The Ninth Circuit Court of Appeals today released an opinion in PERFECT 10 v. CCBILL LLC, No. 04-57143, a federal appeal. The panel consisted of Stephen Reinhardt, Alex Kozinski, Milan D. Smith, Jr., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:
Perfect 10, the publisher of an adult entertainment magazine and the owner of the subscription website perfect10.com, alleges that CCBill and CWIE violated copyright, trademark, and state unfair competition, false advertising and right of publicity laws by providing services to websites that posted images stolen from Perfect 10’s magazine and website. Perfect 10 appeals the district court’s finding that CCBill and CWIE qualified for certain statutory safe harbors from copyright infringement liability under the Digital Millennium Copyright Act (”DMCA”), 17 U.S.C. § 512, and that CCBill and CWIE were immune from liability for state law unfair competition and false advertising claims based on the Communications Decency Act (”CDA”), 47 U.S.C. § 230(c)(1). CCBill and CWIE cross-appeal, arguing that the district court erred in holding that the CDA does not provide immunity against Perfect 10’s right of publicity claims and in denying their requests for costs and attorney’s fees under the Copyright Act. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand. BACKGROUND Perfect 10 is the publisher of the eponymous adult entertainment magazine and the owner of the website, perfect10.com. Perfect10.com is a subscription site where consumers pay a membership fee in order to gain access to . . .

The opinion filed on March 29, 2007, is amended as follows:
On slip opinion page 3577, line 33, after “federal intellectual property.” insert the following footnote:
In its petition for rehearing, Perfect 10 claims that our decision on this point conflicts with Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007). But neither party in that case raised the question of whether state law counts as “intellectual property” for purposes of § 230 and the court seems to simply have assumed that it does. We thus create no conflict with Universal Communication. We note that Universal Communication demonstrates the difficulties inherent in allowing state laws to count as intellectual property for CDA purposes. . . .

The Ninth Circuit Court of Appeals today released an opinion in GILLIAM v. NEVADA POWER COMPANY, No. 04-17201, a federal appeal. The panel consisted of Melvin Brunetti, Diarmuid F. O’Scannlain, and Stephen S. Trott, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We are asked to decide whether severance pay should be included as “earnings” for purposes of calculating an employee’s retirement benefits. I In 1974 Cynthia K. Gilliam (”Gilliam”) began working for Nevada Power Company, an investor-owned public utility that provides electric service to southern Nevada. She ultimately was promoted to Vice President of Retail Customer Operations in 1993, where she remained until 1999. In 1986, Nevada Power Company established the Nevada Power Company Supplemental Executive Retirement Plan (”NPC Plan”), a non-qualified pension plan intended to provide retirement benefits to certain highly-compensated executives selected by the Board of Directors. In 1989, the Board made Gilliam a participant in the NPC Plan. In anticipation of a possible merger, Gilliam and Nevada Power Company executed a three-year employment agreement in 1998. The agreement provided that Gilliam would . . .

The Ninth Circuit Court of Appeals today released an opinion in TAYLOR v. WESTLY, No. 05-16763, a civil rights appeal. The panel consisted of Robert R. Beezer, Andrew J. Kleinfeld, and Michael Daly Hawkins, Circuit Judges.

PER CURIAM:
We reversed an Eleventh Amendment dismissal in an earlier appeal of this case. On remand, the district court denied . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. KAYSER, No. 06-50178, a criminal appeal. The panel consisted of Stephen Reinhardt, Alex Kozinski, and Sandra S. Ikuta, Circuit Judges.

IKUTA, Circuit Judge: Michael Kayser appeals from his conviction for tax evasion in violation of 26 U.S.C. § 7201 for the year 2000. He alleges, among other things, that the district court erred in failing to instruct the jury in accordance with his theory of defense. We have jurisdiction under 28 U.S.C. § 1291 and we reverse and remand. BACKGROUND From November 1998 to May 2000, A2Z USA, Inc. (”A2Z”) employed Kayser first as a salesperson and later as a vice president for its Internet-based shopping mall. A2Z compensated Kayser as an independent contractor and paid him a commission by checks made out to his name. In July 1999, Kayser incorporated Aspen Ventures Inc. (”Aspen Ventures”) to receive A2Z income and take business deductions related to that income. After failing to file timely tax returns for 1998 through 2000, Kayser ultimately filed his delinquent individual and corporate tax returns for those years in August 2001. Kayser was subsequently indicted on two counts of attempted income tax evasion (for 1999 and 2000) in violation of 26 U.S.C. § 7201. . . .

