1) SECURITIES LAW: Glazer Capital Management v. Magistri, 06-16899 (9th Cir. Nov. 26, 2008). Glazer Capital Management and Glazer Offshore Fund ("Glazer") appealed from the district court's August 31, 2006 judgment of dismissal. Glazer's claims arose after InVision Technologies announced, in March 2004, that it had entered into a merger agreement with General Electric ("GE"). Several months later, in July 2004, InVision issued a press release, casting doubt on the merger because of the discovery of potential violations of the Foreign Corrupt Practices Act of 1997 ("FCPA"). Although the proposed merger ultimately was consummated, the July 2004 announcement resulted in an immediate drop in InVision shareholders and Glazer was appointed lead plaintiff. To support the shareholders' claim, Glazer focused on three alleged misstatements in the 60-page merger agreement, which InVision had included as an attachment to its Form 10-K filed pursuant to Sec. 13 of the Securities Exchange Act of 1934. The alleged misstatements appeared in the "representations and warranties" section of the merger agreement. The district court concluded that Glazer had not adequately pled either falsity or scienter with respect to the alleged misstatements and dismissed Glazer's action. The USCA affirmed. The district court did not err when it dismissed Glazer's Second Amended Consolidated Complaint, did not abuse its discretion when it denied leave to file a Third Amended Consolidated Complaint, and did not err when it entered a judgment dismissing the action. Glazer had not pled facts that would either directly or indirectly give rise to a strong inference of scienter on the part of those officers responsible for making the false statements contained in the merger agreement. Wallace (author) and Graber, Circuit Judges, and Schiavelli, District Judge. J. Abraham of New York, NY, for the appellants; S. Muck of San Francisco, CA, for the appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/)

2) BANKRUPTCY: In re Laizure, 06-16857 (9th Cir. Nov. 17, 2008. At issue here was whether a creditor that is required to return to the trustee a payment from the debtor made within the 90-day preference period still maintains a claim against the debtor for a nondis-chargeable claim. Busseto Foods maintained that the payment it was required to pay to the trustee was a repayment of funds embezzled by the debtor, Laizure, and a nondischargeable claim. The Bankruptcy Appellate Panel ("BAP") affirmed the bankruptcy court, holding that 11 USC Sec. 502(h) only allows Busseto to bring a claim against the bankruptcy estate and not also against the debtor. The USCA reversed and remanded for further proceedings. In affirming the bankruptcy court, the BAP had narrowly read Sec. 502(h) as only allowing Busseto to pursue a claim against the bankruptcy estate and not the debtor. This interpretation prevented Busseto from pursing a claim against Laizure personally and effectively left it unable to recoup any of the money it paid to the estate because all of the money in the estate was used to apply the trustee's fees and the priority tax claims. The BAP's conclusion, however, conflicts with USCA precedent as well as the relevant statutory language. Hug (author) and N.R. Smith, Circuit Judges, and Mills, District Judge. M. Wilhelm of Fresno, CA, for the appellant; K. Kelly of Fresno, CA, for the appellee..(Download the full text of this decision at www.ce9.uscourts.gov/)

3) BANKRUPTCY: In re Caneva, 07-15686 (9th Cir. Nov. 5, 2008). Caneva appealed the district court's order affirming the bank-ruptcy court's grant of summary judgment in favor of Sun Communities Operating Limited Partnership ("Sun"). The bankruptcy judg-ment denied Caneva discharge pursuant to 11 USC Sec. 727(a)(3) because it was undisputed that Caneva failed to keep or preserve records with respect to certain business entities that he owned or controlled with respect to a payment of $500,000 to one Anita Bow-den. Caneva assigned errors to both judgments, asserting that "genuine issues of material fact" can be found in the record. The USCA affirmed. In support of its motion for summary judgment, Sun submitted uncontested testimony from Caneva that he did not have re-cords with respect to certain of his business entitles and as to a $500,000 payment to a third party. Sun carried its burden under 11 USC Sec. 727(a)(3) by establishing a prima facie case that Caneva had failed to keep or preserve records and that such failure made it impossible to ascertain his financial condition and material business transactions. This prima facie case shifted to Caneva the burden to avoid summary judgment by showing that a genuine issue of material fact existed with respect to whether his failure was justified under the circumstances of his case. Instead of attempting to shoulder this burden, Caneva focused on his assertion that he had produced boxes of unidentified documents which by themselves created a question of material fact as to whether those documents were adequate. That, the USCA held, was not enough. The terms of 11 USC Sec. 727(a)(3) do not condition a debtor's discharge upon his presenta-tion of the documents that he kept and preserved. Rather, the statute imposes an affirmative duty on the debtor to keep and preserve records that will allow his creditors to ascertain his financial condition and business transactions. A debtor who has admitted to owning businesses for which he kept no records and to transferring a substantial sum of money without retaining any documentation has not kept or preserved information within the meaning of the statute, and must provide a justi-fication for this failure that goes beyond a conclusory statement in an affidavit that he is entitled to discharge. Goodwin, Beezer, and Bybee, Circuit Judges. Per Curiam. R. Sunkin of Phoenix, AZ, for the appellant; E. Stanley of Scottsdale, AZ, for the appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

4) INTELLECTUAL PROPERTY: Halicki Films v. Carroll Shelby Intl., 06-55806 (9th Cir. Nov. 12, 2008). The plaintiffs ap-pealed from those parts a district court's summary judgment that granted the defendants' motion for summary judgment, dismissing the plaintiffs' claims for: (1) copyright infringement; (2) common law trademark infringement; (3) federal unfair competition; and (4) de-claratory relief. The district court found that the plaintiffs lacked standing to assert these claims. The USCA held that the district court erred in (1) its refusal to use extrinsic evidence submitted by the plaintiffs to aid in its interpretation of an agreement between the parties, finding that the extrinsic evidence did not show that the agreement was reasonable susceptible to the plaintiffs' interpretation; (2) its interpretation of disputed language in an agreement between Halicki and a corporation, not a party to this action; (3) its application of the wrong legal standard in concluding that the plaintiffs did not have statutory standing to assert their claims for trademark infringement and unfair competition; and (4) its conclusion that the plaintiffs did not have statutory or Article III standing to assert their claims for declaratory relief. The USCA thus vacated the district court's summary judgment dismissing the plaintiffs' copyright, common law trademark infringement, unfair competition, and declaratory relief claims and remanded the case for further proceedings. Reinhardt, Miner (author), and Berzon, Circuit Judges. J. Koepke of Los Angeles, CA, for the appellants; R. Helfing of Los Angeles, CA, for the appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/)

5) TRADEMARK INFRINGEMENT: E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., 06-56237 (9th Cir. Nov. 5, 2008). At issue here was whether a producer of a video game in the "Grand Theft Auto" series has a defense under the First Amend-ment against a claim of trademark infringement. Rockstar Games ("Rockstar"), a wholly owned subsidiary of Take-Two Interactive Software, manufactures and distributes the Grand Theft Auto series of animated video games (the "Series"), including Grand Theft Auto: San Andreas ("San Andreas" or the "Game"). The Series is known for an irreverent and sometimes crass brand of humor, gratuitous violence and sex, and overall seediness. E.S.S. Entertainment 2000, Inc. ("ESS") operates a real strip club on the eastern edge of downtown Los Angeles under the name Play Pen Gentlemen's Club. It claims that Rockstar's depiction of a strip club called "Pig Pen" infringes it trademark and trade dress associated with the Play Pen. Although Rockstar artists took some inspiration from photographs they took of the Play Pen, it seems they used photos of other East Los Angeles locations to design aspects of the Pig Pen. Rockstar moved for summary judgment on all of ESS's claims, arguing that the affirmative defenses of nominative fair use and the First Amend-ment protected it against liability. It also argued that its use of ESS's intellectual property did not infringe ESS's trademark by creating a "likelihood of confusion." The district court rejected Rockstar's nominative fair use defense but granted summary judgment based on the First Amendment defense. It did not address the merits of the trademark claim because its finding that Rockstar had a defense against liability made such analysis unnecessary. The USCA affirmed. Rockstar's modification of ESS's trademark is not explicitly misleading and is thus protected by the First Amendment. Since the First Amendment defense applies equally to ESS's state law claims as to its Lanham Act claim, the district court properly dismissed the entire case on Rockstar's motion for summary judgment. Gibson, O'Scannlain (author), and Graber, Circuit Judges. R. Helfing of Los Angeles, CA, for the appellant; R. Frackman of Los Angeles, CA, for the appellees..(Download the full text of this decision at www.ce9.uscourts.gov/)

6) CLEAN AIR ACT: Romoland School District v. Inland Empire Energy Center, 06-56632 (9th Cir. Nov. 18, 2008). The Romoland School District and several individuals and environmental groups (collectively "plaintiffs") appealed the denial of their motions for a preliminary injunction and the dismissal with prejudice of their two claims against Inland Empire Energy Center ("IEEC"), a wholly-owned subsidiary of General Electric Company. The plaintiffs brought suit against IEEC under the citizen suit provision of the Clean Air Act ("CAA") in connection with IEEC's plans to construct an 810-megawatt power plant approximately 1,100 fee from the Romoland Elementary School in Riverside County, California. IEEC's motion to dismiss contended that the district court lacked jurisdiction over the suit because IIEC had been granted a permit under Title V of the CAA and such permits may not be challenged in civil or criminal enforcement proceedings in federal district court under 42 USC Sec. 7604. The plaintiffs also included as a defendant in their CAA action the South Coast Air Quality Management District ("SCAQMD"), the local air pollution control agency that issued the relevant permit and authorized IEEC to begin construction of the power plant. After the district court denied the plaintiffs' motion for a preliminary injunction and dismissed their claims against IEEC under Fed. R. Civ. Proc. 12(b)(6), the plaintiffs sought voluntarily to dismiss their claims against the air district under Fed. R. of Civ. Procedure 41(a)(2) to gain "final judgment for purposes of an appeal." The district court granted Plaintiffs' motion, but the accompanying order did not state that the dismissal of the claims against the air district was with prejudice. At issue on appeal was (1) whether the district court's dismissals of the claims in this case presented the USCA with a final decision pursuant to 28 USC Sec. 1291, and (2) whether the Central District of California was an appropriate fo-rum, and 42 USC Sec. 7604 an appropriate statutory basis for the plaintiffs' challenge such that the district court had jurisdiction over its pursuant to 28 USC Sec. 1331. The USCA concluded that the orders appealed from were part of a final judgment and thus that it had jurisdiction over the case, but that the district court did not. It thus affirmed the district court's dismissal of the claims against IEEC with prejudice, holding that the claims against the air district should also should be deemed to be dismissed with prejudice not-withstanding the voluntary dismissal order's silent on this point, and also holding that all proceedings on the plaintiffs' motion for a preliminary injunction were void because the district court was without jurisdiction to entertain that motion. Wallace (concurring), Gould (author), and Ikuta, Circuit Judges. M. Joseph of South San Francisco, CA, for the appellants; R. Wyman of Los Angeles, CA, and B. Hogin of Orange, CA, for the appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/)

