by Ferdinand E. Marcos, then the president of the Republic of the Philippines. The shares of Arelma, a Panamanian corporation, are now held in escrow by the Philippine National Bank, pending an ownership determination by the Philippine courts. The Republic was made a defendant in the interpleader and successfully asserted its sovereign immunity. The Republic maintained that it is an indispensable party inasmuch as it claims that the Arelma assets were acquired by Marcos illegally and never lawfully belonged to him but from the beginning belonged to the Republic. In a 2002 appeal, the USCA ruled that the Republic was a necessary party but declined to rule that it was indispensable. The district court awarded all of the Arelma assets to the Class of Human Rights Victims represented by Mariano Pimental. The 9,539 persons represented by Pimental had brought suit against Marcos after his fall from power and in 1996 won a judg-ment against his estate of nearly $2 billion. Arelma and the Philippine National Bank, the escrow holder of the stock, filed a single brief contending that Arelma is an indispensable party and that the district court lacked jurisdiction over Arelma. The Estate of Roger Roxas and the Golden Budha (sic.) Corporation have similar interests. The USCA held that the Republic is not an indispensable party under Fed. R. Civ. Proc. 19(b) and affirmed the judgment of the distinct court, modified to allot to Roxas a share of the assets no greater than that of any class member. Noonan (author) and Thomas, Circuit Judges, and Robart, District Judge. S. Bomse of San Francisco, CA, for the Republic of the Philippines; J. Ziegler of Los Angeles, CA, for Arelma, Inc. and the Philippine National Bank; D. Cathcart of Los Angeles, CA, for the Golden Budha Corp. and Estate of Roxas. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) JURISDICTION: Mattel, Inc. v. Bryant, 05-55696 (9th Cir. May 2, 2006). Mattel, a Delaware corporation with headquarters in California, appealed an order of the district court denying its motion to remand this action to state court in which Mattel had begun this suit against Bryant, a resident of Missouri and a product designer formerly in Mattel's employ. Holding that diversity jurisdiction was not defeated by the intervention of MGA Entertainment, Inc., a California corporation not an indispensable party, the USCA concluded that the district court properly retained jurisdiction. Canby, Noonan (author), and Berzon, Circuit Judges. D. Collins of Los Angeles, CA, for the plaintiff; K. Jacoby of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) FRANCHISE LAW / ATTORNEYS' FEES: Patel v. Del Taco, Inc., 04-16208 (9th Cir. May 2, 2006). In this consolidated appeal, the Patels sought review of two orders issued by the district court-the first, an order granting Del Taco's motion to remand and awarding attorneys' fees, and, the second, staying the Patels' federal claims and compelling arbitration of those claims. The USCA dismissed the appeal from the remand order based on 28 USC Sec. 1441 for lack of jurisdiction. It affirmed as to the remand order based on 28 USC Sec. 1143 and as to the award of attorneys' fees. It also dismissed the appeal from the order staying the federal claims and compelling arbitration of those claims for lack of jurisdiction. Alarcon and McKeown, Circuit Judges, and Holland (author), District Judge. F. Weiser of Los Angeles, CA, for the plaintiffs-appellants; A. Pines of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) PETROLEUM MARKETING PRACTICES ACT: BP West Coast Products v. May, 05-15076 (9th Cir. May 1, 2006). Raymond May and Sharanjeet Ghumman appealed a district court order granting summary judgment in favor of BP West Coast Products LLC ("BP"). The district court concluded that BP did not violate the Petroleum Marketing Practices Act ("PMPA") when it sold its interest in gas facilities operated by May and Ghumman and "non-renewed" its franchise relationships with them. At issue was whether BP acted in good faith and in the normal course of business when it decided to sell the facilities in compliance with the PMPA. Finding no error, the USCA affirmed. Pregerson, Cowen (author), and Thomas, Circuit Judges. G. Lebedev of Los Angeles, CA, for the appellants; J. Hamerling of San Francisco, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

20) PROBATE: In re Estate of Covington, 04-35449 (9th Cir. May 25, 2006). This appeal arose from a will contest involving a member of the Colville Indian Tribe in a Department of Interior probate proceeding. At issue was whether state or federal law of evidence applied. Testimony at the probate hearings revealed that Covington had prepared a handwritten worksheet to aid her attorney in drafting a new will. Palmer and Francis, in contesting this will, sought a subpoena for all materials relating to its preparation, presumably hoping that these materials would shed light on Covington's mental state. Office of Hearings and Appeals ALJ Hammett oversaw the will's probate and issued a subpoena duces tecum to James Edmonds-director of the Colville Tribal Legal Services ("CTLS")-compelling him to produce all documents relating to the will's preparation and to appear at a supplemental hearing. Edmonds refused to turn over the documents, claiming that they were privileged attorney-client communications, confidential, and protected work product. The personal representative of Covington's estate, refused to waive any privilege. The ALJ rejected Edmonds' claim of privilege and directed him to produce the materials. Edmonds moved to quash the subpoena in federal district court which granted the motion to quash on the grounds that the attorney-client privilege protected the materials. The USCA agreed, finding that the general attorney-client privilege set forth in Wash. Rev. Code Sec. 5.60.060(2)(a) is a "generally accepted" rule of evidence that prevents disclosure of the subpoenaed documents. Dissenting, Judge Gould disagreed with the majority's holding that because no Washington case or statute had adopted the testamentary exception to the attorney-client privilege, the exception is not a "generally accepted" rule of evidence as required by 43 CFR Sec. 4.232(a). O'Scannlain (author), Silverman, and Gould (dissenting), Circuit Judges. K. Barton of Washington, DC, for the appellants; D. Groesbeck of Spokane, WA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

21) LOAN INTEREST STATUTES: Quicken Loans, Inc. v. Wood, 04-16244 (9th Cir. May 22, 2006). This appeal involves the California Department of Corporations Commissioner's efforts to enforce previous versions of California's per diem loan interest statutes. The district court held that these laws were preempted by the Depository Institutions Deregulation and Monetary Control Act ("DIDMCA"), but denied a permanent injunction to prevent the Commissioner from enforcing the preempted statutes. Wells Fargo Bank N.A. v. Boutris, 419 F.3d 949 (9th Cir. 2005), decided after the district court ruled in the present case that California's per diem statues are not preempted by DIDMCA. The USCA held that Wells Fargo controlled here. The district court also ruled that the Alternative Mortgage Transaction Parity Act, 12 USC Secs. 3801-06, did not preempt the per diem statutes as applied to alternative mortgage transactions. The USCA upheld this conclusion because California's per diem statutes are not expressly preempted, do not directly conflict with, and do not impede Congress' purposes in enacting the Parity Act. The per diem statutes thus are not preempted by the Parity Act. Goodwin (author), Reinhardt, and Hawkins, Circuit Judges. E. Sangster of San Francisco, CA, for the plaintiff-appellant; D. Gooding of San Francisco, CA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

22) AERIAL ADVERTISING: Center for Bio-Ethical Reform v. Honolulu, 04-17496 (9th Cir. May 23, 2006). At issue here was whether the Revised Ordinance of Honolulu Sec. 40-6.1 (1996) may be used to restrict an advocacy group from towing aerial banners over the beaches of Honolulu. The USCA found that the Ordinance was not preempted by federal law, and, passed constitutional muster as a reasonable and viewpoint neutral restriction on speech in a nonpublic forum. The prohibited banner was neither a historically important form of communication nor speech that had unique identifying attributes for which there was no practical substitute. The USCA thus affirmed the district court's grant of summary judgment in favor of Honolulu. Bright, McKeown (author), and Clifton, Circuit Judges. R. Muise of Honolulu, HI, for the appellants; C. Okinaga of Honolulu, HI, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

