1)  SECURITIES LAW:  Employers Teamsters Locals Nos. 175 & 505 Pension Trust Fund v. The Clorox Co., 02-17474 (9th Cir. Jan. 7, 2004).  Investors who purchased stock of The Clorox Company between October 19, 1998 and August 11, 1999 appealed the District Court's summary judgment and judgment on the pleadings in their action against Clorox, First Brands Corporation, and officers of the two companies, for violations of Sec. 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act ("PSLRA");  the District Court limited discovery to two viable claims having to do with statements allegedly made by Clorox officers about its merger with First Brands and, as to them, held that the statements were either not made as alleged or were forward-looking statements accompanied by meaningful disclaimers of uncertainty or caution that were protected by the safe harbor provisions of the PSLRA and the "bespeaks caution" doctrine;  the USCA affirmed.  Bright, D.W. Nelson, and Rymer (author), Circuit Judges.  S. Alexander of San Francisco, CA, for the plaintiffs;  J. Eth of San Francisco, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  TRADE SECRETS:  Lion Raisins, Inc. v. U.S. Dept. of Agriculture, 02-16696 (9th Cir. Jan. 15, 2004).  The plaintiff, a large independent handler of California raisins, is the subject of a criminal investigation because the government suspects that it falsified documents related to USDA inspections of its raisins;  the USDA denied the plaintiff's Freedom of Information Act requests for certain documents;  after exhausting administrative appeals, the plaintiff sued to compel production of the documents pursuant to 5 USC Sec. 552(a)(4)(B);  the District Court granted the USDA summary judgment;  the USCA affirmed in part and remanded;  it held that the FOIA entitles the plaintiff to copies of the originals of its own Line Check Sheets, retained by the USCA;  however, due to the FOIA's "trade secrets" exemption, the plaintiff is not entitled to copies of its competitors' Line Check Sheets;  finally, the defendant must submit additional material supporting the view that its investigative reports fall within the FOIA's "law enforcement" exemption.  Tashima (author), Thomas, and Silverman, Circuit Judges.  B. Leighton of Clovis, CA, for the plaintiff-appellant;  AUSA L. Anderson of Fresno, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  INTELLECTUAL PROPERTY:  Playboy Enterprise, Inc. v. Netscape Communications Corp., 00-56648 (9th Cir. Jan. 14, 2004).  The plaintiff sued Netscape Communications Corp. and Excite, Inc. for trademark infringement and dilution;  the District Court granted the defendants summary judgment.  The USCA reversed and remanded, as there were genuine issues of material fact with respect to the defendants' practice of "keying," which allows advertisers to target individuals with certain interests by linking advertisements to preidentified terms;  here, the defendants required adult-oriented companies to link their banner ads to the search terms "playboy" and "playmate."  Judge Berzon concurred in the majority's opinion, finding it fully consistent with the applicable precedents;  however, she wrote separately to express concern that one of those precedents was wrongly decided and may one day need to be reconsidered en banc—namely, Brookfield Communications v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999) (holding that the defendant could not use the trademarked term "moviebuff" as one of its metatags).  B. Fletcher, T.G. Nelson (author), and Berzon (concurring), Circuit Judges.  B. Felder of Los Angeles, CA, for the plaintiff-appellant;  J. Riffer of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  COMMUNICATIONS LAW:  Abrams v. City of Rancho Palos Verdes, 02-55681 (9th Cir.  Jan. 15, 2004).  The District Court found that the City of Rancho Palos Verdes violated the plaintiff's rights under the Telecommunications Act of 1996 ("TCA"), but denied him 42 USC Sec. 1983 damages on the grounds that Congress intended the TCA to provide a comprehensive remedial scheme;  the USCA reversed and remanded, finding to the contrary that Sec. 1983 remedies are available under the TCA because the TCA does not contain a comprehensive remedial scheme:  rather, it grants no remedies beyond procedural rights.  By enacting TCA Sec. 601(c)(1), Congress indicated its affirmative intent to preserve Sec. 1983 remedies.  Kozinski and T.G. Nelson (author), Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge.  W. Cheong of Los Angeles, CA, for the plaintiff-appellant;  C. Lynch of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 5)  TAXATION:  Adams v. Johnson, 02-35599 (9th Cir. Jan. 22, 2004).  Bivens relief, whereby government officials are held personally liable for constitutional violations committed under color of government authority, was unavailable for the challenges to IRS partnership tax assessment and collection activities in this case;  the Internal Revenue Code gives taxpayers meaningful protections against government transgressions in tax assessment and collection.  Aldisert, Graber, and Gould (author), Circuit Judges.  W. Pearson of Seattle, WA, for the plaintiffs-appellants;  A. Sheehan of Washington, DC, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  TAXATION / ASSIGNMENT OF LOTTERY WINNINGS: USA v. Maginnis, 02-35664 (9th Cir. Jan. 30, 2004).  In 1991, Maginnis won $9 million from the Oregon state lottery, payable in 20 annual installments of $450,000;  after receiving five such payments, he assigned his right to the remaining lottery installments to a third party in 1996 for a lump sum payment discounted to $3,950,000;  initially, he reported this lump sum payment as ordinary income on his joint tax return;  in 1998, however, he filed a refund claim, arguing that the payment was a capital gain subject to a lower tax rate;  the IRS initially granted the refund, but later determined that the lump sum payment was ordinary income, and brought this suit to recover an erroneous refund of income tax;  the District Court granted summary judgment for the government.  The USCA affirmed, holding that Maginnis received ordinary income, not a capital gain from the assignment of his lottery right;  the USCA concluded that the Maginnis' lottery right did not reflect an underlying capital investment or an increase in value over cost, and because there was no compelling reason to treat the assignment of the lottery right as an assignment of a capital asset, it applied the substitute for ordinary income doctrine.  Trott, Fisher (author), and Gould, Circuit Judges.  G. MacGrady of New Milford, Conn., for the defendants-appellants;  J. McEvain of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  BANKRUPTCY /  TAXATION:  In re Olshan, 02-56792 (9th Cir. Jan. 28, 2004).  This case involves the disposition of an IRS claim against Olshan, the debtor in bankruptcy, for unpaid taxes;  the Bankruptcy Court rejected the claim, but the District Court reversed and remanded for further proceedings, ruling that the Bankruptcy Court erred in applying the burden-shifting rubric for resolving tax claims;  the Bankruptcy Trustee appealed.  The USCA held that the Bankruptcy Court erred in rejecting the IRS' claims for unreported non-business income and overstated business deductions after finding that the IRS' method of computing debtor's unreported business income was flawed;  it remanded with instructions, noting that undisputed evidence in the record would enable the Bankruptcy Court to determine debtor's tax liability, penalties, and interest.  Beezer and Kozinski, Circuit Judges, and Schwarzer (author), District Judge.  