1)  TRADEMARKS:  Grupo Gigante SA De CV v Dallo & Co., Inc., 00-57118 (9th Cir. Dec. 15, 2004).  This case presents a contest between a large Mexican grocery chain that has long used the mark “Gigante,” but not in the U.S., and a small American chain, Dallo, that more recently became the first to use the mark in the U.S., but did so in a locality where shoppers were familiar with the Mexican mark.  The District Court recognized that under the “territoriality principle,” use of a mark in another country generally does not serve to give the user trademark rights in the U.S., and thus that the territoriality principle suggests that Dallo’s first use of the mark in the U.S. entitled it to claim the mark.  But it held that because Grupo Gigante‘s “Gigante” mark was already well-known in Southern California by the time Dallo began using it, an exception to the territoriality principle applied.  As the District Court interpreted the “famous” or “well-known” mark exception to the territoriality principle, Grupo Gigante’s earlier use in Mexico was sufficient to give it the superior claim to the mark in Southern California.  The District Court thus held that Grupo Gigante was entitled to a declaratory judgment that it had a valid, protectable interest in the mark.  Nevertheless, it held that laches barred Grupo Gigante from enjoining Dallo from using the mark at their two existing stores.  The USCA agreed in large part with the District Court, but added some qualifications that required a remand.  Concurring, Judge Graber agreed with the majority that the case be remanded and the evidence re-evaluated under a heightened standard for the “famous” or “well-known” marks exception.  However, Judge Graber would hold directly that the evidence presented thus far did not meet that standard and thus did not suffice to warrant protection for Grupo Gigante’s mark.  Finally, in determining whether a foreign mark has met the standard for “famous” or “well-known” foreign trademarks, Judge Graber would look to precedent from this court and others addressing whether a mark has been famous in its market niche.  Kleinfeld (author) and Graber (concurring), Circuit Judges, and Collins, District Judge.  R. McElvain of Los Angeles, CA, for the appellants;  M. Hodel of Costa Mesa, CA, for the appellees.   (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  COPYRIGHTS:  Rossi v. Motion Picture Association of America, 03-16034 (9th Cir. Dec. 1, 2004).  The USCA agreed that no material issue of fact was raised regarding MPAA’s “good faith belief” that Rossi infringed upon copyrighted materials.  Because MPAA’s actions, compliant with the notice and takedown provisions of the Digital Millennium Copyright Act of 1998, constituted “justification,” were privileged, and were not unreasonable, the USCA affirmed the District Court’s summary judgment for MPAA.  Farris, Noonan, and Rawlinson (author), Circuit Judges.  J. Fosbinder of Kahului, HI, for the plaintiff;  R. Frackman of Los Angeles, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  BANKRUPTCY:  In re Dawson, 02-16903 (9th Cir. Dec. 10, 2004).  At issue here was whether a debtor may recover damages for emotional distress under 11 USC Sec. 362(h) when a creditor violates the automatic stay that follows from the filing of a bankruptcy petition.  In this case the creditor filed an unlawful detainer action which allegedly gave rise to the emotional distress.  In an earlier decision, Dawson v. Washington Mutual Bank, 367 F.3d 1174 (9th Cir), withdrawn, 385 F.3d 1194 (9th Cir. 2004), the USCA answered “no.”  Upon reconsideration, it admitted error and now answers “yes.”  It concluded that Congress intended the term “actual damages” in Sec. 362(h) to include damages for emotional distress, as the statute allows any “individual,” including a creditor, to recover damages, and, by limiting the availability of actual damages under Sec. 362(h) to individuals, Congress signaled its special interest in redressing harms unique to humans. One such harm is emotional distress, which can be suffered by individuals but not by organizations.  Moreover, reading the legislative history as a whole, the USCA concluded that Congress was concerned not only with financial loss, but also—at least in part—with the emotional and psychological toll that a violation of a stay could exact from an individual.  Because Congress meant for the automatic stay to protect more than financial interests, it made sense to conclude that harm done to those non-financial interests by a violation are cognizable as “actual damages.”  The USCA thus concluded that the “actual damages” that may be recovered by an individual who is injured by a willful violation of the automatic stay, Sec. 362(h), include damages for emotional distress.  Hall and Graber (author), Circuit Judge, and Weiner, District Judge. A. Dell’Ario of Oakland, CA, for the plaintiffs;  W. Malcolm of Irvine, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 4)  BANKRUPTCY:  In re At Home Corporation, 03-15769 (9th Cir. Dec. 28, 2004).  A bankruptcy court may approve retroactively the rejection of an unexpired non-residential lease;  moreover, the retroactive date may be earlier than the date on which the landlord retakes possession of the premises.  Here, the bankruptcy court permissibly allowed the debtor to reject the leases as of the date on which the debtor filed its motion seeking to reject them.  Hall, Brunetti, and Graber (author), Circuit Judges.  N. Waranoff of San Francisco, CA, for the appellant;  B. Metcalf of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  BANKRUPTCY:  In re Marshall, 02-56002 (9th Cir. Dec. 30, 2004).  This appeal involved disputed claims made by Vickie Marshall, the surviving spouse of J. Howard Marshall, against Pierce Marshall, the decedent’s surviving son, the trustee of decedent’s trust property and the executor of the estate of the deceased.  Vickie alleged that Pierce tortiously interfered with an expected inter vivos gift from the decedent.  Three courts, the Texas probate court, the U.S. Bankruptcy Court, and the U.S. District Court, rendered conflicting judgments regarding Vickie’s claims and that affect the distribution of the net property of the decedent’s trust and probate estate.  While active probate proceedings were pending in the courts of Texas, Vickie filed personal bankruptcy proceedings in California.  The resulting bankruptcy court proceedings and subsequent appeals to the district court resulted in the district court awarding a money judgment to Vickie for intentional interference with an inter vivos gift that she expected from the decedent.  Pierce appealed.  On cross-appeal, Vickie sought to reverse the district court’s determination that the bankruptcy proceeding was not a core proceeding.  She also attacked the amount of the damage award entered by the district court, which reduced the sum she was awarded by the Bankruptcy Court.  The USCA held that all federal courts, including bankruptcy courts, are bound by the probate exception to federal court jurisdiction and are required to refrain from deciding state law probate matters, no matter how the issues are framed by the parties.  The USCA thus vacated the district court’s final judgment and remanded with instructions.  Beezer (author), Kleinfeld, and Paez, Circuit Judges.  G. Brunstad of Hartford, Conn., for the plaintiff;  S. Kato of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  BANKRUPTCY:  Spencer v. U.S. District Court, 04-72409 (9th Cir. Dec. 14, 2004).  The petitioners sought a writ of mandamus ordering the District Court to remand this action to state court.  They argued that the District Court must remand pursuant to a Bankruptcy Court’s order which the petitioners claimed requires the District Court to abstain from exercising federal jurisdiction.  In the alternative, they maintained that the joinder of a local, albeit diverse, defendant following removal from state to federal court destroyed subject-matter jurisdiction, requiring remand.  Because it concluded that the District Court did not clearly err in holding that the Bankruptcy Court’s order does not require the District Court to abstain from exercising federal jurisdiction, and because it found no error in the District Court’s determination that federal diversity jurisdiction is not destroyed by the joinder of a local, diverse defendant subsequent to removal, the USCA denied the petition for mandamus.  Reinhardt, Thompson (author), and Berzon, Circuit Judges.  M. Haddad of Oakland, CA, for the petitioners;  J. Williams of San Francisco, CA, for the real party in interest. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  JUDGMENT DEBTORS:  Katzir’s Floor and Home Design, Inc. v. M-MLS.com, 03-55084 (9th Cir. Dec. 22, 2004).  Peter Sommer and M-MLS.com appealed from the District Court’s amended judgment adding them as judgment debtors to a default judgment previously entered against M-MLS, Inc., Sommer’s wholly-owned corporation.  They also appealed from the district court’s denial of their Federal Rule of Civil Procedure 60(b) motion challenging the underlying default judgment as it applied to them.  The USCA vacated the order denying the Rule 60(b) motion and reversed the amended judgment adding the appellants as judgment debtors to the default judgment against M-MLS, Inc.  Canby, Hansen (author), and Rawlinson, Circuit Judges.  