23) ENVIRONMENTAL LAW: Central Delta Water Agency v. Bureau of Reclamation, 04-16632 (9th Cir. May 22, 2006). Plaintiffs Central Delta Water Agency, et al., appealed the district court's denial of their motion for summary judgment and grant of the defendant's motion for summary judgment. The Delta parties sued the Bureau of Reclamation and several administrative officials, claiming that the Bureau was violating the Central Valley Improvement Act because it was operating the Central Valley Project ("CVP") in a manner that would at some point in the future violate the Vernalis Salinity Standard, a state standard with which the Bureau must comply in its operation of the CVP. The district court cited several grounds for its decision, but the USCA found dispositive the absence of a genuine issue of material fact as to whether the Bureau will comply with the Vernalis Salinity Standard in the foreseeable future. It thus affirmed the district court's denial of the plaintiffs' motion and grant of the Bureau's motion for summary judgment. Ferguson, Trott (author), and Kleinfeld, Circuit Judges. D. McDaniel of Stockton, CA, for the plaintiffs; AUSA D. Shilton of Washington, DC, for the defendants; T. O'Laughlin of Chico, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) COMMON LAW RIGHT OF ACCESS: Kamakana v. City and County of Honolulu, 04-15241 (9th Cir. May 17, 2006). At issue here was whether court records, originally filed under seal as attachments to motions in a civil action alleging police corruption, were properly released to a newspaper under the common law right of access. This appeal arose from a suit by Kamakana, a Honolulu police detective, claiming retaliation by the City of Honolulu for his whistleblower activities. Although that suit settled and its merits were not at issue here, during that litigation scores of documents were filed under seal in accord with a stipulated protective order. On the motion of intervenor Gannet Pacific Corporation / The Honolulu Advertiser, the magistrate judge undertook a detailed and exhaustive review and unsealed virtually all of the pleadings and documents. Honolulu as well as Lee Donohue and Milton Olmos in their official capacities (the "City"), with the United States as intervenor, challenged that order. The USCA affirmed. It rejected the City's effort to cast the exhaustive review in a negative light by suggesting that the decision to overrule the special master was somehow unfair or unwar-ranted. To the contrary, the judge's decision to carefully review every document in light of the change in intervening law and in the face of the tepid and general justifications offered for sealing the documents. The USCA also noted that the parties were on notice, by virtue of the protective order itself and an order entered by the district judge, that the court reserved the right to unseal materials, if it determines that they should be available to the public or otherwise do not merit sealed status. The USCA added that the judge took seriously the presumption of public access and did so in accord with precedent from the Supreme Court and the Ninth Circuit. Given these facts, the USCA said it would not "second guess the exercise of considerable discretion" allowed the judge. The USCA thus held that the magistrate judge did not abuse her discretion in ordering the City to produce documents attached to non-dispositive motions. Beezer, Hawkins, and McKeown (author), Circuit Judges. J. Matayoshi of Honolulu, HI, for the defendant; S. Frank of Washington, DC, for the intervenor; W. McCorriston of Honolulu, HI, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

25) SEX EDUCATION: Fields v. Palmdale School District, 03-56499 (9th Cir. Opinion filed Nov. 2, 2005; Opinion re rehearing filed May 17, 2006). Parents of schoolchildren in Palmdale, California, brought this action upon learning that their children had been questioned in the public elementary school about sexual topics such as the frequency of "thinking about having sex" and "thinking about touching other peoples' private parts." The questioning was part of a survey the School District conducted regarding psychological barriers to learning. The parents maintained that this questioning violated their right to privacy and to control the upbringing of their children by introducing them to matters of and relating to sex. The district court dismissed the federal causes of action for failure to state a claim upon which relief could be granted and dismissed the state claims without prejudice to their right to refile in state court. On November 2, 2005, the USCA affirmed, holding that there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it. At that time the USCA also held that parents have no due process or privacy right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students. Finally, the USCA held that the defendants; actions were rationally related to a legitimate state purpose. Subsequently, in light of the appellants' petition for rehearing en banc and the amici brief in support thereof, the panel decided to consider whether to rehear the matter nostra sponte. It unanimously determined not to do so and reaffirmed its decision of November 2, 2005. Lay, Reinhardt, and Thomas, Circuit Judges. Per Curiam. M Staver of Longwood, FL, for the plaintiffs-appellants; D. Walsh of Encino, CA, for the defendants-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) FIRST AMENDMENT: Pinard v. Clatskanie School District 6J, 04-35574 (9th Cir. May 1, 2006). This student speech case arose from a school district's suspension of student athletes from its high school varsity basketball team. The students alleged that the school district and various school officials violated their First Amendment free speech rights by suspending them in retaliation for speaking out against their coach. The district court granted summary judgment against the students, concluding that they were not engaged in a constitutionally protected activity because their speech did not involve a matter of public concern. In the alternative, the court concluded that the school district could constitutionally punish the students because their decision not to board a team bus and play in a regularly scheduled out-of-town game substantially and materially interfered with a school activity. The USCA held that the district court erred in adopting from the government employment context the "public concern" standard for determining whether the First Amendment protects student speech. Under the proper standard, that articulated in Tinker v. Des Moines Independent Community School District, 393 US 503, 514 (1969), the students' petition and complaints against the coach were protected speech because they could not reasonably have led school officials to forecast substantial disruption or of material interference with a school activity. However, the USCA agreed with the district court that the students' refusal to board the bus was not protected by the First Amend-ment because, even if expressive conduct, it substantially disrupted and materially interfered with the operation of the varsity boys basketball program. The district court did not, however, consider the plaintiffs' retaliation claims. The USCA thus reversed and re-manded for further proceedings. Fisher (author), Gould, and Bea, Circuit Judges. M. Seidl of Portland, OR, for the plaintiffs-appellants; P. Mersereau of Portland, OR, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) SIXTH AMENDMENT / GRAND JURIES: USA v. Torres-Hernandez, 05-50136 (9th Cir. May 8, 2006). The USCA held that a district court may not take into account Hispanics who are ineligible for jury service to determine whether Hispanics are underrepresented on grand jury venires. To determine whether Hispanics are underrepresented to an unconstitutional degree in venires, a district court must rely on evidence that accurately reflects the judicial district's actual percentage of jury-eligible Hispanics. Because the district court used the most accurate data presented to it by the parties-data that excluded segments of the Hispanic population ineligible for jury service-the USCA affirmed the defendant's conviction and sentence. Kozinski, Trott, and Bea (author), Circuit Judges. Z. Lopez of San Diego, CA, for the defendant; AUSA R. Haines of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) IMMIGRATION: Aguiluz-Arellano v. Gonzales, 03-73856 (9th Cir. May 1, 2006). The petitioner, a native and citizen of Mexico and lawful permanent resident of the U.S., sought review of a final removal order, arguing that the BIA erred in finding that his conviction for being under the influence of a controlled substance did not fall within the scope of the Federal First Offender Act (FFOA) and thus that the BIA erred in ruling that he was removable. The USCA denied the petition. Because the conviction was the petitioner's second controlled substance conviction, it could not have qualified for treatment under the FFOA if he had been prosecuted in federal court. Because the FFOA could not have been applied to the petitioner's second offense, his second conviction was for a controlled substance offense for which he is removable, regardless of whether that conviction was later dismissed or expunged. Thompson, T.G. Nelson, and Gould (author), Circuit Judges. D. Aguirre of San Diego, CA, for the petitioner; L. Jentzer of Washington, DC, for the re-spondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) IMMIGRATION: USA v. Camacho-Lopez, 05-10455 (9th Cir. May 30, 2006). The defendant appealed his conviction for illegal reentry following deportation, arguing that a defect in his earlier deportation proceeding (the Immigration Judge's advice that he was ineligible for discretionary relief due to his vehicular manslaughter conviction) invalidated his deportation order and appeal waiver, thereby rendering an essential element of his conviction missing. The USCA agreed. It thus reversed and remanded with instructions to dismiss the indictment. The defendant's Notice to Appear charged him as removable only for having committed an aggravated felony, but his prior conviction did not fit that definition. The defendant was thus removed when he should not have been and clearly suffered prejudice. Goodwin, Reinhardt, and Hawkins (author), Circuit Judges. AFPD C. Lie of San Jose, CA, for the defendant; AUSA S. Knight of San Jose, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

30) NATIONAL FIREARMS ACT / FORFEITURE: USA v. TRW Rifle 7.62X51mm Caliber, 04-16049 (9th Cir. May 5, 2006). At issue here was whether a rifle seized by the Bureau of Alcohol, Tobacco, and Firearms from Mark Brown is a "machinegun" within the meaning of the National Firearms Act, 26 USC Sec. 5845(b). The definition of 'machinegun' under Sec. 5845(b) includes a weapon that "can be readily restored to shoot, automatically more than one shot … by a single function of the trigger." Federal law requires the registration of machineguns. Although the rifle at issue here was a modified M-14 machinegun and could not fire automatically when purchased by Brown, it could be "readily restored" to shoot automatically within the plain and unambiguous meaning of Sec. 5845(b). The USCA thus affirmed the district court's order of forfeiture. Hug, Alarcon, and McKeown (author), Circuit Judges. R. Gardiner of Fairfax, VA, for the appellant; AUSA R. Bostwick of Tucson, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

