2)  TRADEMARKS:  Cohn v. Petsmart, Inc., 00-35328 (9th Cir. Feb. 12, 2002).  There was no likelihood of confusion when two businesses, one a veterinary clinic and the other a pet supply store, both used the slogan "Where Pets are Family" as a trademark for similar goods and services, as both used the slogan merely as a tagline to their distinctive business names, their business names pre-ented their dominant commercial identity, their marketing efforts were concentrated in different media, the advertisements dispelled confusion by emphasizing the business names in prominent typefaces while relegating the taglines to subordinate locations and sizes, consumers encountered the trademarks differently in the marketplace, there was no evidence of actual confusion, and reasonably attentive consumers were likely to perceive the differences between the businesses. Browning, Wallace, and T.G. Nelson, Circuit Judges.  Per Curiam.  K. Pedersen of Boise, ID, for the appellant;  J. Crittenden of San Francisco, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

3)  ENVIRONMENTAL LAW:  USA v. Alpine Land & Reservoir Co., 00-15688 (9th Cir. Feb. 14, 2002).  Reversing the district court's general equitable exemption of intra-farm transfers from Nevada's forfeiture and abandonment law, the USCA held that, while equity is inappropriate in the abandonment context where individual landowners may show they lacked the requisite intent to abandon as a matter of law, it may be appropriate in the forfeiture context, if landowners can show they were prevented from complying with transfer requirements.  Hawkins and Tashima (author), Circuit Judges, and Wilken, District Judge.  K. Barton of Washington, DC, for the plaintiff;  C. Pridgen of San Francisco, CA, for Lohse;  S. King of Fallon, NV, for Gaylord Blue Equity Trust; L. Schroeder of Portland, OR, for Rambling River Ranches.  (Download the full text at www.ce9.uscourts.gov/) 

4)  TRADEMARKS:  Entrepreneur Media v. Smith, 00-56559 (9th Cir. Feb. 11, 2002).  Although the plaintiff has the exclusive right to use the trademark "ENTREPRENEUR" to identify products described in its registration, trademark law does not permit the plaintiff to appropriate the word "entrepreneur" for its exclusive use;  the descriptive nature and common, necessary uses of the word require that courts exercise caution in extending the scope of protection to which the mark is entitled.  B. Fletcher, T.G. Nelson, and Berzon (author), Circuit Judges.  J.  Kravitz of Sacramento, CA, for the defendant;  M. Finkelstein of Costa Mesa, CA, for the plain-tiff.   (Download the full text at www.ce9.uscourts.gov/) 

5)  TRADEMARKS:  Playboy Enterprises, Inc. v. Welles, 00-55009 (9th Cir. Feb. 1, 2002).  Nominative uses, by definition, do not dilute trademarks.  B. Fletcher, T.G. Nelson (author), and Berzon, Circuit Judges.  A. Glassman of Beverly Hills, CA, for the plaintiff-appellant;  D. Noonan of San Diego, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

6)  COPYRIGHTS:  Kelly v. Arriba Soft Corp., 00-55521 (9th Cir. Feb. 6, 2002).  The defendant's reproduction of the plaintiff's images for use as thumbnails in defendant's search engine is a fair use under the Copyright Act;  the defendant's display of plaintiff's full-sized images is not a fair use and thus violates the plaintiff's exclusive right to publicly display his copyrighted works;  the USCA remanded with instructions to determine damages and the necessity for an injunction.  B. Fletcher, T.G. Nelson (author), and Berzon, Circuit Judges.  C. Ossola of Washington, DC, for the plaintiff;  J. Jennison of Menlo Park, CA, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

7)  ENVIRONMENTAL LAW:  Natural Resources Defense Council v. EPA, 00-70890 (9th Cir. Feb. 13, 2002).  The U.S. Environmental Protection Agency failed to provide adequate notice and opportunity for comment prior to issuing final general permits authorizing operators of log transfer facilities in Alaska to release bark and woody debris into marine waters.  Thomas (author), Graber, and Gould, Circuit Judges.  S. Buccino of Washington, DC, for the petitioners;  A. Greenberg of Denver, CO, for the respondents. (Download the full text at www.ce9.uscourts.gov/) 

 8)  ENVIRONMENTAL LAW:  USA v. Shell Oil Co., 00-55027 (9th Cir. Feb. 11, 2002).  CERCLA's waiver of sovereign immunity contained in 42 USC 9620(a)(1) is coextensive with the scope of liability imposed by Sec. 9607, such that when the United States is found liable as an owner or operator of a facility, an arranger of waste disposal or as an entity that accepts waste for treatment or disposal, Sec. 9620(a)(1) waives the sovereign immunity of the United States from that liability.  Trott, Thomas, and W. Fletcher (author), Circuit Judges.  T. Kim of Washington, DC, for the United States;  T. Patterson of San Diego, CA, for the State of California;  R. Olson of Los Angeles, CA, for Shell Oil Co. (Download the full text at www.ce9.uscourts.gov/) 

9)  STOCK SALES:  U.S. Cellular v. GTE Mobilnet, 00-56267 (9th Cir. Feb. 21, 2002).  Under California law, a sale of stock cannot trigger a right of first refusal under the anti-transfer provisions of a "form" partnership agreement (a type of agreement developed for structuring cellular phone partnerships) prohibiting the transfer or assignment of partnership interests, as a stock sale is not the same as a transfer of ownership of the company's assets.  Leavy, T.G. Nelson, and W. Fletcher (author), Circuit Judges.  P. Ostroff of Los Angeles, CA, for the appellant;  W. Molinski of Los Angeles, CA, and R. Westberg of San Francisco, CA, for the appellees. (Download the full text at www.ce9.uscourts.gov/) 

10)  BUSINESS LAW / ARBITRATION:  Sovak v. Chugai Pharmaceutical, Co., 00-55298 (9th Cir. Feb. 19, 2002).  Federal law governs the issue of the right to compel arbitration where the underlying agreement contains only a general state choice-of-law clause;  waiver of the right to compel arbitration is a rule for arbitration, such that the Federal Arbitration Act controls.  O'Scannlain (author) and Paez, Circuit Judges, and King, District Judge.  L. Eden of Encinitas, CA, for the plaintiffs-appellants;  D. Janis of San Diego, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

