2)  TRADEMARKS /  ATTORNEYS' FEES:  Earthquake Sound Corporation v. Bumper Industries, 00-16532 (9th Cir. Dec. 16, 2003).  In an infringement action between competing manufacturers of car audio equipment, the USCA held that the district court correctly awarded attorneys' fees to the plaintiff in its First Fee Order;  because the defendant's subsequent motion was frivolous and filed in bad faith, the district court correctly awarded additional fees in its Second Fee Order;  and, given the exceptional nature of the case, the USCA awarded costs and fees to the plaintiff for this appeal;  Judge Ferguson concurred in the decision to affirm the fee orders, but not in the majority's analysis because it, he thought, failed to acknowledge that "willful and deliberate," in the context of fee awards in exceptional trademark cases, does not mean merely "voluntary" or "intentional."  Judge Ferguson added that a competitor has the right to intentionally challenge a monopoly created by a week trademark;  a finding that a trademark is exceptional enough to permit a fees award requires, he thought, something more than a voluntary act by the infringing party.  Ferguson (concurring), Brunetti (author), and Tashima, Circuit Judges.  J. Pelzer of Fort Lauderdale, FL, for the appellant;  G. Owen of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  COPYRIGHTS:  Mattel Inc. v. Walking Mountain Productions., 01-56695 (9th Cir. Dec. 29, 2003).  Mattel sought to prohibit an artist from producing and selling photographs containing Mattel's Barbie doll;  the artist's photos portrayed a nude Barbie in danger of attack by household appliances;  Mattel maintained that the photos infringed its copyrights, trademarks, and trade dress;  the USCA affirmed the summary judgment for Forsythe;  his use of the copyrighted doll constituted fair use;  his works were transformative parodies with no discernible impact on plaintiff's market for derivative uses, and the benefits to the public in allowing such use were great;  his use of the Barbie trade dress qualified as nominative fair use.  Pregerson (author) and Thomas, Circuit Judges, and Oberdorfer, District Judge.  A. Pruetz of Los Angeles, CA, for the plaintiff;  A. Hurst of San Francisco, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  INTELLECTUAL PROPERTY:  Mattel, Inc. v. Greiner and Hausser GMBH, 02-56272 (9th Cir. Dec. 22, 2003).  In ordering the dismissal of this infringement action concerning the Barbie doll, the district court improperly determined that it lacked personal jurisdiction over Greiner & Hausser ("G&H"), a German toy company which claims that Barbie is a copy of its doll and that Mattel has infringed its intellectual property rights; G&H asserted claims to that effect in a lawsuit filed in federal district court in Los Angeles in 1961;  that action was resolved by a dismissal with prejudice of G&H's claims;  G&H filed another lawsuit in May 2001 in Germany, claiming that it had been defrauded by Mattel when it entered into a set of related agreements with Mattel in 1964, shortly after the dismissal of the previous California suit;  G&H sought damages in the form of a royalty on every Barbie doll sold since that time;  Mattel responded by filing its own lawsuit in Los Angeles federal court against G&H and two related individuals;  it sought to "en-force" the resolution of the initial lawsuit;  the district court dismissed Mattel's suit, finding that the German action did not attempt to relitigate matters resolved in the 1961 California suit;  the USCA affirmed the district court's denial of a preliminary injunction, but disagreed with the district court's determination that it lacked personal jurisdiction over the defendants;  the USCA concluded that the subject matter of Mattel's current lawsuit—which concerns and is essentially defined by the claims currently asserted by the German company in Germany—is sufficiently related to the action filed in California by G&H in 1961 to support personal jurisdiction over G&H in the current case, at least at this stage of the proceedings.  Boochever, Tashima, and Clifton (author), Circuit Judges.  R. Olson of Los Angeles, CA, for the plaintiff-appellant;  J. Burton of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 5)  SECURITIES LAW:  SEC v. Rubera, 02-35886 (9th Cir. Dec. 5, 2003).  In this civil enforcement action filed by the SEC pursuant to Sec. 20(d)(1) and 22(a) of the Securities Act of 1933 and Secs. 21(d)(3)(A), 21(e), and 27 of the Securities and Exchange Act of 1934, the district court entered judgment against the defendant for violation of the registration provisions of Secs 5(a) and 5(c) of the 1933 Act;  the district court entered judgment in favor of the defendant on allegations that he used interstate commerce in the offer or sale of securities for purposes of committing fraud in violation of Sec. 17(a) of the 1933 Act, and Sec. 10(b) of the 1934 Act, and Rule 10b-5 thereunder;  the USCA affirmed, concluding that the defendant's investment program, under which individuals are sold pay telephones and service agreements in a single transaction, was a "security" under the Securities Acts and that the district court's finding that the defendant lacked scienter as to false statements to investors was not clearly erroneous.  Alarcon (author), Rawlinson, and Bybee, Circuit Judges.  L. Smith of Washington, DC, for the plaintiff;  D. Stringer of Portland, OR, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  TAXATION / ATTORNEYS' FEES: Biehl v. CIR, 02-72723 (9th Cir. Dec. 12, 2003).  The taxpayers appealed a Tax Court decision that attorneys' fees paid to their lawyers pursuant to a settlement agreement with a previous employer must be treated as a miscellaneous itemized deduction, rather than as an adjustment to gross income stemming from a reimbursed employee expense under IRC Sec. 62(a)(2)(A);  the USCA agreed with the Tax Court that the plain language of Sec. 62(a)(2)(A), the regulations explaining that provision, and its legislative history support the conclusion that Congress did not intend for attorneys' fees of a former employee in a wrongful termination action against his former employer to qualify as having been paid under an employee reimbursement or other expense allowance arrangement.  Thompson and Trott (author), Circuit Judges, and Weiner, District Judge.  D. Kirsch of San Jose, CA, for the petitioners;  K. Rosenburg of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  BANKRUPTCY / PUBLIC UTILITIES:  Pacific Gas and Electric Co. v. California, 02-16990 (9th Cir. Filed Nov. 19, 2003; amended Dec. 9, 2003).  The USCA held that a reorganization plan proposed under 11 USC Sec. 1123(a)(5) expressly preempts otherwise applicable nonbankruptcy laws only to the extent that such laws were already preempted before the addition of the "notwithstanding" clause to Sec. 1123(a) by amendment in 1984;  the addition of the "notwithstanding" clause to Sec. 1123(a) was merely a clarification and confirmation of the preemptive effect of a reorganization plan that already existed under the 1978 Bankruptcy Code;  that preemptive effect expressly stated in the "notwithstanding" clause of Sec. 1142(a), was limited to otherwise applicable nonbankruptcy laws "relating to financial condition."  Hawkins and W. Fletcher (author), Circuit Judges, and King, District Judge.  J. Lopes and A. Margolin of San Francisco, CA, for PG&E;  T. Greene of Oakland, CA, for the State of California, et al.  (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  ENVIRONMENTAL LAW:  Earth Island Institute v. U.S. Forest Service, 02-16999 (9th Cir. Dec. 11, 2003).  