31) EXTRADITION: Vo v. Benov, 04-56689 (9th Cir. May 22, 2006). Vo, a naturalized U.S. citizen fighting extradition to Thailand, appealed a district court order denying his habeas petition filed pursuant to 28 USC Sec. 2241. He maintained that the crime with which he was charged was a political offense and thus not a valid basis for extradition under the terms of the extradition treaty between the United States and Thailand. He also argued that the extradition court violated his due process rights by failing to make a finding as to whether he had been "proceeded against" under the terms of the treaty and by not denying his extradition on that ground. Finding that the crime with which Vo was charged is not protected by the political offense exception and that Vo's arguments as to the "proceeded against" clause of the treaty do not present a claim cognizable on this appeal, the USCA affirmed the district court decision denying Vo's habeas petition. Vo had not satisfied the "uprising" prong of the incidence test, which governs the application of the po-litical offense exception. Nor has his due process rights been violated. Reinhardt (author), Kozinski, and Berzon, Circuit Judges. W. M. Mayock of Pasadena, CA, for the appellant; AUSA S. Clymer of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) JURY INSTRUCTIONS: USA v. Casch, 05-30270 (9th Cir. May 24, 2006). Casch appealed his conviction for conspiracy to possess with intent to distribute methamphetamine and cocaine. He argued that the court erred in failing to instruct on venue and consequently allowed him to be convicted on uncharged conduct. Ruling on a matter first impression, the USCA affirmed. Casch was properly convicted if convicted of a conspiracy to possess methamphetamine and cocaine with intent to distribute them in Idaho. The evidence was overwhelming that he had formed such a conspiracy. It was speculation without substance that a jury might think him innocent in Idaho but guilty in Washington or that a less than unanimous jury convicted him of the crimes in Idaho. Casch was convicted of a crime in the venue in which he had committed it. Relying upon USA v. Martinez, 901 F.2d 374 (4th Cir. 1990) and USA v. Moeckly, 769 F.2d 453 (8th Cir. 1985), the USCA adopted the harmless error test. As the evidence that Casch committed a conspiracy in Idaho was "substantial" and "uncontroverted," the district court's error was harmless. Noonan (author), Tashima, and W. Fletcher, Circuit Judges. G. Silvey of Boise, ID, for the defendant; AUSA N. Cook of Coeur d'Alene, ID, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

33) SEARCH & SEIZURE: USA v. Howard, 05-10469 (9th Cir. May 25, 2006). Howard appealed the district court's ruling that the search of the apartment of his girlfriend at which he had spent the night was constitutional because he was on probation and officers had probable cause to believe he resided there. The USCA held that the evidence was insufficient to establish probable cause and re-versed. Concurring, Judge Noonan thought it did not seem that the majority took into account either Howard's diminished expectation of privacy as a probationer, or the government's interest in keeping him from possession of a firearm. In effect, Howard has been given a safe house where, as long as he has a cooperative girlfriend, he can stash his gun. That surely not what the majority wanted to create but it is the result of the rigid application of precedents without attention to the perspectives on reasonableness introduced by USA v. Knights, 534 US 112 (2001). Judge Noonan noted that his doubt was doubled by the teaching that "the Fourth Amendment protects people, not places." Katz v. USA, 389 US 347, 351 (1967). Application of that insight in the instant case contracts the scope of protection: a probationer gets less protection than the innocent homeowner. Noonan (concurring) and Bybee (author), Circuit Judges, and Schwarzer, District Judge. F. Forsman of Las Vegas, NV, for the defendant; AUSA K. Kenny of Las Vegas, NV, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

34) SEARCH & SEIZURE: USA v. Thomas, 04-30541 (9th Cir. May 18, 2006). At issue here was whether a driver of a rental car who is not listed on the rental agreement has standing to challenge a police search of that vehicle. The district court denied the driver's motion to suppress on several grounds: an unauthorized driver of a rental car has no expectation of privacy, so he lacked standing to challenge the search; there was probably cause to issue a search warrant; monitoring public movements was not a search in the first place; a Terry stop was proper under the circumstances; the automobile exception applied and supported the search; and discovery was inevitable in any event. After the district court denied the driver's motion to suppress, he entered a conditional guilty plea to one count of Possession with Intent to Distribute a Controlled Substance in violation of 21 USC Sec. 841(a)(1). The district court sentenced him to 188 months pursuant to Sentencing Guideline Sec. 4B1.1. The USCA concluded that an unauthorized driver may have standing to challenge a search if he or she has received permission to use the car from the authorized renter. Here it was undisputed that the driver failed to show that he received the renter's permission to use the car. The district court thus correctly concluded that the driver lacked standing to challenge the search. O'Scannlain (author), Silverman, and Gould, Circuit Judges. R. Wall of Spokane, WA, for the appellant; AUSA J. Harrington of Spokane, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) EVIDENCE: USA v. Lo, 03-50608 (9th Cir. May 19, 2006). The government appealed the district court's order granting Lo's motion for acquittal on a charge of possessing ephedrine, a listed chemical used to manufacture methamphetamine, and also a money laundering charge. Lo maintained that the USCA lacked jurisdiction to consider the appeal and that there was insufficient evidence to support the verdicts. The USCA held that it had jurisdiction to consider the appeal and that there was sufficient evidence to support the jury verdict. It thus reversed the district court's order granting the acquittal. Hug (author) and Wardlaw, Circuit Judges, and Singleton, District Judge. AUSA M. Raphael of Los Angeles, CA, for the plaintiff; B. Coleman of San Diego, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

36) EVIDENCE / SENTENCING: USA v. Pintado-Isiordia, 05-50489 (9th Cir. May 26, 2006). Pintado-Isiordia appealed his conviction and sentence for violating 8 USC Sec. 1326. The USCA affirmed in part, vacated in part, and remanded for resentencing. First, under Fed. R. Civ. P. 44(a), the record of the appellant's birth, which was issued by the government of Nayarit, Mexico, is self-authenticating. The government was not required to submit a "final certification" under Rule 44(a) because the birth record and its attestation were certified by an Apostille in accordance with the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, to which both Mexico and the U.S. are parties. However, the USCA did not agree with the district court's conclusion that the government proved that this particular birth record fell within the public records exception to the hearsay rule. The portion of the document that purports to set forth the legal authority for maintaining the record is shown as "illegible" in the translated copy submitted to the district court. The USCA thus could not tell whether the document was a record of matters "observed pursuant to duty imposed by law." Fed. R. Evid. 803(8). Nevertheless, any error was harmless. The appellants mother testified that her husband had the appellant's birth registered in Nayarit, and thus, the birth certificate merely corroborated his own witness's first-hand account of what transpired after his birth in December 1951. Second, the USCA could see no reason why the government would not use the Army Na-tional Guard letter to rebut the suggestion that the appellant's enlistment contract proves that he was a U.S. citizen. In any event, the district court took more than adequate measures to prevent any unfair prejudice: It instructed the jury that it could consider the letter only to decide how much weight to give the appellant's enlistment contract, and not as independent evidence that he was an immigrant alien; moreover, that the appellant was honorably discharged had nothing to with his alienage; nor was it error for the district court to exclude a photograph of the appellant in military uniform. The USCA agreed with the district court that the only apparent purpose behind introducing the photograph was to elicit the jury's sympathy and patriotism, which runs afoul of Fed. R. Evid. 403. Finally, the USCA could not tell from the record the basis on which the district court concluded that the appellant's conviction qualified as a "crime of violence." Thus, the USCA vacated the sentence and remanded so that the district court could consider whether the appellant's conviction for assault with a firearm qualifies as a "crime of violence" under either the "categorical" (see Taylor v. USA, 495 US 599 (1990)) or the "modified categorical" (see USA v. Hernandez-Valdovinos, 352 F.3d 1243, 1246 (9th Cir. 2003)) approach. Lay, Silverman, and Wardlaw, Circuit Judges. Per Curiam. K. Troiano of San Diego, CA, for the appellant; AUSA R. Haines of San Diego, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