11)  BUSINESS LAW / AGRICULTURE:  United Dairymen of Arizona v. Veneman, 00-16213 (9th Cir. Feb. 12, 2002).  Under the Agricultural Marketing Agreement Act of 1937, as amended, 7 USC Secs. 601-626 (2001), milk producers lack standing to bring a direct suit challenging the producer-handler exemption, which exempts producer-handlers from the pricing and pooling requirements of the Act.  Brunetti (author), Kleinfeld and Thomas, Circuit Judges.  S. Garrison of Phoenix, CA, for the plaintiffs-appellants;  AUSA J. Hair of Phoenix, AZ, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

12)  TAXATION / INSURANCE:  Best Life Assurance Co. of California v. CIR, 00-71082 (9th Cir. Feb. 11, 2002).  Because the term "unpaid losses" as used in Internal Revenue Code Sec. 816(c)(2) includes only unaccrued unpaid losses (and not also accrued unpaid losses), the petitioner qualifies as a life insurance company under Sec. 816(a);  a qualified life insurance company is entitled to special tax treatment under the Code.  Browning, Reinhardt, and Tallman (author), Circuit Judges.  M. Clark of Chicago, IL, for the petitioner-appellee;  D. Pincus of Washington, DC, for the respondent-appellant.  (Download the full text at www.ce9.uscourts.gov/) 

13)  INSURANCE:  Bills v. United States Fidelity & Guaranty Co., 00-16369 (9th Cir. Feb. 11, 2002).  The plaintiff was injured by an uninsured motorists while flagging traffic to protect other workers who were repairing a water main in the roadway;  a front loader was positioned to give added protection to the workers;  viewing the evidence in the light most favorable to the plaintiff, he and the other roadway workers relied upon the front loader's safety equipment to protect them from the dangers posed by passing cars;  the front loader was thus an integral part of the plaintiff's work on the roadway;  under Arizona law, the plaintiff raised a genuine issue of material fact as to whether his injuries arose out of the use of the front loader, triggering the imputed uninsured motorists coverage;  under these circumstances, summary judgment was inappropriate.  Bright, B. Fletcher (author), and Fisher, Circuit Judges.  M. Jones of Phoenix, AZ, for the plaintiff-appellant;  S. Plitt of Phoenix, AZ, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

14)  MARINE INSURANCE:  Yu v. Albany Insurance Co., 99-16194 (9th Cir. Feb. 7, 2002).  A marine insurer can avoid liability for breach of a "Captain Warranty" (which provides that the policy is suspended when the vessel's captain is replaced unless the insurer has approved the new captain in advance), where the warranty is neither ambiguous nor inconspicuous, and there is no requirement that the breach be shown to be a cause of the loss.  B. Fletcher, Canby (author), and Paez, Circuit Judges.  R. Au of Honolulu, HI, for the plaintiffs-appellants;  R. Miller of Honolulu, HI, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

15)  TORTS:  McGraw v. USA, 00-35514 (9th Cir. Feb. 25, 2002).  A Federal Tort Claims Act plaintiff asserting a "failure-to-diagnose" medical malpractice claim must know or have reason to know of a pre-existing condition before the claim-accrual clock begins to run;  otherwise, it would be virtually impossible for a plaintiff to assert such a theory when the doctor's negligence is perhaps most wanton:  a failure to inform the patient about the existence of a condition that should be treated immediately or monitored vigilantly in the future.  O'Scannlain, Graber, and McKeown (author), Circuit Judges.  L. Zinn of San Antonio, TX, for the plaintiff-appellant;  AUSA E. Struder of Tacoma, WA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

16)  TORTS:  Papa v. USA, 00-55051 (9th Cir. Feb. 25, 2002).  The statute of limitations applicable to the Alien Tort Claims Act is the 10-year statute of limitations provided by the Torture Victim Protection Act of 1991.  Leavy, T.G. Nelson (author), and W. Fletcher, Circuit Judges.  P. Hoffman of Venice, CA, for the plaintiffs-appellants;  AUSA J. Zatz of Los Angeles, CA, for the defen-dants-appellees. (Download the full text at www.ce9.uscourts.gov/) 
 

17)  COLLECTIVE BARGAINING:  Firestone v. Southern California Gas Co., 98-56468 (9th Cir. Feb. 12, 2002).  In an opinion on denial of rehearing, the USCA held that Cramer v. Consolidated Freightways, Inc., 255 F.3d 683 (9th Cir. 2001) (en banc), cert. denied, 2002 WL 13239 (U.S. Jan. 7, 2002) (No. 01-432), which overruled cases holding state law preempted where the state right in question was not the subject of an actual collective bargaining agreement (CBA), but was a properly negotiable subject for purposes of collective bargaining, did not change the USCA's original opinion in this case that resolution of plaintiffs' state law overtime claims would require interpretation of the CBA as plaintiffs were not entitled to overtime under state law if they were paid a "premium" for overtime work above the "regular rate" of pay in the contact;  the parties disagreed about which rate is the "regular" rate and, thus, dis-agreed as to whether plaintiffs were receiving a "premium" for overtime;  resolving this issues required interpretation of the CBA and Cramer did not change that result.  Schroeder (author), Beezer, and Graber, Circuit Judges.  R. Cantore of Los Angeles, CA, for the plaintiffs;  D. Reeves of Los Angeles, CA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 
 

18)  LABOR LAW / ARBITRATION:  Inlandboatmens Union of the Pacific v. Dutra Group, 00-15522 (9th Cir. Feb. 7, 2002).  Disputes between parties to a collective bargaining agreement (CBA) arising under a side agreement not included in the CBA must be arbitrated if the dispute relates to a subject that is within the scope of the CBA's arbitration clause;  for example, if the arbitration clause in a CBA were even broader than the one at issue here, and covered "all disputes that may arise" between the parties, then any dispute over any matter, whether or not it relates to a side agreement, would unquestionably be arbitrable;  in contrast, if the arbitration clause were far narrower and covered only, for example, disputes over discipline and discharge, then a dispute arising under a side agreement concerning the assignment of vacation days would not be arbitrable;  here the arbitration clause of the CBA is reasonably broad, and covers "any dispute concerning the interpretation or any other dispute between the parties hereto regarding wages, working conditions, or any other matters referred to in this Agreement."  Reinhardt (author), Hawkins, and Rawlinson, Circuit Judges.  D. Iglitzin of Seattle, WA, for the appellant;  P. Simpson of San Francisco, CA, for the appellees.  (Download the full text at www.ce9.uscourts.gov/) 
 