KOZINSKI, Circuit Judge, dissenting:
The majority begins its analysis by dutifully reciting a wellestablished rule: “A defendant may negate the element of tax deficiency in a tax evasion case with evidence of unreported deductions.” Maj. op. at 6576 (citing United States v. Marabelles, 724 F.2d 1374, 1378-89 (9th Cir. 1984); Elwert v. United States, 231 F.2d 928, 933 (9th Cir. 1956)). But it then jumps the rails by removing the word “unreported” and allowing a defendant to escape a criminal tax conviction by recharacterizing reported deductions. Id. at 12. This new rule finds no support in our caselaw and conflicts with United States v. Miller, 545 F.2d 1204 (9th Cir. 1976), and United States v. Boulware (Boulware II), 470 F.3d 931 (9th Cir. 2006). Even if this new rule were permissible, defendant did have not revisited Escobar De Bright in light of Neder v. United States, 527 U.S. 1 (1999). Nor do we need to, because the district court’s failure to give Kayser’s proposed instruction prevented him from making a significant challenge to the deficiency element of the tax evasion count for the year 2000, and thus cannot be harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18 (1967). Kayser also argues that he was wrongfully prevented from introducing evidence to support his theory of defense and that the district court misapplied the Sentencing Guidelines in determining the total tax loss by refusing to reduce Kayser’s 2000 unreported income by the deductions he reported on Aspen Ventures’ 2000 return and carried back to 1999. Given our reversal and remand for a new trial, we do not reach these issues. Finally, Kayser asserts that his indictment should be dismissed because the grand jury was improperly instructed. However, as Kayser acknowledges, our precedent has squarely rejected his position and we therefore affirm the district court’s denial of Kayser’s motion to dismiss the indictment. See United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) (en banc); United States v. Cortez-Rivera, 454 F.3d 1038 (9th Cir. 2006). . . .

The Ninth Circuit Court of Appeals today released an opinion in GUPTA v. THAI AIRWAYS INTERNATIONAL, LTD., No. 04-56389, a diversity appeal. The panel consisted of Eugene E. Siler, Jr., A. Wallace Tashima, and Carlos T. Bea, Circuit Judges.

BEA, Circuit Judge:
Thai Airways, International (”Thai Airways”) appeals from the district court’s order denying Thai Airways’ motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Thai Airways claims the district court erred in refusing to recognize the preclusive effect (”res judicata“) of an earlier order dismissing, under the Foreign Sovereign Immunities Act (”FSIA” or “Act”), 28 U.S.C. §§ 1330, 1602 et seq., an identical action brought by Gupta. That California order of dismissal was not appealed, and is now final. We raised the issue of jurisdiction during oral argument sua sponte and asked the parties to submit briefing on the discrete issue whether this court has jurisdiction to consider the district court’s holding that res judicata does not apply in this case. We conclude that we have jurisdiction, and we reverse. I. Subir Gupta, Plaintiff-Appellee, was scheduled to fly from Bangkok to Los Angeles. When Gupta attempted to board the plane bound for Los Angeles, Thai Airways employees refused to allow Gupta to board because they determined his United States Visa was invalid. Gupta claims the employees “subjected him to unwarranted accusations of fraud after [he] presented a valid and current U.S. Visa.” Gupta was unable to fly to Los Angeles on this date and claims he missed a lucrative business meeting. Gupta timely filed a complaint in California Superior Court, Los Angeles County, alleging Thai Airways employees . . .

TASHIMA, Circuit Judge, dissenting:
The majority finds appellate jurisdiction in this case only by mistakenly assuming that if any issue decided by the district court is subject to interlocutory appeal, any other issue decided in the same order can also be reached on interlocutory appeal. Because I disagree and would dismiss this interlocutory appeal for lack of appellate jurisdiction over the limited issues raised and not reach the merits, I respectfully dissent. 13We say nothing about whether Gupta can raise his claims against Thai Airways where his claims are not subject to the FSIA. 14Having so determined, we need not address Thai Airways’ claim that Gupta’s federal court action is barred under the Rooker-Feldman doctrine. . . .

The Ninth Circuit Court of Appeals today released an opinion in GARCIA-JIMENEZ v. GONZALES, No. 03-74625, an administrative appeal. The panel consisted of Harry Pregerson, Barry G. Silverman and Richard C. Tallman, Circuit Judges.