37) SENTENCING: USA v. Morales-Perez, 05-10115 (9th Cir. May 31, 2006). The appellant had pled guilty to one count of unlawful reentry of a deported alien in violation of 8 USC Sec. 1326. He appealed his 70-month sentence, arguing that the district court erred when it concluded that his prior conviction under California Health and Safety Code Sec. 11351.5 for possession or purchase of cocaine base with intent to distribute categorically qualified as a drug trafficking offense under the Sentencing Guidelines. See Guideline Sec. 2L1.2(b)(1)(A). The appellant also maintained that the district court erred in sentencing him above the two-year statutory maximum for convictions under Sec. 1326 based on his prior conviction. The USCA affirmed. The definition of 'drug trafficking offense' contained within the Guidelines encompasses both possession and purchase with intent to distribute. Guideline Sec. 2L1.2 cmt. N.1(B)(iv). Moreover, the district court had properly considered the appellant's prior conviction in sentencing him above the statutory maximum. However, the USCA ordered a limited remand pursuant to USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). Goodwin, O'Scannlain, and Tallman (author), Circuit Judges. AFPD R. Valladares of Las Vegas, NV, for the appellant; E. Olson of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) SENTENCING: USA v. Lopez-Solis, 03-10059 (9th Cir. May 19, 2006). Lopez-Solis, a citizen of Mexico, was convicted for entering the U.S. illegally in violation of 8 USC Sec. 1326. The sentencing court subjected him to a 16-level sentencing enhancement under Guideline Sec. 2L1.2 based on his prior Tennessee state conviction for statutory rape, a conviction the court deemed "sexual abuse of a minor," a "crime of violence" under the Guideline. On appeal, Lopez-Solis argued that his state conviction was not for "sexual abuse of a minor," and thus not a "crime of violence." The USCA agreed, vacated the sentence and remanded to the district court for resentencing. Tennessee Code Sec. 39-13-506 is overbroad as it encompasses conduct that does not constitute "abuse." Absent evidence demonstrating that Lopez-Solis's conviction was for conduct actually constituting "abuse," the district court erred when it applied the 16-level enhancement. Dissenting, Judge Graber thought that the majority's careful attention to what type of sexual contact with a minor constituted sexual "abuse" of the minor under the former Guidelines is beside the point. She thought the question the court should answer is what constitutes "statutory rape, which is an independently sufficient kind of crime of violence under the Guidelines. As the majority properly noted, Lopez-Solis pleaded guilty in Tennessee to the felony of "statutory rape." The Guidelines, Judge Graber thought, requires no more to show that he stands convicted of a "crime of violence." T.G. Nelson (author), Graber (dissenting), and W. Fletcher, Circuit Judges. A. Islas of Tucson, AZ, for the defendant; AUSA J. Jacobson of Tucson, AZ, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

39) SENTENCING: USA v. Diaz-Argueta, 05-10224 (9th Cir. May 16, 2006). Diaz appealed the sentence imposed by the district court after pleading guilty to illegal reentry following deportation in violation of 8 USC Sec. 1326. The Pre-Sentence Report stated that he had been convicted in California in 1995 for assault with a firearm. In support, the government submitted several documents from the Superior Court of the State of California, County of San Bernardino. After three sentencing hearings, the district court concluded from the state court records that Diaz had pled guilty to assault with a firearm, a felony, and that he had been convicted of that offense. The district court sentenced him at the lower end of the Guidelines to three years and ten months imprisonment. The USCA vacated the sen-tence and remanded for resentencing in accordance with 18 USC Sec. 3553(a). It found that the district court had not explicitly ad-dressed any of the factors of Sec. 3553(a), other than the Guidelines. In fact, other than using the Guidelines, the district court gave no reason for its sentence. J. Noonan (author), Tashima, and W. Fletcher, Circuit Judges. C. Hahn of Reno, NV, for the defendant; AUSA R.D. Gifford of Reno, NV, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

40) SENTENCING: USA v. Marcial-Santiago, 05-30248 (9th Cir. May 8, 2006). Appellants appealed sentences they received upon pleading guilty and being convicted of being illegal aliens found in the U.S. after deportation in violation of 8 USC Sec. 1326(a). They were prosecuted and sentenced in the District of Montana, which does not have a fast-track program. They maintained that the disparity between their sentences, and the sentences imposed on similarly-situated defendants who are prosecuted in districts with fast-track programs, is unwarranted and rendered their sentences "unreasonable" under USA v. Booker, 543 US 220 (2005). They also maintained that this disparity violated their due process and equal protection rights. The USCA affirmed. It noted that the fast-track provision of the PROTECT Act applies only to convicted felons. Because the government has a legitimate interest in conserving prosecutorial and judicial resources in districts with large numbers of immigration cases, and fast-track programs are rationally related to that interest, the Act's authorization of these programs, and their implementation in some but not all districts, does not violate the appellants' equal protection or due process rights. O'Scannlain, Silverman, and Gould (author), Circuit Judges. D. Ness of Great Falls, MT, for the defendants; G. Darragh of Great Falls, MT, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

41) SENTENCING / JUVENILES: Jonah R. v. Carmona, 05-16391 (9th Cir. May 2, 2006). Jonah R. spent almost 35 months in detention before he was sentenced to a 30-month term of confinement under the Federal Juvenile Delinquency Act. The Federal Bureau of Prisons ("BOP") calculates sentences for persons, including juveniles like Jonah, remanded to its custody. Pursuant to a recently adopted policy, the BOP refused to subtract from Jonah's sentence any of the 35 months he spend in pre-sentence custody. The district court rejected Jonah's challenge to this policy. The Reversing, the USCA held that juveniles must receive credit for pre-sentence custody. Noonan, W. Fletcher (author), and Callahan, Circuit Judges. R. McWhirter of Phoenix, AZ, for the petitioner; L. Boone of Phoenix, AZ, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

42) SENTENCING: USA v. Brigham, 03-30381 (9th Cir. May 5, 2006). Bringham and others bought a successful restaurant. He looted it, and it failed. He also applied for loans totaling more than $1 million, lied on his loan applications, and got some of the loans. Hundreds of thousands of dollars went into the restaurant and out to Brigham for various improper purposes. He even delayed turning over tips to employees for weeks after they had earned them. Eventually, the restaurant went into bankruptcy and the U.S. Trustee disco-ered what had been going on. Brigham's indictment included three counts of making false statements on a lone application, one count of making false statements to the Small Business Administration, and two counts of misusing a Social Security number. He had lied in his loan applications about what he Social Security number was, whether he had ever been charged with a crime, whether he had been involved in other bankruptcies, and what his liabilities were. The loan applications in the indictment added up to $1,232,570. Brigham entered into a plea agreement and pleaded guilty to a six count indictment, largely in return for a three-point early acceptance of re-sponsibility deduction and the government's agreement not to charge his wife. Still, his sentence was higher than he or the government expected-37 months instead of 24-because his criminal history turned out to be level III instead of level I on the Guidelines table. Brigham had previously been jailed for 60 days for criminal contempt in state court. The contempt was for violating an injunction against selling securities and was imposed after Brigham fraudulently sold unregistered securities. He was still on probation for that offense when he misused a Social Security number in his indictment on a $196,875 loan application. He total sentence in the present case was 37 months in custody, 5 years of supervised release, $308,732 in restitution, and $600 in special assessments. The USCA affirmed, except for a limited remand to allow the district court to say whether it would have imposed a different sentence had the Guidelines been viewed as advisory. It found that because Brigham did not object to the claimed errors and because the errors qualify as "plain." Concurring in the judgment, Judge Ferguson wrote separately to disagree with the majority's acceptance of the use of a sentencing council in determining Brigham's sentence. Brigham had entered into a plea agreement with the government for a sentence of 24 months. After meeting with a sentencing council, the District Judge increased the sentence to 37 months. Ferguson (concurrence), Trott, and Kleinfeld (author), Circuit Judges. B. Peterson of San Francisco, CA, for the defendant; M. Atkinson of Washington, DC, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