J. Cole and Sherman Oaks, CA, for the defendants-appellants;  M. Horwitz of Beverly Hills, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  TERRORISM:  USA v. Afshari, 02-50355 (9th Cir. Dec. 20, 2004).  At issue here was the constitutionality of the crime charged in the indictment, that from 1997 to 2001, defendant Rahmani and others knowingly and willfully conspired to provide material support to the Mujahedine Khalq (“MEK”), a designated terrorist organization, in violation of 18 USC Sec. 2339B(a)(1).  According to the indictment, the defendants solicited charitable contributions at the Los Angeles International Airport for the “Committee for Human Rights,” gave money and credit cards to the MEK, and wired money from the “Committee for Human Rights” to an MEK bank account in Turkey.  They did all of this after participating in a conference call with an MEK leader, in which they learned that the State Department had designated the MEK as a foreign terrorist organization under 8 USC Sec. 1189.  The MEK leader told them to continue to provide material support despite the designation.  All told, according to the indictment, the money they sent to the MEK amounted to at least several hundred thousand dollars.  District Court Judge Takasugi dismissed the indictment on the ground that the terrorist designation statute constituted a facially unconstitutional restriction on judicial review as Congress had assigned such review exclusively to the D.C. Circuit.  The USCA reviewed the matter de novo and reversed.  Many administrative determinations are reviewable only by petition to the correct circuit court, and that procedure has generally been accepted.  Moreover, many are reviewable only in the D.C. Circuit, or the Federal Circuit, and those restrictions have also been generally accepted.  The congressional restriction does not interfere with the opportunity for judicial review, as MEK’s extensive litigation history shows.  And this scheme avoids the awkwardness of criminalizing material support for a designated organization in some circuits but not others, as varying decisions in the different regional circuits might.  A defendant who is criminally prosecuted in a District Court for donating to a designated organization may bring a due process challenge to his prosecution.  The District Court below properly ruled that a District Court has jurisdiction to review this challenge, but its further conclusion that Sec. 1189 is facially unconstitutional because judicial review was assigned exclusive to the D.C. Circuit was in error.  Kleinfeld (author), Wardlaw, and W. Fletcher, Circuit Judges.  D. Letter of Washington, DC, for the appellant;  S. Berzon of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  LABOR LAW:  Clark v. United Emergency Animal Clinic., 03-15267 (9th Cir. Dec. 7, 2004). These consolidated appeals presented the issue of whether veterinarians are exempt from the overtime wage requirements of the Fair Labor Standards Act (“FLSA”).  The District Court held that doctors of veterinary medicine are within the “physicians and other practitioners” exclusion from the salary requirements for the professional exemption under the FLSA and thus that the plaintiffs are exempt from the FLSA overtime requirements.  The USCA affirmed.  It agreed that veterinarians are within the practice of medicine exception to the “salary basis” requirement.  Canby, Rymer (author), and Hawkins, Circuit Judges.  E. Kennedy of San Jose, CA, for the defendant;  J. McBride of San Jose, CA, for the plaintiff.   (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  EMPLOYMENT DISCRIMINATION:  Jespersen v. Harrah’s Operating Company, Inc., 03-15045 (9th Cir. Dec. 28, 2004).  The plaintiff, a bartender at Harrah’s Casino in Reno, Nevada, brought this Title VII action alleging that her employer’s policy which required that certain female employees wear makeup discriminated against her on the basis of sex and made her feel sick, degraded, exposed, and violated.  The District Court granted summary judgment for Harrah’s, holding that its policy did not constitute sex discrimination because it imposed equal burdens on both sexes.  The USCA affirmed, holding that under the “equal burdens” test, the Ninth Circuit’s test for evaluating whether an employer’s sex-differentiated appearance standards constitute sex discrimination in violation of Title VII, Jespersen failed to introduce evidence raising a triable issue of fact as to whether Harrah’s “Personal Best” policy imposed unequal burdens on male and female employees.  Tashima (author), Thomas (dissenting), and Silverman, Circuit Judges.  J. Pizer of Los Angeles, CA, for the plaintiff-appellant;  V. Hall of Las Vegas, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  WORKERS COMPENSATION:  Keenan v. Director for the Benefits Review Board, 03-70442 (9th Cir. Dec. 21, 2004). This appeal presented the following issues: 1) whether the petitioner’s shoulder impairment should be compensated as a scheduled disability of the arm under 33 USC Sec 908(c)(1);  2) in the alternative, whether he is entitled to unscheduled compensation under 33 USC Sec. 908(c)(21) on the ground that his shoulder injury prevented him from accepting a more lucrative foreman’s position; and 3) whether, if neither form of compensation is granted, the petitioner is entitled to a de minimis award under 33 USC Sec. 908(c)(21).  The USCA held that the petitioner is entitled to neither scheduled nor unscheduled recovery, but that he is entitled to a de minimis award to preserve the possibility of a modified award should his earnings fall below pre-injury levels.  Goodwin (author), Fisher, and Tallman (dissenting in part), Circuit Judges.  J. McAdams of Wilmington, CA, for the petitioner;  C. Gutierrez of San Pedro, CA, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  FAIR HOUSING ACT:  Price v. City of Stockton, 02-16155 (9th Cir. Dec. 6, 2004).  The City of Stockton, California appealed interlocutorily the District Court’s order granting a preliminary injunction in favor of plaintiffs Price, other residents of low income hotels, and Metro Ministry, a non-profit organization that helps the homeless in Stockton.  The plaintiffs brought an action alleging that the City violated its statutory duties under the Housing and Community Development Act (“HCDA”), the Fair Housing Act, the Uniform Relocation Act, California’s Redevelopment Act, and California’s Relocation Assistance Act when the City began closing residential hotels and evicting the residents based on housing code violations.  The District Court granted a preliminary injunction, finding that the plaintiffs had demonstrated a strong likelihood of success on the merits of their claim under the Housing and Community Development Act and that the balance of hardships tipped in their favor.  The USCA affirmed in part and reversed in part and remanded.  Although the District Court analyzed and issued its injunction in terms of a cause of action under 42 USC Sec. 5304(d) (“HCDA Sec. 104(d)”), the USCA held that its factual findings supported the conclusion that the plaintiffs are likely to succeed on the merits under HCDA Sec. 104(k), at least with respect to individual relocation assistance benefits.  The USCA agreed that the balance of hardships tip sharply in the plaintiffs’ favor.  Hug, Alarcon, and Graber, Circuit Judges.  Per Curiam.  R. Jarvis of San Leandro, CA, for the defendants-appellants;  S. Haffner of Oakland, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  WATER RIGHTS:  Pyramid Lake Paiute Tribe v. Churchill County, 03-16654 (9th Cir. Dec. 14, 2004).  The underlying case here arose from a 1944 federal court decree quieting title to certain water rights in the Truckee River, which originates in California, flows into Nevada, and terminates in Pyramid Lake.  At issue was whether a Nevada statute providing for an automatic stay of the State Engineer’s decisions applied to federal proceedings under the Orr Ditch Decree which allows parties to change the place, manner or purpose of use of the waters to which the party is entitled so long as they do it in the manner provided by law.  Finding Nev. Rev. Stat. Sec. 533.450 to be an integral part of Nevada water law, the USCA held that the automatic stay did apply to federal proceedings under the Orr Ditch Decree. The District Court had thus correctly granted the appellees’ stay motion upon the posting of a sufficient bond.  Schroeder, Hawkins, and W. Fletcher (author), Circuit Judges.  R. Pelcyger of Louisville, CO, for the petitioner;  R. Campbell of San Francisco, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  ENERGY LAW:  California v. NRG Energy, Inc., 02-57200 (9th Cir. Dec. 8, 2004).  At issue on this appeal from a District Court order of remand was whether the USCA has appellate jurisdiction in light of the limitations of 28 USC Sec. 1447(d).  The USCA held that it has jurisdiction to review the District Court'’ ruling on substantive issues of controlling law on the merits of the case. The USCA affirmed all of the District Court’s rulings on those substantive issues, relating principally to immunity, but held that the claims against the U.S. government agencies should have been dismissed rather than remanded to state court.  Schroeder (author), Canby, and Tallman, Circuit Judges.  