1) BANKRUPTCY: In re Pomona Valley Medical Group, Inc., 04-56334 (9th Cir. Jan. 17, 2007). Agarwal, a primary care physician and cardiologist, entered into a provider agreement ("the Agreement") with the Pomona Valley Medical Group ("ProMed"). After ProMed voluntarily filed for bankruptcy under Chapter 11, it began routinely denying initial authorization for cardiology tests Agarwal had requested for his patients. After Agarwal protested, ProMed eventually authorized most of the procedures he requested. In April 2001, ProMed warned Agarwal that if he disagreed with or continued to protest ProMed's authorization policies he would be terminated. A month later, the company sent Agarwal written notice that it would not be retaining his services after the expiration of the second year of the Agreement. Although the Agreement's non-renewal provision did not require justification, the notice stated that Agarwal's frequent ordering of "unnecessary tests for patients simply to increase [his] compensation at ProMed's expense" justified termination for care. Following the expiration of the Agreement, Agarwal commenced adversary proceedings in bankruptcy court, al-leging various California statutory and common law causes of action. Thereafter, ProMed moved to "reject its executory contract with Agarwal and to dismiss his complaint for failure to state a claim. The bankruptcy court granted both motions but permitted Agarwal to file an amended complaint. Instead, Agarwal appealed to the district court, which affirmed the bankruptcy court's decision. Agarwal appealed the district court's decision affirming the bankruptcy court's order rejecting his contract with ProMed and its subsequent order dismissing his complaint in an adversary proceeding against ProMed. The USCA affirmed in part and reversed in part. First, it held that the bankruptcy court did not err in approving ProMed's rejection of its executory contract with Agarwal. Under 11 USC Sec. 365(a), a Chapter 11 debtor-in-possession, "subject to the court's approval, may … reject any executory contract." Second, it held that in evaluating the rejection decision, the bankruptcy court should presume that the debtor-in-possession acted prudently, on an informed basis, in good faith, and in the honest belief that the action taken was in the best interests of the bankruptcy estate. ProMed justified its business decision, explaining, inter alia, that its Chapter 11 reorganization strategy included efforts to reduce costs by limiting the number of physicians in its network and severing relationships with physicians, like Agarwal, who created financial burdens by ordering treatment and tests ProMed considered unnecessary. Fourth, the USCA could discern no reason that ProMed's state reorganization strategy was so unreasonable as to indicate that it acted in bad faith or on whim or caprice in rejecting the Agreement. Nor had Agarwal offered any. On the record on appeal, the USCA did not have the "definite and firm conviction that a mistake has been committed by the bankruptcy judge." In re Rains, 428 F.3d 893, 900. Thus, rejection of the Agreement was proper. Judge Rawlinson dissented from that part of the majority's opinion holding that Pro Med's valid rejection of the Agreement between ProMed and Agarwal constituted a breach of contract. D.W. Nelson (author), Rawlinson (dissenting in part), and Bea, Circuit Judges. H. Fenton of Los Angeles, CA, for the appellant; R. Sherman of Newport Beach, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) COPYRIGHTS Kahle v. Gonzales, 04-17434 (9th Cir. Jan. 22, 2007). Plaintiffs appealed the district court's dismissal of their complaint. They maintained that the change from an "opt-in" to an "opt-out" copyright system altered a traditional contour of copyright and required First Amendment review under Eldred v. Ashcroft, 537 US 186 (2003). They also argued that the current copyright term violates the Copyright Clause's "limited Times" prescription. Arguments similar to the plaintiffs' were presented to the Supreme Court in Eldred, which affirmed the constitutionality of the Copyright Term Extension Act against those attacks. As the Supreme Court had already effectively addressed and denied the plaintiffs' arguments, the USCA affirmed. Schroeder, Farris (author), and Rawlinson, Circuit Judges. J. Granick of Stanford, CA, for the plaintiff-appellants; J. Koppel of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) TRADEMARKS Horphag Research, Ltd. v. Garcia, 04-55373 (9th Cir. Jan. 9, 2007). At issue here was Garcia's use of Horphag Research Ltd's trademark "Pycnogenol." In an earlier appeal, the USCA affirmed the district court's grant of judgment as a matter of law on Horphag's trademark infringement claims. It also vacated the district court's order on Horphag's trademark dilution claim and asked the district court to reconsider its decision in light of Moseley v. V Secret Catalogue, Inc., 537 US 418 (2003). On remand, the district court granted Horphag's motion for summary judgment on its trademark dilution claim and reinstated its original attorneys' fees award. Garcia appealed pro se and challenged the district court's grant of summary judgment on Horphag's trademark dilution claim and the corresponding attorneys' fees award. The USCA affirmed. Contrary to Garcia's contention, consumer surveys and the like are not necessary in a case like this, where the junior and senior mark are identical and where there is circumstantial evidence that blurring actually resulted. Id. at 434. Garcia's use of the mark "Pycnogenol" clearly weakened the unique connection between Horphag's mark and Horphag's product. Pregerson (author) and Thomas, Circuit Judges, and Oberdorfer, District Judge. L. Garcia pro se; M. Gittes of New York, NY, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) TRADEMARKS: CreAgri, Inc. v. USANA Health Sciences, Inc., 05-15305 (9th Cir. Jan. 16, 2007). In an action involving competing products claiming trademark priority, the district court determined that, in order to acquire priority, "use in commerce" means lawful use-a use compliant with federal labeling requirements. The USCA agreed. Because CreAgri's admitted violation of 21 CFR Sec. 101.9(g)(4) could not be deemed collateral to the use of the Olivenol mark under Satinine Societa in Nome Collettivo v. P.A.B. Produits, 209 U.S.P.Q. 958 (Kera, concurring), excused under 21 CFR Sec. 101.36(f)(2), or overlooked as immaterial under General Mills, Inc. v. Health Valley Foods, 24 U.S.P.Q. 2d 1270, the "Olivenol" mark was not lawfully used in commerce prior to Olivol's priority date. As such, USANA's mark has priority over CreAgri's, and the trademark infringement action by CreAgri against USANA could not stand. The district court correctly granted summary judgment in favor of USANA on CreAgri's trademark infringement claims. Noonan, Hawkins (author), and Thomas, Circuit Judges. R. Pearson of Lafayette, CA, for the plaintiff; J. Kinnear of San Francisco, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) .

5) ENVIRONMENTAL LAW: Northwest Environmental Defense Center v. BPA, 06-70430 (9th Cir. Jan. 24, 2007). Salmon and steelhead have been threatened by the construction of dams to capture water power on the Columbia River. As the dams were con-structed, the number of salmon and steelhead migrating up the river to reproduce in the headwaters has dropped. At one time, an esti-mated 10 to 16 million adult fish returned to the Columbia River basin each year. Today, only about one million fish return for spawning. Spawning is essential to the species' survival in the Columbia River system. In 1982, the Northwest Power and Conservation Council, an interstate compact agency, called for the creation of what would become the Fish Passage Center to provide technical assistance and information to fish and wildlife agencies, Indian tribes and the general public on matters relating to juvenile and adult salmon and steelhead passage through the Columbia River and its tributaries. The Bonneville Power Administration ("BPA") funded the Center and has used Center information in consultation with fisheries and Indian tribes and in conjunction with its control over water flow past the dams, to help improve the survival rates of fish migrating up and down the river. However, the BPA decided to transfer the functions performed by the Center to Battelle Pacific Northwest Laboratory and the Pacific States Marine Fisheries Commission. Environmental groups and Indian tribes petitioned for review of the BIA's action transferring the functions of the Center and in creating a new model Fish Passage Center. The USCA granted the petition. The only explanation shown in BPA's records for why it transferred the Center's functions was that it was responding to congressional committee report language that the BPA believed created a binding obligation on it. But that was not a cogent explanation as the BPA acted contrary to law in ruling that congressional committee report language carried the force of law and bound it to transfer the functions. Because the BPA had not show a rational basis for its decision, the USCA granted the petition for review. Hawkins, Silverman, and Gould (author), Circuit Judges. S. Parent of Portland, OR, and T. Weaver of Yakima, WA, for the petitioners; AUSA D. Adler of Portland, OR, for the respondent; J. Shurts of Portland, OR, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) ENVIRONMENTAL LAW: Safe Air for Everyone v. EPA, 05-75269 (9th Cir. Jan. 30, 2007). Here, the USCA was presented with a preexisting State Implementation Plan ("SIP") containing language prohibiting open burning generally and with no exception for farmers to burn the residue left in their fields after harvesting crops. Safe Air for Everyone ("SAFE") challenged the EPA's decision to approve an amendment to the SIP authorizing such burning. The USCA held that, as it presently stands, the EPA's approval is legally unsustainable. The EPA grounded its approval of the amendment on the premise that the preexisting SIP did not ban field burning, so that the amendment only clarified what was already the case. The USCA disagreed. Because its review of an administrative agency's decision begins and ends with the reasoning that the agency relied upon in making its decision, the USCA granted the petition for review and remanded for the EPA's reconsideration of SAFE's objections under a correct understanding of the preexisting SIP. Alarcon, Rymer, and Berzon (author), Circuit Judges. D. Baron of Washington, DC, for the petitioners; P. Cirino of Washington, DC, for the respondents; L. Kronberg of Boise, ID, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) LABOR LAW / TORTS: Ward v. Circus Circus Casinos, Inc., 04-17098 (9th Cir. Jan. 10, 2007). At issue here was whether federal labor law preempted the state tort claims of union members. Six employees claimed that their employer committed torts against them. The district court granted summary judgment in favor of the employer, holding that the employees' claims were preempted by Sec. 301 of the Labor Management Relations Act, the employees' collective bargaining agreement, and the Nevada Industrial Insurance Act. It also denied the employees' motion to amend their complaint and granted costs and attorneys' fees to the employer. The USCA reversed the summary judgment, affirmed the denial of the motion to amend, and remanded with instructions to remand to state court. Beezer (author), O'Scannlain, and Trott, Circuit Judges. R. Perez of Las Vegas, NV, for the plaintiffs-appellants; L. Sawyer of Las Vegas, NV, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