43) HABEAS CORPUS: Rasberry v. Garcia, 03-15854 (9th Cir. May 25, 2006). Rasberry appealed the dismissal as untimely of his 28 USC Sec. 2254 habeas petition. He maintained that he is entitled to equitable tolling because the district court dismissed his wholly unexhausted habeas petition when it should have been apparent to the court that Rasberry had accidentally omitted from the petition two claims that he had exhausted in state court. Rasberry argued that the district court should have notified him of the two omitted claims, granted him the opportunity to amend his petition to add those claims, and permitted him to employ the hold and abeyance procedure, allowing him to return to state court to exhaust his remaining claims. Alternatively, he argued that his second habeas petition related back to his timely filed first habeas petition. The USCA affirmed. A district court has no obligation to inform a pro se habeas petitioner of potentially exhausted claims that the petitioner failed to include in his petition. Moreover, Rasberry's second habeas petition did not relate back to his timely filed first habeas petition. Thus, the district court properly dismissed Rasberry's untimely habeas petition. Schroeder, Trott (author), and Kleinfeld, Circuit Judges. AFD A. McClintock of Sacramento, CA, for the petitioner; DAG M. Johnson of Sacramento, CA, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/)

44) HABEAS CORPUS: Morris v. Ylst, 05-99002 (9th Cir. May 9, 2006). A California jury found Morris guilty of first-degree murder and robbery, and he was sentenced to death in 1987. The USCA considered his petition for a write of habeas corpus, and a related mandamus petition, on three previous occasions and has already vacated his death sentence and ordered a new penalty-phase trial. On this fourth appeal, the USCA considered the last two remaining guilt-phase issues: alleged failure of the prosecution to turn over material exculpatory evidence in violation of Brady v. Maryland, 373 US 83 (1963), and alleged presentation of perjured testimony in violation of Mooney v. Holohan, 294 US 103 (1935) (per curiam), and Napue v. Illinois, 360 US 264 (1959). The USCA affirmed the convictions and remanded with instructions to grant the writ as to the penalty subject to the state's retrying the penalty phase within a reasonable time." Concurring, Judge Ferguson wrote separately to underscore the prosecutor's abuse of his discretion in singling out the petitioner for the death penalty, when it was the state's position that the three defendants were equally guilty of the felony murder at issue. As long as a prosecutor's discretion in seeking the death penalty is so unbridled, Judge Ferguson thought the administration of the death penalty will violate the guarantees of due process and freedom from cruel and unusual punishment enshrined in the Constitution. Ferguson (concurring), Graber (author), and W. Fletcher, Circuit Judges. M. Bacher of San Francisco, CA, for the petitioner; DAG W. Campbell of Sacramento, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

45) HABEAS CORPUS: Benitez v. Garcia, 04-56231 (9th Cir. May 23, 2006). Benitez was arrested in Venezuela and extradited to the United States. He was tried and convicted of murder and sentenced to an indeterminate sentence of 15 years to life (in addition to four years for the use of a firearm). He now petitioned for a writ of habeas corpus, arguing that his sentence could not exceed 30 years because of an extradition decree from the Supreme Court of Venezuela and the Venezuelan Ministry of Foreign Affairs pursuant to the extradition treaty between the U.S. and Venezuela. The district court denied the petition. The USCA noted that the rights claim by Benitez pursuant to the extradition treaty were clearly established federal law pursuant to treaty law, and the sentence issued by the California Superior Court contravened these rights, providing a basis for reversal. Where the provisions of the extradition treaty so provide, the surrendering country may expressly condition the extradition of the fugitive. Federal habeas courts may enforce limita-tions on punishment if the potential punishment exceeds the conditional punishment imposed by the country agreeing to extradite the defendant in a particular case. Applying that condition to this case, the USCA held that Benitez may not be sentenced to more than 30 years in prison. It thus reversed the decision of the district court and granted the petition for habeas corpus. Farris, D.W. Nelson (author), and Tallman, Circuit Judges. B. Strickland of San Diego, CA, for the appellant; DAG M. Mulford of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

46) HABEAS CORPUS: Mason v. Yarborough, 04-17330 (9th Cir. May 5, 2006). Mason sought habeas review of his state court convictions arising out of two separate shooting incidents in Stockton, California-one resulting in first-degree murder charges. Mason's contention was that the admission of the fact that a co-participant, Fenton, made a statement to law enforcement, but not the content of that statement, violated his confrontation rights. Exercising jurisdiction under 28 USC Sec. 1291, as constrained by 28 USC Sec. 2254(d)(1), the USCA upheld the district court's denial of habeas relief. It could not say that the California Court of Appeal's applica-tion of Bruton v. USA, 391 US 123 (1968), to the facts at issue was contrary to clearly established Supreme Court law or that it applied the law in an objectively unreasonable way. Concurring, Judge Wallace said he agreed with the majority's conclusion that Mason is not entitled to habeas relief, but wrote separately because he disagreed with much of the majority's analysis. He thought that under the applicable Supreme Court precedents, Fenton was not a "witness against" Mason, and thus Mason's allegations fell entirely out-side of the protections of the Confrontation Clause of the Sixth Amendment. However, unlike the majority, Judge Wallace did not believe that Bruton and Gray v. Maryland, 523 US 185 (1998), were applicable to this appeal. Wallace (concurring), Hawkins (author), and Thomas, Circuit Judges. M. Alger of Clovis, CA, for the appellant; DAG J. Riley of Sacramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

47) HABEAS CORPUS: Perez v. Rosario, 04-15279 (9th Cir. May 22, 2006). At issue here was whether the defendant could validly claim ineffective assistance of counsel where the legal mistake that allegedly denied him effective assistance during plea bargaining was the same mistake that led to his being offered a plea bargain in the first place. The USCA held that he could not. Even with all con-tested facts construed in his favor, the USCA doubted that it was unreasonable, incompetent, or ineffective for prior counsel to rely in the short-term on the agreement of both the prosecution and that judge that the legal situation was more favorable to his client than he has supposed. O'Scannlain (author), Cowen, and Bea, Circuit Judges. K. Russell of San Francisco, CA, for the petitioner; DAG C. Grove of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

1) TELECOMMUNICATIONS LAW: Sprint PCS v. City of La Canada-Flintridge, 05-55014 (9th Cir. May 23, 2006) (unpublished). Hall, O'Scannlain, and Paez, Circuit Judges.

Sprint PCS appealed from a summary judgment granted in favor of the City of La Canada-Flintridge and City officials. At issue was whether a City ordinance, which allows it to deny a telecommunications company a facility permit based solely on aesthetics is preempted by California law. In a separate, concurrently filed opinion (See #6 above), the USCA considered the City's contention that even if the ordinance is preempted under state law, it may still be valid under the federal Telecommunications Act of 1996. In October 2001, the City adopted "An Urgency Ordinance of the City Council of the City of La Canada- Flintridge Adopting a Moratorium on the Issuance of Any Demolition, Grading, Utility, Excavation or Other Permits Relating to Above-Ground Structures Along City Public Rights-of-Way" ("the ordinance") which gives it the authority to deny applications for permits to install telecommunication facilities solely on aesthetic grounds. California Utilities Code Sec. 7901 states: "Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters." The California Supreme Court described the effect of California Civil Code Sec. 536, the predecessor statute to Sec. 7901, on local regulations: "The right and obligation to construct and maintain telephone lines has become a matter of state concern. For this reason, the city cannot today exclude telephone lines from the streets upon the theory that 'it is a municipal affair.'" Pac. Tel. & Tel. Co. v. City & County of San Francisco, 336 P.3d 514, 519 (1959). Similarly, the authority to proscribe regulations under Civil Code Sec. 539 on the basis of 'incommode' was narrow. See Pac. Tel & Tel. Co. v. City & County of San Francisco, 17 Cal. Rptr. 687, 694 (Ct. App. 1961) (interpreting 'incommode' to mean the prevention of "unreasonable obstruction of the public use"). In 1991, the California state legislature adopted Sec. 7901.1(a), which reads in relevant part: "It is the intent of the Legislature, consistent with Sec. 7901, that municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed." Cal. Pub. Util. Code Sec. 7901.1(a) (2005). Article XI, Sec. 7 of the California Constitution states that a "county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." A local law that "duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication" will be preempted by the state law. Therefore, if Utilities Code Secs. 7901 and 7901.1 apply, they may preempt the local ordinance.

