2)  ENVIRONMENTAL LAW:  USA v. Hagberg, 99-30112 (9th Cir. Mar. 22, 2000).  Disposers of sewage pumped from septic tanks receiving only domestic sewage are disposing of "sewage sludge" from a "treatment works treating domestic sewage" within the meaning of 33 USC Sec. 1345(e) and related regulations.  Trott (author), Kleinfeld, and Silverman, Circuit Judges.  E. Shenkman of Washington, DC, for the plaintiff-appellant;  AFD M. Werner of Billings, MT, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  ENVIRONMENTAL LAW / CERCLA:  Boeing Com-pany v. Cascade Corp., 96-35246 (9th Cir. Mar. 24, 2000).  In an action for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act, in the special case of causal over-determination (i.e., where either polluter's conduct would have caused the same response cause to be incurred in the same amount, and the conduct was of substantially equal blameworthiness), the proper construction of the CERCLA causation requirement is that both polluters should be treated as having caused the response cost.  Kleinfeld (author) and Hawkins, Circuit Judges, and Schwarzer, District Judge.  P. Bunch of Portland, OR, for the defendant-appellant-cross-appellee Cascade.  D. Bledsoe of Portland, OR, for the plaintiff-appellee-cross-appellant Boeing  (Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  INTELLECTUAL PROPERTY:  Mendler v. Winterland Production, Ltd., 98-16061 (9th Cir. Mar. 14, 2000).  A licensing agreement authorizing the licensee to use photographs as guides, models, and examples for "illustrations," did not include computer-scanned and manipulated images of the photos that retained qualities and accuracy that are essentially photographic;  dissenting, Judge Rymer thought that the issue was whether the particular digitally-scanned and manipulated images at the center of this dispute were within the scope of the license;  she was not firmly convinced that the district court erred in finding that the images were within the scope of the license, as while the licensee's manipulations of the photographs were significant, the photographs were used as guides or models to produce the resulting graphic illustrations. Wood, Kozinski (author), and Rymer (dissenting), Circuit Judges.  J. Berchenko of San Francisco, CA, for the plaintiff-appellant;  D. Given of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

5)  INTELLECTUAL PROPERTY:  Self-Realization Fellowship Church v. Ananda Church of Self-Realization, Ltd., 97-17407 (9th Cir. Mar. 23, 2000).  Absent evidence that the works of a religious leader living under a vow of poverty were created "at the instance and expense" of the leader's church, the works cannot be deemed "works for hire" or the works of a "corporate body" within the meaning of the Copyright Act of 1909.  Schroeder (author), Noonan, and Tashima, Circuit Judges.  L. Petrich of Los Angeles, CA, for the plaintiff-appellant;  G. Trost of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

 6)  COMMUNICATIONS LAW:  MCI Telecommunications Corp. v. U.S. West Communications, 98-35819 (9th Cir. Mar. 2, 2000).  Under the Telecommunications Act of 1996 and AT&T v. Iowa Utilities Board, 119 S.Ct. 721 (1999), an arbitrated interconnection agreement between an "incumbent local exchange carrier" (a pre-Act local monopolist) and a new competing local exchange carrier may include a provision requiring the incumbent to refrain from separating already combined network elements before providing them to the competing carrier.  Goodwin, Schroeder (author), and Graber, Circuit Judges.  W. Single of Washington, DC, for the plaintiffs-appellants;  S. Pe-terson of Bellevue, WA, for the defendants-appellees.  (Down-load the full text of this decision at www.ce9.uscourts.gov/) 

7)  ARBITRATION DEFENSES:  Chiron Corp. v. Ortho Diagnostic Systems, Inc., 99-15064 (9th Cir. Mar. 28, 2000).  Under the Federal Arbitration Act, the res judicata effect of a prior arbitration award on a subsequent arbitration is an issue to be determined by an arbitrator, not by a district court.  Hug, D.W. Nelson, and McKeown (author), Circuit Judges.  S. Miller of San Francisco, CA, for the defendant-appellant;  D. Bookin of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

8)  SECURITIES FRAUD:  Securities and Exchange Com-mission v. Nite, 98-56980 (9th Cir. Mar. 29, 2000).  In a securities fraud action against a pro se incarcerated defendant, the district court must ensure that the defendant has received fair notice of the requirements of opposing the plaintiff's motion for summary judgment.  Boochever, Leavy, and Tashima, Circuit Judges. Per Curiam.  B. Nite in pro per;  M. Hardy of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

9)  CONSUMER LAW / CREDIT CARD SOLICITA-TIONS:DeMando v. Morris, 98-16001 (9th Cir. Mar. 21, 2000).  A credit-card issuer's solicitation letter specifying a life-time annual interest rate was sufficient to support a cardholder's claim under the Truth in Lending Act based on the issuer's subsequent increase of the interest rate.  Goodwin, Schroeder (author), and Alarcon, Circuit Judges.  R. Green of San Fran-cisco, CA, for the plaintiff-appellant;  J. McCabe of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  CONSUMER LAW / RICO:  Howard v. American On-line, 98-56138 (9th Cir. Mar. 29, 2000).  Class-action plaintiffs alleging improper billing practices on the part of AOL, an internet service provider, could not use as predicate acts for their RICO claim mail and wire fraud claims that had been settled in a prior state-court action;  the plaintiffs' securities fraud claims (e.g., that AOL misrepresented revenues, profits and number of subscribers, and used improper accounting practices, and illegally sold stock at a profit) could not be used to establish a RICO violation.  Browning, Goodwin, and Beezer (author), Circuit Judges.  A. Wisner of Los Angeles, CA, for the plaintiffs-appellants;  M. Ruthberg of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  CONSUMER LAW / CREDIT CARD SOLICITATIONS: DeMando v. Morris, 98-16001 (9th Cir. Mar. 21, 2000).  A credit-card issuer's solicitation letter specifying a lifetime annual interest rate is sufficient to support a cardholder's claim under the Truth in Lending Act based on a subsequent attempt to increase the interest rate.  Goodwin, Schroeder (author), and Alarcon, Circuit Judges.  R. Green of San Fran-cisco, CA, for the plaintiff-appellant;  J. McCabe of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/)

12)  TAXATION:  Hill v. CIR, 99-70101 (9th Cir. Mar. 1, 2000).  In a test case involving numerous limited partnerships formed to invest in enhanced oil recovery technology, the USCA upheld the Tax Court's ruling that the limited partners could not use as the basis of income tax-deductions losses incurred by their oil-recovery partnership that failed during a period of declining oil prices, where no production occurred in commercial quantities, and the losses were mostly attributable to contractual obligations to related parties that bore little relationship to the market or oil price.  Magill, Hawkins, and Thomas (author), Circuit Judges.  M. Matthias of Los Angeles, CA, for the petitioners;  R. Farber of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  TAXATION:  Ip v. USA, 98-17035 (9th Cir. Mar. 7, 2000).  Notice is required under 26 USC Sec. 7609(a) where the IRS summons a third-party record-keeper to produce financial records of a person who has no outstanding tax liability and who has no legal relationship with any person against whom a tax assessment has been made;  concurring, Judge O'Scannlain wrote separately only to note that this is a highly unusual case involving a highly unusual statute, and as such may be of only limited instructional value with respect to the enterprise of statutory interpretation as a whole.  Aldisert (author), O'Scannlain (concurring), and Hawkins, Circuit Judges.  K. Hawkins of San Francisco, CA, for the petitioner-appellant;  E. DelSole of Washington, DC, for the respondent-appellant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  TAXATION:  Welch v. CIR, 98-70930 (9th Cir. Mar. 1, 2000).  Following a CIR's bank-deposit analysis employed to reconstruct the taxpayer's gross income and which revealed unexplained deposits, the taxpayer could not claim that the deposits were nontaxable loans or deposits to accommodate other persons without presenting evidence establishing that the deposits were derived from nontaxable sources.  Magill, Hawkins, and Thomas (author), Circuit Judges.  W. Hagendorf of Los Angeles, CA, for the petitioners;  C. Barthel of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  TAXATION / PENSION PLANS:  Baizer v. CIR, 98-70870 (9th Cir. Mar. 1, 2000).  Under the circumstances of presented in this case, the Treasury Department had the authority to impose tax penalties as a result of a prohibited transaction with a qualified pension plan when the Department of Labor had entered into a consent judgment concerning the plan.  Magill, Hawkins, and Thomas (author), Circuit Judges.  A. Ronk of Washington, DC, for the respondent-appellee;  F. Romero of Los Angeles, CA, for the petitioner-appellant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  ABUSIVE TAX SHELTERS:  Kersting v. USA, 94-16942 (9th Cir. Mar. 13, 2000).  A taxpayer's efforts to obtain state court judgments on promissory notes issued in connection with his tax shelter "investment" plans did not legitimize those transactions where the "collection efforts" were made solely to demonstrate at a later time that he considered the debt enforceable.  B. Fletcher, D.W. Nelson (author), and Canby, Circuit Judges.  L.T. Bradt of Houston, TX, for the plaintiffs-appellants;  S. Parks of Washington, DC, for the respondent-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  TAX FRAUD:  USA v. Standard, 98-50632 (9th Cir. Mar. 29, 2000).  A California lawyer's tax fraud conviction based on expense deductions for payments to third-party non-lawyers for their referrals could rest only on fees paid for "solicited" referrals which, unlike unsolicited referrals, were illegal under California law at the time he filed his tax return.  D.W. Nelson, Beezer (author), and T.G. Nelson, Circuit Judges.  R. Standard pro se;  AUSA A. Sagar of Los Angeles, CA, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  BANKRUPTCY / TAXATION:  In re Palmer, 98-35577 (9th Cir. Mar. 20, 2000).  "Deemed admissions" of tax-fraud allegations in the tax court did not have preclusive effect in subsequent bankruptcy litigation where the debtor did nothing in the tax court except file a petition for a redetermination of tax li-ability and the issue of fraud was not "actually litigated" in the Tax Court proceedings.  Canby (author), Brunetti, and O'Scannlain, Circuit Judges.  T. Sawyer of Washington, DC, for the appellants;  W. Green of Billings, MT, for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  BANKRUPTCY:  In re G.I. Industries, 98-55846 (9th Cir. Mar. 9, 2000).  In considering a proof of claim under an executory contract that had been rejected by the bankruptcy court on the trustee's motion, the bankruptcy court has jurisdiction to adjudicate the validity of that rejected contract.  Brunetti (author) and Tashima, Circuit Judges, and Schwarzer, District Judge.  W. Hair of Oxnard, CA, for the plaintiff-appellee;  S. Pfrommer of Los Angeles, CA, for the defendant-appellant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  BANKRUPTCY:  In re Bernal, 98-56432 (9th Cir. Mar. 28, 2000).  The assignee of a bankruptcy debtor's note may not intervene as a defendant in an adversary proceeding in a Chapter 7 bankruptcy to determine the dischargeability of the underlying debt after the assignor has defaulted.  Fernandez (author), Tashima, and Silverman, Circuit Judges.  R. Rentto of San Diego, CA, for the appellant;  J. Morris of San Diego, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  BANKRUPTCY / ERISA:  In re Knight, 98-55547 (9th Cir. Mar. 14, 2000).  Where a district court lacks subject-matter jurisdiction under ERISA to hear a claim, it is also precluded from awarding costs and attorneys' fees under ERISA Sec. 502(g)(1).  Pregerson, Noonan, and O'Scannlain (author), Cir-cuit Judges.  D. Lee of Los Angeles, CA, for the plaintiff-appellant;  S. Schultz of San Diego, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  BANKRUPTCY:  Loyd v. Paine Webber Inc., 98-55113 (9th Cir. Mar. 29, 2000).  A bankruptcy trustee for a corporation had standing to assert a legal malpractice claim against the company's lawyers for failing to prevent the company's shareholders from conducting a fraudulent insurance scheme;  however, the complaint failed to state a claim for legal malpractice.  Browning, Kozinski, and Wardlaw, Circuit Judges.  Per Curiam.  M. Bird of Santa Barbara, CA, for the plaintiff-appellant;  T. Charchut of Santa Monica, CA, for the defendant-appellee.  (Down-load the full text of this decision at www.ce9.uscourts.gov/) 