N. Cregan of San Francisco, CA, for Reliant Energy;  J. Kleinman of Washington, DC, for Duke Energy;  A. Klein of Washington, DC, for the Bonneville Power Administration;  B. Himmelstein of San Francisco, CA, for the State of California;  G. Smith of San Francisco, CA for British Columbia Hydro, Power Authority;  G. Erspamer of Walnut Creek, CA for Arizona Electric Power Cooperative.   (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  CONSTITUTIONAL LAW / DIVERSITY IN EDUCATION:  Smith v. Univ. of Washington, 02-35676 (9th Cir. Dec. 20, 2004).  The plaintiffs are white Washington residents who claim that the University of Washington Law School rejected their applications because of the Law School’s unconstitutional consideration of race and ethnicity as factors in its admissions program.  They appealed the judgment of the District Court entered against them following a bench trial.  The USCA affirmed.  The Law School’s narrowly tailored use of race and ethnicity in admissions decisions during 1994-96 furthered its compelling interest in obtaining the educational benefits that flow from a diverse student body.  The District Court was thus correct in entering judgment against the plaintiffs’ damages claims.  D.W. Nelson, Kleinfeld, and Fisher (author), Circuit Judges.  M. Rosman of Washington, DC, for the plaintiffs-appellants;  M. Madden of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  VEXATIOUS LITIGANTS:  Wolfe v. Strankman, 02-15720 (9th Cir. Dec. 14, 2004). Wolf sought a declaratory judgment that California’s Vexatious Litigant Statute is unconstitutional.  He also sought injunctive relief barring enforcement of that statute.  The District Court dismissed the suit for want of subject matter jurisdiction under the Rooker-Feldman doctrine.  The USCA affirmed in part, reversed in part, and remanded.  While finding that the District Court erred by dismissing the suit under Rooker-Feldman, the USCA affirmed the dismissal of the defendants State of California and the Judicial Council of California because they are not “persons” subject to suit under 42 USC Sec. 1983.  The USCA also affirmed the dismissal of defendants Superior Court Judge Strankman and Chief Judge George in his judicial capacity because complete relief is available in an action against George in his administrative capacity and Silva, a court services analyst employed by the Judicial Council.  The USCA reversed the dismiss of George in his administrative capacity and Silva and remanded for further proceedings.  T.G. Nelson, W. Fletcher (author), and Berzon, Circuit Judges.  B. Murray of Washington, DC, for the plaintiff-appellant;  J. Bowers of Sacramento, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  CIVIL RIGHTS:  Jones v. Blanas, 02-17148 (9th Cir. Dec. 27, 2004).  Jones appealed from a grant of summary judgment in his 42 USC Sec. 1983 action in favor of Sheriff Blanas and the County of Sacramento, California.  Jones sought damages based on violations of his constitutional rights while he was confined in jail as a civil detainee.  He had completed his criminal sentence, but was awaiting proceedings under California’s Sexually Violent Predator Act.  The USCA affirmed in part, reversed in part, and remanded .  It directed the District Court to appoint counsel for Jones due to the complexity and weightiness of his claims.  Jones’s appeal was timely because he was an “inmate confined in an institution” and complied with Rule 4(c).  Summary judgment against him was proper as to his access to the courts claims because he failed to submit facts showing how his denial of access to the law library resulted in injury.  On Jones’s free exercise claim, however, the District Court improperly granted summary judgment without exercising its discretion as to whether to consider key evidence Jones offered in his Objections to the magistrate’s Findings.  Failure to consider this evidence would have been an abuse of discretion in any event.  The USCA thus reversed on this claim.  The District Court applied the wrong standard to Jones’s substantive due process claim.  Under the Fourteenth Amendment, a civil detainee awaiting adjudication is entitled to conditions of confinement that are not punitive (i.e., not intended to be punitive), excessive in relations to their non-punitive purpose, or employed for purposes that could be achieved by less harsh methods.  The USCA thus reversed the summary judgment on Jones’s substantive due process claim.  The District Court also abused its discretion in denying Jones’s requests to extend discovery and his motion to stay discovery pursuant to Rule 56(f).  These errors required the reversal of summary judgment as to Jones’s unreasonable search claim.  On remand, Jones must be permitted to reopen discovery.  B. Fletcher (author), Noonan, and Thomas, Circuit Judges.  D. Fruth of  San Francisco, CA, for the plaintiff-appellant;  D. Melton of Sacramento, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  INTERNATIONAL CHILD ABDUCTION:  Holder v. Holder, 03-35595 (9th Cir. Dec. 9, 2004).  The USCA here considered a matter of first impression under the Hague Convention on the Civil Aspects of International Child Abduction:  whether a family’s short-term residence on an American military base in Germany rendered Germany the children’s habitual residence.  Holder appealed the District Court’s dismissal of his petition for the return of his children to Germany.  The USCA affirmed the District Court’s order, holding that Holder failed to carry his burden on the habitual residence issue, a threshold determination under the Convention.  Hawkins, Thomas, and McKeown (author), Circuit Judges.  J. Holder pro se;  A. Allred of Seattle, WA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  HUMAN RIGHTS:  Hilao v. Estate of Ferdinand Marcos, 03-16934 (9th Cir. Dec. 28, 2004).  The Republic of Philippines appealed from two orders issued by the District Court, even though the Republic is not a party to this litigation.  The first order reinstated a 1999 settlement agreement between the Estate of Ferdinand Marcos and a class of plaintiffs who had sued the Estate for violations of their human rights.  The second order facilitated the first order by enjoining foreign banks from transferring certain assets that could be used to fund the settlement.  The Republic asked that both orders be vacated.  But, because the Republic is neither a party to the settlement agreement nor a person or banking institution bound by the second order, the USCA dismissed its appeal for lack of standing.  Brunetti, Graber (author), and Bybee, Circuit Judges.  R. Jones of San Francisco, CA, for the appellant;  J. Van Dyke of Honolulu, HI, for the plaintiff-appellee;  W. Edlund of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  CIVIL RIGHTS:  Toguchi v. Chung, 03-15378 (9th Cir. Dec. 10, 2004).  The USCA affirmed the judgment of the District Court that the Toguchis’ loss of their son while the son was incarcerated was not the result of Dr. Chung’s deliberate indifference to his serious medical needs.  The Toguchis did not present evidence that Chung’s decisions denied, delayed, or intentionally interfered with the their son’s medical treatment.  To the contrary, the record, viewed in the light most favorable to the Toguchis, reflects that Chung was consistently responsive to the son’s medical needs.  Farris, Noonan, and Rawlinson (author), Circuit Judges.  C. Varady of Honolulu, HI, for the plaintiffs-appellants;  DAG G. Lau of Honolulu, HI, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  CIVIL RIGHTS / QUALIFIED IMMUNITY:  Gausvik v. Perez, 04-35130 (9th Cir. On Dec. 13, 2004 the Memorandum dated Nov. 18, 2004 was redesignated an authored Opinion).  Gausvik brought suit against police officer Perez, alleging that Perez had violated his civil rights during a sexual abuse investigation.  The District Court found that Perez was not entitled to summary judgment on the basis of qualified immunity.  On appeal, the USCA held that Perez did not violate any of Gausvik’s constitutional rights.  It thus reversed the District Court’s judgment and granted Perez qualified immunity.  The USCA added that it’s ruling was intended to cover all of Gausvik’s claims raised in the District Court and that Perez enjoyed qualified immunity on any and all claims arising out of the sexual abuse claims in the Wenatchee, Washington, community.  As an alternative holding, the USCA observed that Perez did not violate any constitutional rights of Gausvik as set forth under 42 USC Sec. 1983 as it pertains to the claim of familial interference.  Lay (author), Ferguson, and Gould, Circuit Judges. T. Firkins of Auburn, WA, for the plaintiff-appellant;  P. McMahon of Wenatchee, WA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  NATIVE AMERICAN LAW / PACIFIC WHITING ALLOCATIONS: Midwater Trawlers Co-Operative v Dept. of Commerce, 03-35398 (9th Cir. Dec. 28, 2004).  The appellants, Midwater Trawlers, West Coast Seafood Processors, and the Fishermen’s Marketing Association challenged the Secretary of Commerce’s decision to allocate a portion of the U.S. harvest of Pacific whiting to the Makah Indian Tribe.  They maintained that the allocation runs afoul of the Magnuson-Stevens Fishery Conservation and Management Act and the APA.  In an earlier appeal, the USCA concluded that the National Marine Fisheries Service failed to explain its allocation of Pacific whiting to the Tribe using the best available scientific information.  