Section 7901 gives telephone companies broad authority to construct telephone lines and other fixtures "in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters." By the plain text of the statute, the only substantive restriction on telephone companies is that they may not "incommode the public use" of roads. It is possible that extremely severe aesthetic objections could conceivably incommode the use of the roads. (The Oxford English Dictionary defines incommode' as "to subject to inconvenience or discomfort; to trouble, annoy, molest, embarrass, inconvenience".) An extraordinarily unattractive wireless antenna might, for instance, cause such visual blight that motorists are uncomfortable using the roads. Counsel for the City posited, during oral argument, that an unattractive wireless structure could cause "discomfort." However, the most natural reading of Sec. 7901 grants broad authority to telephone companies to install necessary wires and fixtures, so long as they do not interfere with public use of the roads. The text focuses on the function of the road-its "use," not its enjoyment. Based solely on Sec. 7901, it is unlikely that local authorities could deny permits based on aesthetics without an independent justification rooted in interference with the function of the road. Section 7901, however, has been modified by Sec. 7901.1. Two provisions determine the extent of local regulatory authority under Sec. 7901.1: first, the breadth of "time, place, and manner," and second the meaning of "are accessed." The phrase "time, place, and manner" seems to expand local regulatory authority beyond the "incommode" standard in the earlier Sec. 7901. Despite some legislative history, of which the district court took judicial notice, that portrays Sec. 7901.1 as merely "clarifying" the law, the plain text indicates that this provision expands municipal authority. April 24, 1995, Statement for SB 621 to Cal. Sen. Energy, Utilities and Communications Comm. (S. 1994-85 Reg. Session). Specifically, 'incommode' refers to the disruption of the reasonable use of the road. While the authority to restrict building based on "time, place, and manner" gives cities more authority to determine what constitutes a reasonable use of the road, this language does not seem to enhance greatly the City's regulatory latitude-certainly not the extent necessary to engage in aesthetic regulation. A regulation of appearance could conceivably be considered a regulation of the "manner" in which telephone companies use public roads. However, this seems to stretch the word "manner," which, coupled with "time" and "place," cannot be read so broadly. More importantly, the City's reading is illogical when coupled with the "are accessed" language that follows. Section 7901.1 only gives cities the authority to regulate the manner in which roads "are accessed," not the authority to regulate the manner in which telephone companies affect the road's appearance. The better reading of "time, place, and manner" does not expand the City's authority far enough to include aesthetic regulation. In addition, the "are accessed" language restricts local authority: cities may regulate only the way in which roads "are accessed," the way they appear. As with Sec. 7901, the regulatory power is functional, and does not extend to aesthetics. In sum, under Utilities Code Secs. 7901 and 7901.1, local regulators retain no authority to deny permits based on aesthetics. The City, however, cited cases holding that aesthetics can properly be considered substantial evidence. Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Twp., 181 F.3d 403, 409 (3d Cir. 1999) (noting that aesthetic considerations, as opposed to alleged health effects, are proper evidence under 47 USC Sec. 332(c)(7)(B)(iii)); Aegerter v. City of Delafield, 174 F.3d 886, 891 (7th Cir. 1999) ("Nothing in the Telecommunications Act forbids local authorities from applying general and nondiscriminatory standards derived from their zoning codes, and … aesthetic harmony is a prominent goal underlying almost every such code."). However, whether aesthetic evidence can be used to support a permit denial in the abstract was not at issue-the issue was simply whether a city can consider such evidence consistent with California law. Under Utilities Code Secs. 7901 and 7901.1, they cannot. The USCA thus concluded that the ordinance, which allows the City to deny permits based solely on aesthetics, is preempted by California Public Utilities Code. Sec. 7901 and 7901.1.

2) COPYRIGHTS: Hendrickson v. Amazon.com, Inc., 04-57198 (9th Cir. May 22, 2006) (unpublished). B. Fletcher, Trott, and Callahan, Circuit Judges.

The USCA vacated and remanded orders granting attorneys' fees to CDDVDGAMETRADER ("Trader") and Kevin Naser in this copyright action. The district court failed to provide a "concise but clear explanation of its reasons for the fee award." Hensley v. Eckerhart, 461 US 424, 437 (1983). Defendants Trader and Naser prevailed, but it was not evident that their role in the litigation fur-thered the underlying purposes of the Copyright Act. Fantasy, Inv. v. Fogerty, 94 F.3d 553, 555 (9th Cir. 1996). Neither Trader nor Naser raised the winning defense that the assignment of the original copyright was not renewable by the plaintiff, Hendrickson. The USCA said it was not persuaded that Hendrickson's action was frivolous or objectively unreasonable, or that he or others would be deterred from baseless litigation by an attorneys' fees award in the unusual circumstances of this case. The USCA thus vacated the attorneys' fees awards in favor of Trader and Naser. The USCA instructed that on remand the district court should ascertain whether Trader and Naser furthered the purposes of the Copyright Act during the course of this litigation and whether their innocent infringer defenses contributed to the ultimate success achieved by the defendant Amazon.com. As for Trader, the USCA instructed the district court to consider awarding reasonable attorneys' fees on the ground that Hendrickson allowed Trader's offer of judgment to lapse and subsequently recovered nothing.

3) BANKRUPTCY / STUDENT LOANS: In re Mendoza, 04-16384 (9th Cir. May 18, 2006) (unpublished). Reinhardt, Paez, and Tallman, Circuit Judges.

Mendoza appealed bankruptcy court's judgment of June 11, 2003 disallowing the discharge of his student loan debt. The Bankruptcy Appellate Panel ("BAP") affirmed, agreeing with the bankruptcy court that Mendoza had not presented sufficient evidence of "additional circumstances" to indicate that his state of affairs could not improve.

The USCA reversed. To be eligible for discharge of a student loan, the debtor must demonstrate that "excepting such debt from discharge … will impose an undue hardship on the debtor and the debtor's dependents." 11 USC Sec. 523(a)(8). Undue hardship is shown by a debtor who: 1) cannot maintain, based on current income and expenses, a minimal standard of living for himself and his dependents if forced to repay the loans; 2) shows that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and 3) has made a good faith effort to repay the loans. In re Pena, 155 F.3d 1108, 1111 (9th Cir. 1998) (citing In re Brunner, 831 F.2d 395, 396 (2nd Cir. 1987)). "The determinative question is whether the debtor's inability to pay will … persist throughout a substantial portion of the loan's repayment period." In re Nys, No. 04-16007, 2006 WL 1084349, at *5 (9th Cir. Apr. 26, 2006). Mendoza was diagnosed with Acquired Attention Deficit Disorder ("ADD") in 1998. He was unable to complete medical school as a result of his condition. The total balance on his student loan debt as of October 2001 was $127,567 with monthly payments due of $1,028. He works in real estate devoting 40 to 50 hours a week contacting people about possible home loan refinancing. The bankruptcy court found that he earned approximately $1,600 a month. His monthly expenses, largely from medical bills, exceeded $1,650. The bankruptcy court thus found that Mendoza could not maintain a minimum standard of living for himself if forced to repay his student loans. But, the bankruptcy court also found that the evidence at trial did not establish that Mendoza's current inability to pay was likely to persist for a significant portion of the repayment period. It concluded that Mendoza had failed to establish that he would suffer "undue hardship" if his student loan debt was not discharged. A factual finding is 'clearly erroneous' when a reviewing court "is left with the definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 US 234, 242 (2001) (quoting USA v. U.S. Gypsum Co., 333 US 364, 395 (1948)). Here, the record clearly demonstrated that Men-doza's ADD is a substantial barrier that prevents him from improving his state of affairs. The bankruptcy court's contrary findings were clearly erroneous. Mendoza's ADD condition is severe. His treating physician, Dr. Fisher, testified that Mendoza suffers from tangential thinking, that he is easily distracted and forgetful, and that his ADD is among the most severe 5% of the doctor's patients diagnosed with the disorder. Fisher further testified that Mendoza's condition has gradually deteriorated to the point that he may require a structured environment in the future. The record demonstrates that Mendoza's medical condition has had a deleterious impact on his life. Despite his every effort to succeed in real estate, Mendoza earned $11,329 in 1998, $10,065 in 1999, $13,360 in 2000, $17,002 in 2001, and $13,025 in 2002. He also has had intermittent periods of homelessness, including one month during which he lived in his car. The bankruptcy court's finding that Mendoza is "capable of earning funds in the real estate business" was contradicted by evi-dence that Mendoza has lived at or below the poverty line since 1998.

