2)  CYBERSQUATTING:  Consorzio Del Prosciutto Di Parma v. Domain Name Clearing Company, LLC,  02-56839 (9th Cir. Oct. 16, 2003).  The plaintiffs produce Parma Ham and have powers under Italian law to supervise and regulate the production and worldwide marketing of ham sold under the Parma ham mark;  the instant dispute arose when the defendant registered the domain name <parmaham.com> and then attempted to sell the name to the plaintiff for $9,000;  the plaintiff brought this action, alleging that the defendant violated the Anticybersquatting Consumer Protection Act by registering and using the domain name <parmaham.com> in bad faith;  the USCA upheld the district court's default judgment for the plaintiff (after the defendant failed to appear) and dismissed the appeal as the defendant failed to move under either Fed. R. Civ. Proc. 55(c) or 60(b) to set aside the entry of default or for relief from judgment before appealing.  Choy, Farris, and Leavy (author), Circuit Judges.  C. Truax pro per;  J. Wallace of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  INTERNET LAW / COMMUNICATIONS LAW:  Brand X Internet Services. v. Federal Communications Commission, 02-70518 (9th Cir. Oct. 6, 2003).  The USCA found that its holding in Mesa Verde Construction Co. v. Northern California District Council of Laborers, 861 F.2d 1124 (9th Cir. 1988) (en banc) (Kozinski, J., dissenting), along with that of the Supreme Court in Neal v. USA, 516 US 284 (1996), requires its adherence to the interpretation of the Communications Act announced in AT&T v. City of Portland, 216 F.3d 871 (9th Cir. 2000), which concluded that cable broadband service was not a "cable service" but instead was part "telecommunications service" and part "information service." Because the FCC's Declaratory Ruling agreed with the USCA's conclusion that cable broadband is not "cable service," but disagreed with its conclusion that it is in part "telecommunication service," the USCA affirmed in part, vacated in part, and remanded for further proceedings.  Judge O'Scannlain concurred in the conclusion that, in light of its holding in Mesa Verde, the USCA is bound by its own interpretation of the Telecommunications Act in Portland and must vacate the FCC's Declaratory Ruling;  however, he wrote separately to note that the USCA adherence to stare decisis, even in the face of a subsequent agency interpretation contrary to the Portland decision, produced a result "strikingly inconsistent" with the underlying principles of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  Judge Thomas concurred in the conclusion that Portland controls the statutory interpretation question and requires a remand;  he wrote separate to underscore his conclusion that Portland was correctly decided;  considered in its entirety, the 1996 Telecommunications Act compels the conclusion that cable modem contains a telecommunications service component;  in his view, the statutory definitions, combined with the overall regulatory and legislative context, compel the result that cable modem service includes a telecommunications service component.  Cudahy, O'Scannlain (concurring), and Thomas (concurring), Circuit Judges.  Per Curiam.  H. Reiter of Washington, DC, for the petitioner Brand X Internet; J. Butler of Washington, DC, for the petitioner EarthLink;  E. LeVine of San Francisco, CA, for the petitioner State of California;  J. Rogovin of Washington, DC, for the respondent FCC.  (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  BANKRUPTCY:  In re Umali, 02-15010 (9th Cir. Oct. 3, 2003).  An Arizona bankruptcy petition filed in violation of a court-imposed 180-day bar was properly excluded from the automatic stay provisions of the Bankruptcy Code 11 USC Sec. 362.  Ferguson, McKeown, and Rawlinson (author), Circuit Judges.  A. NewDelman of Phoenix, AZ, for the petitioner;  P. Harter of Phoenix, AZ, for the respondents.   (Download the full text of this decision at www.cc9.uscourts.gov/)

 5)  BANKING LAW / CONTRACTS:  Geraci v. Homestreet Bank, 02-35426 (9th Cir. Oct. 20, 2003).  The plaintiffs maintained that origination fees paid to their mortgage brokers plus the yield spread premiums exceeded the statutory 1% cap on fees paid by the borrowers;  the USCA held that the district court did not error in dismissing the plaintiffs' breach of contract, Real Estate Settlement Procedures Act (RESPA), and unjust enrichment claims;  concurring, Judge Berzon repeated her reason for concurring in Bjustrom v. Trust One Mortgage Corp., 322 F.3d 1201 (9th Cir. 2003), that yield spread premiums and similar devices violate the anti-kickback provisions of RESPA because they are payments from the lender to the broker and base the amount of the payment solely on the value of the loan to the lender.  Hawkins and Berzon (concurring), Circuit Judges, and Quackenbush (author), District Judge.  H. Robinovitch of Scottsdale, AZ, for the plaintiffs-appellants;  M Agoglia of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  CONTRACTS:  Kelton Arms Condominium Owners Association, Inc. v. Homestead Insurance Company, 02-55724 (9th Cir. Oct. 14, 2003).  The USCA vacated the district court's remand order in this breach of contract action because the federal removal statute, 28 USC Sec. 1447(c), does not allow the district court to remand a case sua sponte for a non-jurisdictional defect in procedure;  the USCA further held that because the district court lacked authority to remand sua sponte under Sec. 1447(c), Sec. 1447(d) interposes no jurisdictional barrier to review.  B. Fletcher and Silverman, Circuit Judges, and Martone (author), District Judge.  H. Wollitz of Los Angeles, CA, for the defendant-appellant;  M. Shorr of Pasadena, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  CONTRACTS / TORTS:  Arboireau v. Adidas-Salomon Ag, 02-35398 (9th Cir. Oct. 30, 2003).  