23)  ERISA:  BankAmerica Pension Plan v. McMath, 98-16543 (9th Cir. Mar. 13, 2000).  ERISA did not preempt application of California's doctrine of "substantial compliance" to a 401(K) plan's requirements for designation of a beneficiary;  concurring, Judge Sneed wrote separately to emphasize that the panel made no presumption that appellant Montgomery intended to designate appellee McMath as his beneficiary and that his designation would fail under California law even if extrinsic evidence could prove that he possessed such intent because California law requires a clear manifestation of intent and "every reasonable effort under the circumstances, complying as far as he is able with the rules", but Montgomery did not comply as far as he was able with the beneficiary designation requirements.  Sneed (author & concurring), Pregerson, and W. Fletcher, Circuit Judges.  D. Applegate of San Francisco, CA, for the defen-dants;  J. Henning of San Francisco, CA, for the defendant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  PENSION PLANS / STANDING:  Stewart v. Thorpe Holding Company Profit Sharing Plan, 98-55746 (9th Cir. Mar. 31, 2000).  When a former spouse seeks to enforce a state-court order awarding her a share of a pension plan governed by ERISA, the plan's failure to follow statutory procedures to protect the right of the former spouse to obtain a qualified domestic relations order confers standing under ERISA;  dissenting, Judge O'Scannlain thought that under the plain meaning of ERISA, the district court had properly dismissed the former spouse's action for lack of standing.  Pregerson (author), Noonan, and O'Scannlain (dissenting), Circuit Judges.  L. Rohlfing of Santa Fe Springs, CA, for the plaintiff-appellant;  K. Jenkins of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  PUBLIC SECTOR EMPLOYMENT:  Flores v. San Diego County, 98-55300 (9th Cir. Mar. 13, 2000).  A law en-forcement officer's exhaustion of his civil service remedies plus a state court's setting aside his suspension for exercising his right to free speech were sufficient to redress the abridgment of his rights and to satisfy due process.  Browning, Goodwin, and Graber, Circuit Judges.  Per Curiam.  S. Toyen of San Diego, CA, for the plaintiff-appellant;  W. Songer of San Diego, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  GOVERNMENT EMPLOYMENT:  American Federation of Government Employees v. Federal Labor Relations Authority, 98-70912 (9th Cir. Mar. 3, 2000).  A federal government agency did not commit an unfair labor practice by refusing to bargain over staffing levels pursuant to Sec. 7106(b)(1) of the Federal Service Labor-Management Relations Statute.  Wiggins, O'Scannlain, and Hawkins (author), Circuit Judges.  K. Grile of Chicago, IL, for the petitioner;  D. Smith of Washington, DC, for the respondent;  A. Mollin of Washington, DC, for the intervenor.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  GOVERNMENT EMPLOYMENT / CIVIL RIGHTS: Hollister v. Tuttle, 98-35058 (9th Cir. Mar. 30, 2000).  The allegation of a college professor employed by a public institution that the institution denied him a promotion and pay increases in retaliation for his open opposition to its pro-feminist educational policy stated a civil rights claims cognizable under 42 USC Sec. 1983.  Noonan (author), Graber, and Fisher, Circuit Judges.  B. Talcott of Portland, OR, for the plaintiff-appellant;  R. Wasserman of Salem, OR, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  EMPLOYMENT DISCRIMINATION / AMERICANS WITH DISABILITIES ACT:  Harris v. Harris & Hart, Inc., 98-35949 (9th Cir. Mar. 13, 2000).  On an issue of first impressions, the USCA held that an employer does not violate the Americans with Disabilities Act by requiring a former employee with a known disability to provide a medical release as a prerequisite to his rehiring;  as a matter of law, the employer's actions did not violate the ADA's prohibition on pre-employment medical examinations or inquiries.  Kleinfeld and W. Fletcher, Circuit Judges, and Manella (author), District Judge.  P. Breed of Portland, OR, for the plaintiff-appellant'  B. Johnson of Salt Lake City, UT, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  WORKPLACE HARASSMENT / WHISTLEBLOW-ERS:  Blair v. City of Pomona, 98-55548 (9th Cir. Mar. 21, 2000).  Evidence of protracted workplace harassment against a police officer, following his disclosure of official corruption and abuse, if believed by the jury, would be sufficient to show that the police department had the custom of chastising whistleblowers and had failed to train its members not to retaliate against whistleblowers and/or that it failed to discipline those members who retaliated against whistleblowers;  specially concurring, Judge O'Scannlain wrote separately to note that this was a close case that turned largely on the threshold of summary judgment and that it was far from clear whether the facts alleged constitute a policy of harassment by the City against whistleblowers.  Pregerson, Noonan (author), and O'Scannlain (concurring), Circuit Judges.  A. Richardson of Pasadena, CA, for the plaintiff-appellant;  A. Maurer of Pasadena, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  LABOR LAW / FIRST AMENDMENT:  DiRuzza v. County of Tehama, 98-15997 (9th Cir. Mar. 21, 2000).  In California, deputy sheriffs are not per se "policymakers" whose political speech does not enjoy the protection of the First Amendment;  the defendants failed to show as a matter of law that the plaintiff was a policymaker and that political loyalty was thus an appropriate requirement for her job;  dissenting, Judge O'Scannlain thought that the majority improperly held the sheriff and the under-sheriff responsible, ex post facto, for legal rules that did not exist at the time they acted.  Reinhardt, O'Scannlain (dissenting), and W. Fletcher (author), Circuit Judges. M. McGuire of Sacramento, CA, for the plaintiff-appellant;  J. Smith and S. Horan of Sacramento, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  LABOR LAW:  Passantino v. Johnson & Johnson Con-sumer Products, Inc., 97-36191 (9th Cir. Mar. 10, 2000).  The evidence was sufficient to support the jury's finding that the defendant retaliated against the plaintiff, and the district court did not abuse its discretion in allocating all front pay, backpay, and compensatory damages to the plaintiff's state law claims while allocating the punitive damages to the plaintiff's Title VII claim;  the punitive damage issue was remanded for a new trial in light of Kolstad v. American Dental Association, 119 S.Ct. 2118 (1999);  dissenting in part, Judge Thomas thought the evidence was sufficient to support a punitive damage award even under Kolstad, and, in addition, would hold that the Title VII limitation on damage awards did not violated the Seventh Amendment.  B. Fletcher, Reinhardt (author), and Thomas (dissenting in part), Circuit Judges.   M. Berzon of San Francisco, CA, and J. Connelly of Tacoma, WA, for the plaintiffs-appellees;  S. Berlin of Seattle, WA, for the defendants-appellants;  D. Ogden of Washington, DC, for the intervenor.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  ADMIRALTY:  Yukon Recovery, L.L.C. v. Certain Abandoned Property in rem, 98-36015 (9th Cir. Mar. 7, 2000).  In a maritime salvage suit for rights to a gold cargo in a ship-wreck lying for a century on the bottom of the inland passage near Juneau, Alaska, the insurer's failure to undertake operations to recover the gold did not prove abandonment of its claim where the evidence established that contemporary technology was inadequate to raise the cargo.  Reavley (author), Reinhardt, and McKeown, Circuit Judges.  D. Bederman of Atlanta, Georgia, for the plaintiff;  J. Treptow of Anchorage, AK, for the claimant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  APPEALS FROM ARBITRATION ORDERS: Cook v. Erbey, 98-55872 (9th Cir. Mar. 10, 2000).  If an order compelling arbitration of a contract dispute is "embedded" in a party's broader action on a contract dealing with other substantive issues, that order is unappealable as interlocutory, even if the district court does not stay the rest of the action while arbitration proceeds, but rather dismisses the action.  Pregerson, Boochever (author), and Thomas, Circuit Judges.  D. Vincent of Los Angeles, CA, for the plaintiffs;  L. Popovich of Los Angeles, CA, for the defendants;  A. Mollin of Washington, DC, for the intervenor.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  INSURANCE LAW / EXTRINSIC EVIDENCE: Webb v. National Union Fire Insurance Company of Pittsburgh, 99-35303 (9th Cir. Mar. 24, 2000).  Under Oregon law, when the express terms of multiple insurance policies appears to provide overlapping coverage for the same loss, liability of prorated according to the proportion of the policy limits to the total limits of all other policies and extrinsic evidence is not admissible to prove that the understanding of the parties is that one of the insurers did not provide coverage.  Goodwin (author), Graber, and Fisher, Circuit Judges.  T. Sondag of Portland, OR, for the de-fendant;  F. Gibson of Eugene, OR, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  TORTS:  DeGrassi v. City of Glendora, 98-55802 (9th Cir. Mar. 20, 2000).  A City of Glendora council member who was sued for slander for statements made in the course of her official duties was not entitled under the California Torts Claims Act to a defense by the City in which she controlled any settlement of the suit.  Brunetti and Tashima, Circuit Judges, and Schwarzer (author), District Judge.  R. Kern of Pomona, CA, for the plaintiff;  R. Terzian of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

36)  TORTS:  Sigman v. USA, 98-35913 (9th Cir. Mar. 29, 2000).  Sovereign immunity did not bar negligence claims brought by representatives of victims of a serviceman who had been retained in the military despite his bizarre behavior and unfavorable medical evaluations and who was eventual honorable discharge into society without being given any serious medical or psychological treatment.  Goodwin and Schroeder (author), Circuit Judges, and Schwarzer, District Judges.  M. Truscott of Washington, DC, for the defendant-appellee;  D. Stephens of Spokane, WA, for the plaintiffs-appellants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