K. Gordon of Los Angeles, CA, for the appellant;  AAG E. O'Connor of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  BANKRUPTCY / TAXATION:  In re Bunyan, 02-56786 (9th Cir. Jan. 20, 2004).  The debtors appealed the District Court's affirmance of an order of the Bankruptcy Court, which overruled their objections to claims for income taxes filed by the IRS in their Chapter 13 proceedings;  the USCA affirmed the Bankruptcy Court's decision to overrule the debtors' objections, because it concluded that the Bankruptcy Court lacked jurisdiction to consider the validity of the tax assessments;  the USCA held that its 1993 order dismissing the consolidated appeals for lack of jurisdiction was an adjudication of the only issue in dispute in this case—whether the Tax Court decision was final at the time that the IRS assessed the deficiencies against the debtors;  under 11 USC Sec. 505(a)(2)(A), the Bankruptcy Court lacked jurisdiction to consider the validity of the tax assessments.  Hug, B. Fletcher (author), and Wardlaw, Circuit Judges.  J. Wegge of Pasadena, CA, for the debtors;  F. Ugolini of Washington, DC, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  BANKRUPTCY / TAXATION:  Dunmore v. USA, 02-15789 (9th Cir. Jan. 29, 2004).  Dunmore sued the IRS in District Court seeking refunds for alleged overpayments of taxes;  the IRS maintained that the bankruptcy estate, not Dunmore, owned the unscheduled claims following Dunmore's bankruptcy;  pursuant to the parties' stipulation, the District Court transferred the matter to the Bankruptcy Court where the trustee abandoned the claims;  the Bankruptcy Court then denied Dunmore's request to transfer his action back to the District Court for further proceedings, concluding that his case was a core proceeding and that it had authority to decide the matter;  it subsequently dismissed his case for failure to prosecute it in the bankruptcy forum;  Dunmore appealed this dismissal, but the District Court affirmed.  Reversing and remanding, the USCA held that, although the Bankruptcy Court had "related to" jurisdiction over Dunmore's tax refund claims, those claims constituted non-core proceedings;  the District Court thus abused its discretion when it affirmed the Bankruptcy Court's final order dismissing Dunmore's case for failure to prosecute;  Dunmore had not consented to a jury trial for his non-core proceedings in the Bankruptcy Court forum.  Graber, Wardlaw, and Bybee (author), Circuit Judges.  S. Dunmore pro se;  R. Hutter of Washington, DC, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  BANKRUPTCY:  In re Price, 02-16458 (9th Cir. Jan. 7, 2004).  Price had financed his clothing business through cash and credit card advances;  that business failed;  with his only income now from his work as a computer consultant, he could not pay his debts and filed a voluntary petition in bankruptcy under Chapter 7;  The Bankruptcy Court appropriately dismissed the Chapter 7 petition for substantial abuse pursuant to 11 USC Sec. 707(b) based on findings that the debtor had primarily consumer debts and the ability to fund a Chapter 13 plan, despite evidence that the debt to be discharged consisted primarily of commercial debt.  Schroeder, Thomas (author), and Clifton, Circuit Judges.  J. White of Reno, NV, for the appellant;  N. Strozza of Reno, NV, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

11)  WATER RIGHTS:  USA v. Clifford Matley Family Trust, 01-15778 (9th Cir. Jan. 20, 2004).  The USCA reversed and remanded a District Court order affirming the Water Master's reclassification of farm land located in the Newlands Reclamation Project in western Nevada from "bottom" land to "bench" land for water allocation purposes; the District Court had adopted an incorrect legal standard for evaluating a petition to reclassify Project land;  the Water Master may approve a petition for reclassification of water rights in the Truckee-Carson river system only when there has been a reasonably significant loss in crop yield.  Dissenting in part, Judge Sneed agreed with the majority's conclusions on the procedural matters but thought the majority erred in modifying a standard that the District Court lacked authority to create;  rather than tinkering with that standard, he thought the case should have been remanded and the order vacated so that the District Court could conduct the review it failed to properly conduct in the first instance.  Sneed (dissenting in part), McKeown, and Paez (author), Circuit Judges.  J. Kilbourne of Washington, DC, and R. Pelcyger of Louisville, CO, for the plaintiff-appellant;  G. DePaoli of Reno, NV, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ENVIRONMENTAL LAW / CLEAN UP COSTS: USA v. Phillips, 02-30035 (9th Cir. Jan. 28, 2004).  Phillips appealed his criminal conviction for violating the Clean Water Act ("CWA") and conspiring to violate the CWA;  the USCA rejected Phillips' claim that the District Court erred in refusing to dismiss the indictment for lack of jurisdiction on the ground that the Fred Burr Creek was not a navigable water under the CWA and in so instructing the jury;  the USCA thus affirmed Phillips' conviction;  the USCA also held that a District Court must consider all reliable evidence of cleanup costs in its determination of whether the defendant's actions caused a substantial expenditure for cleanup pursuant to U.S. Sentencing Guideline Sec. 2Q1.3(b)(3);  the USCA further held that the government need only show an attempt to influence a witness to trigger the obstruction of justice enhancement of Guideline Sec. 3C1.1;  finally, the USCA held that the government may be a victim entitled to restitution pursuant to Guideline Sec. 5E1.1;  in that context, site investigation costs necessary to determine the extent of the environmental damage and the appropriate cleanup actions may be recoverable;  the USCA thus vacated Phillips' sentence and remanded for resentencing.  Brunetti, T.G. Nelson (author), and Rawlinson, Circuit Judges.  M. Sherwood of Missoula, MT, for the defendant-appellant;  T. Sansonetti of Missoula, MT, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  INSURANCE / ENVIRONMENTAL LAW:  Zurich American Insurance Co. v. Whittier Properties, Inc., 02-36101 (9th Cir. Jan. 29, 2004).  Whittier Properties, a gas station owner and operator, appealed the District Court's grant of Zurich American Insurance Company's motion for summary judgment;  the District Court held as a matter of law that Whittier made a material misrepresentation on its insurance application for a policy provided by Zurich and that Zurich could therefore rescind the policy and deny coverage to Whittier;  the USCA reversed the determination that Zurich could rescind the policy and remanded for further proceedings;  the USCA accepted the Environmental Protection Agency's interpretation of federal regulations governing underground storage tanks ("UST");  EPA regulations, which Alaska has expressly adopted in its own state regulations, provide for the exclusive remedy of prospective cancellation of an UST insurance policy in the event of an insured's misrepresentation; thus, the fact that the gas-station owner here denied prior soil contamination on its insurance application did not warrant rescission of the policy.  Brunetti, T.G. Nelson (author), and Graber, Circuit Judges.  G. Lyle of Anchorage, AK, for the defendant;  D. Walters of Anchorage, AK, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  INSURANCE / DISABILITY BENEFITS:  Prieto v. Paul Revere Life Insurance Co., 02-15637 (9th Cir. Jan. 9, 2004).  The USCA affirmed the District Court's grant of summary judgment to Paul Revere Life Insurance Company on the plaintiff's bad faith and punitive damage claims;  however, it reversed the District Court's sua sponte finding of waiver and remanded with instructions to award the plaintiff residual benefits for the period of August 1996 to August 1997;  because waiver had been neither properly pled by the defendant under Fed. Rule Civil Proc. 8(c), nor properly amended by the District Court under Rule 15(b), the plaintiff was entitled to residual disability benefits for the period of August 1996-August 1997;  the USCA remanded for the District Court to award the plaintiff his residual disability benefits for this period;  it awarded costs to the plaintiff.  Kozinski and T.G. Nelson, Circuit Judges, and Restani (author), U.S. Court of Intl. Trade Judges.  F. Berry of Phoenix, AZ, for the plaintiff-appellant;  S. Bales of Phoenix, AZ, for the defendant-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