In a suit for breach of contract and intentional misrepresentation arising out of a failed employment relationship, the USCA reversed the summary judgment for the defendants as a rational jury might find that each element of the intentional misrepresentation theory had been proved;  the plaintiffs are entitled to present to a jury their claim that the defendants intentionally misrepresented the "locational stability" of the employment position and misled them to their detriment.  Aldisert, Graber, and Gould (author), Circuit Judges.  J. Folawn of Portland, OR, for the plaintiffs;  T. Volpert of Portland, OR, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  INSURANCE / JURISDICTION:  Allstate Insurance Co. v. Hughes,  02-35582 (9th Cir. Oct. 8, 2003).  An insurance carrier was not the real-party-in-interest in a fire insurance subrogation action arising out of the destruction by fire of a Seattle-area residence and thus not allowed to bring this action in federal court due to the mandate of Fed. R. Civ. Proc. 17(a);  the action could only be brought in the name of the real-party-in-interest, which in Washington is the insured;  however, bringing the action in the name of the insured, a citizen of Washington, would result in the absence of diversity of citizenship and thus deprive the district court of subject matter jurisdiction;  here, given the absence of diversity jurisdiction, the district court should have dismissed the action.  Hawkins and Berzon, Circuit Judges, and Quackenbush (author), District Judge.  M. O'Loughlin of Seattle, WA, for the plaintiffs;  M. Fahrenkrug of Seattle, WA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  ENVIRONMENTAL LAW / WHISTLEBLOWERS / JURISDICTION:  Ruud v. U.S. Dept. of Labor, 02-71742 (9th Cir. Oct. 22, 2003).  The USCA declined to review the Department of Labor Administrative Review Board's approval of a settlement of a whistleblower retaliation complaint pursuant to the Clean Air Act and CERCLA;  when an agency issues a decision that has two or more distinct bases of authority providing separate paths of judicial review, the appellate court has jurisdiction to review the entire proceeding.  Thompson, Hawkins, and Berzon (author), Circuit Judges.  T. Guyer of Seattle, WA, for the petitioner;  J. Brenner of Washington, DC, for the respondent;  S. Dunwoody of Seattle, WA, for the intervenor-respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  ENVIRONMENTAL LAW:  County of Okanogan v. National Marine Fisheries Service, 02-35512 (9th Cir. Oct. 29, 2003).  The USCA upheld the district court's grant of summary judgment in favor of the defendant where the district court properly found that it was within the Forest Service's authority to restrict the use of certain ditches to maintain instream flow levels for the protection of fish under the Endangered Species Act.  Reavley (author), Tashima, and Paez, Circuit Judges.  R. Brooks of Bellevue, WA, for the plaintiffs;  A. Merger of Washington, DC, for the defendants;  J. Arum of Seattle, WA, for the defendants-intervenors-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  ENVIRONMENTAL LAW:  Friends of Yosemite Valley v. Norton, 02-16037 (9th Cir. Oct. 27, 2003).  The USCA reversed a district court's remedy for deficiencies in the Merced Wild and Scenic River Comprehensive Management Plan ("CMP") for the Merced River in Yosemite Valley;  the CMP inadequately addressed user capacities by failing to set the maximum quantity of use for the river and too narrowly defined river area boundaries;  however, the USCA upheld the district court's determination that the CMP's date and information satisfied the requirements of both 16 USC Sec. 1271 et seq. and National Environmental Policy Act.  Goodwin, Tashima, and Wardlaw (author), Circuit Judges.  J. Olson of Oakland, CA, for the appellants;  AAG T. Sansonetti of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ENVIRONMENTAL LAW:  Sierra Club v. EPA, 01-71902 (9th Cir. Oct. 9, 2003).  Granting the Sierra Club's petition for review of a decision of a decision of the U.S. Environmental Protection Agency, the USCA rejected the EPA's holding that a Southern California county would have achieved the 24-hour air quality standards required by the Clean Air Act but for the negative effects of transborder emissions from Mexico;  based on the data in the record, Mexican transport could not have caused the exceedences at issue.  Canby, O'Scannlain (author), and W. Fletcher, Circuit Judges.  D. Baron of Washington, DC, for the petitioner; T. Pacheco of San Francisco, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  LABOR LAW:  Chao v. A-One Medical Services, 02-35158 (9th Cir. Oct. 6, 2003).  In an action to recover unpaid overtime wages, the district court properly identified two companies as a single enterprise for purposes of the Fair Labor Standards Act's jurisdictional requirement;  the companies were joint employers which had to aggregate the work done by their employees.  Cudahy (author), O'Scannlain, and Gould, Circuit Judges.  E. Pearson of Covington, KY, for the defendants;  L. Zuckerman of Washington, DC, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  LABOR LAW:  Glendale Associates v. NLRB, 01-71566 (9th Cir. Oct. 30, 2003).  The USCA enforced an NLRB's cease and desist order where the petitioners violated Sec. 8(a)(1) of the National Labor Relations Act by prohibiting union representatives from naming a mall tenant in handbills they distributed in the petitioner's shopping mall;  the petitioners acted without a state property interest in promulgating and enforcing a rule restricting certain groups from distributing literature that named a particular tenant in the mall;  the petitioners' rule is an impermissible content-based restrictions on speech under the California Constitution.  Pregerson (author), Noonan, and Tashima, Circuit Judges.  T. Leanse of Los Angeles, CA, for the petitioners-respondents;  R. Englehart of Washington, DC, for the respondent-petitioner.  (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  LABOR LAW:  Sergeant v. Inlandboatmen's Union of the Pacific, 02-15957 (9th Cir. Oct. 17, 2003).  