37)  TORTS:  De Saracho v. Custom Food Machinery, Inc., 98-15003 (9th Cir. Mar. 3, 2000).  In an action alleging fraud where the damages sought were based on the extent of the plaintiff's liability on a loan from a bank, the amount of the debt may be proved by expert testimony on the estimated amount of interest on the loan; dissenting, Judge Bright thought that one does not prove a bank debt such as the one involved here by having an expert testify as to the estimated amount of the loan:  rather, a bank's debtor should either testify as to the amount of the bank's demand or produce evidence from the bank of the amount of the debt—but neither was done in this case.  Bright (dissenting), Pregerson (author), and W. Fletcher, Circuit Judges.  T. Loran of San Francisco, CA, for the defendants-appellants;  W. Keegan of San Jose, CA, for the plaintiffs-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  ATTORNEYS' FEES:  California Medical Assoc. v. Shalala, 98-56134 (9th Cir. Mar. 22, 2000).  A party that has paid its adversary's attorneys' fees can petition under FRCP 60(b)(5) for relief from the fee judgment, if the underlying merits judgment is reversed.  Kozinski (author) and Fernandez, Circuit Judges, and Collins, District Judge.  C. Holland of San Francisco, CA, for the defendant;  W. Bush of San Francisco, CA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  AMERICANS WITH DISABILITIES ACT: Martin v. PGA Tour, Inc., 98-35309 (9th Cir. Mar. 6, 2000).  The Americans with Disabilities Act applies to the participation by disabled persons in sports competitions sponsored by a private, nonprofit organizations;  the district court properly ordered the PGA Tour to make an exception to its "walking rule" to allow the plaintiff to ride a golf cart during PGA competitions.  Canby (author) and T.G. Nelson, Circuit Judges, and Fogel, District Judge.  W. Maledon of Phoenix, AZ, for the defendant-appellant;  R. Reardon of New York, NY, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

40)  EDUCATION LAW / EQUAL PROTECTION: Reese v. Jefferson School Dist. No. 14J, 99-35543 (9th Cir. Mar. 29, 2000).  A public school district did not violate the Equal Protection Clause by punishing female students for misconduct while not also punishing male students for earlier misconduct of which it had no notice;  the plaintiffs failed to prove that the defendants acted in a discriminatory manner and that the discrimination was intentional.  Goodwin (author), Graber, and Fisher, Circuit Judges.  P. Meadowbrook of Salem, OR, for the plaintiffs-appellants;  L. Lear of Portland, OR, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

41)  MEDICAID ACT:  Independent Acceptance Co.  v. California, 98-16533 (9th Cir. Mar. 9, 2000).  When accepting California's assurances of the sufficiency of public notice regarding proposed changes in its method of reimbursement for both state-operated and non-state-operated long-term care facilities, State Plan Amendments 90-20A, 9020B and other subsequent amendments ("SPAs"), the Secretary of the Department of Health and Human Services may rely on substantial compliance with notice requirements;  the Secretary's approval of the SPAs was neither arbitrary nor capricious.  Canby (author), Hall, and Graber, Circuit Judges.  J. Waxman of San Francisco, CA, for the plaintiffs-appellants;  AUSA E. Brennan of Sacramento, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  HEALTH CARE / ERISA/ STANDING: Simon v. Value Behavioral Health, Inc., 98-55905 (9th Cir. Mar. 17, 2000).  Under ERISA, the plaintiff, the assignee of mental healthcare providers who themselves were assignees of mental health care patient benefit claims, lacked standing to sue insurers and related entities to recover on the benefit claims;  the plaintiff lacked standing under ERISA because he was neither a participant nor a beneficiary of a health benefit plan within the meaning of ERISA;  he lacked derivative standing because he alleged no facts suggesting that he provided medical care to any of the beneficiaries of the benefit claims he held;  he also lacked standing under federal antitrust laws as there were more direct victims of the defendants' allegedly illegal conduct, and it would be difficult to ascertain and apportion damages between the plaintiff and others;  finally, the plaintiff failed to allege either an injury caused by the investment of racketeering income or the existence of a RICO enterprise.  D.W. Nelson, Wiggins (author), and Rymer, Circuit Judges.  S. Simon in propria per-sona;  B. Beckman of Los Angeles, CA, for the defendants-appellees;  D. Kouri of Los Angeles, CA, for defendants-appellees American General Life and Accidental Insurance Company, et al.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

43)  SOCIAL SECURITY:  Silveira v. Apfel, 97-56186 (9th Cir. Mar. 2, 2000).  For the purpose of Social Security disability determinations, a skilled or semi-skilled work history that produces no transferable skills should be treated as equivalent to an unskilled work history.  Browning, Wiggins, and Graber, Circuit Judges.  Per Curiam.  L. Rohlfing of Santa Fe Springs, CA, for the plaintiffs-appellants;  D. Mazzi and D. Edelman of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

44)  TRAILER PARK AGE RESTRICTIONS / EQUAL PROTECTION: Taylor v. Rancho Santa Barbara, 98-56204 (9th Cir. Mar. 21, 2000).  State and federal statutes that permit mobile home parks to restrict occupancy to persons 55 years of age or older do not violate the Equal Protection Clause as they are rationally related to legitimate state interests.  Browning, Goodwin (author), and Graber, Circuit Judges.  R. Angle of Santa Barbara, CA, for the plaintiff-appellant;  T. Dowdall of Orange, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  FIRST AMENDMENT:  Humanitarian Law Project v. Reno, 98-56062 (9th Cir. Mar. 3, 2000).  Congress may, consistent with the First Amendment, prohibit contributions of material support to foreign terrorist organizations.  D.W. Nelson, Kozinski (author), Trott, Circuit Judges.  D. Cole of Washington, DC, for the plaintiffs-appellants;  D. Letter of Washington, DC, for the defendants-appellees.  (Download the full text of this deci-sion at www.ce9.uscourts.gov/) 

46)  FIRST AMENDMENT / QUALIFIED IMMUNITY: LSO, Ltd. v. Stroh, 98-56093 (9th Cir. Mar. 6, 2000).  Officials of a state alcoholic beverage control agency were not entitled to qualified immunity in a federal action challenging their attempt to prevent an organization from conducting an erotic art and trade show by threatening to revoke the liquor licenses of associated businesses.  D.W. Nelson, Boochever, and T.G. Nelson (author), Circuit Judges.  P. Eliasberg of Los Angeles, CA, for the plaintiff-appellant-cross-appellee;  D. Thaddeus of Los Angeles, CA, for the defendants-appellees-cross-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

47)  JURY DELIBERATIONS:  Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Service Co., 98-35807 (9th Cir. Mar. 3, 2000).  A new trial was not required in a federal civil suit where during jury deliberations, a bailiff made a "tasteless joke" to one juror about harming another juror who was not getting along with the rest of the jurors.  Browning, Wiggins, and Kleinfeld (author), Circuit Judges.  J. Daum of Los Angeles, CA, for the defendants-appellants Exxon Corp., et al.;  G. Tsimis of New York, NY, for defendant-appellant Hazelwood;  D. Tarshes of Anchorage, AK, for plaintiffs-appellees Baker;  B. O'Neill of Minneapolis, MN, for plaintiffs-appellees Sea Hawk Seafoods, et al.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

48)  IMMIGRATION LAW:  Socop-Gonzalez v. INS, 98-70782 (9th Cir. Mar. 27, 2000).  Equitable estoppel did not bar the INS from enforcing the statute of limitations where the alien failed to file a timely motion for adjustment of status due to incorrect information given by an INS officer;  however, the Board of Immigration Appeals abused its discretion by failing to consider any factors relevant to whether the case presented an exceptional situation in which the BIA should reopened the proceedings sua sponte.  Pregerson (author) and Wardlaw, Circuit Judges, and Shadur, District Judge.  T. Gro of Riverside, CA, for the petitioner;  H. Mullane of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

49)  IMMIGRATION LAW / RIGHT TO COUNSEL: Escobar-Grijalva v. INS, 98-71469 (9th Cir. Mar. 24, 2000).  An alien in asylum proceedings before a confused judge and attorney, could not be made to choose between representation by that attorney, who she had never met before and who was unfamiliar with the case, or representing herself, or accepting a continuance to allow her time to retain new counsel;  dissenting, Judge O'Scannlain did not think the petitioner had successfully made out a claim of ineffective assistance of counsel, as 8 USC Sec. 1362 does not require that the alien be represented by skilled counsel, or even that she have counsel at all:  it merely says that if she so desires, she has "the privilege of being represented."  Pregerson, Noonan (author), and O'Scannlain (dis-senting), Circuit Judges.  A. Kingston of Santa Barbara, CA, for the petitioner;  H. Phillips of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

50)  IMMIGRATION LAW / DEPORTATION: Varela v. INS, 98-70771 (9th Cir. Mar. 8, 2000).  8 CFR Sec. 3.2(c)(2) did not bar a successive motion to reopen deportation proceedings where the period for filing the original motion to reopen expired due to fraud committed by a third-party purporting to provide the alien with legal representation.  Pregerson (author) and Wardlaw, Circuit Judges, and Shadur, District Judge.  G. Silbi-ger of Los Angeles, CA, for the petitioner;  L. Friedman of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

51)  IMMIGRATION LAW / ASYLUM:  Pal v. INS, 98-71135 (9th Cir. Mar. 2, 2000).  The immigration judge's adverse credibility finding gave the alien sufficient notice that a denial of asylum could be based on inconsistencies in her story;  once on notice that the veracity of her entire testimony was in question, she bore the responsibility to explain all the inconsistencies in her testimony, not just the few examples pointed to by the IJ to provide a basis for his conclusion;  concurring, Judge Hawkins wrote separately to express his view that the majority had taken the precedent in Campos-Sanchez v. INS, 164 F.3d 448 (9th Cir. 1999), one unnecessary step backwards. Wiggins, O'Scannlain (author) and Hawkins (concurring), Circuit Judges.  G. Silbiger of Los Angeles, CA, for the petitioners;  A. Loughran of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

52)  IMMIGRATION LAW / ASYLUM:  Lata v. INS, 98-70814 (9th Cir. Mar. 8, 2000).  An isolated criminal assault on the asylum petitioner by homeland civilians, although allegedly motivated by racial and religious animus, did not resemble statutory persecution.  Wiggins, O'Scannlain (author) and Hawkins, Circuit Judges.  N. Asherson of Beverly Hills, CA, for the petitioner;  D. Ogden of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

53)  IMMIGRATION LAW / ASYLUM:  Chanchavac v. INS, 98-71195 (9th Cir. Mar. 27, 2000).  An asylum applicant's claim of a well-founded fear of persecution was supported by evidence of pervasive violence against him by homeland military forces, who incorrectly believed that he was sympathetic to insurgents, and by insurgents, who were unable to recruit him;  dissenting, Judge O'Scannlain thought that the BIA had correctly determined that the petitioner had not adduced evidence "so compelling that no reasonable factfinder could fail to find" that he has suffered past persecution or has a well-founded fear of future persecution.  Pregerson (author), Noonan, and O'Scannlain (dissenting), Circuit Judges.  J. Talleda of Pasadena, CA, for the petitioner;  M. Guyton of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

54)  IMMIGRATION LAW / ASYLUM:  Kumar v. INS, 98-71129 (9th Cir. Mar. 2, 2000).  Reports from Amnesty International and the State department that there is no longer wide-spread abuses of human rights in Fiji, the asylum applicant's homeland, were sufficient to overcome the presumption of a well-founded fear of persecution based on race, political opinion, or religious beliefs.  Wiggins, O'Scannlain (author), and Hawkins, Circuit Judges.  W. Gardner of San Francisco, CA, for the petitioners;  D. Ogden of Washington, DC, for the respon-dent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

55)  IMMIGRATION LAW / ASYLUM:  Cordon-Garcia v. INS, 98-70464 (9th Cir. Mar. 3, 2000).  Asylum may be granted based on imputed political opinion where the alien's testimony establishes that revolutionary forces in his homeland tried to recruit him away from a government teaching position and committed acts of violence against family and friends when they refused to help the insurgents locate the alien.  Hall, Trott (author), and W. Fletcher, Circuit Judges.  G. Sarin of Los An-geles, CA, for the petitioner;  J. Bernstein of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