15)  INSURANCE:  Eichacker v. The Paul Revere Life Insurance Company, 02-17136 (9th Cir. Jan. 20, 2004).  Whether or not the plaintiff received "physician's care" for the condition causing his disability as required by his insurance policy's definition of "disability" is a disputed issue of fact that warrants a jury trial; the USCA thus reversed the District Court's summary judgment for the defendant and remanded the matter for a jury trial on the question of whether the plaintiff met the policy's definition of "disability."  Dissenting, Judge Rymer said simply that she would affirm.  Bright, D.W. Nelson (author), and Rymer (dissenting), Circuit Judges.  S. Parsons and A. Cates of Las Vegas, NV, for the plaintiff-appellant;  A Andrews, K. Demarchi, and S. Bales of Phoenix, AZ, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  INSURANCE / DUTY TO DEFEND RICO CLAIMS: The Upper Deck Company v. Federal Insurance Company, 02-56081 (9th Cir. Jan. 12, 2004).  The plaintiff, a manufacturer of playing cards, filed this suit against Federal, its insurance company, for breach of contract and declaratory relief after Federal rejected the tender of a claim against the plaintiff on the grounds that there was no accident or occurrence as required under the insurance policies;  the plaintiff then filed suit against Federal for breach of contract and declaratory relief, claiming that although the underlying lawsuit was styled as a RICO suit, it could have been construed or amended to assert damages for personal injury to children as a result of a gambling addition;  on cross motions for summary judgment, the District Court denied the plaintiff's motion and granted Federal's;  it ruled that no duty to defend existed because of the absence of an occurrence or accident;  the USCA affirmed;  the insurance policies covering claims for bodily injury did not obligate Federal to defend plaintiff against RICO claims;  neither the RICO complaint nor the extrinsic evidence available at the time of tender could be construed as giving rise to a claim to bodily injury as defined in the policies;  Judge Bright concurred in the result but on the basis of the district judge's reasoning in this case rather than on the grounds cited by the majority. Bright (concurring), O'Scannlain, and McKeown (author), Circuit Judges.  G. Osborne of San Diego, CA, for the plaintiff-appellant;  P. Abrahams of Encino, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  RICO:  Diaz v. Parks, 02-56818 (9th Cir. Jan. 20, 2004).  The plaintiff, alleging only personal harm arising from wrongful conviction and incarceration, lacked standing to bring a RICO claim as he failed to allege an injury to "business or property," a showing of which requires proof of concrete financial loss, not mere injury to a valuable intangible property interest;  the District Court correctly dismissed his claim for relief under FRCP 12(b)(6).  Brunetti (author), T.G. Nelson, and Silverman, Circuit Judges.  S. Yagman of Venice, CA, for the appellant;  J. Bogigian of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  RICO / WAGE & HOUR CLAIMS:  Miller v. Yokohama Tire Corp., 02-56722 (9th Cir. Jan. 12, 2004).  This case involved an effort to transform a state law wage and hour claim into a federal RICO claim under 18 USC Sec. 1962(c) and (d);  the plaintiff alleged that he was a victim of a mail fraud scheme by the defendant and its managers, who, he alleged, misrepresented his entitlement to overtime pay and consequently underpaid him;  the District Court dismissed the RICO claims under Fed. R. Civil Proc. 12(b)(6), without leave to amend, and remanded to state court all remaining state law claims;  the USCA affirmed, finding that the complaint, as a matter of law, did not allege actionable fraud under the common law;  the USCA declined to expand RICO's reach to transform the federal courts into a general venue or ordinary state wage disputes.  Bright, O'Scannlain, and McKeown (author), Circuit Judges.  W. Zeltonoga of Los Angeles, CA, for the plaintiff;  D. Proudfoot of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  EMPLOYMENT DISCRIMINATION:  Peterson v. Hewlett-Packard Company, 01-35795 (9th Cir. Jan. 6, 2004).  The plaintiff, fired for violating the defendant's anti-harassment policy and for failing to remove from his work cubicle religious scriptures condemning "gay behavior," failed to raise a triable issue of fact that his termination was on account of his religious beliefs;  the USCA thus affirmed the District Court's summary judgment for the employer on the grounds that the plaintiff failed to raise an inference of disparate treatment and that accommodating the plaintiff's beliefs would inflict undue hardship upon the employer.  Reinhardt (author), W. Fletcher, and Gould, Circuit Judges.  C. Troupis of Boise, ID, for the plaintiff;  W. Mauk of Boise, ID, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  LABOR LAW:  Wagner v. Professional Engineers in California Government, 02-16397 (9th Cir. Jan. 14, 2004).  The defendant ("PECG"), is the exclusive bargaining agent for a unit of California state employees and had signed a collective bargaining agreement with the state which contains a union security clause;  the plaintiffs are engineers who are members of the bargaining unit but not members of PECG;  as such, they are obligated to pay "fair-share" fees;  they maintained that PECG failed to provide proper notice to fee payers as required by Chicago Teachers Union Local No. 1 v. Hudson, 475 US 292, and it improperly categorized certain activities as representational;  PECG conceded that the notice was defective.  The USCA held that the proper remedy for a defective notice is the issuance of a proper notice with a renewed opportunity for nonmembers to object;  it further held that the plaintiffs were judicially estopped from pursuing their second claim.  Judge Clifton dissented from the majority's conclusions that the District Court erred in reaching the chargeability issue, and that the District Court did not err in limiting the class definition and relief to the seven-month period spanning March through October, 1999; he concurred in the rest of the majority opinion.  Graber (author), Wardlaw, and Clifton (dissenting in part), Circuit Judges.  J. Demain of San Francisco, CA, for the defendant;  M. Beutler of Springfield, VA, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  ERISA:  Associated Builders & Contractors of Southern California v. Nunn, 02-56735 (9th Cir. Jan. 16, 2004).  8 Cal. Code Regs. Secs. 208(b)-(c), as amended, which establish minimum wages and benefits for state-registered apprentices on public and private construction projects for state-registered apprentices, are not preempted by either ERISA or the National Labor Relations Act.  Reinhardt (author), Fernandez, and Rawlinson, Circuit Judges.  