In a case alleging that a collective bargaining agreement violated Sec. 101(a)(1) of the Labor Management Reporting and Disclosure Act, the USCA affirmed a judgment for the defendant as the union's determination (that the job interests of voluntary casuals were insufficient to warrant their being afforded a vote on labor-management contracts) was not unreasonable.  Reinhardt (author), Siler, and Hawkins, Circuit Judges.  J. Sergeant pro se;  D. Iglitzin of Seattle, WA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  AGE DISCRIMINATION:  Bankston v. White, 02-15547 (9th Cir. Oct. 1, 2003).  Plaintiff's voluntary dismissal of his Merit Systems Protection Board appeal did not preclude district court's jurisdiction over his Age Discrimination in Employment Act ("ADEA") suit;  the ADEA itself does not require the plaintiff to exhaust administrative remedies before filing suit, nor does the Civil Service Reform Act explicitly limit the jurisdiction created by the ADEA;  moreover, the policy concern for administrative efficiency expressed in earlier cases is attenuated or even eliminated here as the plaintiff has no administrative remedy currently pending or available in the future.  Hug, Gibson (author), and Fisher, Circuit Judges.  J. Dickerson of Reno, NV, for the plaintiff;  AUSA G. Addington of Reno, NV, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  EMPLOYMENT DISCRIMINATION:  Liu v. Amway Corp., 01-57013 (9th Cir. Oct. 30, 2003).  Finding triable issues of material fact in a case alleging sexual discrimination and retaliation-related claims, the USCA reversed the district court's summary judgment for the defendant with respect to plaintiff's Family and Medical Leave Act ("FMLA"), California Family Rights Act, and violation of California public policy claims;  the USCA affirmed the district court's grant of summary judgment on the plaintiff's breach of her implied-in-fact contract claim, breach of the covenant of good faith and fair dealing claim, and Title VII and California Fair Employment and Housing Act ("FEHA") retaliation and discrimination claims;  Judge Pregerson dissented from Part IID of the majority's opinion on the plaintiff's Title VII and FEHA retaliation and discrimination claims because, as he read the record and briefs, there was no doubt that she appealed the district court's ruling dismissing those claims;  Judge Rymer dissented from Parts IIA and IIB of the majority's opinion;  she agreed with the district court that the defendant could have terminated the plaintiff even if she had been on leave designated as FMLA leave and regardless of whether she had been on leave through December;  for the same reason, Judge Rymer disagreed that reversal was required even if the district court should not have treated the plaintiff's remaining claims as interrelated discrimination claims based on retaliation—and so subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 US 792 (1973)—but should instead have considered whether the defendant used the taking of FMLA leave as a "negative factor" in its decision to terminate the plaintiff under the analysis prescribed by Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001).  Pregerson (author as to Parts I, IIA, IIC, and III; dissenting as to Part IID), Rymer (author of Part IID; concurring as to Parts I, IIC, and III; dissenting as to Parts IIA and IIB), and McKeown, Circuit Judges.  R. Keramati of San Diego, CA, for the plaintiff;  M. Aarvig of San Diego, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  EMPLOYMENT DISCRIMINATION:  Holz v. Nenana City Public School District, 02-35179 (9th Cir. Oct. 30, 2003). In an employment discrimination action brought by an Alaskan Native claiming that the defendant school district violated state and federal civil rights laws by failing to hire her for various positions, the USCA reversed the district court's summary judgment for the defendant as the defendant is not immune under the Eleventh Amendment because it is not an arm of the State and the State is not legally required to satisfy any judgment against it.  Pregerson (author), Canby, and McKeown, Circuit Judges.  M. Walleri of Fairbanks, AK, for the plaintiff;  H. Trickey of Anchorage, AK, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  WRONGFUL TERMINATION / DAMAGES: Freund v. Nycomed Amersham, 01-56491 (9th Cir. Oct. 21, 2003).  In a wrongful termination action where the plaintiff had been terminated for making bona fide safety complaint, thereby committing the California tort of wrongful termination in violation of public policy, the USCA upheld a district court's judgment for compensatory damages and reversed and remanded for a new trial its denial of punitive damages;  the plaintiff's claims fell within the ambit of Sec. 6310 of the California Labor Code, and wrongful termination actions under Sec. 6310 are not limited to statutorily-identified remedies;  dissenting, Judge Gould thought the district court correctly struck the punitive damages on a post-verdict motion due to of lack of evidence of malice;  he thus thought the majority erred in reinstating these damages even though subject to the district court's decision on remand regarding a new trial on punitive damages.  Canby (author), Gould (dissenting), and Berzon, Circuit Judges.  T. Peterson of San Francisco, CA, for the defendants;  J. Adler of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  REHABILITATION ACT:  Leong v. Potter, 02-16856 (9th Cir. Oct. 29, 2003).  The USCA affirmed the dismissal of a Rehabilitation Act claim for lack of subject matter jurisdiction and upheld a grant of summary judgment to the defendant on Title VII claims where the plaintiff failed to exhaust administrative remedies with the EEOC for his disability claim before pursuing his Rehabilitation Act claim;  he also failed to establish a prima facie case of discrimination under Title VII because he could not show that similarly situated employees were treated more favorably than he was treated;  moreover, the defendant offered a legitimate, nondiscriminatory reason for the termination.  