It thus remanded for the Fisheries Service to promulgate a new allocation of the Tribe consistent with the law and based on the best available science, or to provide further justification that the current allocation confirms to the requirements of the Magnuson-Stevens Act and the 1855 Treaty of Neah Bay.  On remand, the District Court granted summary judgment in favor of appellees Dept. of Commerce, the Fisheries Service, and the National Oceanic and Atmospheric Administration.  In so doing, it denied the appellants’ request to remand to the Fisheries Service for further rulemaking proceedings to clarify the basis of the “sliding scale” method of Pacific whiting allocation.  Instead, the District Court approved the sliding scale method.  The USCA affirmed the District Court’s decision.  Pregerson (author), Ferguson, and Callahan, Circuit Judges.  J. Walsh of San Francisco, CA, for the plaintiffs-appellants;  T. Sansonetti of Washington, DC, for the federal defendants-appellees;  M. Slonim of Seattle, WA, for the defendant-intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  NATIVE AMERICAN LAW / CRIMINAL JURISDICTION:  USA v. Anderson, 03-10516 (9th Cir. Dec. 14, 2004).  This appeal by Anderson, a member of the Robinson Rancheria Band of Pomo Indians, turned on whether 18 USC Sec. 1162 gives the State of California exclusive jurisdiction over all crimes committed in Indian country within its borders, thereby depriving the U.S. District Court of jurisdiction in this case.  Anderson was convicted of theft, and conspiring to commit theft, from an Indian tribal organization in violation of 18 USC Secs. 371 and 1163.  He maintained that the District Court lacked subject matter jurisdiction by virtue of Sec. 1162, and that Sec. 1163 both offends the Indian Commerce Clause and cannot be applied to Indians.  The USCA held that Sec. 1162 does not give the state exclusive jurisdiction precluding federal jurisdiction over offenses that arise under federal laws of general application such as Secs. 371 and 1163.  The USCA also held that Sec. 1163 applies to Indians, and that applying Sec. 1163 to Indian lands does not exceed congressional power under the Commerce Clause.  The USCA concluded that the District Curt had jurisdiction and affirmed.  Canby, Rymer (author), and Hawkins, Circuit Judges.  G. Boissear of Santa Rosa, CA, for the defendant-appellant;  AUSA H. Gillam of San Francisco, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  IMMIGRATION:  Mansour v. Ashcroft, 02-72515 (9th Cir. Dec. 6, 2004).  Mansour and his wife are natives and citizens of Egypt who entered the U.S. as non-immigrant tourists on November 26, 1988 and March 13, 1989 respectively.  They overstayed their visas and applied for asylum on March 31, 1998.  The Immigration Judge (“IJ”) determined that Mansour and his wife failed to establish past persecution or a well-founded fear of future persecution. The Board of Immigration Appeals (“BIA”) summarily affirmed the IJ’s decision.  The USCA denied the petition for review in part and dismissed in part.  It concluded that substantial evidence supported the IJ’s conclusion that the petitioners had not suffered past persecution.  The testimony and evidence presented by the petitioners demonstrated that Coptic Christians are subject to discrimination within Egypt on the basis of their religion.  However, the evidence did not compel the conclusion that the discrimination rose to the level of persecution.  As the IJ stated, the petitioners failed to show that those who “bothered” or “mistreated” them were individuals that the government was unable or unwilling to control and noted that the relevant U.S. State Department Profile reflected the fact that Egyptian authorities have prosecuted those who have committed “acts of terrorism” against Christians.  In addition, Mansour did not demonstrate that he had a well founded fear of future persecution due to his religion.  Judge Pregerson dissented in part.  He would grant the petition for Review because he thought the petitioners had established that they had been persecuted account of a protected ground and, as a result, were presumptively entitled to asylum and withholding of removal.  Alternatively, he would hold that the petitioners are eligible for asylum because they established an independently well-founded fear that their U.S. citizen children would be persecuted if their family returns to Egypt.  Pregerson (dissenting in part), Beezer (author), and Tallman, Circuit Judge.  J. Patterson of San Diego, CA, for the petitioners;  D. Dauenheimer of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  IMMIGRATION:  Unuakhaulu v Ashcroft, 02-73837 (9th Cir. Dec. 20, 2004).  The petitioner, a native and citizen of Nigeria, sought review of the BIA’s summary affirmance of an IJ decision denying him withholding of removal and relief under the Convention against Torture (“CAT”).  At issue was whether the USCA lacked jurisdiction to review his petition where the IJ, although denying the petitioner’s asylum application due to his prior conviction for an aggravated felony, did not rely on that felony in denying his application for withholding of removal and for relief under CAT.  The USCA held that 8 USC Sec. 1252(a)(2)(C) divested it of jurisdiction to review orders of removal that are based on a petitioner’s prior aggravated felony conviction.  The USCA had jurisdiction to review the BIA’s non-discretionary denial of withholding, which was not predicated on the petitioner’s aggravated felony.  Reaching the substance of the petition, however, the USCA denied it, finding it to be without merit.  Tashima, Fisher (author), and Tallman, Circuit Judges.  M. Karlin of Los Angeles, CA, for the petitioner. F. Fraser of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  IMMIGRATION:  Huang v Ashcroft, 03-16730 (9th Cir. Dec. 7, 2004).  This appeal raised the question of whether all motions to reopen proceedings that resulted in a final order of removal before March 22, 1999 to seek protection under the Convention Against Torture (“CAT”) are subject to the time limitation imposed by 8 CFR Sec. 208.18(b)(2) without regard to the form of protection—withholding of removal or deferral of removal—to which the alien, if successful, would be entitled.  The petitioner’s argument turned on the language in Sec. 208.18(b)(2) that an alien whose removal order became final before March 22, 1999 may move to reopen “for the sole purpose of seeking protection under Sec. 208.16(c).  He reasoned that Sec. 208.16(c) describes eligibility for withholding of removal under CAT, whereas deferral of removal is treated in Sec. 208.17(a).  From this he inferred that the time limit in Sec. 208.18(b)(2) applies to applicants for withholding but not for deferral.  The USCA did not think this was a reasonable reading.  It found that the window to reopen final orders afforded by Sec. 208.18(b)(2) applies to both Secs. 208.16(c) and 208.17(a).  Because Sec. 208.18(b)(2) is in the nature of a grace period for orders long since final, its grace was limited to a motion to reopen that sought CAT protection under Sec. 208.16(c).  Section 208.16(c) is the funnel because it contains the procedures for determining eligibility for protection under CAT, and for deciding the form of protection if entitlement is established.  Canby, Rymer (author), and Hawkins, Circuit Judges.  J. Bennett of El Cerrito, CA, for the petitioner.  AUSA E. Olsen of San Francisco, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  IMMIGRATION:  Ferreira v Ashcroft, 03-16966 (9th Cir. Dec. 1, 2004).  Ferreira, a lawful permanent resident, appealed the District Court’s denial of her petition for a writ of habeas corpus.  She had pled guilty to one count of “False Statement to Obtain Aid” in violation of California Welfare and Institutions Code Sec. 10980(c)(2).  On account of that conviction, an IJ concluded that she had been convicted of an aggravated felony and found her removable from the U.S. and ineligible for relief from removal.  Because Ferreira’s conviction involved fraud or deceit with a loss to a victim exceeding $10,000, and because streamlining does not violate an alien’s due process rights, the USCA affirmed the District Court’s denial of Ferreira’s habeas petition.  Trott (author) and McKeown, Circuit Judges, and Shadur, District Judge.  V. Badrinath of Tucson, AZ, for the petitioner;  AUSA A. MacLachlan of Washington, DC, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  IMMIGRATION:  Gomez-Lopez v Ashcroft, 03-70142 (9th Cir. Dec. 15, 2004).  The petitioner, a native and citizen of Mexico, sought review of a BIA order affirming without opinion an IJ decision.  At issue was whether the petitioner’s incarceration in a country jail constituted confinement in a penal institution for purposes of the Immigration and Nationality Act (“INA”).  The IJ denied the petitioner’s application for cancellation of removal and voluntary departure because his conviction and incarceration for vehicular manslaughter precluded a finding that he is a person of good moral character under the INA.  The USCA concluded that incarceration in a country jail does constitute confinement in a penal institution within the mean of the INA.  It thus denied the petition.  Tashima (author), Fisher, and Tallman, Circuit Judges.  M. Zaehringer of Ventura, CA, for the petitioner.  