19)  LABOR LAW / ARBITRATION:  Association of Flight Attendants v. Horizon Air Industries, 00-35129 (9th Cir. Feb. 5, 2002).  A post-certification Railway Labor Act dispute concerning the right of Association of Flight Attendants' (AFA) members to wear AFA union pins that arguably fall within the scope of the members' collective bargaining agreement was a matter for arbitration rather than litigation.  Kleinfeld and Gould, Circuit Judges, and Roll (author), District Judge.  E. Gilmartin of Washington, DC, and W. Knowles of Seattle, WA, for plaintiff-appellant;  M. Scott of Seattle, WA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 
 

20)  LABOR LAW / ARBITRATION:  Sidhu v. The Flecto Co., 00-15567 (9th Cir. Feb. 5, 2002).  If an employer repudiates procedures that govern a particular grievance as established in a collective bargaining agreement, the aggrieved employee is relieved of the requirement to exhaust administrative remedies as to that grievance;  here, the employer could not refuse to arbitrate a grievance and then later use that refusal to support a claim that the employee has failed to exhaust his arbitral remedies.  Reinhardt, Hawkins, and Rawlinson (author), Circuit Judges.  D. Rosenfeld of Oakland, CA, for the plaintiff-appellant;  J. Wiley of Alameda, CA, for the de-fendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

21)  LABOR LAW / ARBITRATION:  Circuit City Stores, Inc. v. Adams, 98-15992 (9th Cir. Feb. 4, 2002).  An employer's dispute resolution agreement that employees must sign before they can work for the employer and that requires employees to submit all claims and disputes to binding arbitration, restricts the amount of damages an employee can obtain, requires the employee to split the costs of the arbitration unless the employee prevails, and does not require the employer to arbitrate any claims against the employee, is an unconscionable contract of adhesion under California contract law.  B. Fletcher, D.W. Nelson (author), and Brunetti, Circuit Judges.  R. Berry of Seattle, WA, for the plaintiff-appellant;  A. Alioto of San Francisco, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

22)  ERISA / COMMUNITY PROPERTY:  Branco v. UFCW-Northern California Employers Joint Pension Plan, 00-15884 (9th Cir. Feb. 11, 2002).  In a case of first impression, the USCA held that ERISA preempts state law which permits a predeceased spouse's interest in her ex-husband's pension plan to pass to her heirs;  dissenting, Judge Pregerson thought that the majority's decision not only did not advance the purpose of ERISA's anti-alienation clause to "guarantee that retirement funds are there when a plan's participants and beneficiaries expect them," but that it also undermined the community property law's "commitment to the equality of husband and wife and … the real partnership inherent in the marital relationship," citing Boggs v. Boggs, 520 US 833 (1997).  Pregerson (dissenting) and Rawlinson (author), Circuit Judges, and Weiner, District Judge.  J. DeRonde of Fairfield, CA, for the plaintiff-appellant;  J. Bowen of San Francisco, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

23)  ADMIRALTY:  Christensen v. Georgia-Pacific Corp., 00-35922 (9th Cir. Feb. 1, 2002).  Plaintiff is a longshoreman who was injured while helping to retie a ship that had broken free from the dock;  he filed negligence claims against the ship, a second ship that had been tied to the same cleat on the dock, and the dock owner;  the district court improperly entered summary judgment, holding that, as a matter of law, the injury was not a foreseeable result of the defendants' acts;  under the Longshore and Harbor Workers' Compensation Act, mooring lines constitute equipment under the active control of a ship;  a vessel has a duty to exercise due care to avoid exposing stevedores to hazards created by mooring lines;  here, genuine issues of material fact existed as to whether the three defendants breach their duties of active control, intervention, and reasonable care, and as to proximate cause;  these issues had to be resolved at trial.  Hug, T.G. Nelson (author), Gould, Circuit Judges.  M. Leonard of Portland, OR, for the plaintiff-appellant;  J. Beattie of Portland, OR, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

24)  WORKERS COMPENSATION:  Johnston v. Director, OWCP, 01-70201 (9th Cir. Feb. 22, 2002).  Under Sec. 8(c)(21) of the Longshore and Harbor Workers Compensation Act in a situation where actual wages have remained constant, a claimant's post-injury earnings need not be adjusted for inflation to be considered on equal footing with wages at the time of injury;  in such circumstances, the actual wages—without adjustment for inflation—fairly and reasonably represent the claimant's wage-earning capacity as required by the Act;  the USCA agreed with the Benefits Review Board that "the fact that the wages claimant earned in his post-injury job may not have kept pace with inflation is not due in any part to claimant's injury."   B. Fletcher, McKeown (author), and Tallman, Circuit Judges.  M. Theiler of Seattle, WA, for the petitioner;  J. Hayes of Seattle, WA, for the respondents. (Download the full text at www.ce9.uscourts.gov/) 

25)  AMERICANS WITH DISABILITIES ACT:  Hason v. Medical Board of California, 00-55784 (9th Cir. Feb. 12, 2002).  Viewed in the light of the frame work of Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169 (9th Cir. 1999), medical licensing is an "output" of a public agency, not an input such as employment, and thus falls within the scope of Title II of the Americans with Disabilities Act.  Goodwin (author), Wallace, and Thomas, Circuit Judges.  E. Chemerinsky of Los Angeles, CA, for the plaintiff-appellant;  J. Davis of Los Angeles, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

26)  BAIL REVOCATION / QUALIFIED IMMUNITY: Dela Cruz v. Kauai County, 00-15065 (9th Cir. Feb. 6, 2002).  A prosecutor was entitled to qualified immunity for his actions in appending to a bail revocation motion his own sworn affidavit in which he recited the complaint a third party without having investigated the truthfulness of that third party's assertions;  because there was no clearly established right at the time the prosecutor acted, an objectively reasonable person in the prosecutor's position could not have known that he may have been acting in violation of the plaintiff's rights by appending his own affidavit reciting the third party's complaint.  B. Fletcher, Canby (author), and Paez, Circuit Judges.  A. Ross of Honolulu, HI, for the plaintiff-appellant;  B. Kobayashi of Lihue, HI, for the defendants-appellees.   (Download the full text at www.ce9.uscourts.gov/) 

27)  ATTORNEYS' FEES:  USA v. Braunstein, 00-10505 (9th Cir. Feb. 25, 2002).  To show that a criminal prosecution was "frivolous," such as to warrant an award of attorneys' fees to a prevailing criminal defendant under the Hyde Amendment, 18 USC Sec. 3006A, the claimant must show that the government's position was foreclosed by binding precedent or so obviously wrong as to be frivolous;  the USCA found the prosecution frivolous in this case and that the district court abused its discretion in denying the defen-dant's motion for attorneys' fees.  Pregerson (author) and Rawlinson, Circuit Judges, and Weiner, District Judge.  P. Stillman of Del Mar, CA, for the defendant-appellant;  K. Hoppmann of Washington, DC, for the plaintiff-appellee; D. Braunstein of San Diego, CA, for the trustee.   (Download the full text at www.ce9.uscourts.gov/) 