7) ENVIRONMENTAL LAW: Alaska Wilderness League v. Kempthorne, 07-71457 (9th Cir. Nov. 20, 2008). The petitioners are six organizations that support environmental conservation, indigenous communities, and wildlife populations of Northern Alaska. They challenged the Minerals Management Service's ("MMS") approval of an exploration plan submitted by Shell Offshore Inc. ("Shell"). Shell sought to drill multiple offshore exploratory oil wells over a three-year period in the Alaskan Beaufort Sea. The petitioners maintained that MMS failed to take the requisite "hard look" at the impact of drilling on the people and wildlife of the Beaufort Sea region in violation of the standards set forth by the National Environmental Policy Act ("NEPA"), the Outer Continental Shelf Lands Act ("OCSLA"), and their implementing regulations. The petitioners also argued that MMS erred by failing to prepare an environmental impact statement ("EIS") for the proposed exploration activities, because of the potential for significant harmful effects on the envi-ronment. The USCA vacated the agency's approval of Shell's exploration plan, and remanded so that MMS could conduct the "hard look" analysis required by NEPA. Dissenting, Judge Bea thought the majority had substituted its "expertise" in environmental science for that of the expert agency to which Congress entrusted primary analytic responsibility. In the statutorily required 30-day period MMS had to approve or deny Shell's request for an exploration permit, the agency parsed nearly 1,600 pages of in-depth scientific analysis. The voluminous study-a "hard look" by any rule-revealed that, while the drilling project might have some small impact on the environment, the impact was not significant enough for MMS to require a costly , time-consuming, duplicative EIS or "revised" EA. The analysis was neither arbitrary nor capricious and is entitled to deference. Judge Bea also thought that North Slope Borough and the Alaska Eskimo Whaling Commission and Resisting Environmental Destruction on Indigenous Lands filed their petitions for review after the time allowed by the applicable statute of limitations, and neither Congress nor the USCA provide them with an exception to the requirement of timely filing. D.W. Nelson (author), Reinhardt, and Bea (dissenting), Circuit Judges. C. Winter of Portland, OR, for the petitioners; D. Shilton of Washington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/)

8) ENVIRONMENTAL LAW: Wildwest Institute v. Bull, 07-35044 (9th Cir. Nov. 6, 2008). At issue here was whether the U.S. Forest Service complied with federal environmental law in its management of the Bitterroot National Forest. In 2000, the Bitterroot National Forest in Montana suffered severe damage from by wildfires. The fires affected more than 307,000 acres and the entire Mid-dle East Fork community was evacuated. Although the Middle East Fork community was spared, many unburned fuels remain in the area, making it a high-risk area for future wildfires. Additionally, the region is in the midst of a Douglas-fir bark beetle epidemic, which is contributing significantly to the existing fuel levels. As a result of these conditions, the Forest Service developed the Middle East Fork Hazardous Fuel Reduction Project (the "Project"). The Project was developed under the Healthy Forests Restoration Act ("HFRA"). After the Forest Service's final decision to implement the Project, Wildwest Institute filed suit, asserting that the Forest Service's decision-making process, as well as its substantive decision, violated the National Environmental Policy Act ("NEPA"), the National Forest Management Act ("NFMA"), as well as the HFRA. Specifically, Wildwest maintained that the Forest Service committed procedural violations by (1) irretrievably committing resources in favor of its preferred alternative before making its final decision, (2) failing to engage in adequate public collaboration, and (3) ignoring competing scientific views. Substantively, Wildwest challenged the Project's impact on soil productivity, old growth habitat, species viability, and watershed sedimentation. Along with its complaint Wildwest moved for a temporary restraining order and preliminary injunction, primarily relying on its three procedural claims. The district court denied the motion, concluding in part that Wildwest had made an insufficient showing that it was likely to prevail on the merits of such claims. The USCA affirmed. The Forest Service satisfied NEPA by properly considering the northern goshawk's habitat needs. In addition, the record supported the Forest Service's conclusion that the Project "would have no impact on black-backed woodpeckers adjacent to the Project, and, the Project area contained only minimal black-backed woodpecker habitat because of "the lack of moderate to high intensity fires in the past." Goodwin, O'Scannlain (author), and Fisher, Circuit Judges. T. Woodbury of Missoula, MT, for the appellants; S. Person of Washington, DC, for the appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

9) CONTRACTS: McDonald v. Sun Oil Company, 06-35683 (9th Cir. Nov. 19, 2008). The plaintiffs appealed the district court's grant of summary judgment in favor of Sun Oil, Sunoco, and Cordero Mining (collectively "Sun"). The plaintiffs sued for negligence, contribution, breach of contract and fraud. Each claim arose out of an alleged oral warranty that certain crushed rock at the Horse Heaven Mine Property, a disused mercury mine, was free of mercury. The district court held that Oregon's statute of repose barred the plaintiffs' negligence claim, that their claim for contribution failed to comply with an administrative requirement, that their breach of contract claim failed because of the merger doctrine and the parole evidence rule, and that their fraud claim failed to raise a genuine issue of material fact. The USCA affirmed in part, reversed in part, and remanded for trial. The district court erred in granting summary judgment to Sun on the negligence claim and that claim was remanded for trial. The district court correctly held that summary judgment was proper on the contribution, breach of contract and fraud claims. Pregerson and Reinhardt, Circuit Judges, and Strom, District Judge. B. Foster of Portland, OR, for the appellants; H. Segall of Washington, DC, for the appellees..(Download the full text of this decision at www.ce9.uscourts.gov/)

10) LABOR LAW / ARBITRATION: Rogers v. Royal Caribbean Cruise Line, 07-55071 (9th Cir. Nov. 6, 2008). Michael Rogers and Hulya Kar appealed the district court's order granting their employer's motion to compel arbitration. They argued that federal statutes exempt their employment contracts from the scope of U.S. Code Title 9. The USCA held that their employment contracts are "considered as commercial" under Title 9. Thus, the arbitration provisions contained in the employment contacts were enforceable and the USCA affirmed the judgment of the district court. Dissenting, Judge Noonan thought the court should not do what Congress did not and proclaim the elimination of the statutory remedy for foreign seaman. Congress, he noted has chosen to set in place two routes for the seaman, including the foreign seaman. He or she may arbitrate or he or she may proceed without paying costs to sue in federal district court. Noonan (dissenting), W. Fletcher (author), and Gould, Circuit Judges. J. Farzam of Los Angeles, CA, for the appellants; S. Bohrer of Los Angeles, CA, for the appellee..(Download the full text of this decision at www.ce9.uscourts.gov/)

11) LABOR LAW: Sullivan v. Oracle Corp., 06-56649 (9th Cir. Nov. 6, 2008). Oracle, a software company, has employed hundreds of workers to train Oracle customers in the use of its software. During the period relevant to this suit, Oracle classified these workers as teachers who were not entitled to compensation for overtime work under either federal or California law. Three nonresidents of California brought a would-be class action against Oracle seeking damages under California law for failure to pay overtime. The plaintiffs performed only some of their work for Oracle in California. Their first two claims were based on work performed in California. Their third claim was based on work performed anywhere in the United States. The district court granted summary judgment to Oracle on all three claims, on the ground that the relevant provision of California law did not apply to the work performed by the plaintiffs. The USCA reversed the summary judgment on the first two claims and affirmed on the third. It held that California's Labor Code applies to work performed in California by nonresidents of California. It affirmed the district court's grant to summary judgment. It held that California's Unfair Competition Law (Cal. Bus. & Prof. Code. Sec. 17200) does not apply to allegedly unlawful behavior occurring outside California causing injury to nonresidents of California. W. Fletcher (author) and Gould, Circuit Judges, and Pollak, District Judge. C. Russell of Tustin, CA, for the appellants; S. Berry of Costa Mesa, CA, for the appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/)

12) SOCIAL SECURITY: Vasquez v. Astrue, 06-16817 (9th Cir. Nov. 5, 2008). Vasquez appealed from the district court's grant of summary judgment for the Commissioner of Social Security upholding a denial of Disability Insurance benefits under 42 USC Sec. 401 et seq. and Supplemental Security Income benefits under 42 USC Sec. 1381 et seq. Vasquez claims that the Commissioner im-properly discounted her symptoms, failed to consider evidence of her severe mental impairment, and improperly applied principles of res judicata. The USCA vacated the district court's judgment and remanded to the Commissioner for a hearing on the issue of whether Vasquez was entitled to benefits. Concurring, Judge Hawkins noted that according to the credit-as-true rule, when an ALJ fails to pro-vide specific, articulable reasons to support an adverse credibility finding, the USCA should not remand solely to allow the ALJ to make specific findings regarding that testimony. Rather, it should take that testimony to be established as true. Judge Hawkins concurred with the entirety of Judge Selna's opinion, including the application of the credit-as-true in this case. He wrote separately to clarify why application of the credit-as-true rule is appropriate and why this case does not present an opportunity for en banc review of the conflict identified by the dissent. Dissenting, Judge O'Scannlain thought the Circuit's two lines of precedents regarding credit-as-true cases could not be reconciled and had to be resolved by the court sitting en banc. O'Scannlain (dissenting) and Hawkins (concurring), Circuit Judges, and Selna (author), District Judge. J. Miller of Oakland, CA, for the appellant; J. Cusker of San Francisco, CA, for the appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