Evidence in the record also demonstrates that, due to Mendoza's medical disability, his current financial state of affairs is likely to persist throughout a substantial portion of the repayment period. Mendoza has no medical insurance and he is unable to afford the cost of his prescription medication or even basic dental care. Although Mendoza is well educated, his educational successes preceded the onset of his disability, and Fisher testified that his ADD condition now interferes with his ability to think, to concentrate, and to work effectively. Mendoza's efforts to find alternate employment have also met with failure. He was fired from a job as a forklift operator after causing two accidents in a three week span. Now in his fifties and suffering from a severe medical disability, there is nothing in the record to suggest that his ability to earn greater income in the future will improve during the repayment period.

The bankruptcy court found that it was entirely possible that Mendoza's condition could be improved if he were to regularly take medication. However, in order for Mendoza to consistently take medication for ADD, he must regularly see a doctor to obtain a monthly prescription, and he must follow the prescription regime regularly. The bankruptcy court relied on testimony from Fisher indicating that Mendoza was doing neither and therefor was inhibiting his course of treatment for ADD. The USCA found that the bankruptcy court's finding was not supported by Fisher's testimony. As Fisher explained, Mendoza's severe ADD condition-often exhibited as extreme forgetfulness-likely contributed to his inability to take his medication and make doctor's visits with requisite regularity. The court's findings also overlooked evidence that Mendoza was financially incapable of visiting his physician on a monthly basis to continue renewing his prescription. A factual finding is clearly erroneous if it is without adequate support in the evidentiary record. The bankruptcy court's conclusion that Mendoza's circumstances could improve by following a regular course of treatment for ADD had no support in the record. The bankruptcy court discounted Fisher's testimony because the doctor "conceded that his opinion regarding Mendoza's employability would change if he had known that Mendoza earned money from the real estate business." Fisher's testimony was taken out of context. Fisher testified that his opinion as to Mendoza's employability depended upon how well he was functioning at that job and the amount of money he generated. Fisher explained that somebody who had gotten a real estate license or who is able to work is not necessarily employable if "the amount of money they generate is practically nil." Here, the evidence showed that Mendoza did not function well and did not earn sufficient income to sustain himself over a number of years. Fisher's testimony, thus, did not undercut his own opinion. Finally, the bankruptcy court found that Mendoza's own testimony indicated that his circumstances might improve because Mendoza admitted that "he was not trying very hard." The bankruptcy court referenced the 1999-2000 period during which Mendoza testified to spending a significant amount of time oil paining rather than pursuing employment options. The record showed, however, that Mendoza has since worked 40 to 50 hours per week seeking fees on home refinancing for minimal pay, and has sought other employment without success. Nothing in the record supported the bankruptcy court's statement that if Mendoza were to "try harder" his situation might improve. On the contrary, the evidence overwhelmingly showed that he has tried all that he can, and that the circumstance of his medical disability prevents his financial situation from improving.

The USCA concluded that on the basis of the record, the bankruptcy court's factual determination that Mendoza's inability to pay his student loans will not persist throughout a substantial portion of the repayment period was clearly erroneous. It noted that the bankruptcy court did not proceed to the third step of the Pena inquiry. The USCA thus reversed and remanded with instructions that the bankruptcy court determine on the basis of the existing record whether Mendoza had made a good faith effort to repay his student loans, and to grant relief if it so finds.

Dissenting, Judge Tallman thought the bankruptcy court's factual findings were plausible on the record presented. Fisher admitted on cross-examination that Mendoza may not have been taking a therapeutic dose of his medication during the time of his ex-amination and that this would affect his condition. The bankruptcy court determined that this admission severely undercut his testimony. Because there was nothing in the record to leave the court with a definite and firm conviction that the bankrptcy court was clearly erroneous, these factual findings should be upheld. However, Judge Tallman said he would remand the case to the bankruptcy court to allow it to readdress Mendoza's claim in light of the Circuit's companion decision in In re Nys. The issue is not whether Mendoza's situation is "hopeless" but whether Mendoza has shown "additional circumstances" that indicate his current inability to pay is likely to persist for a substantial portion of his loans' repayment period.

4) BANKRUPTCY: In re Captain Blythers, Inc., 04-16519 (9th Cir. May 24, 2006) (unpublished). Thompson, Berzon, and Callahan, Circuit Judges.

After Captain Blythers, Inc. ("CBI") defaulted on its confirmed Chapter 11 reorganization plan, the bankruptcy court converted the Chapter 11 proceeding to a Chapter 7 proceeding. The trustee then sought a declaration from the bankruptcy court that an adversary proceeding commenced by CBI against its landlord belong to the Chapter 7 bankruptcy estate. The bankruptcy court granted summary judgment in favor of the trustee and the Bankruptcy Appellate Panel upheld that decision. The USCA affirmed. CBI argued that the bankruptcy court's conversion of the case from Chapter 11 to Chapter 7 did not vest the adversary proceeding in the Chapter 7 estate. Maintaining that the adversary proceeding belongs to the Chapter 7 estate, the trustee cited Pioneer Liquidating Corp. v. U.S. Trustee, 264 F.3d 803, 807-08 (9th Cir. 2001), that a bankruptcy court must review a confirmed reorganization plan to determine whether any assets from the Chapter 11 estate have carried over to the Chapter 7 estate. The trustee asserts that the plan at issue provided that any recovery from the adversary proceeding would be reserved for and paid to CBI's creditors. Where, as here, the confirmed plan contains no explicit provision regarding the consequences of a conversion to Chapter 7, the USCA said it must decide whether certain assets have been incorporated in the Chapter 7 estate based on the plan's inclusion of two components: 1) a provision reserving distribution of future proceeds to creditors and 2) a provision giving the bankruptcy court broad powers to oversee the implementation of the plan. Id. at 807 The plan explicitly reserved for the creditors any future benefits from the adversary proceeding, stating that "any claims in favor of the Debtor … shall be fully reserved and may be enforced by the reorganized Debtor for the benefit of creditors in order of priority following confirmation of the Plan." The plan also provides that "the bankruptcy court shall retain jurisdiction to construe and enforce the Plan, resolve claims and other controversies, and enter appropriate orders concerning the bankruptcy case." Guided by Pioneer, the USCA concluded that the language and purpose of CBI's Chapter 11 reorganization plan provide these two necessary components, thus making the adversary proceeding a part of the Chapter 7 estate. Accordingly, the BAP correctly upheld the bankruptcy court's decision that the adversary proceeding is the rightful property of the Chapter 7 estate.

5) BANKRUPTCY: In re Abu-Assal, 04-56048 (9th Cir. May 25, 2006) (unpublished). Bright, Pregerson, and McKeown, Circuit Judges. Nadia and Lotfy Abu-Assal appealed an order of the Bankruptcy Appellate Panel, denying their motion to dismiss the fraudulent transfer and conspiracy claims of Yacoub Nashed. They argued that Nashed's claims were time-barred. The USCA affirmed. The fraudulent transfer claim against Nadia was not barred by the statute of limitations. The limitations period was tolled until Nadia lost her appeal and the debt collection action became final. Because the judgment became final in November 1998, and Nashed filed his fraudulent transfer claim against her in April 2002, it was timely. The conspiracy claim against Nadia was not barred by the statute of limitations either. The same limitations period applies to both the conspiracy action and the underlying tort, and so Nashed's conspiracy claim against Nadia was timely filed. Finally, to the extent that the complaint extended to conspiracy claims against Lofty, those claims were filed within the statute of limitations. Nashed's complaint alleged that Lotfy orchestrated numerous fraudulent transfers as late as 2002. Under any potentially applicable limitations period, Nashed's claim against Lotfy was timely.