8) LABOR LAW: National Association of Agriculture Employees v. Federal Labor Relations Authority, 06-71671 (9th Cir. Jan. 10, 2007). At issue here was whether a determination by the Federal Labor Relations Authority ("FLRA") that certain government employees are professionals is an order involving an appropriate collective bargaining unit determination. If it is, the USCA said it would lack jurisdiction to review it under the Federal Service Labor-Management Relations Statute ("FSLMRS"), 5 USC Secs. 7101, et seq. The National Association of Agriculture Employees ("NAAE") is a union that until recently represented federal agricultural inspectors stationed at the nation's borders and ports. NAAE challenged the FLRA's finding that the inspectors are not "professional employees" under the FSLMRS and consequently do not have the right to vote themselves into a professionals-only collective bargaining unit. The USCA held that the FLRA's professional status finding in this case was a component of an appropriate unit determination. Since Sec. 7123(a)(2) precludes review of such determinations, the USCA dismissed for lack of jurisdiction. Gibson, Fisher (author), and Callahan, Circuit Judges. K. Mann of Washington, DC, for the petitioner; W. Tobey of Washington, DC, for the respondent; P. Keisler of Washington, DC, for the intervenor Customs and Border Protection. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) LABOR LAW: Delay v. Gordon, 05-36108 (9th Cir. Jan. 11, 2007). The beneficiaries of Delay's estate appealed an order of the district court denying modification under Fed. R. Civ. Proc. 60(b)(6) of a Jan. 8, 1985 judgment on a breach of employment contract claim against the now-abolished Pacific Northwest River Basins Commission. Delay asserted that, under a change in the decisional law, the United States was liable for effecting an unconstitutional taking of Delay's cause of action when it abolished and defunded the Commission in 1981, so that the judgment against the Commission should be modified to be a judgment against the United States for which the United States Judgment Fund was liable. As stated by the district court, "Pursuant to Rule 60(b)(6), plaintiff seeks an order modifying the District Court Judgment to make the United States liable on the Judgment at issue." The district court denied the Motion to Modify Judgment Pursuant to Rule 60(b)(6), the Delay beneficiaries appealed, the USCA had jurisdiction under 28 USC Sec. 1291, and affirmed. Rule 60(b)(6) could not properly be applied here because the appellants ask the district court to nullify the relief granted in the original correct judgment on a breach of contract claim and to give the Delay beneficiaries a new judgment on a takings theory against a separate defendant that was not bound by the prior judgment. Silverman and Gould (author), Circuit Judges, and Rhoades, District Judge. J. Bennett of Cannon Beach, OR, for the plaintiff-appellant; I. Lidsky of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) ERISA: Trustees of the Southern California Bakery Drivers Security Fund v. Middleton, 04-56982 (9th Cir. Jan. 18, 2007). The plaintiffs appealed the district court's summary judgment in favor of Middleton, South Bay Teamsters ("South Bay"), and Employers Health and Welfare and Related Benefits Trust Fund on claims of breach of fiduciary duty under ERISA and breach of collective bargaining agreements under the Labor Management Relations Act ("LMRA"). They also appealed the district court's award of attorneys' fees to South Bay. The case involved a dispute between the trustees of two employee benefit plans over an agreement in which one plan would provide benefits to participants of the other plan. The Bakery Drivers maintained that over the course of the agreement, plan participants paid a total of $2,753,642 to South Bay, while the total amount of claims paid to plan participants was only $770,768.19 and administrative expenses totaled $220,304.92. Bakery Drivers sent South Bay a letter requesting the $1,762,568.89 difference between the amounts pain-in less benefits received and administrative expenses. South Bay refused the request. Bakery Drivers then filed a complaint in district court alleging that South Bay had breached the fiduciary duties it owed under ERISA by failing to use surplus funds for the exclusive benefit of plan participants. It also claimed that South Bay breached the collective bargaining agreements by failing to use the contributions for the purposes enumerated in the collective bargaining agreements in violation of the LMRA. The district court granted summary judgment for South Bay. As to the breach of the ERISA fiduciary duty claim, it found that South Bay qualified under ERISA's insurer exemption. It also reasoned that the parties did not explicitly provide that paid-in premiums not used to pay benefits should be refunded to plan participants and the parties' agreement could not be read to require such a refund. Finally the district court granted South Bay's motion for attorneys' fees. The USCA held that South Bay did not qualify as an ERISA exempt "insurer" under 29 USC Sec. 1101(b)(2) and that it breached its ERISA fiduciary duty to the participants in the Bakery Drivers Security Fund. It reversed the district court's order granting summary judgment on Bakery Drivers' breach of the ERISA fiduciary duty claim. However, counsel suggested that certain remedies other than the return of the surplus funds may be appropriate. The USCA thus remanded to the district court so that it could determine the appropriate remedy. The USCA also affirmed the grant of summary judgment as to Bakery Drivers' breach of the collective bargaining agreements claim. As the district court found, the parties' Trust-to-Trust agreements did not contain any provision incorporating Bakery Drivers' collective bargaining agreements. South Bay was not bound by Bakery Drivers' collective bargaining agreements merely because it agreed to provide benefits to Bakery Drivers' plan participants, and consequently, South Bay had no duty under those agreement. Finally, the USCA reversed the district court's award of attorneys' fees to South Bay under 29 USC Sec. 1132(g)(1). The district court found that Bakery Drivers acted in bad faith and in pursuit of a meritless position and awarded attorneys' fees on that basis. However, in light of its reversal of sum-mary judgment as to the ERISA fiduciary duty claim, the USCA found that the district court's determination was clearly erroneous. Reinhardt and Bybee (author), Circuit Judges, and Burns, District Judges. J. Sackman of Los Angeles, CA, for the appellants; M. Vanic of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

11) QUIET TITLE ACTIONS: Henrichs v. Valley View Development, 04-56470 (9th Cir. Jan. 16, 2007). This appeal arose from a quiet title action in federal district court after California courts ruled against Henrichs on all issues. At issue on appeal was whether the district court had subject matter jurisdiction over Henrichs' claims arising from the state court judgment rendered against him. After a series of real estate transactions among Henrichs, Valley View Development, Marc Gelman, Michael Blaha, and Granada Plaza Asso-ciates turned sour, Valley View Development filed a claim to quiet title in Los Angeles County Superior Court. Henrichs cross-claimed, alleging breach of contract and indemnification claims. The Superior Court, the California Court of Appeals, and the California Supreme Court all held in favor of Valley View Development and denied Henrichs relief on all claims. Henrichs then filed suit in federal district court. The district court held that it lacked jurisdiction under the Rooker-Feldman doctrine to review the state court judgment and Henrichs' associated claims. It thus dismissed the action. The USCA affirmed but on slightly different grounds. At issue was whether Henrichs' claims were barred by the Rooker-Feldman doctrine which, in general terms, prevents "a party losing in state court … from seeking what in substance would be appellate review of the state judgment in a United States district court." Johnson v. De Grandy, 512 US 997 (1994). Looking at each claim individually, the USCA held that two of the claims were barred by Rooker-Feldman, a third claim failed on mootness grounds, and the fourth claim was barred by res judicata. Wallace, McKeown (author), and Wardlaw, Circuit Judges. R. Blasco of Pasadena, CA, for the appellant; B. Edwards of Beverly Hills, CA, for the appellees; K. Gunning of Washington, DC, for the Federal Deposit Insurance Corporation. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) FIREARMS DEALERS: J&G Sales Ltd. v. Truscott, 04-16976 (9th Cir. Jan. 16, 2007). The Bureau of Alcohol, Tobacco, Firearms, and Explosives appealed the district court's summary judgment, holding that the Bureau lacked authority to issue a letter requiring a small percentage of licensed firearms dealers to submit portions of their records relating to secondhand firearms. Because it found that the Bureau acted within its statutory authority under 18 USC Sec. 923(g)(5)(A), the USCA reversed the summary judgment, but it affirmed the district court's determination that the Bureau did not act in an arbitrary and capricious fashion in deciding which dealers should receive the letter demanding specified record information regarding secondhand firearms transactions. S. O'Conner, Assoc. Justice (Ret.), sitting by designation (author), and Rymer and Thomas, Circuit Judges. AAG P. Keisler of Washington, DC, for the appellant; R. Gardiner of Fairfax, VA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) INTERSTATE COMMERCE: Hall v. North American Van Lines, 04-16182 (9th Cir. Jan. 29, 2007). At issue here was whether federal law preempts state law claims for breach of an interstate shipping contract and for common law fraud and conversion. The district court concluded that it had removal jurisdiction over Hall's complaint because her claims were completely preempted by the 1906 Carmack Amendment to the Interstate Commerce Act of 1887, 49 USC Sec. 1406. The district court denied Hall's motion to remand and dismissed each of her claims. The USCA affirmed. Its holding in Hughes Aircraft Co. v. N. Am. Van Lines, Inc., 970 F.2d 609 (9th Cir. 1992), applied to Hall's common law fraud and conversion claims, even though her claims arose from events other than loss or damage to her property. It is well settled that the Carmack Amendment constitutes a complete defense to common law claims alleging all manner of harms. Beezer (author), O'Scannlain, and Kleinfeld, Circuit Judges. J. Perkins of San Francisco, CA, for the plaintiff-appellant; G. Garfinkel of Encino, CA, and R. Lazzarini of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) GARNISHMENT / SOVEREIGN IMMUNITY: Af-Cap v. Chevron Overseas (Congo) Ltd., 04-16387 (9th Cir. Jan. 25, 2007). In this consolidated action, Af-Cap, the judgment creditor, appealed the district court's judgment dissolving and vacating gar-nishments and liens filed against any property of the Republic of Congo, the judgment debtor, held by third party Chevron Texaco Corporation and domestic ChevronTexaco subsidiaries (collectively ChevronTexaco), and dismissing Af-Cap's writ of execution ac-tion filed against ChevronTexaco, three ChevronTexaco foreign subsidiaries, and the Congo, a sovereign country. The Congo asserted a sovereign immunity defense against Af-Cap's attempted execution of its judgment against the Congo's property allegedly held by ChevronTexaco. The property sought to be garnished included intangible obligations of ChevronTexaco owed to the Congo for various bonuses, taxes, and royalties related to the extraction of hydrocarbons, oil, and other of the Congo's natural resources. Because these obligations were not "used for a commercial activity in the United States," they were protected from execution or collection under the Foreign Sovereign Immunity Act codified at 28 USC Sec. 1610(a). The USCA thus affirmed the dismissal of this garnishment action. The obligations identified by Af-Cap were not property of the Congo used for commercial activity in the United States and thus were not subject to execution or collection under FSIA Sec. 1610(a). The USCA thus upheld the district court's judgments dissolving and vacating garnishments and liens and dismissing the actions for execution and the creditor's suit. Berzon, Rawlinson (author), and Callahan, Circuit Judges. A. Belsky of San Francisco, CA, for the plaintiff-counterdefendant; N. Popovic and D. Boven of San Fran-cisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) ELECTION LAW: Citizens for Clean Government v. City of San Diego, 04-56964 (9th Cir. Jan. 19, 2007). San Diego bans contributions exceeding $250 to any committee supporting or opposing a candidate for City Council. San Diego Municipal Code Sec. 27.2935 (2005). This limit applies to recall efforts because the term "candidate" includes a "City officeholder who becomes the subject of a recall election." Id. Sec. 27.2903. In this case, Citizens for Clean Government argued that the contribution limit is unconstitutional as applied to the signature-gathering phase of a recall election. San Diego maintained that its ordinance is valid under Buckley v. Valeo, 424 US 1 (1976), and the district court agreed. It also denied the plaintiff's request for preliminary injunctive relief. The USCA affirmed. When the parties then stipulated to a final judgment against the plaintiff, the USCA vacated and remanded. San Diego had offered no evidence of deliberation on the issue of campaign finance in recall elections, and it had no recourse to legal authority addressing these exact issues as none exists. The USCA held that the district court erred by failing to require evidence clarifying the analogy between the state interest in Buckley and one asserted here. The USCA thus vacated the denial of a permanent injunction and declaratory relief and remanded for further evidentiary development in accordance with this opinion. Hall (author), Hawkins, and Ikuta, Circuit Judges. S. Haskins of Bonita, CA, for the appellant; D. Brodie of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) TORTS / CIVIL PROCEDURE: Conlon v. USA, 05-15238 (9th Cir. Jan. 16, 2007). Conlon appealed the district court's entry of summary judgment against him under the Federal Tort Claims Act. He had failed to respond to the government's Request for Admis-sions within the 30-day frame set forth in Fed. R. Civ. Proc. 36(a). The United States by letter then deemed its Request for Admissions admitted. The government relied on those admissions when seeking summary judgment. The USCA held that the district court did not abuse its discretion when it denied Colon's motion to withdraw and affirmed its entry of summary judgment. It was satisfied that the district court conducted an appropriate analysis under Rule 36, properly considering both the factors elucidated in the rule, and that it did not clearly err in concluding that the government's case would have been significantly prejudiced by the withdrawal of Conlon's sweeping admissions on the eve of trial. Graber, McKeown, and Tallman (author), Circuit Judges. J. Boles of Reno, NV, for the plaintiff-appellant; AUSA G. Addington of Reno, NV, for the defendant-appellant.(Download the full text of this decision at www.ce9.uscourts.gov/)

