1)  TAXATION:  Tosello v. USA, 99-15092 (9th Cir. Apr. 28, 2000).  A taxpayer cannot avoid the statute of limitations for filing a judicial action for a refund of taxes by executing an IRS Form 872-A, which extends the time for filing with the IRS an administrative claim for a refund.  Tashima and Graber (author), Circuit Judges, and Stotler, District Judge.  D. Kirsch of San Jose, CA, for the plaintiff-appellant;  G. Rothenberg of Wash-ington, DC, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

2)  BANKRUPTCY / TAXATION:  In re Gardenhire, 98-55876 (9th Cir. Apr. 17, 2000).  The doctrine of equitable tolling cannot be applied to extend the 180-day deadline for the IRS to file a proof of claim against a taxpayer-debtor under Bankruptcy Code Sec. 502(b)(9).  Pregerson, Noonan, and O'Scannlain (author), Circuit Judges.  K. Riggall of South Pasadena, CA, for the appellants;  L. Argrett of Washington, DC, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

3)  BANKRUPTCY / TAXATION:  In re Cool Fuel, Inc., 98-56092 (9th Cir. Apr. 21, 2000).  An action by the California State Board of Equalization to collect taxes, pursuant to a Board determination that tax is owed, is not time-barred if brought within the statutory three-years period after becoming "due and payable" as provided in California Revenue and Taxation Code Sec. 8971.  Rymer, Fernandez, and Fisher (author), Circuit Judges.  J. Harris of Los Angles, CA, for the appellant;  A. Sgherzi of Los Angeles, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

4)  BANKRUPTCY / TAXATION:  In re Mitchell, 98-56475 (9th Cir. Apr. 21, 2000).  Bankruptcy Code Sec. 106(a), which purports to abrogate state sovereign immunity against proceedings to determine tax liability and dischargeability of debts, is not remedial, and thus constitutes an inappropriate exercise of Congress's enforcement powers;  Sec. 106(a) is unconstitutional.  Browning and Tashima (author), Circuit Judges, and King, District Judge.  H. Mitchell pro se;  D. Chaney of Los Angeles, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

5)  BANKRUPTCY:  In re Celebrity Home Entertainment, Inc., 98-55282 (9th Cir. Apr. 21, 2000).  Under 28 USC Sec. 1930(a)(6), disbursements to creditors used in calculating "quarterly fees" payable to the US Trustee by a Chapter 11 debtor include post-confirmation distributions by a reorganized debtor to creditors.  Pregerson (author), Noonan and O'Scannlain, Circuit Judges.  P. Bridenhagen of Washington, DC, for the appellant;  L. Vickman of Encino, CA, for the appellees.  (Download the full text at www.ce9.uscourts.gov/) 

6)  BANKRUPTCY:  In re R.B.B., Inc., 99-16059 (9th Cir. Apr. 27, 2000).  In a Chapter 11 bankruptcy, the assignment and sale of a debtor's franchise to a bona fide purchaser cannot occur where the order approving the transaction is ambiguous as to which entity is being approved as purchaser and assignee.  Schroeder, Noonan (author), and Tashima, Circuit Judges.  D. Bratton of San Francisco, CA, for the appellant;  M. St. James of San Francisco, CA for appellees Official Committee of Unsecured Creditors;  P. Goldsmith of San Francisco, CA for the Chapter 11 Trustee for R.B.B., Inc. (Download the full text at www.ce9.uscourts.gov/) 

7)  INTELLECTUAL PROPERTY:  Walter v. Mattel, Inc., 98-56801 (9th Cir. Apr. 26, 2000).  In a misappropriation of trade name and mark brought under the Lanham Act by a little-known senior mark holder against a well-known junior mark holder, the likelihood of confusion does not occur when the well-known user of the junior mark uses the mark in connection with the sale of its toys, while the little know junior mark is used in advertising aimed at sophisticated buyers of commercial art.  Reinhardt and O'Scannlain, Circuit Judges, and Schwarzer (author), District Judge.  P. Larsen of Pasadena, CA, for the plaintiff-appellant;  A. Pruetz of Los Angeles, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

 8)  INSURANCE / SETTLEMENT OFFERS: Anguiano v. Allstate Insurance Company, 97-56704 (9th Cir. Apr. 19, 2000).  Under California law, when a third-party claim exposes an insured to liability in excess of a liability insurance policy's limits, the insurer must notify the insured of an offer to settle the claim within policy limits before the third-party claimant sues the insured.  B. Fletcher, D.W. Nelson, and Brunetti, Circuit Judges.  Per Curiam.  W. Chapman of Rancho Santa Margarita, CA, for the plaintiff-appellant;  G. MacGregor of Woodland Hills, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

9)  INSURANCE:  Nissan Fire & Marine Insurance Company v. Fritz Companies, Inc., 98-16024 (9th Cir. Apr. 25, 2000).  In a shipper's action against a carrier under the Warsaw Convention seeking recovery for damage to shipped goods, evidence that the carrier did not "receive" statutory written notice within seven days of the shipper's receipt of the goods did not defeat the claim;  the Convention requires that notice of a claim for damages be "dispatched" within seven days of the receipt of the goods in question.  Thompson and W. Fletcher (author), Circuit Judges, and Mollway, District Judge.  D. Salentine of San Francisco, CA, for the plaintiffs;  S. Bucklin and F. Silane of Los Angeles, CA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

10)  DEFAMATION:  Cochran v. NYP Holdings, Inc., 98-56536 (9th Cir. Apr. 28, 2000).  A newspaper article stating that a famous attorney will "say or do just about anything to win, typically at the expense of the truth," constituted a non-defamatory opinion.  Reinhardt and O'Scannlain, Circuit Judges, and Schwarzer, District Judge.  Per Curiam.  B. Langberg of Los Angeles, CA, for the plaintiff-appellant;  S. Metcalf of New York, NY, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

11)  TORTS:  Bethel Native Corporation v. Dept. of Interior, 98-35316 (9th Cir. Apr. 6, 2000).  Eleventh Amendment immunity does not bar the United States from asserting a third-party claim for equitable apportionment of tort liability against a state, where the plaintiff has filed an original action in federal court against the United States under the Federal Tort Claims Act.  Reavley, Graber (author), and McKeown, Circuit Judges.  J. Cantor of Anchorage, AK, for the third-party defendant-appellant;  K. Mueller of Washington, DC, for the defendant-third-party plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

12)  LEGAL MALPRACTICE:  First Interstate Bank of Arizona v. Murphy, Weir & Butler, 98-17420 (9th Cir. Apr. 20, 2000).  A law firm does not owe a duty to its client to disclose that it hired the law clerk of a judge before whom its was appearing in the client's matter. O'Scannlain and Rymer (author), Circuit Judges, and Miller, District Judge.  E. Freid-berg of Sacramento, CA, for the plaintiff-appellant-cross-appellee;  R. Lewis of San Francisco, CA, for the defendant-appellee-cross-appellant.  (Download the full text at www.ce9.uscourts.gov/) 

13)  LABOR LAW / PRIVACY:  Cramier v. Consolidated Freightways, Inc., 98-55657 (9th Cir. Apr. 26, 2000).  Where a collective bargaining agreement expressly contemplates electronic surveillance of employees by their employer, the Labor Management Relations Act preempts state-law tort claims by employees arising from the employer's surreptitious videotaping of the employees through two-way mirrors in restrooms, an ac-tivity that is arguably criminal in California.  O'Scannlain, Rymer (author), and Fisher (dissenting in part), Circuit Judges.  J. Horton of Santa Ana, CA, for the plaintiffs-appellants;  R. Mangels of Los Angeles, CA, for the defendants-appellees.  (Down-load the full text at www.ce9.uscourts.gov/) 

14)  LABOR LAW / OVERTIME COMPENSATION: Klem v. County of Santa Clara, 98-16844 (9th Cir. Apr. 3, 2000).  Under sections of the Fair Labor Standards Act governing improper deductions from the salaries of exempt employees, an employer may not invoke the regulatory "window of correction" to remedy disciplinary withholding of overtime compensation from employees who are nominally exempt, but in fact are not.  Schroeder, Beezer, and Graber (author), Circuit Judges.  L. Tripoli of San Francisco, CA, for the defendants-appellants;  L. Faris of Oakland, CA, for the plaintiffs-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

15)  LABOR LAW:  National Labor Relations Board v. Ad-vanced Stretchforming Intl., Inc., 97-71047 (9th Cir. Apr. 4, 2000).  A successor employer has a duty to bargain with an incumbent union before unilaterally imposing terms when the employer hires its initial workforce from the ranks of a represented bargaining unit of its predecessor.  Boochever (author), O'Scannlain (dissenting), and Tashima, Circuit Judges.  S. Block of Washington, DC, for the petitioner;  H. Willis of Los Angeles, CA, for the petitioner-intervenor;  L. Walraven of Newport Beach, CA, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

16)  LABOR LAW / THE COMPLETE PREEMPTION DOCTRINE: Balcorta v. Twentieth Century-Fox Film Corporation, 98-56547 (9th Cir. Apr. 6, 2000).  Section 301 of the Labor Management Relations Act does not "completely pre-empt" disputes over alleged violations of collective bargaining agreements where the controverted issues are purely factual and the state statutory right asserted is not subject to negotiation or waiver by the parties.  Reinhardt (author), Hawkins, and Graber, Circuit Judges.  J. Webb of Los Angeles, CA, for the defen-dants;  E. Rosenfeld of Encino, CA, for the plaintiff.  (Down-load the full text at www.ce9.uscourts.gov/) 

17)  LABOR LAW / TORT CLASS ACTION: Duncan v. Northwest Airlines, Inc., 98-35617 (9th Cir. Apr. 6, 2000).  A class-action tort suit by Northwest Airlines flight attendants challenging the carrier's smoking policy is not preempted by the Airlines Deregulation Act.  Reavley, Reinhardt (author), and McKeown, Circuit Judges.  S. Berman of Seattle, WA, for the plaintiff-appellant;  T. Tinkham of Minneapolis, Minnesota, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