28)  ATTORNEYS' FEES:  Perez-Arellano v. Smith, 00-35553 (9th Cir. Feb. 1, 2002).  For purposes of an award of attorneys' fees under the Equal Access to Justice Act a "prevailing party" is a party who has gained by judgment or consent decree a "material alteration of the legal relationship of the parties."  Thomas, Graber, and Gould (author), Circuit Judges.  B. Renison of Portland, OR, for the plaintiff-appellant;  AUSA C. Casey of Portland, OR, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

29)  JURISDICTION:  In re Estate of Vicente Candelaria Dela Cruz, 00-15535 (9th Cir. Feb. 8, 2002).  No jurisdiction lies to review a decision of the Supreme Court of the Commonwealth of the Northern Mariana Islands when the decision rests on adequate and independent local law ground.  B. Fletcher, Canby (author), and Paez, Circuit Judges.  T. Mitchell of Saipan, MP, for the appellant;  J. Chambers of Saipan, MP, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

30)  UNPUBLISHED DECISIONS / STANDING:  Schmier v. U.S. Court of Appeals for the Ninth Circuit, 01-16105 (9th Cir. Feb. 1, 2002).  In a suit brought by an attorney seeking to invalidate Ninth Circuit rules, especially Rule 36-3, which prohibit parties and courts within the Circuit from citing unpublished dispositions as precedent, the district court did not err in dismissing the suit with prejudice for lack of standing, as the complaint did nothing more than allege a speculative and abstract interest in having the rules inalidated and nothing in the complaint indicated that the rules somehow caused an injury personal to the plaintiff.  Friedman, Roettger, and Michel (author), Circuit Judges.  K. Schmier of Emeryville, CA, for the plaintiff;  D. Letter of Washington, DC, for the defen-dants.  (Download the full text at www.ce9.uscourts.gov/) 

31)  QUIET TITLE ACT:  Commonwealth of the Northern Mariana Islands v. USA, 99-17501 (9th Cir. Feb. 7, 2002).  Although the Commonwealth of the Northern Mariana Islands (CNMI) is not a "state" under the Quiet Title Act, the Covenant to Establish a Commonwealth of the Northern Mariana Islands, 48 USC Sec. 1801 and the notes following, requires that the CNMI be treated as if it were a state for the purposes of the Quiet Title Act.  B. Fletcher, Canby (author), and Paez, Circuit Judges.  L. Sosebee of Saipan, MP, for the plaintiff-appellant;  J. Dobbins of Washington, DC, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 

32)  FREEDOM OF SPEECH:  McCoy v. Stewart, 01-15700 (9th Cir. Feb. 26, 2002).  General speech of a California gang members advising Arizona gang members on gang operations, initiation and expulsion practices, as well as graffiti activities, at a social gathering which rendered the speech at most an advocating of lawlessness at some indefinite future time, was mere abstract advocacy of lawlessness which is protected by the First Amendment.  Politz, Kozinski, and O'Scannlain (author), Circuit Judges.  J. Napolitano of Phoenix, AZ, for the appellants;  T.S. Hartzell of Tucson, AZ, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

33)  FREEDOM TO TRAVEL:  Eunique v. Powell, 99-56984 (9th Cir. Feb. 22, 2002).  Congress (and the State Department) can refuse to let an applicant have a passport as long as she remains in substantial arrears on her child support obligations, without violating her Fifth Amendment freedom to travel internationally;  dissenting, Judge Kleinfeld thought that reversal was required because the right to leave one's country is too important to be subject to abridgment based upon so permissive a standard as a "rational basis" review;  he thought that the practical effect of consigning the right to travel to this lowly category of constitutional protection is to grant Congress plenary power to restrict it;  in this case, unlike those in which the Supreme Court has upheld restrictions on travel, the government has not offered a foreign policy or national security justification for the restriction, the government has not narrowly tailored the restriction to its purpose, and the apparent purpose of the restriction is to penalize past misconduct rather than to restrict travel as such.  Fernandez (author), Kleinfeld (dissenting), and McKeown, Circuit Judges.  Eunique pro se;  K. Giuffreda of Washington, DC, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

34)  CIVIL RIGHTS / STANDING:  Bernhardt v. County of Los Angeles, 00-55524 (9th Cir. Feb. 4, 2002).  A civil rights plaintiff sufficiently established standing where her complaint alleged that she was unable to obtain counsel to represent her in a 42 USC Sec. 1983 action against County of Los Angeles law enforcement officials for use of excessive force due to the County's alleged policy of settling civil rights actions only on a lump sum basis that included all attorney fees, and that such a policy interfered with her implicit right to obtain an attorney under 42 USC Sec. 1988;  although the plaintiff's claims for prospective relief were moot, a live controversy remained due to the possibility that the plaintiff may be awarded damages.  Boochever, Fernandez, and Fisher (author), Circuit Judges.  M. Mitchell of Los Angeles, CA, for the plaintiff;  J. Geller of Los Angeles, CA, for the defendants.   (Download the full text at www.ce9.uscourts.gov/) 

35)  CIVIL RIGHTS / WRONGFUL DETENTION:  Fairley v. Luman, 99-56483 (9th Cir. Feb. 15, 2002).  The plaintiff was detained by officers of the Long Beach Police Department and held for 12 days on outstanding warrants for the arrest of his twin brother;  the police department's decision not to instigate any procedures to alleviate the problem of detaining individuals on wrong warrants can constitute a policy of inaction that subjects the municipality to liability under 42 USC Sec. 1983, where the police know that it is not uncommon for individuals to be arrested on wrong warrants and that the problem is particularly acute when twins are involved.  Browning, Brunetti, and Hawkins, Circuit Judges.  Per Curiam.  R. Mann of Los Angeles, CA, for the plaintiff-appellant;  R. Shannon of Long Beach, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