17) CIVIL RIGHTS: Johnson v. City of Seattle, 05-35319 (9th Cir. Jan. 18, 2007). Johnson and ten other persons (collectively the "Pioneer Square Plaintiffs") appealed from the district court's order granting summary judgment in favor of the City of Seattle, Schell (the former mayor or Seattle), and Kerlikowske (Chief of the Seattle Police Department). The Pioneer Square Plaintiffs maintained that the district court erred in dismissing their 42 USC Sec. 1983 claim because the Defendants' change in police enforcement policy violated their Fourteenth Amendment right to due process by affirmatively placing them in a position of enhanced danger. The USCA affirmed the district court's decision to dismiss the Sec. 1983 claim, concluding that the Pioneer Square Plaintiffs failed to demonstrate that the Defendants violated their constitutional rights. The fact that the police at one point had an operational plan that might have more effectively controlled the crowds at Pioneer Square did not mean that an alteration to this plan was affirmative conduct that placed the Pioneer Square Plaintiffs in danger. The police did not communicate anything about their plans to the Pioneer Square Plaintiffs prior to the incident. Even if proved not the most effective means to combat the violent conduct of private parties, the more passive operational plan that the police ultimately implemented did not violate substantive due process because it placed the Pioneer Square Plaintiffs in no worse position than that in which they would have been had the defendants not acted at all. In a concurrently filed memorandum disposition, the USCA upheld the district court's grant of summary judgment in favor of the Defendants on the Pioneer Square Plaintiffs' state law negligence claim. Alarcon (author), Rymer, and Berzon, Circuit Judges. M. Withey of Seattle, WA, for the appellants; T. Buck of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) CIVIL RIGHTS: Adams v. Speers, 05-15159 (9th Cir. Jan. 10, 2007). Speers, an officer of the California Highway Patrol, ap-pealed the district court's denial of immunity in this civil rights suit by John and Cathy Adams. Holding that, on the basis of the facts submitted by the Adamses, Speers was not entitled to immunity as a matter of law, the USCA affirmed the judgment of the district court. The absence of warning and the lack of danger to the shooter or others distinguished this case from Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993), Smith v. Freland, 954 F.2d 343 (6th Cir. 1992), and Brosseau v. Haugen, 543 US 194 (2004). Noonan (author), Hawkins, and Thomas, Circuit Judges. DAG S. Wyckoff of Sacramento, CA, for the appellant; J. LeBoeuf of Oakland, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) CIVIL PROCEDURE: Efaw v. Williams, 04-16920 (9th Cir. Jan. 16, 2007). Efaw claimed that he was beaten severely by two guards while imprisoned at a Navajo County jail in Arizona. He filed suit against Officer Williams, one of the two guards allegedly involved in the incident, and various institutional and individual defendants. Efaw failed to serve Williams with the complaint until seven years after it was filed. Williams moved to be dismissed as a defendant pursuant to Fed. R. Civ. Proc. 4(m). The district court denied the motion and granted Efaw additional time to effect service of process. A jury trial followed, resulting in a judgment for Efaw. Williams appealed. The USCA vacated the judgment and remanded with instructions to dismiss the action against Williams. It also awarded costs on appeal to Williams. Judge Fletcher dissented. He noted that, although seven years is an extraordinary delay in serving a defendant, he would still find that the district court did not abuse its discretion in granting an extension of time under Rule 4(m). Because Efaw would otherwise have been barred from litigating the merits of his civil rights claim, Judge Fletcher would defer to the judgment of the district court. Graber (author), W. Fletcher (dissenting), and Tallman, Circuit Judges. R. Warner of Phoenix, AZ, for the defendant-appellant; D. Glanzer of Flagstaff, AZ, for the plaintiff-appellant.(Download the full text of this decision at www.ce9.uscourts.gov/)

20) CONSTITUTIONAL LAW / LEGISLATIVE TAKINGS: Paulson v. City of San Diego, 06-55769 (9th Cir. Jan. 12, 2007). The USCA held that the appeal by the City of San Diego of the district court's May 3, 2006 order to enforce a Dec. 3, 1991 injunction under California constitutional authority is moot. On August 14, 2006, federal legislation transferred title of the Mount Soledad Veterans War Memorial to the United States. The legislative taking immediately divested the City of any interest in the war memorial, and the United States is not subject to state constitutional authority. Accordingly, the May 3, 2006 order is no longer enforceable, and the appeal is dismissed as moot. Pregerson, Gould (author), and Clifton, Circuit Judges. J. McElroy of San Diego, CA, for the appellant; M. Aquirre of San Diego, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) IMMIGRATION: Morales v. Gonzales, 05-70672 (9th Cir. Jan. 3, 2007). Morales, a male-to-female transsexual, petitioned for review of the Board of Immigration Appeals' decision summarily affirming an Immigration Judge's removal order and denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The IJ concluded that Morales was removable both because she was an alien present in the United States without admission or parole and because she had been convicted of a crime involving moral turpitude-communication with a minor for immoral purposes under Sec. 9.68A.090 of the Revised Code of Washington. The IJ further found that Morales would have been eligible for asylum but for her conviction, which the IJ determined was a particularly serious crime. Having made that decision, the IJ denied Morales's application for asylum and for withholding of removal. The IJ also denied Morales's application for CAT relief on the merits, holding that Morales had not shown it was more likely than not she would be tortured if she were returned to Mexico. The USCA found that it lacked jurisdiction to review the IJ's finding that Morales was removable because she had been convicted of a crime of moral turpitude. See 8 USCA Sec. 1252(a)(2)(C) (West 2005). Nevertheless, it had jurisdiction to review the denial of her application for asylum, withholding of removal, and CAT relief. 8 USCA Sec. 1252(a)(1), (4) (West 2005). The USCA granted Morales's petition for review on those claims and concluded that the IJ had improperly relied upon a recitation of facts in the Washington appellate court's opinion affirming Morales's conviction. Relying on those facts, the IJ determined that Morales's conviction was for a particularly serious crime. A substantial portion of the fact the IJ relied upon, however, applied to offenses for which Morales had not been convicted. The USCA thus remanded to the BIA with instructions to remand to the IJ for a redetermination of the "particularly serious crime" issue. The USCA also concluded that the IJ had applied an incorrect legal standard to Morales's application for CAT relief, and remanded for a redetermination of that issue as well. D.W. Nelson, Thompson (author), and Paez, Circuit Judges. A. Salazar of Seattle, WA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) IMMIGRATION: Kohli v. Gonzales, 05-72761 (9th Cir. Jan. 17, 2007). Kohli, a native of Kuwait and a citizen of India, sought relief from removal by arguing that proceedings before the Immigration Court should have been terminated because the name and title of the issuing officer were not legible on the Notice to Appeal ("NTA"). She also maintained that she was entitle to withholding of removal and to relief under the Convention Against Torture ("CAT"). The USCA determined that the alleged defect in the NTA was not jurisdictional. It also held that the IJ's adverse credibility determination was supported by substantial evidence and that Kohli had not shown that she was entitled to either withholding of removal or relief under CAT. T.G. Nelson, Gould, and Callahan (author), Circuit Judges. A. Kaufman of San Francisco, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