Hug, B. Fletcher (author), and Tashima, Circuit Judges.  R. Rowen of San Francisco, CA, for the plaintiff-appellant;  A. Simmons of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  REHABILITATION ACT:  Pugliese v. Dillenberg, 01-16544 (9th Cir. Oct. 7, 2003).  The USCA held that the State of Arizona validly waived its sovereign immunity under the Eleventh Amendment to claims brought pursuant to Sec. 504 of the Rehabilitation Act of 1973 when it accepted federal Rehabilitation Act funds;  concurring, Judge Kleinfeld said he continues to adhere to the view he took in dissenting from the Circuit's orders denying rehearing en banc in Douglas v. California Department of Youth Authority, 285 F.3d 1226 (2002);  Judge Kleinfeld thought that a state could not knowingly and voluntarily waive a right that Congress has said it does not have.  Kleinfeld (concurring), Wardlaw, and W. Fletcher, Circuit Judges. Per Curiam. T. Kirtley of Phoenix, AZ, for the plaintiff; L. Hudson of Phoenix, AZ, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  CONSTITUTIONAL LAW:  Soranno v. Clark County, 02-16199 (9th Cir. Oct. 3, 2003).  An action, seeking declaratory and injunctive relief that would require Clark County, Nevada to issue the plaintiffs permits to place news-racks on certain sidewalks on the Las Vegas Strip, was mooted by the County's amended ordinance under which the County expressly no longer requires permits for news-racks on sidewalks owned by maintained by private entities.  Schroeder (author), D.W. Nelson, and W. Fletcher, Circuit Judges.  D. Gentile of Las Vegas, NV, for the plaintiffs-appellants;  DDA M. Foley of Las Vegas, NV, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  CONSTITUTIONAL LAW:  Foster v. Carson, 03-35457 (9th Cir. Oct. 17, 2003).  The USCA upheld the dismissal, as moot, of consolidated cases challenging the constitutionality of Oregon's "Budget Reduction Plan" ("BRP") brought by plaintiffs who had their criminal proceedings suspended and were not afforded counsel;  the BRP has since expired and all indigent defendants (here included with other plaintiffs) are again being afforded counsel and renewed criminal proceedings;  because the USCA could not undo the alleged harm to the plaintiffs and could not provide relief for that harm, if more than merely alleged, it dismissed the cases as moot.  Hall, Graber (author), and Gould, Circuit Judges.  E. Rosenthal of Portland, OR, for the plaintiffs-appellants;  AAG J. Metcalf of Salem, OR, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  ELECTION LAW:  Weber v. Shelley, 02-56726 (9th Cir. Oct. 28, 2003).  The USCA upheld summary judgment for the defendant in an action challenging the use of a computerized touch-screen voting system where the plaintiff claimed that the lack of a voter-verified paper trail violated her rights to equal protection and due process;  the court found that at most she had a hypothetical concern about the ability to audit and verify election results and that the impact on her right to vote was minimal;  the challenged system was adopted by Riverside County, California to replace traditional paper ballots after the system had been certified for accuracy, reliability, and feasibility by the Secretary of State of California.  Rymer (author) and Tallman, Circuit Judges, and R. Leighton, District Judge.  S. Weber in propria persona;  D. Woods of Sacramento, CA, for the defendant-appellee;  R. Pepper of Riverside, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  ELECTION LAW:  Cogswell v. City of Seattle, 01-36162 (9th Cir. Oct. 27, 2003).  The USCA reversed the district court's summary judgment for the plaintiff where Seattle Municipal Code 2.14.060(C), which prohibits references to political opponents in candidate statements included in Seattle voters' pamphlets, applied to a limited public forum, the restriction was not viewpoint discriminatory, and the restriction was reasonable, and did not violate the Constitution.  Reavley, Tashima (author), and Paez, Circuit Judges.  S. Cohen of Seattle, WA, for the defendants-appellants;  W. Rava of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  MEDICARE:  Kaiser v. Blue Cross of California, 02-35020 (9th Cir. Oct. 28, 2003).  The USCA upheld the dismissal of claims brought by the owner/operator of a Medicare provider for lack of subject matter jurisdiction where 1) the claims arose under Medicare, 2) the plaintiff failed to exhaust administrative remedies, 3) the plaintiff did not meet the conditions for waiver of exhaustion, and 4) there was no valid argument for transferring the matter to the Court of Federal Claims.  Cudahy (author), O'Scannlain, and Gould, Circuit Judges.  D. Lojek of Boise, ID, for the plaintiffs-appellants;  T. Moss of Boise, ID, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  CIVIL PROCEDURE:  Way v. County of Ventura, 02-56457 (9th Cir. Oct. 31, 2003).  The USCA dismissed for lack of jurisdiction an appeal of an order denying the defendants' motion for summary judgment and granting in part the plaintiff's motion for partial summary judgment where at the end of the order the court invited the defendants to "file motions addressing whether they are entitled to qualified immunity summary," thereby clearly indicating that its order is not its final act in the matter.  Wallace (author), Rymer, and Tallman, Circuit Judges.  A. Wisotsky of Oxnard, CA, for the defendants;  E. Bell of Ventura, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  IMMIGRATION:  Martinez-Vazquez v. INS, 03-35026 (9th Cir. Oct. 1, 2003).  Former 8 USC Sec. 1226(e), a provision Congress largely repealed in the Immigration Reform and Immigrant Responsibility Act of 1996, did not authorize the INS to continue detaining an inadmissible alien;  Sec. 1231(a)(6), the statute that now authorizes the INS to detain aliens for a reasonable time, is the applicable statute, not former Sec. 1226(e);  the USCA thus upheld the grant of the alien's petition for writ of habeas corpus.  