36)  CIVIL RIGHTS:  Miranda v. Clark County, Nevada, 00-15734 (9th Cir. Feb. 8, 2002).  A public defender's pre-trial decisions regarding interviewing and subpoenaing witnesses are traditional functions shielded from liability under 42 USC Sec. 1983;  an indigent client in a criminal case may not resort to the federal civil rights statute, 42 USC Sec. 1983, to challenge the manner in which he was represented by his public defender.  Sneed, Trott (author), and Tallman, Circuit Judges.  J. McCalla of Jackson, WY, for the plaintiff-appellant;  T. Beatty of Las Vegas, NV, for the defendant-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

37)  CIVIL RIGHTS:  Carey v. Nevada Gaming Control Board, 00-16649 (9th Cir. Feb. 4, 2002).  Two statutes, Nevada Revised Statute Secs. 171.123 and 197.190, unconstitutionally violate the Fourth Amendment to the extent that, when read together, they authorize the arrest of a person stopped pursuant to Terry for refusing to identify himself.  B. Fletcher, Boochever (author), and Fisher, Circuit Judges.  R. Nersesian of Las Vegas, NV, for the plaintiff-appellant;  K. Rushton of Vegas, NV, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

38)  CIVIL RIGHTS:  Robinson v. Solano County, 99-15225 (9th Cir. Feb. 4, 2002).  Generally, a law enforcement officer's act of pointing a gun at the head of a suspect during an investigation can be a Fourth Amendment violation where the crime under investigation is at most a misdemeanor, the suspect is apparently unarmed and approaching officers in a peaceful manner, there are no dangerous or exigent circumstances apparent at the time of the detention, and the officers outnumber the suspect;  concurring, Judge Fernandez, joined by Judges Rymer and T.G. Nelson, thought that a police officer who points a gun while making an otherwise proper seizure of a suspect cannot be found to have violated the Fourth Amendment by using excessive force on the suspect, where no force whatsoever was applied;  Judge Fernandez thus thought the officers here were entitled to qualified immunity as there had been no use of excessive force.  Schroeder (author), Hug, B. Fletcher, Canby, Reinhardt, Fernandez (concurring), Rymer (concurring), T.G. Nelson (concurring), Kleinfeld, Gould, and Paez, Circuit Judges.  W. Simpich of Oakland, CA, for the plaintiff-appellant;  T.  Cassidy of Sac-ramento, CA, the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

39)  IMMIGRATION:  Molina-Estrada v. INS, 99-70216 (9th Cir. Feb. 13, 2002).  An applicant for withholding of removal failed to establish that an attack on his father by guerrillas in his county of origin, Guatemala, qualified as past persecution of the applicant on account of imputed political opinion where he offered no evidence that his father held particular political beliefs, that the guerillas knew of or assumed any such beliefs, or that they made any statements suggesting that they attacked his father's home because of his father's political beliefs;  the only evidence pertaining to the likelihood of future persecution was the applicant's testimony that he had spoken with relatives who believed that the general situation in Guatemala remained dangerous.  Sneed, Graber (author), and Paez, Circuit Judges.  L. Ploeger of Palo Alto, CA, for the petitioner; A. Mai of Washington, DC, for the respondents.  (Download the full text at www.ce9.uscourts.gov/) 

40)  IMMIGRATION:  Gui v. INS, 00-70287 (9th Cir. Feb. 8, 2002).  An Immigration Judge's determination that an asylum petitioner's native country's government must not have been repressive as it merely harassed and threatened the petitioner, but did not kill him, failed to provide the required "legitimate articulable" or cogent basis upon which to make an adverse credibility finding.  B. Fletcher (author), T.G. Nelson, and Berzon, Circuit Judges.  L. Hurwitz of San Diego, CA, for the petitioner;  R. LeFevre of San Fran-cisco, CA, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

41)  BOND FORFEITURE:  USA v. Nguyen, 00-55795 (9th Cir. Feb. 8, 2002).  In a case arising out of the defendant's conviction for fraud and his subsequent failure to surrender to serve his prison term, the district court did not abuse its discretion in ordering the forfeiture of the entire $100,000 bond secured by property belonging to his sister- and brother-in-law (the sureties), where the defendant had made misrepresentations and evasions regarding his failure to surrender, the sureties acted to hinder, not assist, his apprehen-sion, the evasion triggered a search and stakeout effort by the government, there were no compelling mitigating circumstances, and the bond amount was not excessive;  dissenting, Judge Kleinfeld thought that forfeiture was mandatory, but he also thought that there was no good reason to forfeit the entire amount of the bond;  the district court did not give any reason at all for why the whole bond, not just part, should have been forfeited;  failure to remit in part was, Judge Kleinfeld thought, an abuse of discretion.  Fernandez, Kleinfeld (dissenting), and McKeown (author), Circuit Judges.  R. Hanson of Santa Ana, CA, for the claimants-appellants;  AUSA J. Ro-senbluth of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

42)  INTERNATIONAL PARENTAL KIDNAPPING CRIME ACT: USA v. Cummings, 01-30032 (9th Cir. Feb. 27, 2002).  The International Parental Kidnapping Crime Act, 18 USC Sec. 1204(a), which criminalizes the retention of a kidnapped child in a foreign country, is constitutional as a valid exercise of Congress's Commerce Clause authority.  O'Scannlain (author), Graber, and McKeown, Circuit Judges.  S. Hormel of Spokane, WA, for the defendant-appellant;  F. Diskin of Seattle, WA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 
 

43)  RIGHT TO COUNSEL:  Caro v. Woodford, 00-99013 (9th Cir. Feb. 19, 2002).  In a capital case, defense counsel's failure to conduct a reasonable investigation and provide evidence of possible brain damage resulting from his client's abuse as a child and/or exposure to neurotoxicants constituted deficient performance;  on remand, the district court found that counsel had established the existence of brain damage and granted his writ of habeas corpus, vacated his death sentence, and ordered a resentencing hearing;  the USCA affirmed, finding that, given the testimony presented at the evidentiary hearing, the district court was not clearly erroneous in its findings;  dissenting, Judge Kleinfeld thought that the question on appeal before the USCA was not (or at least should not have been) whether the defendant was brain damaged, but whether his counsel rendered ineffective assistance.  Pregerson, Ferguson (author), and Kleinfeld (dissenting), Circuit Judges.  D. Gillette of San Francisco, CA, for the respondent;  L. Coffin of San Francisco, CA, for the petitioner.  (Download the full text at www.ce9.uscourts.gov/) 