23) IMMIGRATION: Garcia-Jimenez v. Gonzales, 03-74625 (9th Cir. Jan. 3, 2007). The government charged the petitioner with being removable on account of two prior criminal convictions occurring in the mid-1990s, and a recent attempt to smuggle undocu-mented aliens into the country. These convictions occurred before Congress replaced the Immigration and Nationality Act's waiver of deportation provisions with the more stringent cancellation of removal provisions. The petitioner thus was entitled to apply for, and did receive, a waiver as to his convictions. However, the IJ denied relief as to the alien smuggling charge. She applied 8 USC Sec. 1229b(c)(6) which precludes cancellation of removal in cases where the alien has been granted a waiver of deportation. The USCA held that Sec. 1229b(c)(6) bars an alien from obtaining cancellation of removal if he has ever received a waiver of deportation, even if the waiver of deportation was granted in the same proceeding in which cancellation of removal is sought. The statute prohibits an alien from receiving both waiver of deportation and cancellation of removal. The USCA thus denied the petition for review. Pregerson, Silverman (author), and Tallman, Circuit Judges. N. Ramirez of Los Angeles, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) IMMIGRATION: Becker v. Gonzales, 05-76977 (9th Cir. Jan. 10, 2007). Becker, a native and citizen of Germany, petitioned for review of the BIA's final order of removal. He maintained that the BIA's finding that he was not eligible to apply for cancellation of removal had been superseded by Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. 2006). The IJ found Becker removable as an alien convicted of a controlled substance offense, denied his application for relief, and ordered him removed to Germany. The BIA affirmed. The USCA had jurisdiction pursuant to 8 USC Sec. 1252(a)(2)(C), and denied Becker's petition for review. He was not eligible to apply for cancellation of removal for a lawful permanent resident. Hug, Tashima, and Gould (author), Circuit Judges. T. Tousley of Virginia Beach, VA, for the petitioner; A. Nicastro of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) IMMIGRATION: Zi-Xing Lin v. Gonzales, 04-73860 (9th Cir. Jan. 5, 2007). The petitioner, a Chinese national, was lawfully removed from the United States, re-entered illegally, and then filed an untimely motion to reopen his original deportation proceedings. The IJ denied the petitioner's motion, the BIA affirmed that denial, and the petitioner appealed. The USCA reversed and remanded for three reasons: Because (a) 8 CFR Sec. 1003.23(b)(1) cannot be applied to the facts of the case; because (b) no steps were taken by the Department of Homeland Security ("DHS") to reinstate the petitioner's prior removal order under 8 CFR Sec. 241.8; and because (c) neither the IJ nor the BIA made any finding concerning whether the petitioner's motion was eligible for any exception to late filing under 8 CFR Sec. 1003.23(b)(4). D.W. Nelson, Paez, and Smith (author), Circuit Judges. K. Jaffee of New York, NY, for the peti-tioner; D. Couvillon of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) IMMIGRATION: Li Bin Lin v. Gonzales, 05-74130 (9th Cir. Jan. 9, 2007). Lin, a citizen of China, sought judicial review of the Board of Immigration Appeals' denial of his application for asylum, an application based upon his alleged persecution for resisting a coercive population control program. The BIA had affirmed the IJ's decision and concluded that Lin was not eligible for asylum be-cause he did not demonstrate, as required by the statute, "other resistance" to a coercive population control program. The USCA dis-agreed. Lin was beaten and threatened with arrest for attempting to prevent birth control officials from confiscating and destroying family property. The USCA held that Lin's actions satisfy the "other resistance" category set forth in 8 USC Sec. 1101(a)(42)(B). It thus reversed the BIA's decision and remanded for the BIA to determine whether, in light of the USCA's opinion, Lin suffered past persecution or had a well-founded fear of future persecution in connection with his resistance. Trott (author), Wardlaw, and W. Fletcher, Circuit Judges. J. Li of Honolulu, HI, for the petitioner; AUSA L. Bracco of Honolulu, HI, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

27) IMMIGRATION: Stanley v. Gonzales, 04-17147 (9th Cir. Jan. 16, 2007). U.S. Trustees, who are appointed by the Attorney General, oversee the administration of bankruptcy cases and private trustees. After the AG removed Stanley from his position as a U.S. Trustee, she challenged her removal as a violation of the separation of powers doctrine, the Appointments Clause, and her right to procedural due process. The district court dismissed her complaint for lack of jurisdiction on the grounds that the Civil Service Reform Act ("CSRA") precluded it from hearing her constitutional claims for equitable relief even where she has no other remedies under the statute. The USCA affirmed on different grounds. It concluded that because Stanley's constitutional claims were not colorable, the district court properly dismissed for lack of subject matter jurisdiction. To the extent that there is a gap in Ninth Circuit case law as to whether the CSRA precludes equitable relief for someone in Stanley's position with a colorable constitutional claim, the USCA held that it need not address that question nor determine how it might fill that gap today because Stanley's claim were without merit. Tashima and McKeown (author), Circuit Judges, and Carter, District Judge. H. Moore of Oakland, CA, for the appellant; T. Hughes of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) IMMIGRATION: Valeriano v. Gonzales, 03-72277 (9th Cir. Jan. 23, 2007). The USCA held that an alien who delayed filing a motion to reopen under 8 CFR Sec. 1003.2(c)(1) while awaiting the government's response to his counsel's request to join the motion to reopen under 8 CFR Sec. 1003.2(c)(3)(iii) until the deadline pasted, was not entitled to equitable tolling. Kleinfeld (author) and Fisher, Circuit Judges, and Shadur, District Judge. V. Nieblas of Los Angeles, CA, for the petitioner; C. Ferrier of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) IMMIGRATION: Ruiz-Vidal v. Gonzales, 04-73812 (9th Cir. Jan. 18, 2007). At issue here was whether the Department of Homeland Security met its burden of proving that the petitioner was removable from the United States as an alien convicted of a law relating to a controlled substance. The USCA concluded that the judicially noticeable documents in this case failed to support the BIA's determination that Ruiz-Vidal was removable as an alien convicted of a law related to a controlled substances offense. It thus granted the petition for review, reversed the order of removal, and remanded the matter to the Board for disposition consistent with its opinion. Beezer, O'Scannlain, and Trott (author), Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; J. Dowd of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) EXPORT CONTROLS: USA v. Jiang, 05-10671 (9th Cir. Jan. 10, 2007; order amending opinion filed Jan. 25, 2007). Jiang, a citizen of China, came to the United States to establish an export business. For several years, he ran a small business out of his home in Northern California, primarily exporting computers and electronic products to commercial customers in China. In 2001, he entered into a contract with Hebei Far East ("Hebei"), to ship four custom-made microwave amplifiers to Hebei in China. After further negotiations, the order was expanded to nine amplifiers. On March 10, 2002, Jiang received an import permit for the amplifiers from the Chinese government. On March 28, Jiang contracted with Narda DBS Microwave, a California company, to produce the nine amplifiers, and on March 31, he filed an export application with the U.S. Department of Commerce. The application identified Hebei, as a commercial entity and the end user. The Department of Commerce believed that Hebei was at the same location as an entity known to be affiliated with the Chinese military. Skeptical that the amplifiers were going to be exported for commercial purposes, the U.S. Office of Export Enforcement opened a formal investigation into Jiang and the export application. On May 2, 2002, Jiang called Narda and explained that Hebei had cancelled the order because of a delay in the delivery of the amplifiers. He told Narda that if it could confirm that an export license was not required, he would try to negotiate an amicable solution with Hebei. Jiang also provided information to Narda confirming that Hebei was a commercial entity, and Narda, upon investigation, concluded that no license was required. Jiang exported the first four amplifiers to Hebei on May 22, 2002. Also on May 22, Special Agent Craig Spelce of the Office of Export Enforcement began investigating Jiang's export license application. He telephoned Jiang on June 19 and asked Jiang to meet with him to discuss the application. He also requested that Jiang bring with him all documents relevant to the transaction and the application. The interview occurred on June 24, at which time Jiang provided the requested documents. What was discussed during the interview was the primary subject of this appeal. No recording or transcript exists, and other than what Spelce and Jiang could recollect of the conversation, which occurred nearly three years before trial, the only record of the interview consisted of notes that Spelce drafted some time after the interview. According to Spelce, he asked Jiang about the transaction with Hebei, Jiang's business affairs, Hebei's identity, Jiang's knowledge of the Chinese military affiliate, and the status of the deal. Jiang told him that he returned "the product" to Narda. Spelce did not ask whether Jiang meant that all nine amplifiers had been returned Narda or whether any of them had been shipped to Hebei pursuant to the contract. Spelce testified, however, that he knew at the time of the interview that nine amplifiers were involved in the transaction. Spelce also did not ask Jiang about any of the documents Jiang brought to the interview, nor did he ask whether Jiang had shipped any amplifiers to China. Following up on information provided in the interview, Spelce contacted Paul Kahle of Narda and learned that Jiang had returned only six of the nine amplifiers. Spelce requested that Kahle participate in a recorded phone call with Jiang to solicit information about the location of the remaining three amplifiers. Kahle called Jiang to discuss the order. Jiang informed him of Hebei's reasons for not wanting the six returned amplifiers, and when Kahle asked about the location of the other three, Jiang told him that Hebei was able to put them to use in a downgraded capacity. Jiang's export application was denied on Dec. 20, 2002 and on Jan. 21, 2003, the government indicted him for unlawfully exporting goods under 50 USC Sec. 1705(b). Two years later, the government added a count for intentionally making a materially false statement to a federal agent in violation of 18 USC Sec. 1001(a)(2). After a bench trial, Jiang was acquitted of the first count but convicted of the second. The trial court departed upward from the Guidelines and sentenced him to 12 months and one day in custody. Jiang appealed his conviction for intentionally making a materially false statement to a federal agent, maintaining that there was insufficient evidence to prove the elements of the crime beyond a reasonable doubt. The USCA agreed and reversed the conviction. In light of the extrinsic evidence and the context in which Jiang's statements were made, there was insufficient basis upon which to conclude beyond a reasonable doubt that Jiang intentionally made a materially false statement. Bright, D.W. Nelson (author), and Berzon, Circuit Judges. R. Mazer of San Francisco, CA, for the appellant; AUSA H. West of San Francisco, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