18)  LABOR LAW:  Williamson v. General Dynamics Corporation, 98-55783 (9th Cir. Apr. 12, 2000).  The Fair Labor Standards Act did not preempt employees' common-law career fraud claims based on their employer's allegedly false promises of continued employment and continued business operation.  D.W. Nelson (author), Boochever, and T.G. Nelson, Circuit Judges.  M. Conger of San Diego, CA, for the plaintiffs-appellants;  R. Franch of Chicago, IL, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

19)  SANCTIONS:  Pacific Harbor Capital v. Carnival Air Lines, 98-35633 (9th Cir. Apr. 27, 2000).  A district court may impose sanctions on an attorney who claims misunderstanding about the effective date of a restraining order, even where there is no finding that the attorney told his client that it could or should violate the restraining order.  Kleinfeld (dissenting in part) and W. Fletcher, Circuit Judges, and Manella (author), District Judge.  P. Fortino of Portland, OR, for the plaintiff-appellee;  J. Herman of Miami, FL, for the appellants.  (Down-load the full text at www.ce9.uscourts.gov/)

20)  CIVIL PROCEDURE / JURY BIAS:  Pope v. Man-Data, Inc., 98-36192 (9th Cir. Apr. 18, 2000).  When a district court is presented with a colorable claim of juror bias in a civil action that has gone to judgment, it may not order a new trial unless the claimant first demonstrates bias in an evidentiary hearing.  Noonan (author), Graber, and Fisher Circuit Judges.  R. Sola of Portland, OR, for the plaintiff-appellant;  L. Lear of Portland, OR, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 

21)  CONSTITUTIONAL LAW:  Gentala v. City of Tucson, 97-17062 (9th Cir. Apr. 20, 2000).  A municipality violated a religious group's right to free-speech and free-exercise of religion by refusing to subsidize a public prayer service with taxpayer;  dissenting, Judge Pregerson maintained that taxpayer funds may not be used to support a religious organization.  Pregerson (dissenting), Circuit Judges, and Carter (author), District Judge.  K. Theriot of Lawrenceville, GA, for the plaintiffs-appellants-cross-appellees;  T. Berning of Tucson, AZ, for the defendant-appellee-cross-appellant. (Download the full text at www.ce9.uscourts.gov/) 

22)  NATIVE AMERICAN LAW:  Manybeads v. USA, 90-15003 (9th Cir. Apr. 18, 2000).  In an action against the United States by individual Native Americans challenging the constitu-tionality of 25 USC Sec. 640d, et seq. (1994), a statute that was the basis for an accommodation agreement between Indian tribes and the plaintiffs, the tribe that has secured a right to compensation under the agreement is a necessary and indispensable party.  Pregerson, Noonan (author), and Thompson, Circuit Judges.  L. Phillips of Flagstaff, AZ, for the plaintiffs-appellants;  K. Hazard of Washington, DC, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

23)  IMMIGRATION / ASYLUM:  Yazitchian v. INS, 98-70752 (9th Cir. Apr. 3, 2000).  Evidence that an asylum applicant was subjected to extortion demanded or extracted by representatives his homeland's government was sufficient to support a presumption of a well-founded fear of future persecution.  Wallace, Pregerson, and Thomas (author), Circuit Judges.  J. Rose of Los Angeles, CA, for the petitioner;  M. Golding of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

24)  IMMIGRATION:  Yong v. INS, 99-17242 (9th Cir. Apr. 11, 2000).  It is an abuse of discretion for a district court on judicial economy grounds to stay proceedings on a habeas petition filed an alien detained by the INS pending the resolution of in a similar case.  Reinhardt, Thompson (author), and T.G. Nelson, Circuit Judges.  AFD D. Broderick of Sacramento, CA, for the petitioner;  A. Igoe of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

25)  IMMIGRATION:  Ma v. Reno, 99-35976 (9th Cir. Apr. 10, 2000).  In the absence of a repatriation agreement between the US and a lawful resident alien's homeland, the Attorney General lacks statutory authority to detain the alien indefinitely pending removal for conviction of a statutorily specified crime where removal is not likely in the foreseeable future beyond the 90-day removal period..  Reinhardt (author), Thompson, and T.G. Nelson, Circuit Judges.  Q. Vu of Washington, DC, for the respondent;  FPD J. Stansell of Seattle, WA, for the petitioner.  (Download the full text at www.ce9.uscourts.gov/) 

26)  IMMIGRATION:  Colmenar v. INS, 98-70422 (9th Cir. Apr. 14, 2000).  Where an the applicant had not show persecution due to political opinion, circumstantial evidence connecting an attempt to kill him with a prior threat homeland insurgents, entitled him to testify as to his belief regarding the assailant's identity.  Magill, Hawkins (author), and Thomas, Circuit Judges.  D. Hanlon of Pasadena, CA, for the petitioner;  L. Smith of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

27)  IMMIGRATION:  Khourassany v. INS, 99-70020 (9th Cir. Apr. 5, 2000).  After the BIA has finalized deportation proceedings, an asylum applicant who petitions for review on the grounds they may obtain relief under Art. 3 of the Convention on Torture must submit such claims separately to the BIA in a motion to reopen.  Wallace, Pregerson, and Thomas (author), Circuit Judges.  M. Hilts of San Diego, CA, for the petitioners;  M. Golding of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

28)  IMMIGRATION / CRIMINAL LAW:  USA v. Corona-Garcia, 98-50568 (9th Cir. Apr. 14, 2000).  In a prosecution under 8 USC Sec. 1326(a) for illegal reentry following deportation, a violation may be established by the defendant's presence in the US and evidence showing a prior deportation;  Judge Reinhardt would reverse as he thought the government failed to offer evidence independently verifying the defendant's confession that he entered without permission of the Attorney General..  Bright (author), Reinhardt (dissenting), and Trott, Circuit Judges.  R. Barnett of San Diego, CA, for the defendant;  AUSA B. Castetter of San Diego, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

29)  IMMIGRATION / CRIMINAL LAW:  USA v. Romero-Avila, 99-50289 (9th Cir. Apr. 26, 2000).  In a federal prosecution for making a false claim of U.S. citizenship, the name of the government official to whom the claim was made is not an element of the offense under 18 USC Sec. 911  Boochever, Hawkins (author), and Thomas, Circuit Judges.  FPD G. Burcham of San Diego, CA, for the defendant;  AUSA D. Drosman of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

30)  CRIMINAL PROCEDURE:  Weiner v. San Diego County, 98-55752 (9th Cir. Apr. 27, 2000).  Under California law, a county district attorney acts as a state official when deciding whether to prosecute an individual.  B. Fletcher, Kozinski and Thompson (author), Circuit Judges.  T. Laube of San Diego, CA, for the plaintiff-appellant;  D. Peterson of San Diego, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

31)  CRIMINAL PROCEDURE:  Harvey v. Waldron, 98-36112 (9th Cir. Apr. 25, 2000).  Agreeing with the Second, Third, Sixth, Seventh, Tenth and Eleventh Circuits, the USCA held that Heck v. Humphrey, 512 US 477 (1994), applies to pending criminal charges, and that a claim, that if successful would necessarily imply the invalidity a conviction in a pending criminal prosecution, does not accrue so long as the potential for a conviction in the pending criminal prosecution continues to exist;  Heck held that a 42 USC Sec. 1983 action that would call into question the lawfulness of a plaintiff's conviction or con-finement is not cognizable, and does not, therefore, accrue until and unless the plaintiff can prove that his conviction or sentence has been reversed on direct appeal.  Reinhardt, Thompson, and T.G. Nelson (author), Circuit Judges.  W. Harvey pro per;  R. Nelson of Billings, MT, for the defendants-appellees.  (Down-load the full text at www.ce9.uscourts.gov/) 

32)  CRIMINAL PROCEDURE:  USA v. Wilkerson, 98-50504 (9th Cir. Apr. 3, 2000).  A district judge's criticism of a prosecutor's failure to charge a firearm offense suggested by the evidence did not violate the separation of powers doctrine;  dissenting, Judge Fletcher would vacate the defendant's plea agreement and sentence, and remand so as to allow the prosecutor to reindict and reconsider what charges to bring without the district judge's "Sword of Damocles hanging over him" and this "necessarily would require also disqualifying the judge."  B. Fletcher (dissenting), D.W. Nelson (author), and Brunetti, Circuit Judges.  DFPD M. Tanaka of Los Angeles, CA, for the defendant;  AUSA G. Cardona of Los Angeles, CA for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

33)  JURY TAMPERING:  USA v. Jackson, 98-17410 (9th Cir. Apr. 20, 2000).  An anonymous threat communicated by telephone to a juror during deliberations in a federal criminal prosecution requires an evidentiary hearing to determine whether that juror believed that the threat had come from one of the defendants;  concurring, Judge O'Scannlain wrote separately to reiterate the position he expressed in his concurrence in USA v. Dutkel, 192 F.3d 893 (9th Cir. 1999), that by failing to acknowledge that the presumption of prejudice in alleged jury tampering cases established by Remmer v. USA, 347 US 227 (1954), has been modified by Smith v. Phillips, 455 US 209 (1982) and USA v. Olano, 507 US 725 (1993), the USCA has "veered dangerously close to "delegat[ing] to every reprobate the power to effect a mistrial.".  B. Fletcher, Canby (author), and O'Scannlain (concurring), Circuit Judges.  D. Riordan of San Francisco, CA, for the defendant-appellant;  AUSA J. Vincent of Sacramento, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

34)  RIGHT TO COUNSEL:  USA v. Vonn, 98-50385 (9th Cir. Apr. 20, 2000).  Under Fed. R. Crim. P. 11, a guilty plea must be set aside where the district court failed to advise a defendant who is represented by an attorney at a plea hearing of his right to continued representation at trial.  Browning, Kozinski (author), and Wardlaw, Circuit Judges.  AUSA E. Lu of Los Angeles, CA, for the plaintiff-appellee;  DFPD E. Uhrig of Los Angeles, CA, for the defendant-appellant. (Download the full text at www.ce9.uscourts.gov/) 