L. Perez of Washington, DC, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  IMMIGRATION:  Kaiser v Ashcroft, 03-71198 (9th Cir. Dec. 3, 2004). The petitioners, Kaiser, his wife, and their two minor children, natives and citizens of Pakistan, petitioned for review of a BIA decision affirming the denial of their applications for asylum and withholding of removal.  The USCA held that the BIA erred in denying asylum eligibility, but affirmed the BIA’s denial of withholding of deportation.  Because the petitioners have a well-founded fear of persecution in Pakistan (they had claimed that they lives were threatened by the Muttahida Quami Movement, a political party that has shown its willingness to use violence to further its aims), and there is no record evidence that they could relocate safely to another part of Pakistan, the USCA granted the petition with respect to the petitioners’ asylum claim and remanded to the BIA.  It instructed that, on remand, the BIA shall exercise discretion regarding whether to grant asylum. Reinhardt, Wardlaw (author), and Paez, Circuit Judges.  G. Sarin of Los Angeles, CA, for the petitioner.  AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  IMMIGRATION:  Yeimane-Berhe v Ashcroft, 03-71246 (9th Cir. Dec. 23, 2004).  The petitioner, a native and citizen of Ethiopia, sought review of a BIA decision, affirming a decision of the IJ, who denied the petitioner’s application for asylum, withholding of removal, and voluntary departure, and ordered her removed to Ethiopia.  The IJ’s decision had been based on a finding that the petitioner was not credible and did not have good moral character solely because she had submitted a document that the IJ concluded was counterfeit.  The USCA granted the petition.  It found no evidence that the petitioner knew that the document, a medical certificate obtained by a third person, was fraudulent.  The petitioner’s testimony was detailed, internally consistent, and consistent with the testimony of her sister and the documents she submitted into evidence.  The USCA thus concluded that the adverse credibility determination was not supported by substantial evidence and that the petitioner’s testimony was credible.  The USCA remanded for the IJ to consider the petitioner’s application, deeming her testimony to be credible.  Reinhardt, Tashima (author), and Wardlaw, Circuit Judges.  D. Aguirre of San Diego, CA, for the petitioner.  N. Friedman of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  IMMIGRATION:  Mamouzian v Ashcroft, 03-71469 (9th Cir. Dec. 9, 2004).  The petitioner, a native and citizen of Armenia, sought review of a BIA decision which affirmed without opinion an IJ’s denial of her application for political asylum, withholding of deportation, and protection under the Convention Against Torture.  The USCA concluded that the IJ erred in determining that the petitioner had not established a well-founded fear of future persecution on account of political opinion.  The USCA thus granted the petition for review and remanded.  Reinhardt (author), Wardlaw, and Paez, Circuit Judges.  A. Issakhanian of Glendale, CA, for the petitioner.  P. Keisler of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  IMMIGRATION:  ANA International, Inc. v. Way, 03-35130 (9th Cir. Dec. 16, 2004).  At issue here is whether the Attorney General’s decision to revoke a visa pursuant to 8 USC Sec. 1155 is bared from judicial review by a jurisdiction-stripping provision added to the Immigration and Nationality Act by the Illegal Immigration Reform and Immigrant Responsibility Act and codified at 8 USC Sec. 1252(a)(2)(B)(ii).  The District Court dismissed the case for want of jurisdiction and remanded for a decision whether the AG’s order to revoke the petitioner’s visa was supported by substantial evidence.  The USCA reversed and remanded, holding that Secs. 1155 and 1101(a)(44) furnish objective legal criteria for testing whether the visa was properly revoked, and that the USCA retained jurisdiction to review that decision under Sec. 1252(a)(2)(B)(ii).  Dissenting, Judge Tallman thought that the majority’s conclusion that Sec. 1252(a)(2)(B)(ii) does not bar judicial review of the AG’s discretionary decision to revoke a previously approved visa when he decided that the alien failed to abide by the conditions under which the visa was first obtained, disregarded binding Ninth Circuit precedent, created a conflict with other Circuits, conflicted with congressional intent in stripping judicial review over certain immigration decisions, and resulted in an unwarranted expansion of federal jurisdiction into the minutiae of visa administration at a time when the court is awash in immigration cases.  Goodwin (author), W. Fletcher, and Tallman (dissenting), Circuit Judges.  B. Chen of Portland, OR, for the plaintiffs-appellants;  J. Dryden of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  IMMIGRATION:  Singh v Ashcroft, 03-71868 (9th Cir. Dec. 23, 2004).  The petitioner, a native and citizen of India, was raised as a Sikh and practices the Sikh religion.  He testified that he was recruited by an organ of the government of India known as the Research and Analysis Wing (RAW), situated in the office of the Prime Minister.  Its functions, he testified, were like those of the CIA.  As a RAW agent, he made reports on individuals believed to be Sikhs working to establish the separate Sikh state of Khalistan.  He submitted postal receipts that he said showed his mailings to RAW.  He quit RAW when ordered to aid in the assassination of a very religious person he had investigated.  After hiding with friends for a year, he used his own passport to come to the United States.  He testified that he would be killed if returned to India.  Finding him not credible, the Immigration Judge denied his application for asylum, withholding of deportation, and relief under the Convention Against Torture.  The BIA, acting through a single member, affirmed the IJ’s decision, adding that the petitioner had presented no corroborative evidence whatsoever of the existence of RAW.  The USCA remanded, finding that the BIA’s credibility determination could not be sustained.  It noted that a simple Lexis search reveals over 1,500 articles on RAW from reputable international media sources.  B. Fletcher, Noonan (author), and Thomas, Circuit Judges.  J. Siguenza of Burlingame, CA, for the petitioner.  AUSA J. Levings of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION:  Martinez-Perez v Ashcroft, 03-70531 (9th Cir. Dec. 29, 2004).  Martinez is a native and citizen of Mexico.  He was admitted to the U.S. in 1981 as an immigrant.  In 1996, he was charged in state court with second degree robber, in violation of Sec. 211 of the California Penal Code (“CPC”).  He pled guilty to one count of grand theft based on taking property from another in violation of CPC Sec. 487(c) and was sentenced to two years confinement.  He subsequently petitioned for review of the BIA opinion affirming the IJ’s conclusion that he is removable and ineligible for any form of relief because of his conviction for an aggravated felony.  Martinez argued that his conviction for grand theft under CPC Sec. 487(c) does not constitute a theft offense and thus is not an aggravated felony under 8 USC Sec. 1101(a)(43)(G). The USCA concluded that Martinez’s offense qualified as an aggravated felony.  Tashima (author), Fisher, and Tallman, Circuit Judges.  F. Ronzio of Los Angeles, CA, for the petitioner.  D. Dauenheimer of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  IMMIGRATION:  Molina-Camacho v Ashcroft, 02-73536 (9th Cir. Dec. 28, 2004).  Molina, a 40-year-old native and citizen of Mexico, entered the U.S. illegally in 1984.  He has a wife and three children, the youngest of whom is a U.S. citizen.  When the INS initiated removal proceedings against him in 1998, Molina conceded removability, but applied for cancellation of removal.  The IJ found him qualified under INS Sec. 240A(b), and granted cancellation.  The INS appealed.  One member of the BIA reversed and entered an order removing Molina to Mexico, finding that Molina had not met his statutory burden for cancellation because he had not shown exceptional and extremely unusual hardship “that is substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here.”  The USCA held that the BIA acted ultra vires in issuing a deportation order instead of remanding to the IJ.  Because the BIA chose not to remand to the IJ for the issuance of the order, no final order of removal exists in this case that would give the USCA jurisdiction under 8 USC Sec. 1252.  The same defect that makes the order invalid prevents the USCA from invalidating it. However, the USCA noted that the order could be reviewed under 28 USC Sec. 2241.  The USCA thus treated Molina’s petition for review as a petition for a writ of habeas corpus.  Because it lacked jurisdiction to entertain an original habeas petition, the USCA transferred the petition to the district court under 28 USC Sec. 1631.  Pregerson, Kozinski, and Hawkins (author), Circuit Judges.  W. Pineda of San Francisco, CA, for the petitioner.  A. Poczter of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  IMMIGRATION / PRETRIAL DETAINMENT:  Agyeman v. Corrections Corporation of America, 03-16068 (9th Cir. Dec. 6, 2004). Agyeman, a native of Ghana who entered the United States in 1988, appealed the District Court’s judgment in this Bivens action in favor of the defendant employees of the Corrections Corporation of American, a private company that operates prisons.  