In denying plaintiffs' request for a preliminary injunction against the implementation of a Forest Service restoration project involving timber sales in the Sierra Nevada mountains, the district court applied the improper legal standard of "irreparable harm" and failed to consider the broader public interest in environmental preservation; the plaintiffs showed a reasonable probability of success on the merits of some of their claims;  concurring, Judge Noonan wrote separately to state his belief that the Service may be disqualified from approving a sale of timber from the Eldorado Forest due to its financial interest in such a sale;  he thought that further investigation of the budgetary process of the Service and the impartiality of the Service appeared appropriate on remand;  dissenting, Judge Clifton did not think that the district court had placed a higher burden of proof on the plaintiffs than warranted;  he understood the language used by the district court to have been intended to emphasize that the plaintiffs did not persuade it that the probability of actual harm was sufficient to tip the balance in favor of granting the requested preliminary injunction.  Noonan (concurring), Thomas (author), and Clifton (dissenting), Circuit Judges.  R. Fazio of Cedar Ridge, CA, for Earth Island Institute;  D. Martinek of Eureka, CA, for Sierra Pacific Industries;  E. Brennan of Sacramento, CA, for the USFS. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  ENVIRONMENTAL LAW / PROPERTY:  Martinez v. Texaco Trading & Transportation, Inc., 02-16436 (9th Cir. Dec. 24, 2003).  The City of Martinez, California, appealed the district court's grant of summary judgment in favor of Texaco on the basis that the City's causes of action were barred by res judicata due to an earlier civil compromise between the California Department of Fish and Game (DFG) and Texaco;  because the USCA determined that some issues raised by the City's suit were not addressed by the DFG proceeding and that with regard to the City's private easement claims, it was not in privity with the DFG in the first action, res judicata did not apply to those claims;  the USCA thus affirmed the district court's summary judgment with regard to the City's "public" claims, but reversed with regard to the City's Private easement claims.  Hawkins (author), Thomas, and Clifton, Circuit Judges.  J. Hoffman of San Francisco, CA, for the plaintiff;  J. Reese of San Francisco, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  ENVIRONMENTAL LAW:  The Wilderness Society v. U.S. Fish & Wildlife Service, 01-35266 (9th Cir. Dec. 30, 2003).  A sockeye salmon enhancement project in the Kenai Wilderness, which annually introduces some six million hatchery-reared salmon fry into the Tustumena Lake in the Kenai National Wildlife Refuge, is an impermissible commercial enterprise within a designated wilderness area and prohibited by Wilderness Act Sec. 1133(c);  the plaintiffs were entitled to prevail on their motion for summary judgment establishing that the Fish & Wildlife Service's permit for the enhancement program violated the Act; they were also entitled to a final judgment setting aside the Service's permit and to a final judgment enjoining operation of the project.  Schroeder, Pregerson, Reinhardt, T.G. Nelson, Hawkins, Silverman, Wardlaw, W. Fletcher, Gould (author), Berzon, and Clifton, Circuit Judges.  R. Bernard of Anchorage, AK, for the plaintiffs;  K. Kovacs of Washington, DC, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

11)  INSURANCE:  Chale v. Allstate Life Ins. Co., 02-35665 (9th Cir. Dec. 23, 2003).  Death from high-altitude pulmonary and cerebral edema while mountain-climbing is an "accidental injury," not a "disease" as these terms are commonly understood;  since the life insurance policy here defined neither term, the death did not fall within the policy's "disease" exclusion.  D.W. Nelson, Kozinski, and McKeown (author), Circuit Judges.  J. Batchelor of Portland, OR, for the plaintiff;  L. Lear of Portland, OR, for the defendant.  ((Download the full text of this decision at www.cc9.uscourts.gov/)

12)  INSURANCE / CLASS ACTIONS:  Lierboe v. State Farm Mutual Auto. Ins. Co., 02-35432 (9th Cir. Dec. 1, 2003).  In this class action suit concerning "anti-stacking" provisions in insurance policies, the USCA, finding the class inadequately represented, vacated a district court's class certification and remanded with instructions to dismiss, following a ruling that the class's sole named plaintiff had no cognizable claim.  Lay, Goodwin, and Gould (author), Circuit Judges.  B. Luck of Missoula, MT, and P. Danelo of Seattle, WA, for the defendant;  A. McGarvey of Kalispell, MT, for the plaintiffs.(Download the full text of this decision at www.cc9.uscourts.gov/)

13)  ARBITRATION:  Sink v. Aden Enterprises, Inc, 02-35323 (9th Cir. Dec. 10, 2003).  Under the Federal Arbitration Act, a party to an arbitration agreement may not compel the arbitration of claims under Sec. 4 of the Act where a prior default in arbitration of those claims precludes the party from obtaining a stay of litigation pending arbitration under Sec. 3 of the Act;  the district court did not err in finding Aden Enterprises to be in default of arbitration;  because Aden is in default, and the Act no longer permits a stay of the court proceedings in favor of arbitration, the Act commensurately does not require the district court to order the parties to return to arbitration.  Aldisert, Graber, and Gould (author), Circuit Judges.  J. Morrow of Omaha, NB, for the defendants-appellants;  S. Brischetto of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  LABOR LAW / SYMPATHY STRIKES:  Standard Concrete Products, Inc. v. General Truck Drivers, Office, Food and Warehouse Union, Local 952, 01-57256 (9th Cir. Dec. 18, 2003).  The defendant, Local 952, represents the plaintiff's employees at its Corona facility in Riverside County;  it also represents the plaintiff's employees at three Orange County facilities under a separate collective bargaining agreement ("CBA"); the USCA concluded that Local 952 and its Orange County bargaining unit engaged in a permissible sympathy strike and thus did not violate the "no-strike" clause of its Orange County CBA with the plaintiff when its members honored the Corona bargaining unit's picket lines at plaintiff's facilities in Orange County;  the USCA thus reversed the district court judgment and award of damages and costs in favor of the plaintiff.  Pregerson (author), Tashima, and Clifton, Circuit Judges.  J. Wallington of Washington, DC, for the defendant;  H. Hay of Costa Mesa, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  EMPLOYMENT RETALIATION:  Stegall v. Citadel Broadcasting Co., 02-35399 (9th Cir. Dec. 2, 2003).  As the plaintiff had marshaled specific and substantial evidence of improper motives on the part of her employer, the USCA reversed the district court's grant of summary judgment in favor of the employer and remanded for further proceedings as to whether the plaintiff, who was an on-air personality at a radio station, had been terminated as part of a format change and overhaul of the station or as a pretext for retaliation for her prior complaint about gender-based wage discrimination at the station;  dissenting, Judge Gould thought that no genuine issue of fact had been presented on pretext in the context of the station's broad changes of on-air personalities after a new owner took control following an acquisition.  Lay, Ferguson (author), and Gould (dissenting), Circuit Judges.  L. Allen of Seattle, WA, for the plaintiff-appellant;  C. Wiswall of Portland, OR, for the defendants-appellees (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  PROPERTY LAW:  Keystone Land & Development. Company v. Xerox Corp., 02-35847 (9th Cir. Dec. 31, 2003).  