44)  INTERSTATE AGREEMENT ON DETAINERS ACT: USA v. Lualemaga, 01-10007 (9th Cir. Feb. 19, 2002).  The State of Hawaii violated the Interstate Agreement on Detainers Act (IAD), 18 USC App. 2, by failing to inform the defendant of his right to request a final disposition of his federal indictment within 180 days of the United States lodging a detainer against him in state prison;  that violation resulted in part from the federal detainer, which erroneously identified the defendant as an unsentenced prisoner not pro-tected by the IAD;  the dismissal of an indictment is not an available form of relief where the IAD's notice requirement is violated, even if that violation is attributable to the receiving state and the receiving state is the United States.  Thompson (author), O'Scannlain, and Berzon, Circuit Judges.  R. Pafundi of Honolulu, HI, for the defendant-appellant;  AUSA C. Thomas of Honolulu, HI, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

45)  BRIBERY:  USA v. Leyva, 99-50793 (9th Cir. Feb. 25, 2002).  The defendant's use of his official position is not an element of 18 USC Sec. 201(b)(2)(B) which makes it unlawful for a public official to commit a fraud against the United States.  Trott, Thomas, and Wardlaw (author), Circuit Judges.  R. Rome of Van Nuys, CA, for the defendant-appellant;  S. Arkow of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

46)  CRIMINAL LAW:  USA v. Khatami, 99-50700 (9th Cir. Feb. 5, 2002).  On an issue of first impressions, the USCA held that the "corruptly persuades" language of 18 USC Sec. 1512(b) prohibits non-coercive, non-threatening and non-physical attempts to tamper with prospective witnesses.  B. Fletcher, D.W. Nelson, and McKeown (author), Circuit Judges.  J. Waltz of Laguna Hills, CA, for the defendant-appellant;  AUSA J. Early of Santa Ana, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 
 

47)  JURIES:  Fields v. Woodford, 00-99005 (9th Cir. Feb. 22, 2002).  The failure of a juror in a kidnapping, rape, robbery, and murder trial to reveal material facts on voir dire about the kidnap, robbery, and rape of his wife gave rise to an inference of implied bias that necessitated an evidentiary hearing to determine partiality;  concurring, Judge Silverman thought that, although whether the juror in question and his wife had improper communications that required an evidentiary hearing, the majority's decision to remand the case for an evidentiary hearing on actual or implied bias with respect to that juror's statement was based on a faulty premise:  that during voir dire the court asked the juror a specific question that he answered in a "misleading" or less than "completely forthcoming" manner;  the fact is, Judge Silverman said, that the court did not ask the juror whether any family members or friends had ever been the victim of a crime;  rather, the juror volunteered the information of his own accord; thus far from being less than forthcoming, the juror was just the opposite in Judge Silverman's view.  Kozinski, Rymer (author), and Silverman (concurring), Circuit Judges.  D. Olson of Los Angeles, CA, for the petitioner-appellant / cross-appellee;  C. Jorstad of Los Angeles, CA, for the respondent-appellee / cross-appellant. (Download the full text at www.ce9.uscourts.gov/) 

48)  EVIDENCE / JURIES:  USA v. Mills, 99-10336 (9th Cir. Feb. 6, 2002).  A juror's improper introduction of extrinsic evidence during jury deliberations regarding the defendant's appearance was insufficiently prejudicial to warrant a new trial when the juror's statement was ambiguously phrased;  it was merely the juror's opinion;  the jurors had heard all the evidence in the case before hearing the prejudicial statement;  the trial court gave a timely curative instruction to the jury to disregard the statement;  and, substantial evidence existed to link the defendant to the crime;  the juror had said that she recognized the defendant as someone who lived in her neighborhood who "was probably an old hippie" who smoked marijuana, was "fat and disgusting" and wore a ponytail and pajama-like clothing in public.  Goodwin (author), Graber, and Paez, Circuit Judges.  AFPD M. Weight of Honolulu, HI, for the defendant;  AUSA M. Kawahara of Honolulu, HI, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

49)  EVIDENCE / PROSECUTORIAL MISCONDUCT: USA v. Blueford, 00-10210 (9th Cir. Feb. 8, 2002).  A prosecutor's request that the jury infer that the defendant fabricated his alibi in telephone calls with witnesses just prior to trial constituted prosecutorial misconduct tainting the trial, where the government had evidence contradicting these assertions.  Reinhardt, Tashima, and Berzon (author), Circuit Judges.  AFPD J. Leavitt of Oakland, CA, for the defendant;  AUSA J. Schmidt of Oakland, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

50)  EXPERT TESTIMONY:  USA v. Varela-Rivera, 99-10575 (9th Cir. Feb. 12, 2002).  Expert testimony regarding the structure, organization, and modus operandi of drug trafficking enterprises and the fees paid to drug couriers within such enterprises is inadmissible in cases where, as here, the defendant is not charged with conspiracy to distribute drugs.  Hawkins and Tashima, Circuit Judges, and Wilken (author), District Judge.  F. Leon of Tucson, AZ, for the defendant-appellant;  AUSA V. Kelly of Tucson, AZ, for the plaintiff-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

51)  SEARCH WARRANTS / QUALIFIED IMMUNITY: Butler v. Elle, 99-35393 (9th Cir. Feb. 26, 2002).  A law enforcement officer is reckless or deceitful in preparing a search warrant affidavit during an investigation of a criminal tax violation and not entitled to qualified immunity, if he fails to use the defendant's known correct name in searching tax records and fails to investigate known alternative means of tax payment that could have shown the tax to have been paid;  dissenting in part, Judge Lay thought that the majority had found the issue of qualified immunity intertwined with the alleged constitutional violation because there existed a factual question of intent as to whether the defendant in instigating the issuance of the search warrant was guilty of reckless disregard of the truth;  however, Judge Lay thought that motive did not touch the defense of qualified immunity and the factual question of the defendant's state of mind was irrelevant to that issues.  Lay (dissenting in part), Trott, and Berzon, Circuit Judges.  Per Curiam.  R. Rader of Dallas, TX, for the plaintiffs-appellants;  D. Shipman of Idaho Falls, ID, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

52)  SEARCH & SEIZURE:  USA v. Gill, 00-30296 (9th Cir. Feb. 6, 2002).  Reasonable and articulable suspicion of criminal activity existed to seize and detain a package delivered to the post office for mailing where the package was wrapped excessively, the mailer exhibited furtive movements while delivering the package, and used aliases as to the sender and addressee, and resided at a different address than the return address on the package;  concurring, Judge Gould thought that while the majority opinion correctly applied the "reasonable and articulable suspicion of criminal activity" standard, that standard is not required for postal authorities to detain mail where the detention is unintrusive and does not significantly delay delivery .  Kleinfeld and Gould (concurring), Circuit Judges, and Roll (author), District Judge.  S. Illa of Bainbridge Island, WA, for the defendant-appellant; D. Lambros of Washington, DC, for the plaintiff-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