13) RENT CONTROL / TAKINGS: Equity Lifestyle Properties v. County of San Luis Obispo, 05-55406 (9th Cir. Nov. 25, 2008). (The opinion in this case filed Sept. 17, 2007 has been withdrawn and replaced with the current opinion.) At issue here was whether a municipal rent control ordinance survives a due process and equal protection challenge or requires payment of compensation as a government taking. The USCA held that Manufactured Home Communities (MHC) had standing based on its financial interest in the Sea Oaks Manufactured Home Community in Los Osos, California ("the Park"). However, the USCA affirmed the district court's dismissal of MHC's complaint as it contained no claim upon which relief could be granted because its as-applied takings claim was unripe; its facial claims failed to satisfy the applicable statute of limitations; and, its due process and equal protection claims lacked merit under the U.S. Constitution. Moreover, the principles of abstention justified the District Court dismissal of the petition for a writ of administrative mandamus, and the USCA declined to disturb the state trial court's subsequent decision denying the writ. Hall, O'Scannlain (author), and Callahan, Circuit Judges. D. Bradford of Chicago, IL, for the petitioner; T. McNulty of San Luis Obispo, CA, for the respondents. .(Download the full text of this decision at www.ce9.uscourts.gov/)

14) PRIVACY ACT: Rouse v. U.S. Dept. of State, 06-15967 (9th Cir. Nov. 24, 2008). Leon Rouse, a U.S. citizen, was arrested in the Philippines when police entered his hotel room and found him and another individual, Godfrey Domingo, undressed. Domingo singed an affidavit stating he was a minor and that he and Rouse had engaged in sexual relations. Though Domingo later disavowed the affidavit, Rouse was charged under Philippine law with violating the "Special Protection of Children Against Child Abuse Exploitation and Discrimination Act." The trial court ignored Domingo's repudiation and convicted Rouse, relying on the original affidavit, testimony indicating Rouse had engaged in consensual sex with a 20-year old male who "looked like a minor," and the fact that Domingo and Rouse were found undressed together. Rouse continued to challenge his conviction in Philippine courts, but was sentenced to over ten years imprisonment. After eight years, he was released for medical reasons and deported to the United States. Over the course of his confinement, Rouse executed numerous Privacy Act waivers permitting the U.S. Department of State to disclose information about his case to third parties. On several occasions, the Department responded to inquires from private organizations and members of Congress without mentioning its doubts as to the propriety of Rouse's assets and incarceration or its efforts to obtain his release. The Department also initially refused to release information to certain individuals or groups. Rouse maintains that he had signed Privacy Act waivers covering these parties and that the failure to disclose the records constituted willful and intentional misrepresentations on the part of the Department. Rouse later filed a petition with the United Nations Human Rights Committee ("UNHRC"). The UNHRC issued its views that Rouse had been improperly imprisoned on a number of evidentiary and procedural grounds. Just short of two years following his return to the U.S., Rouse filed a pro se complaint in federal district court. He sought over nine million dollars in damages and alleged that the Department violated the Privacy Act by willfully and intentionally failing to maintain and disseminate records regarding his case with the appropriate level of accuracy, relevance, timeliness, and completeness. As Rouse maintained that his arrest, indictment, and trial were fraught with procedural and evidentiary defects, he asserted that the Department's actions deprived him of the benefits of diplomatic and third-party efforts to secure his freedom. The district court granted the Department's motion to dismiss, determining that Rouse's claims "would fail on the merits because of a lack of causation," the Privacy Act did not afford Rouse a remedy, and Rouse's complaint was "probably" bared by the applicable statute of limitations. Rouse appealed. At issue on appeal was whether Rouse could state a claim against the Department under the Privacy Act for damages arising from his imprisonment in the Philippines. The USCA affirmed the district court's ruling that the Privacy Act did not afford a remedy for the harm Rouse suffered. Because Rouse's complaint was filed outside the two year statute of limitations, and because he cannot demonstrate the diligence necessary to trigger equitable tolling, his claims were properly dismissed as time-barred. Moreover, even if not time-barred, his claims would fail on the merits. The gravamen of Rouse's theory of causation was that the Department willfully and intentionally failed to keep, to maintain, and to disseminate accurate records about his case. He argued that if the Department had maintained, and disseminated accurate records about his case, it (or a third party) would have been able to file diplomatic or other protests with the Philippine government. If those protests had been filed, Rouse would have been released from prison. The resulting prolonged imprisonment, Rouse claimed, caused him extreme emotional distress and other non-pecuniary harms. The USCA agreed with the Department's counsel that Rouse's chain of inferences "stretches any notion of proximate cause beyond the breaking point." Regardless of whether or not the records were accurately maintained and disseminated, it is pure speculation that the Department would review them and decide to pursue additional diplomatic protests. It is speculation upon speculation then to assume that if the Department or third parties decided to protest further, such protests would have ensured Rouse's early release. Indeed, such claims are belied by the record itself, which demonstrates that official Embassy protests n Rouse's case were unavailing. Thus, the district court did not err when it dismissed the case for lack of causation. O'Scannlain (author), Gould, and Bea, Circuit Judges. K. Hong of Oakland, CA, for the appellant; AUSA D. Watson of Honolulu, HI, for the appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/)

15) CIVIL RIGHTS: Torres v. Los Angeles, 06-55817 (9th Cir. Nov. 13, 2008) (The opinion of Aug. 26, 2008 has been withdrawn and replaced by the current opinion). In 2004, Torres, then 16 years old, was arrested, without a warrant, on charges of murder and attempted murder. After 162 days of incarceration, he was released when the district attorney dismissed the charges. Torres and his mother brought a civil rights action under 42 USC Sec. 1983 against the City of Los Angeles, its police department ("LAPD"), and four individual detectives (Roberts, Hickman, Park and Rains) who had investigated the shooting. The plaintiffs sought damages under both federal and state law. After granting summary judgment for the City and the LAPD, the district court denied two of the plaintiffs' motions in limine and, after all the parties had presented their evidence to the jury, granted the remaining defendants' motion for judgment as a matter of law. The USCA affirmed in part, reversed in part, and remanded. It held that the district court abused its discretion in denying the plaintiffs, in limine motion. It instructed the court on remand and upon proper motion by the plaintiffs, to require that the defendants, pursuant to Fed. R. Civ. Proc. 26(a)(2)(B), provide the plaintiffs with an expert report prepared by Officer Peters if they wish to call him as an expert witness. The USCA did not reach the same conclusion with respect to Detective Giroud. While the defendants conceded that Giroud was an expert witness, not all expert witnesses need provide an expert report. By exclusion, Rule 26(a)(2)(B) contemplates that individuals who are employed by a party and whose duties do not regularly involve giving expert testi-mony need not provide an expert report. The USCA found no evidence in the record that the duties of Giroud, who was employed by the LAPD, regularly involved giving expert testimony. On the record, the USCA could not determine whether Rule 26(a)(2)(B) ap-plied to him. It thus left it to the district court on remand to determine whether Rule 26(a)(2)(B) requires the defendants to provide the plaintiffs with an expert report prepared by Giroud. The USCA affirmed the district court's dismissal of the plaintiffs' case against Detective Hickman and of the plaintiffs' Sec. 1983 claim against Detective Rains. It reversed the grant of judgment as a matter of law as to Detectives Roberts and Park. It reversed in part the denial of the plaintiffs' in limine motions. B. Fletcher (author) and N.R. Smith, Circuit Judges, and King, District Judge. N. Brestoff of Valencia, CA, for the appellants; R. Delgadillo of Los Angeles, CA, for the appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/)

16) FALSE CHARGES OF CHILD ABUSE: Humphries v. County of Los Angeles, 05-56467 (9th Cir. Nov. 5, 2008). The Humphries are every parent's nightmare. Accused of abuse by a rebellious child, they were arrested, and had their other children taken away from them. When a doctor confirmed that the abuse charges could not be true, the state dismissed the criminal case against them. The Humphries then petitioned the criminal court, which found them "factually innocent" of the charges for which they had been ar-rested, and ordered the arrest records sealed and destroyed. Similarly, the juvenile court dismissed all counts of the dependency peti-tion as "not true." Notwithstanding the findings of two California courts that the Humphries were "factually innocent" and the charges "not true," the Humphries were identified as "substantiated" child abuses and placed on California's Child Abuse Central Index ("CACI"), a database of known or suspected child abusers. As the Humphries learned, California offers no procedure to remove their listing on the database as suspected child abusers, and thus no opportunity to clear their names. More importantly, California makes the CACI database available to a broad array of government agencies, employers, and law enforcement entitles and even requires some public and private groups to consult the database before making hiring, licensing, and custody decisions. At issue on appeal was whether California's maintenance of the CACI violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given a fair opportunity to challenge the allegations against them. The USCA held that it does. The CACI is governed by the Child Abuse and Neglect Reporting Act ("CANRA"), Cal. Penal Code Secs. 11164-11174. CANRA violates Humphries' procedural due process rights, in violation of 42 USCA Sec. 1983. The USCA thus reversed the district court's grant of summary judgment to the County of Los Angeles and remanded for further proceedings consistent the USCA's opinion. Bybee (author) and M.D. Smith, Circuit Judges, and Mills, District Judge. E. Boynton of Beverly Hills, CA, for the appellants; M. Rutter of Los Angeles, CA, for the appellees; DAG P. Epstein for the State defendant-appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

17) NATIVE AMERICAN LAW / DRAM SHOP LIABILITY: Cook v. Avi Casino Enterprise, 07-15088 (9th Cir. Nov. 14, 2008). Cook, a California resident, sought recovery for damages suffered as a result of a motor vehicle accident in which, while on a motorcycle, he was hit by a drunk driver. The driver was an employee of Avi Casino Enterprises ("ACE"), a tribal corporation, who allegedly became intoxicated at an Avi Casino function. Cook sued the tribal corporation and several of its employees, alleging negli-gence and dram shop liability. The defendants asserted as defenses (1) that subject matter jurisdiction was lacking because the Indian tribe that owns ACE is, like Cook, a California citizen, and (2) that tribal sovereign immunity shields ACE and its employees from suit. The USCA affirmed. It found that that it has jurisdiction over ACE due to the diversity of citizenship. However, the district court had properly dismissed Cook's claims against ACE and individual defendant Dodd and Purbaugh as they were protected by tribal sovereign immunity. The USCA held that tribal immunity protects tribal employees acting in their official capacity and within the scope of their authority. Cook had sued Dodd and Purbaugh in their official capacity only. The district court thus correctly dismissed them from the suit. Concurring, Judge Gould noted that Cook lacked a remedy against Avi Casino for his grave injuries, even if his assertions of negligence by casino employees were correct. Judge Gould's thought it would be desirable if (1) the U.S. Supreme Court, on review, were to establish a new rule limiting tribal sovereign immunity in this gaming context; or if (2) Congress were to pass new legislation limiting the sovereign immunity of tribal entities involved in ubiquitous commercial gaming activities across the United States; or if (3) the Tribe itself were to take responsibility for its casino employees actions, and affirmatively waive sovereign immunity in this case permitting Cook's action to be resolved under litigated adversarial process. Alternatively, Judge Gould said his concerns would be alleviated if one were to hold that the "sue and be sued" clause in a tribal enabling ordinance effectuated a waiver of tribal sovereign immunity. Dissenting in part, Judge Fernandez said that to the extent if is necessary to opine on diversity jurisdiction, which it he thought it probably is not, he did not agree that there is diversity. He noted that the Circuit has indicated that, in general, a tribal corporation is a citizen of the state (here three states) within whose boundaries the reservation is located. While the majority rejected this proposition, it is one simple way to resolve the question at issue and is no more fictional that the approach adopted by the majority. Finally, if the court is to apply the usual corporate diversity rule, Judge Fernandez saw no principles basis for accepting the fiction that for diversity purposes a corporation that has its principal place of business (here its only place of business) on tribal property has it principle place of business in a state (Nevada), while rejecting the fiction that for diversity purposes a state where the corporation was incorporated (here the tribal headquarters in California) is a corporation "of" that state even though it was not incorporated by that state (California). That is especially true where the corporation, as here, is an arm of the tribe. Fernandez (dissenting in part), Gould (author and concurring), and Bea, Circuit Judges. B. Booke of Las Vegas, NV, for the appellant; T. Julian of Phoenix, AZ, for the appellees..(Download the full text of this decision at www.ce9.uscourts.gov/)