31) CURRENCY CONTROLS: USA v. Tatoyan, 05-50783 (9th Cir. Jan. 30, 2007). The Tatoyans were charged with conspiracy, failure to report an attempted transportation of over $10,000 out of the United States, bulk cash smuggling, and making a false state-ment to a government official. They agreed to a forfeiture settlement under which $39,659-one half of the total funds-were admin-istratively forfeited to the government. They were later convicted by a jury of all counts and were each sentenced to pay a $100,000 fine, serve three years probation, perform 360 hours of community service, and pay a $400 special assessment. The USCA affirmed in part, and vacated and remanded in part. At sentencing the district court did not sentence either of the Tatoyans to serve prison time, but instead sentenced each to pay a $100,000 fine and complete 360 hours of community service. Because it could not, on the record, determine the extent to which any portions of the $100,000 fines were imposed as punishment for the Tatoyans' violations of the bulk case smuggling statute, the USCA vacated their sentences and remanded for resentencing. Kennedy, Hall, and Hawkins (author), Cir-cuit Judges. D. Bederman of Atlanta, GA, for the defendants-appellants; B. Hoffstadt of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) WARRANTLESS STOPS / "COLLECTIVE KNOWLEDGE" DOCTRINE: USA v. Ramirez, 05-50165 (9th Cir. Jan. 16, 2007). At issue here was whether the "collective knowledge" doctrine justified a warrantless stop of an automobile by one officer at the request of another officer within the same police department. The USCA said it was satisfied that the collective knowledge doctrine includes no requirement regarding the content of the communication that one officer must make to the other. Where one officer knows facts constituting reasonable suspicion or probable cause (sufficient to justify action under an exception to the warrant requirement), and he communicates an appropriate order or request, another officer may conduct a warrantless stop, search, or arrest without violating the Fourth Amendment. The USCA thus upheld the appellant's convictions. Judge Kozinski concurred but wrote separately to emphasize that this is not a case where the investigating officers ordered a fellow officer to conduct a traffic stop because they lacked probable cause for a narcotics stop. The officer had probable cause to order a narcotics stop, and that's exactly what he did. He requested that the arresting officer make it look like a "traffic stop" as a safety measure, to prevent the risk of harm to a lone officer trying to make a narcotics arrest before backups could arrive on the scene. But that did not change the nature of the stop, which remained-in substance-a narcotics stop. Kozinski (concurring), O'Scannlain (author) and Bybee, Circuit Judges. DFPD C. Harbaugh of Los Angeles, CA, for the defendants-appellants; AUSA G. Curiel of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

33) WARRANTLESS ARRESTS: Fisher v. City of San Jose, 04-16095 (9th Cir. Jan. 16, 2007). Fisher claimed constitutional violations stemming from a 12-hour standoff at his apartment between him and San Jose police officers, at the end of which he came out of the apartment and submitted to arrest. He sued San Jose and several officers under 42 USC Sec. 1983, contending that the arrest was invalid because the police never obtained or attempted to obtain a warrant. A jury found for the defendants on all claims, including a claim for warrantless arrest. Fisher then filed a renewed motion under Fed. R. Civil Proc. 50(b) for judgment as a matter of law on the warrantless arrest claim. Granting the motion against the City alone, the district court ordered the City to pay nominal damages of one dollar and issued an injunction regarding future training of police officers. The USCA upheld the district court's ruling on appeal, agreeing that the failure to obtain a warrant under the unusual circumstances of this case constituted a constitutional violation as a matter of law. There were plenty of officers involved and plenty of time-at least several hours-to obtain a warrant. It was unconstitutional to fail to do so. Judge Callahan dissented. He noted that the situation was very dangerous but resolved safely for all concerned because of good police work. Nevertheless, he thought the majority undertook to micro-manage, or worse, browbeat the police for failing to obtain a telephonic warrant in the midst of a police standoff that could have turned deadly at any moment. After reviewing all the facts and receiving proper instructions on the law, twelve jurors unanimously found that the police had handled the situation lawfully. Judge Callahan thought the wisdom of the jurors' decision should have been accepted. Thompson, Berzon (author), and Callahan (dissenting), Circuit Judges. C. Greenberg of San Jose, CA, for the appellant; D. Kilmer of San Jose, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

34) SEARCH & SEIZURE: USA v. Crapser, 05-30456 (9th Cir. Jan. 10, 2007). Crapser appealed his conviction, upon a guilty plea, of being a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1). He maintained that the trial court erred in denying his motion to suppress. The USCA affirmed as the initial encounter between Crapser and the police was consensual or, alternatively, was supported by reasonable suspicion, and because his consent to search was voluntary. Judge Reinhardt dissented. He thought the majority had weakened Fourth Amendment protections. Specifically, he disagreed, first, with its holding that Crapser's initial contact with police was consensual. Second, he disagreed with its alternative holding that, if a seizure occurred, the officers possessed the requisite suspicion necessary to interrogate Crapser about his potential involvement in drug activity. Finally, Judge Reinhardt thought that be-cause Crapser was illegally seized, his consent to the search of his room was invalid, and his motion to suppress should have been granted. Goodwin, Reinhardt (dissenting), and Graber (author), Circuit Judges. AFPD N. Bergeson of Portland, OR, for the defen-dant-appellant; AUSA F. Noonan of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) SEARCH & SEIZURE: USA v. Hector, 05-50270 (9th Cir. Jan. 25, 2007). In this case, it was not disputed that there was a valid search warrant issued by a state court judge on a showing of probable cause. Instead, the challenged focused on whether there was a constitutional right under the Fourth Amendment to be presented with a copy of that search warrant at the time of the search, whether a defendant's probationary status affected the analysis, and whether the claimed constitutional violation merited suppression of the seized evidence. After the district court's ruling, the Supreme Court decided Hudson v. Michigan, 126 S.Ct. 2159 (2006), holding that the suppression of evidence is not an appropriate remedy for a constitutional violation that is not the "unattenuated but-for cause" of obtaining the disputed evidence. The USCA found that the rationale of Hudson applied with equal force to the instant case. Without deciding whether the failure to provide a copy of the warrant was a constitutional violation, the USCA concluded that even if it were, it was not a "but-for cause" of seizure of the evidence. As to the sufficiency of the evidence challenge, a reasonable trier of fact could easily find that the gun was used "in furtherance" of drug trafficking. The USCA thus reversed both the grant of a new trial on Count One (possession of cocaine base with intent to distribute) and Count Three (being a felon in possession of a firearm), and the judgment of acquittal on Count Two (possession of a firearm in furtherance of drug trafficking). Hall, McKeown (author), and Wardlaw, Circuit Judges. D. Yang of Los Angeles, CA, for the plaintiff-appellant; D. Gits of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

36) CHILD PORNOGRAPHY / PRIVACY: USA v. Ziegler, 05-30177 (9th Cir. Jan. 30, 2007). At issue here was whether an employee has an expectation of privacy in his workplace computer sufficient to suppress images of child pornography sought to be admitted into evidence in a criminal prosecution. The USCA affirmed. Although Ziegler retained a legitimate expectation of privacy in his workplace office, his employer retained the ability to consent to a search of Zeigler's office and his business computer. And because valid third party consent to search the office and computer located therein was given by his employer, the district court properly de-clined to suppress the evidence of child pornography on Ziegler's computer. O'Scannlain (author), Silverman, and Gould, Circuit Judges. AFPD D. Ness of Great Falls, MT, for the defendant-appellant; AUSA M. Hurd of Billings, MT, for the plaintiff-appellee. [The USCA granted the petition for panel rehearing in this case and withdrew its opinion of August 8, 2006; further petitions for rehearing or rehearing en banc maybe be filed.] (Download the full text of this decision at www.ce9.uscourts.gov/)

37) WIRE FRAUD/ PLEAS: USA v. Jones, 06-30024 (9th Cir. Jan. 10, 2007). Jones pled guilty to one count of wire fraud in violation of 18 USC Sec. 1343. The plea agreement included stipulated facts upon which the guilty plea was predicated. In particular, it established that Jones had learned at some point in 2000 of an investment opportunity known as the "Miracle Car Deal." Other partici-pants in the Miracle Car Deal told Jones that a wealthy car collector had recently died, leaving a fleet of luxury cars. As part of an attempt to liquidate the estate, the cars were being sold off at cut rate prices in order to avoid tax consequences. Neither the cars, nor the estate, existed. Before learning of the Miracle Car Deal's fraudulent nature, Jones began to solicit other investors. He informed the investors that he would collect their money for safe-keeping and that none of the funds would be turned over to the estate until the cars were delivered. He successfully solicited 45 investors, who entrusted him with $1.3 million. Contrary to his representations, he spent this money on himself, not on acquiring Miracle Cars. His expenditures included the purchase of property in San Juan Island and payments for staff, consultants, and other services related to his personal business ventures. In July 2002, the original Miracle Car Deal promoters were indicted in federal court. After discovering the fraud, Jones' investors called him requesting refunds. Jones informed them that the government had seized the off-shore account in which he had been keeping the funds. The grand jury returned a Superseding Indictment against Jones on March 2, 2005, charging him with one count of wire fraud and three counts of money laundering. In exchange for his guilty plea, the government dropped the money laundering counts and agreed to recommend a sentence that took Jones' acceptance of responsibility into consideration. On June 16, 2005, a magistrate judge found that the plea was voluntary, knowing, and intelligent, and recommended that the district court accept the plea, which the district court did. Jones appealed the denial of his motion to withdraw his plea. The USCA affirmed. Although the standard for allowing withdrawal of a plea is applied liberally, Jones still had to show some "fair and just" reason for withdrawing his plea. He offered nothing more than his own inaccurate interpretation of the law. Without more, the USCA could not say that the district court abused its discretion in denying his motion to withdraw his plea. B. Fletcher (author) and McKeown, Circuit Judges, and Schwarzer, District Judge. S. McCloud of Seattle, WA, for the appellant; AUSA K. Frierson of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) WITNESSES: USA v. Fort, 06-10473 (9th Cir. Jan. 8, 2007). The federal criminal prosecution of the defendants for racketeering and various predicate crimes is pending. They are alleged to be members of a San Francisco based street gang operating in the Sunny-dale Public Housing Project, and they stand accused of engaging in an illegal enterprise of individuals associated in fact, who dealt drugs, committed robberies, and assaulted and killed those they believed were cooperating with the police. The witnesses who are expected to testify for the government are primarily residents of the housing project, and the district court found that the government had made a substantial showing of danger to inculpatory witnesses. The government brought this interlocutory appeal to challenge a discovery order issued by the district court that police reports created by San Francisco police officers prior to the federal prosecution of the defendants do not qualify for the discovery exception created by Fed. R. Crim. Proc. 16(a)(2), even though those investigative reports are in the hand of the federal prosecutor for the purpose of pursing charges against defendants under RICO. The government refused to comply with the discovery order, and the district court sanctioned the noncompliance. On appeal, the government sought review of the sanction and of the district court's underlying decision regarding the scope of Rule 16(a)(2). The USCA held that the documents in dispute are not discoverable because they are covered by Rule 16(a)(2) whether prepared by federal, state, or local officials. The USCA thus vacated the order. Dissenting, Judge Fletcher thought that because the documents were the work product of the San Francisco Police Department, and not of the government, they were not protected by Rule 16(a)(2). To the extent the government is concerned about the safety of its witnesses, he thought its remedy was a protective order under Rule 16(d)(1). Graber (author), W. Fletcher (dissenting), and Tallman, Circuit Judges. AUSA E. Frick of San Francisco, CA, for the plaintiff-appellant; M. Satris of Bolinas, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