56)  IMMIGRATION LAW:  Grava v. INS, 98-70981 (9th Cir. Mar. 7, 2000).  A "whistleblower" who exposed corruption in the government of the Philippines in the course of his official duties as a police officer and customs officer may claim asylum on account of persecution arising from his action.  Magill, Hawkins, and Thomas (author), Circuit Judges.  B. Lerner of Carson, CA, for the petitioner;  J. Smiley of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

57)  IMMIGRATION LAW / ASYLUM:  Tecun-Florian v. INS, 98-70682 (9th Cir. Mar. 14, 2000).  Where an asylum applicant demonstrates that he refused to join homeland insurgents because that violated his religious beliefs, the BIA may still reasonable rule that the insurgents persecuted him solely in retribution for his failure to join them, if the only evidence showing an anti-religious motivation was that they saw him going to church;  dissenting, Judge Ferguson thought the majority's decision contained three errors:  first, it erroneously concludes that the holding of INS v. Elias-Zacarias, 502 US 478 (1992), precluded the petitioner from obtaining asylum;  second, it failed to consider Ninth Circuit law on imputed political opinion, which requires that the petitioner be granted relief from deportation;  and, third, it incorrectly limited the type of evidence a petitioner can use to prove persecution on account of imputed political opinion.  Ferguson (dissenting), Reavley (author), and Trott Circuit Judges.  M. Rios of Seattle, WA, for the petitioners;  G. Mack of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

58)  IMMIGRATION LAW / DUE PROCESS: Jacinto v. INS, 98-70321 (9th Cir. Mar. 14, 2000).  In a hearing on a pro se application for asylum, the immigration judge violated his duty to fully and fairly develop the record in a manner understandable to the alien, and to ensure that favorable facts and circumstances were presented;  this resulted in apparent and pervasive prejudice to the alien;  dissenting, Judge Trott disagreed with the majority's conclusions (1) that the alien did not receive a full and fair hearing, (2) that she did not understand her rights with respect to the hearing procedure, (4) that she was denied a reasonable opportunity to present evidence, and (5) that she was the subject of two cross-examinations.  Bright (author), Reinhardt, and Trott (dissenting), Circuit Judges.  E. Quintanilla of Sherman Oaks, CA, for the petitioners;  M. Golding of Wash-ington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

59)  IMMIGRATION LAW / DEPORTATION: USA v. Sacramento Hinojosa-Perez, 98-30304 (9th Cir. Mar. 13, 2000).  If an alien receives actual notice of the consequences of failing to appear at deportation proceedings and how to challenge an in absentia deportation order administratively, his failure to exhaust administrative remedies bars his challenge to the order in a prosecution for unlawful reentry after deportation;  dissenting, Judge Boochever thought the government waived the exhaustion issue when it failed to raise it in a manner sufficient to create an adequate record for appellate review;  Judge Boochever would also hold that the district court erred in finding that the government satisfied the requirements of due process when it failed to send notice to the last address the defendant reported to the INS.  Reavley, Boochever (dissenting), and Trott (author), Circuit Judges.  AFD M. Taggart of Anchorage, AK, for the defendant-appellant;  W. Brown of Washington, DC, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

60)  IMMIGRATION LAW / DEPORTATION / VENUE: USA v. Salazar-Robles, 99-10194 (9th Cir. Mar. 21, 2000).  Venue for prosecution of the offense of being a deported alien found in the U.S. without the consent of the Attorney General lies in the federal judicial district where the alien is involuntarily found.  Schroeder, Noonan (author), and Tashima, Circuit Judges.  AFPD J. Balazs of Sacramento, CA, for the defendant-appellant;  AUSA R. Taylor of Sacramento, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

61)  IMMIGRATION LAW / ILLEGAL REENTRY: USA Ibarra-Galindo, 99-30090 (9th Cir. Mar. 27, 2000).  For purposes of enhancing a sentence for illegal reentry after deportation, the Sentencing Guidelines' definition of "aggravated felony" includes the state crime of simple possession of a controlled substance, if state law defines that to be a felony;  dissenting, Judge Canby thought that the language of the relevant federal statutes did not compel the result that simple possession of four-tenths of a gram of cocaine constituted a drug trafficking crime.  Canby (dissenting), Brunetti, and O'Scannlain (author), Circuit Judges.  AFPD M. Filipovic of Seattle, WA, for the defendant-appellant;  AUSA H. Brunner of Seattle, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

62)  IMMIGRATION LAW / ASYLUM:  Perez-Lastor v. INS, 98-70266 (9th Cir. Mar. 31, 2000).  An asylum applicant was denied due process where during a deportation hearing, his translator did not accurately communicate the immigration judge's questions and the alien expressed difficulty in understanding what was said to him and gave unresponsive answers;  dissenting, Judge O'Scannlain thought the majority had hypothe-sized that the petitioner's difficulty in communicating with his interpreter "caused" the BIA to conclude that the petitioner's testimony was not credible, but neither the petitioner nor the record indicated how correct translations would have refuted the BIA's adverse credibility determination.  Pregerson (author), Noonan, and O'Scannlain (dissenting), Circuit Judges.  S. Salinas of Tustin, CA, for the petitioners;  M. Candaux of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

63)  IMMIGRATION LAW / FELONY CONVICTIONS: Aragon-Ayon v. INS, 98-70462 (9th Cir. Mar. 13, 2000).  The aggravated felony definition in the 1996 amendments of the Immigration and Naturalization Act applies retroactively to all defined offenses whenever committed, and makes aliens convicted of such offenses eligible for deportation notwithstanding the passage of time between the offense and the removal order.  Lay, Goodwin (author), and McKeown, Circuit Judges.  M. Yanick of Seattle, WA, for the petitioners;  J. Cunningham of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

64)  QUALIFIED IMMUNITY:  DeBoer v. Pennington, 97-35363 (9th Cir. Mar. 17, 2000).  Public officials were not entitled to qualified immunity for entering government-owned premises and seizing records and property of a government contractor based on an agreement that required financial records to be made available for government audit;  concurring, Judge Tashima would hold, on summary judgment, that DeBoer raised a material issue of fact whether the agreement can be construed as an agreement by the City of Bellingham to employ DeBoer to supply his own personal services, for a term certain, which could be terminated only for cause, and thus the agreement fell within precedents holding that an employment contract under which a state employee may be discharged only for cause creates a constitutionally protected property interest; dissenting in part, Judge Canby concurred in full with the mjority's holding that the City defendants are not entitled to qualified immunity with regard to DeBoer's Fourth Amendment claims; but, he disagreed with the majority on DeBoer's due process claim, as he thought the contract between the City and D&M Operating Company, of which DeBoer was a partner, created no due-process-protected property interest in DeBoer that protected him against a breach by the City.  Canby (dissenting in part) and Tashima (concurring), Circuit Judges, and Takasugi (author), District Judge.  K. Denke of Seattle, WA for the plaintiffs-appellants;  P. Berney of Olympia, WA, and R. Christie of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

65)  INVESTIGATORY TRAFFIC STOPS / REASON-ABLE SUSPICION:  USA v. Lopez-Soto, 99-50201 (9th Cir. Mar. 8, 2000).  A police officer did not have reasonable suspicion to stop a motor vehicle based on formal training which erroneously maintained that the vehicle was not displaying a current registration decal in the correct manner. Trott and W. Fletcher, (author), Circuit Judges, and Molloy, District Judge.  B. Coleman of San Diego, CA, for the defendant-appellant'  AUSA P. Johnson of San Diego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

66)  SEARCH & SEIZURE:  USA v. Johnson, 99-30012 (9th Cir. Mar. 10, 2000).  The "hot pursuit exigent circumstance" exception to the Fourth Amendment's warrant requirement applied where an officer in pursuit of a suspect who has just resisted arrest and fled into wooden area, interrupts the chase for a half-hour while awaiting backup;  dissenting, Judge Ferguson thought the majority contradicted well-established Supreme Court and Ninth Circuit precedent in holding that an officer's "gut feeling" constitutes probable cause, and an officer is in "hot pursuit" even when he has not seen his suspect for over a half hour.  Reavley, Ferguson (dissenting), and Trott (author), Circuit Judges.  AFPD M. Filipovic of Seattle, WA, for the defendant-appellant; AUSA B. Miyake of Seattle, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

67)  SEARCH & SEIZURE:  USA v. Stephens, 98-10374 (9th Cir. Mar. 20, 2000).  A police sweep of a bus for drugs and weapons amounted to an unconstitutional "seizure" of the defendant whose only choice was between remaining aboard a bus and submitting to questioning, or disembarking pass an officer guarding the door and additional officers outside with a drug-detecting dog; dissenting, Judge Sneed thought that the coercive effect of the words spoken by the officers should have been measured by their effect on an "innocent" person, but that the majority had measured their effect on the "guilty" person.  Sneed (dissenting) and Pregerson (author), Circuit Judges, and Carter District Judge.  AUSA S. Spangler of Sacramento, CA, for the plaintiff-appellee;  K. Clymo of Sacramento, CA, for the defen-dant-appellant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

68)  SEARCH & SEIZURE:  USA v. Garcia, 99-10001 (9th Cir. Mar. 7, 2000).  Police who stop a vehicle for a traffic violation may search the trunk after the occupants have been arrested for drug possession, a drug-detection dog has alerted to both the trunk area and the glove box, and the vehicle has been impounded.  Schroeder, Beezer (author), and Graber, Circuit Judges.  AFPD J. Lambrose of Las Vegas, NV, for the defendant-appellant;  AUSA D. Bogden of Reno, NV, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

69)  EVIDENCE:  USA v. Takahashi, 98-10219 (9th Cir. Mar. 6, 2000).  Evidence of the defendant's affiliation with the Yakuza, a Japanese crime group, was admissible to show that the defendant and a defense witness who claimed responsibility for the charged offense belong to a gang whose members were willing to "take the blame" for one another.  Graafeiland (author), Alarcon, and Silverman, Circuit Judges.  S. Nutting of Saipan, MP, for the defendant;  AUSA K. Seely of Saipan, MP, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

70)  RIGHT TO CONSULAR NOTIFICATION: USA v. Lombera-Camorlinga, 98-50347 (9th Cir. Mar. 6, 2000).  Sitting en banc, the USCA held that a foreign national's post-arrest statements should not be excluded from evidence in a criminal prosecution solely because he made them before being advised of his right to consular notification under Article 36 of the Vienna Convention on Consular Relations;  dissenting, Judge Boochever, joined by Judges Browning and Thomas, thought that defendants who actually have been prejudiced by the failure to be notified of their Article 36 rights may suffer imprisonment and other punishments to which they would not have been subjected had their rights been observed, and that such an interpretation of the treaty hardly conformed to the due process principles of the U.S. Constitution;  Judge Thomas, joined by Judges Browning and Boochever, dissented from the majority's conclusion that the exclusionary rule is not the appropriate method by which a private right to consular notification should be enforced in the United States; and, joined by Judges Browning, Boochever, and Wardlaw, Judge Thomas dissented from the majority's conclusion that deference should be paid to an agency's litigating position.  Hug, Browning (dissenting), Schroeder (author), Boochever (dissenting), Kozinski, O'Scannlain, Kleinfeld, Thomas (dissenting), McKeown, Wardlaw (dissenting), and W. Fletcher.  AFPD B. Coleman of San Diego, CA, for the defendant;  D. Kris of Washington, DC, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 
 