53)  SENTENCING:  USA v. Hardy, 01-50328 (9th Cir. Feb. 4, 2002).  Under the Sentencing Guidelines, the proper measure of value for determining the victim's loss from stolen goods that he had intended to sell in the wholesale market is the wholesale price, where the defendant did not attempt to sell the goods into the retail market, but instead sought only to sell to resellers.  Beezer (author) and Wardlaw, Circuit Judges, and Schwarzer, District Judge.  AUSA T. O'Brien of Los Angeles, CA, for the plaintiff-appellee;  DFPD K. Young of Los Angeles, CA, for the defendant-appellant.  (Download the full text at www.ce9.uscourts.gov/) 

54)  SENTENCING:  USA v. Robles-Rodriguez, 01-10193 (9th Cir. Feb. 13, 2002).  A state drug conviction, for which the maximum penalty authorized by state law is probation, cannot be an "aggravated felony" triggering a sentencing enhancement under Sec. 2L1.2(b)(1)(A) of the 2000 U.S. Sentencing Guidelines Manual.  B. Fletcher, Boochever (author) and Fisher, Circuit Judges, and Schwarzer, District Judge.  AUSA L. Boone of Phoenix, AZ, for the plaintiff-appellee;  AFPD K. J. Park of Phoenix, AZ, for the defendant-appellant. (Download the full text at www.ce9.uscourts.gov/) 

55)  SENTENCING / CALIFORNIA'S "THREE STRIKES" LAW:  Brown v. Mayle, 99-17261 (9th Cir. Feb. 7, 2002).  A 25-to-life sentence for the defendants' petty theft offenses pursuant to California's "Three Strikes" law violates the Eighth Amendment's pro-hibition against cruel and unusual punishment;  this ruling explicitly does not find California's "Three Strikes" law to be unconstitu-tional, but only its application to petty theft offenses such as those in these consolidated cases.  Reinhardt, Tashima, and Berzon (author), Circuit Judges.  E. Chemerinsky of Los Angeles, CA, for the appellants;  B. Means of Los Angeles, CA, for the appellees.  (Download the full text at www.ce9.uscourts.gov/) 

56)  PRISONS:  Wyatt v. Terhune, 00-16568 (9th Cir. Feb. 12, 2002).  In an action brought pro se by a Rastafarian inmate challenging his prison's hair length regulations on free exercise and equal protection grounds, the magistrate served the parties a copy of his findings of fact from a different case that challenged grooming regulations and directed the defendants to file a summary judgment motion;  he did not explain to the inmate the significance of the findings, that he intended to take judicial notice of the findings, or whether or how the inmate could dispute the findings in the summary judgment process;  the USCA concluded that this procedure was flawed because it did not meet the requirements of the Circuit's fair notice doctrine, under which the district court bears the responsibility of assuring that a pro se prisoner litigant receives meaningful notice of summary judgment procedures and requirements;  the exhaustion of administrative remedies requirement of the Prison Litigation Reform Act, 42 USC Sec. 1997e(a), is an affirmative defense.  Bright, B. Fletcher and Fisher (author), Circuit Judges.  G. Won of San Francisco, CA, for the plaintiff;  P. Bernardino of Sacramento, CA, for the defendants.  (Download the full text at www.ce9.uscourts.gov/) 

57)  PRISONS:  Taylor v. Delatoore, 00-55213 (9th Cir. Feb. 12, 2002).  Section 1915(b),the filing fee provision of the Prison Litigation Reform Act, did not violate the plaintiff's right of meaningful access to the courts or his right to the equal protection of the laws;  the district court's assessment of the $6.62 initial fee was proper;  however, the district court abused its discretion in dismissing plain-tiff's in forma pauperis 42 USC Sec. 1983 civil rights suit for failure to prosecute and for failure to pay the initial fee because of the plaintiff's inability to pay the fee.  Noonan, Hawkins, and Tashima (author), Circuit Judges.  J. Tehranian of Newport Beach, CA, for the plaintiff;  T. Bruno of Los Angeles, CA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

58)  HABEAS CORPUS:  Silva v. Woodford, 99-99009 (9th Cir. Feb. 1, 2002).  Court-appointed defense counsel was constitutionally ineffective in failing to investigate and present potentially compelling mitigating evidence of the defendant's background and mental state during the penalty phase of his capital murder trial, even if the defendant had directed him not to call particular witnesses;  counsel's performance was not constitutionally deficient during the guilty phase of the trial;  the district court abused its discretion in failing to conduct an evidentiary hearing on the question of whether the prosecutor suppressed an important aspect of the "deal" he allegedly struck with the defendants accomplice;  if true as alleged, such nondisclosure may have amounted to a material Brady violation;  accordingly, the USCA remanded to the district court for an evidentiary hearing on this matter.  B. Fletcher (author), Thomas, and Wardlaw, Circuit Judges. P. Trevino of Beverly Hills, CA, for the petitioner-appellant;  R. Foster of San Diego, CA, for the re-spondent-appellee. (Download the full text at www.ce9.uscourts.gov/) 

59)  HABEAS CORPUS:  Pizzuto v. Arave, 97-99017 (9th Cir. Feb. 6, 2002).  In a capital case, defense counsel did not render ineffective assistance at sentencing in contesting aggravating circumstances alleged by the state where the judge who sentenced the defendant also presided over the guilt phase and made it clear that evidence adduced at trial would be considered at sentencing, and where defense counsel had introduced mitigating evidence at sentencing and put before the court during the guilty phase every weakness the defendant claimed should have been argued at sentencing, and where the defendant failed to show that but for his counsel's alleged deficiencies, the trial court would not have found an aggravating circumstance;  dissenting in part, Judge Fletcher thought that the defendant's Fifth, Sixth, and Eighth Amendment rights were violated at his capital sentencing, resulting in a punishment of death;  Judge Fletcher thus thought that the defendant's death sentence should be vacated and the case remanded for resentencing because the trial court relied upon Idaho's unconstitutional "Heinous, Atrocious or Cruel" aggravating factor and upon unconstitutional, non-statutory aggravating factors that should have been considered mitigating; moreover, even in the absence of these errors, Judge Fletcher thought the case should be remanded for an evidentiary hearing on the defendant's ineffective assistance claims and the violation of his Fifth and Sixth Amendment rights in the use of his uncounseled, non-Mirandized statements made in pre-sentence interviews;  Judge Fletcher did not agree that the numerous errors committed at defendant's sentencing were non-prejudicial.  B. Fletcher (dissenting in part), Rymer (author), and Gould, Circuit Judges. AFPD R. Gombiner of Tacoma, WA, for the petitioner;  L. Anderson of Boise, ID, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