35)  RIGHT TO COUNSEL: Dows. v. Wood, 99-35625 (9th Cir. Apr. 27, 2000).  A defense attorney's illness with Alzheimer's disease during a criminal trial did not render his representation per se ineffective.  Trott (author), Kleinfeld, and Silverman, Circuit Judges.  P. Novotny of Seattle, WA, for the petitioner;  J. Samson of Olympia, WA, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

36)  RIGHT TO COUNSEL:  USA. v. Coleman, 99-30104 (9th Cir. Apr. 3, 2000).  Where a criminal suspect invoked his right to counsel after police interrogation began and was then was released from custody for a significant period of time, his statements following his re-arrest and resumed interrogation were admissible in a subsequent prosecution.  Goodwin, Graber (author), and Fisher, Circuit Judges.  W. LaBahn of Eugene, OR, for the defendant;  AUSA J. Haub of Portland, OR, or the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

37)  BORDER STOPS:  USA v. Montero-Camargo, 97-50643 (9th Cir. Apr. 11, 2000).  In determining whether reasonable suspicion exists for stopping two vehicles that had approached a Border Patrol station in tandem, that they did a U-turn at a place just after a sign indicated that a previous closed border checkpoint was now open and where the view of the border officials was obstructed, constitutes factors on which law-enforcement officers could rely;  concurring, Judge Kozinski, joined by Judges T.G. Nelson, Kleinfeld and Silverman, thought that the rule of USA v. Ogilvie, 527 F.2d 330 (9th Cir. 1975) (avoiding a checkpoint by reversing direction is not sufficient to establish reasonable suspicion) was plainly wrong and should have been overruled, rather than distinguished as the majority sought to do.  Hug, Browning, Pregerson, Reinhardt (author), Hawkins, Thomas, McKeown, and Kozinski (concurring, joined by T.G. Nelson, Kleinfeld, and Silverman),   AFPD S. Hubachek of San Diego, CA, for the defendant;  AUSA B. Castetter of San Diego, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

38)  INVESTIGATIVE STOPS:  USA v. Mattarolo, 98-10395 (9th Cir. Apr. 17, 2000).  A traffic stop was proper where an experienced police officer driving on a dark and secluded road during non-business hours sees a truck carrying a crated object and leaving a fenced construction storage area containing crated items;  the officer's patdown search of the defendant for concealed weapons was proper as the defendant had been stopped under suspicious circumstances;  in feeling an object in the defendant's pocket, which the officer thought might be a knife but which when pressed between the officer's fingers produced the familiar sensation of plastic sliding against a granular substance properly alerted the officer to the presence of drugs which could seized pursuant to a tactile variation of the "plain-view" rule.  Wood (author), Kozinski, and Rymer, Circuit Judges.  AFPD T. Zindel of Sacramento, CA, for the defendant;  AUSA S. Spangler of Sacramento, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

39)  EVIDENCE:  USA v. Fuentes-Cariaga, 99-50222 (9th Cir. Apr. 17, 2000).  A district court did not abuse its discretion by excluding the proffered testimony of a non-percipient immigration officer that, unlike the actual immigration officer in this case, she would not have inferred consciousness of guilt from a driver's nervousness while crossing the US-Mexican border.  Rymer (author) and Fisher, Circuit Judges, and George, District Judge.  FPD J. Burghardt of San Diego, CA, for the defendant;  AUSA G. Hardy of San Diego, CA, for the plaintiff.  (Down-load the full text at www.ce9.uscourts.gov/) 

40)  EVIDENCE:  USA v. Chang, 97-50518 (9th Cir. Apr. 4, 2000).  In a federal prosecution for uttering and possessing a counterfeit Japanese three billion yen "Certificate of Payback Balance," the district court properly excluded expert opinion testimony based on practical experience in finance that did not include experience in determining the authenticity of specific foreign securities.  Trott, Rymer, and Fisher (author), Circuit Judges.  W. Harris of Pasadena, CA, for the defendant;  AUSA N. Spiegel of Los Angeles, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/)

41)  DISCOVERY:  USA v. Chon, 98-10469 (9th Cir. Apr. 20, 2000).  A military criminal investigative service did not violate 10 USC Sec. 375, which generally prohibits military personnel from participating in civilian law enforcement activities, when it investigated the theft of government property for the independent purpose of protecting military equipment.  D.W. Nelson (author), Kozinski, and W. Fletcher, Circuit Judges.  R. Barbee of Honolulu, HI, for the defendant-appellant;  AUSA C. Naka-mura of Honolulu, HI, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

42)  SENTENCING:  USA v. Ruiz-Alvarez, 96-17272 (9th Cir. Apr. 25, 2000).  Where the USCA vacates a conviction on one of multiple counts and affirms on the others, the district court has the authority to resentence the defendant anew on the affirmed counts even if the appellate decision does not specifically remand for resentencing.  Alarcon, Tashima, and Silverman (author), Circuit Judges.  J. Graves of Las Vegas, NV, for the defendant;  AUSA D. Schiess of Las Vegas, NV, for the plain-tiff.  (Download the full text at www.ce9.uscourts.gov/) 

43)  HABEAS CORPUS:  La Crosse v. Kernan, 97-55085 (9th Cir. Apr. 24, 2000).  A state's highest appellate court's summary denial of the petitioner's state habeas petition "on the merits and for lack of diligence," presumably due to the untimeliness bar, was not based on independent and adequate state grounds such as would bar federal habeas review.  O'Scannlain, Fernandez, and T.G. Nelson (author), Circuit Judges.  D. La Crosse pro se;  C. Mar of Los Angeles, CA, for the respondents. (Download the full text at www.ce9.uscourts.gov/) 

44)  HABEAS CORPUS:  Washington v. Cambra, 98-15730 (9th Cir. Apr. 14, 2000).  The rule of In re Dixon, 264 P.2d 513 (Cal. 1953), is not independent of federal law and does not preclude federal habeas review where the petitioner asserts the denial of a federal constitutional right; here, both of the petitioner's claims involved allegations of constitutional error (namely, that his rights to due process and a fair trial were violated when the jury was allowed to see him in waist chains, manacles, and leg irons, and by the prosecutor's referring to his post-Miranda silence as evidence of his sanity);  accordingly, the petitioner could not be held to have procedurally defaulted under Dixon.  Schroeder, B. Fletcher (author), and Boochever, Circuit Judges.  J. Jordan of San Francisco, CA, for the petitioner;  C. Grove of San Francisco, CA, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

45)  HABEAS CORPUS:  USA v. Zuno-Arce, 98-56770 (9th Cir. Apr. 19, 2000).  The 35 day deadline for seeking expansion of issues covered by a certificate of appealability may be applied to cases pending on January 1, 1999, the effective date of the Ninth Circuit's Rule 22-1(d).  Browning, Goodwin, and Graber (author), Circuit Judges.  K. Miller of Santa Ana, CA, for the defendant;  AUSA L. Ng of Los Angeles, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

46)  HABEAS CORPUS / EVIDENTIARY HEARINGS: USA v. Chacon-Palomares, 99-35390 (9th Cir. Apr. 6, 2000).  The district court erred in denying the defendant's 28 USC Sec. 2255 motion without conducting an evidentiary hearing where the defendant and his supporting affidavits alleged facts (e.g., ineffective assistance of counsel when the defendant's lawyer advised him to reject a plea offer) which, if true, might establish his right to habeas relief.  Goodwin, Graber (author), and Fisher, Circuit Judges.  W. LaBahn of Eugene, OR, for the defendant;  AUSA B. Sheldahl of Portland, OR, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

47)  SUPERVISED RELEASE:  USA v. Daniel, 99-10268 (9th Cir. Apr. 19, 2000).  Oral findings on the record were sufficient to satisfy the due-process requirement for a written statement of reasons and facts relied upon by a district court in revoking a term of supervised release.  O'Scannlain and Rymer, Circuit Judges, and Miller (author), District Judge.  AFD M. French of Sacramento, CA, for the defendant-appellant;  AUSA W. Ha-hesy of Sacramento, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

 1)  BANKRUPTCY:  In re Roberts, 98-56527 (9th Cir. April 20, 2000) (unpublished). and W. Fletcher, Circuit Judges, and Sedwick, District Judge.
        Webley sued Roberts in the Superior Court for Los Angeles County, California, alleging fraud and related claims.  The Superior Court found that Roberts had committed fraud, entered judgment for Webley, and awarded him attorneys' fees and costs.  Roberts then filed a Chapter 7 voluntary petition in bankruptcy court and Webley filed an adversary proceeding seeking a determination that the fees and costs awarded to him were not dischargeable.  Based on the Superior Court's finding that Roberts had committed fraud, the bankruptcy court concluded that the fees and costs were non-dischargeable, and granted Webley's motion summary judgment.  Roberts appealed.  The Bankruptcy Appellate Panel affirmed.
           The USCA affirmed.  Roberts argued that Webley's adversary proceeding was barred by judicial estoppel which precludes a party from taking inconsistent positions in different or the same proceedings.  Roberts never raised his judicial estoppel argument before the bankruptcy court.  The bankruptcy court thus could not have abused its discretion by not considering it.  Moreover, nothing in the record established that Webley had taken inconsistent positions in the same or different prceedings.  Roberts next argued that the bankruptcy court erred in according the Superior Court judgment collateral estoppel effect.  The identical issue of Roberts' fraud was litigated to a final judgment on the merits, and Roberts was a party in the Superior Court proceeding.  The elements of collateral estoppel were thus established.  The pendency of the appeal did not suspend the collateral estoppel effect of the judgment. The USCA also disagreed with Roberts claim that the underlying debt was dischargeable, agreeing with the bankruptcy court that Roberts' debt was non-dischargeable.  Finally, the USCA found no merit in Roberts' assertion that the bankruptcy court granted Webley relief under a statute not alleged in the complaint.  The bank-ruptcy court primarily had based its holding on 11 USC Sec. 523(a)(4) which was alleged in the complaint.