Summary judgment was properly granted in favor of the defendant on a claim of breach of contract to sell a building, as the evidence did not support a finding that the contract existed under Washington law;  the defendant was not entitled to damages for the wrongful filing of a lis pendens notice as the plaintiff had substantial justification to bring its claim and could assert an estoppel argument in good faith.  Trott, Fisher, and Gould (author), Circuit Judges.  E. Frimiodt of Bellevue, WA, for Keystone;  L. Smith of Seattle, WA, for Xerox.  (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  PROPERTY / REGULATORY TAKINGS:  Hacienda Valley Mobile Estates v. Morgan Hill, 02-15986 (9th Cir. Dec. 17, 2003).  The plaintiff brought this action to challenge the constitutionality of a city's vacancy control ordinance which prevents mobile home parks from raising the rent on a mobile home "pad" after a mobile home is sold;  the plaintiff maintained that the ordinance allows existing tenants to capture a "premium" on the sales price of their mobile homes because the new tenants are guaranteed low rent;  this premium, it argued, constitutes an unconstitutional taking;  the district court concluded that the plaintiff had not met the ripeness requirements imposed on regulatory taking cases by Williamson County Regional Planning Commission v. Hamilton Bank, 473 US 172, 186 (1985), and thus dismissed the action for lack of subject matter jurisdiction;  analyzing the plaintiff's "as-applied" taking claim under the Williamson County ripeness standards, the USCA agreed that the case was not ripe;  although the plaintiff met the "final decision" requirement by receiving a final decision from the city's Rent Control Commission, it had not pursued state remedies and thus failed to satisfy the second prong of the analysis.  Hug (author), B. Fletcher, and Tashima, Circuit Judges.  R. Coldren of Santa Ana, CA, for the appellant;  D. Lincoln of San Diego, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  LANDLORD-TENANT LAW:  USA v. 1.377 Acres of Land, 02-56423 (9th Cir. Dec. 17, 2003).  Restaurateur tenants of a condemned hotel, under the plain language of their leases, had contractual rights to a portion of the hotel's condemnation award;  the USCA thus reversed the district court with regard to its interpretation of the leases and remanded for consideration of the amount of compensation to which one defendant is entitled for lost goodwill and the "undepreciated value" of tenant improvements and furniture, fixtures, and equipment.  Boochever, Hall (author), and O'Scannlain, Circuit Judges.  C. Berwanger and L. Goebel of San Diego, CA, for the appellants;  T. Aagaard of Washington, DC, and H. Dolle of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  LANDLORD-TENANT LAW:  Anderson v. WoodCreek Venture, Ltd., 01-36045 (9th Cir. Dec. 5, 2003). The record casts into doubt whether the plaintiff voluntarily consented to the magistrate judge’s jurisdiction to enter judgment as required by 28 USC Sec. 636(c)(1); because appellate jurisdiction depends on the proper exercise of magistrate judge jurisdiction, Sec. 536(c)(3), the USCA remanded the trial court's denial of the plaintiff's motion for a new trial in order to determine whether the plaintiff voluntarily consented to proceed to judgment.  Lay, Wallace (author), and Tallman, Circuit Judges.  P. Camp of Everett, WA, for the plaintiff-appellant;  T. Gerking of Medford, OR, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  ATTORNEYS' FEES:  Karam v. City of Burbank, 02-55954 (9th Cir. Dec. 8, 2003).  The USCA concluded that the district court correctly dismissed the plaintiff's First and Fourth Amendment claims brought under 42 USC Sec. 1983 after she had been charged with delaying or obstructing a peace officer following her refusal to leave a city council meeting as directed to do so by the officer because the chambers were filled to capacity;  the USCA reversed the district court's order granting the defendants their attorneys' fees as the plaintiff's claims were not frivolous.  Thompson (author), Trott, and Tallman, Circuit Judges.  S. Kerekes of Beverly Hills, CA, for the appellant;  R. Terzian of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  ELECTION LAW:  Arizona Libertarian Party, Inc. v. Bayless, 02-16535 (9th Cir. Dec. 8, 2003).  The plaintiffs challenged Arizona's semi-closed primary system, added to the state constitution by Arizona voters in 1998;  under Arizona's primary system, voters who are unaffiliated, registered as independents, or registered as members of parties that are not on the primary ballot may vote in the party primary of their choice; voters who are registered with a party that is on the ballot may vote only in their party's primary;  the primary ballot contains the names of candidates for all government offices elected in the general election, as well as party precinct committeemen, who are elected in the primary;  the district court held that the primary system violates the plaintiffs' First Amendment right to select their party leaders free from governmental interference because the law allows nonparty members to vote for party precinct committeemen;  the court summarily held that the entire primary system was unconstitutional without separately considering whether nonmembers' selection of party nominees in the primary election violates the First Amendment;  the USCA affirmed as to the election of Libertarian Party precinct committeemen; it remanded so that the district court may consider separately whether nonmem-bers' participation in the selection of Libertarian candidates is unconstitutional and, if not, whether the provisions related to the election of Libertarian precinct committeemen are severable.  Schroeder, D.W. Nelson, and W. Fletcher, Circuit Judges.  Per Curiam.  AAG P. Bickett of Phoenix, AZ, for the defendant-appellant;  D. Hardy of Tucson, AZ, for the plaintiffs-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  FOURTH AMENDMENT:  Desyllas v. Bernstine, 02-35374 (9th Cir. Dec. 9, 2003).  The plaintiff, a student newspaper editor at Portland State University, appealed a district court order granting summary judgment to four university officials on the plaintiff's 42 USC Sec. 1983 claims for violation of his First and Fourth Amendment rights;  the USCA concluded that the district court correctly held that the officials were entitled to qualified immunity from liability for civil damages;  the plaintiff had maintained that he had been unlawfully detained and that a box of confidential records belonging to the school had been unlawfully seized; the USCA concluded that he had not be detained in violation of the Fourth Amendment but rather remained voluntarily with the officials until deciding to give up the box of records.  Aldisert (author), Graber, and Gould, Circuit Judges.  P. Lebenbaum of Portland, OR, for the plaintiff;  AAG D. Casey of Salem, OR, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  PROFESSIONAL RESPONSIBILITY:  Pincay v. Andrews, 02-56577 (9th Cir. Dec. 10, 2003).  The plaintiffs appealed an order of the district court retroactively extending the time in which the defendants might appeal from an adverse judgment of the district court;  holding that the district court made a mistake of law, the USCA reversed the order;  the defendant failed to meet the "excusable neglect" requirement for a FRAP 4(a)(5) motion for extension of time;  ignorance of unambiguous rules was compounded in this case by the delegation of knowledge of those rules to a non-lawyer;  dissenting, Judge Kleinfeld thought the majority made two mistakes:  first, it took too constricted a view of the Supreme Court's decision in Pioneer Investment Services Co. v. Brunswick Associates, Ltd. P'ship, 507 US 380 (1993), and second, it accorded insufficient deference to the district court's exercise of discretion.  