18) IMMIGRATION: Latu v. Mukasey, 05-75889 (9th Cir. Nov. 3, 2008). Latu, a native and citizen of Tonga, sought review of a Board of Immigration Appeals' dismissal of his appeal from an order of the Immigration Judge ("IJ"). The IJ found Latu removable pursuant to 8 USC Sec. 1227(a)(2)(A)(i) for being convicted of a crime involving moral turpitude ("CIMT"). Latu was convicted for violating Hawaii Revised Statute Sec. 291C-12.5, which requires a driver involved in an accident resulting in substantial injury to re-main at the scene of the accident, provide certain information, and render assistance as required by Hawaii Revised Statute Sec. 291C-14. After oral augment, the USCA deferred submission pending a decision in Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. 2008). Cerezo held that a conviction under a California statute nearly identical to the Hawaii statute was not a CIMT. Following Cerezo, the USCA held that Latu's conviction was not a CIMT and granted Latu's petition. Dissenting, Judge O'Scannlain thought that Hawaii's hit-and-run statute did define a crime involving moral turpitude for purposes of removal under the immigration laws. O'Scannlain (dissenting), Tashima (author), and M.D. Smith, Circuit Judges. R. Ferrer of Wailuku, HI, for the petitioner; K. Moore of Washington, DC, for the respondent..(Download the full text of this decision at www.ce9.uscourts.gov/)

19) IMMIGRATION: Abebe v. Mukasey, 05-76201 (9th Cir. Nov. 20, 2008). Abebe became a lawful permanent resident in 1984. In 1992, he pled guilty to lewd and lascivious conduct upon a child. Cal. Penal Code Sec. 288(a). The INS commenced removal proceedings on the ground that he was deportable as having committed an "aggravated felony," 8 USC Sec. 1227(a) (2)(A)(iii), and "sexual abuse of a minor," 8 USC Sec. 1101(a) (43)(A). The Immigration Judge ("IJ") denied Abebe's asylum, withholding of removal and Convention Against Torture claims, and found him ineligible for a discretionary waiver of deportation under former Immigration and Nationality Act. Sec. 212(c), 8 USC Sec. 1182 (repealed 1996). On appeal to the Board of Immigration Appeals ("BIA"), Abebe main-tained that he was eligible for Sec. 212(c) relief. The BIA affirmed, and Abebe petitioned for review. The USCA denied the petition for review in part and dismissed it in part. Under its plain language, Sec. 212(c) only give the Attorney General discretion to grant law-ful permanent residents relief from inadmissibility-not deportation. The USCA could conceive of a rational reason Congress may have had in adopting this statutory scheme: Congress could have limited Sec. 212(c) relief to aliens seeking to enter the country from abroad in order to create an incentive for deportable aliens to leave the country. A deportable alien who wishes to obtain Sec. 212(c) relief will know that he can't obtain such relief so long as he remains in the United States. If he departs the U.S., however, he could become eligible for such relief. By encouraging such self-deportation, the government could save resources it would otherwise devote to arresting and deporting these aliens. Saving scarce resources that would otherwise be paid for by taxpayers is a legitimate congres-sional objective. The USCA thus overruled the holding of Tapia-Acuna v. INS, 640 F.2d. 223 (9th Cir. 1981), that there is not rational basis for providing Sec. 212(c) relief from inadmissibility, but not deportation. The BIA thus didn't violate the petitioner's right to equal protection by finding him ineligible for Sec. 212(c) relief from deportation. Since the petitioner was not eligible for Sec. 212(c) relief in the first place, the BIA could not have committed an equal protection violation by denying him such relief. Judge Clifton, joined by judges Silverman and Gould, concurred in the result but did not join in most of the majority's decision because he thought it both unnecessary and unwise to overrule Tapia-Acuna to reach that result. The original decision by the three-judge pane in this case reached the same result as the majority reached, simply by applying the court's existing precedent. Judge Clifton thought the en banc panel should to the same. Kozinski, Pregerson, Kleinfeld, Thomas (dissenting), Silverman, Gould, Tallman, Clifton (concurring), Cal-lahan, Bea, and N.R. Smith, Circuit Judges. Per Curiam. R. Jobe of San Francisco, CA, for the petitioner; DAAG T. Dupree of Wash-ington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/)

20) IMMIGRATION: Hakopian v. Mukasey, 05-72532 (9th Cir. Nov. 19, 2008). Hakopian, a native and citizen of Iran, entered the U.S. without inspection. She filed an application for asylum and withholding of removal on July 12, 2002. On September 6, 2002, the INS charged her with removability under INA Sec. 212(a)(6)(A)(i). The INS's Notice to Appear alleged that Hakopian entered the U.S. at or near San Ysidro, California, on or about April 29, 2002. At a hearing before an IJ on November 13, 3003, she admitted that she entered the U.S. on the same date alleged in the Notice to Appear. After a hearing on the merits of her claim for asylum, withhold-ing of removal and Convention Against Torture ("CAT") relief, the IJ found that she had no documents to establish the date, time, and manner of her entry, only her own testimony. The IJ thus ruled that her application was time-barred because she failed to establish by clear and convincing evidence that she filed the application within one year of entry into the United States. The USCA held that the IJ erred by finding that Hakopian failed to establish by clear and convincing evidence that she timely filed her asylum application. The IJ failed to recognize that the government's allegation that Hakopian entered the U.S. on April 29, 2002, and Hakopian's subsequent re-sponsive admission of the government's allegation constituted a judicial admission of the April 29, 2002 date of entry for the purposes of this proceeding. Hakopian's entry date was thus undisputed and she had established that her asylum application was not time-barred. However, the USCA denied her petition for review for the reasons set forth in the memorandum disposition filed together with this opinion. (See Memo Decision #10 below.) Gould and Bea (author), Circuit Judges, and Sedwick, District Judge. J. Alesio of Santa Clara, CA, for the petitioner; AAAG J. Bucholtz of Washington, DC, for the respondent..(Download the full text of this decision at www.ce9.uscourts.gov/)

21) IMMIGRATION: Ahmed v. Mukasey, 07-73661 (9th Cir. Nov. 19, 2008). (See Memo decision #11 below.) Ahmed, a citizen of Ethiopia, began her immigration proceedings in 2000 when she applied for asylum and withholding of removal. She hired Getachew to represent her before the Immigration Court because Getachew was also Ethiopian, and Ahmed could easily communicate with her. No retainer agreement was signed and their dealings were very informal. On July 22, 2002, the IJ denied Ahmed's application. Four days later, she married Sabir, a U.S. citizen. Sabir filed a Petition for Alien Relative (Form I-130). On January 8, 2004, the BIA summarily affirmed the IJ's decision. Getachew informed Ahmed that she would need to reopen the case on the basis of her marriage, and referred her to Obayemi, another attorney. Neither Getachew nor Obayemi explained their professional or financial arrangement to Ahmed. They repeatedly assured her that they were both representing her. Obayemi, however, appeared to be the only one working on the motion to reopen for adjustment of status. Neither attorney told Ahmed when the motion to reopen was due. On October 4, 2004, 270 days after the BIA had dismissed her asylum appeal, they filed it. As it post-dated the 90-day deadline for motions to reopen, they argued for tolling based on changed country conditions. But, this exception did not apply to Ahmed, who sought to reopen based on ad-justment of status. 8 CFR Sec. 1003.2(c)(3) (ii). The Department of Homeland Security ("DHS") opposed the motion because it was untimely, and because Ahmed provided "scant evidence" that there marriage was "bona fide." The BIA denied the motion because it was untimely. In February 2007, Ahmed, represented by new counsel, filed a second motion to reopen based on ineffective assistance of her former counsel. He provided supplemental evidence that her marriage was bona fide (e.g., joint bank account statements, joint insurance policy, joint title to a car, joint phone bills, a statement of joint occupancy of their residence, and the birth certificate of their son who was born in 2006). On August 14, 2007, the BIA denied Ahmed's second motion to reopen. It determined that Ahmed had failed to establish prejudice because Ahmed's first motion to reopen would have been denied even if it had been timely. It noted that the DHS had opposed the motion when it was filed, and held that such opposition would have mandated a denial of the motion. Ahmed then sought review of the BIA's denial of her motion to reopen. The USCA granted the petition for review, determined that the BIA erred in finding that Ahmed failed to show prejudice, and remanded to the BIA for further proceedings. It noted that it is certainly possible that Ahmed and Sabir were not engaged in an "actual and legitimate" relationship in early 20004. Perhaps it only became bona fide in subsequent years. Ahmed's I-130 petition, however, had been approved, and she has now provided a wealth of records proving the legitimacy of her marriage. Because Ahmed had only to show "plausible grounds for relief," the BIA erred in holding that his first motion to reopen would have been denied. Schroeder, D.W. Nelson (author), and Reinhardt, Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; C. Farrell of Washington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/)