Alarcon, Gould (author), and Clifton, Circuit Judges.  FPD T. Hillier of Seattle, WA, for the petitioner;  J. Andre of Washington, DC, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  IMMIGRATION:  Ordonez v. INS, 01-71752 (9th Cir. Oct. 2, 2003).  The USCA granted a petition for review where the alien did not receive adequate notice of the effects of failing to voluntarily depart, and the BIA erred in dismissing his evidence of extreme hardship;  the Immigration Judge's oral notice to the alien of the consequences of failing to voluntarily depart was insufficient as a matter of law.  Tashima (author), Berzon, and Clifton, Circuit Judges.  A. Lawrence of San Francisco, CA, for the petitioner;  P. Fiorino of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  IMMIGRATION:  Lopez-Urenda v. Ashcroft, 02-70455 (9th Cir. Oct. 3, 2003).  The filing of an asylum application prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act on Sept. 30, 1996, rather than during the six-month window between the Act's passage and effective date, did not take the case beyond the reach of Vasquez-Zavala v. Ashcroft, 324 F.3d 1105 (2003);  the petitioners did not strike a bargain with the government that would support a successful quid pro quo argument; and, the USCA rejected the petitioner's claim that his placement in removal proceedings was so fundamentally unfair as to amount to a denial of due process.  Hug, Gibson, and Fisher (author), Circuit Judges.  M. Van Der Hout of San Francisco, CA, for the petitioner;  A Mai of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  IMMIGRATION:  Rosales-Rosales v. Ashcroft, 02-71349 (9th Cir. Oct. 17, 2003).  The petitioner challenged his final order of deportation which found him deportable for having committed an "aggravated felony" (making terrorist threats in violation of California Penal Code Sec. 422, for which he was sentenced to two years of imprisonment);  the BIA denied his application for Sec. 212(c) relief;  the USCA dismissed the appeal for lack jurisdiction pursuant to Sec. 309(c)(4)(G) of the Immigrant Responsibility Act of 1996 and thus did not reach the petitioner's Sec. 212 argument.  Reinhardt and Graber, Circuit Judges, and Rhoades (author), District Judge.  J. Bennett of El Cerrito, CA, for the petitioner;  A. Payne of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  IMMIGRATION:  Lara-Chacon v. Ashcroft, 02-70317 (9th Cir. Oct. 10, 2003).  The BIA dismissed the petitioner's appeal of an Immigration Judge's order finding the petitioner removable for having been convicted of an "aggravated felony" (money laundering in violation of Ariz. Rev. State. Secs. 13-1003, 13-2317(A)(1) and (C) for which he was sentenced to three and one-half years imprisonment), and for having been convicted of illicit trafficking in a controlled substance;  the USCA granted the petition, vacated the order and remanded as the petitioner's conviction constituted neither an aggravated felony under 8 USC Sec. 1101(a)(43)(B) nor a violation of a statute relating to controlled substances under 8 USC Sec. 1227(a)(2)(B)(i).  Noonan, Tashima (author), and Wardlaw, Circuit Judges.  B. Polis of Tucson, AZ, for the petitioner;  P. Sandhu of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  IMMIGRATION:  Hernandez v. Ashcroft, 02-70988 (9th Cir. Oct. 7, 2003).  While living in Mexico, the petitioner experienced life-threatening violence at the hands of her husband, a legal permanent U.S. resident;  she fled to the U.S. where she is now living without legal status;  she applied for suspension of deportation under a provision of the Violence Against Women Act of 1994 ("VAWA") intended to protect immigrants who have suffered domestic violence;  interpreting the phrase "extreme cruelty" as a matter of first impression, the USCA held that although the petitioner was not battered in the U.S., the interaction that took place in the U.S. (tracking down the victim, showing contrition, and then luring her to Mexico) presented a well-recognized state within the cycle of violence, one both psychologically and practically crucial to maintaining the batterer's control;  the USCA held that an abuser's behavior during a "contrite" phase of domestic violence constituted "extreme cruelty." The USCA concluded that the petitioner suffered extreme cruelty in the U.S. and that the BIA erred in denying her application for suspension of deportation under VAWA;  it also erred in denying her an adjustment of status.  Reavley, Tashima, and Paez (author), Circuit Judges.  K. Frank of Seattle, WA, for the petitioner;  J. Cunningham of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION:  USA v. Ubaldo-Figueroa, 01-50376 (9th Cir. Oct. 17, 2003).  In his challenge to his deportation order, the defendant asserted that the retroactive application of Sec. 321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which broadened the definition of deportable offenses classified as "aggravated felonies," violated his due process rights under the Fifth Amendment. Congress expressly made the broadened definition retroactive.  He also challenged the retroactive reach of IIRIRA Sec. 304, which eliminated the discretionary relief from deportation available under former Immigration and Nationality Act Sec. 212(c).  Congress was silent whether the elimination of Sec. 212(c) relief applied retroactively to people who were convicted of crimes before 1996.  The USCA held that because the defendant could have pursued his claim that the retroactive application of IIRIRA Sec. 321 is unconstitutional and because, alternatively, he could have sought Sec. 212(c) relief had his underlying removal hearing been constitutionally adequate, the removal order could not stand as a basis for conviction;  the USCA thus affirmed the district court's decision that the defendant suffered a due process violation in his underlying removal proceedings and reversed the ruling that he was not prejudiced by his constitutionally defective removal proceedings.  