The USCA vacated the judgment and remanding, holding that the District Court abused its discretion in declining to appoint counsel for Agyeman.  Although Agyeman is literate and educated and even able to read statutes and legal literature, he lacks legal training;  as is evident from the record, the USCA noted, a lawyer attentive to the differences would have noticed that Agyeman should have sued the employees under Bivens, and the United States and the corporation under the Federal Tort Claims Act.  B. Fletcher, Noonan (author), and Thomas, Circuit Judges.  I. Rubel of San Francisco, CA, for the plaintiff-appellant;  D. Struck of Phoenix, AZ, for the de-fendants-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  SEARCH & SEIZURE:  USA v. Hamilton, 03-50179 (9th Cir. Dec. 13, 2004).  Hamilton, who conditionally pled guilty to a federal drug trafficking offense, appealed his conviction.  He maintained that the District Court’s denial of his motion to suppress evidence obtained from a search of his car was in violation of his Sixth Amendment right to counsel, because at the suppression hearing the district court permitted the government to conduct redirect examination of the searching officer concerning Hamilton with neither Hamilton nor his counsel present.  The USCA agreed and reversed.  B. Fletcher (author), Hansen, and Rawlinson, Circuit Judges.  Y. Barrera of Arcadia, CA, for the defendant-appellant;  AUSA T. Searight of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  EVIDENCE / JURY INSTRUCTIONS:  USA v. Blanco, 03-10390 (9th Cir. Dec. 27, 2004).  Following a jury trial, Blanco was convicted of various drug crimes.  He appealed his conviction on the grounds that the government failed to disclose material impeachment evidence and that a flight instruction should not have been given to the jury.  The USCA held that the government wrongly sup-pressed impeachment information about a confidential informant in violation of Brady v. Maryland, 373 US 83 (1963), and Giglio v. USA, 405 US 150 (1972).  It did not know whether there was other material that the government did not turned over to the defendant.  The USCA thus remanded with instructions to the District Court to order the government to reveal all information in its possession concerning the confidential informant, and to the degree necessary and appropriate, the District Court may inspect this material in camera.  The USCA further held that the District Court erred in giving a flight instruction, but that this error, considered alone, was harmless.  T.G. Nelson, W. Fletcher (author), and Berzon, Circuit Judges.  FPD M. Powell of Reno, NV, for the defendant-appellant;  AUSA C. Denney of Reno, NV, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  EVIDENCE:  USA v. Pearson, 03-30441 (9th Cir. Dec. 14, 2004).  Pearson appealed his conviction for possession of a firearm by a prohibited person in violation of 18 USC Secs. 922(g) and 924(a)(2), of the possession of an unregistered firearm in violation of 26 USC Sec. 5861(d), of the possession of an unidentified firearm in violation of 26 USC Sec. 5861(h), of the possession of metham-phetamine with the intent to distribute in violation of 21 USC Secs. 841(a)(1) and 846, and the use of a firearm during and in relation to a drug-trafficking crime in violation of 18 USC Sec. 924(c).  On appeal, Pearson argued that the evidence was insufficient to show that he possessed methamphetamine with the intent to distribute it to the woman with whom he cohabited because they attempted to acquire it to consume jointly and simultaneously.  He also maintained that his conviction of using a firearm in relation to a drug offense should not stand because of insufficiency of the evidence that he attempted to possess methamphetamine with the intention to distribute it.  The USCA affirmed, concluding that the evidence was sufficient to demonstrate that he attempted to possess methamphetamine to distribute it to his live-in companion.  Alarcon (author), W. Fletcher, and Rawlinson, Circuit Judges.  S. Richert of Pocatello, ID, for the defendant-appellant;  AUSA M. Fica of Pocatello, ID, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  ASSIMILATIVE CRIMES ACT:  USA v. Souza, 04-10228 (9th Cir. Dec. 22, 2004).  Souza was caught forcefully entering, and removing articles from, a parked vehicle within the Hawaii Volcanoes National Park.  He pled guilty to “Unauthorized Entry into a Motor Vehicle” in violation of Haw. Rev. Stat. Sec. 708-836.5 (2003), as assimilated into federal law by the Assimilative Crimes Act, 18 USC Sec. 13.  Souza maintained that his conviction was improper because applicable federal statutes govern, thereby precluding the Hawaii statute from being assimilated into federal law.  The USCA affirmed.  Beezer (author), Graber, and Bybee, Circuit Judges.  AFD A. Silvert of Honolulu, HI, for the appellant;  AUSA W. Porter of Honolulu, HI, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  RICO / CONSPIRACIES:  USA v. Luong, 03-10080 (9th Cir. Dec. 23, 2004).  This appeal required the USCA to decide whether conviction (or acquittal) on RICO conspiracy and substantive charges bars subsequent prosecution for a predicate act when the predicate act is itself a conspiracy.  The appellants appealed the District Court’s order denying their motion to dismiss the indictment for conspiracies to commit Hobbs Act robbery in violation of 18 USC Sec. 1951(a) on grounds of double jeopardy.  They had previously been prosecuted on RICO charges that included a conspiracy to commit Hobbs Act robberies as a predicate act.  USA v. Saccoccia, 18 F.3d 795, 798 (9th Cir. 1994), held that a defendant may be prosecuted for a RICO conspiracy and later for the predicate offenses that constituted a pattern of racketeering activity.  The USCA here concluded that the same rule applies when the predicate offense is a conspiracy.  The USCA thus affirmed.  Canby, Rymer (author), and Hawkins, Circuit Judges.  R. Mazer of San Francisco, CA, and G. Boisseau of Santa Rosa, CA, for the defendants-appellants;  AUSA W. Wong of Sacramento, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  SENTENCING:  USA v. Bad Marriage, 03-30404 (9th Cir. Dec. 30, 2004).  Vernon Lee Bad Marriage, a member of the Blackfeet Indian Tribe with an extensive history of alcohol abuse and a lengthy criminal record was convicted of assault resulting in serious bodily injury in violation of 18 USC Secs. 113(a)(6) and 1153(a).  He was sentenced under the U.S. Sentencing Guidelines.  The District Court departed upward from the applicable sentencing range on the grounds that Bad Marriage’s criminal history score did not adequately reflect the seriousness of his past criminal history and the likelihood that he would commit other crimes.  Because the USCA held that the upward departure was not justified under the facts of this case, it reversed and remanded for resentencing.  Dissenting, Judge Callahan noted that alcohol abuse is a devastating problem on Indian reservations, but the majority’s opinion did nothing to alleviate it.  Instead, the majority reached a conclusion that contradicts the plain language of the Sentencing Guidelines and restricts the District Court’s already limited discretion to sentence defendants.  Pregerson, Ferguson (author), and Callahan (dissenting), Circuit Judges.  D. Ness of Great Falls, MT, for the defendant-appellant;  AUSA J. Van de Wetering of Missoula, MT, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  SENTENCING:  USA v. Gordon, 03-10322 (9th Cir. Dec. 30, 2004).  Gordon, a graduate of Stanford Law School and former Seventh Circuit law clerk, embezzled millions of dollars in cash and stock from his employer, Cisco Systems.  Following his guilty plea conviction for wire fraud, 18 USC Sec. 1343, and insider trading, 15 USC Sec. 78j(b), he appealed the District Court’s final order of restitution.  The District Court imposed restitution in a total amount of $27,397,206.84 under the Mandatory Victims Restitution Act of 1996.  Gordon did not dispute the entire amount of the restitution order but argued that certain portions should not be included.  At issue on appeal was the award of $12,593,902.23 for embezzled shares from one company; prejudgment interest of $2,424,913.32, and reimbursable investigation costs totaling $1,038,477.  The USCA held that the District Court’s restitution analysis for the embezzled shares, including it sophisticated “date of the loss” calculation, was not an abuse of discretion.  Nor did the District Court abuse its discretion in declining to account for brokerage house commissions or for awarding restitution for costs incurred by Cisco during its participation in the criminal investigation.  Finally, the USCA concluded that the district court did not abuse its discretion in awarding prejudgment interest in regards to the embezzled cash and shares of the companies Terayon and Cabletron.  Judge Fernandez concurred in the majority’s opinion, with the exception of parts II, B-1 and II, B-4, as to which he dissented.  Fernandez (dissenting in part), Paez, and Clifton (author), Circuit Judges.  