6) BANKRUPTCY: In re Marinkovic, 04-15738 (9th Cir. May 24, 2006) (unpublished). B. Fletcher, Trott, and Callahan, Circuit Judges. Marin appealed pro se from the Bankruptcy Appellate Panel's order dismissing as untimely his appeal from the bankruptcy court's order denying his motion for relief from the automatic stay in his father's Chapter 11 bankruptcy proceedings. The USCA affirmed. Fed. R. Bankr. P. 8002 requires that a notice of appeal be filed with the BAP within 10 days of the bankruptcy court's entry of judgment. Marin filed his notice of appeal 28 days after the bankruptcy court order. Because the "provisions of Bankruptcy Rule 8002 are jurisdictional, the untimely filing of a notice of appeal deprives the appellate court of jurisdiction to review the bankruptcy court's order." In re Saunders, 31 F.3d 767, 767 (9th Cir. 1994) (per curiam). The USCA did not consider any argument regarding the bankruptcy court's decision denying Marin's request for an extension of time to file a notice of appeal, because Marin did not file a notice of appeal from that decision. Finally, the USCA denied all pending motions.

7) BANKRUPTCY: In re Kandilian, 04-56372 (9th Cir. May 17, 2006) (unpublished). Hawkins, Graber, and Paez, Circuit Judges. Duke Salisbury, Chapter 11 Trustee of Compton Enterprises, Inc., appealed the bankruptcy court's judgment dismissing his adversary proceeding against Kandilian with prejudice. The USCA affirmed for the reasons stated in the district court's Amended Order Affirming Order of Bankruptcy Court, entered July 26, 2004. (The USCA did not restate those reasons.)

8) TAXATION: Chryson v. Estoll, 05-35907 (9th Cir. May 22, 2006) (unpublished). B. Fletcher, Trott, and Callahan, Circuit Judges. Chryson appealed pro se from the district court's judgment dismissing for lack of subject matter jurisdiction his action challenging the IRS's determination upholding the collection action of unpaid income taxes for tax year 1999. The USCA affirmed. The district court properly dismissed Chryson's action for lack of subject matter jurisdiction because the Tax Court has exclusive jurisdiction over an ac-tion seeking juridical review of a tax levy determination involving income taxes. See 26 USC Sec. 6330(d)(1) (providing the Tax Court with jurisdiction over an appeal from a tax levy determination when it has jurisdiction over the underlying tax liability); 26 CFR Sec. 601.102(b)(1)(I) (providing the Tax Court with jurisdiction over assessed but unpaid income taxes).

9) TAXATION: Bhattacharyya v. IRC, 05-35634 (9th Cir. May 22, 2006) (unpublished). B. Fletcher, Trott, and Callahan, Circuit Judges. The Bhattacharyya appealed pro se from the district court's order dismissing for lack of subject matter jurisdiction their action seeking a refund for overpayment of federal income taxes and damages for alleged wrongful acts by the IRS. The USCA affirmed. The district court properly dismissed the Bhattacharyyas' action claiming a refund for overpayment of taxes because it was filed more than three years after the taxes were withheld from their wages. 26 USC Sec. 6511(b)(2)(A) (requiring a claim for refund of overpaid taxes to be filed within three years of the time the taxes were paid); 26 USC Sec. 6513(b)(1) (stating that taxes deducted and withheld are deemed paid on April 15 following the close of the tax year); Zeier v. IRS, 80 F.3d 1360, 1364 (9th Cir. 1996) (stating that Sec. 6511(b)(2)(A) is jurisdictional).

10) TAXATION: Poole v. IRS, 05-16874 (9th Cir. May 22, 2006) (unpublished). B. Fletcher, Trott, and Callahan, Circuit Judges. Poole appealed pro se from the district court judgment dismissing her action seeking declaratory and injunctive relief against the government for assessing federal income taxes. The USCA affirmed the dismissal of Poole's action alleging, inter alia, that compensation for labor is not income and that payment of taxes is voluntary. See 26 USC Sec. 61(a) (defining gross income as income from whatever source derived); Wilcox v. CIR, 848 F.2d 1007, 1008 (9th Cir. 1988) (holding that payment of federal income tax is not voluntary). The district court properly concluded that Poole's requests for declaratory and injunctive relief were barred by statute. See 28 USC Sec. 2201(a) (barring federal courts from granting declaratory relief with respect to federal taxes); 26 USC Sec. 7421(a) (barring suits to restrain the collection of federal taxes). The USCA granted the government request for sanctions in the amount of $6,000, because the arguments raised in Poole's appeal were frivolous.

11) TAXATION: George v. IRS, 05-16779 (9th Cir. May 22, 2006) (unpublished). B. Fletcher, Trott, and Callahan, Circuit Judges. George appealed pro se from the district court's order denying his motion for a preliminary injunction against the IRS, the California Franchise Tax Board, and various state and federal defendants in his action challenging the collection of state and federal taxes. The USCA affirmed. The district court did not abuse its discretion by denying George's motion for a preliminary injunction against the state defendants because it was barred by the Tax Injunction Act. 28 USC Sec. 1341 ("The district court shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State."); Patel v. City of San Bernardino, 310 F.3d 1138, 1140 (9th Cir. 2002) (prohibiting declaratory and injunctive relief in federal court where the taxpayer has adequate state court remedy). The district court also did not abuse its discretion by denying George's motion for a preliminary injunction against the federal defendants as barred by the Anti-Injunction Act. 26 USC Sec. 7421(a) (prohibiting injunctions against any and all acts necessary or incidental to the collection of taxes); Sokolow v. USA, 169 F.3d 663, 664-65 (9th Cir. 1999).

12) TAXATION / RULE 155 PROCEEDINGS: Hinterleitner v. CIR, 04-73683 (9th Cir. May 17, 2006) (unpublished). Lay, Kleinfeld, and Silverman, Circuit Judges.

Hinterleitner appealed the tax court's decision under Tax Court Rule 155 assessing the amount of interest to be abated. The USCA affirmed. Rule 155 provides a mechanism for the court to withhold entry of its decision for the purpose of permitting the parties to submit mathematical computations that are consistent with the court's opinion in order to determine the amount of deficiency, liability, or overpayment. Rule 155 proceedings are limited to consideration of the correct computation of the deficiency, liability, or over-payment resulting from the tax court's findings and conclusions. Hinterleitner argued that the tax court failed to adequately explain the reasoning behind its Rule 155 computation of the interest due for the 1995, 1996, and 1997 taxable years. Rule 155 proceedings, however, are limited to "purely mathematically generated computational items." Chimblo v. CIR, 177 F.3d 119, 127 (2d Cir. 1999). This is not a process that requires explanation of the methodology used to reach an approximate and subjective determination. The tax court's or-der was supported by the computer program calculations submitted by the parties.

13) SECURITIES Dar, SA v. JLA Nordstjaerna, 04-35361 (9th Cir. May 24, 2006) (unpublished). Reinhardt, McKeown, and Clifton, Circuit Judges.

David and Kim Johnson appealed pro se the district court's judgment in favor of Dar SA in its action alleging securities fraud under Washington law. Dar SA cross appealed for attorneys' fees for defending this appeal. The USCA affirmed. The district court did not err as a matter of law in applying Washington's securities law, because it was not required to find that David engaged in coercion or pressure in order to find him liable under the statute. Nor was it clear error for the district court to conclude as a matter of fact that David was liable under the statute, for the record was replete with evidence of his active involvement in this fictional investment scheme, including evidence of a negotiated commission for his participation. The Johnsons' evidentiary objection to the admission of the Washington Department of Financial Institutions consent order was not raised in the district court and thus the argument was waived. Fed. R. Evid. 103(a)(1). Even if the Johnsons had not waived the argument, the district court acted within its discretion under Fed. R. Evid. 803(8)(c). Moreover, the Johnsons' factual claim that the court misinterpreted the order was without support in the record. The general equitable defense the Johnsons raised on appeal, based upon the unclean hands a person named "Duncan" vis-à-vis his investors, was unavailable under Washington securities law. The district court's statement in the oral opinion pertaining to Duncan's culpability did not undermine the court's holding on David's liability. Finally, the Johnsons' claims of inadequate representations failed because they were not entitled to be provided counsel in defending this civil case. Moreover, they were in fact represented by counsel throughout the proceedings prior to trial. Having prevailed on appeal, Dar SA, the USCA concluded that it entitled to attorney's fees incurred in defending the appeal under RCW 21.20.430. The USCA remanded to the district court for calculation of fee.

© 2000 - 2006.   9th Circuit Online. All rights reserved.