Noonan (author), Kleinfeld (dissenting), and Wardlaw, Circuit Judges.  N. Papiano of Los Angeles, CA, for the plaintiffs;  D. Boies of Armonk, NY, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  HEALTH LAW:  Providence Health System-Washington v. Thompson, 02-35912 (9th Cir. Dec. 17, 2003). The exemption of 42 CFR Sec. 413.30(e) (1996), entitling skilled nursing facilities qualifying as "new providers" to full reimbursement, is ambiguous;  the Secretary of Health and Human Services' interpretation that Providence is not entitled to a new provider exemption due to its acquisition of pre-existing bed rights from Summitview Manor is reasonable and thus entitled to deference;  the USCA reversed the decision of the district court and directed entry of summary judgment for the Secretary.  D.W. Nelson (author), Kozinski, and McKeown, Circuit Judges.  AAG R. McCallum of Seattle, WA, for the defendant;  S. Pentz of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  SOCIAL SECURITY:  USA v. Somsamouth, 02-50453 (9th Cir. Dec. 18, 2003).  Since before 1990, the defendants had received SSI benefits based on claims that their disabilities rendered them unable to work;  however, by 2000 they were working, and made false statements about that to the Social Security Administration ("SSA");  affirming the district court's judgment, the USCA concluded that the defendants had been properly convicted of making false representations of material facts to the SSA for the purpose of retaining Supplemental Security Income benefits.  Pregerson, Fernandez (author), and Berzon, Circuit Judges.  J. M. Roake of San Diego, CA, for the defendants-appellants;  AUSA R. Cheng of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  PUBLIC UTILITIES: Southern California Edison Company v. Lynch, 01-56879 (9th Cir. Dec. 19, 2003).  In an earlier opinion, the USCA affirmed the judgment of the district court except for the state law claims identified in Sec. IX of that opinion;  three issues were certified to the Supreme Court of California and the USCA's proceedings were stayed pending a response;  the Supreme Court responded that the settlement herein in question did not violate California law with respect to any of the three issues certified;  the USCA then concluded that this response resolved the remaining issues in the case.  Browning, Thomas, and Rawlinson,  Circuit Judges.  Per Curiam.  R. Finkelstein of San Francisco, CA for the defendant-intervenor-appellant;  S. Pickett of Rosemead, CA, and R. Olson of Los Angeles, CA, for the plaintiff-appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  FIRST AMENDMENT / BILLBOARDS:  Lombardo v. Warner, 02-35269 (9th Cir. Dec. 29, 2003).  The highway billboard provisions of the Oregon Motorist Information Act, which prohibit certain outdoor advertising signs, are valid content-neutral time, place and manner restrictions;  they do not place unbridled discretion in the hands of state officials in their efforts to decide whether to permit a given sign;  dissenting, Judge Fletcher thought that the provisions allow commercial messages where noncommercial speech is not permitted, draw content-based distinctions among noncommercial billboards and include an essentially standardless variance procedure;  she would reverse the district court's dismissal of the plaintiff's First Amendment claims on the grounds that billboard regulations that prefer commercial speech or that apply content-based rules to noncommercial speech are presumptively unconstitutional and because the First Amendment requires licensing schemes to include narrowly-drawn, definite standards capable of meaningful judicial review.  B. Fletcher (dissenting), Ferguson, and Tashima (author), Circuit Judges.  A. Herson of Jacksonville, OR, for the plaintiff-appellant;  AAG J. Metcalf of Salem, OR, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  CIVIL RIGHTS:  Gilbertson v. Albright, 02-35460 (9th Cir. Dec. 1, 2003).   The doctrine of Younger abstention, on which the federal district court relied in dismissing plaintiff's action over the revocation of his land surveyor license, appeals regarding which were still pending in state court, did not bar the plaintiff's federal civil rights action for money damages as an award of damages on the plaintiff's due process and equal protection claims would not have had a "substantially disruptive" effect on the ongoing state proceedings;  the USCA reversed and remanded for further proceedings to determine whether the plaintiff's action is barred by the Rooker-Feldman doctrine and by claim preclusion.  Hall, Graber (author), and Gould, Circuit Judges.  J. Brown of Salem, OR, for the plaintiff;  R. Wasserman of Salem, OR, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  CIVIL RIGHTS / EQUITABLE TOLLING:  Lucchesi v. Bar-O Boys Ranch, 02-17079 (9th Cir. Dec. 22, 2003).  Because plaintiffs' state tort and 42 USC Sec. 1983 claims are predicated on the same wrong, the plaintiffs are not barred from seeking relief from the statute of limitations under the doctrine of equitable tolling for the time they spent pursing their state tort claim under California law;  because the plaintiffs' state tort and Sec. 1983 claims were predicated on the same wrong, the district court should have applied California's three-pronged test to determine whether the plaintiffs are entitled to equitable tolling;  the USCA thus reversed and remand for the district court to consider that.  Thompson (author) and Trott, Circuit Judges, and Weiner, District Judge.  E. Lake of Oakland, CA, for the plaintiffs-appellants;  J. Vrieze of Eureka, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  NATIVE AMERICAN LAW / GAMING LAW:  Artichoke Joe's California Grand Casino v. Norton, 02-16508 (9th Cir. Dec. 22, 2003).  The plaintiffs are California card clubs and charities that are prohibited under California law from offering casino-style gaming;  the Indian Gaming Regulatory Act, 25 USC Secs 2701-2721, allows California to grant a monopoly on casino-style gaming to the Indian tribes;  the monopoly granted through the Tribal-State Compacts pursuant to Proposition 1A (an amendment to the California Constitution that permits casino-style gaming only on Indian lands) does not violate the plaintiffs' rights to equal protection of the laws.  Reinhardt and Graber (author), Circuit Judges, and Rhoades, District Judge.  J. Hamilton of Washington, DC, for the plaintiffs-appellants;  AUSA E. Brennan and DAG M. LeForestier of Sacramento, CA, for the defendants-appellees; J. Martin of Oakland, CA, for the amici curiae.  (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  IMMIGRATION / NATIONAL SECURITY:  Cheema v. INS, 02-71311 (9th Cir. Dec. 1, 2003).  The BIA found that the petitioner's financial support for terrorist persons and groups in India and the facilitation of telephone calls from such persons in India were acts such as to "necessarily endanger the lives, property and welfare of United States citizens and compromise the defense of the United States.  