W. Genego of Santa Monica, CA, for the defendant-appellant;  K. Ryan of San Jose, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  SENTENCING:  USA v. Wilson, 03-30089 (9th Cir. Dec. 23, 2004).  Wilson appealed his conviction and sentence in the federal district court on drug charges related to a conspiracy to import, distribute, and possess MDMA (ecstasy).  The District Court rejected, prior to trial, Wilson’s claim that the government had promised him complete immunity in return for his cooperation in dismantling the international conspiracy in which he was involved; and at his sentencing, the court denied him credit for acceptance of responsibility.  Because the District Court’s rulings were free of error, the USCA affirmed both Wilson’s conviction and sentence.  Ferguson, Trott (author), and Kleinfeld, Circuit Judges.  J. Ellis of Portland, OR, for the defendant-appellant;  AUSA C. Stuckey of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  SENTENCING:  USA v. Lopez-Patino, 03-10684 (9th Cir. Dec. 10, 2004).  This case presented the issue of whether a conviction under Arizona’s child abuse statute circa 1990 qualifies as a categorical crime of violence for purposes of the federal Sentencing Guidelines.  The USCA held that it does not.  However, applying the Circuit’s modified categorical approach, the USCA held that the government adequately proved that the appellant’s Arizona conviction in fact qualified as a crime of violence.  Beezer, W. Fletcher, and Fisher, Circuit Judges.  Per Curiam.  T. Hartzell of Tucson, AZ, for the defendant-appellant;  AUSA J. Jacobson of Tucson, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  SENTENCING:  USA v. Smith, 03-30533 (9th Cir. Dec. 3, 2004).  Smith appealed from his sentence which was enhanced by the District Court pursuant to the Armed Career Criminal Act (“ACCA”).  He maintained that the District Court improperly relied on statements made at a no contest plea hearing in concluding that an earlier state burglary conviction qualifies as a “violent felony” for purposes of the ACCA.  In addition, Smith maintained that the District Court engaged in fact-finding which violated the constitutional principle established in Apprendi v. New Jersey, 530 US 466 (2000).  The USCA concluded that the District Court did not err in determining that Smith’s conviction for the burglary in Sacramento qualified as a “violent felony” for purposes of the ACCA enhancement.  It also concluded that the District Court did not find facts in violation of the Apprendi rule.  The USCA thus affirmed the sentence.  Wallace (author), Gould and Bea, Circuit Judges.  AFPD C. Weinerman of Eugene, OR, for the defendant-appellant;  AUSA F. Papagni of Eugene, OR, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

47)  SENTENCING:  USA v. Lopez-Zamora, 03-50304 (9th Cir. Dec. 29, 2004).  For the second time Lopez-Zamora appealed his sentence for attempted entry into the United States after having been deported.  Prior to his second sentencing hearing, he sought downward departures on multiple grounds.  The District Court granted a downward departure for over-representation of criminal history.  On appeal, Lopez-Zamora maintained that the District Court erred by not recognizing its discretion to grant a separate departure based on the minor nature of the underlying offense.  The USCA noted that this argument implicates the interplay among three versions of the Sentencing Guidelines Sec. 2L1.2(b)(1)(A)—the 1995, 1997, and 2001 versions.  At issue was whether the 2001 Guideline amendments categorically forbid a district court from departing due to the minor nature of the underlying felony.  The USCA held that they do not, but it affirmed because the claimed error did not affect the sentence imposed.  Tashima, McKeown (author), and Bybee (concurring), Circuit Judges.  M. Antia of San Diego, CA, for the appellant;  K. Hoffman of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  HABEAS CORPUS:  Lambert v. Blodgett, 03-35081 (9th Cir. Dec. 28, 2004).  This case required the USCA to interpret and apply the standard of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996, and to determine the meaning of the phrase “adjudicated on the merits,” which acts as a prerequisite to AEDPA review.  In Washington state court, 15-year-old Lambert pled guilty to aggravated first-degree murder, an offense which carries a mandatory sentence of life in prison without the possibility of parole.  Shortly thereafter, Lambert filed a Personal Restraint Petition in the Washington Court of Appeals attacking his plea on the grounds that he received ineffective assistance of counsel and that the plea was not knowingly, voluntarily and intelligently entered.  After unsuccessfully arguing his claims both in the Court of Appeals and state Supreme Court, Lambert petitioned the U.S. District Court for a writ of habeas corpus.  The Court granted relief on the ineffective assistance claim, finding persuasive Lambert’s allegation that his attorney, Romero, failed to investigate the government’s case and advise Lambert prior to the entry of his plea.  The Court also concluded that Lambert was entitled to habeas relief on the ground that his plea was not knowing, voluntary and intelligent because he was unaware of the punishment he would face.  Because the USCA concluded that the District Court erroneously disregarded the Washington state court’s factual findings and conclusions of law, the USCA reversed the District Court’s decision granting habeas relief on the ground that Lambert was denied the effective assistance of counsel and his plea was not knowing, voluntary and intelligent.  The USCA otherwise affirmed.  O’Scannlain, Rymer, and Bybee (author), Circuit Judges.  P. Weisser of Olympia, WA, for the appellant;  P. Arthur of Seattle, WA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  HABEAS CORPUS:  Shelby v. Bartlett, 03-35847 (9th Cir. Dec. 13, 2004).  At issue here was whether the one-year limitation period set forth in 28 USC Sec. 2244(d)(1) applies to a 28 USC Sec. 2254 habeas corpus petition challenging a state prison administrative disciplinary decision.  Shelby admits that Sec. 2244’s limitation period applies to habeas petitions challenging state court judgments, but he argues that the limitation period does not apply to petitions challenging prison administrative disciplinary decisions.  The USCA disagreed.  It held that Sec. 2244’s one-year limitation period applies to all habeas petitions filed by persons in “custody pursuant to the judgment of a State court,” 28 USC Sec. 2244(d)(1), even if the petition challenges an administrative decision rather than a state court judgment.  Ferguson, Trott (author), and Kleinfeld, Circuit Judges.  AFPD A. Bornstein of Salem, OR, for the for the petitioner.  AAG C. Alexander of Salem, OR, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  HABEAS CORPUS:  USA v. Fredman, 03-35808 (9th Cir. Dec. 10, 2004).  Fredman appealed the District Court’s denial of his habeas petition, arguing that he was denied effective assistance of counsel due to his counsel’s decision to admit in opening statements to some of Fredman’s criminal wrongdoing.  The USCA held that this “confession and avoidance” tactic did not constitute ineffective assistance.  Because Fredman did not show that his counsel was constitutionally ineffective, the USCA affirmed the District Court’s denial of his habeas petition.  Concurring, Judge Ferguson wrote separately only to ensure that defense counsels realize that a “confession and avoidance” tactic is not something courts ordinarily approve, but that it was reasonable here because no other defense was possible: the defendant's case was a "lost cause.”  Ferguson (concurring), Trott (author), and Kleinfeld, Circuit Judges.  J. Ellis of Portland, OR, for the defendant-appellant;  AUSA J. Kent of Eugene, OR, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  HABEAS CORPUS:  Grotemeyer v. Hickman,02-17150 (9th Cir. Dec. 15, 2004).  At issue here was whether there was juror misconduct that would entitle the petitioner to a new trial.  A few weeks after the trial and verdict, one juror contacted the defense lawyer to complain about the jury foreman.  The defense moved for a new trial, submitted a declaration from the unhappy juror that the foreman, a physician, had improperly used her medical expertise during deliberations.  The disgruntled juror made four claims:  She alleged that the foreman 1) “explained that she had ‘been through this before’ and that Mr. Grotemeyer was indeed guilty of the charges,” 2) said, referring to her medical expertise, that “Mr. Grotemeyer was either mentally ill or retarded, and that his condition caused Mr. Grotemeyer to commit the crime for which he was charged,” 3) “went on to say that ‘an insanity defense should have been mounted,’” and 4) “assured me that if the jury voted to convict, Mr. Grotemeyer would receive as part of his sentence, adequate mental health care.”  The California Court of Appeals found that statements 2) and 4) were misconduct because they were an “injection of external information” into the deliberations, which triggered a presumption of prejudice.  However, it found the presumption rebutted because the evidence was “quite strong,” that these were “two isolated statements made during nearly ten hours of deliberations,” and the physical evidence supported the victim’s account.  