2)  BANKRUPTCY:  In re Maranto, 99-15777 (9th Cir. April 27, 2000) (unpublished).  Schroeder, Beezer, and Trott, Circuit Judges.
           Maranto appealed the judgment of the District Court for the Eastern District of California, Judge Burrell presiding, which affirmed the bankruptcy's court's denial of dischargeability of a debt owed Klutnick.  As the bankruptcy court did not err by applying collateral estoppel principles to bar relitigation of the dischargeability of Maranto's debt, the USCA affirmed.  To determine the effect of the stipulated state court judgment on the dischargeability in bankruptcy of Maranto's debt, the USCA looked to California law under which judgment had been entered.  Under California law, a prior determination  will be given collateral estoppel effect when (1) the issue is identical to that decided in a former proceeding;  (2) the issue was actually litigated and (3) necessarily decided;  (4) the doctrine is asserted against a party to the former action or one who was in privity with such a party; and (5) the former decision is final and was made on the merits.  In addition, California courts will give preclusive effect to prior stipulated judgments as long as the parties intend such an effect.  Here, the parties' intent was clear from the language of the stipulated judgment, which spe-cifically forbade Maranto from challenging the nondischarge-ability of the debt in bankruptcy.  Accordingly, the bankruptcy court did not err by giving preclusive effect to the stipulated judgment in Maranto's bankruptcy proceedings.

3)  BANKRUPTCY:  In re Maranto, 99-15714 (9th Cir. April 26, 2000) (unpublished).  Schroeder, Beezer, and Trott, Circuit Judges.  The Tagles appealed a judgment of the District Court for the Eastern District of California, Judge Burrell presiding, which had affirmed a decision of the bankruptcy court in favor of debtor Maranto in the Tagles' action under 11 USC Secs. 523 and 727.  The Tagles maintained that the bankruptcy court should have denied the discharge on the grounds that the debt was procured by fraud.  However, the bankruptcy court's findings were supported by record evidence and were not clearly erroneous.  Similarly, the district court's rejection of the claim of material false statements in connection with the bankruptcy petition had to be upheld.  In accordance with the bankruptcy court's findings of fact, the misstatements were not material.  There was also no showing that the documents the debtor allegedly failed to preserve were intentionally destroyed.  Finally, the Tagles argued that the bankruptcy court should have awarded sanctions in connections with the debtor's failure to attend two settlement conferences.  However, the USCA found that the court acted within its discretion in denying sanctions because it found that the debtor had not acted in bad faith.  That finding was not clearly erroneous, the USCA concluded.

4)  BANKRUPTCY:  In re Sierra Pacific, 99-15258 (9th Cir. April 26, 2000) (unpublished).  Sneed, Schroeder, and Trott, Circuit Judges.
          The bankruptcy trustee of Sierra Pacific Broadcasting, Ltd., appealed an order of the District Court for Arizona, Judge Browning presiding, which transferred the appeal of a bankruptcy court decision to the Bankruptcy Appellate Panel.  The trustee argued that the district court erred in transferring the appeal because he timely exercised his right under Federal Rule of Bankruptcy 8001(e) to have the matter adjudicated by the district court.  However, the USCA declined to reach the trustee's claim, as it lacked jurisdiction over the appeal.  The transfer order is not a "final" order for purposes of 28 USC Secs. 1291 or 158(d) and is not an interlocutory order appealable under 28 USC Sec. 1292(b).

 5)  BANKRUPTCY:  In re Internet in a Mall, Inc., 98-56688 (9th Cir. April 24, 2000) (unpublished).  Hug and Thompson, Circuit Judges, and Restani, International Trade Court Judge.
            Snipper, Wainer & Markoff ("Snipper") appealed the Bankruptcy Appellate Panel's decision affirming the bankruptcy court's order disgorging a retainer paid to Snipper by the debtor, Internet in a Mall ("Internet").  According to both the bankruptcy court and the BAP, a conflict of interest prevented Snipper's employment as bankruptcy counsel, and because of that conflict, Snipper was not entitled to compensation for its post-petition work.  On appeal, Snipper conceded that the bankruptcy court's order denying employment was moot insofar as it related to whether Snipper could actually represent Internet, because Internet had retained different counsel.  Snipper, however, argued that the bankruptcy court's finding of a conflict of interest was an abuse of discretion, and that Snipper was thus entitled to compensation for the services it performed before its application for employment was denied. 
           The USCA affirmed.  It was undisputed that Snipper performed its post-petition services for Internet without authori-ation by the bankruptcy court.  Although professionals who perform services for a debtor-in-possession normally must seek prior authorization from the bankruptcy court in order to obtain fees for those services, in the Ninth Circuit bankruptcy courts "possess the equitable power to approve retroactively a professional's valuable but unauthorized services.  To recover such retroactive compensation, the professional must have satisfied the criteria for employment pursuant to 11 USC Sec. 327, other than the usual requirement of pre-employment approval, in addition to meeting other requirements not relevant to this case.  Section 327 establishes the criteria for the bankruptcy court's authorization of employment of professionals to assist the debtor.  Under the statute, a professional is disqualified from employment if the professional is also representing a creditor and an actual conflict of interest exists.  In this case, Snipper was presently representing two of Internet's major creditors and shareholders, Herbert and Greg Hafif, when it sought employment as Internet's bankruptcy counsel.  The bankruptcy court held that this dual representation created an actual conflict of interest.  The USCA agreed.  Greg and Herbert Hafif were two of Internet's largest creditors and shareholders.  In addition to the substantial equity interest each held in Internet, Herbert had loaned Internet $1.2 million two months before Internet filed for bankruptcy.  This loan remained unsecured until the eve of bankruptcy, when Herbert's lawyer filed a UCC-1 statement to secure the loan.  Given the timing with which this loan became secured, it was quite likely that the bankruptcy estate would challenge the priority of Herbert's newly-secured loan.  Snipper's representation of Internet thus would have required Snipper to undertake an action directly adverse to Herbert's interests.  Snipper, however, was not in a position to act adversely to Herbert's interests.  Snipper had represented Herbert and Greg in past litigation.  And importantly, while the Internet bankruptcy was proceeding, Snipper was representing the Hafifs in ongoing litigation matters.  Thus, had Snipper been allowed to represent Internet, Snipper would have had to jeopardize the interests of one or the other of its clients.  The bankruptcy court thus did not err in holding that such dual representation would have created an actual conflict of interest.  Snipper's suggestion that the Creditors Committee's attorney could have represented Internet with regard to the validity, extent, and priority of Herbert's $1.2 million loan did not ease the conflict.  Snipper did not cite any authority for allowing this type of piecemeal representation of the debtor, and the USCA found none.  Snipper's proposal to allow the Creditor's Committee to challenge Herbert's loan thus would not have cured the conflict.  The bankruptcy court did not err in finding that 11 USC Sec. 327 disqualified Snipper from employment as Internet's bankruptcy counsel due to an actual conflict of interest.  Because Snipper did not meet the criteria for employment under Sec. 327, it was not entitled to retroactive compensation for its services.  The disgorgement of the retainer thus was not an abuse of discretion.

6)  BANKRUPTCY:  In re Vega, 98-56569 (9th Cir. April 19, 2000) (unpublished).  Hug and Ferguson, Circuit Judges, and Restani, International Trade Court Judge.
            In May 1992, Vega filed a petition and plan for adjustment of debts under Chapter 13 of the Bankruptcy Code.  In July 1992, the bankruptcy court approved his readjustment plan.  On February 1994, the bankruptcy court dismissed Vega's petition because he did not meet the plan's monthly payments.  In its order of dismissal, the bankruptcy court wrote "the automatic stay is vacated, and all pending motions are moot."  In May 1994, the bankruptcy court vacated its order of dismissal and reinstated Vega's Chapter 13 petition.  In his motion for reinstatement, Vega specifically asked the court to "rescind the Order of Dismissal and reinstate the automatic stay, and to allow the case to be discharged."  (Emphasis added).  In its order granting Vega's motion, the bankruptcy court wrote:  "The court having considered the pleadings filed and statements of the parties in open court, and good cause appearing, it is therefore ordered:  the motion is granted.  The dismissal is vacated and the case is reopened."  Despite the bankruptcy court's order vacating its dismissal and reinstating Vega's Chapter 13 petition, the creditors made several filings which the bankruptcy court later determined violated the automatic stay.  First, in August 1994, they filed and served a summons and complaint in the California Superior Court.  In December 1994, they filed and served a judgment lien which they obtained from the California Superior Court.  In February 1995, they filed in the California Superior Court a motion for order to restrain Vega.  Finally, in August 1995, they moved the state court to declare Vega a vexatious litigant.  As a result of these actions, Vega could not receive $20,000 he had obtained in a settlement.  The District Court for the Central District of California, Judge McLaughlin presiding, upheld the bankruptcy court's findings that the creditors willfully violated an automatic stay and the court's order requiring them to pay debtor Vega punitive damages.
           The USCA found that the automatic stay went into effect when the bankruptcy court vacated its earlier dismissal of Vega's Chapter 13 petition.  The USCA rejected the creditors contention that an automatic stay was not in effect when they made the filings in state court herein at issue.  It noted, as a preliminary matter, that a dismissal of a Chapter 13 petition is generally without prejudice.  11 USC Sec. 349(a).  Thus, when the bankruptcy court dismissed Vega's petition, he was not barred from seeking the same protections his earlier Chapter 13 petition offered.  The automatic stay was in effect because the bankruptcy court vacated its earlier dismissal of Vega's Chapter 13 petition under FRCP 60.  The USCA noted that the Circuit has previously held in the bankruptcy context that when a court uses Rule 60 to vacate an order, it restores the parties to the position they were in before the court issued the vacated order.  It is as if the vacated order had never been issued.  The bankruptcy court in the present case reinstated Vega's Chapter 13 petition when it vacated its earlier order dismissing it.  In so doing, it also reinstated the protections a Chapter 13 petition triggers, including the automatic stay.  The USCA thus rejected the creditors' contention that the bankruptcy court lacked jurisdiction to impose an automatic stay once it entered an order dismissing Vega's petition.  Next, the USCA concluded that the bankruptcy and district courts correctly found that the creditors willfully violated the automatic stay.  A "willful violation" requires a finding that "the defendant knew of the automatic stay and that the defendant's actions which violated the stay were intentional."  The Circuit has previously held that if a party knows of a bankruptcy filing, it necessarily follows that the party willfully violates the automatic stay when it intentionally acts in a way that violates it.  The creditors here knew of the reinstatement of Vega's Chapter 13 petition.  And yet, they intentionally made several filings in state court after that, seeking to recover from Vega.  Their contention that they could not have committed a "willful violation" because they thought the bankruptcy court lacked jurisdiction to impose a stay lacked merit.  Finally, the USCA concluded that the bankruptcy court properly imposed punitive damages on the creditors.  The bankruptcy court has the authority to impose punitive damages.  11 USC Sec. 362(h).  Punitive damages are appropriate in accordance with In re Bloom, 875 F.2d 224 (9th Cir. 1989), in which the debtor filed a motion in district court seeking to obtain the creditor's property after the creditor filed for bankruptcy.  In the case the Circuit held that punitive damages were entirely appropriate because the creditor knew of the bankruptcy filing and the debtor's counsel had warned him that such actions violated the automatic stay.  The creditors in the instant case similarly knew that the Chapter 13 petition had been reinstated.  Nevertheless, they made at least three separate filings in state court seeking to recover from Vega.  As a result of their actions, Vega was unable to recover a $20,000 settlement he had obtained.  Given these circumstances, punitive damages were appropriate.