Pregerson (author), Reinhardt, and Archer, Circuit Judges.  S. Hubachek of San Diego, CA, for the defendant;  AUSA S. Dougherty of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  CIVIL RIGHTS / QUALIFIED IMMUNITY:  Cunningham v. City of Wenatchee, 02-35792 (9th Cir. Oct. 3, 2003).  Based on an analysis under Johnson v. Jones, 515 US 305 (1995), and Behrens v. Pelletier, 516 US 299 (1996), the USCA held that a police officer was entitled to qualified immunity from a claim that he violated a plaintiff's civil rights during an investigation based on allegations that the plaintiff had sexually abused his daughters;  the officer's investigation of the plaintiff's alleged sex crimes did not amount to a constitutional violation.  Lay (author), Ferguson, and Gould, Circuit Judges.  P. McMahon of Wenatchee, WA, for the defendant;  M. Pierson of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  QUALIFIED IMMUNITY:  Gausvic v. Perez, 02-35902 (9th Cir. Oct. 3, 2003).  Incorporating its analysis of a companion case, Cunningham v. Perez (#35 above), the USCA held that a police officer was entitled to qualified immunity on a claim he violated a 42 USC Sec. 1983 plaintiff's civil rights during a sex abuse investigation, as no constitutional violation had been shown.  Lay (author), Ferguson, and Gould, Circuit Judges.  P. McMahon of Wenatchee, WA, for the defendant;  T. Firkins of Auburn, WA, for the plaintiff.   (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  EVIDENCE: Mahone v. Lehman, 02-35622 (9th Cir. Oct. 30, 2003).  In a 42 USC Sec. 1983 action alleging Eighth Amendment violations, the USCA reversed the district court's judgment in favor of defendants where the admission of hearsay testimony was prejudicial and the defense counsel misstated the standard for deliberate indifference;  dissenting, Judge Clifton concurred in the majority's conclusion that the testimony in question was hearsay and should have been excluded from the evidence at trial;  however, he parted company with the majority on the issue of actual prejudice;  his review of the record suggested that it was highly unlikely that the evidentiary error had any impact on the jury's verdict.  Alarcon (author), Gould, and Clifton (dissenting), Circuit Judges.  B. Wizner of Los Angeles, CA, for the plaintiff-appellant;  M. Mitchell of Olympia, WA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  RIGHT TO COUNSEL:  Cordova v. Baca, 02-55713 (9th Cir. Oct. 6, 2003).  If a criminal defendant is put on trial without counsel following a defective waiver of his right to counsel, he is entitled to an automatic reversal of conviction;  the state Appellate Division's effort to analyze the evidence and determine what would have happened, had the defendant been represented by counsel, is precisely the kind of inquiry the U.S. Supreme Court has said cannot be made;  automatic reversal of the conviction is the only lawful remedy.  Hall, Kozinski (author), Rawlinson, Circuit Judges.  M. Monforton of Los Angeles, CA, for the respondents-appellants;  R. Smith of Los Angeles, CA, for the petitioner-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  GRAND JURY TESTIMONY / SENTENCING:  USA v. Brown, 01-30158 (9th Cir. Oct. 28, 2003).  The USCA upheld a conviction and sentence for possessing with the intent to distribute crack cocaine where there was no evidence that a witness's misrepresentation to the grand jury was intentional or that the prosecutor knew of the statement's falsity;  the district court erred in concluding that it was precluded as a matter of law from considering an additional 34 grams of crack cocaine in determining the defendant's sentencing range under the Guidelines believing that to do so would violate Apprendi.  Pregerson, Canby (author), and McKeown, Circuit Judges.  AFD S. Tatter of Anchorage, AK, for the defendant;  AUSA S. Collins for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  EVIDENCE:  USA v. Diaz-Cardenas, 02-50415 (9th Cir. Oct. 30, 2003).  Over the defendants objection that there was insufficient evidence to support the knowledge element of the crimes charged, the USCA affirmed the defendant's convictions for importing cocaine and methamphetamine and for possessing with intent to distribute the same;  it noted that a jury can infer knowledge when the driver is the sole occupant of the vehicle found to be transporting the drugs and can infer knowledge from possession of a large quantity of drugs;  the evidence against the defendant here met both criteria;  sufficient evidence thus existed to support the defendant's convictions.  Beezer (author) and Fisher, Circuit Judges, and England, District Judge.  R. Rome of Van Nuys, CA, for the defendant;  AUSA R. Haines of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  SEARCH & SEIZURE:  USA v. Soriano, 01-50461 (9th Cir. Oct. 15, 2003). The USCA upheld convictions and sentence for possession of stolen mail and receipt of a stolen US Treasury check where the defendant's girlfriend's consent to a search motel room was voluntary; a check found in the hotel room was properly attributed to the computation of the amount of loss;  dissenting, Judge Berzon thought that, faced with conflicting representations by two law enforcement officers, the girlfriend did the only thing a reasonable parent could have done under the circumstances:  She consented to a search for fear that the representation of one of the two officers that her young children would be taken from her if she did not consent;  the trial court recognized that when signing the consent form the girlfriend did have in mind to some extent her fear that her children would be taken from her if she refused to accede to the officer's demand; yet, the trial court concluded that the girlfriend's consent was voluntary;  Judge Berzon thought that in so concluding the trial court committed clear error and the majority erred in deciding otherwise.  Tashima, Berzon (dissenting), and Clifton (author), Circuit Judges.  