D. Cook of Sacramento, CA, for the plaintiff-appellant;  J. Rea of Los Angeles, CA, for the defendants-appellees;  S. Berzon of San Francisco, CA, for the intervenor-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  ERISA:  Johnson v. W.L. Gore & Assocs., 02-17094 (9th Cir. Jan. 28, 2004).  When W.L. Gore & Associates closed a plant in 1998, many of its employees lost their jobs before they qualified for an additional year of vesting and benefit accrual credit under Gore's stock ownership and pension benefit plan;  Gore's Plan used the "elapse-time" method to calculate vesting and benefit accrual; that method counts the period of time the employee is employed, not the number of hours the employee has worked during a given 12-month period.  The USCA held that the "elapsed-time" method does not violate ERISA's vesting and benefit accrual requirements and that Gore did not violate either the elapse-time regulation or its own Plan; it thus upheld the District Court's summary judgment for Gore.  Schroeder, D.W. Nelson (author), and Rymer, Circuit Judges.  S. Martin of Phoenix, AZ, for the plaintiffs;  C. Knapp of Minneapolis, Minnesota for the defendant for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  ADMIRALTY /  WORKERS' COMPENSATION: Kalama Services, Inc. v. Director, Office of Workers Compensation Programs, 02-72578 (9th Cir. Jan. 15, 2004).  The Benefits Review Board did not err in ruling that injuries suffered by an off-duty employee during foreseeable horseplay in a bar on the Johnston Atoll arose out of a "zone of special danger" created by the isolation of the island and the limited recreational opportunities available there, for purposes of eligibility for worker's compensation benefits under the Longshore and Harbor Workers' Compensation Act.  Tashima, Thomas, and Silverman (author), Circuit Judges.  K. Flicker of New York, NY, for the petitioners;  J. Friedheim of Honolulu, HI, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  AMERICANS WITH DISABILITIES ACT / ARBITRATION AWARDS / JURISDICTION:  Luong v. Circuit City Stores, Inc., 02-56522 (9th Cir. Jan. 30, 2004).  In this case, the USCA was called upon to decide whether there existed an independent basis for federal jurisdiction to hear a challenge to an arbitration award of zero dollars;  Luong filed a petition in federal District Court to vacate the arbitration award in favor of Circuit City Stores, Inc. on his claim that Circuit City violated his rights under the Americans with Disabilities Act;  the District Court dismissed the action as the award was less than the jurisdiction amount ($75,000) required for diversity jurisdiction under 28 USC Sec. 1332(a);  the District Court also held that although the petition alleged that the arbitrator acted in manifest disregard of federal law, Luong's petition did not raise a federal question because the presence of federal questions in the underlying arbitration is insufficient to confer jurisdiction under Garrett v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 882 (9th Cir. 1993).  The USCA agreed that the amount in controversy for purposes of diversity jurisdiction over a petition to vacate an arbitral award is the amount awarded in the arbitration proceeding, not the sum claimed in the underlying action;  however, the USCA found that it did not need to decide whether it is ever possible for federal question jurisdiction to lie if a petitioner complains about an arbitrator's manifest disregard of federal law;  Luong's petition shows on its face that his complaint is not about manifest disregard, which occurs only when an arbitrator recognizes the applicable law yet ignores it, but is rather about the arbitrator's misinterpretation and misapplication of Toyota Motor Manufacturing, Inc. v. Williams, 534 US 184 (2002);  the USCA said, it had no authority to consider this matter;  lacking any independent basis for subject matter jurisdiction, the District Court had to dismiss the petition.  Dissenting, Judge Kozinski thought that the majority's opinion was directly contrary to that of American Guaranty Co. v. Caldwell, 72 F.2d 209 (9th Cir. 1934), which held that it is the "amount in controversy which determines jurisdiction, not the amount of the award." Id. at 211.  Kozinski (dissenting), Fernandez, and Rymer (author), Circuit Judges.  M. Wells of Anaheim, CA, for the petitioner-appellant;  R. Berry of Sacramento, CA, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  PROPERTY / REGULATORY TAKINGS:  Carson Harbor Village, Ltd. v. City of Carson,. 02-56213 (9th Cir. Jan. 2, 2004).  The plaintiff, a mobile home park whose rent increase application was partly denied by the city's Rental Review Board, failed to avail itself of state procedures for seeking just compensation as required by Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 US 172 (1986), and failed to show that these procedures were inadequate; at best, the plaintiff alleged that the new compensation procedures were "untested or uncertain" and, under Circuit precedents, insufficient to qualify for an exemption from Williamson's second ripeness requirement;  plaintiff's regulatory takings claim was not ripe;  the USCA thus affirmed the District Court's dismissal of the plaintiff's regulatory takings claim.  Concurring specially, Judge O'Scannlain agreed that because the plaintiff made no effort to seek compensation for an alleged taking through a writ of mandamus and adjustment under Kavanau v. Santa Monica Rent Control Board, 941 P.2d 851 (Cal. 1997), the plaintiff's regulatory takings claim had to be dismissed as unripe; but he wrote separately to express his concern that California's procedures may not provide "just compensation" because the burden of compensation falls not on the government as the representative of the benefiting general public, but on a select group of future tenants.  Reinhardt, O'Scannlain (concurring), and Fisher (author), Circuit Judges.  D. Spangenberg of Healdsburg, CA, for the plaintiff-appellant;  R. Browne of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  FAIR HOUSING LAW:  Smith v. Pacific Properties and Development Corp., 03-15656 (9th Cir. Jan. 26, 2004).  A disabled person seeking to enforce rights created by Sec. 3604(f)(2) of the Fair Housing Amendments Act need not have an interest in actually purchasing or renting a particular property or dwelling in order to allege a discriminatory violation;  that is, "testers" may have representational standing to assert rights created by Sec. 3604(f)(2);  the plaintiff-appellant Disabled Rights Action Committee, a non-profit corporation, may have organizational standing to allege violations of the Act based on its own articulated "injury in fact" separate and apart from that of its "testers."  Hawkins (author), Paez, and Berzon, Circuit Judges.  R. Armknecht of Lindon, UT, for the plaintiff-appellant;  G. Meier of Las Vegas, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  FAIR HOUSING LAW:  Edwards v. Marin Park, Inc., 02-16820 (9th Cir. Jan. 26, 2004).  A plaintiff may not be sanctioned for declining the opportunity to amend her complaint;  the dismissal of the plaintiff's prima facie Fair Housing Act retaliation claim was improper;  the plaintiff satisfied the correct pleading standard by giving fair notice of her discrimination claim under the Act with a short and plain statement of her claim showing that she is entitled to relief.  Hawkins, Paez, and Berzon (author), Circuit Judges.  V. DeMartini of San Rafael, CA, for the defendant-appellant;  T. Moore of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  ADVERTISING / HEALTH LAW:  American Academy Of Pain Management v. Joseph, 01-15764 (9th Cir. Jan. 2, 2004).  