22) IMMIGRATION: Khunaverdiants v. Mukasey, 07-70145 (9th Cir. Nov. 18, 2008). Khunaverdiants, a native and citizen of Iran, entered the U.S. without inspection. He appealed a BIA decision affirming an IJ's denial of his asylum application as time barred. The Attorney General responded that under 8 USC Sec. 1158(a)(3) the court lacked jurisdiction to review the BIA's finding that Khunaverdiants failed to timely file his asylum application. The USCA found that it had jurisdiction to review that determination under 8 USC Sec. 1252(a)(2)(D). It then granted the petition and reversed the BIA's decision. However, it noted that its ruling that Khunaverdiants was eligible for asylum did not automatically entitle him to asylum. Under 8 USC Sec. 1158(b)(1), the Attorney Gen-eral has discretionary authority to grant asylum. The USCA thus remanded to the AG to make a discretionary decision regarding whether to grant asylum to Khunaverdiants. Gould and Bea, Circuit Judges, and Sedwick (author), District Judge. A. Issakhanian of Glendale, CA, for the petitioner; A. Alyeshmerni of Washington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/)

23) IMMIGRATION / HABEAS CORPUS: Flores-Torres v. Mukasey, 08-16484 (9th Cir. Nov. 10, 2008). Since October 10, 2006, the Bureau of Immigration and Customs Enforcement ("ICE") has detained Flores-Torres in immigration custody during his ongoing removal proceedings. ICE claims it has the authority to do so under the Immigration and Nationality Act ("INA"), which permits the detention of an "alien" who is in removal proceedings. Torres, however, maintains that he is not an alien, that he became a U.S. citizen at the age of 17 when he mother was naturalized, and that ICE is thus without authority to detain him. The USCA reversed the district court's dismissal for lack of jurisdiction of Torres' habeas petition challenging his continued confinement, and remanded for a determination of whether he is a citizen and thus immune from detention under the INA. Schroeder, D.W. Nelson, and Reinhardt (author), Circuit Judges. H. Cooper of Davis, CA, for the petitioner; J. Russoniello of San Francisco, CA, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/)

24) IMMIGRATION: USA v. Youssef, 07-10335 (9th Cir. Nov. 5, 2008). Youssef appealed his conviction for making a false statement in an immigration document in violation of 18 USC Sec. 1015(a). At issue was whether violation of Sec. 1015(a) requires the false statement to be "material" as an element of the offense. The USCA held that it does not, and affirmed Youssef's conviction. Con-gress expressly used the word "material" in other provisions that criminalize the making of false statements, such as 18 USC Sec. 1001(a). Its omission of the word "material" from Sec. 1015(a), combined with its inclusion of the word "material" in a similar statutory provision, was evidence of its expressed intent to impose a materiality requirement in Sec. 1015(a). Section 1001(a) explicitly requires a false statement to be material. Congress could have written a materiality requirement into Sec. 1015(a) too, but chose not to do so. Thus, Sec. 1015(a) should be interpreted as Congress enacted it, without a materiality requirement. Farris, Siler, and Bea, Circuit Judges. Per Curiam. J. Park of Phoenix, AZ, for the appellant; D. Humetewa of Phoenix, ZA, for the appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

25) FELON IN POSSESSION OF FIREARMS: USA v. Nevils, 06-50485 (9th Cir. Nov. 20, 2008). Nevils appealed a jury conviction for being a felon in possession of firearms and ammunition in violation of 18 USC 922(g)(1). The USCA reversed because the evidence offered at trial was insufficient with regard to the element of knowing possession. It held that Nevils could not be convicted for his mere sleeping presence in an apartment during criminal activity by others, and he could not be convicted of a violation of Sec. 922(g) based on "mere presence" even if he were, at some point, awake and aware that others were committing crimes involving guns and drugs in the apartment. The government did not produce sufficient evidence beyond evidence of "mere presence" and gang affilia-tion. The undisputed evidence established that Nevils was asleep when the police arrived. The USCA held that the government failed to produce evidence that would have allowed a rational jury to infer knowing possession beyond a reasonable doubt. It may be natural to assume that "somebody must have possessed the weapons because they were there," but the government did not offer sufficient evi-dence to prove that that "someone" was Nevils. Dissenting, Judge Bybee noted that Nevils was surprised when two Los Angeles Police Officers with guns drawn ordered him not to move. But Nevils was not amazed in the least by the circumstances in which he found himself: he had a loaded, chambered semiautomatic Tec 9 on his lap and a loaded, chambered .40 caliber pistol by his leg. Nor was he astonished by the marijuana, ecstasy, cash and a cell-phone on the table a foot away. Although the unoccupied apartment was not his, Nevils wasn't the least bewildered at finding himself in the apartment, as officers had found drugs and guns there just three weeks earlier and had arrested Nevils there for parole violation. According to one officer, Nevils first impulse was to "grab towards his lap" where the Tec 9 lay and "then he stopped and put his hands up." The jury found him guilty of being a felon in possession. The majority overturned this conviction because it found the evidence insufficient to show that Nevils knowingly possessed the guns. It surmised that it is equally plausible that someone-anyone, actually, since the defense couldn't finger anyone in particular-set Nevils up by placing the guns on him while he was in a drunken stupor. Thus, the majority held that no reasonable juror-certainly not the 12 who did-could have found that Nevils knowingly possess the guns. T.G. Nelson, Paez (author), and Bybee (dissenting), Circuit Judges. AFPD E. Newman of Los Angeles, CA, for the appellant; AUSA S. Leal of Las Vegas, CA, for the appellee..(Download the full text of this decision at www.ce9.uscourts.gov/)

26) HONNEST SERVICE FRAUD: USA v. Weyhrauch, 07-30339 (9th Cir. Nov. 26, 2008). This is an interlocutory appeal by the government of the district court's pretrial order excluding evidence from a mail fraud prosecution. It presented a matter of first impression in this Circuit-whether a federal honest service mail fraud prosecution under 18 USC Secs. 1341 and 1346 requires proof that the conduct at issue also violated an applicable state law. Preliminarily, the USCA also had to address the government's repeated failures to certify this appeal properly according to the jurisdictional requirements of 18 USC Sec. 3731. The USCA accepted the gov-ernment's fourth attempt to certify, and thus had jurisdiction under Sec. 3731. On the merits, the USCA disagreed with the district court that a state law violation was required, and thus reversed the court's order excluding certain evidence from trial. D.W. Nelson, Tashima, and Fisher (author), Circuit Judges. N. Marsh of Washington, DC, for the appellant; D. Pope of Anchorage, AK, for the appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

27) IDENTITY THEFT: USA v. Blixt, 07-30198 (9th Cir. Nov. 26, 2008). Blixt appealed from her jury conviction and sentence for mail fraud under 18 USC Sec. 1341 and aggravated identity theft under 18 USC Sec. 1028A. The district court denied Blixt's motion to dismiss the aggravated identity theft charge and subsequent motion for acquittal on the same count. The court determined as a matter of law that contrary to Blixt's assertion, a signature is a name for purposes of defining a "means of identification" as used in Sec. 1028A. The district court also denied Blixt's motion for acquittal on the mail fraud charge, rejecting her interpretation of what is required to prove the materiality element of the offense. Blixt appealed these rulings, the inclusion and exclusion of various jury instructions, and the court's decision not to depart downward for diminished mental capacity pursuant to U.S. Sentencing Guideline Sec. 5K2.13. The USCA affirmed. Blixt's attempt to distinguish a signature from a name for purposes of the Aggravated Identity Theft statute failed and the district court did not err in denying the motion to dismiss, the motion for acquittal and proposed jury instructions relating to the aggravated identity theft court. Blixt's materiality argument was also unavailing and the district court properly instructed the jury when it corrected defense counsel's erroneous closing argument regarding this element. The district court also acted within it s discretion when it gave curative instructions light of the jury nullification arguments made during closing arguments. The district court properly considered Blixt's non-convicton conduct in determining her sentence, and the sentence imposed was reasonable. The USCA thus affirmed and convicton and sentence. Graber and Rawlinson (author), Circuit Judges, and Wright, District Judges. P. Hoovestal of Helena, MT, for the appellant; AUSA M. Lahr of Helena, MT, for the appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

28) CONSPIRACY / EVIDENCE: USA v. Williams, 06-50599 (9th Cir. Nov. 6, 2008). The defendants appealed their convictions following a jury trial for conspiracy to interfere with interstate commerce by robbery, conspiracy to possess cocaine with the intent to distribute, and possession of a firearm during a drug crime and crime of violence. They argued that there was insufficient evidence to support their convictions, that their indictment should have been dismissed because of outrageous government conduct, and that the district court should have declared a mistrial because a juror revealed that she was the lone holdout. The USCA held that there was sufficient evidence to support the convictions and that the government did not deny the defendants their due process rights by engaging in outrageous conduct. Because the district court gave an improper Allen charge after a juror disclosed that she was a holdout, the USCA reversed and remanded for a new trial. The district court was required to declare a mistrial because the juror's note revealed that she was a holdout. Canby, Kleinfeld, and Bybee (author), Circuit Judges. B. Coleman, B. White, and M. Burke of San Diego, CA, for the appellants; AUSA S. Miller of San Diego, CA, for the appellee..(Download the full text of this decision at www.ce9.uscourts.gov/)

29) CONDITIONAL PLEAS: In re Gallaher, 07-74593 (9th Cir. Nov. 13, 2008). A district court that wants to review a defendant's Presentence Report ("PSR") cannot do so until the defendant has granted his consent or entered a plea. Consequently, because the district court exercised its discretion to deny its consent to Gallaher's conditional plea, the petition for a writ of mandamus had to be denied. However, because the district court erred by prematurely reviewing Gallaher's PSR, the USCA remanded for further proceedings, and reassigned the case to a new judge to consider de novo whether to accept Gallaher's conditional plea. McKeown (author) and Callahan, Circuit Judges, and Wright, District Judge. S. Hormel of Spokane, WA, for the petitioner; AUSA J. Harrington of Spokane, WA, for the real party in interest. .(Download the full text of this decision at www.ce9.uscourts.gov/)