The USCA reversed the BIA's denial of asylum and withholding of deportation due to the lack of any evidence of a reasonable ground to believe that the defendants are a danger to the security of the United States;  it remanded to permit the BIA to exercise discretion on the asylum petitions;  in determining whether an alien poses a danger to national security, for purposes of determining eligibility for withholding of deportation, the BIA failed to conduct the required two-part inquiry when it simply asserted that it is self-evident that aliens engaged in terrorist activities affecting a foreign nation necessarily endanger the welfare of U.S. citizens and compromises national defense;  dissenting, Judge Rawlinson thought that, contrary to the majority's apparent view, our country should not become a haven for those who desire to foment international strife from our shores;  he would deny the petition.  Noonan (author), McKeown, and Rawlinson (dissenting), Circuit Judges.  R. Jobe of San Francisco, CA, for the petitioner;  E. Kanter of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  IMMIGRATION LAW:  Singh v. Ashcroft, 02-16476 (9th Cir. Dec. 5, 2003).  The USCA affirmed the district court's denial of Singh's habeas petition as the Board of Immigration Appeals did not err in rejecting his United Nations Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment claim.  The district court did not have jurisdiction over Singh's habeas claim that his underlying crime was not "particularly serious," but it did have jurisdiction over Singh's Convention claim and correctly denied it.  O'Scannlain and Tashima, Circuit Judges, and Matz (author), District Judges.  M. Guajardo of San Francisco, CA, for the petitioner;  J. Braunstein of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  IMMIGRATION:  Wang v. INS, 02-72176 (9th Cir. Dec. 17, 2003).  The Immigration Judge properly denied the plaintiff's application for asylum, pursuant to Sec. 208 of the Immigration and Nationality Act on grounds that his documentary and testimonial evidence regarding China's threat to sterilize him because his wife gave birth to a second child lacked credibility.  Wallace (author), Hall, and O'Scannlain, Circuit Judges.  A. Samson of San Francisco, CA, for the petitioner;  D. Couvillon of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION: Arulampalam v. Ashcroft, 02-71267 (9th Cir. Dec. 19, 2003).  The petitioner's applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT") were denied by the Immigration Judge ("IJ") on the basis of the IJ's adverse credibility finding;  the BIA affirmed that decision;  however, finding the petitioner's testimony to be credible, the USCA remanded the matter for further proceedings to determine the petitioner's eligibility for asylum, withholding of removal, and relief under CAT;  Judge Fernandez concurred in the majority's decision to grant the petition under the CAT, but otherwise dissented;  he noted that the petitioner's claim failed because the BIA, in reliance on the IJ's decision, determined that the petitioner was not credible;  but, he added that he was unable to say that the determination was not supported by substantial evidence in the record;  moreover, he thought the lack of credibility went to the heart of the petitioner's asylum claim;  essentially, the petitioner's manner of testifying, especially his fragmentary way of answering questions and his apparent lack of knowledge of many of the most significant details surrounding his alleged persecution, left his story with a lack of verisimilitude;  Judge Fernandez thought that the IJ could decide that the petitioner's testimony was made up rather than credible; on this record, Judge Fernandez could not say that "no reasonable factfinder could fail to find" the petitioner credible;  the BIA thus could properly determine that the petitioner was not entitled to asylum.  Preger-son, Fernandez (dissenting in part), and Berzon (author), Circuit Judges.  J. Wood of Los Angeles, CA, for the petitioner;  J. Hogan of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  IMMIGRATION:  Carrillo-Gonzalez v. INS, 02-71997 (9th Cir. Dec. 31, 2003).  The plaintiff's eligibility for a visa under the Diversity Immigration Visa Lottery Program expired long before the Immigration Judge denied her application for an adjustment of status;  the doctrine of equitable tolling has no application in cases involving the Lottery Program.  Beezer (author) and Kozinski, Circuit Judges, and Schwarzer, District Judge.  H. Johnson of Los Angeles, CA, for the petitioner;  R. McCallum of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  CONTROLLED SUBSTANCES:  Fry v. DEA, 03-70379 (9th Cir. Dec. 8, 2003).  The USCA dismissed the plaintiff's request for review of a DEA final order denying the plaintiff's motion to reopen proceedings concerning the revocation of her certificate of registration to dispense controlled substances as the USCA lacked jurisdiction to review the final order because the plaintiff did not file her petition within the thirty-day time limit contained in 21 USC Sec. 877.  Pregerson, Beam (author), and Paez, Circuit Judges.  L. Lichter of San Francisco, CA, for the petitioner;  M. Quinlivan of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  MEDICAL MARIJUANA:  Raich v. Ashcroft, 03-15481 (9th Cir. Dec. 16, 2003).  Intrastate, noncommercial cultivation, possession and use of marijuana for medical purposes on the recommendation of a doctor per California's Compassionate Use Act are activities to which the federal Controlled Substances Act, in all likelihood, cannot constitutionally apply;  hardship to the plaintiffs and public interest factors require a preliminary injunction;  dissenting, Judge Beam thought it was impossible to distinguish the relevant conduct surrounding the cultivation and use of the marijuana crop here from the cultivation and use of the wheat crop that affected interstate commerce in Wickard v. Filburn, 317 US 111 (1942), other than that the marijuana is consumed for medicinal rather than nutritional purposes;  he added that the activity is almost certainly economic, but if not, its regulation is essential for the regulation by Congress of the larger economic activity of the drug trade.  Pregerson (author), Beam (dissenting), and Paez, Circuit Judges.  R. Barnett of Boston, Maine, for the plaintiffs;  M. Quinlivan of Washington, DC, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  KNOCK & ANNOUNCE REQUIREMENTS:  USA v. Peterson, 03-30025 (9th Cir. Dec. 30, 2003).  A SWAT team's "no-knock" entry to search the defendant's residence was not unreasonable under the Fourth Amendment, and did not violate 18 USC Sec. 3109;  the team reasonably suspected that knocking and announcing its presence would be futile, dangerous, and could result in the destruction of evidence.  Kleinfeld, Gould, and Tallman (author), Circuit Judges.  AFPD R. Gombier 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.cc9.uscourts.gov/)

39)  JURY INSTRUCTIONS:  USA v. Jones, 03-30078 (9th Cir. Dec. 30, 2003).  The defendant appealed his convictions for abusive sexual contact and attempted sexual abuse of an unconscious woman under 18 USC Secs. 1153, 2242(2), and 2244(a)(2); several witnesses, including an eyewitness to the sexual contact, testified for the prosecution, and the defendant himself made admissions to an investigator regarding his conduct;  the USCA affirmed, finding that the district court's refusal to provide written jury instructions did not constitute an abuse of discretion given the relative simplicity of the case, its observations regarding the jurors' understanding, and the defendant's lack of objection to the content of the oral instructions.  Brunetti, T.G. Nelson (author), and Graber, Circuit Judges.  J. Yellin of Fort Benton, MT, for the defendant-appellant; AUSA K. Richter of Billings, MT, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