71)  DOUBLE JEOPARDY / NATIVE AMERICAN LAW: USA v. Enas, 99-10049 (9th Cir. Mar. 28, 2000).  The prosecution and conviction in an Indian tribal court of a non-member Indian for criminal offense does not bar a subsequent federal prosecution of the same person based on the same conduct.  Bright (author), Pregerson, and W. Fletcher, Circuit Judges.  AUSA D. Humetewa of Phoenix, AZ, for the plaintiff-appellant;  AFPD S. Popko of Phoenix, AZ, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

72)  RIGHT TO COUNSEL:  Jones v. Wood, 99-35029 (9th Cir. Mar. 10, 2000).  The petitioner established prejudice arising from the failure of his defense counsel to investigate and present circumstantial evidence that another person committed the crime charged, where the state's case against the defendant was largely circumstantial.  Reinhardt and Thomas (author), Circuit Judges, and Sedwick, District Judge.  D. Mullen of Olympia, WA, for the respondent-appellant
-cross-appellee;  D. Zuckerman of Seattle, WA, for the petitioner-appellee-cross-appellant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

73)  RIGHT TO COUNSEL:  Baker v. City of Blaine, 98-35378 (9th Cir. Mar. 6, 2000).  A criminal defendant was not deprived of his Sixth Amendment right to counsel at a misdemeanor arraignment, where he pled guilty to the charge, did not contest his conviction, and nothing occurred during the proceeding that was material to later trial proceedings;  dissenting, Judge Canby thought the majority had mistakenly adhered to dicta in Moore v. Calderon, 108 F.3d 261 (9th Cir.), cert. denied 521 US 1111 (1997), under which in 28 USC Sec. 2254(d)(1) the "contrary to" language governs questions of law, and the "unreasonable application of" language governs mixed questions of law and fact;  Judge Canby also thought that the petitioner's right to appointed counsel had not been adequately explained to him and that his trial had not met the standards for waiver of counsel.  Canby (dissenting), Brunetti, and O'Scannlain (author), Circuit Judges.  S. McCloud of Seattle, WA, for the petitioner-appellant;  M. Elich of Bellingham, WA, for the respondent-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

74)  CUSTODIAL INTERROGATIONS / RIGHT TO COUNSEL: Bains v. Cambra, 98-17223 (9th Cir. Mar. 2, 2000).  When a criminal suspect voluntarily accompanies officers to a police station to answer questions, "targeted" questioning in an unlocked interview room did not per se constitute a custodial interrogation such as to trigger Miranda rights;  concurring, Judge Silverman wrote separately to emphasize the strength of that prosecution evidence properly admitted;  dissenting, Judge Canby thought that the combination of constitutional errors committed at the petitioner's trial had substantial and injurious effect or influence in determining the jury's verdict.  Choy (author), Canby (dissenting), and Silverman (concurring), Circuit Judges.  C. Gardner of San Francisco, CA, for the petitioner-appellant;  H. Wilkinson of San Francisco, CA, for the respondents-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

75)  EMBEZZLEMENT DEFENSES:  USA v. Ross, 98-50071 (9th Cir. Mar. 16, 2000).  An intent to repay is not a defense to the charge of misappropriation of Postal Service funds under 18 USC Sec. 1711 Wallace, Pregerson, and Thomas (author), Circuit Judges.  D. Katz of Los Angeles, CA, for the defendant-appellant;  AUSA R. Dugdale of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this deci-sion at www.ce9.uscourts.gov/) 

76)  SPEEDY TRIAL ACT:  USA v. Hardeman, 97-10516 (9th Cir. Mar. 21, 2000).  The Speedy Trial Act clock began running in this case at the conclusion of a status conference conducted to resolve discovery dispute where no continuance had been granted and no pretrial motions were pending.  Schroeder, Noonan, and Tashima, Circuit Judges.  Per Curiam.  D. Cohen of San Francisco, CA, for the defendant-appellant;  AUSA R. Swanson of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

77)  FEDERAL MAGISTRATES ACT / JURY POLLS: USA v. Gomez-Lepe, 99-30031 (9th Cir. Mar. 16, 2000).  A magistrate judge exceeding his authority under the "additional duties" provisions of the Federal Magistrates Act when, without the defendant's consent, he presided over a jury poll where unanimity was at issue.  Reavley, Reinhardt, and McKeown (author), Circuit Judges.  R. Smith of Yakima, WA, for the appellant;  AUSA J. Kirk of Yakima, WA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

78)  CAPITAL CASES:  Arreguin v.  Prunty, 98-56611 (9th Cir. Memorandum disposition of March 8, 2000 has been withdrawn and replaced by this opinion dated Mar. 8, 2000).  California Penal. Code Sec. 190, which requires that, to be eligible for a penalty of death or life without parole, a murder defendant who is not the actual killer be a "major participant" in a robbery special circumstance, does not constitute a state-created liberty interest protected by the Fourteenth Amendment.  Kozinski and Thomas (author), Circuit Judges, and Ingram, District Judge.  R. Schneider of Los Angeles, CA, for the respondents-appellants;  D. Berley of West Hills, CA, for the petitioner-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

79)  SENTENCING:  USA v. Wetchie, 99-30152 (9th Cir. Mar. 16, 2000).  The "vulnerable victim" adjustment permitted by the Sentencing Guideline 3A1.1(b)(1) can be applied to enhance the sentence of a defendant convicted of abusive sexual contact with a sleeping minor.  Beezer, O'Scannlain (author), and Thomas, Circuit Judges.  F. Sison of Boise, ID, for the defendant-appellant;  AUSA J. Peters of Boise, ID, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

80)  SENTENCING:  USA v. Sandoval-Barajas, 99-30130 (9th Cir. Mar. 13, 2000).  Violation of a state statute requiring all aliens to obtain a license to possess a firearm is not an "aggravated felony" for purposes of the Sentencing Guidelines. Trott, Kleinfeld (author), and Silverman, Circuit Judges.  AFPD C. Gerrish and J. Chun of Spokane, WA, for the defendant-appellant;  AUSA T. Rice of Spokane, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

81)  SENTENCING:  USA v. Hamilton, 97-50540 (9th Cir. Mar. 24, 2000).  An apparent typographical error in designating the year of a prior conviction alleged in a 21 USC Sec. 851 sentencing information that otherwise satisfied due process notice requirements did not render the information invalid.  Browning and Tashima, Circuit Judges, and King (author), District Judge.  AUSA Y. Palazuelos of Los Angeles, CA, for the plaintiff-appellant;  DFPD M. Tanaka of Los Angeles, CA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

82)  SENTENCING:  USA v. Johnson, 98-30346 (9th Cir. Mar. 8, 2000).  The district court erred in including juvenile sentences in calculating defendant's criminal history category, as he had not been confined on the juvenile sentences within 5 years of his federal offense.  Leavy (author), Fernandez, and Thomas, Circuit Judges.  AFPD N. Bergeson of Portland, OR, for the defendant;  AUSA B. Sheldahl of Portland, OR, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

83)  HABEAS CORPUS:  USA v. Villa-Gonzalez, 99-15515 (9th Cir. Mar. 16, 2000).  The appellate court's permission to file a second motion under 28 USC Secs. 2255 and 2244(b) to vacate a conviction and sentence did not preclude the district court from concluding that the motion did not meet statutory requirements for a second or successive Sec. 2255 motion.  Goodwin, Leavy, and Tashima, Circuit Judges. Per Curiam.  S. Villa-Gonzales pro se; AUSA R. Gordon of Tucson, AZ for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/)

84)  HABEAS CORPUS:  USA v. Colvin, 99-35269 (9th Cir. Mar. 1, 2000).  When the court of appeals partially affirms and partially reverses a judgment and remands with instructions to amend the judgment, the amended judgment becomes final for purposes of the 28 USC Sec. 2255 statute of limitations when the time has passed for appealing the district court's entry of the jugment;  dissenting, Judge Rymer thought the judgment of conviction became final here when the time for petitioning the U.S. Supreme Court for a writ of certiorari has expired, as the court of appeals had already affirmed all that was left of the defendant's case and its mandate left nothing for the district court to do but perform the ministerial task of erasing the conviction as to one count.  Rymer (dissenting), Hawkins (author), and McKeown, Circuit Judges.  A. Mendel of Anchorage, AK, for the defendant;  AUSA S. Collins of Anchorage, AK, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

85)  PAROLE:  USA v. Miller, 99-10094 (9th Cir. Mar. 8, 2000).  Where payment of a fine is an express condition of supervised release, 18 USC Sec. 3583(e)(2) gives the district court authority to hear motions to modify the fine.  Bright (author), Pregerson, and W. Fletcher, Circuit Judges.  AFPD A. Silvert of Honolulu, HI, for the defendant appellant;  AUSA L. Tong of Honolulu, HI, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

86)  PRISONERS' RIGHTS:  Johnson v. California, 98-55302 (9th Cir. Mar. 21, 2000).  A California prisoner's complaint alleging racial segregation in housing in the absence of a valid penological purpose was sufficient to state a constitutional claim;  the district court properly dismissed the prisoner's claim that inmates were overcharged for telephone use, as there was no authority for the proposition that prisoners are entitled to a specific rate for their telephone calls and the complaint alleged no facts from which it could be concluded that the rate charged was so exorbitant as to deprive prisoners of phone access altogether.  B. Fletcher, D.W. Nelson, and Brunetti, Circuit Judges.  Per Curiam.  G. Johnson pro se;  B. Turner of San Francisco, CA, for the respondents-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

2)  INTELLECTUAL PROPERTY: Fry's Electronics v. Octave Systems, 97-15485 (9th Cir. March 3, 2000) (unpublished).  Boochever, Leavy, and Tashima, Circuit Judges.
           David Peter appealed pro se from a default judgment entered against him by the District Court for the Northern District of California, Judge Legge presiding, in this diversity action brought by Fry's Electronics.  Fry's had alleged unlawful use of its trade name.  The USCA affirmed.  It found no merit in Peter's contention that the district court abused its discretion in imposing a default judgment for his failure to produce documents and submit to a deposition as ordered.  The district court properly imposed the default judgment because the record showed that the availability of a lesser sanction was considered, Fry's was prejudiced by Peter's failure to submit to deposition and produced requested documents, and Peter's misconduct was willful.  Peter's contention that the district court granted relief to Fry's that was not available under the cause of actions pled was with-out merit.  Peter's contention that the district court did not have personal jurisdiction over him was meritless because any defects in personal jurisdiction were waived by Peter. 