The court rejected the contention that the foreman was biased because her comments suggested prejudgment of the case or that she swayed jurors based on his medical expertise.  The California Supreme Court summarily denied Grotemeyer’s petition for review.  The U.S. District Court then denied his petition for a writ of habeas corpus.  The USCA affirmed.  It noted that varied juror experience is a virtue that assists juries in ascertaining the truth.  The California Court of Appeals decision was not contrary to or an unreasonable application of clearly established federal law as determined by the US. Supreme Court.  Goodwin and Kleinfeld (author), Circuit Judges, and Jones, District Judge.  D. Horgan of San Francisco, CA, for the petitioner;  DAG C. Grove of San Francisco, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  HABEAS CORPUS:  Docken v. Chase, 03-35187 (9th Cir. Dec. 29, 2004).  Montana state prisoner Docken brought this federal habeas petition challenging the Montana parole board’s refusal to provide him with annual review of his suitability for parole.  The District Court dismissed his claim as not properly cognizable under the federal habeas statue, 28 USC Sec. 2254.  Because such parole-based claims—which may, but will not necessarily, affect the duration of a prisoner’s confinement if meritorious—are cognizable via habeas, the USCA reversed the district court’s dismissal of Docket’s petition and remanded for further proceedings not inconsistent with this opinion. B. Fletcher, Hamilton, and Berzon (author), Circuit Judges.  W. Holton of Helena, MT, for the petitioner-appellant; no appearance made by the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  HABEAS CORPUS / JURY SELECTION:  Kesser v. Cambra, 02-15475 (9th Cir. Dec. 16, 2004).  At issue here is whether the state appellate court erred in undertaking a “mixed motive” analysis to uphold the constitutionality of three peremptory challenges, when the state prosecutor offered ethnic-neutral reasons for exercising those challenges against three Native American veniremembers, together with an ethnic-based reason for challenging one of those veniremembers.  Applying the AEDPA’s deferential standard of review, the USCA held that the state court’s “mixed motive” analysis was not contrary to or a clear misapplication of Batson v. Kentucky, 476 US 79 (1986).  Baldock (author), Kleinfeld, and Rawlinson (dissenting), Circuit Judges.  W. Weiner of San Francisco, CA, for the petitioner-appellant;  B. Lockyer of San Francisco, CA, for the respondent-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  HABEAS CORPUS:  Mitleider v. Hall, 03-56097 (9th Cir. Dec. 10, 2004).  Mitleider appealed the District Court’s denial of his habeas apetition, maintaining that race motivated the prosecutor’s peremptory strike of four African-Americans from his jury in violation of the equal protection principles articulated in Batson v. Kentucky, 476 US 79 (1986).  The trial court followed the three steps set forth in Batson and determined that the prosecutor’s reason for the challenges were race-neutral.  The trial court’s determination was affirmed on appeal by the California Court of Appeal.  As the state court did not unreasonably apply clearly established federal law or unreasonably determine the facts in denying Mitleider’s Batson challenge, the USCA affirmed.  Fernandez, Silverman, and Callahan (author), Circuit Judges.  D. Bishop of San Diego, CA, for the petitioner;  B. Lockyer of San Diego for the respondents.(Download the full text of this decision at www.cc9.uscourts.gov/)

55)  HABEAS CORPUS:  Boyd v. Newland, 03-17098 (9th Cir. Dec. 29, 2004).  Boyd is African-American.  He was charged in California with unlawfully possessing a firearm after having previously suffered a juvenile adjudication for a felony, Cal. Penal Code Sec. 12021(e), and unlawfully possessing a sawed-off shotgun., Sec. 12020(a)(1).  During voir dire, the persecutor used a peremptory strike to excuse an African-American prospective juror.  The California courts denied Boyd’s Batson motion, denied his request for a free transcript of the entire voir dire for use on appeal, and enhanced his sentence due to a non-jury juvenile adjudication.  The USCA did not find that any of these rulings were contrary to, or unreasonably applied, clearly established federal law as determined by the U.S. Supreme Court.  It thus affirmed the District Court’s denial of habeas relief.  Cudahy, Graber (author), and Fisher, Circuit Judges.  M. Eibert of Half Moon Bay, CA, for the petitioner-appellant;  DAG G. Pruden of San Francisco, CA, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  SUPERVISED RELEASE:  USA v Wise, 03-30274 (9th Cir. Dec. 8, 2004).  This case considers the notice required before imposing a condition of supervised release.  Wise was convicted in 2003 of a crime of dishonesty.  She had obtained the birth certificate of a person who had been born around the same time as herself, but who had died as a child.  Using that birth certificate, she got a Montana identification card in the dead child’s name.  She then went to the Social Security office in Great Falls and applied for a social security number, claiming that she had never had a driver’s license, and that neither she nor a spouse had ever filed income tax returns or been claimed as a dependent on a federal tax return.  The staff at the Social Security office suspected fraud.  They contacted the Montana Bureau of Vital Statistics in Helena and learned that the person Wise claimed to be had been dead for 41 years.  Investigators learned from the Postmaster in Winston, Montana, that Wise had applied for a post office box under the phony name.  Although she had tried to hide her identity by wearing sunglasses and a red wig, both the Postmaster and a customer recognized her and saw her leave in a car with the vanity license plate “R&R Wise.”

       Wise was indicted under 18 USC Sec. 1001 for two counts of lying to the federal government for her lies to the Social Security Administration and the Postal Service.  She pled guilty to the first count in exchange for dismissal of the second.  At the change of plea, Wise told the judge that she had committed the crimes because her husband, who was in prison, had warned her that her former husband, also in prison, whom she had put there for molesting her children, would soon be released, and that she needed to change her identity so that he could not find her and her son. 

      Following trial, the District Court imposed a six month sentence on Wise.  It added three-years supervised release, attached to which were two special conditions:  The first, prohibited Wise from having contact with children, including her five-year-old son, without approval of the Probation Office, and subjected the custody of her son to the state office that provides for dependent children;  the second condition prohibited Wise from possessing pornography and other sexually stimulating material.  Wise appealed the imposition of both conditions.
 The USCA vacated and remanded.  First, although the District Court did not say so, the USCA inferred that the condition prohibiting residing with, maintaining custody of, or being in the presence of children was responsive to Wise’s apparent mental problems and her history involving sexual abuse of children, and was related to the goal of protecting children, who constitute part of “the public.”  So far as the USCA could tell from the record, until the District Court pronounced sentence, Wise and her attorney had no notice that the condition regarding contact with children was under consideration.  The presentence report did not suggest it, and the district judge did not announce that he was contemplating it, and nothing else in the record suggested the condition as a possibility before it was imposed.  Federal Rule of Criminal Procedure 32(i)(1)(C) requires the district court at sentencing to allow the attorneys to comment on the probation officer’s determinations “and other matters relating to an appropriate sentence.”  But Wise and her attorney could not argue about the custody and contact condition as they had no notice of the possibility that Wise would lose her son when she went in for sentencing for lying to the government.

      Wise did not object to the second condition which prohibited her from possessing “any pornographic, sexually oriented or sexually stimulating materials.”  Nevertheless, she maintained that imposing that condition was plain error under USA v. Guagliardo, 278 F.3d 868 (9th Cir. 2002).  Because the USCA vacated the sentence due to lack of notice for the first condition, to which Wise did object, the USCA concluded that it did not have to decide this question.  Still, it noted that if there is notice and objection, the parties and the district court will have to work their way through Ninth Circuit cases on similar conditions.  Because the prohibition on sexually oriented and sexually stimulating materials might arguably include women’s magazines with sexual how-to articles and “bodice-ripper” romance novels available at any grocery store, the USCA said some negotiation and tailoring, after notice and before the sentencing hearing, may be useful to the parties.  D.W. Nelson, Kleinfeld (author), and Fisher, Circuit Judges.  A. Gallagher of Great Falls, MT, for the appellant;  AUSA D. Dennis of Great Falls, MT for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)