SILVERMAN, Circuit Judge:
The government charged petitioner Jose Garcia-Jimenez with being removable on account of, first, two prior criminal convictions occurring in the mid-1990s, and, second, a recent attempt to smuggle undocumented aliens into the country. Garcia-Jimenez’s criminal convictions occurred before Congress replaced the Immigration and Nationality Act’s waiver of deportation provisions with the more stringent cancellation of removal provisions. Accordingly, he was entitled to apply for, and did receive, a waiver as to his convictions. The Immigration Judge, however, denied relief as to the alien smuggling charge. She applied 8 U.S.C. § 1229b(c)(6), which precludes cancellation of removal in cases where the alien has been granted a waiver of deportation. We hold today that § 1229b(c)(6) bars an alien from obtaining cancellation of removal if he has ever received a waiver of deportation, even if the waiver of deportation was granted in the same proceeding in which cancellation of removal is sought. The statute . . .

Judges Silverman and Tallman voted to deny the petition for rehearing en banc and Judge Pregerson voted to grant it. No judge has made an en banc call. The opinion filed January 3, 2007, and appearing at 472 F.3d 679 (9th Cir. 2007), is hereby amended to include a dissent by Judge Pregerson. Pursuant to General Order 5.3.a, an amended opinion showing that Judge Pregerson no longer joins the majority opinion and now dissents is filed contemporaneously with this order. No subsequent petition for rehearing or petition for rehearing en banc may be filed as to the amended opinion. OPINION SILVERMAN, Circuit Judge:
The government charged petitioner Jose Garcia-Jimenez with being removable on account of, first, two prior criminal convictions occurring in the mid-1990s, and, second, a recent attempt to smuggle undocumented aliens into the country. Garcia-Jimenez’s criminal convictions occurred before Congress replaced the Immigration and Nationality Act’s waiver of deportation provisions with the more stringent cancellation of removal provisions. Accordingly, he was entitled to apply for, and did receive, a waiver as to his convictions. The Immigration Judge, however, denied relief as to the alien smuggling charge. She applied 8 U.S.C. § 1229b(c)(6), which precludes cancellation of removal in cases where the alien has been granted a waiver of deportation. We hold today that § 1229b(c)(6) bars an alien from obtaining cancellation of removal if he has ever received a waiver of deportation, even if the waiver of deportation was granted in the same proceeding in which cancellation of removal is sought. The statute . . .

PREGERSON, Circuit Judge, dissenting:
Garcia-Jimenez is not a man with a clean record. He has two convictions, and there is evidence that he engaged in alien smuggling. In June 1995, Garcia-Jimenez pled guilty to corporal injury of a spouse. In March 1996, he pled guilty to possession of cocaine. In May 2000, he allegedly attempted to smuggle his sister-in-law and niece into the United States. On June 15, 2000, the former INS initiated removal proceedings against Garcia-Jimenez based on his convictions for domestic violence and drug possession. On February 19, 2002, the INS added a removability charge based on the . . .

The Ninth Circuit Court of Appeals today released an opinion in PULIDO v. CHRONES, No. 05-15916, a habeas corpus appeal. The panel consisted of Alfred T. Goodwin, Diarmuid F. O’Scannlain, and Sidney R. Thomas, Circuit Judges.

PER CURIAM:
We must consider whether a state court erred in affirming a conviction for murder. I Michael Pulido was tried and convicted for his role in the robbery of a Shell gasoline station in San Mateo, California and the murder of an employee. He claims that the California Supreme Court wrongly affirmed his conviction. A Because Pulido’s claims are fact-intensive, we consider the facts–as presented by the California Supreme Court in its opinion affirming Pulido’s conviction–in some detail: Sometime between 1 a.m. and 5:30 a.m. on May 24, 1992, Ramon Flores, the cashier at a Shell gas station in San Mateo, was shot in the head with a single .45-caliber bullet, killing him within seconds. A neighbor heard a loud bang coming from the direction of the gas station around 3:45 a.m., then a voice yelling; he could not distinguish words, but told a police detective it sounded like the person was addressing someone else. A cash register taken from the store was found the next morning in some roadside bushes elsewhere in San Mateo. Defendant’s fingerprints were on the cash register, as well as on an unopened can of Coke found on the store counter. No fingerprints of Michael Aragon, who defendant testified committed the killing, were identified on either the can or the register. Arrested on an unrelated auto theft charge, defendant volunteered that he had information about the . . .