3)  INTELLECTUAL PROPERTY / ATTORNEYS' FEES:Domingo Cambeiro Professional Corp. v. Advent, 99-15637 (9th Cir. March 7, 2000) (unpublished).  B. Fletcher, Canby, and O'Scannlain, Circuit Judges.
           Plaintiff-Appellant, Domingo Cambeiro Professional Corporation ("Cambeiro"), an architecture firm, was invited by the defendants, Mark Advent and Tri-M Holdings, to submit a design proposal for a shopping center with a "New York theme."  Under a confidentiality agreement, Cambeiro prepared and submitted an architectural rendering along with a scroll of drawings depicting a single commercial building with an integrated structure and facade based on the skyline of New York City.  Although Cambeiro made two well-received presentations of the rendering and scroll to the defendants, other architects were brought in when the defendants decided to build a New York theme hotel-casino.  Cambeiro's infringement suit against the defendants alleged that the "New York-New York Hotel" eventually constructed in Las Vegas (as well as the rendering of another architect), infringed Cambeiro's rights in the rendering and scroll prepared for the proposed shopping center.
           Cambeiro's original complaint asserted causes of action for conversion and unjust enrichment.  The District Court for Nevada, Judge Rawlinson presiding, dismissed those causes of action on the ground that they were preempted by the Copyright Act since both arose from the alleged modification and use of Cambeiro's works in the New York Hotel project.  After the court granted summary judgment on the copyright claim, Cambeiro filed a new complaint in state court, once again asserting causes of action for conversion and unjust enrichment.  The defendants removed that case to federal court and filed a motion to dismiss the conversion and unjust enrichment claims  based on res judicata and the court's earlier finding of preemption.  After denying Cambeiro's motion to remand, the court granted the motion to dismiss, as both claims were virtually identical to the claims asserted in the original federal complaint.  The defendants' then moved for attorneys' fees under 17 USC Sec. 505, which the court awarded on the ground that the attempt to relitigate preempted claims was unreasonable.
           The USCA affirmed.  It noted that a district court's decision regarding the award of attorneys' fees pursuant to Sec. 505 of the Copyright Act is reviewed for an abuse of discretion, and reversal for abuse of discretion is not appropriate unless the reviewing court has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.  Any underlying findings of fact are reviewed for clear error.  Fogerty v. Fan-tasy, 510 US 517 (1994), rejected the British Rule as well as the "dual standard" in favor of an "evenhanded approach" toward fee requests in copyright cases: "Prevailing plaintiffs and prevailing defendants are to be treated alike, but attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion.  There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised."  In a footnote, the Supreme Court observed that "frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence," are appropriate factors "so long as such factors are faithful to the purpose of the Copyright Act and are applied to prevailing plaintiffs and defendants in an evenhanded manner."  Here, the district court's order granting fees to the defendants held that the plaintiffs' including the two claims in their state complaint after this Court held they were preempted was objectively unreasonable."  Cambeiro attempted to defend its conduct by arguing the merits of preemption and removal jurisdiction.  However, given the doctrine of res judicata and the clear implication of the court's prior ruling on preemption, the USCA agreed with the district court that Cambeiro's decision to refile in state court was unreasonable.  It thus affirmed the grant of attorneys' fees.

4)  INTELLECTUAL PROPERTY: Domingo Cambeiro Professional Corp. v. Mark Advent, 99-17057 (9th Cir. March 7, 2000) (unpublished).  B. Fletcher, Canby, and O'Scannlain, Circuit Judges.
            Cambeiro was invited by certain of the defendants to submit a design proposal for a shopping center with a "New York theme."  Under a confidentiality agreement, Cambeiro prepared and submitted an architectural rendering along with a scroll of drawings depicting a single commercial building with an integrated structure and facade based on the skyline of New York City.  Although Cambeiro made two well-received presentations of the rendering and scroll to the defendants, other architects were brought in when the defendants decided to build a New York theme hotel-casino instead.  Cambeiro's infringment suit against the defendants alleged that the "New York-New York Hotel" eventually constructed in Las Vegas (as well as the rendering by architect Joel Bergman), infringed Cambeiro's rights in the rendering and scroll prepared for the proposed shopping center.  The District Court for Nevada, Judge McKibben presiding, granted the defendants' motion for summary judgment on the ground that no reasonable juror could find substantial similarity between defendants' works and the protected elements of Cambeiro's works.  Specifically, the court applied the "extrinsic test" described in Apple Computer v. Microsoft, 35 F.3d 1435 (9th Cir. 1994), and the scenes a faire and merger doctrines, finding that the only similar elements in the works (the idea of a New York City theme in the architectural embodiment or structure and the selection of common New York City icons), were not protectable.  Although Cambeiro appealed the ruling, it failed to notice the appeal within 30 days of the entry of judgment and the USCA dismissed the case.  The defendants then moved for attorneys' fees.  The district court granted the motion on the ground that the Cambeiro's position on the copyright claim was objectively unreasonable.  It found that, by steadfastly objecting to the court's use of analytic dissection under the extrinsic test, "Cambeiro failed to identify any specific similarities between the Cambeiro works and the New York Hotel."  Instead, Cambeiro relied on the theory that its selection, arrangement and coordination of famous New York icons into an integrated facade was entitled to copyright protection.  However, the court concluded that such a theory would "confer a monopoly on the idea of using the New York City skyline," and was "abhorrent to the principle of copyright law."  Awarding fees to the defendants, on the other hand, would "promote the creation of works from any underling work, which exists in the public domain."
          The USCA affirmed.  The central premise of Cambeiro's argument was that a district court must "leave in" all unprotected elements when comparing a compilation with an allegedly infringing work.  However, as Feist Publications v. Rural Telephone Service Co., 499 US 340 (1991), makes clear, the protection in compilations is subject to an important limitation:  "The mere fact that a work is copyrighted does not mean that every element of the work may be protected …copyright protection may extend only to those components of a work that are original to the author… This inevitably means that the copyright in a factual compilation is thin.  Notwithstanding a valid copy-right, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement."  Under Apple Computer v. Microsoft, 35 F.3d 1435 (9th Cir. 1994), the two-pronged test for substantial similarity is used to enforce this limitation by helping courts distinguish protected from unprotected elements.  As the test has evolved, the role of the extrinsic element (particularly at the summary judgment stage) has expanded.  As Apple Computer observed:  "the extrinsic test now objectively considers whether there are substantial similarities in both ideas and expression, whereas the intrinsic test continues to measure expression subjectively.  Because only those elements of a work that are protectable and used without the author's permission can be compared when it comes to the ultimate question of illicit copying, we use analytic dissection to determine the scope of copyright protection before works are considered 'as a whole'."  Thus Apple Computer said that in order to meet the extrinsic test (1) "The plaintiff must identify the source(s) of the alleged similarity between his work and the defendant's work"; (2) "Using analytic dissection, and, if necessary, expert testimony, the court must determine whether any of the allegedly similar features are protected by copyright"; and (3) "having dissected the alleged similarities and considered the range of possible expression, the court must define the scope of plaintiff's copyright."  Once the scope of the copyright is defined, a standard can be set for intrinsic comparison—i.e. "a subjective comparison of the works to determine whether, as a whole, they are sufficiently similar to support a finding of illicit copying."  Under the test set forth in Apple Computer, it was objectively unreasonable for Cambeiro to refuse to identify the source of the alleged similarity between its works and the New York Hotel.  It was also objectively unreasonable for Cambeiro to oppose the use of analytic dissection under the extrinsic test.  Moreover, the district court did not, as Cambeiro now argues, blend analytic dissection with the intrinsic test.  The district court granted summary judgment because, under the extrinsic test, it was quite clear that Cambeiro's and the defendants' works shared only the idea of a New York sky-line on a building facade and other unprotected elements (New York City icons in the public domain), which are either essential to or thoroughly commonplace in expressing that idea.  Extrinsic analysis revealed that Cambeiro's works were entitled to thin copyright protection at best.  Cambeiro was entitled to protection only for its particular selection, arrangement and coordination of New York City icons.  Thus, even on an intrinsic level, Cambeiro would have been obliged to prove "virtually identical copying."  Under this standard of comparison (identical copying), the district court did not err in concluding (a) that no reasonable juror could find substantial similarity, and (b) that it was objectively unreasonable for Cambeiro to pursue a claim against the defendants since their works were obviously not identical, or virtually identical, copies of Cambeiro's.  By insisting on copyright protection against works which were not virtually identical, Cambeiro essentially sought a monopoly on the idea of a building whose structure incorporates New York City icons.  This far exceeds the purpose and scope of the copyright laws.  Cambeiro also argued that its position was reasonable because the USCA has not extended analytic dissection under the extrinsic test to visual or representational (as opposed to literary) works.  The USCA noted that, although its has emphasized that analytic dissection is particularly helpful in the context of literary works, the extension of the extrinsic test to graphical user interfaces in Apple Computer refutes any claim that analytic dissection is inappropriate in the context of the graphic and visual arts.  Finally, Cambeiro claims that the award of attorneys' fees in this case is inconsistent with the purposes of the Copyright Act and will chill creativity.  However, the USCA found that to the degree that Cambeiro's works can be characterized as a mere compilation of icons in the public domain, Feist answers this charge:  "It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation [but the] primary objective of copyright is not to reward the labor of authors, but 'to promote the Progress of Science and useful Arts.'  To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.  This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship.  As applied to a factual compilation…only the compiler's selection and arrangement may be protected;  the raw facts may be copied at will.  This result is neither unfair nor unfortunate.  It is the means by which copyright advances the progress of science and art."  Although the defendants used Cambeiro's idea of a theme building integrating New York icons into the facade, it was free to copy this idea at will.  As far as the purpose of the Copyright Act are concerned, appropriation of ideas from the creative expression of others is to be encouraged.  Finally, Cambeiro maintained that attorneys' fees were precluded under 17 USC Sec. 412(2).  However, the USCA noted that, by its plain language, Sec. 412 does not apply to this case because there has been no finding of infringement.