39) VOLUNTARY MANSLAUGHTER: USA v. Arnt, 05-50124 (9th Cir. Jan. 25, 2007). Arnt fatally stabbed her husband during a domestic dispute on Incirlic Air Base in Turkey, where her husband served as a member of the security forces unit. The government charged Arnt with murder, asserting jurisdiction under the Military Extraterritorial Jurisdiction Act of 2000. After a jury deadlocked over whether to convict, the court declared a mistrial. She was retried and this time a new jury acquitted her of murder but convicted her of the lesser-included offense of voluntary manslaughter. She was sentence to eight years in prison and ordered to pay restitution to the victim's family. On appeal, Arnt raised several challenges to her conviction and sentence. She asserted that the indictment failed to allege an essential element and challenged several aspects of her conviction, including the sufficiency of the evidence and the court's refusal to give an involuntary manslaughter instruction. Finally, she argued that her sentence was unreasonable and maintained that the restitution order was illegal because it defined "victim" too broadly. The USCA rejected Arnt's challenge to the indictment, which was sufficient to identify the jurisdictional basis of the prosecution. Similarly, it rejected her challenge to the sufficiency of the evidence, which provided an adequate basis to establish, beyond a reasonable doubt that Arnt was accompanying the Armed Forces outside the United States at the time of her offense. However, it agreed with Arnt that the district court committed reversible error in refusing to give an involuntary manslaughter instruction. B. Fletcher (author), Fernandez, and Graber, Circuit Judges. DFPD J. Libby of Los Angeles, CA, for the defendant-appellant; AUSA J. Behnke of Riverside, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

40) SECURITIES FRAUD / SENTENCING: USA v. Berger, 04-50469 (9th Cir. Jan. 18, 2007). Berger appealed his conviction of 12 counts of conspiracy, loan fraud, falsifying corporate books, and various securities fraud violations. He argued that: 1) the district court improperly coerced the jury into reaching a verdict; 2) the district court violated his constitutional right to be present during trial when the district court - with counsel's consent - made certain comments at an informal meeting with the jury outside of Berger's presence; 3) the district court used the wrong materiality standard for securities fraud violations; 4) the indictment did not charge with sufficient particularity the materiality element for securities fraud violations; and 5) the district court erred when it ordered Berger to pay restitution. The government cross-appealed the sentence, arguing that the district court erred when it refused to increase Berger's sentence based on judicially-found facts. The USCA affirmed the conviction, affirmed the restitution order, but vacated the sentence and fine, and remanded for resentencing under USA v. Booker, 543 US 220 (2005). Pregerson (author) and Leavy, Circuit Judges, and Beistline, District Judge. M. Doyen of Los Angles, CA, for the defendant-appellant-appellee; AUSA P. Stern of Los Angeles, CA, for the plaintiff-appellee-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

41) SENTENCING: USA v. Pike, 05-30528 (9th Cir. Jan. 17, 2007). The government appealed the 50-month sentence imposed by the district court following Pike's plea of guilty to bank robbery under 18 USC Sec. 2113(a). It argued that the district court applied an incorrect standard of proof in considering whether to impose a five-level enhancement for possession of a firearm and that, under the correct standard, the enhancement was warranted. It further maintained that the district court, having decided not to impose the five-level enhancement, clearly erred in declining to impose a two-level enhancement for making a threat of death. With respect to the five-level enhancement, the USCA agreed that the district court applied an incorrect standard of proof and remanded so that it could apply the correct stand and determine, under that standard, whether Pike possessed a firearm during the robbery. However, the USCA noted that it remands only because the district court erred in its method of calculating what the appropriate advisory Guidelines range would be. It did not intimate that it should impose a sentence within whatever advisory range it properly calculates on remand. With respect to the two-level enhancement, the USCA remanded for reconsideration, if necessary, in light of USA v. Jennings, 439 F.3d 604 (9th Cir. 2006). Reinhardt (author), Tashima, and Graber, Circuit Judges. AUSA G. Sussman of Portland, OR, for the plaintiff-appellant; AFPD N. Bergeson of Portland, OR, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

42) SENTENCING: USA v. Gonzalez-Perez, 05-10693 (9th Cir. Jan. 10, 2007). On appeal, Gonzales-Perez challenged his sentence on the grounds that that the district court erred in applying a 16-level enhancement to his sentence for a false-imprisonment conviction under Florida law. Specifically, he maintained that his prior conviction under Florida's false imprisonment statute did not constitute a "crime of violence" under Guidelines Sec. 2L1.2(b)(1)(A)(ii). The USCA agreed and reversed the district court's imposition of the 16-level enhancement, vacated the sentence and remanded for resentencing. It held that the district court erred when it applied a 16-level sentencing enhancement predicated upon a determination that Gonzales-Perez's conviction for false imprisonment under Florida law constituted a crime of violence under Guideline Sec. 2L1.2(b)(1)(A)(ii). Fernandez, W. Fletcher, and Rawlinson (author), Circuit Judges. AFPD T. Friddle of Phoenix, AZ, for the defendant-appellant; AUSA B. Ferg of Tucson, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

43) SENTENCING: USA v. Ressam, 05-30422 (9th Cir. Jan. 16, 2007). Ahmed Ressam trained with al Qaeda in Afghanistan and hatched a plot to detonate explosives at the Los Angeles International Airport in the days before the new Millennium. He was charged and convicted in federal district court of nine counts of criminal activity in connection with this plot. On appeal, he challenged his conviction on only Count Nine: carrying an explosive during the commission of a felony-making false statements on customs decla-rations-in violation of 18 USC Sec. 844(h)(2). At issue was whether Sec. 844(h)(2) should be read to include a relational element such that the crime is carrying an explosive during and in relation to the commission of a felony. The Circuit previously construed the statute upon which Sec. 844(h)(2) was modeled, 18 USC Sec. 924(c), to require this relational element. USC v. Stewart, 779 F.2d 539, 539-40 (9th Cir. 1985). The USCA now found itself constrained to follow Stewart's analysis and concluded that Sec. 844(h)(2) requires a relationship between the underlying crime and the act of carrying an explosive. As the jury was neither instructed that such a relationship was a required element of the offense, and the government offer no evidence that Ressam's explosives were used to facilitate his false customs declaration, his conviction on Count 9 had to be reversed. Ressam was initially exposed to a possible sentence of 65 years but after trial he entered into a cooperation agreement with the government in exchange for a shorter sentence. Although he pro-vided testimony and participated in debriefings, he ultimately stopped cooperating. As a result the government recommended a sentence of 35 years. Ressam argued for a sentence of 120 months, and the district court imposed a sentence of 22 years. The government appealed that sentence as unreasonable in light of Ressam's failure to continue to assist the government and the district court's lack of explanation for what the government thought was an extreme downward departure. Given its reversal on Count 9 and its corresponding mandatory minimum sentence of 10 years, the USCA vacated the entire sentence so that the district court could resentence in light of its decision here and intervening developments in the law of sentencing. Judge Alarcon dissented from the majority's decision to reverse Court 9, but concurred in the majority's decision to vacate the sentence albeit on different grounds. He agreed with the government that the sentence imposed by the district court was unreasonable and an extreme departure from the advisory Sentencing Guidelines. Alarcon (dissenting in part), Rymer (author), and Berzon, Circuit Judges. J. McKay of Seattle, WA, for the plaintiff; AFPD M. Filipovic of Seattle, WA, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/)