60)  HABEAS CORPUS:  Ghent v. Woodford, 99-99025 (9th Cir. Feb. 8, 2002).  The admission of testimony in violation of a defendant's Fifth Amendment right to be free from self-incrimination had a substantial and injurious effect or influence in determining the jury's verdict where that testimony related to the central issues, went to the heart of the defense, was used to attack the defendant's credibility, and the prosecution's trial strategy suggested that it believed that the testimony was critical;  as the district court erred in finding the admission of the testimony in the special circumstances retrial to be harmless error, the USCA affirmed the petitioner's conviction but reversed and remanded with instructions to vacate the petitioner's death sentence.  Reinhardt (author), Hawkins, and Rawlinson, Circuit Judges.  D. Young of San Francisco, CA, for the petitioner-appellant;  J. Killeen of San Francisco, CA, for the re-spondent-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

61)  HABEAS CORPUS:  Turner v. Calderon, 99-99019 (9th Cir. Feb. 12, 2002).  A habeas corpus petitioner in a capital case alleged sufficient facts to raise a colorable constitutional claim that warranted an evidentiary hearing with respect to trial counsel's ineffective assistance during the penalty phase where he submitted evidence that counsel indicated to the court that he was unprepared to proceed with the penalty phase, failed to call experts properly qualified on the subject of the effects of the petitioner's long-term drug use, and failed to call the petitioner's family and friends who had observed the petitioner's radical behavioral changes while under the influence of drugs;  such mitigating evidence might have influenced the jury to bring back a verdict other than death.  Wardlaw (author), Paez, and Tallman, Circuit Judges. K. Hart of Fresno, CA, for the petitioner;  J. Firestone of Sacramento, CA, for the respon-dents.  (Download the full text at www.ce9.uscourts.gov/) 

62)  HABEAS CORPUS:  White v. Klitzkie, 00-16347 (9th Cir. Feb. 20, 2002).  Under the Antiterrorism and Effective Death Penalty Act of 1996 the statute of limitations is not tolled for the time during which a state prisoner could have filed a petition for a writ of certiorari with the U.S. Supreme Court;  dissenting, Judge Berzon thought that while the application is one for state post-conviction relief, just as state criminal proceedings can raise federal issues reviewable in the U.S. Supreme Court, so can state habeas proceed-ings;  a state criminal proceeding, he thought, is still "pending" even though the state courts are finished with it, until any petition filed is finally decided;  similarly, if there is a certiorari petition pending to review the validity of the state's denial of such an application for state post-conviction review, the application is still "pending"—that is, not finally decided;  the application, Judge Berzon thought, does not thereby stop being a state habeas proceeding or turn into a federal rather than a state application; it is just not finally decided yet.  Thompson (author), O'Scannlain, and Berzon (dissenting), Circuit Judges.  E. Fisher of Honolulu, HI, for the petitioner;  T. Ada of Hagatna, GU, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

63)  HABEAS CORPUS:  Benn v. Lambert, 00-99014 (9th Cir. Feb. 26, 2002).  In a capital case, the prosecution's suppression of critical impeachment evidence that could have been used to undermine the key prosecution witness's credibility, including evidence of the witness's criminal misconduct and repeated lies to the police while acting as an informant, constituted a violation of a defendant's due process rights;  concurring, Judge Trott thought that reprehensible prosecutorial conduct such as unlawfully withholding patently damaging impeachment evidence in this case "shames our judicial system" as in unlawfully withholding this evidence, the prosecutor knowingly and willfully prevented the defendant from confronting a key witness against him.  Reinhardt (author), Trott (concurring), and W. Fletcher, Circuit Judges.  S. Elliott of Seattle, WA, for the petitioner-appellee;  J. Samson of Olympia, WA, for the respondent-appellant.  (Download the full text at www.ce9.uscourts.gov/) 

64)  HABEAS CORPUS:  Chia v. Cambra, 99-56361 (9th Cir. Feb. 27, 2002).  A trial court's exclusion of hearsay statements that directly inculpate the declarant and exculpate the defendant violated the defendant's constitutional right to present a defense, where the statements were crucial to the defendant's defense of discouraging the crime charged, and the statements were the only means of establishing the defendant's role;  dissenting, Judge Brunetti thought that because the declarant's statements did not bear sufficient indicia of reliability, the trial court's exclusion of them as inadmissible hearsay did not deny the defendant his due process rights under Chambers v. Mississippi, 410 US 284 (1973).  D.W. Nelson (author), Brunetti (dissenting), and Kozinski, Circuit Judges.  J. Dirks of Sacramento, CA, for the petitioner-appellant;  V. Baker of Los Angeles, CA, for the respondents-appellees. (Download the full text at www.ce9.uscourts.gov/) 

65)  HABEAS CORPUS:  Malcom v. Payne, 00-35770 (9th Cir. Feb. 22, 2002).  A prisoner's state petition for clemency did not toll the one-year limitations period for filing a federal habeas petition of the Antiterrorism and Effective Death Penalty Act of 1996.  Lay, Trott (author), and Berzon, Circuit Judges. M. Snedeker of Portland, OR, for the appellant;  P. Weisser of Olympia, WA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

66)  HABEAS CORPUS:  Gray v. Klauser, 00-35732 (9th Cir. Feb. 27, 2002).  In allowing the prosecution, but not also the defense, to use Idaho Rule Evidence 803(24) to admit hearsay evidence of similar import and character, the trial court violated the constitutional prohibition against the arbitrary application of evidentiary standards;  the error was not harmless;  dissenting in part, Judge Trott thought that the majority had far exceeded its authority in ordering a new trial for a man convicted of murdering his former wife and a friend;  in Judge Trott's view the majority's ground for this order was nothing more than that the defendant was not allowed to introduce in his defense stale, pointless, and untrustworthy hearsay evidence excluded by the trial court and Idaho's Court of Appeals as inadmissible, irrelevant, and immaterial.  Lay, Trott (dissenting in part), and Berzon (author), Circuit Judges.  M. Grant of Seattle, WA, for the petitioner;  K. Robins of Boise, ID, for the respondent.   (Download the full text at www.ce9.uscourts.gov/)