40)  EVIDENCE:  Arizona v. Johnson, 02-10285 (9th Cir. Dec. 16, 2003).  The defendant, a Border Patrol Agent, was convicted of sexual assault and kidnapping;  the district court did not abuse its discretion in admitting testimony of prior consistent statements under Fed. Rule of Evid. 801(d)(1)(B), or in answering a question from the jury during its deliberations;  the district court also properly rejected a Sixth Amendment claim that the government had acted in bad faith, in deporting aliens who might have been material witnesses, and properly refused to dismiss the kidnapping charge as unsupported by the evidence.  D.W. Nelson and W. Fletcher (author), Circuit Judges, and Alsup, District Judge.  W. Kirchner of Tucson, AZ, for the defendant-appellant;  D. Flannigan of Tucson, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  UNLAWFUL FIREARM POSSESSION:  USA v. Garcia-Rivera, 02-10423 (9th Cir. Dec. 29, 2003).  The defendant was prohibited from possessing firearms because of a previous criminal conviction for armed robbery;  during a lawful motor vehicle investigative stop, police officers found a loaded .25 caliber semi-automatic handgun in the seat of the vehicle, which the defendant admitted to having shot earlier, but which he claimed belonged to his girlfriend;  the district court's instruction on unlawful firearm possession was fatally ambiguous as to the time of possession;  the jurors could have concluded that they were required to decide unanimously only that possession occurred during any of the three times enumerated, and not that they had to unanimously agree upon which time; the USCA thus remanded for a new trial.  Beezer (author) and Fisher, Circuit Judges, and England, District Court.  FPD F. Kay of Phoenix, AZ, for the defendant-appellant;  AUSA P. Charlton of Phoenix, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  CRIMINAL PROCEDURE:  USA v. Ratigan, 01-35972 (9th Cir. Dec. 11, 2003).  Ratigan appealed the denial of his 28 USC Sec. 2255 motion to vacate his conviction and sentence for, inter alia, armed bank robbery;  the insufficiency of proof of the jurisdictional fact of Federal Deposit Insurance Corporation insurance did not undermine the court's subject-matter jurisdiction as proof of that fact is an element of bank robbery under 18 USC Sec. 2113;  Ratigan procedurally defaulted on his Sec. 2255 motion by not raising it at trial or on direct appeal, and since he could not show cause and prejudice or actual innocence his motion was properly dismissed.  Trott (author), Fisher, and Gould, Circuit Judges.  C. Bugbee of Spokane, WA, for the defendant-appellant;  AUSA T. Rice of Spo-kane, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  DOUBLE JEOPARDY:  USA v. Ziskin, 02-50443 (9th Cir. Dec. 15, 2003).  The defendant maintained that the district court erred in denying his motion to dismiss conspiracy counts because he had already been convicted under an earlier indictment for the conspiracy charged in this second indictment;  however, the USCA found that district court properly denied the defendant's motions to dismiss, including a motion to dismiss counts of the indictment for conspiring to import, possess and distribute "ecstasy," as the defendant failed to show that the conspiracies were indistinguishable in law and in fact.  Aldisert (author), Tallman, and Rawlinson, Circuit Judges.  C. Sevilla of San Diego, CA, for the appellant;  AUSA J. Mohrbacher of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  DUE PROCESS:  Shaw v. Terhune, 02-16829 (9th Cir. Dec. 22, 2003).  The district court did not err in denying a due process challenge to the petitioner's conviction and sentence, which included an enhancement imposed for the "personal use" of a firearm during the assault and attempt robbery of the victim, notwithstanding that the prosecutor knowingly prosecuted two defendants for the as-saut and robbery of that same victim and the evidence presented at both trials indicated that only one person directly participated in the assault and attempted robbery of that victim and thus that only one person had personally used a firearm during the incident;  the USCA concluded that the district court's decision was neither contrary to, nor an unreasonable application of, clearly established federal law;  dissenting, Judge Wallace thought that the prosecutors acting in bad faith had secured convictions and sentence enhancements against two individuals for an offense that only one could commit;  his review of the relevant Supreme Court cases suggested that the petitioner's conviction was contrary to, or involved an unreasonable application of, clearly established principles of federal law.  Wallace(dissenting), Hall (author), and O'Scannlain, Circuit Judges.  S. Luban of Oakland, CA, for the appellant;  DAG C. Grove of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  INEFFECTIVE ASSISTANCE:  Riley v. Payne, 03-35054 (9th Cir. Dec. 23, 2003).  District court erred in rejecting the petitioner's claim of ineffective assistance of counsel, as there existed a reasonable probability that, but for the defense attorney's failure to interview a key witness, the verdict would have been different.  Trott, Fisher, and Gould (author), Circuit Judges.  D. Zuckermann of Seattle, WA, for the petitioner;  M. Hough of Seattle, WA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  CRIMINAL PROCEDURE:  USA v. Haswood, 02-10516 (9th Cir. Dec. 1, 2003).  The government appealed an interlocutory order suppressing statements the defendant made to an FBI agent;  the district court suppressed the statements on the ground that the agent coerced the defendant into making them;  the USCA disagreed with the district court's conclusion and reversed;  the totality of the circumstances suggest that the defendant's statement should have been admitted.  Thompson, Trott, and Callahan (author), Circuit Judges.  AUSA S. Song of Phoenix, AZ, for the plaintiff-appellant;  G. Parzych of Mesa, AZ, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  EVIDENCE / ALIBI INSTRUCTIONS:  USA v. Lillard, 02-50264 (9th Cir. Dec. 2, 2003).  Affirming the defendant's jury conviction and sentence for conspiracy to possess and distribute cocaine in violation of 21 USC Sec. 846, the USCA rejected his contentions that his conviction be reversed because 1) the trial court abused its discretion by admitting character evidence in violation of Fed. R. Evid. 404(b) and 403, 2) the trial court committed plain error by failing to give an alibi instruction to the jury, and 3) he was denied effective assistance of counsel because his trial attorney failed to call available alibi witnesses.  B. Fletcher (author), Rymer, and Graber, Circuit Judges.  R. Harley of Santa Ana, CA, for the defendant-appellant;  M. Young of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  RESTITUTION:  USA v. De La Fuente, 03-50056 (9th Cir. Dec. 29, 2003).  The defendant pled guilty to two counts of mailing threats to injure in violation of 18 USC Sec. 876(c);  pursuant to the Mandatory Victims Restitution Act of 1996 ("MVRA"), the district court ordered the defendant to pay $39,492.56 in total restitution to the U.S. Postal Service ("USPS"), the L.A. County Fire Department's Hazardous Materials Division ("LA HazMat"), and the L.A. County Health Department ("LAHD"); on appeal, the defendant maintained that MVRA does not apply because his was not a "crime of violence" and that the USPS, the LA HazMat and LAHD do not qualify as victims entitled to restitution under MVRA; the USCA affirmed.  B. Fletcher (author), Rymer, and Graber, Circuit Judges.  FPD M. Stratton of Los Angeles, CA, for the defendant-appellant;  AUSA R. Castro-Silva of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