The USCA affirmed the District Court's judgment that California Business and Professions Code Sec. 651(h)(5)(B), which restricts the use of the term "board certified" in physician advertisements, is not unconstitutional;  California, in regulating the advertising of the physician's and surgeon's profession, sought to give a consistent meaning to the term "board certified," as representing particular standards of postgraduate study;  such consistent usage informs the medical community and the general public that the physicians and surgeons advertising that they are "board certified" have met a certain standard of postgraduate education and experience;  physicians are not precluded from advertising that they limit their practice to certain fields or that they are members of, or have had special education from, non-qualified boards or associations;  the screening process adopted by California is constitutional.  Sneed, Hug (author), and Berzon, Circuit Judges.  J. Milam of Modesto, CA, for the plaintiffs-appellants;  DAG M. Faust of Sacramento, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  FAMILY LAW:   Miller v. Yuba County Human Services Agency, 02-16780 (9th Cir. Jan. 22, 2004).  Non-custodial grandparents, acting as de facto parents to grandchildren who are dependents of the juvenile court, do not have a substantive due process right to family integrity and association with those grandchildren;  placing the grandfather's name on the California Child Abuse Central Index did not constitute a denial of his Constitutional right to due process.  Bright, D.W. Nelson, and Rymer (author), Circuit Judges.  R. MacKenzie of Sacramento, CA, for the plaintiffs-appellants;  J. Duggan of Sacramento, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  FORFEITURE: USA v. $100,348 in U.S. Currency, 02-55330 (9th Cir. Jan. 16, 2004).  The "lawful possessor" of seized currency who has Article III standing to contest the seizure in a civil forfeiture proceeding is the proper party to make an Eighth Amendment Excessive Fines challenge to the amount forfeited;  the District Court employed the correct standard of proof, appropriately granted summary judgment, properly denied attorneys' fees, and did not abuse its discretion in denying an untimely, unverified claim for the funds;  dissenting from Part VI of the opinion which held that the claimant had standing to assert a challenge to the amount ordered forfeited based on the Eighth Amendment's Excessive Fines Clause, Judge Wardlaw said that, based on the text, history, and purpose of the Eighth Amendment, he would concluded that the District Court erred in permitting the claimant to assert such a claim.  D.W. Nelson, Wardlaw (authored Parts I, II, III, IV, V, VII, and VIII in which Nelson and Fisher joined), and Fisher (authored Part VI, in which Nelson joined and Wardlaw dissented), Circuit Judges.  AUSA J. Gordon of Los Angeles, CA, for the plaintiff-appellant / cross-appellee;  E. Honig of Marina del Rey, CA, and E. Rafeedie of Malibu, CA, for the claimants-appellees / cross-appellants. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  FIRST AMENDMENT:  Roe v. City of San Diego, 02-55164 (9th Cir. Jan. 29, 2004).  Roe, while a San Diego police officer, videotaped himself stripping off a generic police officer's uniform and engaging in acts of masturbation;  he then offered these videos for sale on the adults-only section of eBay, using a fictitious name and a Northern California address; although the videos did not reveal his connection with the San Diego Police department, Roe was unmasked when one of his supervisors discovered the videos on-line and recognized Roe's picture;  the Department confronted Roe, who readily admitted making and selling the videos, and fired him.  Roe sued, alleging that his off-duty activities were protected by the First Amendment and could not be grounds for terminating his employment.  The District Court dismissed Roe's claim, concluding that the videos did not address a matter of "public concern," and thus the Department did not violate Roe's constitutional rights by firing him.  The USCA concluded that the District Court erred, and reversed and remanded for further proceedings;  it found that Roe's expressive conduct was not about private personnel matters, was directed to a segment of the general public, occurred outside the workplace and was not motivated by an employment-related grievance;  thus, he was not speaking as an employee on matters related to his personal status in the workplace;  under the "public concern" test, Roe's expressive conduct did not fall within an unprotected category of speech, so the District Court erred in dismissing his First Amendment claim without proceeding to Pickering v. Bd. Of Educ., 391 US 563, 568 (1968), balancing or the Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 US 274 (1977), "mixed motive" analysis.  Dissenting, Judge Wardlaw thought that the nature and content of Roe's speech determines whether Roe's termination is subject to First Amendment review;  because Roe's speech "cannot be fairly characterized as constituting speech on a matter of public concern, the First Amendment is inapplicable and the court need not scrutinize the reasons for any adverse actions."  Remand for analysis under Pickering or Mt. Healthy is thus unwarranted;  Judge Wardlaw would thus affirm the District Court.  D.W. Nelson, Wardlaw (dissenting), and Fisher (author), Circuit Judges.  M. Baranic of San Diego, CA, for the plaintiff;  P. Castleman of San Diego, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  CIVIL RIGHTS:  Guerrero v. Gates, 02-56017 (9th Cir. Jan. 29, 2004).  Guerrero pleaded guilty to two charges of possession of narcotics;  he later attempted to bring claims under 42 USC Sec. 1983 that are barred by Heck v. Humphrey, 512 US 477 (1994);  the claims stem from Guerrero's allegations of wrongful arrest, malicious prosecution, and a general conspiracy of "bad behavior" among police officials in connection with his arrests, prosecutions, and incarcerations;  based on the same incidents, he also attempted to bring time-barred excessive force claims under Sec. 1983 and claims for which he lacked standing under the Racketeer Influenced and Corrupt Organizations Act;  the USCA affirmed the District Court dismissal of the case for failure to state a claim under FRCP 12(b)(6).  Brunetti, T.G. Nelson (author), and Silverman, Circuit Judges.  S. Yagman of Venice, CA, for the plaintiff;  J. Bogigian of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  CIVIL RIGHTS / EXCESSIVE FORCE:  Smith v. City of Hemet, 02-56445 (9th Cir. Jan. 29, 2004).  The Ninth Circuit here again addresses the quagmire created by the interplay between Heck v. Humphrey, 512 US 477 (1994), and convictions for violations of California Penal Code Sec. 148;  because California courts have interpreted Sec. 148 so as to incorporate a finding of no excessive force, the USCA affirmed the District Court's ruling that Heck bars Smith's Sec. 1983 action based on allegations that police used excessive force in attempting to arrest him;  dissenting, Judge Fletcher thought that the majority's decision was wrong as a matter of law, as it is inconsistent with Heck and with Sanford v. Motts, 258 F.3d 1117 (9th Cir. 2001), and an invitation to police departments to use charges and plea bargains under Sec. 148(a)(1), or its equivalent, to avoid Sec. 1983 excessive force suits; he also thought the majority's decision was inconsistent with decisions by the Third, Seventh, Tenth, and Eleventh Circuits.  Silverman, W. Fletcher (dissenting), and Rawlinson (author), Circuit Judges.  D. Cook of Los Angeles, CA, for the plaintiff;  J. Biggs of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  QUALIFIED IMMUNITY:  Beier v. City of Lewiston, 02-35516 (9th Cir. Jan. 14, 2004).  