5)  ANTITRUST / SETTLEMENT AGREEMENTS: National Auto/Truckstops v. Portland 76 Auto/Truck Plaza, 98-36267 (9th Cir. March 17, 2000) (unpublished).  Noonan, Graber, and Fisher, Circuit Judges.
            Defendant Portland 76 Auto/Truck Plaza, Inc. ("Port-land 76"), appealed from a declaratory judgment of the District Court for Oregon, Judge Marsh presiding, that plaintiff National Auto Truckstops, Inc. ("National"), has a present right to execute against $390,000 currently held in escrow.  National's right to execute on the judgment depends on the interpretation of the parties settlement agreement.  Before the parties entered into that settlement agreement, Portland 76 had won a $7.9 million judgment against Union Oil Company of California ("Unocal"), based on contract and antitrust claims ($6.9 million on the anti-trust claims and $1 million on the contract claims).  Portland 76—the plaintiff in that case—appealed, seeking additional damages.  Unocal cross-appealed, challenging the judgment against it.  One day before Unocal filed its cross-appeal, Portland 76 and National entered into the written settlement agreement that is the subject of the instant action.  National agreed to accept $600,000 in satisfaction of approximately $900,000 of claims that it had against Portland 76.  National received $210,000 at the time of settlement and agreed not to execute on the remaining $390,000 unless certain contingencies occurred.  On appeal in the Portland 76/Unocal action, this court denied Portland 76's request for additional damages, affirmed the $1 million award on the breach of contract claims, and reversed the $6.9 million award on the antitrust claims.  National then attempted to collect the $390,000 it contended that Portland 76 owed to it under the settlement agreement.  Portland 76 refused to pay, and National filed this declaratory judgment action.  The district court concluded that National was entitled to execute on the funds.
          Reviewing de novo the construction of a settlement agreement, the USCA noted that Portland 76 maintained that, under the settlement agreement's express terms, National was entitled to execute judgment only if Portland 76 won its main argument on appeal—that is, if Portland 76 succeeded in its request for additional damages.  Were that construction of the settlement agreement correct, National would have to write off the $390,000 judgment it holds, because Portland 76 failed in its request for additional damages.  National countered that the ex-press terms of the agreement entitled it to execute against "any payment" received by Portland 76 at the conclusion of the Port-land 76/Unocal appeal.  Considering the wording of the delayed-execution provision in the context of the agreement as a whole, the USCA concluded that the settlement agreement had to be construed as authorizing National to execute against the $1 million paid to Portland 76 by Unocal.  Paragraph 3 of the settlement agreement addresses timing.  Under that paragraph, National could not execute on the $390,000 stipulated jugment "until such time as" Portland 76 receives "any payment" from Unocal by way of settlement or resolution of its appeal.  In fact, the provision goes so far as to establish the time period (24 hours) during which Portland 76 is to notify National that its right to execute judgment had accrued.  Paragraph 4 of the settlement agreement, on the other hand, explains the contingent nature of National's right to execute.  If neither of the events specified in the subparagraphs 3(a) or 3(b) occurred—and thus Portland 76 received nothing as a result of the Unocal case—then National would be obligated to write off the $390,000 stipulated judgment that it held against Portland 76.  In other words, the parties settled their dispute for $600,000, but agreed to reduce the sum to $210,000 if Portland 76 received nothing from Unocal.  As noted, National's right to execute against the stipulated judgment accrued when Portland 76 received the right to any payment as a result of its appeal against Unocal.  In the USCA's view, the phrase "its appeal against Unocal" is most naturally construed to encompass both Portland 76's attempt to increase its recovery and Portland 76's attempt to defend the award that it already had received in the Unocal case.  Because Portland 76 initiated appellate proceedings in the Portland 76/Unocal case, those proceedings are logically described as "its" appeal.  Portland 76's contention that National was entitled to execute against the stipulated jugment only if Portland 76 received additional funds from Unocal (beyond the $6.9 million judgment that it held at the time of contracting) was belied by the contract's use of the broad term "any payment."  Furthermore, Portland 76's proffered construction was inconsistent with paragraph 3's alternate provision entitling National to execute on the judgment if Portland 76 settled with Unocal.  If Portland 76 had settled the Unocal case, it most likely would have received less than the entire award it held at the time of contracting.  It would be illogical to read the delayed-execution provision of the settlement agreement so that, under one clause, National could execute only if Portland 76 increased the amount of its award against Unocal but, under the other clause, National could execute only if Portland 76 decreased the amount of the award.  Further, it would be unreasonable to conclude that National entered into a settlement agreement under which Portland 76 could receive $1 million and pay none of its to satisfy its debt to National.  As the district court observed, "given the size of the jury's award and the complex and tenuous nature of the anti-trust issues involved in the appeal, the contingency Portland 76 suggests is clearly unreasonable."  In fact, under Portland 76's prof-fered construction of the agreement, even if the Portland 767/Unocal judgment had been left unchanged on appeal, National could not have executed on the judgment.  Portland 76 would have received $7.9 million from Unocal, but National would have been required to write off the $390,000 debt owed to it by Portland 76.  National's proffered construction comports with a commonsense reading of the entire text of the settlement agreement, while Portland 76's proffered construction conflicts with some of that text and is inherently implausible.  Accordingly, the USCA affirmed the district court's judgment.

6)  RICO: Lu v. Liu, 98-55332 (9th Cir. March 9, 2000) (unpublished).  Browning, Kozinski, and Wardlaw, Circuit Judges.
            Lu appealed a judgment of the District Court for the Central District of California, Judge Hatter presiding, in favor of defendant Liu in Lu's 18 USC Sec. 1962 RICO action claiming that Liu, Yen, and others defrauded him of approximately four million dollars in a real estate investment scheme.  After Lu rested his case during the jury trial, the district court granted judgment as a matter of law as to his RICO and fraud claims against Liu. 
          The USCA affirmed. Lu's notice of appeal was timely filed.  Absent certification pursuant to FRCP 54(b), orders entering judgment as to fewer than all of the claims or parties are not final.  The district court did not certify the judgment as final with respect to all the defendants until December 29, 1997.  Because Lu failed to brief the fraud issue on appeal, he waived that issue.  The USCA disagreed with Lu's contention that the district court erroneously granted judgment as a matter of law in favor of Lui as to Lu's civil RICO claim.  Lu's RICO allegations against Liu were premised on 18 USC Sec. 1962(c), which makes it unlawful for any person employed by or associated with any enterprise engaged in interstate commerce to conduct or participate in the conduct of the enterprise's affairs through a pattern of racketeering activity.  Only those persons who are involved in directing the affairs of the enterprise may be liable under Sec. 1962(c).  Here, although Lu argued that Liu played a part in directing the alleged racketeering activities, the record does not support such an assertion.  In fact, Lu's own testimony revealed a distinct lack of involvement in the pattern of alleged racketeering activities on the part of Liu.  Lu recalled only one conversation with Liu concerning the investments.  According to Lu, during a birthday dinner at Liu's home, Liu allegedly told him that "you don't have to worry about your investment."  Lu admitted that Liu had never been present for any business discussions and that she was never present when Lu visited the investment sites in Palmdale or Lancaster.  Lu's testimony failed to establish that Liu played any part in directing the affairs of any enterprise through racketeering activities.  Lu also pointed to the testimony of his expert witness, William Sheets, a certified public accountant who concluded that Liu was a "material participant" in the alleged racketeering enterprise.  When asked whether he had any knowledge of participation by Liu in the management of this enterprise, however, Sheets stated only that Liu "signed as secretary of the corporation on the account at Imperial Bank."  Sheets further testified that his conclusion that Liu was a "material participant" was based solely on Liu's position as secretary and director of one of the corporations allegedly involved in the racketeering enterprise.  Liu's corporate titles, without more, however, were insufficient to establish that she was a material participant in any racketeering activities.  The USCA concluded that Lu had not pointed to any evidence suggesting that Liu had a part in directing an enterprise's affairs through a pattern of racketeering activities, as required by Sec. 1962(c).  Nor did the record support such an assertion.  Accordingly, the USCA held that the district court properly granted judgment as a matter of law to Liu on the RICO claim.

7)  BUSINESS LAW: Thinket Ink Information Resource v. Sun Microsystems, 98-15545 (9th Cir. March 2, 2000) (unpublished).  Hug, D.W. Nelson, and McKeown, Circuit Judges.
           Thinket Ink Information Resources ("Thinket") appealed from an adverse judgment in favor of Sun Microsystems. ("Sun").  The district court entered an order dismissing several of Thinket's claims as time barred and compelling arbitration of its remaining claims.  The court then dismissed the action in its entirety and entered judgment for Sun.  On appeal, Thinket sought review the order to compel arbitration.  Under the Federal Arbitration Act, 9 USC Sec. 16(a)(3), the USCA has jurisdiction over a final decision on a motion to compel arbitration that is "independent," but not "embedded" in a substantive lawsuit.  The order to compel arbitration arose from a motion by Sun in the context of a federal lawsuit alleging discriminatory business practices.  The order to compel arbitration was thus embedded.  Thinket nonetheless argued that the order was appealable because the district court intended it as a final order and labeled its judgment appealable.  The USCA found this contention was unavailing.  McCarthy v. Providential Corp., 122 F.3d 1242 (9th Cir. 1997), said "We interpret the bar on appellate review to be just that, regardless of the terminology used by the trial court."  Appeals from motions to compel arbitration in embedded proceedings are interlocutory, even if the other claims have been dismissed.  Because the district court order was interlocutory, the USCA also lacked jurisdiction to consider the district court's procedural rulings or the court's dis-missal of Thinket's non-arbitrable claims as time barred.  The USCA noted that it was not precluding review of the district court's order, it was merely postponing it until the arbitration proceeding is complete

8)  BUSINESS LAW: Aptix Corp. v. Quickturn Design Systems, Inc., 98-17320 (9th Cir. March 17, 2000) (unpublished).  Schroeder, Noonan, and Tashima, Circuit Judges.
         Aptix sued Quickturn Design Systems for alleged anti-trust injuries.  The District Court for the Northern District of California, Judge Fogel presiding, found that Aptix had not offered probative evidence of a loss of customers, a loss of investors, or increased cost in obtaining capital.  It thus entered summary judgment for Quickturn.  Aptix appealed only the finding that it had not offered enough evidence to create a triable issue as to its increased cost in obtaining capital.  Aptix's argument turned on the exclusion by the district court of a document entitled "Valuation Matrix" prepared by unidentified persons at Aptix's investment adviser, Unterberg Harris.  The district court found that there was "absolutely no indication who at Unterberg authorized the Valuation Matrix;  what data or assumptions formed the basis for the figures contained therein; or what the figures contained therein could mean."  It thus properly ruled that the Valuation Matrix was not evidence admissible to defeat summary judgment.  By the same token, the court properly excluded the testimony of Aptix's CEO which depended on the Valuation Matrix.  Aptix was left without evidence to create a triable issue of fact.  Aptix asserted that the district court should not have denied the request in its complaint for an injunction against Quickturn.  But Aptix neither alleged nor showed any likelihood of future injury by Quickturn.  Failing to raise an issue as to future injury or evidence of past injury, Aptix afforded the court no basis for an injunction.

9)  BANKRUPTCY:  In re Wytch, 98-16644 (9th Cir. March 24, 2000) (unpublished).  B. Fletcher, Canby, and O'Scannlain, Circuit Judges.
          Wytch appealed from the Bankruptcy Appellate Panel ruling that res judicata barred his suit to set aside a bankruptcy court order that retroactively annulled the automatic stay and approved the post-petition foreclosure sale of his house.  In a June 7, 1996 order the bankruptcy court had indicated its intent to annul retroactively the automatic stay;  however, it stayed the retroactive annulment pending a subsequent hearing on the issue.  Before the date of the subsequent hearing, a bankruptcy clerk erroneously caused the court to dismiss the bankruptcy action.  The error was corrected and the action reinstated, but only after the date on which the hearing on retroactive annulment had been scheduled, and no new date was ever set.  Under these conditions, the USCA could not find that the June 7 order was a final decision on the merits.  Because res judicata applies only to final orders, it did not bar litigation of the claims of this case.  The USCA also rejected the appellee's contention that the case was moot.  It was not moot because the purchasers of the property at issue were parties to this appeal, and the court thus retained the power to order relief against them.  For these reasons, the USCA reversed and remanded to the bankruptcy court with instructions to conduct an evidentiary hearing on whether retroactive annulment of the automatic stay was warranted under the circumstances of this case.