7)  BANKRUPTCY:  In re Yu, 98-56021 (9th Cir. April 4, 2000) (unpublished).  B. Fletcher, Kozinski, and Thompson, Circuit Judges.
            Under 11 USC Sec. 547(b), Diamant, as trustee of Yu's bankruptcy estate, was entitled to avoid as a preference any transfer made for the benefit of creditors in the 90 day period prior to the filing of the bankruptcy petition.  A $43,000 payment to Yung Shen to settle the state court litigation was made within this period.  While payments to secured creditors are not subject to avoidance, the Bankruptcy Appellate Panel properly determined that the state court judgment, which granted Gregory Shen ownership of the Magellan property with all encumbrances thereon, extinguished Yung's security interest in the property with respect to the loan.  Yung was thus an unsecured creditor at the time of the petition and would have received less than a 100% payout from the liquidation of the bankruptcy estate. The payment to Yung was a preference.  He did not have a lien on the property at issues (the "Magellan property") at the time of the petition and payment of the debt did not increase the value of Yu's estate.  Thus, the transfer here, unlike that in Lewis v. Diethon, 893 F.2d 648 (3d. Cir. 1990), was made "for or on account of an antecedent debt owed by the debtor before such transfer was made."  11 USC Sec. 547(b)(2).  Yung attempted to demonstrate that Yu was solvent at the time she filed her bankruptcy petition by claiming, inter alia, that Yu failed to list the Magellan property as an asset on her bankruptcy petition, and that she improperly included her share of an American Savings loan as a liability.  Had these item been listed properly, according to Yung, Yu's assets would have exceeded her liabilities, making her solvent at the time of the petition.  However, under the terms of the state court judgment, the Magellan property was owned entirely by Gregory Shen and thus was not among Yu's assets on the petition date.  Yu's exclusion of the property from her list of assets was proper.  As for her listing the loan as a liability, neither the state court judgment nor the fact that Gregory Shen paid off the loan himself was sufficient to show that Yu was no longer obligated for her share of repayment.  The state court judgment was silent on Yu's obligation to American Savings, which was not surprising given that American Savings was not a party to the action.  While the escrow closing document submitted by Yung seems to indicate that Gregory Shen paid off the loan by himself after Yu filed for bankruptcy, it did not demonstrate that Yu's obligation had been satisfied.  Presumably, Gregory Shen would have contribution rights against Yu should he chose to pursue them.  Thus, Yu properly listed the debt on her bankruptcy petition.  The USCA declined to address Yung's other allegations of impropriety in Yu's bankruptcy petition as the remaining allegations combined, if true, would not render Yu solvent at the time of her petition.  Thus any error on these points was harmless.

8)  BANKRUPTCY / TAXATION:  In re Elias, 98-55744 (9th Cir. April 21, 2000) (unpublished).  Browning and Tashima, Circuit Judges, and King, District Judge.
            Elias appealed the Bankruptcy Appellate Panel's affirmance of the bankruptcy court's dismissal of his adversary proceeding against the California Franchise Tax Board (FTB) for lack of jurisdiction pursuant to the Eleventh Amendment.  The USCA affirmed.  Elias had filed a petition for bankruptcy.  The FTB filed no proof of claim.  In May 1996, Elias filed an adversary complaint against the FTB to determine the dischargeability of certain tax debts owed to the FTB.  Elias claimed that a discharge order from a bankruptcy court in 1989 discharged some of the tax debts.  The FTB filed a motion to dismiss for lack of jurisdiction on the basis of sovereign immunity, which was granted in early 1997.  Elias then appealed to the BAP, which affirmed.  The USCA had jurisdiction over Elias next appeal pursuant to 28 USC Sec. 158(d) and reviewed the BAP decision de novo.  Citing Mitchell v. FTB, 98-56475, filed April 21, 2000, which held that Congress' attempted abrogation of state sovereign immunity pursuant to 11 USC Sec. 106(a) was invalid under the Eleventh Amendment, the USCA concluded that in the instant case the bankruptcy court correctly dismissed Elias' adversary proceeding because the FTB was immune from Elias' suit.  Elias asked the USCA to dismiss without prejudice so that he could sue the appropriate state officials under the doctrine of Ex Parte Young, 209 US 123 (1908).  However, the USCA noted that a dismissed for sovereign immunity is based on jurisdictional grounds.  It is not a decision on the merits for res judicata purposes, as least as to parties other than the state.  Moreover, because a suit against a state is distinguishable from one against an official under Ex Parte Young, at least so far as the Eleventh Amendment is concerned, there is no privity between the two parties for subsequent claims under Ex Parte Young.

9)  INSURANCE:  Flores v. First Penn-Pacific Life Insur-ance, Co., 98-56324 (9th Cir. April 12, 2000) (unpublished).  Rymer and Fisher, Circuit Judges, and George, District Court.
           The District Court for the Southern District of California, Judge Enright presiding, granted summary judgment in favor of First Penn-Pacific Life Insurance Company.  First Penn had rescinded plaintiff-appellant Flores' husband's life insurance policy following his death from lung cancer after First Penn learned that he had failed to indicate on his insurance application that he was at the time being treated for pneumonia.
           The USCA affirmed.  Relying on Metzinger v. Manhattan Life Inc. Co., 455 P.2d 391 (Cal. 1969), Flores first argued that Cal. Ins. Code Sec. 10113 forbids First Penn from challenging the policy based on misrepresentations in the application because a copy of Mr. Flores' application was not attached to his policy.  However, the policy in Metzinger, unlike Mr. Flores' policy, contained a special provision which expressly required delivery of the application.  The Metzinger court specifically stated that Sec. 10113 did not affect the insurer's right to rescind.  Second, citing Trinh v. Metropolitan Life Insur-ance Co., 894 F. Supp. 1368 (N.D. Cal. 1995), Flores argues that her husband could not be charged with failing to read the insurance application because the policy was in English and he spoke only Spanish.  Unlike Trinh, however, the record indicated that both the insurance agent and the medical examiner who filled out Mr. Flores' application were fluent Spanish speakers and orally translated the application for him.  In addition, Mr. Flores' failure to recall whether questions about pneumonia were asked, when placed besides the specific recollection of First Penn's agent that she asked the questions, was insufficient to create a genuine issue of fact.  Under California law, material misrepresentations on an insurance application are grounds for the insurance company to rescind the policy.  Materiality is a subjective test and is determined solely by the probable and reasonable effect which truthful answers would have had upon the insurer.  In other words, "was the insurer misled into accepting a risk, fixing the premium of insurance, estimating the disadvantages of the proposed contract or making his inquiries."  In this case, the evidence was clear and undisputed that when a proposed insured has pneumonia at this time of application, First Penn will deny coverage.  Part of Mr. Flores' application was filled out on November 28, 1995, and the medical examiner completed another part on November 30, 1995.  Mr. Flores' doctor, Dr. Zirpolo, stated in a declaration that at Mr. Flores' November 29, 1995 visit, "Mr. Flores had continued to improve from the pneumonia, but there was no evidence that Mr. Flores' lungs were completely clear of the pneumonia."  The undisputed statement from First Penn's underwriter was that if Mr. Flores' application had disclosed any of his recent medical history, he would have obtained a statement from Mr. Flores' doctor.  Furthermore, he would have declined the policy if he had received any of the information in Dr. Zirpolo's declaration.  Because First Penn would not have issued the policy had Mr. Flores revealed his medical problems, his omissions were material and entitled First Penn to rescind the contract.  That Flores offered another doctor's opinion "that Mr. Flores was clear of his pneumonia on November 30, 1995" was of no relevance, the USCA said.  The record was clear that First Penn would have contacted Zirpolo, and the information  Zirpolo would have given First Penn would have affected its decision to issue the policy.  Flores also argued that the district court erred in failing to rule on her Rule 56(f) motion for a continuance to conduct further discovery.  The USCA found no error here, because Flores had not shown how the information sought would have precluded summary jugment.  Flores' final argument was that First Penn was required to commence a legal action to cancel the policy, and that therefore its attempted rescission was ineffective.  The USCA found no merit in this contention.  The re-quirement that an insurer take legal action only applies in the absence of a clear and unambiguous rescission.  Pursuant to Cal. Civ. Code Sec. 1691, rescission could be and was properly accomplished by providing Flores with notice and a return of pre-miums paid within the policy's contestability period.

10)  INSURANCE:  Meister v. State Farm Insurance Com-pany, 98-56528 (9th Cir. April 21, 2000) (unpublished).  Schroeder, T.G. Nelson, and Wardlaw, Circuit Judges.
            The Meisters appealed the summary judgment entered in favor of their insurer, State Farm, by the District Court for the Central District of California, Judge Snyder presiding.  The USCA affirmed, finding that the policy on which the Meisters relied covered only liability for an "occurrence" which is defined as "an accident."  California law is clear that intentional conduct is not an "accident" for insurance purposes, even if it has unintended consequences.  As the Meisters' "mansionization" was intentional.  The district court correctly granted summary judgment in favor of State Farm.