30) SUPERVISED RELEASE: USA v. Miller, 07-30481 (9th Cir. Nov. 7, 2008). Miller appealed the district court's denial of his "Motion to Dismiss Revocation Petition and Request for Immediate Release from Custody." Relying primarily on USA v. Sullivan, 504 F.3d 969 (9th Cir. 2007), Miller argued that the district court lacked jurisdiction to revoke his supervised release and sentence him because, according to Miller, at the time the violation occurred, his supervised release term had ended. The USCA affirmed the district court's conclusion that the Sullivan ruling did not apply here. Unlike the defendant in Sullivan, Miller was transferred to the Bannock County Jail Work Release Program while still serving his federal sentence. That transfer occurred pursuant to 18 USC Sec. 3624(c), under which Miller remained "imprisoned" and under the custody of the Bureau of Prisons until his release from Bannock County Jail. Sullivan, by contrast, involved a state prisoner in Montana who, while serving a state sentence, was transferred to a Montana state pre-release center. The USCA agreed with the district court that the time that Miller spent at the Bannock County Jail constituted "imprisonment," and not, as Miller contends, supervised release. Miller's supervised release term thus did not commence until his release from the Bannock County Jail Work Release Program. Accordingly, the district court did have jurisdiction to revoke Miller's supervised release and sentence him to 14 months imprisonment and 21 months of supervised release. The USCA affirmed the district court's denial of Miller's Motion to Dismiss. Pregerson (author), Canby, and Noonan, Circuit Judges. N. Vieth of Spokane, WA, for the appellant; AUSA M. Mallard of Spokane, WA, for the appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

31) HABEAS CORPUS: Doody v. Schriro, 06-17161, (9th Cir. Nov. 20, 2008). Seventeen-year old Doody was interrogated over-night for 12 hours straight. When, after several hours, he fell silent and refused to answer more questions, the officers persisted, asking dozens of questions, many over and over again, and telling him he had to answer them. The resulting confession was used in Arizona state court to convict him of multiple courts of murder and robbery. He now petitions for a writ of habeas corpus on the grounds that (1) the Miranda warnings he received were insufficient; (2) the officers' words and conduct during the interrogation effectively "de-Mirandized" him; and (3) his confession was involuntary. The USCA affirmed the district court's denial of the writ on Doody's Miranda claims but reversed on his voluntariness claim. The state's case relied almost entirely on Doody's confession and some peripheral, circumstantial evidence. The erroneous admission of Doody's confession had a "substantial and injurious effect or influence" on the jury's verdict. Brecht v. Abrahamson, 507 US, 619, 623 (1993). B. Fletcher, Berzon (author), and Rawlinson, Circuit Judges. A. Dershowitz of New York, NY, for the petitioner; AG T. Goddard of Phoenix, AZ, for the respondent..(Download the full text of this decision at www.ce9.uscourts.gov/)

32) HABEAS CORPUS: Waldrip v. Hall, 07-55512, (9th Cir. Nov. 18, 2008). Waldrip, a California state prisoner, filed a habeas petition under 28 USC Sec. 2254, which the district court dismissed as untimely under the statute of limitations in 28 USC Sec. 2244(d). At issue was whether Waldrip's state court post-convicton review proceedings should have been considered "pending' under Sec. 2244(d)(2) during a period of over eight months between the denial of a habeas petition by the California state court and the filing of a new petition on behalf of the same prisoner in a higher California state court, which was subsequently denied by the state court without comment as to whether it was timely filed. If so, then the limitations period for filing a habeas petition in federal court would not run, or would be tolled, during that time. Applying Evans v. Chavis, 546 US 189 (2006), however, the USCA concluded that a time gap in excess of six months was too long, absent sufficient justification based on unique facts pertaining to the individual petitioner which are not present in this case. The USCA thus affirmed the dismissal by the district court of Waldrip's federal petition as untimely. Trott, Clifton (author), and Callahan, Circuit Judges. DFPD G. Ivens of Los Angeles, CA, for the petitioner; DAG Y. Lee of Los An-geles, CA, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/)

1) BANKRUPTCY: Pack v. McCausland, 06-16496 (9th Cir. Nov. 19, 2008) (unpublished). This case arose from allegedly fraudulent statements regarding the "network costs per subscriber per month" of Freei Networks, Inc., a provider of free internet access and related services. Pack alleged that defendants McCausland, Menninger and Stevens told him that Freei's cost per subscriber per month were $1.50 when, in fact, they were $5.00. As a result, Pack invested $1.5 million in Freei which he lost when Freei filed for bankruptcy. Pack appealed from the district court's grant of summary judgment in favor of Stevens and from the denial of a request to amend his complaint to allege misrepresentations made in 1900. The USCA affirmed in part and vacated in part. In his brief opposing summary judgment, Pack conceded that his claims against Stevens were based solely on misrepresentations made in 1999 while claims in the operative complaint were limited to misrepresentations made in 2000. On appeal, Pack argued that his concession was a mistake and that the court erred by not considering a number of alternative theories of liability. These alternative theories were not presented to the district court, however, and the USCA noted that it generally will not consider an issue raised for the first time on appeal. Since Pack told the district court that his claims, as alleged, were unsupported, the USCA held him to that representation and affirmed the district court's summary judgment ruling. Upon conceding that Pack's claims against Stevens were based on misrepresentations made in 1999 rather than 2000, Pack asserted that he would move to amend to conform to proof. The district court preemptively denied Pack's request on the grounds that Pack had unduly delayed and acted in bad faith and that any amendment would prejudice Stevens. On reconsideration, the district court denied the amendment on the basis that, since Pack had alleged claims based on the 1999 misrep-resentations in earlier iterations of his complaint but had omitted them from the most recent version, he was procedurally barred from amending even in the absence of bad faith, undue delay or prejudice to defendants. This ruling was in error. It was a clearly erroneous application of the law and thus an abuse of discretion. The USCA has held that, on appeal, the scope of its review is limited to the alle-gations in the most recently complaint filed. Since "an amended pleading supersedes the original, the latter being treated thereafter as non-existent," a defeated plaintiff who has amended his complaint cannot argue on appeal that the district court erred in its ruling on the original complaint. The USCA has never held, however, that at the district court level, a plaintiff who omits previously dismissed claims from an amended complaint waives his right to re-allege those claims in further amendment. The USCA noted that the 1999 representations had been dismissed without prejudice from the earlier statement of Pack's complaint with the district court's warning that Pack may not re-allege the falsity of any statements of pre-February 2000 network costs without specific factual allegations which describe in detail why the statements are false and why knowledge of falsity can be imputed to the defendants. Discovery taken shortly before summary judgment motions were filed uncovered the basis for such "specific factual allegations." Thus, the findings of bad faith, undue delay, and prejudice were unwarranted. On remand, the USCA directed the district court to permit Pack to amend his complaint to re-allege claims against Stevens based on the 1999 misrepresentations. Brunetti, Roth, and Clifton, Circuit Judges. .(Download the full text of this decision at www.ce9.uscourts.gov/)

2) BANKRUPTCY: CarrAmerica Realty Corporation v. Nvidia Corporation, 06-17109 (9th Cir. Nov. 25, 2008) (unpublished). CarrAmerica Realty Corporation, its related corporate entities, and Carlyle Fortran Trust (collectively "creditors") appealed an order of the district court dismissing the creditors' complaints for lack of standing. The district court held that only the Chapter 11 bankruptcy trustee had standing to pursue the claims. The USCA affirmed in part and reversed in part. 3dfx Interactive, Inc. developed and manu-factured computer graphics chips. In 1995, it entered into a ten-year commercial lease with Carlyle for 77,805 square feet in an office building in California. In 1998, it leased approximately 26,000 square feet of commercial space in Texas from CarrAmerica. In mid-2000, 3dfx began to experience financial difficulties. Ultimately, 3dfx decided to sell its assets to NVIDIA, an unrelated company that also manufactured computer graphics chips. On December 15, 2000, 3dfx and NVIDIA entered into an Asset Purchase Agreement ("APA"), pursuant to which NVIDIA agreed to pay $70 million in cash for substantially all of 3dfx's assets. On December 15, 2000, after executing the APA, 3dfx terminated its employees, and NVIDIA immediately rehired them. These employees continued working in the premises leased from CarrAmerica for an unspecified period of time, in violation of 3dfx's lease agreement with CarrAmerica which barred "anyone other than Tenant and its employees [from occupying] any part of the Premises." NVIDIA instructed 3dfx to continue to pay rent to CarrAmerica and agreed to reimburse 3dfx for these rent payments at a later date. Eventually, 3dfx stopped paying rent to CarrAmerica and Carlyle. After the creditors sued for nonpayment of rent, 3dfx filed Chapter 11 bankruptcy in October 2002. The Chapter 11 trustee sued NVIDIA, seeking avoidance of a fraudulent transfer and recovery under a successor liability theory. The creditors also filed suit against NVIDIA. The district court dismissed the creditors' complaints for lack of standing. It held that all the creditors' claims alleged generalized injuries to the bankruptcy estate, meaning only the trustee had standing to pursue the claims. The USCA affirmed in part, reversed in part, and remanded in part. The district court's holding as to the trustee's standing is a conclusion of law that the USCA reviews de novo. The allegations of the complaint are taken as true. A bankruptcy trustee is the representative of the bankrupt estate and has the capacity to sue and be sued. Among the trustee's duties is the obligation to "collect and reduce to money the property of the estate." 11 USC Sec. 704(1). The "property of the estate" includes "all legal or equitable interests of the debtor in property as the commencement of the case." 11 USC Sec. 541(a)(1). The debtor's "causes of ac-tion" are "property of the estate." Smith v. Arthur Andersen, 421 F.3d 989, 1002 (9th Cir. 2005). Thus, the trustee "stands in the shoes of the bankrupt corporation and has standing to bring any suit that the bankrupt corporation could have instituted had it not petitioned for bankruptcy." Id. The trustee's standing to sue on behalf of the estate is exclusive; a debtor's creditors cannot prosecute such claims belonging to the estate unless the trustee first abandons such claims. Estate of Spiritos v. One San Bernardino County Superior Court, 443 F.3d 1172, 1175 (9th Cir. 2006). Here, the district court properly concluded that the Trustee had exclusive standing to sue with respect to all claims asserted by the creditors based on an underlying injury to 3dfx. The substance of most of the creditors' claims is that 3dfx fraudulently transferred its assets to NVIDIA because the APA provided for insufficient consideration. While the creditors were harmed by the alleged diminution of 3dfx's estate, depleting the assets available for the bankruptcy estate constitutes an injury to the bankrupt corporation itself, not an individual creditor of that corporation. Smith, 421 F.3d at 1002. Farris, Siler, and Bea, Circuit Judges. .(Download the full text of this decision at www.ce9.uscourts.gov/)