44) SENTENCING: USA v. Silva, 05-50871 (9th Cir. Jan. 3, 2007). A jury convicted Silva of the importation of marijuana and pos-session of marijuana with intent to distribute. The district judge held a sentencing hearing, in which he considered the Probation Officer's Report, Silva's Sentencing Memorandum and Departure Request, the Addendum to the Probation Officer's Report, and the Gov-ernment's Sentencing Summary Chart. He expressly asked Silva whether he wished to comment. Silva declined to speak. The judge then applied the then-mandatory Sentencing Guidelines. He declined to depart downward based on diminished capacity, after finding that Silva was voluntarily intoxicated and might endanger the public if released sooner. He calculated a criminal history score, but reduced it, after concluding that "the criminal history [was] overrepresented by one level." Sentencing Silva to 77 months in prison and three years of supervised release, he recommended that Silva be housed near his relatives and enrolled in a drug treatment program. Silva appealed. The USCA rejected his procedural and evidentiary claims, but granted a limited remand, as required by USA v. Ameline, 409 F.3d 1073, 1084-86 (9th Cir. 2005) (en banc), in order to "determine from the record whether the district court would have imposed a materially different sentence if it had known that the Sentencing Guidelines were advisory rather than mandatory, as the Supreme Court held in Booker." Receiving the case on limited remand, the district court solicited submissions from counsel, as required under Ameline. Silva's counsel sought a full sentencing hearing at which Silva could appear, but the district judge responded that a full sentencing hearing was not the Ninth Circuit's mandate and that the defendant's presence was not warranted. The judge reaffirmed Silva's original sentence, finding that the sentence would not be different under the advisory guidelines. Silva appealed, arguing that he had a right to allocute during the limited remand proceeding. The USCA's review of Ameline, its due process jurisprudence, and Fed. R. Crim. P. 32, revealed no constitutional or statutory reason to require allocution during an Ameline remand. It emphasized that the Ameline procedure was limited, and while the right to allocute at sentencing has the same quality as the right to put on a defense, the Circuit has never held that a defendant has a right to unlimited allocution. Denying allocution during a remand to discern sentencing error does not infringe on a defendant's constitutional rights, and the USCA's judicial role precluded it from engrafting new requirements into the Federal Rules of Criminal Procedure. Wallace, O'Scannlain (author), and Wardlaw, Circuit Judges. AUSA J. Goldberg of San Diego, CA, for the appellee; S. Hubachek of San Diego, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

45) SENTENCING: USA v. Jimenez-Ortega, 06-50007 (9th Cir. Jan. 5, 2007). At issue here was whether a district judge must make a finding of materiality before he can enhance a defendant's sentence for obstruction of justice based on perjury under Sentencing Guideline Sec. 3C1.1. The USCA found that post-USA v. Gaudin, 515 US 506 (1995), the materiality of a false statement is one of the factual predicates of an obstruction enhancement, and that it must remand where the district court had failed to make a finding on this point. Reinhardt, Kozinski, and Ikuta, Circuit Judges. Per Curiam. K. Pollreisz of San Diego, CA, for the defendant-appellant; AUSA R. Haines for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

46) SENTENCING: USA v. Hicks, 06-30193 (9th Cir. Jan. 11, 2007). At issue here was whether Booker's requirement that the district courts treat the U.S. Sentencing Guidelines as advisory applied to the resentencing of the defendant in this case pursuant to 18 USC Sec. 3582(c). See USA v. Booker, 543 US 220, 245-46 (2005). The USCA held that it does. Because the district court considered the Guidelines mandatory when resentencing Hicks, the USCA vacated his sentence and remanded to the district court for further proceedings. B. Fletcher (author), and McKeown, Circuit Judges, and Schwarzer, District Judge. R. Stewart of Anchorage, AK, for the defendant-appellant; AUSA D. Smith for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

47) SENTENCING: USA v. Hernandez-Castro, 06-10074 (9th Cir. Jan. 12, 2007). Under 18 USC Sec. 3553(f), known as the "safety valve" provision, a defendant may be sentenced below the applicable statutory minimum if certain conditions are met, including not having "more than 1 criminal history point, as determined under the sentencing guidelines." Id. Sec. 3553(f)(1). At issue here was whether, following USA v. Booker, 543 US 220, 245-46 (2005), the Guidelines are advisory for purposes of calculating criminal history points under Sec. 3553(f)(1). This was an issue of first impressions in the Ninth Circuit and it joined its sister circuits in holding that Booker left intact that requirement of Sec. 3553(f)(1) that a defendant "not have than 1 criminal history point." Section 3553(f)(1) is not, by virtue of its reference to the Guidelines, rendered advisory by Booker. Tashima and McKeown (author), Circuit Judges, and Carter, District Judge. AFPD R. Valladares of Las Vegas, NV, for the appellant; AUSA R. Gattinella of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

48) SENTENCING: USA v. Mercado, 05-50624 (9th Cir. Jan. 22, 2007). The defendants appealed their sentences for conspiracy to violate RICO and conspiracy to aid and abet narcotics trafficking. They maintained that in calculating their sentences under the Guide-lines, the district court erred when it considered criminal activity which had been charged in the indictment, but which the jury deter-mined had not been proved beyond a reasonable doubt. The USCA affirmed. It joined the parade of authority that have found no Sixth Amendment violation when sentencing judges consider conduct underlying acquitted counts. The USCA thus held that USA v. Booker, 543 US 220 (2005), has not abrogated the previously prevailing constitutional jurisprudence that allowed sentencing courts to consider conduct underlying acquitted criminal charges. Judge Fletcher dissented from the majority's holding that district court can rely on acquitted conduct when sentencing criminal defendants. She thought the majority had ignored Booker's requirement that the jury's verdict alone must authorize a defendant's sentence. Id. at 235. She thought that when a jury refuses to convict a defendant on a count, but the trial court nonetheless relies on that same acquitted conduct to increase the defendants' sentences sevenfold, the jury has not authorized the resulting sentences in any meaningful sense. B. Fletcher (dissenting), Fernandez (author), and Graber, Circuit Judges. T. Amdur of Pasadena, CA, and E. Stanford of Pacific Palisades, CA, for the defendants-appellants; AUSA R. Dugdale of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

49) SENTENCING: USA v. Perez, 06-30161 (9th Cir. Jan. 31, 2007). On an earlier appeal, the USCA found the trial record sufficient to conclude from the district court's comments at Perez' sentencing hearing that there existed a reasonable probability that Perez would have received a different sentence had the district judge known that the sentencing guidelines were advisory. The USCA then remanded for a full resentencing. USA v. Perez, 142 F. App'x 305, 305-06 (9th Cir. 2005) (unpublished memorandum). Rather than do just that, the trial court took it upon itself to perform a "limited" Ameline remand and ratified the original sentence without the benefit of the new, full resentencing the USCA had found necessary. It should not have done so. The USCA thus vacated and remanded for a full-resentencing under post-Booker advisory guidelines. Farris, Clifton, and Bea (author), Circuit Judges. AFPD J. Rhodes of Missoula, MT, for the defendant-appellant; AUSA T. Racicot of Missoula, MT for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

50) SUPERVISED RELEASE: USA v. Reynard, 02-50476 (9th Cir. Jan. 12, 2007). Reynard sought review of the district court's decision to revoke his supervised release. The district court had revoked his supervised release because he refused to proffer a blood sample as required by the DNA Analysis Backlog Elimination Act of 2000. Failure to provide a blood sample constituted a violation of the terms of his supervised release. On appeal, Reynard maintained that the DNA Act violates the Fourth Amendment, is impermissibly retroactive, violates the Ex Post Facto Clause, violates the Commerce Clause, and violates the Fifth Amendment. The USCA affirmed the district court's revocation of Reynard's supervised release and found that the DNA Act constitutes a valid exercise of Congress's power pursuant to the Commerce Clause. Dissenting, Judge Pregerson thought that Congress lacked the authority to enact the DNA Act under the Commerce Clause. He thus dissented from Part E of the majority's opinion and from the majority's judgment. Pregerson (author of Parts I through II(D), in which he was joined by Judges Tashima and Clifton; he dissented as to Part II(E) and from the Judgment); Tashima, and Clifton (author of Part II(E), in which Judge Tashima joined), Circuit Judges. S. Hubachek of San Diego, CA, for the defendant-appellant; AUSA M. Rehe of San Diego, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

51) SENTENCING: Benitez v. Garcia, 04-56231 (9th Cir. Jan. 22, 2007). 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 petitioned for a writ of habeas corpus, arguing that his sentence could not exceed 30 years because of a sentence limitation contained in the extradition decree from the Supreme Court of Venezuela and the Venezuelan Ministry of Foreign Affairs. The district court denied the petition. The USCA revered and granted the petition. Where the provisions of the extradition treaty so provide, the surrendering country may condition extradition of the fugitive on punishment limitations. The Supreme Court has clearly established that the extraditing country's expectations must be respected if they are within that country's rights under the extradition treaty. As was its right under the U.S.-Venezuela extradition treaty, Venezuela made clear its expectation that upon extradition Benitez would not be sentenced to a potential life sentence. The state court's decision not to enforce Venezuela's expectation was objectively unreasonable. Farris, D.W. Nelson, and Tallman, Circuit Judges. Per Curiam. B. Strickland of San Diego, CA, for the appellant; DAG M. Mulford of San Diego, CA, for the appellee. [The panel opinion in this case filed May 23, 2006, 449 F.3d 971, is withdrawn and the current opinion substituted for it.](Download the full text of this decision at www.ce9.uscourts.gov/)

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

1) BANKRUPTCY: In re Grayson, 04-36105 (9th Cir. Jan. 3, 2007) (unpublished). Rymer, Berzon, and Tallman, Circuit Judges. Grayson appealed the bankruptcy court's order finding him ineligible for Chapter 13 relief. The USCA affirmed. Grayson would have qualified as a Chapter 13 debtor only if, on the date he filed his bankruptcy petition, he owed less than $290,525 in non-contingent, liquidated, unsecured debts. 11 USC Sec. 109(e); Revision of Certain Dollar Amounts in the Bankruptcy Code prescribed under Sec. 104(b) of the Code, 66 Fed. Reg. 10910-02 (Feb. 20, 2001) (adjusting the debt limit under Sec. 109(e) from $269,250 to $290,525). "The language of the statute clearly states that the amount of the debt is determined as of 'the date of the filing of the petition.'" Slack v. Wilshire Ins. Co. (In re Slack), 187 F.3d 1070, 1073 (9th Cir. 1999) (quoting 11 USC Sec. 109(e)). Thus, in determining Chapter 13 eligibility, the "bankruptcy court cannot look to post-petition events to determine the amount of the debt." Id. The fact that the King County Superior Court ordered Grayson to put $230,087.53 of proceeds he had received from real estate contracts into a blocked trust account may have affected Grayson's interest in the proceeds, but not the debt he owed to Mihoko Tanaka. Grayson's reliance on Davis v. Cox, 356 F.3d 76 (1st Cir. 2004), to support his contention that Tanaka had a secured interest in the funds was misplaced. Even if Davis was the law of the Ninth Circuit, the First Circuit did not hold that Davis had a secured interest in the escrowed funds. Rather, it held that Cox was divested of legal title, and thus the escrowed funds did not become a part of Cox's bankruptcy estate. Id at 93-94. ("The funds held in custodia legis did not pass into the bankruptcy estate upon the filing of the bankruptcy petition.") Assuming Grayson's estate maintained an interest in the funds placed in the blocked account, Tanaka's putative security interest is directed at the funds in the blocked account, not at any contingent property interest that may remain in the estate. As a claim is secured only "to the extent of the value of sub creditor's interest in the estate's interest in such property," Sec. 506(a)(1), Tanaka had no cognizable security interest for purposes of Sec. 109(e).