11)  INSURANCE:  Mulkins v. Allstate Insurance Company, 98-56399 (9th Cir. April 21, 2000) (unpublished).  Hug and Ferguson, Circuit Judges, and Restani, Court of International Trade Judge.
          The District Court for the Southern District of California, Judge Huff presiding, entered summary judgment in favor of Allstate Insurance Company in Mulkins' action to recover from Allstate a $125,000 judgment against its insured, Wilson.  Mulkins appealed.
           The USCA reversed and remanded.  The district court erred in holding that Wilson's guilty plea to a charge of assault with a deadly weapon precluded Mulkins from arguing that Wilson's conduct was not criminal in nature.  Under California law, a criminal judgment arising from a guilty plea, although admissible as an admission against interest, cannot be used for purposes of collateral estoppel.  Mulkins was permitted in this civil action to contest the truth of the matters admitted by Wilson's plea of guilty, present all facts surrounding the same, including the nature of the charge and the plea, and explain why Wilson may have entered such plea.  Examining the evidence offered by Mulkins, the USCA concluded that Wilson's deposition testi-mony from the underlying state court action raised a material question of fact as to whether Wilson had the requisite intent for assault at the time Mulkins was injured.  Although assault is a general intent crime in California, proof of a general intent to commit a battery is always required.  Wilson denied in his deposition any intent to use the knife or to harm Mulkins.  Wilson admitted that he intentionally brandished the knife and that he intended to frighten Mulkins, but these admissions were insufficient to sustain a charge of assault.  Wilson's deposition testimony directly conflicted with his admission in his guilty plea that he acted with the intent to batter Mulkins.  Because a jury reasonably could accept either version as true, summary judgment on the basis of the insurance policy's criminal act exclusion was not appropriate.
            Allstate offered a number of alternative bases for affirming the summary judgment.  It argued that coverage for Mulkins' injuries was precluded as a matter of law because the injuries were not the result of an "accident," as required under the insurance policy.  The USCA disagreed, citing Merced Mutual Insurance Company v. Mendez, 213 Cal. App. 3d 41 (1989) ("An 'accident' exists when any aspect in the causal series of events leading to the injury or damage was unintended by the insured and a matter of fortuity.")  Wilson's deposition testimony creates a factual dispute as to whether Wilson intended any of the events that occurred after he brandished the knife.  A jury reasonably could find that the ultimate act of wounding Mulkins was unintended.  Allstate also argued that coverage was pre-cluded as a matter of law under the policy's exclusion for injuries resulting from an act or omission intended or expected to cause bodily injury or property damage.  The USCA disagreed here as well.  The intentional act exclusion in the policy, by its own terms, did not apply unless Wilson "intended or expected" his actions to cause Mulkins' injuries.  Even considering Wilson's guilty plea, there was insufficient record evidence to conclude as a matter of law that Wilson expected or intended to cause injury to Mulkins.  Finally, Allstate argued that coverage was precluded under California Insurance Code Sec. 533, which prohibits insurance coverage for "willful" acts.  California courts have indicated that Sec. 533, however, "does not preclude coverage for acts that are negligent or reckless," even though such acts are often "willful" as the term is commonly understood.  In explaining the limits of Sec. 533, the California Supreme Court has invoked the example of a driver who intentionally speeds but does not intend to injure another motorist. J.C. Penney Cas. Ins. Co. v. M.K., 52 Cal. 3d 1009 (1991).   If Wilson's deposition testimony is believed, his conduct is analogous to that of the speeding driver.  His conduct, although most likely reckless, is not as a matter of law inherently harmful.  In sum, each of the alternative theories for denying coverage offered by Allstate required factual findings and credibility determinations that could not be made by a court at summary judgment.

12)  DEFAMATION / PUBLIC FIGURES:  Berlinger v. Corel Corp., 98-56830 (9th Cir. April 20, 2000) (unpublished).  Reinhardt and O'Scannlain, Circuit Judges, and Schwarzer, District Judge.
            The District Court for the Central District of California, Judge Marshall presiding, entered summary judgment for Corel Corporation in Warren Berlinger's defamation action.
            The USCA affirmed.  The central issue in this action is whether the plaintiff is a public or a private figure.  Berlinger has devoted over half a century to building a career that is, by its very nature, based upon exposure to the public.  He has done so successfully, appearing in 12 Broadway shows, over 40 films, and over 2000 television shows.  The USCA said it was inclinded to take Berlinger at his word, expressed in his deposition, where he professed that he is well known in the entertainment industry and is often recognized when he goes out in public.  Berlinger's career and his testimony satisfied the USCA that he had thrust himself into the public's eye.  Berlinger's case also exemplified the rationale animating the Supreme Court's taxonomy of individuals, as he took full advantage of his connections and access to channels of self-help.  Upon learning of the erroneous entry in Corel's publication, Berlinger enlisted an NBC executive to contact Corel about the biography.  He also called upon Milton Berle to assist him, which Berle did by writing a letter to Corel attesting to the fact that Berlinger had never stolen from Berle's home.  The USCA thus concluded that Berlinger is a public figure.  As a public figure, Berlinger's burden was to prove actual malice on the part of Corel in its publication of the CD-ROM at issues.  That is, Berlinger had to prove, by clear and convincing evidence, that Corel published the CD-ROM knowing that the statements were false or made with reckless disregard as to whether they were false or not.  Berlinger presented no evidence to suggest that Corel had even the slightest inkling that his biography was false when it first released the CD-ROM.  In fact, as soon as Berlinger brought the error to Corel's attention, the company offered to publish a corrected version subject to his approval.  Berlinger, however, chose not to take Corel up on its offer, though Corel nevertheless corrected the entry.  Corel, on the other hand, had presented proof that it reasonably relied upon the research and warranty of its licensee, Matrix Corporation.  Matrix assembled the database at issue and, out of 36,700 biographies, Corel received only two complaints concerning the accuracy of information on its CD-ROM.  Upon the record, the USCA said it had no difficulty concluding that Berlinger failed to raise a genuine issue of material fact in this case.

13)  INTELLECTUAL PROPERTY:  Gusler v. Kawasaki Motors Corporation, USA, 99-55161 (9th Cir. April 26, 2000) (unpublished).  Hug and Ferguson, Circuit Judges, and Restani, International Trade Court Judge.
             Gusler brought an action against Kawasaki Motors Corporation (KMC), for misappropriation of trade secrets.  He also raised a variety of common law torts claims.  The District Court for the Central District of California, Judge Collins presiding, granted KMC's motion for summary judgment, holding that Gusler's idea was not novel and thus could not be a trade secret nor constitute grounds for a breach of confidence claim. 
             The USCA affirmed.  Although there were a variety of disputed facts regarding whether Gusler ever spoke with the head of research and development at KMC, viewing the facts in the light most favorable to Gusler nevertheless led to the conclusion that Gusler did not have a viable trade secret claim.  Gusler's idea of an "aerated hull" for a jet ski was not novel.  The California Uniform Trade Secrets Act defines a trade secret as:  "information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use;  and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."  Cal. Civ. Code Sec. 3426.1(d) (West 2000).  Gusler's idea could not be a trade secret because it was generally known.  The idea that air bubbles under the hull of a boat reduce the water-to-hull drag is a concept which has been known and applied for the past century, as demonstrated by patents dating back to 1900.  Gusler himself acknowledged that the idea was not novel.  He did not contend that the manner in which air bubbles were placed under the hull in his design was novel.  Rather, he maintained that the novelty of his idea lay in its application to a jet ski.  A jet ski, however, is simply a type of boat;  in fact, Gusler's drawings applied the concept to a generic boat hull, not a jet ski.  An approach "dictated by well known principles of physics" is not protectable under accepted trade secret doctrine.  Gusler's trade secret claim thus failed.  The USCA also found that the district court properly granted summary judgment on Gusler's common law tort claims.  Because the idea was not novel, his breach of confidence and unjust enrichment claims necessarily failed.

14)  INTELLECTUAL PROPERTY:  Pacific Telesis Group v. International Telesis Communications, 98-56756 (9th Cir. April 18, 2000) (unpublished).  Reinhardt and O'Scannlain, Cir-cuit Judges, and Schwarzer, District Judge.
          International Telesis Communications (ITC) appealed an order of the District Court for the Central District of California, Judge Takasugi presiding, which denied ITC's FRCP 60(b)(5) motion to dissolve a permanent injunction in favor of Pacific Telesis Group (PTG).  The order enjoined ITC from using the trade name and service mark "Telesis".  The USCA affirmed.  A party seeking relief under Rule 60(b)(5) "must establish that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tai-lored to the changed circumstance."  ITC maintained that by reason of PTG's abandonment of the Telesis mark a significant change in facts had occurred, warranting dissolution of the injunction.  Under the Lanham Act, a trademark is abandoned when its use is discontinued with intent no to resume or when the conduct of the owner of the mark causes the mark to lose its significance.  PTG presented substantial evidence of its continued, albeit less extensive, use of the mark.  The district court's finding that PTG had not abandoned the  mark was not clearly erroneous.  As ITC failed to establish a significant change, it was not entitled to dissolution of the injunction.  Any error in the district court's reliance on Transgo v. Ajac Transmission Parts Corp., 911 F.2d 363 (9th Cir. 1990), was thus harmless.