3) BANKRUPTCY: In re David Kimmel, 07-15155 (9th Cir. Nov. 25, 2008) (unpublished). William Rooz appealed the judgment of the Bankruptcy Appellate Panel affirming the bankruptcy court's dismissal of Rooz's complaint in an 11 USC Sec. 523(a)(2)(A) ad-versary proceeding. The USCA affirmed. Despite being given four opportunities to amend his original complaint, Rooz failed to state a claim for fraud. With respect to David Kimmel's allegedly fraudulent promise to pay Rooz $400 per month, the Fourth Amended Complaint did not allege how Rooz relied on this promise. For example, the Fourth Amended Complaint did not allege that Rooz agreed to forego further execution on the judgment if Kimmel made the promised payments or that Rooz was precluded from doing so. It also did not allege that Kimmel promised not to file for bankruptcy relief as a means of dealing with Rooz's debt. Rooz's contention that Kimmel and his wife, Roberta, engaged in a continuing fraudulent scheme to frustrate Rooz's collection efforts similarly failed. "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed. R. Civ. P. 9(b). In order to properly plead fraud with particularity, the complaint must allege the time, place, and content of the fraudulent representation such that a defendant can prepare an adequate response to the allegations. Moore v. Kayport Package Express, 885 F.2d 531, 540 (9th Cir. 1989). "Mere conclusory allegations of fraud are insufficient." Id. Rooz's allegations in the Fourth Amended Complaint were ambiguous as to the substantive facts constituting fraud. The USCA agreed with the BAP that Rooz's description of the Kimmels' "fraudulent scheme" failed to allege who committed the fraud or when and where the fraud occurred. Accordingly, the Fourth Amendment Complaint did not plead fraud with the particularity required. Because Rooz could prove no set of facts that would entitle him to relief, the USCA agreed with the BAP that the bankruptcy court was correct in dismissing Rooz's complaint. Additionally, having properly dismissed Rooz's complaint against Kimmel, the bankruptcy court clearly lacked jurisdiction over Roberta for Rooz's fraud claim in connection with her husband's bankruptcy case. Brunetti, Archer, and Clifton, Circuit Judges. .(Download the full text of this decision at www.ce9.uscourts.gov/)

4) BANKRUPTCY: In re Roberta Kimmel, 08-60004 (9th Cir. Nov. 25, 2008) (unpublished). William Rooz appealed a judgment of the Bankruptcy Appellate Panel affirming a bankruptcy court's dismissal of Rooz's complaint following the grant of Roberta Kimmel's Rule 12(c) motion for judgment on the pleadings. The USCA affirmed. The BAP, affirming the bankruptcy court, held that Rooz's claim under the California's Uniform Fraudulent Transfer Act was barred by the discharge injunction of 11 USC Sec. 524(a)(3). The USCA affirmed for the reasons stated in the BAP's opinion filed November 8, 2007. Brunetti, Archer, and Clifton, Circuit Judges..(Download the full text of this decision at www.ce9.uscourts.gov/)

5) BANKRUPTCY / ATTORNEYS' FEES: In re Upland Partners, 07-17263 (9th Cir. Nov. 25, 2008) (unpublished). William Ellis, an unsecured creditor in the bankruptcy estate of Chapter 11 debtor Upland Partners, appealed pro se from the district court's judgment affirming the bankruptcy court's orders awarding interim and final fees and costs to the bankruptcy trustee and his counsel. The USCA affirmed. The district court properly rejected Ellis's contention that the amount of fees and costs awarded was excessive in relation to the benefits to the estate and the creditors. The district court also properly rejected Ellis's argument that the trustee engaged in unnecessary work when he moved to sell the property of the estate rather than dismiss the case and when the sought sanctions against Ellis for conveying property of the estate to third parties in violation of the automatic stay. The USCA declined to consider Ellis's argument that certain feels and costs were not compensable under 11 USC Sec. 506(c), as this argument exceeds the scope of the appeal certified by the district court. Wallace, Leavy, and Thomas, Circuit Judges. .(Download the full text of this decision at www.ce9.uscourts.gov/)

6) COPYRIGHT LAW: Kramer v. From the Heart Productions, Inc., 07-55577 (9th Cir. Nov. 19, 2008) (unpublished). The dis-trict court did not abuse its discretion in concluding that the Kramers were estopped from asserting any copyright related claim against Thomas and Legler. The record established that the Kramers knew Thomas and Legler were going to do the acts the Kramers later claimed were infringing. Specifically, the Kramers and Warner/Chappel encouraged Thomas and Legler to make the film, knew that Thomas and Legler planned to distribute the film, and promised to negotiate a permanent synchronization license for all 15 compositions used in the film. In sum, the Kramers knew the facts and intended their conduct to be acted on with respect to the use of all 15 compositions that were the subject of their claims. Thomas and Legler spent years investing time and money in making the films, and they were ignorant of the fact that Warner/Chappell had agreed with the Kramers not to issue a permanent synchronization license to them. Thomas and Legler justifiably relied on the Kramers' representations to their detriment, in that they were never able to obtain the synchronization license after being offered distributions deals. These facts were sufficient to establish an estoppel defense. Although the bench trial in the case adjudicated only one of the Kramers' 15 copyright claims, the district court' determination that the Kramers were estopped from bringing any copyright claims against Thomas and Legler was equally applicable to all 15 claims. The Kramers argued that a bench trial adjudicating all 15 copyright claims might have had a different outcome than the bench trial here. According to the Kramers, the district court might have weighed the equities between the Kramers and the defendants differently if it had not granted the defendants summary adjudication as to 14 of the claims. However, the Kramers had not specified what evidence or arguments they would have adduced at a bench trial of all 15 claims that might have affected the court's analysis of the defendants' equitable estopple defense. The USCA thus affirmed the district court's judgment as to all 15 compositions based on Thomas' and Legler's estopple defense. The USCA did not reach the Kramers' arguments that Smith and Derminer's heirs did not receive a reversion of full renewal rights, or that the retroactive license that was granted was invalid. In refusing to award attorneys' fees to the defendants, the district court stated that "an award of attorney fees in this case would [not] significantly further the purpose of the Copyright Act." The USCA has held that this characterization of the test for attorneys' fees was an error that required reversal. Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 815-15 (9th Cir. 2003). "Under the Copyright Act, the question is whether a successful defense of the action furthered the purposes of the Act, not whether a fee award would do so." Id. at 816. The USCA thus vacated the district court's denial of attorneys' fees and remanded for reconsideration of whether attorneys' fees are warranted under 17 USC Sec. 505. Fernandez, Callahan, and Ikuta, Circuit Judges. .(Download the full text of this decision at www.ce9.uscourts.gov/)

7) CYBERSQUATTING: Anlin Industries, Inc. v. Burgess, 07-15662 (9th Cir. Nov. 26, 2008) (unpublished). Burgess appealed the district court's grant of summary judgment in favor of plaintiff Anlin Industries ("Anlin") on its two claims under the Anticybersquat-ting Consumer Protection Act ("ACPA"). The USCA reviewed the district court's grant of summary judgment de novo. It then reversed and remanded for further proceedings. Burgess argued that he lacked a bad faith intent to profit when he continued to use the "www.anlinwindows.com" domain name over Anlin's objections. Anlin argued that Burgess willfully infringed Anlin's marks after Anlin revoked its consent and that this infringement translated into a bad faith intent to profit under the ACPA. Determining bad faith intent to profit using the nine statutory factors and the "unique circumstances of the case" is fact dependent. 15 USC Sec. 1125(d)(1)(B)(i); Interstellar Starship Servs., Ltd. v. Epix, Inc., 304 F.3d 936, 946 (9th Cir. 2002). The district court found numerous material facts in dispute for the period of time prior to Anlin's cease and desist letter. Many of the same disputed facts were material to determining Burgess' intent during the period of time after receiving Anlin's letter. On remand, the USCA said the district court can address the factual disputes that cannot be resolved on a motion for summary judgment. Goodwin, Beezer, and Bybee Circuit Judges. .(Download the full text of this decision at www.ce9.uscourts.gov/)

8) CONTRACTS: Girard v. Toyota Motor Sales, U.S.A., Inc., 07-56534 (9th Cir. Nov. 24, 2008) (unpublished). Girard appealed a district court order granting Toyota Motor Sales, U.S.A., Inc.'s motion to dismiss for failure to state a claim. The USCA affirmed. Girard's claims under California's Unfair Competition Law ("UCL") and Consumers Legal Remedies Act ("CLRA) are governed by the "reasonable consumer" test, requiring him to "show that members of the public are likely to be deceived." Williams v. Gerber Prods. Co., 523 F.3d 934, 938 (9th Cir. 2008). "The likely to be deceived standard requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled." People ex rel. Dep't of Motor Vehicles v. Cars 4 Causes, 43 Cal. Rptr. 3d 513, 521 (Cal. Ct. App. 2006). Girard's negligent misrepresentation claim likewise hinges on the reasonable consumer standard since justifiable reliance cannot be established if reasonable consumers would not rely on the purported misrepresentation. Glen Holly Entm't, Inc. v. Tektronix, 352 F.3d 367, 379 (9th Cir. 1003). The district court correctly determined that Girard's allegations failed to sate an UCL, CLRA, or negligent misrepresentation claim because a reasonable consumer would not be misled by Toyota's statements. Each of the two-page documents at issue includes numerous eligibility disclaimers and recommendations to seek professional tax advice, which put readers on notice of hybrid tax credit restrictions. As a result, reasonable consumers would not be deceived by the advertisements underlying each of Girard's claims. Girard's unjust enrichment claims also failed since Toyota's non-deceptive advertising does not entitle him to restitutionary relief. Graber and Clifton, Circuit Judges, and Reed, District Judge. (.(Download the full text of this decision at www.ce9.uscourts.gov/)