DFPD J. Rutherford of Los Angeles, CA, for the defendant-appellant;  AUSA A. Kamenstein of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  JURY INSTRUCTIONS:  USA v. Beasley, 02-10395 (9th Cir. Oct. 6, 2003).  The district court properly instructed the jury that the defendant had the burden of proving by a preponderance of the evidence his justification defense to the charge of being a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1).  Hall, O'Scannlain, and Leavy (author), Circuit Judges.  S. Halbert of San Francisco, CA, for the defendant-appellant;  C. Steskal of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  SENTENCING:  USA v. Mendoza-Morales, 02-10659 (9th Cir. Oct. 21, 2003).  In computing the defendant's criminal history, the district court construed a California "jail-as-a-condition-of-probation" sentence as a "sentence of imprisonment," notwithstanding that California law deems them to be rehabilitative, rather than punitive;  the USCA held that the district court did not err and that for purposes of assigning criminal history points under Sentencing Guideline Sec. 4A1.1, state judicial characterizations of the purpose or nature of a sentence are irrelevant in determining whether the sentence was a sentence of imprisonment.  O'Scannlain and Tashima, Circuit Judges, and Matz (author), District Judge.  J. Carr of Las Vegas, NV, for the defendant-appellant;  R. Bork of Las Vegas, NV, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  SENTENCING / JUVENILES: USA v. Juvenile, 02-30253 (9th Cir. Oct. 23, 2003).  The USCA reversed an "until 21-years old" sentence imposed on a 14-year old first-time sex offender by the district court as a result of his guilty plea delinquency adjudication as the sentence was both arbitrary and in direct contravention of the rehabilitative purposes of the Federal Juvenile Delinquency Act;  under the district court's sentence, the juvenile would spend over one-third of his life and all of his adolescence and early adulthood in institutions for delinquent and troubled youth despite the fact that he had no prior offenses or juvenile record, had severely suffered as a result of abuse himself, and had made noticeable progress in a less restrictive treatment environment prior to sentencing and clearly took responsibility for his conduct through is plea as well as his statement in court;  concurring, Judge Lay said he strongly endorsed the majority's opinion and noted that to sentence a young man to a long prison term as did the district court here is to provide the catalyst for dehumanization, turning juvenile offenders into hardened criminals, away from youthful pursuits and toward a life of crime;  dissenting in part, Judge Gould agreed with the majority that the juvenile's detention is reviewed for abuse of discretion but disagreed with the majority's application of that standard; he thought that resentencing is necessary only because the record does not adequately show justification for confinement of the juvenile in South Dakota or New Mexico, so far from the juvenile's home.  Lay (concurring), Ferguson (author), and Gould (dissenting in part), Circuit Judges.  AFPD D. Ness of Great Fall, MT, for the defendant-appellant;  AUSA M. Hurd of Billings, MT, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  SENTENCING:  USA v. Hurt, 02-30297 (9th Cir. Oct. 8, 2003).  The district court was not required to impose the maximum statutory penalty of 24 months' incarceration with no supervised release although both parties sought this penalty;  the district court also did not abuse its discretion by sentencing the defendant to the additional term of 24 months of supervised release.  Aldisert, Graber, and Gould (author), Circuit Judges.  AFPD N. Bergeson of Portland, OR, for the defendant;  AUSA M. Mosman of Portland, OR, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  SENTENCING:  USA v. Ramirez, 02-50018 (9th Cir. Oct. 24, 2003).  The USCA upheld a "safety-valve" departure, under Sentencing Guidelines Sec. 5C1.2 (2000) where temporary detentions ordered by the California Youth Authority Youth Offender Parole Board neither resulted from "adjudications of guilt" beyond a reasonable doubt nor constituted returns to the original term of imprisonment, such that they could be treated as constructive revocations of parole for the purpose of calculating criminal history points under the Guidelines.  Ferguson (author), Hall (dissenting in part), and Berzon, Circuit Judges.  AUSA J. Heinz of Los Angeles, CA, for the plaintiff-appellant;  C.R. McReynolds of Pasadena, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  HABEAS CORPUS:  Hatton v. Bonner, 02-15586 (9th Cir. Oct. 8, 2003).  A habeas petitioner failed to show that California's sex-offender registration statute, Cal. Penal Code Sec. 290, is so punitive in purpose or effect as to negate the state's intention to deem it civil in nature;  the petitioner's claim that Sec. 290, as applied to him, violated the Ex Post Facto Clause failed.  Graber (author), Wardlaw, and Bybee, Circuit Judges.  M. Rothschild of Sacramento, CA, for the petitioner;  DAG J. Neeley of Sacramento, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  HABEAS CORPUS:  Van Lynn v. Farmon, 03-15221 (9th Cir. Oct. 17, 2003).  The USCA affirmed the district court's grant of a habeas petition where the state court had applied a standard for assessing defendant's competency to represent herself that had been rejected in Godinez v. Moran, 509 US 389 (1993);  the state court's adjudication of the claim thus resulted in a decision contrary to clearly established law;  Judge Graber concurred because the state court expressly reasoned to its decision in a manner that contradicted express Supreme Court reasoning on the same legal issue and, in this way, its decision was "contrary to" established Supreme Court case law;  however, she wrote separately to note that a denial on timeliness grounds of a motion under Faretta v. California, 422 U.S. 806 (1975), made in the third week of a four-week trial would neither have been contrary to, nor have involved an unreasonable application of, clearly established Supreme Court case law;  applying Supreme Court precedent, the Ninth Circuit, she noted, has held that there is no mid-trial Faretta right.  