Two City of Lewiston police officers arrested Beier for violating a temporary protection order the terms of which they had neither read nor ascertained from authorized personnel;  Beier brought suit under 42 USC 1983, asserting that his arrest was in violation of the Fourth Amendment;  the officers appealed from the District Court's denial of their motion for summary judgment on grounds of qualified immunity;  the USCA affirmed:  the officers were not entitled to summary judgment on qualified immunity grounds as Beier's arrest did not comply with the Fourth Amendment, and the officers could not reasonably have believed otherwise;  any reasonably competent officer would have ascertained the terms of the protection order before arresting Beier for failing to comply with it.  Thompson, Hawkins, and Berzon (author), Circuit Judges.  B. Stromberg of Lewiston, ID, for the defendants;  T. Ford of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  CONSTRUCTION / FALSE CLAIMS:  Ex rel. A. Amir Ali v. Daniel, Mann, Johnson & Mendenhall, 02-56432 (9th Cir. Jan. 20, 2004).  Ali challenged the District Court's grant of summary judgment in favor of Daniel, Mann, Johnson & Mendenhall ("DMJM") in this qui tam action under the False Claims Act ("FCA");  he alleged that DMJM, acting as a con construction management firm for the California State University at Northridge, knowingly submitted false claims to the Federal Emergency Management Agency ("FEMA");  the District Court held that the corporation was not subject to liability under the FCA because DMJM was acting as an agent of the State when it allegedly submitted false claims.  The USCA reversed and remanded, finding that the District Court erred in concluding that DMJM is immune from suit for false claims submitted to FEMA;  rather, the USCA found that DMJM is a private corporation and was not acting as an arm of the State for sovereign immunity purposes;  moreover, summary judgment could not be affirmed on alternate grounds because Ali raised genuine issues of material fact as to whether DMJM, through two of its employees, knowingly submitted false claims to FEMA.  Hug, B. Fletcher (author), and Wardlaw, Circuit Judges.  B. Brown of Tustin, CA, for the plaintiffs-appellants;  K. White of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  IMMIGRATION:  Jahed v. INS, 02-70487 (9th Cir. Jan. 20, 2004).  The USCA held that the petitioner, together with his family, all citizens of Iran, were eligible for asylum as refugees;  the record left no doubt that the petitioner had been singled out for avengement on account of his politics;  the USCA thus remanded the asylum request to the Attorney General and remanded to the BIA the alien's request for withholding of deportation;  dissenting, Judge Kozinski noted that the Ninth Circuit seems bent on denying the BIA the deference a reviewing court owes an administrative agency;  in this instance, after carefully considering the record and correctly identifying the applicable law, the Immigration Judge ("IJ") concluded that the petitioner was not eligible for asylum;  the BIA affirmed, based largely on the IJ's written opinion;  the BIA did not misunderstand the law or overlook key evidence;  it did everything just right;  what the majority found fault with was the process at the heart of the agency's authority and expertise:  determining the basic facts undergirding the petitioner's asylum claim; Judge Kozinski thought that the IJ and the BIA made two findings that fatally undermined the petitioner's asylum claim: that whatever harassment he may have suffered in Iran was not on account of his political opinion, and that the harassment was not by the government;  however, the majority, Judge Kozinski thought, offered no justification  for reversing the IJ's and BIA's finding that the petition lacks a well-founded fear that he would be persecuted were he to return to Iran;  the majority's perfunctory analysis not only did not compel reversal, it didn't even support it.  B. Fletcher, Kozinski (dissenting), and Trott (author), Circuit Judges.  R. Athari of Las Vegas, NV, for the petitioner;  C. Bither of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  IMMIGRATION:  Lin v. Ashcroft, 02-70662 (9th Cir. Jan. 26, 2004).  Factors that established the prejudicial incompetence of an asylum applicant's counsel in this case included the lack of evidence that counsel ever spoke to the applicant, a minor, about his case, conducted any research on the applicant's claim, or prepared him for his hearing; in addition, counsel failed on direct appeal, to do anything to rectify the errors made in her presentation to the Immigration Judge;  the USCA thus granted the petition for review and reopened and remanded the application for asylum; the BIA abused its discretion in refusing to reopen his claim.  B. Fletcher (author), Kozinski, and Trott, Circuit Judges.  M. Pifko of Los Angeles, CA, for the petitioner;  D. Goldman of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  IMMIGRATION:  Li v. Ashcroft, 00-70157 (9th Cir. Jan. 29, 2004).  In 8 USC Sec. 1101(a)(42)(B), Congress made clear that individuals forced to undergo abortion or sterilization would be deemed to have been persecuted on account of political opinion;  at issue here is the proper treatment of persons persecuted for "other resistance" to these policies;  sitting en banc, the USCA determined that a woman who announced her opposition to government population control policies and was thereafter subjected to a forced gynecological exam, threatened with arrest and future abortion, as well as the sterilization of her boyfriend, is eligible for asylum;  dissenting, Judge Kleinfeld noted that the Supreme Court has chastised the Ninth Circuit for failing to defer properly to the BIA in an asylum case and that the Supreme Court said that the Circuit "committed clear error" and "seriously disregarded the agency's legally mandated role."  Moreover, earlier, the Supreme Court unanimously reversed the Ninth Circuit for failing "to accord the required level of deference" to the BIA in a case involving withholding of remove, and before that it reversed a Ninth Circuit asylum decision because the panel failed to apply correctly the substantial-evidence standard and defer to the BIA.  Yet today, Judge Kleinfeld noted that Court makes the same mistakes.  Schroeder, Pregerson, Reinhardt, T.G. Nelson, Kleinfeld (dissenting), Hawkins (author), Thomas, Graber, Wardlaw, Paez, and Clifton, Circuit Judges.  R. Jobe of San Francisco, CA, for the petitioners;  G. Mack of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  IMMIGRATION / DRUG OFFENSES:  Cazarez-Gutierrez v. Ashcroft, 02-72978 (9th Cir. Jan. 26, 2004).  The USCA held that a state drug offense is not an aggravated felony for immigration purposes unless it is punishable as a felony under the federal Controlled Substance Act or other federal drug laws named in the definition of "drug trafficking crime," or is a crime involving a trafficking element.  Hug, B. Fletcher (author), and Tashima, Circuit Judges.  J. Bracamonte of Phoenix, AZ, for the petitioner-appellant;  A. Payne of Washington, DC, for the respondent-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

40)  IMMIGRATION:  USA v. Hernandez-Vermudez, 03-50160 (9th Cir. Jan. 26, 2004).  An illegal alien who enters the United States without inspection and commits an aggravated felony is subject to administrative removal pursuant to 8 USC Sec. 1228(b);  such an alien is treated just as one who was "admitted" to the US and who then committed an aggravated felony;  the USCA rejected the contention that Congress intended to exempt from expedited administrative removal aggravated felons who enter the country by sneaking in.  Brunetti, T.G. Nelson, and Silverman (author), Circuit Judges.  AUSA B. Hoffstadt of Los Angeles, CA, for the plaintiff;  DFPD J. Locklin of Los Angeles, CA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