10)  BANKRUPTCY:  In re Lurie, 98-35553 (9th Cir. March 2, 2000) (unpublished).  Reinhardt (dubitante), Thompson, and T.G. Nelson, Circuit Judges.
           Lurie appealed a judgment of the District Court for Montana, Judge Molloy presiding, dismissing, for lack of subject matter jurisdiction, her claims against Blackwell.  Lurie's husband, Ronald, served as general and managing partner of Popkin & Stern, a Missouri law firm, which entered Chapter 11 bankruptcy in Missouri in 1992.  The bankruptcy court designated Blackwell to serve as liquidating trustee for Popkin & Stern's Liquidating Trust, created to collect and distribute firm assets.  The liquidating trust agreement authorized Blackwell "to prosecute and defend all action s affecting the Liquidating Trust and to compromise or settle any suits, claims, demands, or waive or release any rights relating to the Liquidating Trust or the Liquidating Trust Assets."  Under the agreement, the bankruptcy court in Missouri retained exclusive jurisdiction over the Trust, including "the determination of all controversies and disputes arising under or in connection with the Liquidating Trust."  In his role as liquidating trustee, Blackwell obtained a judgment against Ronald for $1,121,743 and began collection efforts in Montana.  Pursuant to a writ of execution, a sheriff in Montana took property from the Luries' Montana residence.  Lurie argued that the items seized belonged to her.  She brought suit in the federal district court in Montana against Blackwell for the alleged wrongful levy of the writ of execution.  In dismissing Lurie's action for lack of subject matter jurisdiction, the district court relied on the "Barton Doctrine" derived from Barton v. Barbour, 104 US 126.  The Barton Doctrine established that a trustee "is not subject to suit without leave of the appointing court for acts done in his official capacity and within his authority as an officer of the court."  Because Blackwell's collection of the judgment and the seizure of the Montana assets pursuant to a writ of execution fell within his duties as liquidating trustee, the Barton Doctrine precluded Lurie from prosecuting this action in the district court without obtain ing leave from the bankruptcy court in Missouri.  However, Lurie argued that an exception to Barton applied to this case and permits her to sue Blackwell in the district court in Montana.  She relied on 28 USC Sec. 959(a) which provides that "Trustees, receivers or managers of any property, including debtors in possession, may be sued, without leave of the court appointing them, with respect to any of their acts or transactions in carrying on business connected with such property.  Such actions shall be subject to the general equity power of such court so far as the same may be necessary to the ends of Justice, but this shall not deprive a litigant of this right to trial by jury."  However, the USCA concluded that Lurie's argument lacked merit.  Blackwell's efforts to collect the judgment were not "acts or transactions in carrying on business connected with" property of the estate.
          Lurie next argued that even if Sec. 959(a) does not apply, Blackwell's actions were nonetheless in excess of his authority, and consequently he should "not be protected by the injunctive power of the bankruptcy Court," citing Leonard v. Vrooman, 383 F.2d 556 (9th Cir. 1997).  However, the USCA found Lurie's reliance on  Leonard misplaced.  There, the trustee in bankruptcy, by "forcible entry" and without court order, took possession of real property belonging to a third party.  It was clear that the trustee had no authority to act as he did, a fact which was established by a finding to that effect by the bankruptcy court.  In that circumstance, the third party was permitted to pursue his action in state court against the trustee without obtaining prior approval of the bankruptcy court.  Here, in contrast, Blackwell acted lawfully, pursuant to a writ of execution issued by the state court in Montana, and within his authority as liquidating trustee.  Even given the disputed ownership of the seized property, in following the court's directive, Blackwell did not exceed his authority by improperly taking or maintaining possession of the property.  The USCA concluded that the district court properly relied on Barton in dismissing Lurie's action for lack of subject matter jurisdiction.
           Judge Reinhardt wrote separately to express his doubts.  The majority may be correct, he said, but he could find no authority dictating its conclusion, nor any compelling the opposite result.  Case law simply does not answer the question whether a third-party, whose property is seized by a trustee acting pursuant to an authorization to seize the property of the bankrupt estate, may simply proceed to sue in tort in state court or whether he must first ask the bankruptcy court to return his wrongfully seized property or give him permission to sue elsewhere.  The so-called "Barton doctrine" prohibits a party from suing a trustee in a non-appointing court for acts done in the trustee's official capacity and within the trustee's authority as an officer of the court.  However, the Barton case itself suggests that the rule does not apply to acts a trustee performs in excess of his authority such as wrongfully seizing a third party's property:  "But, if, by mistake or wrongfully, the receiver takes possession of property belonging to another, such person may bring suit therefor against him personally as a matter of right; for in such case the receiver would be acting ultra vires."  Leonard appears to base its holding on that principle: "[A] trustee wrongfully possessing property which is not an asset of the estate may be sued for damages arising out of his illegal occupation in a state court without leave of his appointing court."  However, Judge Reinhardt noted that these decisions are far from clear on the matter, and hardly any other case addresses the issue.  The majority cited factual differences to distinguish the present case from Leonard.  Admittedly, the two situations are not the same.  Most important, in Leonard, a Referee in Bankruptcy determined that the plaintiff was entitled to the property and that the trustee was not, whereas the trustee here appears to have acted pursuant to a writ issued by a Montana state court.  Judge Reinhardt was unsure whether the differences were legally significant.  Leonard, for example, suggests a determination that the trustee's possession of the property is illegal may still be made by a non-appointing court.  Given the absence of authority provided by the district court or the majority, Judge Reinhardt said he remained in doubt.

11)  BANKRUPTCY:  In re McNiel, 99-15319 (9th Cir. March 3, 2000) (unpublished).  Bright, Pregerson, and W. Fletcher, Circuit Judges.
           Pursuant to 11 USC Sec. 363(b), debtor in bankruptcy McNiel sought court approval to purchase for $2.5 million loans extended by BanRural to McNiel's judgment creditors, Eureka Canners Group S.A., Maria Teresa De Saracho, and Eureka Mexicanna, S.A., to offset or recoup a portion of a $12,516,000 judgment against McNiel.  McNiel maintained that the proposed transaction would substantially benefit the bankruptcy estate.  The District Court for the Northern District of California, Judge Ingram presiding, denied McNiel's motion. 
           The USCA affirmed, finding that the district court had correctly determined that recoupment was unavailable to McNiel as a debtor in bankruptcy because the claims did not arise from the same transaction and that setoff was not applicable to McNiel's case because of lack of complete mutuality.

12)  BANKRUPTCY:  In re Knauss, 98-17121, 99-15563 (9th Cir. March 3, 2000) (unpublished).  Boochever, Leavy, and Tashima, Circuit Judges.
          In case 98-17121, Knauss appealed from the Bankruptcy Appellate Panel's order dated Sept. 9, 1998.  As that was not a final order, the USCA noted that it lacked jurisdiction over the appeal and dismissed.
          In case 99-15563, the USCA found jurisdiction under 28 USC Sec. 158(d).  Knauss had appealed pro se the BAP's order granting Knauss' own motion to dismiss and denying his request to find the bankruptcy court's contempt order moot.  The USCA affirmed.  On April 18, 1997, the bankruptcy court had issued a contempt of court order against Knauss.  Knauss appealed to the BAP.  On July 29, 1998, he filed a motion requesting that the BAP dismiss his appeal and find the bankruptcy court's contempt order moot.  In response, the BAP ordered that it would grant Knauss' motion to dismiss without a finding of mootness, unless Knauss objected in writing and filed his opening brief within 15 days.  When Knauss neither objected nor filed his opening brief, the BAP granted Knauss' motion to dismiss without finding the contempt order moot.  Because the BAP gave Knauss the opportunity to object to its proposed order granting his motion to dismiss, and Knauss did not object before the BAP, the USCA affirmed.

13)  BANKRUPTCY:  In re Gewerter, 98-17013, 98-17105 (9th Cir. March 6, 2000) (unpublished).  Kozinski, Fernandez, and W. Fletcher, Circuit Judges.
             Hotel Conquistador, Inc. ("HCI") appealed an order of the District Court for Nevada, Judge George presiding, in case numbers 98-17013 and 98-17105, which affirmed the bankruptcy court's order awarding attorneys' fees and costs to Gewerter arising out of the involuntary bankruptcy action filed against Gewerter by HCI and others.  Gewerter appealed the district court's order in 98-17103 which reversed the bankruptcy court's order that awarded him attorneys' fees and costs.
           The USCA affirmed the district court in part, and dismissed in part.  First, it found that it did not have jurisdiction over a district court order that includes a reservation which fails to put a definitive end to the case and thus fails to fix an unequivocal terminal date for appealability.  The order appealed in 98-17013 and 98-17105 states that the bankruptcy court's order is affirmed "subject to the outcome of the related appeal."  That order did not definitely end the case.  The USCA thus dismissed 98-17013 and 98-17105.  Second, Gewerter sought attorneys' fees for the efforts his attorneys expended to secure his fees for handling litigation for the estate.  No doubt a properly appointed attorney is entitled to fees for helping the trustee or a creditor's committee.  But the fees Gewerter incurred were not for that purpose;  they were incurred in an ultimately successful effort to correct his own corrigendum.  The USCA heard Gewerter's monody about the expenses he incurred in his quest to retain the $5,141,656.66 he took before he obtained bankruptcy court approval, but concluded that he would have to satisfy himself with that amount alone.

14)  BANKRUPTCY:  In re McNall, 98-56653 (9th Cir. March 6, 2000) (unpublished).  Browning, Beezer, and Graber, Circuit Judges.
           The trustee of McNall's bankruptcy estate commenced this adversary proceeding to recover funds fraudulently conveyed by McNall and his affiliated companies to First Los Angeles Bank (FLAB).  The trustee also sought to have FLAB's claims against the McNall estate equitably subordinated to those of other creditors.  Following a bench trial, the bankruptcy court granted the trustee's motion to recover the funds, but denied the trustee's motion for equitable subordination.  Both parties appealed to the District Court for the Central District of California, Judge Wardlaw presiding, which affirmed. 
          The USCA affirmed.  First, it was not clearly erroneous for the bankruptcy court to find that the subject funds, including those paid in satisfaction of McNall's mortgage debt, were fraudulently conveyed by McNall to FLAB.  The record indicated that McNall and his affiliates were insolvent throughout the relevant period but continued to assume debt and transfer funds in violation of the restrictive covenants contained in the Bank of America loans and also in violation of the requirements of the 1993 cash management agreement.  In addition, McNall increased the encumbrance on his residence during that period, in violation of his agreements with BoA, and paid down his mortgage debt by diverting funds that had been pledged to BoA.  Nonetheless, under the relevant statutes, a recipient of fraudulently conveyed funds can defeat the trustee's avoidance power by proving that it "takes" or "took" the transferred funds "in good faith."  The bankruptcy court, considering conflicting evidence on this issue, found that FLAB failed to prove that, after January 1993, it took payments in good faith from McNall and his affiliated companies.  The record reflects that FLAB loaned one affiliated company $2 million in 1993, knowing that it planned to use the money to "fix" its balance sheets so as to deceive other creditors.  At that time, FLAB knew, or was on inquiry notice, that McNall was diverting monies pledged to BoA and was double-pledging the same collateral for different loans.  Moreover, FLAB, at McNall's request, failed to record publicly its security interest in the assets of McNall, knowingly preventing McNall's other creditors from learning that McNall was violating his agreements with them by increasing his indebtedness to FLAB and securing that new debt with already-pledged collateral.  FLAB also backdated documents to conceal that McNall and his affiliates defaulted on loans held by FLAB.  The bankruptcy court thus did not clearly err in concluding that FLAB failed to prove that, after January 1993, it took payments from McNall and his affiliates in good faith.  The fact that FLAB's primary intent was to deceive the FDIC, and only incidentally to deceive McNall's creditors, did not establish FLAB's good faith or suggest that the bankruptcy court clearly erred.  Similarly, the fact that FLAB may have extended loans to McNall in good faith (before January 1993) did