Reinhardt and Graber (concurring), Circuit Judges, and Rhoades (author), District Judge.  DAG P. Whalen of Sacramento, CA, for the respondent;  M. Alger of Fresno, CA, for the petitioner.  (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  HABEAS CORPUS:  USA v. Rodrigues, 02-17311 (9th Cir. Oct. 27, 2003).  The USCA upheld the denial of the petitioner's writ of habeas corpus on Sixth Amendment grounds and his request for an evidentiary hearing to examine alleged conflicts of interest on the part of defense counsel, concluding that the petitioner had alleged no specific facts that would entitle him to relief under the "actual conflict" standard articulated in Cuyler v. Sullivan, 446 U.S. 335 (1980).  Wallace, Hall (author), and O'Scannlain, Circuit Judges.  G. Uelmen of Santa Clara, CA, for the defendant-appellant;  AUSA R. Harris of San Francisco, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  HABEAS CORPUS:  Lord v. Lambert, 02-35124 (9th Cir. Oct. 27, 2003).  The USCA affirmed the denial of a petition for a writ of habeas corpus where, even if a witness's trial testimony was the product of a violation of the interception of a cordless telephone conversation in violation of Title III of the Omnibus Crime Control and Safe Streets Act, the petitioner's habeas claim failed because the admission of that testimony did not deprive the petitioner of due process or result in a miscarriage of justice.  Thompson (author), Hawkins, and Berzon, Circuit Judges.  R. Gombiner of Seattle, WA, for the petitioner;  G. Rosen of Olympia, WA, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  HABEAS CORPUS:  Payton v. Woodford, 00-99000 (9th Cir. Oct. 20, 2003).  Sitting en banc to hear an action remanded from the U.S. Supreme Court, the USCA affirmed the grant of a habeas petition where the California Supreme Court incorrectly applied U.S. Supreme Court precedent, resulting in a reasonable likelihood that the jury did not consider and give effect to the post-crime mitigating evidence of a capital crime defendant's religious conversion and good behavior in prison;  dissenting, Judge Tallman, joined by Judges Kozinski, Trott, Fernandez, and T.G. Nelson, wrote that the majority, six Circuit judges, has just announced that the legal conclusion reached by seven of their colleagues (plus five justices of the California Supreme Court) was not only wrong, but objectively unreasonable in light of clearly established federal law;  according to these six judges, the twelve other judges were so off-the-mark in their analyses of the U.S. Supreme Court precedent that their shared legal conclusion (that the petitioner's constitutional rights were not violated by the "unadorned" factor (k) instruction) must be deemed objectively unreasonable;  twelve jurors listened to the petitioner's evidence in mitigation and determined it was insufficient to avoid a death sentence;  twelve judges examined the penalty phase instructions and found them to be constitutionally adequate;  six judges disagree;  "Objectively, who is being unreasonable?" Judge Tallman asked.  Schroeder, Pregerson, Kozinski, Trott, Fernandez, T.G. Nelson, Tashima, W. Fletcher, Paez (author), Berzon, and Tallman (dissenting), Circuit Judges.  B. Lockyer of San Diego, CA, for the respondent;  M. Stratton of Los Angeles, CA, for the petitioner.  (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  HABEAS CORPUS:  Spitsyn v. Moore, 02-35543 (9th Cir. Oct. 3, 2003).  Where an attorney was retained to prepare and file a habeas petition, but failed to do so and disregarded requests to return the files pertaining to petitioner's case until well after the date the petition was due, "extraordinary circumstances" beyond the petitioner's control may require the equitable tolling of the filing deadline;  the USCA vacated the district court's dismissal of the petition as time-barred and remanded for further proceedings, including consideration of whether the petitioner exercised reasonable diligence in ultimately filing his petition.  Alarcon, Gould, and Clifton (author), Circuit Judges.  R. Griffith of Seattle, WA, for the petitioner;  AAG J. Samson of Olympia, WA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  PRISONERS' RIGHTS:  Bramwell v. Bureau of Prisons, 02-55516 (9th Cir. Oct. 27, 2003).  The USCA upheld the dismissal of an inmate's claim, finding no subject matter jurisdiction where the seizure and inadvertent destruction of the inmate's property by correctional officers did not give rise to a cause of action as the seizure was a "detention" of goods by federal law enforcement officers.  Rymer and Tallman (author), Circuit Judges, and Leighton, District Judge.  D. Wedemeyer of Santa Clara, CA, for the plaintiff;  AUSA V. Farhat of Los Angeles, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  PAROLEES' BLOOD SAMPLES:  USA v. Kincade, 02-50380 (9th Cir. Oct. 2, 2003).  The forced extraction of blood from parolees pursuant to the federal DNA Analysis Backlog Elimination Act of 2000 violates the Fourth Amendment without individualized suspicion;  the compulsory collection of blood samples under the Act does not fall within the Supreme Court's "special needs" exception to the Fourth Amendment as the Act primarily serves a law enforcement purpose;  dissenting, Judge O'Scannlain thought that binding Circuit authority compelled the conclusion that the Act passes muster under the Fourth Amendment;  he thought that the question that had to be asked is whether the Supreme Court's "special needs" jurisprudence is at all applicable to suspicionless searches of probationers conducted for the purposes of preventing crime.  Reinhardt (author), O'Scannlain (dissenting), and Paez, Circuit Judges.  DFPD M. Knox of Los Angeles, CA, for the defendant;  AUSA J. Owens of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)