2) BANKRUPTCY: In re Kloza, 04-16837 (9th Cir. Jan. 31, 2007) (unpublished). Hug, Tashima, and Gould, Circuit Judges. SN Servicing Corporation appealed the Bankruptcy Appellate Panel's dismissal of its appeal of the bankruptcy court's order disallowing SN Servicing's imposition of a prepayment penalty against Stanley and Diane Kloza. The BAP dismissed the appeal because SN Servicing filed both its notice of appeal and motion for extension of time past the deadlines established by Fed. R. Bank. Proc. 8002. Because the appeal was untimely, the BAP held that it did not have jurisdiction to consider the merits of SN Servicing's claims. The USCA affirmed. The timeliness of a notice of appeal is a question of law reviewed de novo. Saunders v. Band Plus Mortgage Corp. (In re Saunders), 31 F.3d 767, (9th Cir. 1994) (per curiam). Timeliness is a jurisdictional matter, and neither the USCA nor the BAP has jurisdiction to consider the merits of a claim where an appeal to the BAP is untimely. Id. The BAP dismissed SN Servicing's appeal of the bankruptcy court's order because SN Servicing filed both its notice of appeal and extension motion after the deadline for each had passed. Federal Rule of Bankruptcy Procedure 8002 states that a notice of appeal shall be filed within ten days of the date of the entry of the judgment, order, or decree being appealed. The time period for filing a notice of appeal may be extended, provided that a request to extended time is filed before the time for filing a notice of appeal has expired. Fed. R. Bankr. P. 8002(c). Upon a showing of "excusable neglect," however, an extension motion may be "filed not later than 20 days after the expiration of the time for filing a notice of appeal." Fed. R. Bankr. P. 8002(c)(2). The bankruptcy court issued its order disallowing SN Servicing's imposition of a prepayment penalty against the Klozas on February 12, 2004. SN Servicing filed a notice of appeal on March 5, 2004, a motion for stay pending appeal on March 9, 2004, and a motion for extension of time on March17, 2004. Thus, SN Servicing filed its notice of appeal 22 days after entry of the bankruptcy court's order and its extension motion 34 days after entry of the order. Accordingly, the BAP dismissed SN Servicing's appeal as untimely and "void for lack of jurisdiction." SN Servicing argues that the BAP's dismissal was improper pursuant to the excusable neglect exception in Rule 800(c) because the bankruptcy court previously granted its motion to extend time. In the Ninth Circuit, the standard for determining excusable neglect is strict. Oregon v. Champion Int'l Corp., 680 F.2d 1300, 1301 (9th Cir. 1982) (per curiam) (quoting Selph v. Council of the City of Los Angeles, 593 F.2d 881, 883 (9th Cir. 1979). An extension of time due to excusable neglect is only allowed in "extraordinary cases where injustice would otherwise result." Id. (quoting Headlee v. Ferrous Fin. Serv. (in re Estate of Butler's Tire & Battery Co.), 592 F.2d 1028, 1034 (9th Cir. 1979). It is true that the bankruptcy court granted SN Servicing's extension motion in which SN Servicing argued that its tardiness was justified under the excusable neglect exception because it did not receive a copy of the bankruptcy court order disallowing the prepayment penalty. However, the BAP rejected this argument, stating that "failure to receive notice of the entry of an order does not excuse the filing of an untimely notice of appeal." According to the BAP, "counsel is expected to monitor the docket to insure that critical time limits do not pass." Granted, a considerable amount of time had elapsed before the bankruptcy court issued its order, but the BAP pointed out that SN Servicing "was not taken wholly by surprise" that the bankruptcy court's order was entered on February 12, 2004, as the Klozas served SN Servicing's attorney with the proposed order only days before. The BAP correctly rejected SN Servicing's excusable neglect defense. Inadvertence
or mistake of counsel does not constitute excusable neglect under this standard. Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir. 1986) (per curiam). Lack of notice of the entry of an order does not constitute excusable neglect either. Delaney v. Alexander (In re Delaney), 29 F.3d 516, 518 (9th Cir. 1994). "It is well-settled that failure to receive notice of entry of judgment or order is not an excuse for an untimely appeal because it is the party's affirmative duty to monitor the dockets." Warrick v. Birdsell (In re Warrick), 278 B.R. 182, 187 (B.A.P. 9th Cir. 2002). Consequently, SN Servicing could not legitimately claim excusable neglect. Regardless, even if it had a valid argument, SN Servicing filed its extension motion four days after the deadline established by Rule 8002(c)(2). SN Servicing also argued that the doctrine of unique circumstances applied in this case. Under the unique circumstances doctrine, an appellate court may consider an untimely appeal if the delay was induced by affirmative assurances from the district court that the appeal would be timely. Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1462 (9th Cir. 1992). Unique circumstances will excuse an untimely notice of appeal only if the bankruptcy court explicitly extended the deadline for appeal and if a judicial officer has specifically assured an appellant that the appeal would be timely. Osterneck v. Ernst & Whinney, 489 US 169, 179 (1989). The judicial act in question must occur within the original time period for appeal. Fiester v. Turner, 783 F.2d 1476 (9th Cir. 1986). In sup-port of its argument, SN Servicing pointed to the fact that the bankruptcy court granted its extension motion. SN Servicing further relied on the fact that it filed a motion for stay pending appeal, which the bankruptcy court granted. This argument failed, however, because the bankruptcy court did not grant SN Servicing's extension motion within the applicable time period, as is required. The extension order was not issued until May 11, 2004, approximately two months after the deadline passed. Additionally, the bankruptcy court did not specifically assure SN Servicing that its appeal would be timely. Rather, Judge King's order merely stated that "the time for filing a Notice of Appeal is extended to March 5, 2004." Granting SN Servicing's extension motion, by itself, was not enough to give rise to unique circumstances. Anderson v. Mouradick (In re Mouradick), 13 F.3d 326, 329 (9th Cir. 1994). Moreover, neither SN Servicing's untimely notice of appeal nor its motion for stay pending appeal constituted a valid motion for extension of time. Williams v. EMC Mortgage Corp. (In re Williams), 216 F.3d 1295, 1297-98 (11th Cir. 2000); Pettibone v. Cupp, 666 F.2d 333, 335 (9th Cir. 1981). Similarly, the bankruptcy court clerk's acceptance of SN Servicing's untimely notice of appeal also did not give rise to unique circumstdances. Even if these filings could have given rise to unique circumstances, SN Servicing failed to file them within the time period dictated by Rule 882. Although the bankruptcy court should not have granted SN Servicing's untimely extension motion, nothing the bankruptcy court did constitutes unique circumstances. The BAP thus correctly rejected SN Servicing's unique circumstances defense and dismissed its appeal as untimely.

3) IMMIGRATION / ISLAMIC LAW: Hussien v. Gonzales, 05-71255 (9th Cir. Jan. 4, 2007) (unpublished). D.W. Nelson, Paez, and Smith, Circuit Judges.

Hussien petitioned for review of two Board of Immigration Appeals ("BIA") decisions: one denying his direct appeal from the entry of an in absentia order of removal, and one affirming the denial of his motion to reopen and rescind. Hussien, who had previously been married and divorced under Sharia religious law, entered into a civil marriage with Semira Hussien, a U.S. citizen, in Ethiopia, and then emigrated with his new wife to the United States. In his petition for an immigrant visa, he failed to disclose his prior religious marriage and divorce. In 2000, he and his wife filed a visa petition to bring his three children to the U.S. and for the first time disclosed information concerning his previous marriage. Before the Department of Homeland Security ("DHS") had issued a decision on the visa petition, Hussien filed a petition to naturalize. In May 2001, the DHS denied the visa application for his children on the ground that Hussien's Sharia divorce was invalid. One year later, it denied his application for naturalization on the ground that he had committed fraud by failing to disclose his previous marriage and divorce. The DHS then initiated removal proceedings. During the removal proceedings, the Immigration Judge ("IJ") heard testimony on the law and customs of marriage and divorce in Ethiopia and determined that Hussien's first marriage had lawfully ended in accordance with Islamic law, declined to find fraud or material misrepresentation in his visa application, and terminated the removal proceedings. The DHS appealed the IJ's decision to the BIA which found that Hussien's failure to disclose information about is previous marriage was a willful misrepresentation. The BIA determined that the petitioner was inadmissible and removable under 8 USC Secs. 1182(a)(6)(C)(i) and 1227(a)(1)(A). Specifically, the BIA held that Hussien's misrepresentations were material because he had not obtained a valid divorce from his wife at the time he married his second wife, and that the lack of a valid divorce, if disclosed, would have prevented the petitioner from obtaining a visa based upon his marriage to his second wife. The BIA remanded the matter to the IJ for further proceedings. When the petitioner failed to appear at a scheduled hearing, the IJ ordered him removed in absentia. The IJ denied his motion to reopen the in absentia removal order. Following his appeal, the BIA affirmed the IJ's denial of his motion to reopen. Hussien filed a timely petition for review of the BIA's decision.

Based on the record before it, the USCA was not convinced that the DHS had established that that Hussien was inadmissible under Sec. 1182(a)(6)(C)(i) for willfully misrepresenting a material fact or that he was deportable under Sec. 1227(a)(1)(A). The DHS failed to establish that Hussien was still married to his first wife when he married his second or that he had willfully misrepresented his marital history. Because the DHS failed to establish by clear, unequivocal and convincing evidence that Hussien was inadmissible for fraud and thus removable, the USCA granted his second petition for review and vacated the order of removal.