41)  RIGHT TO COUNSEL:  USA v. Erskine, 02-50030 (9th Cir. Jan. 21, 2004).  The defendant appealed his conviction on one count of threatening to assault or murder FBI agents;  he maintained that the District Court erred in finding a knowing and voluntary waiver of counsel and allowing him to represent himself;  the USCA reversed and remanded, finding that the defendant's waiver of his Sixth Amendment right to counsel was invalid;  the District Court had failed to advise the defendant of the possible penalties he faced at the hearing in accordance with Faretta v. California, 422 US 806 (1975);  in addition, the record established that the defendant did not understand the possible penalties when he opted for self-representation.  Reinhardt (author), O'Scannlain, and Fisher, Circuit Judges.  R. Harley of Santa Ana, CA, for the defendant-appellant;  AUSA J. Behnke of Riverside, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  INVESTIGATORY STOPS:  USA v. Christian, 02-30185 (9th Cir. Jan. 28, 2004).  Police are not precluded from demanding a suspect's true identity during an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968), so long as the demand is reasonably related to the suspect's detention;  the request for identification during a Terry stop is not inherently unreasonable and was not unreasonable in this particular case.  D.W. Nelson, Kozinski (author), and McKeown, Circuit Judges.  S. Elliot of Seattle, WA, for the defendant-appellant;  AUSA B. Miyake of Seattle, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  INVESTIGATORY STOPS:  USA v. Terry-Crespo, 03-30085 (9th Cir. Jan. 29, 2004).  The District Court properly denied the defendant's motion to suppress physical evidence and statements as poisonous fruit of a search conducted in violation of the Fourth Amendment; the District Court properly concluded that the victim's 911 phone call precipitating the stop bore sufficient indicia of reliability to provide the police with reasonable articulable suspicion justifying it;  the District court properly found that the defendant's prior offense of unlawful use of a firearm constituted a "crime of violence" for purposes an a sentence enhancement under Guideline Sec. 2K2.1(a)(4)(A) (2002);  whether or not the defendant shot at an inhabited building, he created a serious potential risk of physical injury by firing his gun at a building located within Portland's city limits.  Alarcon, Rawlinson, and Bybee (author), Circuit Judges.  AFPD R. Iniguez, of Portland, OR, for the defendant;  AUSA F. Weinhouse of Portland, OR, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  SEARCH & SEIZURE:  Hell's Angels Motorcycle Corporation v. McKinley, 02-15215 (9th Cir. Jan. 6, 2004).  FBI Special Agent McKinley executed an administrative subpoena to search documents previously seized from the Hell's Angels Motorcycle Club pursuant to a search warrant;  the District Court dismissed the Hell's Angels' Bivens action against McKinley, finding that he was entitled to qualified immunity;  the USCA agreed with the District Court's judgment in favor of McKinley as the Hell's Angels had no reasonable expectation of privacy in the seized documents.  Noonan, Rawlinson (author), and Bybee, Circuit Judges.  J. Wiseman of Petaluma, CA, for the plaintiffs-appellants;  AUSA S. Nonaka of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  SEARCH & SEIZURE:  USA v. Deemer, 03-30034 (9th Cir. Jan. 20, 2004).  Deemer appealed the District Court's denial of his motion to suppress evidence obtained from the warrantless entry into his hotel room by police officers;  the District Court denied Deemer's motion because it found that the officers' actions fell within the "emergency exception" to the Fourth Amendment restriction on warrantless searches or seizures.  The USCA reversed.  In investigating a 911 call presumably originating from Room 105 of a large hotel, the police had no "reasonable basis" to associate the possible emergency with the area it actually searched—Deemer's adjacent room.  Brunetti (author), T.G. Nelson, and Graber, Circuit Judges.  AFPD M. Geddes of Anchorage, AK, for the appellant;  AUSA T. Burgess of Anchorage, AK, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  JUVENILE LAW / SENTENCING:  USA v. Mitchell, 03-30008 (9th Cir. Jan. 14, 2004).  Mitchell appealed a 60-month sentence imposed by the District Court following his 2002 guilty plea to conspiracy to distribute, and distribution of, methamphetamine and cocaine;  he maintained that the District Court miscalculated his Guidelines criminal history score by including a 1993 juvenile post-office burglary conviction that originally resulted in a term of straight probation;  because Mitchell conceded that his probation was subsequently revoked and that he was confined on three separate occasions in 1994, 1995, and 1997, the USCA held that his 1993 sentence resulted in a term of confinement and that the District Court properly counted that sentence in tabulating Mitchell's criminal history score under Chapter Four of the Guidelines.  Kleinfeld, Gould, and Tallman (author), Circuit Judges.  FPD A. Gallagher of Great Falls, MT, for the defendant;  AUSA C. Rostad of Great Falls, MT, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  MAIL FRAUD / RESTITUTION:  USA v. Bright, 02-50492 (9th Cir. Jan. 5, 2004).  The defendant pled guilty to five counts of mail fraud arising from a scheme in which he falsely offered nurses the opportunity to work at home processing medical surveys;  the District Court did not err in calculating the total loss suffered by his victims, resulting in a 10-level rather than a 9-level adjustment of his base offense;  the District Court also properly ordered restitution for dismissed counts;  finally, the District Court was not required to offset forfeited funds against defendant's restitution obligation, or to attempt to transfer those funds to his victims.  Fisher (author) and Bybee, Circuit Judges, and Mahan, District Judge.  H. D. Steward of Capistrano Beach, CA, for the defendant-appellant;  E. McGah of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  SENTENCING:  USA v. Dela Cruz, 03-10151 (9th Cir. Jan. 12, 2004).  As the defendant, convicted of making telephonic bomb threats in violation of 18 USC Sec. 844(e), fully intended his threats to cause immediate disruption, the District Court did not err in deeming him ineligible for a downward departure under Sentence Guidelines Sec. 5K2.13 (2002);  the defendant intended to force the recipients of his threat to take urgent actions to protect the public from the threatened violence;  indeed, he admitted that he made his threats to force the postponement of collection proceedings against him that were set for hearing on the date of the threat;  the District Court thus did not err in deeming him ineligible for a departure under Sec. 5K2.13  Schroeder (author), D.W. Nelson, and Rymer, Circuit Judges.  J. Horey of Saipan, CNMI, for the defendant;  AUSA J. Rice of Saipan, CNMI, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  SENTENCING:  USA v. Thomas, 02-10409 (9th Cir. Jan. 26, 2004).  