15)  INTELLECTUAL PROPERTY:  Philip Morris Inc. v. Cigarettes For Less, 99-17060 (9th Cir. April 11, 2000) (unpublished).  Politz, Reinhardt, and Hawkins, Circuit Judges.
            The District Court for the Northern District of California, Judge Fogel presiding, entered a preliminary injunction requiring the defendants to place a "NO 'Miles' with these Cigarettes" disclaimer on cartons and pacts of "foreign cigarettes sold or displayed.  "Foreign cigarettes" is a term coined by the district court to refer to cigarettes manufactured in the U.S. by Philip Morris, Inc. (PMI) for Philip Morris Products, Inc. and intended for sale abroad.
The USCA affirmed.  It noted that the decision to grant or deny a preliminary injunction lies within the discretion of the district court and that it would reverse only if the district court had relied on an erroneous legal premise or abused its discretion.  Legal error results if the court "does not employ the appropriate legal standards which govern the issuance of a preliminary injunction, or if, in applying the appropriate standards, the court misapprehends the law with respect to the underlying issues in litigation."  Similarly, abuse of discretion may occur if the court's decision is based on a clearly erroneous finding of fact.  Thus, USCA's task is not to review the merits of the case nor, if the court properly applied the law, to substitute its judgment for that of the district court.  Rather, its task is to consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.  A party is entitled to a preliminary injunction upon showing either a likeli-hood of success on the merits and the possibility of irreparable injury, or the existence of serious questions going to the merits and the balance of hardships tipping in its favor.  Review of the record persuaded the USCA that the district court applied this standard and correctly applied the substantive trademark law.  Based on the facts thus far established, the trial court was uncertain whether the Lanham Act applied to PMI's claim in any respect.  Recognizing, however, that further discovery possibly may reveal that it would apply, the district court considered PMI's claim in that context as well.  In analyzing the chances of PMI's success under the Lanham Act, the district court found that "there is a possibility that PMI will be able to show a likelihood of [consumer] confusion" caused by the absence of the "Miles" insignia on the foreign cigarettes.  The district court further concluded that there was little support for PMI's claim that consumers were likely to be confused between the foreign and domestic cigarettes due to the alleged differences in quality control.  The USCA found no error in this conclusion.  The consumer complaints produced by PMI revealed overwhelmingly that the dissatisfaction or confusion, if any, centered on the absence of the "Miles" insignia on the foreign cigarette packs and cartons.  The USCA thus held that the district court did not abuse its discretion in concluding that, while PMI had not yet shown a likelihood of prevailing on the merits, the issues were at least a fair ground for litigation.  By so holding the USCA indicated no view as to whether the omission of the "Miles" insignia could under any circumstances give rise to a violation of the Lanham Act.  The USCA similarly concluded that the district court did not abuse its discretion in balancing the parties' relative hardships and in fashioning an appropriate remedy.  To the contrary, it afforded PMI the benefit of any doubt.  Then, after concluding that modest relief was appropriate, the district court properly considered the relative size and economic status between the parties.  Rather than impose an absolute ban on the defendants' sale of foreign cigarettes, which would have put at least one defendant out of business and severely impacted the business of another, the court imposed a disclaimer that directly addressed what the court had concluded was the only potential source of consumer confusion.  The USCA found no abuse of discretion in the court's declining to impose the specific relief requested by PMI.

16)  INTELLECTUAL PROPERTY: Fontaine v. Blockbuster Entertainment, Inc., 98-56679 (9th Cir. April 14, 2000) (unpublished).  Reinhardt and O'Scannlain, Circuit Judges, and Schwarzer, District Judge.
             Joan Fontaine complained that Blockbuster Entertainment misappropriated her name for commercial purposes when the amaray synopsis on its plastic video rental box described her small walk-on part in Orson Wells' Othello with the phrase "Featuring Joan Fontaine."  She sued Blockbuster for invasion of privacy in violation of California Civil Code Sec. 3344 and common-law invasion of privacy.  The case was properly re-moved under diversity jurisdiction.  Blockbuster moved for summary judgment asserting an affirmative defense that the First Amendment protects the synopsis.  The District Court for the Central District of California, Judge Collins presiding, granted summary judgment in favor of Blockbuster.
           The USCA affirmed.  It found that no action for a common-law or Sec. 3344 privacy claim exists "solely for publication which is protected by the First Amendment."  An amaray synopsis is speech subject to First Amendment protection just as the First Amendment protects motion pictures, and "incidental" statements describing the contents of motion pictures.  To avoid the protection afforded by the First Amendment, the plaintiff must offer evidence that the statement was made with knowledge or reckless disregard of its falsity.  Here, the district court found that Fontaine had presented no evidence that the defendants acted with knowledge or in reckless disregard of the falsity of the statements.  The USCA was not persuaded by Fontaine's argument that in 1988, long before it had the Othello videotape, Blockbuster considered using "starring" to describe actors' roles on its amarays but decided to use the term "featuring" instead.  Fontaine offered no evidence to counter Blockbuster's assertion that in preparing amarays it relied upon books such as those that listed Fontaine has having played a role in Othello.

17)  ORAL CONTRACTS:  TH&T Intl. Corp. v. Elgin Industries, 99-55190 (9th Cir. April 27, 2000) (unpublished).        Fernandez and Wardlaw, Circuit Judges, and Weiner, District Judge.   TH&T International appealed from a judgment of the District Court for the Central District of California, Judge Collins presiding, which enforced an oral settlement agreement between TH&T and Elgin Industries, and awarded Elgin attorneys' fees.  The USCA affirmed.  California law applied in this diversity action.  Under that law, oral settlement agreements, like other oral contracts, are enforceable in principle.  Although contract interpretation is a question of law subject to de novo review, the USCA said it treats findings regarding the parties' intent to create a contract as factual and applies the clearly erroneous standard of review.  Here, following an evidentiary hearing, the district court held that the parties intended to create an oral contract.  That determination was not clearly erroneous.  Moreover, the agreement's terms were not so indefinite as to make the contract unenforceable, even if the precise time of payment had not yet been determined.  TH&T also generally lamented the attorneys' fee award against it, but did not add any specificity regarding the case.  Its failure to develop the argument, both factually and legally, waived the issue.  At any rate, the USCA concluded that its unaided review of the fee award did not indicate that the district court abused its discretion.

18)  ORAL CONTRACTS: Miller Automotive Group, Inc. v.  General Motors Corp., 98-56513 (9th Cir. April 26, 2000) (unpublished).  Hug and Thompson, Circuit Judges, and Restani, International Trade Court Judge.
           The Miller Automotive Group (MAG) is owned and operated by Fred and Mike Miller.  On March 24, 1994, the Millers and General Motors Corporation (GMC) entered into a franchise agreement for a Pontiac dealership, located in Van Nuys, California.  The Millers claim that in order to run a successful Pontiac dealership, they and GMC agreed that it would be beneficial to combine the Pontiac dealership with a GMC light duty truck franchise.  However, GMC already had a truck franchise in Van Nuys.  It was owned by Gene Berg.  The Millers maintained that on August 28, 1995, "the Pontiac Zone" manager, Don O'Rourke, promised them the Berg franchise.  They also claimed that Pontiac representatives orally promised them the customer service list of the former Pontiac dealer, and that receipt of the service list was a condition for taking the Pontiac franchise.  The Millers, however, never received that list.  They subsequently brought an action against GMC for breach of oral promise.  The District Court for the Central District of California, Judge Collins presiding, granted GMC's motion for summary judgment.
             The USCA affirmed.  The issue on appeal was whether the district court erred in granting summary judgment on the basis that there was no genuine issue of material fact regarding the existence of two oral promises from GMC to MAG.  To establish an enforceable contract based on promissory estoppel, under both California and federal common law, the promisee must show:  (1) the existence of a promise, (2) that the promisor reasonably should have expected to induce the promisee's reliance, (3) that the promise actually induces such reliance, (4) that such reliance is reasonable, and (5) that injustice can be avoided only by enforcement of the promise.  The promise must be clear and unambiguous in its terms.  The Millers' own testimony, however, reveals that no enforceable promise was made by O'Rourke.  First, although O'Rourke allegedly stated that the deal with Berg was a "done deal," he also told the Millers that he could not talk to them about it, or provide them with a time frame.  Second, the Millers could not reasonably rely on O'Rourke.  Fred Miller testified that he knew O'Rourke was not in a position to guarantee that GMC Truck would approve the Millers as a dealer.  Fred Miller also testified that "there was not one thing [O'Rourke] ever said to me that I could count on."  There was thus neither an actual promise to deliver the GMC truck dealership, nor was their a basis for reliance.  At oral argument, MAG's attorney also asserted a theory of promise and acceptance, although the briefs before the USCA focused on the promissory estoppel theory.  Because what constitutes the "done deal" was not established, there was no a clear promise to form the basis of a contract either by acceptance or promissory reliance.  The second alleged promise by GMC, to provide the Millers with the Pontiac customer service list, did not form the basis of a contract because the Millers realized at the time of signing the franchise agreement in 1994 that they were receiving a list of the former Pontiac dealership's sales customers for the past five years.  They were nevertheless willing to sign the agreement at that time, without having received the service list.  The USCA thus found the summary judgment properly entered in this case.

19)  ORAL CONTRACTS:  Amplicon, Inc. v. Photronics Corporation, 98-56808 (9th Cir. April 26, 2000) (unpublished).  Hug and Ferguson, Circuit Judges, and Restani, International Trade Court Judge.
             Amplicon argued that Photronics and its subsidiary shell corporation, OMI, assumed lease obligations of Opto Mechanik to Amplicon.  In its complaint, Amplicon set forth two separate causes of action under the headings of breach of written contract and breach of lease guaranty.  The allegations contained in the two causes of action revolved around promises and representations that Photronics and OMI allegedly made.  The District Court for the Central District of California, Judge Stotler presiding, strictly construed the complaint as alleging only a written contract and found no written assumption of the lease.  It granted partial summary judgment to Photronics and OMI and trial was held only on the issue of quantum meruit arising form use of the leased goods.  Amplicon filed a motion to reconsider asking the district court to liberally construed its complaint and not to bar recovery based on the headings of the causes of action.  The district court denied Amplicon's motion for reconsideration.  Amplicon appealed.
             The USCA reversed the grant of summary judgment and remanded for further proceedings on the oral or implied contract claims.  Amplicon argued that Photronics and OMI had notice of its oral or implied contract claims from its complaint.  The USCA found that Amplicon's complaint sufficiently alleged the existence of an oral or implied contract.  The complaint stated that "on or about July 19, 1995, Mr. Tsuma wrote to Robert Russo, Photronics' Vice President, confirming their telephone conversation during which Mr. Russo acknowledged OMI's promise to assume Mechanik's remaining obligations under the Lease.  Mr. Tsuma's letter further confirmed Photronics' promise to guarantee OMI's obligations under the lease.  The complaint also referred too other conversations or letters between the parties.  In addition, the parties fully briefed the oral or implied contract issues for summary judgment.  Specifically, OMI and Photronics' Memorandum in Further Support of Its Motion for Summary Judgment contained the heading "V. Plaintiff's Implied Contract Theory Doesn't Work."  Therefore, Photronics and OMI could not claim they did not have notice of Amplicon's oral or implied contract claims.  Photronics and OMI maintained that even if the court allowed the implied and oral contract claims, the court should affirm the district court's decision on the alternate ground that any agreement would have been unenforceable because such agreement failed to satisfy the Statute of Frauds.  Amplicon raised several exceptions to the Statute of Frauds which require further factual development to determine whether the exceptions apply.  However, the USCA concluded that the district court should be the first to resolve those issues.