O’SCANNLAIN, Circuit Judge, concurring specially:
I agree with the majority that our recent decision in Lara v. Ryan, 455 F.3d 1080 (9th Cir. 2006), compels us to affirm the district court’s grant of habeas relief. I write separately, however, because I believe this circuit’s instructional error jurisprudence cries out for review, preferably by our court sitting en banc, or if not, by the Supreme Court. I In Lara, we rejected the state’s argument that instructional errors of the sort at stake in this case (involving the possibility of conviction on legally impermissible grounds) should be reviewed for harmless error under the standard set forth in Chapman v. California, 386 U.S. 18 (1967). Lara, 455 F.3d at 1086. Chapman stands for the principle that a federal constitutional error may be held harmless if a court is “able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24. Instead, purportedly relying on Sandstrom v. Montana, 442 U.S. 510 (1979), we held in Lara that because the error at stake “enabled the jury to deliver a general verdict that potentially rested on different theories of guilt, at least one of which was constitutionally invalid,” the error must have been “structural” and not subject to harmless error review. Lara, 455 F.3d at 1086. It is true that Sandstrom held that a state trial court committed federal constitutional error by instructing a jury with a rebuttable, burden-shifting presumption on an element of the offense, even though it was not certain that the jury had relied upon the burden-shifting instruction at issue. Sandstrom, 442 U.S. at 526. The Supreme Court in Sandstrom went on to cite a much earlier case, Stromberg v. California, 283 U.S. 359, to the effect that where a case is submitted to the jury on alternative theories, the unconstitutionality of one of the theories requires that the verdict be set aside. Sandstrom, 442 U.S. at 526. But Lara’s reliance on Sandstrom as leading to the rejec. . .

THOMAS, Circuit Judge, concurring:
Although I agree with the majority opinion that Lara v. Ryan, 455 F.3d 1080 (9th Cir. 2006), requires us to treat the instructional error at issue here as a structural error, I write separately to emphasize that the result the majority reaches would be the right result even under a harmless error standard. I also write to express my respectful disagreement with . . .

The Ninth Circuit Court of Appeals today released an opinion in MINISTRY OF DEFENSE AND SUPPORT FOR THE ISLAMIC REPUBLIC OF IRAN v. ELAHI, No. 03-55015, a federal appeal. The panel consisted of Betty B. Fletcher, Kim McLane Wardlaw, and Raymond C. Fisher, Circuit Judges.

B. FLETCHER, Circuit Judge:
This case arises from Dariush Elahi’s attempt to collect on a default judgment he holds against Iran. Elahi seeks to attach . . .

FISHER, Circuit Judge, dissenting:
When Dariush Elahi applied for and accepted $2.3 million from the United States Treasury under the Terrorism Risk Insurance Act of 2002 (TRIA), he relinquished the right to attach property at issue in claims against the United States before an international tribunal. See Pub. L. No. 107-297, § 201(d)(5)(B), 116 Stat. 2322, 2339. Iran’s Ministry of Defense (MOD), and the United States as amicus curiae, argue that Elahi has relinquished his right to attach the Cubic judgment because it is “at issue” in Iran’s Case B/61 before the United States-Iran Claims Tribunal. I agree. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. TRIMBLE, No. 06-30298, a criminal appeal. The panel consisted of Diarmuid F. O’Scannlain, A. Wallace Tashima, and Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:
The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904. Fast forward to 2005: Sahneewa Trimble was issued several traffic tickets, fairly serious ones, on a military base. She believed that she was charged too much — more than other drivers who did the same thing on federal property on the same day. When Trimble appeared in court to plead guilty to the violations, the magistrate judge dismissed two of the six original citations but imposed a twenty-five dollar processing fee for three of the remaining ones. Standard stuff, except that some individuals, like Trimble, were charged the fee while the others were not. Why? Because Trimble received a new version of the citation notice and the fortunate others received an older version. So what follows is a tale of two forms, old and new. We reverse — demonstrating, again, that our Constitutional principles protect against monetary injuries large and small. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 664 n.1, 666 (1966) (striking down $1.50 poll tax); . . .

O’SCANNLAIN, Circuit Judge, concurring in the judgment: I agree that no rational basis supports the discriminatory imposition of processing fees in this case. However, the majority opinion exceeds the grounds necessary to decide this appeal. Accordingly, I concur only in the judgment. . . .

The Ninth Circuit Court of Appeals today released an opinion in WELLES v. TURNER ENTERTAINMENT, No. 05-55742, a diversity appeal. The panel consisted of Jerome Farris and Ronald M. Gould, Circuit Judges, and Kevin Thomas Duffy, District Judge.

GOULD, Circuit Judge:
Beatrice Welles, the daughter of screenwriter, filmmaker, and actor Orson Welles, filed suit against Turner Entertainment Co., Entertainment Acquisition Co., and other persons not parties to this appeal (collectively, “the defendants”), seeking a declaratory judgment that Beatrice Welles owns the copyright and home video rights to the motion picture Citizen Kane and seeking an accounting of the royalties she alleges . . .