Thomas appealed his 120-month sentence following his guilty plea conviction for possession with intent to distribute cocaine base in violation of 21 USC Sec. 841(a)(1);  he was sentenced to the statutory minimum sentence provided by 21 USC Sec. 841(b)(1)(A) because his indictment charged that he possessed with the intent to distribute more than 50 grams of cocaine base;  he argued on appeal that, although he pleaded guilty, he never admitted to that quantity of drugs, and in fact repeatedly sought to preserve his rights to contest that quantity.  The USCA vacated and remanded for resentencing, holding that the due process requirement that drug quantity be pleaded in the indictment, submitted to a jury, and proved beyond a reasonable doubt did not transform drug quantity into an element of the offense that a defendant necessarily admits when pleading guilty.  Hug, B. Fletcher, and Tashima (author), Circuit Judges.  AFPD D. Blank of San Francisco, CA, the defendant;  AUSA M. Wang of San Francisco, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  SENTENCING:  USA v. Williams,02-30209 (9th Cir. Jan. 26, 2004).  Before the supervised release condition of mandatory medication can be imposed, the District Court must make on-the-record, medically grounded findings that court-ordered medication is necessary to accomplish one or more of the factors listed in 18 USC Sec. 3583(d)(1);  in addition, the court must explicitly find that the condition "involves no greater deprivation of liberty than is reasonably necessary."  Goodwin, Hug, and Berzon (author), Circuit Judges.  FPD S. Jacobson of Portland, OR, for the defendant-appellant;  AUSA F. Noonan of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  SENTENCING:  USA v. Pedroza, 02-30294 (9th Cir. Jan. 26, 2004).  Pedroza pleaded guilty to three drug related counts;  consistent with the terms of his plea agreement with the government, the District Court sentenced him to a term of 92 months followed by a mandatory consecutive sentence of 60 months for possession of a firearm during a drug trafficking crime;  in response to the government's Fed. R. of Crim. Proc. 35(b) motion, the Court reduced the total sentence to 130 months; Pedroza challenged the extent of the reduction, arguing that it did not adequately reflect the breadth of his cooperation.  The USCA held that it could assert jurisdiction over an appeal of a District Court's ruling on a sentence reduction pursuant to a Rule 35 motion only if the sentence satisfies one of 18 USC Sec. 3742's four criteria; but Pedroza did not claim that his sentence was 1) imposed in violation of law, 2) imposed as a result of an incorrect application of the Sentence Guidelines, 3) greater than the sentence specified in the applicable Guideline range, or 4) imposed for an offense that has no Guideline or is plainly unreasonable.  Wardlaw, Gould, and Paez, Circuit Judges. Per Curiam.  G. Silvey of Boise, ID, for the defendant;  AUSA K. Lindquist of Boise, ID, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  DOUBLE JEOPARDY / HABEAS CORPUS:  Wilson v. Czerniak, 02-36121 (9th Cir. Jan. 20, 2004).  The petitioner appealed the District Court's denial of his 28 USC Sec. 2254 petition for a writ of habeas corpus to prevent the State of Oregon from retrying him on three counts of aggravated felony murder;  the USCA reversed, holding that the Fifth Amendment Double Jeopardy Clause prohibits the petitioner's retrial because he has already been tried, and acquitted, of a lesser included offense of the charges on which the State now seeks to reprosecute him;  the USCA thus granted the petition.  Dissenting, Judge Alarcon would affirm the denial of the Sec. 2254 petition:  the District Court held that double jeopardy did not apply because the jury's inability to reach a verdict on the aggravated murder charges was inconsistent with its decision to acquit the petitioner of the separately pleaded crime of intentional murder; Judge Alarcon agreed with the District Court's conclusion that the state court's decision to permit retrial of the aggravated murder charges is not contrary to, or an unreasonable application of clearly established decisions of the U.S. Supreme Court.  Alarcon (dissenting), Ferguson (author), and Rawlinson, Circuit Judges.  R. Wolf of Portland, OR, for the petitioner; AAG T. Sylwester of Salem, OR, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  HABEAS CORPUS / JUROR MISCONDUCT:  Caliendo v. Warden of California Men's Colony, 01-56946 (9th Cir. Jan. 9, 2004). Caliendo appealed the District Court's denial of his habeas petition;  he maintained that the California Court of Appeal's decision upholding his conviction was contrary to Supreme Court precedent because the Court did not presume prejudice from an incident of juror misconduct (a detective who provided testimony crucial to the prosecution's case had a 20 minute conversation, unrelated to Caliendo's trial, with three jurors in the hallway during a break in deliberations).  However, the USCA found that the government successfully rebutted the presumption of prejudice by making a strong contrary showing that the contact between the detective and the jurors had no tendency to reflect upon or bolster the witness' credibility;  the contact thus was harmless.  Hall (author), O'Scannlain, and McKeown, Circuit Judges.  K. Miller of San Clemente, CA, for the appellant;  DAG M. Johnson of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  HABEAS CORPUS:  Williams v. Rhoades, 02-15280 (9th Cir. Jan. 16, 2004).  In this case, the state courts reasonably applied federal law and reasonably interpreted the facts in rejecting a prisoner's claim that race motivated the prosecutor's peremptory strike of the only African-American from the jury in violation of Equal Protection principles articulated in Batson v. Kentucky.  Farris (author) and Trott, Circuit Judges, and Weiner, District Judge.  D. Horgan of San Francisco, CA, for the petitioner-appellant;  DAG B. Alvarez of Fresno, CA, for the respondents-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  HABEAS CORPUS:  Nardi v. Stewart,02-16646 (9th Cir. Jan. 20, 2004).   Nardi appealed from the District Court's dismissal of his habeas petition on statute of limitations grounds;  because the answer to his petition failed to assert a statute of limitations defense, as required by Fed. Rule Civil Proc. 8(c), that defense was waived and the District Court lacked authority to dismiss the petition as time-barred;  the USCA remanded for consideration of the petition on the merits.  Pregerson (author), Beam, and Paez, Circuit Judges.  AFPD P. Harms of Phoenix, AZ, for the petitioner-appellant;  C. Harris of Phoenix, AZ, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  PRISONERS' RIGHTS:  Bahrampour v. Lampert, 02-35194 (9th Cir. Jan. 13, 2004).  Bahrampour sought reversal of the summary judgment entered by the District Court in favor of prison officials of the Oregon Department of Corrections ("ODC");  in his pro se complaint, Bahrampour alleged that the ODC violated his First and Fourteenth Amendment rights to freedom of speech and due process by refusing to deliver certain pieces of mail to him;  in a supplemental claim, he alleged that this same conduct also violated his State constitutional right to freedom of speech under Art. 1, Sec. 8 of the Oregon Constitution.  The USCA affirmed the District Court's judgment as to Bahrampour's Sec. 1983 claim;  it vacated in part and remanded because the District Court failed to consider Bahrampour's supplemental claim;  because the First Amendment right of inmates to receive commercial bulk mail was not clearly established at the time the prison officials rejected Bahrampour's "Green Lantern" comic book, the defendants were entitled to qualified immunity.  Goodwin, Alarcon (author), and Rawlinson, Circuit Judges.  D. Burman of Seattle, WA, for the plaintiff-appellant;  S. Powers of Salem, OR, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)