9) CONTRACTS: Pacific West Group, Inc. v. Real Time Solutions, 07-56032 (9th Cir. Nov. 24, 2008) (unpublished). Pacific West Group appealed the district court's partial judgment on the pleadings and partial summary judgment in its diversity action against Real Time Resolutions, for breach of contract, fraud, and negligent misrepresentation arising out of the sale of certain loans. The USCA affirmed. The district court properly granted partial judgment on the pleadings to Real Time on Pacific West's breach of contract claim on the ground that the purchase agreements at issue contained warranty-waiver provisions. "Judgment on the pleadings is proper when there are no issues of material fact, and the moving party is entitled to judgment as a matter of law." Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventists Congregational Church, 887 F.3d 228, 203 (9th Cir. 1989). Here, there were no material fact issues because Pacific West has waived any unconscionability arguments regarding the warranty-waiver provision by failing to raise the issue either in the complaint or in the briefing before the district court. Moreover, even assuming that the issue of unconscionability was properly before the court, the argument would fail. The agreements were enforceable because both parties were sophisticated dealers of notes, and because Pacific West entered into the agreements freely and at arms' length without any particular time pressure or lack of available alternatives. Nor did the district court erroneously "assume" unpleaded facts in construing the scope of the warranty-waiver provisions. Under Texas law, where, as here, an "as is" clause is an important part of the basis of the bargain, not an incidental or boiler-plate provision, and was entered into by parties of relatively equal bargaining position, a buyer's affirmation and agreement that he was not relying on representations by the seller should be given effect. Cherry v. McCall, 138 S.W. 3d 35, 39-40 (Tex. App. 2004). In such an instance, the buyer cannot, as a matter of law, prevail on its breach of contract claim. Id. at 40. The district court properly granted partial judgment on the pleadings on the breach of contract claim rather than sua sponte granting Pacific West leave to amend. Motions for judgment on the pleadings under Fed. R. Civ. P. 12(c) and motions to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) are "functionally identical," Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989), and the USCA has held that in 12(b)(6) dismissals, leave to amend should be granted even if no request is made unless amendment would be futile. Here, Pacific West's pleadings regarding its breach of contract claim could not possibly be cured by the allegation of other facts because, as discussed above, the valid "as is" clause in the agreement bars such a claim as a matter of law. Cherry, 138 3d at 40. Pacific West conceded in its reply that Texas law governs the contracts in this action. The USCA agreed. Under Cal. Civ. Code Sec. 1646, because the contracts at issue were both made with the intent that they be performed in Texas, Texas law applies to Pacific West's claims. Although the district court applied the wrong "government interest" choice-of-law test, that error was immaterial because the district court applied Texas law. Finally, the district court properly granted partial summary judgment to Real Time on Pacific West's remaining fraud and negligent misrepresentation claims based on the warranty-waiver provision. Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Here, Real Time was entitled to judgment as a matter of law on Pacific West's fraud and negligent misrepresentation claims because: (1) under Prudential Insurance Co. of America v. Jefferson Associates, Ltd., 896 S.W. 2d 156, 161-62 (Tex. 1995), the warranty-waiver provisions constitute "as-is" clauses that bar a buyer's post-contract claims absent a showing of fraudulent inducement of impairment of inspection; and (2) Pacific West's evidence in the form of James Cotton's and Wayne Enderle's declarations failed to establish any genuine issue of material fact in support of either exception. Rymer and M. Smith, Circuit Judges, and Korman, District Judge..(Download the full text of this decision at www.ce9.uscourts.gov/)

10) IMMIGRATION: Hakopian v. Mukasey, 05-72532 (9th Cir. Nov. 19, 2008) (unpublished). [See Published Opinion #20 above.] Hakopian, a native and citizen of Iran, petitioned for review of a Board of Immigration Appeals order adopting and affirming an Immigration Judge's decision denying her claims for asylum, withholding of removal, and relief under the Convention Against Torture. Hakopian maintained that she would be persecuted and tortured if removed to Iran because she is an evangelical Christian. The IJ did not err in denying Hakopian's application for relief and the USCA denied her petition for review. The IJ's adverse credibility finding was supported by substantial evidence. Hakopian's asylum application, where she described only two incidents of persecution by gov-ernment agents, conflicted with her oral testimony, where she described an additional incident. This discrepancy went to the heart of Hakopian's claims for asylum, which was based on a fear of persecution. The IJ gave Hakopian an opportunity to explain this inconsis-tency and addressed Hakopian's explanation in a "reasoned manner," noting her inability to explain the discrepancy. The IJ's denials of Hakopian's claims for withholding of removal and CAT relief were also supported by substantial evidence. The State Department Country Condition Reports on which Hakopian relied demonstrate neither that it was more likely than not that she would be subject to persecution based on her religion nor that it is more likely than not that she would be tortured if removed to Iran. The USCA thus de-nied Hakopian's petition for review. Gould and Bea, Circuit Judges, and Sedwick, District Judge..(Download the full text of this decision at www.ce9.uscourts.gov/)

11) IMMIGRATION: Ahmed v. Mukasey, 04-70438 (9th Cir. Nov. 19, 2008) (unpublished). Ahmed petitioned the USCA for review of the Board of Immigration Appeals' denial of her application for asylum, withholding of removal, and relief under the Conven-tion Against Torture, and denial of her first motion to reopen for adjustment of status based on the ineffective assistance of her former counsel. Her three petitions were consolidated before the USCA. The USCA denied the first two petitions and granted the third in a separate opinion. [See Published Opinion #21 above.] Where the BIA affirms without opinion, the USCA directly reviews the immi-gration judge's decision as though it were the decision of the BIA. Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir. 2004). The USCA must uphold the IJ's factual findings if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elisa-Zacarias, 502 US 478, 481 (1992). To reverse the BIA finding, the USCA must find that the evi-dence not only supports that conclusion, but compels it. Id. at 481 n.1. Persecution is "an extreme concept, marked by the infliction of suffering or harm … in a way regarded as offensive." Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc). At oral argument, Ahmed conceded that she was not subject to past persecution. A well-founded fear of future persecution must be "objectively reasonable" and can be demonstrated by "adducing credible, direct, and specific evidence … that would support a reasonable fear." Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000). The acts targeting Ahmed's family, at best made it probable that Ahmed may have fled in 1999 had she lived in Ethiopia at the time. The Immigration Judge, however, was also entitled to rely upon State Department reports. Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002). The reports here indicated that, pursuant to a peace agreement, the Ethiopian government was no longer deporting Eritrean Ethiopians in 2001. Ahmed's belief that the Ethiopian Embassy would not recognize her citizenship was not persuasive, notwithstanding the sentence in the report that "Ethiopians of Eritrean origin have been able to obtain exit visas but often are not permitted to return." She contacted the embassy to inquire about renewing her passport only once, was vague as to the time of the call, could not remember the position of the person she spoke with, received no official position, and never sent her passport in the mail. That did not compel a finding that Ahmed had an objectively reasonable well-founded fear. Because Ahmed failed to establish a well-founded fear, she also failed to make the necessary showing for withholding of removal. Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). Finally, Ahmed presented no evidence that it was more likely than not that she would be tortured; her only claim was that she may be deported. That did not compel a finding that she qualified for relief under the Convention Against Torture. See 8 CFR Sec. 208.16(c)(2). As for Ahmed's First Motion to Reopen for Adjustment of Status, the USCA noted that it reviews BIA rulings on motions to reopen for abuse of discretion and reverses only if the BIA acted arbitrarily, irrationally, or contrary to law. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). Ahmed did not address the merits of his petition in her brief. This issue was thus waived. Even if it had not been waived, the BIA did not abuse its discretion in concluding that it was untimely. 8 CFR Sec. 1003.2(c)(2). Schroeder, D.W. Nelson, and Reinhardt, Circuit Judges..(Download the full text of this decision at www.ce9.uscourts.gov/)

12) IMMIGRATION: Mohammed Jamie v. Mukasey, 05-73016 (9th Cir. Nov. 26, 2008) (unpublished). Mohammed Jamie a/k/a Jamie Mohammed is a native and citizen of Ethiopia. He petitioned for review of a Board of Immigration Appeals order dismissing his appeal from an immigration judge's decision denying his application for asylum, withholding of removal, and relief under the Conven-tion Against Torture. The USCA denied the petition. Substantial evidence supported the BIA's finding that even taking Jamie's testi-mony as credible he had not shown that the detention and economic hardship he suffered rose to the level of persecution. Substantial evidence also supported the agency's finding that Jamie had not shown a well-founded fear of future persecution, because the record contained insufficient direct or specific evidence that he will be targeted for harm. Because Jamie failed to establish eligibility for asylum, he necessarily failed to meet the more stringent requirements for withholding of removal. Substantial evidence also supported the IJ's finding that Jamie had not shown that it is more likely than not that he will be tortured if he returns to Ethiopia. Alarcon, Leavy, and Tallman, Circuit Judges. .(Download the full text of this decision at www.ce9.uscourts.gov/)

13) IMMIGRATION: Mohamed v. Mukasey, 04-76700 (9th Cir. Nov. 24, 2008) (unpublished). Mohamed and her 7-year-old son Abdalla sought review of a decision by the Board of Immigration Appeals issued on December 9, 2004, which affirmed a September 25, 2003 oral ruling of an immigration judge. By indicating that 8 USC Sec. 1159(d)(5)(A)(i), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act, imposed an additional burden on Mohamed as to her identity, the IJ committed legal error. Kalouma v. Gonzales, 512 F.3d 1073, 1078 (9th Cir. 2008). Just as in Kalouma, erroneous Sec. 1158(d) considerations "permeated" the IJ's oral ruling to such a degree that the USCA could not ascertain whether the error tainted the IJ's ultimate credibility determination. The BIA's decision thus had to be reversed and the case had to be remanded so that the IJ can reassess Mohamed's credibility "afresh apart from a specific statutory burden under Sec. 1158(d)" Id. at 1079. Callahan and Ikuta, Circuit Judges, and Shadur, District Judge. (.(Download the full text of this decision at www.ce9.uscourts.gov/)

14) IMMIGRATION: Sumanti v. Mukasey, 06-71349 (9th Cir. Nov. 28, 2008) (unpublished). Sumanti and his wife, both natives and citizens of Indonesia, petitioned pro se for review of a Board of Immigration Appeals order dismissing their appeal from an immi-gration judge's decision denying their application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The USCA denied the petition. The record did not compel the conclusion that Sumanti had shown changed or extraordinary circumstances to excuse the untimely filing of his asylum application. Substantial evidence supported the BIA's denial of withholding of removal as the petitioners failed to show past persecution. Moreover, substantial evidence supported the BIA's finding that the peti-tioners did not show a clear probability of future persecution because their similarly situated Christian family members remained in Indonesia without incident. Finally, substantial evidence supported the BIA's denial of CAT because the petitioners filed to demonstrate that they were ever tortured in the past, or that it is more likely than not they will be tortured upon returning to Indonesia. Alarcon, Leavy, and Tallman, Circuit Judges. .(Download the full text of this decision at www.ce9.uscourts.gov/)