20)  CONTRACTS / OPTIONS:  Moreland v. Morsani, 98-17170 (9th Cir. April 17, 2000) (unpublished).  O'Scannlain, Leavy, and Rymer, Circuit Judges.
            This appeal concerns a right of first refusal to purchase Capital Ford granted to Williams pursuant to an Option to Purchase executed by Williams, Morsani, and Capital Ford in August 1989 (the "Option Agreement") .  Williams later assigned his rights under this Agreement to Moreland, who brought this action against Morsani and Capital Ford for specific performance when Morsani refused to allow him to match another party's offer to purchase Capital Ford.  Following a bench trial on the merits, the District Court for Nevada, Judge McKibben presiding, entered judgment for Morsani and Capital Ford.  Finding the Option Agreement ambiguous, it relied on parol evidence to rule that the right of first refusal expired when Mor-sani terminated Williams' employment with Capital Ford and caused Capital Ford to redeem Williams' equity interest in the company in January 1996. 
              The USCA reversed because it found the Option Agreement to be unambiguous.  Paragraphs 1.1 and 1.2 of the Option Agreement define the life of the right of first refusal to be eight years from the date on which the parties entered into the Option Agreement.  No provision in the Option Agreement provides for the premature expiration of this right upon Williams' discharge from Capital Ford or requires that Williams maintain an equity interest in the dealership.  The USCA thus concluded that the right of first refusal remained valid after Williams ceased to be an employee and shareholder of Capital Ford.  To the extent that extrinsic evidence might suggest otherwise, the USCA's holding that the Option Agreement is unambiguous precluded the consideration of such evidence.  As an alternative ground for its decision, the district court ruled that Moreland may not enforce the right of first refusal because Williams' assignment of the right to him was invalid.  As with its previous ruling, the district court based this ruling on a preliminary determination that the Option Agreement was ambiguous.  Paragraphs 1.3, 2, and 5.3 of the Option Agreement provide that the right of first refusal may be exercised by Williams or in the name of his assignee, successor, or personal representative.  No provision prohibits assignment of the right after Williams has ceased to be an employee or shareholder of Capital Ford.  Nothing in the Option Agreement conditions the validity of any assignment upon either Moreland's or Capital Ford's consent.  The USCA thus concluded that Williams' assignment of the right of first refusal to Moreland was valid.  As with the previous issue, to the extend extrinsic evidence might suggest otherwise, the USCA's holding that the Option Agreement is unambiguous precluded the consideration of such evidence.  Contrary to Morsani's and Capital Ford's argument, Articles II-A and V-B of the Agreement of Sale of Shares of Stock ("Sales Agreement")—which Williams, Morsani, and Capital Ford executed concurrently with the Option Agreement in August 1989—do not apply to the right of first refusal.  The unambiguous language of Article II-A shows that its restrictions apply only to stock acquired by Williams pursuant to the Sale Agreement.  Article II-A makes no reference to the right of first refusal.  Similarly, Article V-B refers expressly to the Sale Agreement but does not mention the Option Agreement.  The USCA thus did not read Article V-B as requiring Williams to obtain Morsani's or Capital Ford's consent in order to assign his rights under the Option Agreement. 
              Another ground on which the district court ruled against Moreland was that Williams waived his rights under the Option Agreement (1) when he entered into a Redemption Agreement pursuant to which he was to acquire full ownership of Capital Ford, (2) when he accepted the termination of his employment from Capital Ford, and (3) when he sold his shares of Capital Ford stock back to Capital Ford pursuant to the terms of the Sale Agreement and his employment agreement with the dealership.  Whether Williams waived his rights under the Option Agreement is, the USCA noted, a question of fact subject to clearly erroneous review.  Under Nevada law, waiver occurs when "a party knows of an existing right and either actually intends to relinquish the right or exhibits conduct so inconsistent with an intent to enforce the right as to induce a reasonable belief that the right has been relinquished."  Williams' execution of the Redemption Agreement neither expressed an intent to relinquish the right of first refusal nor induced a reasonable belief that the right had been relinquished.  The Redemption Agreement contains no provision that voids any part of the Option Agreement, and the USCA saw no conflict between the transactions contemplated by the Redemption Agreement and the rights granted by the Option Agreement.  If anything, the Redemption Agreement was consistent with the Option Agreement because they both were directed toward the same goal—the sale of Capital Ford to Williams.  Similarly, the termination of Wiliams' employment and the redemption of his shares did not provide a basis for finding waiver.  It was undisputed that Morsani possessed the right to discharge Williams unilaterally without cause and that such discharge would trigger mandatory redemption of Williams' entire equity interest in Capital Ford.  The record established that Morsani did in fact unilaterally fire Williams without cause, and contained no evidence that Williams otherwise would have left his job or sold his shares.  As Moreland correctly argued in his briefs, Williams had no control over his termination or the redemption of his shares.  Neither of these two events was indicative of an intent on the part of Williams to forfeit the right of first refusal or induced a reasonable belief that such right had been relinquished.
            Finally, the district court ruled that Williams should be equitably estopped from asserting the right to first refusal.  Again the USCA concluded that the district court erred.  Nevada law requires the party asserting estoppel to prove, inter alia, that the party to be estopped either intended for others to act upon his conduct or acted in such a way that would lead others to believe that the conduct embodied this intent.  In holding for estoppel, the district court relied on the fact that Williams entered into the Redemption Agreement with Morsani.  As previously discussed, however, the transactions contemplated by the Redemption Agreement were independent from the right of first refusal.  The USCA did not construe Williams' execution of the Redemption Agreement as manifesting any intent to lead Morsani into believing that the right of first refusal had been relinquished.  Nor did the USCA think that it could reasonably lead Morsani to so believe.  In holding for estoppel, the district court also apparently relied on its erroneous conclusion that the right of first refusal would expire upon the termination of Williams' employment and the redemption of his shares.  The unambiguous text of the Option Agreement contradicts this conclusion.

21)  ASSAULT ON FLIGHT ATTENDANTS:  USA v. Poe, 99-50090 (9th Cir. April 11, 2000) (unpublished).  B. Fletcher, D.W. Nelson, and Brunetti, Circuit Judges.
            Poe appealed a 16-month sentence imposed by the District Court for the Central District of California, Judge Marshall presiding, after he pled guilty to a charge of interfering with the performance of the duties of a flight crew member by assault or intimidation in violation of 49 USC Sec. 46504. 
             The USCA affirmed.  Poe maintained that the district court erred in finding that he "recklessly endangered the safety of the aircraft and passengers" in imposing a sentence under Sentencing Guidelines Sec. 2A5.2(a)(2).  Although the term "reckless" is not defined in Sec. 2A5.2 or in its application notes, the Guidelines contain a definition of "reckless" in application note 1 to Sec. 2A1.4, the section used for sentencing defendants guilty of involuntary manslaughter.  The note states, "reckless" refers "to a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation form the standard of care that a reasonable person would exercise in such a situation."  The district court correctly applied this definition in sentencing Poe.  It was undisputed that Poe consumed half a bottle of brandy prior to boarding the airplane.  Moreover, the record established that he had previously been convicted of driving under the influence on four separate occasions.  Poe's friend, Mr. King, twice stated during the flight that Poe was "a good guy but behaves like this when he drinks too much."  Poe reasonably could foresee that consuming excessive quantities of alcohol prior to boarding the airplane might result in violent and abusive behavior on this part.  The USCA thus concluded that Poe's violent and assaultive behavior on the plane in light of his history of alcohol abuse coupled with his propensity for violence when drunk constituted reckless behavior under Sec. 2A5.2(a)(2).  Poe's actions aboard the airplane were equally reckless and endangered the airplane and passengers aboard the flight.  His behavior caused the second officer, who is responsible for many safety functions aboard the aircraft, to leave the cockpit area, which placed the plane and its passen-gers in danger.  Moreover, Poe shoved the second officer and initiated a struggle in a confined area in the back of the airplane.  As the district court pointed out, Poe's actions constituted a gross deviation from the standard of care because a reasonable person would not have caused a dangerous disturbance in the confined space of a crowded airplane.  Poe asserted that the district court erred in sentencing him under Sec. 2A5.2(a)(2) because neither the airplane nor its passengers suffered actual harm as a result of his conduct.  However, the USCA has recognized in such a context that "endangerment" means "a threatened or potential harm and does not require proof of actual harm." Price v. U.S. Navy, 39 F.3d 1011 (9th Cir. 1994).  The USCA agreed with the district court's conclusion that Poe endangered the airplane because a showing of actual harm is not necessary to sentence a defendant under Sec. 2A5.2.  Poe also maintained that the was unaware of the risk created by his conduct as he was extremely intoxicated, but the USCA found this contention unavailing.  Poe was correct to the extent that to be convicted of acting recklessly in endangering the safety of aircraft and passengers, he must have possessed the foreknowledge or an awareness of the risks created by his conduct.  The Circuit, however, has not gone so far as to rule that a violation under Sec. 2A5.2 is a specific intent crime.  Voluntary intoxication was thus not a defense here.  Finally, the USCA found that Poe's prior history of disruptive behavior when drinking should have put him on notice that imbibing half a bottle of brandy before boarding the plane might result in violent conduct.