49)  SENTENCING:  USA v. DOE, 02-50445 (9th Cir. Dec. 9, 2003).  In denying a FRCP 35(b) motion for reduction of the sentence imposed following his guilty plea to conspiracy to import cocaine in violation of 21 USC Secs. 952, 960, and 963, a district court did not abuse its discretion by considering relevant factors other than the defendant's substantial assistance to the government;  the consideration of such factors is proper under 18 USC Secs. 3553 and 3582.  Fisher and Bybee, Circuit Judges, and Mahan (author), Circuit Judges.  F. Ragan of San Diego, CA, for the defendant-appellant;  L. Duffy of San Diego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

50) SENTENCING:  USA v. Arellano-Gallegos, 01-10298 (9th Cir. Dec. 11, 2003).  The defendant appealed his 51-month sentence imposed following his guilty plea to illegal re-entry after deportation in violation of 8 USC Sec. 1326(a);  he challenged the waiver provision in his plea agreement, and claims that the district court erred by failing to acknowledge its discretion to depart downward pursuant to Sentencing Guideline Sec. 5K2.0;  the USCA concluded that due to the district court's failure to comply with Federal Rule Crim. Proc. 11, the defendant's waiver is unenforceable;  the USCA remanded because the district court did not expressly acknowledge its  discretion to depart downward under Sec. 5K2.0;  dissenting in part, Judge Kleinfeld noted that the district court clearly indicated its understanding of its authority to depart from the guidelines;  in discussing possible sentences if the defendant again entered the U.S. illegally, the district court said, "And quite frankly, it's going to get worse, not better.  In fact, the sentencing commission is trying to take out any possible departures."  This quote, Judge Kleinfeld noted, indicates that the district court understood that it currently possesses authority to depart.  Kleinfeld (dissenting in part) and Wardlaw, Circuit Judges, and Pogue, Court of Intl. Trade Judge.  C. Cabanillas of Tucson, AZ, for the defendant-appellant;  AFPD P. Raptis of Tucson, AZ, for the plaintiffs-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  SENTENCING:  USA v. Melchor-Zaragoza, 02-10314 (9th Cir. Dec. 9, 2003).  On a matter of first impression, the USCA held that when a defendant is convicted of a conspiracy involving multiple victims, it is proper for the sentencing court to divide the conspiracy conviction into separate count groups based on the number of victims under Guidelines Secs. 1B1.2(d) and 3D1.2;  the "preponderance of the evidence" standard applies to the court's determination of how many victims there were, and in the instant case that standard was satisfied.  Thompson (author), Trott, and Callahan, Circuit Judges.  N. Hinchcliffe of Phoenix, AZ, for the appellant;  AUSA L. Settel  of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  SENTENCING:  USA v. Wenner, 02-30022 (9th Cir. Dec. 12, 2003).  As neither residential burglary nor attempted residential burglary under Washington state law is a "crime of violence" as defined by the Sentencing Guidelines, the district court erred in enhancing the defendant's sentence under Guidelines Sec. 2K2.1(a)(1);  dissenting, Judge Wallace found the majority's interpretation of the law strained as the defendant had pled guilty to burglarizing "a dwelling other than a vehicle, residence of Mike Jewell"—yet the majority concluded that he had not committed a "burglary of a dwelling" or any other "crime of violence."  Wallace (dissenting), Trott, and Tashima (author), Circuit Judges.  DFPD C. Gunn of Los Angeles, CA, for the defendant-appellant;  AUSA A. Friedman of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  SENTENCING:  USA v. Hernandez-Valdovinos, 02-10671 (9th Cir. Dec. 17, 2003).  The district court sentenced the defendant to 30 months imprisonment following his guilty plea to reentry after deportation in violation of 8 USC Sec. 1326(a);  the defendant asserted that the district court erred in classifying his prior felony as an aggravated felony and in applying a 12-level sentencing enhancement when he received probation for the prior felony;  the USCA affirmed, finding that the district court did not err in ruling that the prior conviction was a drug trafficking offense for purposes of Guidelines Sec. 2L1.2;  as his two months' incarceration for that offense was a "sentence imposed," the 12-level sentencing increase was appropriate.  Hug, B. Fletcher, and Tashima (author), Circuit Judges.  AFPD C. Kilburn of Tucson, AZ, for the defendant;  AUSA A. Gannon of Tucson, AZ, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  SENTENCING:  USA v. Medina-Maella, 02-50215 (9th Cir. Dec. 10, 2003).  A prior felony conviction for lewd or lascivious acts upon a child under the age of 14 pursuant to California Penal Code Sec. 288 constitutes a conviction for a "crime of violence" under Sentencing Guidelines Sec. 2L1.2, which governs sentences for unlawful re-entry into the United States;  thus the 16-level sentencing enhancement in this case was appropriate.  Pregerson, Tashima, and Clifton (author), Circuit Judges.  M. Petrik of San Diego, CA, for the appellant;  C. Lam of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  SENTENCING:  USA v. Peyton, 02-50482 (9th Cir. Dec. 31, 2003).  The USCA affirmed the district court's computation of accountable loss and two-level enhancement for abuse of a position of trust;  however, the USCA reversed an enhancement for obstruction of justice;  the record did not rebut the presumption that the district judge acted vindictively in applying the obstruction of justice enhancement after considering, but rejecting, that enhancement at the original sentencing;  no explanation was provided as to why the enhancement was appropriate on remand but had not been previously;  dissenting, Judge Noonan noted that on the remand to the district court after a successful appeal to the USCA, the district court doubled Peyton's sentence;  he thought the majority had sustained a portion of this presumptively vindictive sentence in disregard of Supreme Court and Ninth Circuit precedent.  Noonan (dissenting), Tallman (author), and Rawlinson, Circuit Judges.  A. Krueger of San Diego, CA, for the defendant;  AUSA S. Miller of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

56)  SENTENCING:  USA v. Gutierrez-Silva, 03-30016 (9th Cir. Dec. 30, 2003).  The district court did not abuse its discretion in ordering a 65-month sentence for an alien who illegally reentered the U.S. after his deportation, and imposed this sentence to run consecutively with an unserved state term, although the government had recommended that the federal sentence be for a shorter term and run concurrently with the state term.  Kleinfeld, Gould (author), and Tallman, Circuit Judges.  D. Parmenter of Blackfoot, ID, for the defendant;  AUSA J. Haycock of Pocatello, ID, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  SENTENCING:  USA v. Toliver, 01-10222 (9th Cir. Dec. 3, 2003).  The Supreme Court decision in Apprendi v. New Jersey requires that any fact that increases the maximum statutory sentence for a crime be submitted to a jury, and proven beyond a reasonable doubt;  under 28 USC Sec. 841(a), (b)(1), the maximum sentence for drug possession and distribution depends upon the quantity and type of drugs involved;  here, the USCA considered the consequences where a district court properly complies with Apprendi by instructing the jury to return special findings on the quantity and drug type, but the jury, while finding the defendants guilty of conspiracy and attempt to possess and distribute a controlled substance, is unable to reach a verdict on drug type and quantity;  in these circumstances, the USCA concluded that the defendants were not entitled to acquittal, that the government was not required to charge a lesser-included quantity offense, and that the district court could properly determine the type and quantity of drugs involved in the offense for purposes of applying the Sentencing Guidelines so long as the court did not impose a sentence that exceeded the statutory maximum sentence authorized by the jury's verdict.  Leavy, Rymer, and Paez (author), Circuit Judges.  G. Huss and A. Voris of Fresno, CA, for the defendants;  J. Vincent of Fresno, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  HABEAS CORPUS:  Laws v. Lamarque, 02-56666 (9th Cir. Dec. 5, 2003).  The USCA reversed the trial court's denial of the defendant's habeas petition as untimely because the defendant had made a good-faith allegation that, if true, would entitle him to equitable tolling due to his mental incompetence during the period when he could have timely filed;  the USCA thus vacated the district court denial of the petition and remanded for further factual development of the defendant's claim that the limitations period should be tolled.  Pregerson, Fernandez, and Berzon (author), Circuit Judges.  C. DeVito of West Hills, CA, for the petitioner;  DAG D. Cook of Sacramento, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  HABEAS CORPUS:  Welch v. Carey, 00-15366 (9th Cir. Dec. 5, 2003).  The USCA affirmed the district court's decision denying the petitioner the benefit of statutory tolling and his petition for relief;  the petitioner had filed a state habeas petition in a California Superior Court raising one ground; he lost and pursued it no further;  four and a half years later, he filed a second state habeas petition, this time in the California Supreme Court and raising different grounds;  the USCA held that as a matter of federal law, the petitioner had no application for post-conviction relief "pending" during the four and a half year gap between his two state habeas petitions.  Schroeder, Pregerson, Kozinski, O'Scannlain, Trott (author), Thomas, Silverman, Wardlaw, Paez, Tallman, and Callahan, Circuit Judges.  AFPD D. Porter of Sacramento, CA, for the petitioner;  DAG J. McLean of Sacramento, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  HABEAS CORPUS / INEFFECTIVE ASSISTANCE:  Nunes v. Mueller, 03-15509 (9th Cir. Dec. 1, 2003).  Due to ineffective assistance of counsel during the plea bargaining process, the USCA remanded this case for entry of an order releasing the defendant unless the state offers him the same terms he would have received under the original plea offer;  dissenting, Judge Graber would reverse the district court's order granting habeas relief.  Reinhardt and Graber (dissenting), Circuit Judges, and Shadur (author), District Judge.  DAG M. Beatus of San Francisco, CA, for the respondent-appellant;  AFD D. Broderick of San Francisco, CA, for the pe-titioner-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  HABEAS CORPUS:  Gherebi. Bush, 03-55785 (9th Cir. Dec. 18, 2003).  The USCA held that the district court erred in concluding, based on Johnson v. Eisentrager, 339 US 763 (1950), that no district court would have jurisdiction over Gherebi's habeas petition;  the USCA also held that the District Court for the Central District of California could exercise jurisdiction in this case because the Secretary of Defense is subject to service of process under California's long-arm statute; finally, the USCA remanded for the Central District to consider whether transferring  the case to a different district court would be appropriate;  dissenting, Judge Graber noted that the majority misread Supreme Court precedent;  moreover, she thought that because the issues here are important and difficult and the Supreme Court has decided to revisit them, the Ninth Circuit should await the Supreme Court's decision.  On the same day this decision was issued, the USCA directed the clerk to hold the mandate pending issuance of a decision in Al Odah v. USA, 321 F.3d 1134 (D.C. Cir. 2003), cert. granted, 2003 WL 22070725, and further order of the Ninth Circuit.  Reinhardt (author) and Graber (dissenting), Circuit Judges, and Shadur, District Judge.  S. Yagman of Venice, CA, for the petitioner;  P. Clement of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  PRISONERS' RIGHTS:  Bruce v. Lyst, 01-17527 (9th Cir. Dec. 10, 2003).  The district court improperly dismissed an inmates retaliation claim on summary judgment;  viewed in the light most favorable to the inmate, there were genuine issues of material fact relating to the prison officials' intent in investigating and ultimately validating him as a member of the Black Guerrilla Family prison gang;  prison officials cannot use a proper and neutral procedure in retaliation for an inmate's exercise of his constitutional rights;  while First Amendment rights are curtailed in prison, they are not lost;  as the inmate's success in his grievances show, there must be avenues for prisoners to redress the wrongs or inadequacies of their state jailers.  Thompson and Trott (author), Circuit Judges, and Weiner, District Judge.  K. Woodruff of San Francisco, CA, for the plaintiff-appellant;  A. Binsacca of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  PRISONERS' RIGHTS:  Jackson v. Carey, 01-17126 (9th Cir. Dec. 24, 2003).  District court erred in dismissing an inmate's complaint for failure to state a claim; the inmate had alleged that prison officials violated his constitutional rights when they allowed his transfer to Corcoran-Security Housing Unit after his successful appeal, which ordered the reissue and rehearing of the rule violation report herein at issue;  the USCA found that the inmate alleged facts pertaining to his transfer which, if true, entitle him to relief.  Pregerson, Beam (author), and Paez, Circuit Judges.  G. Johnson of San Francisco, CA, for the plaintiff-appellant; DAG S. Hill of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  MATERIAL SUPPORT OF FOREIGN TERRORISTS:  Humanitarian Law Project v. U.S. Dept. of Justice, 02-55082 (9th Cir. Dec. 3, 2003).  The USCA held that Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000), cert denied, 532 US 904 (2001), is the law of the case with regard to the legal issues the Ninth Circuit resolved in that case;  moreover, to avoid due process concerns and under the Circuit's long-standing principles of statutory construction, the USCA held that to convict an accused of violating 18 USC Sec. 2339B, the government must prove beyond a reasonable doubt that the accused knew that the organization to which he has provided "material support or resources" has been designated a "foreign terrorist organization" or that he knew of the organization's unlawful activities that caused it to be so designated;  finally, the USCA held, that the terms "personnel" and "training" included in the definition of "material support" are void for vagueness;  Judge Rawlinson dissented from that portion of the majority opinion holding that Sec. 2339B violates the plaintiffs' due process rights;  he noted that although Sec. 2339B prohibits knowingly providing material support or resources to a foreign terrorist organization, the majority has ruled that the plaintiffs' due process rights are violated absent a narrowing interpretation that incorporates a showing of "personal guilt" on the part of the donor;  Judge Rawlinson said he could not agree that the cases cited by the majority in support of its "personal guilt" theory support an application of that theory to the facts of this case, as none of the majority's cases are analogous.  Pregerson (author), Thomas, and Rawlinson (dissenting), 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 decision at www.cc9.uscourts.gov/)